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PETITIONER: RAISUDDIN @ BABU TAMCHI

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ANR.

DATE OF JUDGMENT07/10/1983

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1984 AIR   46            1984 SCR  (1) 340  1983 SCC  (4) 537        1983 SCALE  (2)603  CITATOR INFO :  R          1984 SC1334  (21)  F          1985 SC1082  (11)  F          1989 SC1403  (8)  R          1989 SC1861  (18)  R          1990 SC1455  (13)

ACT:      National Security Act, 1980-Sec. 3 (3)-Detention order- Delay  in  dealing  with  detenu’s  representation  vitiates detention order-Whether  there is  delay depends  upon facts and circumstance  of each case-There is no rigid rule or set formula.      National Security  Act, 1980-Sec. 10-Interpretation of- The words "place before the Advisory Board" means forward to or submit before the Advisory Board and nothing more.

HEADNOTE:      The petitioner  who was  detained by  an  order  passed under  sec.  3  (3)  of  the  National  Security  Act,  1980 challenged the  validity of his detention on the ground that there had been inordinate delay on the part of the detaining authority in  forwarding the  petitioner’s representation to the State  Government and  that there  had been violation of the mandatory provisions of sec. 10 of the Act which enjoins the State  Government to  take steps to see that the case of the detenu  is considered by the Advisory Board within three weeks from the date of detention.      Dismissing the writ petition,      HELD: The question whether the representation submitted by a  detenu has  been dealt  with all reasonable promptness and diligence is to be decided not by the application of any rigid or  inflexible rule  or set  formula  nor  by  a  mere arithmetical counting of dates, but by a careful scrutiny of the facts  and  circumstances  of  each  case;  if  on  such examination, it  is found  that there  was  any  remissness, indifference or avoidable delay on the part of the detaining authority/State   Government    in    dealing    with    the representation, the  Court will  undoubtedly treat  it as  a factor vitiating  the continued  detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not  by any  lack of  diligence or  promptness of attention on the part of the authority concerned, but due to

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unavoidable circumstance  or  reasons  entirely  beyond  his control, such  delay will  not be  treated as  furnishing  a ground for  the grant  of relief  to the  detenu against his continued detention. [344 C-F]      The  instant  case  falls  under  the  latter  category inasmuch as  the court  is satisfied  on its  perusal of the original file  pertaining to  this case  maintained  in  the office  of   the  District   Magistrate  and  the  averments contained in  the counter  affidavit filed  on behalf of the respondents that  the petitioner’s  representation has  been dealt with all the promptness that was reasonably possible 341 under the circumstances then obtaining and that there was no avoidable delay  on the  part of  the District Magistrate in forwarding the petitioner’s  representation. [344 B; G]      Under sec.  10 of  the  Act  a  duty  is  cast  on  the appropriate Government to "place before’; the Advisory Board constituted under sec. 9 within three weeks from the date of detention the  grounds on  which the  order of detention has been made and the representation, if any, made by the person affected by  the order.  It is wholly wrong to interpret the words "place  before" as meaning anything more than ’forward to’ cr submit before’ the Advisory Board the relevant papers relating to  the detention of the detenu. It is entirely for the Advisory  Board to  regulate  its  schedule  of  holding meetings and  conducting its business in accordance with the procedure laid  down under  sec. 11  of the  Act  which  has specified a  time limit  of seven  weeks from  the  date  of detention for  the submission  of the  Board’s report to the appropriate Government. [345 G-H; 346 A-B]      In the  present case the Advisory Board had disposed of the petitioner’s  case well within the period of seven weeks specified in sub-sec. (1) of sec. 11, of the Act. [346 C]

JUDGMENT:      ORIGINAL JURISDICTION: Write Petition (Criminal) No. 37 of 1983.            (Under Article 32 of the Constitution)      Mrs.  M.  Qamaruddin  and  Rizwan  A.  Hafiez  for  the Petitioner.      O.P. Malhotra, and D. Bhandari for the Respondents.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. Taking  into  consideration  the fact that  this is  a petition  for a  writ of Habeas Corpus filed under Article 32 the Constitution of India challenging the legality  of the  preventive detention of the petitioner under the  provisions of  the National Security Act 1980 and the consequent urgency of the matter, as soon as the hearing of arguments  in the  case were  completed, we announced the conclusion reached by us by passing the following order:      "After hearing  counsel, appearing  on both  sides,  we      have come to the conclusion that the order of detention      impugned in  this Writ  Petition does  not call for any      interference.  The   Writ   Petition   is   accordingly      dismissed. Detailed reason will follow." We now  proceed to state the reasons that weighed with us in reaching the aforesaid conclusion. 342      By an  order dated  November 6,  1982,  passed  by  the District Magistrate,  Moradabad, in  exercise of  the powers conferred under  section 3,  sub-section 3  of the  National Security   Act,    1980-hereinafter   called   the   Act-the petitioner, Shri  Raisuddin @  Babu Tamchi was ordered to be

