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PETITIONER: RAMA DHONDU BORADE

       Vs.

RESPONDENT: V.K. SARAF, COMMISSIONER OF POLICE & ORS.

DATE OF JUDGMENT05/05/1989

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) RAY, B.C. (J)

CITATION:  1989 AIR 1861            1989 SCR  (3) 191  1989 SCC  (3) 173        JT 1989 (2)   579  1989 SCALE  (1)1581  CITATOR INFO :  F          1990 SC 225  (17)  RF         1990 SC 231  (18)  R          1990 SC1361  (15)  D          1990 SC1446  (11)  F          1990 SC1455  (20)  RF         1991 SC 574  (12)  RF         1992 SC 139  (4)

ACT:     Article  22(5)--Detenu’s representation  against  deten- tion--Necessity for consideration and disposal of  represen- tation as expeditiously as possible.     National Security Act, 1980 & National Security  (Condi- tions  of  detention) (Maharashtra)  Order  1980--Section  3 Clause 4---Detention Order--Representation of Detenu--Neces- sity for disposal with the promptitude and diligence.

HEADNOTE:     With  a  view to preventing the  petitioner-detenu  from indulging in activities that were prejudicial to the mainte- n- ance of public Order in Greater Bombay, the Commissioner  of Police, Greater Bombay, in exercise of the powers  conferred on  him  by  Sub-Section (2) of Section 3  of  the  National Security Act, 1980 read with clause 4 of the National  Secu- rity  (Conditions  of detention)  (Maharashtra)  Order  1980 passed on Order of detention, pursuant whereof the Petition- er--detenu  was  detained in Central Prison, Nasik.  He  was furnished  with  copies of grounds of  detention  and  other material on the basis of which the detaining authority based his subjective satisfaction.     In  order to challenge the legality and validity of  the detention Order, the detenu filed a Writ Petition before the Bombay High Court which was dismissed. Against the Order  of the  High Court, the detenu--petitioner has  filed  criminal appeal  after obtaining special leave. He has also  filed  a separate Writ Petition in this Court challenging his  deten- tion. Both were heard together by this, Court.     Counsel  for  the appellant raised  several  contentions assailing the legality of the detention order, one of  which being that there was inordinate and unexplained delay caused

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by  the Union of India in considering and disposing  of  his representation  dated 26-9-88, as such his continued  deten- tion  was  unconstitutional and illegal being  violative  of Article 22(5) of the Constitution. Allowing the appeal as also the Writ Petition this Court 192     HELD: The detenu has an independent constitutional right to  make his representation under Article 22(5) of the  Con- stitution of India. Correspondingly there is a Constitution- al  mandate commanding the concerned authority to  whom  the detenu forwards his representation questioning the  correct- ness of the detention Order clamped upon him and  requesting for his release, to consider the said representation  within reasonable dispatch and to dispose the same as expeditiously as possible. [198H; 199A-B]     (Jayanarayan Sukul v. State of West Bengal, [1970] 1 SCC 219;  A bdul Karim & Ors. v. State of West Bengal, [1969]  1 SCC  433; Pankaj Kumar Chakravarty & Ors. v. State  of  West Bengal, [1969] 3 SCC 400.     This  constitutional requirement must be satisfied  with respect but if this constitutional imperative is observed in breach,  it would amount to negation of  the  constitutional obligation rendering the continued detention constitutional- ly  impermissible  and illegal; since such  a  breach  would defeat  the  very concept of liberty--the  highly  cherished right which is enshrined in Article 21 of the  Constitution. [199B-C]     The  use  of the word "as soon as may be"  occurring  in Article  22(5) of the Constitution reflects that the  repre- sentation should be expeditiously considered and disposed of with  due  promptitude  and diligence and with  a  sense  of urgency  and  without avoidable delay.  What  is  reasonable dispatch  depends upon the facts and circumstances  of  each case  and  no hard and fast rule can be laid  down  in  that regard. [199D] Rashik Sk. v. State of West Bengal, [1973] 3 SCC 476.     Smt.  Shalini  Soni  & Ors. v. Union of  India  &  Ors., [1980] 4 SCC 544,     In  the  instant case, the gap between the  receipt  and disposal of the representation is 28 days but upon the  date of service of the order of rejection on the detenu the delay amounts to 32 days. The only explanation offered by the  3rd respondent  is  that further information required  from  the State  Government  was received by the third  respondent  on 17-10-88 after a delay of nearly 14 days and then the repre- sentation  of the detenu was disposed of on 27-10-88  within which period there were certain holidays. There is an  inor- dinate  and unreasonable delay and the explanation given  by the  third  respondent is not satisfactory  and  acceptable. Detenu  directed  to be set at liberty  forthwith.  [199F-H; 200A, B] 193     B.  Sundar Rao & Ors. v. State of Orissa, [1972]  3  SCC 11; Jnanendra Nath Roy v. The State of West Bengal, [1972] 4 SCC  50; Frances Coralie Muffin v. W.C. Khambra and  Others, [1980] 2 SCC 275; Vijay Kumar v. State of Jammu and  Kashmir JUDGMENT: State  of  Uttar Pradesh and another, [1983] 4 SCC  537  and Mohinuddin alias Moin Master and Ors., v. D.M. Beed,  [1987] 4 SCC 58, referred to.

