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PETITIONER: PIARA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT13/10/1987

BENCH: KANIA, M.H. BENCH: KANIA, M.H. PATHAK, R.S. (CJ)

CITATION:  1987 AIR 2377            1988 SCR  (1) 456  1987 SCC  (4) 550        JT 1987 (4)    74  1987 SCALE  (2)740

ACT:      National  Security   Act,  1980:   Section   3-Detenu’s representation to Government-Duty of State to determine with utmost expedition-Failure to do so-Vitiates detention order- Infringement of fundamental right under Article 22(5) of the Constitution-Advocate-Whether    prevented    from    making representation on  behalf of  detenu-Writ Petition-Dismissal by  High   Court-Whether  ground  for  non-consideration  by Government of detenu’s representation.

HEADNOTE:      The petitioner  was detained  by the  Punjab Government pursuant to  an order of detention passed under sub-sections (1) and (2) of section 3 of the National Security Act, 1980. When in  jail, he  was served  with an  order  passed  under section 3(1)  of the  Conservation of  Foreign Exchange  and Prevention  of   Smuggling  Act   (COFEPOSA)  directing  his detention.      The petitioner  made a representation against his order of detention  under COFEPOSA.  He was  produced  before  the Advisory Board.  Pursuant  to  Board’s  recommendation,  his detention was  revoked. He was also produced before the same Board, being  also the  Advisory Board  under  the  National Security Act. He did not make any representation against his detention under  the National  Security Act,  believing that his detention  was only  under COFEPOSA. The Board confirmed the detention  order. On  January 24,  1986 an  order passed under subsection  (1) of  section 12  read with  section 14- A(1)(2)(c) and  (d) of  the National  Security Act, 1980, as amended, confirmed  the aforesaid order of detention and the petitioner was directed to be continued to be detained for a period of 2 years from the date of his detention.      The petitioner made a representation dated December 18, 1986, through  his Advocate,  addressed to  the President of India for  the revocation  of his detention. On December 24, 1986, the petitioner made a representation to the Government of Punjab  against  his  detention,  con  tending  that  his detention was  invalid as  vital facts  and  materials  that should have  influenced the minds of the declaring authority and the detaining authority had not been placed before them. Both these

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457 representations were rejected on 26.2.1987.      The petitioner  challenged the  order of  detention  on various grounds  including the one that there was inordinate delay in  dealing with  his  representation  to  the  Punjab government. It was contended that there was no justification for the  undue delay  in disposing  of  his  representation, which had  resulted in violation of his rights under Article 22(5) of  the Constitution  and that his continued detention was not valid in law.      It was contended on behalf of the respondent-State that the representation  was received on January 14, 1987, and it was invalid  as the Advocate who sent it had no authority to make it and that the delay in dealing with it was on account of the  fact that  it was made by a person claiming to be an Advocate of  the petitioner whose authority was not checked, and that the delay had caused no prejudice to the petitioner because he  preferred a  writ petition against his detention to the High Court which was dismissed.      This Court  allowed the  writ petition,  set aside  the order of detention, and directed release of the petitioner.      Giving reasons for its decision, this Court, ^      HELD: 1.1 Where the liberty of a person is involved, it is the  duty of  the State  to determine  his representation with utmost expedition and deal with it continuously until a final decision  is taken and communicated to detenu. Failure to do  so  vitiates  the  order  of  detention,  because  it infringes the fundamental right given to every citizen under Article 22(5) of the Constitution of India. [461F-G, 460H]      In  the   instant  case   the  delay  in  dealing  with representation  of  the  petitioner,  which  was  admittedly received by  the Government on January 14, 1987 and rejected as late  as on  February 26,  1987, must  be  considered  as inordinate delay  in dealing  with  the  representation.  No explanation is  given in the counter affidavit as to why the representation could  not have  been dealt with and disposed of earlier.  Hence, the  order of  detention is  vitiated by reason of delay in dealing with his representation. [462C-E]      Saleh Mohammad  v. Union of India, [1980] 4 SCC 428 and Harish Pahwa  v. State  of U.P. & Ors., [1981] 3 S.C.R. 276, relied on. 458      1.2  There   is  nothing   in  law   which  prevents  a representation being  made by  an Advocate  on behalf of the detenu. If there was any difficulty on that account, enquiry should have  been made  with the Advocate as to what was his authority to  represent the detenu. No such enquiry has been made  in   the  present   case.  Thus,  the  fact  that  the representation was  made by  the Advocate  does not explain, and cannot  constitute any  explanation  for  the  delay  in dealing with that representation. [462G-H]      1.3  No  doubt  the  writ  petition  preferred  by  the petitioner was  dismissed but Special Leave Petition against that decision  is pending  in this  Court. Further,  at that time, the  petitioner had  not made  representation  to  the State Government  at all.  Hence the  dismissal of  the writ petition by  the  High  Court  cannot  be  regarded  as  any substitute for  consideration of  his representation  by the State Government  which, unlike the Court, might be entitled to go  into the  factual merits  of the  grounds forming the basis of detention order. [463B-C]      Smt. Asha  Keshavrao Bhosale  v. Union of India & Anr., [1985] 2 SCALE 634, distinguished.