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arrested by  the Senior  Superintendent of  Police and to be detained in the District Jail, Moradabad, with a view to his being prevented  from indulging  in any  activity which  may affect the  maintenance of  public order. Pursuant there to, the petitioner  was arrested  on  8th  November,  1982,  and placed under  detention. On  the same  day (8.11.1982),  the petitioner was  served with  the order  of detention  and  a memorandum setting out the grounds of his detention. On 12th November, 1982,  the State Government approved the detention of the  petitioner and on the 18th of November, the case was referred by  the State  Government  to  the  Advisory  Board constituted under  section 9  of the  Act. Subsequently,  on 24th   November   1982,   the   petitioner   submitted   his representation against  the order  of  detention.  The  said representation  was  addressed  by  the  petitioner  to  the District  Magistrate,  Moradabad.  The  District  Magistrate forwarded the  representation on  the same day to the Senior Superintendent of Police, Moradabad, for his comments on the submissions  contained   in  the  letter.  On  the  27th  of November,  1982,   the  Senior   Superintendent  of   Police submitted  his   comments  to   the   District   Magistrate. Thereafter, on  3rd December,  1982, the District Magistrate sent  a   report  to  the  State  Government  enclosing  the representation as  well as  the comments  submitted  by  the Senior  Superintendent   of  Police.  The  aforesaid  papers despatched  from   Moradabad  were  received  by  the  State Government on the 6th December, 1982. On 9th December, 1982, the   State    Government   considered    the   petitioner’s representation and rejected the same. Simultaneously, on the same day,  the State Government forwarded the representation of the  petitioner to the Advisory Board. On 10.12.1982, the Advisory Board  met to  consider the case of the petitioner, gave a  personal hearing  to the  petitioner and drew up its report holding  that there  was  sufficient  cause  for  the detention of  the petitioner.  The report  of  the  Advisory Board was received by the State Government on 12th December, 1982, and  on 21st  December,  1982,  the  State  Government confirmed the  detention order  under section 12 of the Act. The petitioner  was informed about the order of confirmation on 24.22.1982.      Though a  faint attempt  was  made  before  us  by  the counsel for  the petitioner  to contend  that the grounds of detention. served  on the  petitioner did  not disclose  any material relevant under section 3 of 343 the Act,  there is  no  scope  at  all  for  urging  such  a contention in  the present  case. The imputation against the petitioner is  that he  was inciting  and fomenting communal hatred and  violence and  creating an atmosphere of fear and tension in  the town  of Moradabad  as a result of which the schools, colleges  and shops  were remaining  closed in  the town and  terror reigned  in the  whole town.  Two  criminal cases  had   been  registered   against  him  under  section 147/353/153A I.P.C./7  Criminal Law  Amendment Act. As there was  a  possibility  of  his  being  released  on  bail  and continuing to  indulge in such activities which were greatly prejudicial to  the maintenance  of  public  order,  it  was considered necessary by the detaining authority to place the petitioner under  detention. Having  regard to the situation then  prevailing   in  the   town  of  Moradabad  which  was unfortunately the  scene of  grave communal disturbances, it is impossible  to countenance  the  contention  advanced  on behalf of the petitioner that the grounds set out in support of the  order of  detention are irrelevant for sustaining an order of detention being made under section 3 of the Act.

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    The next  argument advanced on behalf of the petitioner was that  there had been inordinate delay on the part of the detaining   authority   in   forwarding   the   petitioner’s representation to  the State  Government. The petitioner had addressed his  representation not to the State Government as contemplated by  section 8  of the  Act, but to the District Magistrate, Moradabad.  It  was  received  by  the  District Magistrate on the 24th of November and promptly, on the same day,  the   District  Magistrate   forwarded  it  to  Senior Superintendent of  Police for  the  latter’s  comments.  The comments  of   the  Senior  Superintendent  of  Police  were received in  the office  of the  District Magistrate  on the 27th November  but it  was only on the 3rd December that the District  Magistrate  forwarded  his  report  to  the  State Government enclosing the petitioner’s representation and the comments of  the Senior  Superintendent of  Police.  It  was vehemently argued  by the  counsel for the petitioner’s that there had  been undue  and unexplained  delay on the part of the  detaining  authority  in  forwarding  the  petitioner’s representation to  the State Government inasmuch as a period of nearly  six days  had elapsed  between the receipt of the comments of  the Senior  Superintendent  of  Police  in  the office of  the District Magistrate and the submission of his report to the State Government. The original file pertaining to this  case maintained  in  the  office  of  the  District Magistrate was  produced before  us for our perusal by  Shri O. P.  Malhotra, the  learned Senior  Advocate appearing  on behalf of the respondents. It is seen therefrom that during 344 the period  from 28th  November to  the evening  of the  1st December, 1982,  the District  Magistrate had  to emergently leave his  headquarters because of the disturbances that had occurred in  other localities  within his Jurisdiction where his presence  was urgently needed for tackling the explosive situation. After  he returned  to the  headquarters  on  the evening of  1st December,  the District  Magistrate  without losing  any   further  time   forwarded   the   petitioner’s representation to  the State  Government on the 3rd December together with  his report and the comments received from the Senior Superintendent  of Police.  We are fully satisfied on our perusal  of the  file and the averments contained in the counter affidavit  filed on  behalf of  the respondents that the petitioner’s  representation has  been dealt with by the District  Magistrate   with  all  the  promptness  that  was reasonably possible  under the  circumstances then obtaining in Moradabad  city and  the surrounding  areas and  that the charge of  inordinate delay  levelled by  the petitioner  is baseless. In  this  context  we  consider  it  necessary  to emphasise  that  the  question  whether  the  representation submitted by  a detenu  has been  dealt with  all reasonable promptness and  deligence  is  to  be  decided  not  by  the application of  any rigid  or inflexible rule or set formula nor by  a mere  arithmetical counting  of dates,  but  by  a careful scrutiny  of the  facts and  circumstances  of  each case; if on such examination, it is found that there was any remissness, indifference,  or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the  Court will  undoubtedly treat  it as  a factor vitiating  the continued  detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not  by any  lack of  deligence or  promptness of attention on the part of the authority concerned, but due to unavoidable circumstances  or reasons  entirely  beyond  his control, such  delay will  not be  treated as  furnishing  a ground for  the grant  of relief  to the  detenu against his