&     CRIMINAL   ORIGINAL  JURISDICTION: Writ Petition  (Crl.)

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No. 86 of 1989. Criminal Appeal No. 376 of 1989. (Under Article 32 of the Constitution of India).     R.B.  Thakre,  Avadhut  M. Chimalker,  Deepak  and  M.N. Nargolkar for the Petitioner/Appellant.     T.C. Sharma, Ms. A. Subhashini, A.M. Khanwilkar and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by     S.  RATNAVEL PANDIAN, J. Rule nisi in the writ  petition and leave granted in the special leave petition.     Both  this  writ petition and the  criminal  appeal  are preferred  by  one Rama Dhondu  Borade--the  detenu  herein- challenging the legality and validity of the Order of deten- tion passed by the Commissioner of Police, Greater Bombay in exercise  of  the  powers conferred by  sub-section  (2)  of Section 3 of the National Security Act 1980 (Central Act  56 of  1980)  (hereinafter  referred as the  ’Act’)  read  with clause 4 of the National Security (Conditions of  Detention) (Maharashtra)  Order,  1980 with a view  to  preventing  the detenu from indulging .in activities that are prejudicial to the maintenance of public order in Greater Bombay.     In  pursuance of the impugned order, the detenu  is  de- tained  in  the Central Prison, Nasik from 31.8.88.  He  has been  furnished with the copies of the grounds of  detention and  other  materials on the basis of  which  the  detaining authority  drew his subjective satisfaction. In the  grounds of  detention the detenu is stated to have been involved  in three incidents; they being:               (1) On 9.4.1988 at about 11.30 p.m. the detenu               and his associate               194               Sunil  attacked  one Laxman  Devsingh  Gurkha,               during  the course of which Sunil  slapped  on               his  face  while the detenu caused  an  injury               with a sword on the neck of Laxman. In respect               of this incident a case as CR No. 269 of  1988               for offences under Sections 324 and 114               Indian Penal Code has been registered by Dadar               Police;                 (2)  On 10.4.1988 the detenu along with  his               associates went to a pharmaceutical company at               Worli  and  demanded a sum of Rs.3000  at  the               point  of choppers from one Banwarilal  Bhagi-               rath and on subsequent dates from one  Babulal               Mistry.  Relating  to this  incident,  Babulal               lodged before Worli Police Station a complaint               which  was  registered as CR  No.  183/88  for               offences  under  Sections 384 and 114  of  the               Indian  Penal  Code.  On  14.4.88  the  police               attempted to arrest the detenu and his associ-               ates, but they all managed to escape. However,               the  police  arrested one  of  his  associates               Suresh P. Shelar who on search was found to be               in  possession of a chopper. Subsequently  the               detenu was arrested on 9.8.88. But later on he               was released on bail;                  (3) On 1.8.88 the detenu was arrested  near               the gate of Century Bazar and on search he was               found to be in possession of a Rampuri  knife.               In  this  connection,  a  case  vide  LAC  No.               2912,88 was registered in Dadar Police Station               under the Bombay Police Act, 195 1. On  2.8.88               the detenu was released on bail.     In  view of the above alleged violent activities of  the detenu creating a sense of insecurity in Greater Bombay, the detaining  authority  on being satisfied  on  the  materials

