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PETITIONER: MADAN MOHAN MONDAL

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT02/08/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2400            1973 SCR  (1) 761  1972 SCC  (2) 534

ACT: Preventive  Detention-Maintenance of Internal Security  Act, (26  of  1971), ss. 3(1) & (2) and  Constitution  of  India, 1950,    Art.    22(5)-Delay   in    considering    detenu’s representation-Effect of.

HEADNOTE: The  petitioner  was  arrested  pursuant  to  an  order   of detention under ss. 3(1)(a)(iii) and 3(2) of the Maintenance of  Internal Security Act, 1971.  His representation to  the State Government was rejected 33 days after its receipt.  In a  petition  under Art. 32 challenging  his  detention,  the State Government explained the delay by stating that the go- slow movement launched by the State Government employees and the  increase in the volume of work relating  to  detentions caused dislocation in the work and consequential delay.   It was also stated in the counter-affidavit that the petitioner was  a  notorious  thief  of  copper  wires  and  that   his activities seriously disrupted the telegraphic communication system of the railways and dislocated railway service. HELD  : (1), If preventive detention without trial is to  be justified   then  the  Government  must  comply   with   due promptitude  with  all  the essential  requirements  of  the Constitution as also of the Act relating to such  detention. The representation made by a detenu to the State has, there- fore,  to  be  considered  as  early  as  possible   without avoidable  delay.   This  is implicit in  Art.  22(5)  which prescribes  the minimum procedure that must be  included  in any law permitting preventive detention.  When theprovisions of the Article or of a law relating to preventive  detention providing  for  safeguards  against  arbitrary  or   illegal detention are not complied with, then, even if the detention may  be  valid  an  initio it ceases to be  so  as  soon  as violation  of  the provisions of the Article or of  the  law occurs.  The time within which the Government must  consider the  representation  will depend upon the  circumstances  of each  case and no rigid limit can be fixed; but  ’any  prima facie unreasonable delay must be satisfactorily explained by the  detaining authority if the order of detention is to  be upheld., [763F-H. 764A] (2)  In  the present case, the explanation for the delay  is vague  and  does  not indicate that there was  any  real  or

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genuine  obstacle to considering the  representation  within reasonable time. [764B] (2)  In  he present case, the; explanation for the delay  it vague  and  does  Court it would not advance  the  cause  of justice  to postpone the hearing and await the  decision  of the High Court. [764D-E] (4)  Legal safeguards against possible arbitrary exercise of power or abuse or misuse of the provisions of the preventive detention  laws, demand compliance in all situation  covered thereby, and to ignore the safeguards would be to ignore the mandate  of  the Constitution.  Therefore,  the  allegations regarding  the  petitioner’s activities cannot  absolve  the authorities concerned of their constitutional obligation  to give appropriate effect to the legal safeguards provided  by the Constitution and the Act. [764E-H] 4-LI52Sup CI/73 762

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 215 of 1972. Under  Article 32 of the Constitution of India for  the  en- forcement of fundamental rights. G.   S. Rama Rao for the petitioner. G.   Mukhoty and G. S. Chatterjee for the respondent. The Judgment of the Court was delivered by Dua  J.-The  petitioner  was arrested on  November  8,  1971 pursuant  to the order of detention of the same date  passed under  sub-s. (1) a) (iii) read with sub-s. (2) of S.  3  of the  Maintenance  of  internal   Security Act,  26  of  1971 (hereinafter  called,  the Act).  The grounds  of  detention were also served on him and the matter reported to the State Government on that very day.  On November 16, 1971 the State Government  accorded  its approval and  made  the  necessary report  to  the  Central Government.  The  case  was  placed before the Advisory Board on December 3, 1971.  On  December 6.  1971 the petitioners representation was received by  the State  Government but it was considered on January  8,  1972 nearly  33 days after its receipt.  The Advisory Board  gave its decision on January 13, 1972 and the order of  detention was  affirmed by the State Government on January  22,  1972. The  detenu  was communicated of this order on  January  25, 1972. The only ground raised on behalf of the detenu before us  is that  the  State Government  considered  his  representation after undue delay and that his detention must be  considered to have become illegal on this ground. The  explanation  given  by  the State  for  this  delay  is contained in para 8 of the counter-affidavit and it reads :               "..........  the  said representation  of  the               detenupetitioner  could not be  considered  by               the   State  earlier,  inter  alia,   on   the               following grounds :               (a)   that  the go-slow movement  launched  by               the  State Government employees sometime  back               caused some dislocation in office work  conse-               quential  increase  in the  pending  work  and               delay in disposal.               (b)   that  due to increase of the  volume  of               work relating to detentions under the said Act               there was considerable pressure of work and in               consequence whereof disposal of urgent matters               were also delayed.               (c)   that due to aforesaid grounds,  movement