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JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition (Criminal) No. 30 of 1987.      (Under Article 32 of the Constitution of India).      Harjinder Singh for the petitioner.      R.S. Sodhi for the Respondent.      The Judgment of the Court was delivered by      KANIA, J.  This is  a petition  under Article 32 of the Constitution of  India for  a writ  of habeas  corpus or any other appropriate writ or order quashing the order dated 3rd January,  1985  passed  by  the  Special  Secretary  to  the Government of  Punjab for  detention of  the petitioner  and praying for the release of the petitioner.      By our  order dated 8th May, 1987, we had held that the writ petition  succeeds for  the reasons which we would give later. We  had also  set aside  the order  of detention  and directed the  petitioner to  be released.  We are now giving the reasons for the said order. 459      The facts  necessary for  disposal of the writ petition lie within  a fairly  narrow  compass.  The  petitioner  was detained on  21st November,  1985 pursuant  to an  order  of detention dated  3rd January, 1985 passed under Sub-Sections 1 & 2 of section 3 of the National Security Act, 1985 signed by the Special Secretary to the Government of Punjab setting out that  the President  of India  in exercise of the powers conferred by  Sub-Sections (  1) &  (2) of  Section 3 of the National Security  Act, 1985  was pleased  to order that the petitioner should  be detained.  The ground  given  in  that order is  that the  petitioner is  indulging  in  activities prejudicial to  the defence of India and the security of the State. On  17th April,  1985, the petitioner, when he was in jail, was  served with an order passed under Section 3(1) of the Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Act  (referred to  hereinafter as COFEPOSA), dated 17th April,  1985, directing  his detention.  The petitioner made a  representation against  his order of detention under COFEPOSA. He  was produced  before the  Advisory Board under that Act  and pursuant to the recommendation of the Advisory Board,  his   detention  Under  COFEPOSA  was  revoked.  The petitioner was  also produced  before the  same Board, being also the Advisory Board under the National Security Act. The petitioner did  not  make  any  representation  against  his detention under  that Act  as,  according  to  him,  he  was confused and  believed that  his detention  was  only  under COFEPOSA. It  appears that  the Advisory Board confirmed the order of  his detention. On 24th January, 1986, an order was passed by  the Under  Secretary to the Government of Punjab, Home Department  setting out  that the President of India in exercise of  powers conferred  on him under Sub-Section ( 1) of Section  12 read  with Section  14-A( 1) (2) (c) & (d) of the National  Security Act, 1980 (No. 65 of 1980) as amended confirmed the  aforesaid order  of detention and was pleased to order  that the  petitioner would continue to be detained in the  custody of  the Inspector General of Prisons, Punjab for a  period of  two years  from the date of his detention. The petitioner  made a  representation dated  18th December, 1986 through  his Advocate  addressed to  the  President  of India for  revocation of  his detention.  On 24th  December, 1986 the  petitioner made  a representation  to the  Special Secretary to  the Government  of Punjab,  Department of Home Affairs  and   Justice,  against   his  detention.  In  this representation the  petitioner, inter  alia, contended  that