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placed  before  him that the activities of the  detenu  were prejudicial  to the maintenance of public order  in  Greater Bombay, passed the impugned detention order. Challenging the correctness  of this detention order, the detenu filed  Writ Petition  No. 1044 of 1988 before the High Court  of  Bombay which  for the reasons mentioned in the  judgment  dismissed the  same.  This criminal appeal is preferred  against  that judgment.  In addition to that, he has filed  Writ  Petition No. 86 of 1989 before this Court.     The  learned counsel appearing on behalf of  the  appel- lant/petitioner  raised  several contentions  assailing  the legality  of the order one of which being that there  is  an inordinate  and  unexplained delay caused by the  third  re- spondent (Union of India) in considering and 195 disposing of the representation of the detenu dated  26.9.88 and  as  such the continued detention of  the  appellant  is unconstitutional and illegal being violative of the mandato- ry provisions of Article 22(5) of the Constitution of India.     As  we  are inclined to dispose of this appeal  and  the writ  petition  on this ground alone we do  not  propose  to traverse on other grounds canvassed before us.     With  regard to the right of making  the  representation the detenu has been informed in the grounds of detention  as follows:               "You  are  further informed that  you  have  a               right to make a representation to the  Central               Government,  the  State  Government  and   the               undersigned against the order of detention and               that you shall be afforded the earliest oppor-               tunity to make such a representation."     It is not in dispute that the detenu made his  represen- tation  both to the State Government as well as the  Central Government  on  26.9.88. But the 3rd  respondent  which  has already completed the examination of the report dated 6.9.88 sent  by  the 2nd respondent (the  State  Government)  under Section 3(5) of the Act even on 13.9.88. however, felt  that certain informations were required from the State Government for  its  further consideration of the  representation  and, therefore,  the  3rd respondent sent a wireless  message  on 3.10. 1988 to the State Government asking for further infor- mations.     The  required  information  was received  by  the  third respondent  only on 17.10.88. Thereafter the  representation was considered and the final decision to reject it was taken on  27.10.88  and  the decision of  the  Central  Government rejecting the representation was communicated to the  appel- lant through crash wireless message on 31.10.88.     In  attempting  to explain the delay  from  17.10.88  to 27.10.88  it  is stated in the  counter-affidavit  filed  on behalf  of  the third respondent that 18th, 20th,  22nd  and 23rd October 1988 were the closed holidays; but no  explana- tion is given as to why the representation was not  attended to  and disposed of on 17th, 19th, 21st, 24th to 26th  Octo- ber.  In explaining the delay in communicating the  decision taken  on 27.10.88 it is stated that 29th and  30th  October were  holidays  but the affidavit is silent as to  why  that decision  had not been communicated to the detenu either  on 27th or 28th October, 1988. 196     With  regard  to  the delay of 14 days  in  passing  the information required by the 3rd respondent, the 2nd respond- ent  (the State Government) in its affidavit states that  it received the parawise comments of the detaining authority on the representation of the detenu on 12.10.88 and  thereafter