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             of files was delayed and the records were not                763               readily available and in this case there was a               delay  of  about 33 days  in  considering  the               representation of the petitioner.               I  further  state  that  the  said  delay  was               unintentional and was caused for such  reasons               beyond the control of the State Government.  I               submit that the said delay may be condoned." No  doubt there was war with Pakistan from December 3,  1971 to  December  17,  1971  when  India  unilaterally  declared ceasefire  and in the State of West Bengal naturally  things could  not be quite normal during the war days  and  perhaps also  during some time thereafter.  These are the  facts  of which  this Court can certainly take judicial  notice.   But for  reasons  best known to the respondent no  reliance  has been placed on this circumstance while explaining the  delay and  our  decision  must  not be  considered  to  imply  any expression  of  opinion on the effect of the  1971  Indo-Pak war.   The question whether, or not the Indo Pak war or  its after-effects  on  the normal functioning  of  the  relevant Government departments reasonably contributed towards  delay in the consideration of the detenu’s representation must  be left open to be decided when appropriately raised in a case. We should like to repeat what seems to us to be well-settled that  too leisurely a manner. of dealing with the  statutory provisions  relating  to  safeguards  against  arbitrary  or illegal  orders  of preventive  detention  requiring  urgent attention, as is the case before us, is wholly  inconsistent with the fundamental importance attached by our Constitution to  the question of personal freedom of the individual.   If preventive  detention without trial is to be justified  then the Government must comply with due promptitude with all the essential  requirements of our Constitution as also  of  the Act relating to such detention.  The representation made  by the detenu to the State has, therefore, to, be considered as early  as  possible, or in other words as  expeditiously  as practicable   without  avoidable  delay.   This  has   been- repeatedly stated by this Court to be implicit in Art. 12(5) of  the  Constitution.   Article 22,  it  may  be  recalled, prescribes  the minimum procedure that must be  included  in any  law  permitting  preventive  detention  and  when   the provisions  of Art. 22 or of a law relating to a  preventive detention  providing  for safeguards  against  arbitrary  or illegal orders of detention are not complied.with then  even if  the  detention may be valid ab initio it  ceases  to  be valid  as soon as violation of the provisions of Art. 22  or of   the   mandatory  provisions  of  the   law   permitting ’preventive  detention occurs.. No doubt no rigid  limit  of time can be fixed within which the Government must  consider the representation and the 764 question  always  requires determination on  the  facts  and circumstances  of each case.  Any prima  facie  unreasonable delay  must  be satisfactorily explained  by  the  detaining authority if the order of detention is required to be upheld by this Court.  The explanation for the delay in the present case is so extremely vague that we find it almost impossible to hold that due to the reasons contained in the explanation embodied  in  the  counter-affidavit  there  was  any  real, genuine obstacle in the way of the Government in considering the  representation  within reasonable time and  before  the expiry of what seems to be an inordinate delay of 33 days. In  the counter-affidavit it is averred that the  petitioner appears also to have applied to the Calcutta High Court  for

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a writ of habeas corpus (Crl.  Misc.  No. 958 of 1972) which is  still  Pennding  there.   The  petitioner  has  in   his application  in this Court stated that he had "not  appealed to the Hon’ble High Court at Calcutta".  The learned counsel for both sides in this Court were unable to give any further details  or information in this connection.  The  State  has not  produced before us a copy of the writ  application  nor could  the counsel for the State tell us about the  date  on which the writ petition in the Calcutta High Court was filed by  the detenu.  In these circumstances we do not  think  it would advance the cause of justice to decline to dispose  of the present petition under Art. 32 of the Constitution or to postpone the hearing and await the decision of the  Calcutta High Court. We  are  not  unmindful of the fact  that  in  the  counter- affidavit  it  is  stated that the  detenu-petitioner  is  a notorious thief of copper wires and cables and after stating the  objectionable  activities  of  the  detenu  and   after referring  to  the  incidents mentioned in  the  grounds  of detention  it  is  asserted  that  the   detenu-petitioner’s activities  seriously  disrupted  telegraphic  communication system  of  the railways and caused dislocation  of  railway service.  But this cannot absolve the authorities  concerned of  their  constitutional  obligation  to  give  appropriate effect to the legal safeguards provided by the  Constitution and  the  Act.  Indeed it is precisely in such  a  situation that  the  real strength and vigor of  the  true  democratic system  of government like ours which guarantees  individual liberty   is  properly-tested.   Legal  safeguards   against possible  arbitrary exercise of power or abuse or misuse  of the provisions of the preventive detention laws demand  com- pliance   in  all  situations  covered   thereby   including situations like the one suggested in the  counter-affidavit. To  ignore  them  would  be to ignore  the  mandate  of  the Constitution., This  writ petition is accordingly allowed and  the  detenu- petitioner directed to be set at liberty forthwith. V.P.S. Petition allowed. 765