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his detention  was invalid as vital facts and materials that should have  influenced the minds of the declaring authority and the detaining authority had not been placed before them. Both  the   representations  made  by  the  petitioner  were rejected  on   26th  February,   1987.  According   to   the respondent,  the   representation  made   to   the   Special Secretary, Government of Punjab was 460 received on  14th  January,  1987.  But,  according  to  the petitioner, it was received by the Special Secretary on 30th December, 1986. In support of this contention the detenu has produced an  acknowledgement slip  along with  a copy of his representation. We propose to proceed on the assumption that the representation  was received by the Special Secretary on 14th January,  1987 because,  even on  that assumption,  the petitioner, in our opinion, must succeed in the petition.      In the petition the petitioner has challenged the order of detention  passed against him under the National Security Act on various grounds including the ground that Section 14- A of  the National  Security Act  is void  as violating  the Constitution of India. We propose to dispose of the petition only on  one ground, namely, that there was inordinate delay in  consideration   of  the   representation  made   by  the petitioner to  the  Government  of  Punjab  through  Special Secretary; and  hence we do not propose to discuss the other grounds urged by the petitioner. We may mention here that as far as  representation made by the petitioner to the Central Government  by   his  Advocate’s  letter  addressed  to  the President of  India is concerned, we do not propose to enter into any  controversy regarding  that representation  as the Union of  India has  not been  joined  as  a  party  to  the petition. The  contention of the petitioner, on the basis of which we  propose to  dispose of  this petition,  is that he made a  representation to  the Government  of Punjab on 18th December, 1986. That representation, as per admission of the Government of Punjab, was received on 14th January, 1987 and there was  undue delay  in disposing  of that representation which was  rejected on  26th February,  1987, as  aforesaid. According to  the petitioner  there is  no justification for this delay  and on  account of  this delay the rights of the petitioner under  Article 22(5) of the Constitution of India have been  violated  and  the  continued  detention  of  the petitioner is not valid in law.      Coming to  the affidavit  filed by  Shri  V.V.  Chadha, Under  Secretary  to  the  Government  of  Punjab,  in  this connection, we  may point  out that,  apart from saying that the representation  made by the petitioner as aforesaid, was received on  14th January,  1987, no explanation whatever is given as  to why  it took  over a  monty  and  ten  days  to consider and  dispose of  that representation.  It has  been repeatedly laid  down that  in a  matter of  detention,  the representation made by the detenu should be disposed of with utmost expedition and failure to do so vitiates the order of detention, because  it infringes the fundamental right given to every  citizen under Article 22(5) of the Constitution of India. In  support of his arguments, learned counsel for the petitioner 461 drew our  attention to  the decision  of this Court in Saleh Mohammed v.  Union of  India, [1980] 4 SCC 428 where a delay of 22  days in  considering the representation of the detenu was held to be inordinate and unreasonable. It was held that this delay  violated the  rights  of  the  petitioner  under Article 22(5)  of the Constitution of India and vitiated the detention order.  In that case the detention order was under

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COFEPOSA and the detenu was arrested on 21st January-, 1980. On 20th  February, 1980  the detenu made a representation to the detaining  authority through  Superintendent of Jail. On 25th February,  1980 he  was produced  before  the  Advisory Board. On  10th March,  1980 his  detention was confirmed by the  State   Government  and   on  26th   March,  1980   his representation was  rejected by the State Government. In the affidavit filed  by the  respondent  in  that  case  it  was contended that the representation of the detenu made on 20th February, 1980  was received  in the Home Department on 14th March, 1980.  It has  been pointed out by this Court in that case that:-           "Times out  of number,  this Court  has emphasised           that  where   the  liberty  of  an  individual  is           curtailed under a law of preventive detention, the           representation,  if  any,  made  by  him  must  be           attended  to,   dealt  with  and  considered  with           watchful care  and reasonable promptitude lest the           safeguards  provided   in  Article  22(5)  of  the           Constitution and  the statute  concerned should be           stultified and rendered meaningless." It was  held that the functionaries of the state were guilty of gross  negligence in  dealing with  and disposing  of the representation of  the detenu.  The delay  of about  22 days during which  time the representation of the detenu remained unattended in  the office  of the  Suprintendent of  Jail or Inspector General of Prisons was to be held as inordinate.      In Harish  Pahwa v.  State of  U.P. &  ors.,  [19811  3 S.C.R. 276  it has  been pointed  out by  this Court that it does not look with equanimity upon delays in considering the representations of detenus. Where the liberty of a person is involved, it  is the  duty of  the State  to  determine  his representations with  the utmost expedition and deal with it continuously  until   a  final   decision   is   taken   and communicated to  the detenu. In that case the representation of the  detenu was  received by  the State Government on 4th June, 1980.  The detention was under COFEPOSA. Comments were called for  from the  Customs authorities  on 6th June, 1980 and the comments were received on 13th June, 1980. 462 On 17th  June.  1980,  the  State  Government  referred  the representation A  to its Law Department for is opinion which was furnished  on 19th  June, 1980.  The representation  was rejected on  24th June, 1980. The rejection was communicated to the  jail authorities  two days  later. The writ petition filed by the petitioner was dismissed by the High Court. The aforesaid principles  were reiterated  by this  Court on  an appeal preferred  by the  detenu against the decision of the High Court.  It was  held in  that case  that there  was  no explanation given  by the Government as to why no action was taken on  the representation  of the  detenu on 4th, 5th and 25th June,  1980 and  what consideration  was given  by  the Government to  it from 13th June, 1980 to 16th June,1980. On that ground  it was  held that there was inordinate delay in considering  the   representation  of  the  detenu  and  the detention became bad in law.      In the  light of these decisions in the present case it must  be   held  that   the  delay   in  dealing   with  the representation  of  the  petitioner,  which  was  admittedly received  by  the  Government  on  14th  January,  1987  and rejected  as  late  as  on  26th  February,  1987,  must  be considered  as   inordinate  delay   in  dealing   with  the representation. No  explanation is  given  in  the  counter- affidavit as  to why  the representation could not have been dealt with  and disposed  of earlier,  and hence  it must be