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it  forwarded  the same to the 3rd respondent. The  1st  re- spondent  (the  detaining authority) has  filed  a  separate affidavit stating that since the officer of the Dadar police station  was attending the meeting of the Advisory Board  on the  7th and 11th October, 1988, a delay of 7 days  had  oc- curred  in forwarding his parawise comments to the  2nd  re- spondent.  These explanations given by both the Ist and  the 2nd respondents are not at all satisfactory and we are  left with an impression that the 1st and the 2nd respondents  had not  diligently collected the informations required  by  the 3rd respondent and thereby caused a considerable delay which had  further delayed the consideration and disposal  of  the representation of the detenu by the 3rd respondent.     We shall now examine the proposition of law relating  to the delayed consideration and disposal of the representation of a detenu with reference to the judicial pronouncements.     There is a line of decisions of this Court dealing  with this  aspect  of law of which we shall make reference  to  a few.     In  Dayanarayan Sukul v. State of West Bengal, [1970]  1 SCC 219 the following observation has been made:               "It is established beyond any measure of doubt               that  the  appropriate authority is  bound  to               consider  the representation of the detenu  as               early as possible. The appropriate  Government               itself is bound to consider the representation               as  expeditiously as possible. The reason  for               immediate consideration of the  representation               is  too obvious to be stressed.  The  personal               liberty  of  a person is at stake.  Any  delay               would not only be an irresponsible act on  the               part  of  the appropriate authority  but  also               unconstitutional   because  the   Constitution               enshrines the fundamental right of a detenu to               have  his representation considered and it  is               imperative  that when the liberty of a  person               is  in peril immediate action should be  taken               by the relevant authorities."     This Court in Niranjan Singh v. State of Madhya Pradesh, [1973] 1 SCR 691 expressed the view that it is incumbent  on the State to 197 explain  the inordinate delay in considering  and  rejecting the representation of the detenu and satisfy the Court  that there was justification in that delay.     While  dealing  with the constitutional  requirement  of expeditious consideration of the detenu’s representation  by the  Government as spelt out from Clause 5 of Article 22  of the  Constitution this Court, after referring to  the  deci- sions  in  Abdul Karim and Others v. State of  West  Bengal, [1969] 1 SCC 433 and Pankaj Kumar Chakraborty and Others  v. State of West Bengal, [1969] 3 SCC 400 has stated in  Rashik Sk. v. State of West Bengal, [1973] 3 SCC 476, as follows:               "It  is  undoubtedly  true  that  neither  the               Constitution  nor the Act  expressly  provides               for consideration of a detenu’s representation               by  the State Government within any  specified               period of time. The constitutional requirement               of expeditious consideration of the  petition-               er’s  representation by the  State  Government               has,  however,  been spelt out by  this  Court               from clause (5) of Article 22 of the Constitu-               tion."                    XXXXXXX                           XXXXXXX               XXXXXXX

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             "The  use  of the words "as soon  as  may  be"               (occurred  in Article 22(5) of  the  Constitu-               tion) is important. It reflects the anxiety on               the part of the framers of the Constitution to               enable the detenu to know the grounds on which               the  order of his detention has been  made  so               that  he can make an effective  representation               against  it  at  the  earliest.  The  ultimate               objective  of this provision can only  be  the               most  speedy consideration of his  representa-               tion by the authorities concerned, for,  with-               out its expeditious consideration with a sense               of  urgency  the basic  purpose  of  affording               earliest opportunity of making the representa-               tion  is likely to be defeated. This right  to               represent  and  to  have  the   representation               considered  at  the earliest  flows  from  the               constitutional  guarantee  of  the  right   to               personal  liberty-the  right which  is  highly               cherished  in our Republic and its  protection               against arbitrary and unlawful invasion.’                    XXXXXXXXXX                     XXXXXXXXXX               XXXXXXXXXX               "Now, whether or not the State Government  has               in a given               198               case considered the representation made by the               detenu  as soon as possible, in  other  words,               with  reasonable  dispatch,  must  necessarily               depend on the facts and circumstances of  that               case, it being neither possible nor  advisable               to lay down any rigid period of time uniformly               applicable to all cases. The Court has in each               case  to consider judicially on the  available               material if the gap between the receipt of the               representation  and its consideration  by  the               State  Government is so unreasonably long  and               the  explanation for the delay offered by  the               State  Government  so  unsatisfactory  as   to               render   the   detention   order    thereafter               illegal."     Chinnappa  Reddy,  J.  speaking for the  bench  in  Smt. Shalini  Soni and Others v. Union of India & Ors., [1980]  4 SCC 544 has emphasised the constitutional obligation on  the part of the authorities concerned in dealing with the repre- sentation of a detenu as follows:               "Quite  obviously, the obligation  imposed  on               the  detaining authority, by Article 22(5)  of               the Constitution, to afford to the detenu  the               earliest  opportunity of making a  representa-               tion, carries with it the imperative  implica-               tion that the representation shall be  consid-               ered  at the earliest opportunity.  Since  all               the  constitutional protection that  a  detenu               can  claim is the little that is  afforded  by               the procedural safeguards prescribed by  Arti-               cle  22(5)  read with Article 19,  the  Courts               have a duty to rigidly insist that  preventive               detention  procedures  be  fair  and  strictly               observed.  A breach of the procedural  impera-               tive must lead to the release of the detenu."     See  also B. Sundar Rao and Others v. State  of  Orissa, [1972]  3  SCC 11; Jnanendra Nath Roy v. The State  of  West Bengal,  [1972]  4 SCC 50; Frances Coralie  Mullin  v.  W.C. Khambra  and Others, [1980] 2 SCC 275; Vijay Kumar v.  State