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continued detention.  As already  indicated, the case before us falls  under the  latter  category  inasmuch  as  we  are satisfied that  there was  no avoidable delay on the part of the  District   Magistrate  in  forwarding  the  petitioners representation.      The last  point urged  on behalf  of the  petitioner is that there  has been  a violation  of the  provisions of the section 10  of the  Act because  the Advisory  Board had not considered the  case of  the petitioner  within three  weeks from  the   date  of  detention.  As  already  noticed,  the petitioner submitted  his  representation  to  the  District Magistrate against  the detention  only on  24.11.1982  even though he  had been  arrested and  placed under detention on 8th November. The 345 said representation  reached the  State  Government  on  6th December, 1982.  In the  meantime, the petitioner’s case had been referred  by the State Government to the Advisory Board on the  18th November  itself. The  representation  received from the petitioner was forwarded by the State Government to the State Advisory Board on 9th December, 1982. The Advisory Board held  its meeting  on 10th  December, 1982  and, after affording a  personal hearing  to the  petitioner, made  its report finding  sufficient cause  for the  detention of  the petitioner. The  argument  put  forward  on  behalf  of  the petitioner is  that section 10 mandatorily enjoins the State Government to  take steps to see that the case of the detenu is considered  by the Advisory Board within three weeks from the date  of detention.  We are  unable to  see any merit in this contention. Section 10 reads.      "Save as  otherwise expressly  provided in this Act, in      every case  where a detention order has been made under      this Act,  the  appropriate  Government  shall,  within      three weeks  from the  date of  detention of  a  person      under  the  order,  place  before  the  Advisory  Board      constituted by it under section 9, the grounds on which      the order has been made and the representation, if any,      made by  the person  affected by the order, and in case      where the  order has  been made by an officer mentioned      in sub-section  (3) of  section 3,  also the  report by      such officer under subsection (4) of that section."      Under the  section, a  duty is  cast on the appropriate Government to "place before" the Advisory" Board constituted under  section  9  within  three  weeks  from  the  date  of detention, the  grounds on  which the order of detention has been made and the representation, if any, made by the person affected by the order. The petitioner’s counsel wanted us to interpret the  words "place  before the  Advisory Board"  as meaning "get  considered by  the  Advisory  Board".  We  are wholly unable to accede to this argument. Under the terms of the section,  the duty cast on the appropriate Government is to forward to the Advisory Board constituted under section 9 within three  weeks from  the date  of detention, the papers pertaining to  the detention of the detenu consisting of the grounds  on   which   the   order   has   been   made,   the representation, if  any, made  by the person affected by the order, etc.  It is  to be remembered that the Advisory Board is not  an entity  subordinate to  the Government.  It is  a wholly independent  body consisting  of persons  who are  or have been or are qualified to be 346 appointed as  Judges of a High Court. It is entirely for the Advisory Board  to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down  under section 11 of the Act which has specified a

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time limit or seven weeks from the date of detention for the submission  of   the  Board’s   report  to  the  appropriate Government. It  is, therefore, wholly wrong to interpret the words "place  before" as  meaning anything more than forward to or  submit before  the Advisory Board the relevant papers relating to  the detention  of the  detenu. In  the  present case, the  Advisory Board  has disposed  of the petitioner’s case well within the period of seven weeks specified in sub- section (1) of Section 11 of the Act. This contention of the petitioner is also, therefore, devoid of substance.      The  conclusion   that  emerges   from  the   foregoing discussion is  that there  is no  ground whatever justifying any interference  with the order of detention passed against the petitioner  and the writ petition is, therefore, only to be dismissed. H.S.K.    Petition dismissed. 347