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held that  the order  of  detention  of  the  petitioner  is vitiated  by   reason  of   delay  in   dealing   with   his representation.      It  was  contended  by  the  learned  counsel  for  the respondent that the representation made by the detenu to the Special Secretary,  Government of  Punjab was invalid as the Advocate who  sent the  representation had  no authority  to make that  representation. It  was submitted  by him  in the alternative   that   the   delay   in   dealing   with   the representation was  on account  of the fact that it was made by a  person claimed  to be  the Advocate  of petitioner but whose authority  was not  checked. In  our view  neither  of these contentions  can be upheld. These contentions have not been taken  up in  the counter-affidavit and cannot be urged merely at  the hearing  of the petition. There is nothing in law  which  prevents  a  representation  being  made  by  an Advocate  on   behalf  of  the  detenu.  If  there  was  any difficulty on  that ground,  enquiries should have been made with the  Advocate as to what was his authority to represent the detenu, and no such enquiry has been made in the present case.  Thus,   in  the  present  case,  the  fact  that  the representation was made by the Advocate does not explain the delay  in   dealing  with  that  representation  and  cannot constitute any explanation for the delay in dealing with it. 463      lt was  next sought  to be contended by learned counsel for the  respondent that  the  delay  in  dealing  with  the representation had  caused no  prejudice to  the petitioner, because it  admitted  that  he  preferred  a  writ  petition against his detention to the Punjab & Haryana High Court and that writ  petition was  dismissed by the High Court. In our view this submission also cannot sustain order of detention. It  is   true  that  the  writ  petition  preferred  by  the petitioner  to   the  Punjab  and  Haryana  High  Court  was dismissed, but we are informed that a Special Leave Petition filed against  that  decision  is  pending  in  this  Court. Moreover at  the time  when the writ petition was dismissed, the petitioner  had not made any representation to the State Government at  all and  hence  the  dismissal  of  his  writ petition by  the  High  Court  cannot  be  regarded  as  any substitute for  consideration of  his representation  by the State Government  which, unlike the Court, might be entitled to go  into the  factual merits  of the  grounds forming the basis of  detention order.  In support  of  his  contention, learned counsel  for the  respondent sought  to rely  on the decision of  this Court  in Smt.  Asha Keshavrao  Bhosale v. Union of  India &  Anr., [1985] 2 SCALE 634 in which case it was held  that the  delay of about two months in disposal of the representation  made by  the petitioner on behalf of the detenu to  the Chief Minister against his order of detention did not  vitiate the order of detention. That case, however, is of  no assistance  to the  respondent because it turns on its own  facts. A  detailed representation  was made in that case by  the Secretary, Khed Taluka Maratha Seva Sangh which espoused  the   cause  of  the  detenu  and  challenged  the detention.  That   representation  was   received  on   29th November, 1984  in the Secretariat of the Chief Minister. It was forwarded  to the  Home Department on 3rd December, 1984 and disposed  of expeditiously,  namely, on  12th  December, 1984. The  rejection of that representation was communicated on 13th  December, 1984. The High Court, which dismissed the petition of  the detenu  had considered the contents of both the representations and held that the representation made by the petitioner  was the  second one  and based  yon the same grounds and  delay in  disposing of  that representation did

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not prejudice the case of the detention. That conclusion was confirmed by  the Supreme  Court. The facts in this case are nowhere comparable  to the facts of that case, and hence the principles laid down in that case have no application to the case before us.      It was for the aforesaid reasons that the order setting aside the  order of  detention was  passed by  us as  stated earlier. N.P.V.                                     Petition allowed. 464