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of  Jammu  and Kashmir & Ors., [1982] 2  SCC  43;  Raisuddin alias  Babu  Tamchi v. State of Uttar Pradesh  and  another, [1983]  4 SCC 537 and Mohinuddin alias Moin Master and  Ors. v. D.M. Beed, [1987] 4 SCC 58.     The  propositions  deducible from the  various  reported decisions of this Court can be stated thus:     The  detenu has an independent constitutional  right  to make his representation under Article 22(5) of the Constitu- tion of India. 199 Correspondingly, there is a constitutional mandate  command- ing the concerned authority to whom the detenu forwards  his representation questioning the correctness of the  detention order  clamped upon him and requesting for his  release,  to consider the said representation within reasonable  dispatch and  to dispose the same as expeditiously as possible.  This constitutional  requirement must be satisfied  with  respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermis- sible and illegal, since such a breach would defeat the very concept  of  liberty--the highly cherished  right--which  is enshrined in Article 21 of the Constitution.     True,  there  is no prescribed period either  under  the provisions of the Constitution or under the concerned deten- tion  law  within which the representation should  be  dealt with.  The use of the word "as soon as may be" occurring  in Article  22(5) of the Constitution reflects that the  repre- sentation should be expeditiously considered and disposed of with  due  promptitude  and diligence and with  a  sense  of urgency  and  without avoidable delay.  What  is  reasonable dispatch  depends  on the facts and circumstances  or’  each case  and  no hard and fast rule can be laid  down  in  that regard. However, in case the gap between the receipt of  the representation and its consideration by the authority is  so unreasonably long and the explanation offered by the author- ity is so unsatisfactory, such delay could vitiate the order of detention.     Coming  to the facts of this case, we shall now  examine whether  the  delay that had occurred in  consideration  and disposal  of the representation of the detenu is so  inordi- nate  and unreasonable vitiating the order of  detention  or whether that delay is satisfactorily explained by the  third respondent.     In the instant case, the gap between the receipt and the disposal of the representation is 28 days but upto the  date of service of the order of rejection on the detenu the delay amounts  to  32 days. The only explanation  offered  by  the third  respondent is that further information required  from the State Government was received by the third respondent on 17.10.88 after a delay of nearly 14 days and then the repre- sentation  of the detenu was disposed of on 27.10.88  within which  period  there were certain  holidays.  Barring  that, there  is no other explanation. This delay when  scrutinised in the light of the proposition of law adumberated above, we are of the view, that there is an inordi- 200 nate  and  unreasonable delay and  the  present  explanation given  by the third respondent is not satisfactory  and  ac- ceptable.     Hence,  for the aforementioned reasons we set aside  the impugned  order of detention on the ground that there  is  a breach  of  constitutional  obligation  as  enshrined  under Article 22(5) of the Constitution of India.     In  the result the appeal as well as the  Writ  Petition

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are  allowed.  The detenu is directed to be set  at  liberty forthwith. Y.L.                                Petitions Allowed. ?201