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PETITIONER: GAZI KHAN @ CHOTIA

       Vs.

RESPONDENT: STATE OF RAJASTHAN AND ANR.

DATE OF JUDGMENT02/05/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1361            1990 SCR  (2) 831  1990 SCC  (3) 459        JT 1990 (3)    28  1990 SCALE  (1)869  CITATOR INFO :  RF         1992 SC2161  (5,8)

ACT:     Preventive  Detention: Prevention of Illicit Traffic  to Narcotic Drugs and Psychotropic Substances Act, 1989:     Section  3(1)--Detention  order--Delay  in  disposal  of representation of detenu--Validity of--Whether violation  of fundamental rights-Practice of allowing a police officer not having  dealt with the case at any point and having no  per- sonal  knowledge, to swear counter/reply  affidavits--Depre- cated.     Constitution  of India, 1950:  Article  22(5)--Detention order-Delay in disposal of detenu’s  representation--Whether violative.

HEADNOTE:     The appellant challenged before the High Court the order of  detention passed against him under Section 3(1)  of  the Prevention of Illicit Traffic in Narcotic Drugs and  Psycho- tropic  Substances Act, 1989, on various  grounds  including delay  in disposal of his representation. An  affidavit  was filed by a Deputy Superintendent of Police, on behalf of the respondents  stating  that  the  representation  was  placed before  the Assistant Secretary on 19.6.1989, a  report  was called for from the District Magistrate, the comments, which were  received  by the State Government  on  1.7.1989,  were placed  before the Assistant Secretary on 3.7.1989  who,  in turn,  submitted to the higher authorities with his note  on 9.7.1989  and the representation was rejected on  11.7.1989. The  High  Court dismissed the Writ  Petition  holding  that there was no undue lethargy or indifference.     In the appeal, by special leave, on behalf of the  dete- nu,  it was contended that the detenu’s  representation  was not decided within a reasonable time and hence the  extraor- dinary delay of 27 days was fatal to the detention.     A  reply was filed by the same Deputy Superintendent  of Police,  as  Officer  Incharge of the case,  who  filed  the affidavit  before the High Court, stating that there was  no delay in the consideration of the representation. 832     Subsequently,  on the direction of the Court,  an  addi-

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tional  affidavit  sworn by the Commissioner  and  Secretary (Home Department) stating that there was no inordinate delay in considering the representation and it was rejected  after careful consideration, was filed. Allowing the appeal, this Court,     HELD: 1. There is no explanation for the delay from  3rd to 9th July, 1989 i.e. for 7 days, for the Assistant  Secre- tary to merely put up a note on the basis of comments of the District  Magistrate. The additional affidavit sworn  to  by the Commissioner and Secretary does not whisper any explana- tion  as to why such a delay of 7 days had occurred  at  the hands of the Assistant Secretary. The order of detention is, therefore,  a  breach of constitutional  obligation  as  en- shrined  under Article 22(5) of the Constitution  of  India. [841F-G; 842F]     Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police JUDGMENT: Smt.  Shalini  Soni  v. Union of India, [1980]  4  SCC  544, referred to.     2.1 A counter affidavit should normally be filed by  the detaining  authority  himself, but this is not  a  rigid  or inflexible  rule and, in the absence of any  allegations  of mala fide or abuse of powers of personal bias attributed  to the  detaining authority, it may be sworn by  a  responsible officer  who personally dealt with or processed the case  or by an officer duly authorised under the Rules of Business of the Government concerned. However, the practice of  allowing a  police officer who has not dealt with the case any  point of time at any level and who in the very nature of the  case could not have any personal knowledge of the proceedings, to swear  the  counter and reply affidavits on  behalf  of  the appropriate  authorities  should be  highly  deprecated  and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection. [836H; 837A-B; 836F-G]     The State of Bombay v. Purushottam Jog Naik, [1952]  SCR 674;  Ran]it Dam v. State of West Bengal, [1972] 2 SCC  516; Shaik  Hanifv. State of West Bengal, [1974] 1 SCC 637;  J.N. Roy v. State of West Bengal, [1973] SCC (Cri) 123; Bhut Nath Mete v. State of West Bengal, [1974] 1 SCC 645 at page  658; Asgar  Ali v. District Magistrate Burdwan & Ors.,  [1974]  4 SCC 527: Suru Mallick v. State of West Bengal, [1975] 833 4 SCC 470; Gulab Mehra v. State of U.P. & Ors., [19881 ] SCR 126; State of Gujarat v. Sunil Fulchand Shah & Anr.,  [1988] 1  SCC 600 and Madan Lal Anand v. Union of India,  [1990]  1 SCC 81, referred to.     In  the instant case, the reply affidavit and the  addi- tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has  no connection  whatsoever  with  the passing of  the  order  or dealing with or processing the file at any point of time. In fact, he could not have got any personal knowledge with  the passing of the order of its subsequent proceeding since  the order has been passed by the State Government and the subse- quent  proceedings have been dealt with by the officials  of the  Secretariat.  It is, therefore, terribly  shocking  and surprising  that  a  police officer who  has  no  connection whatsoever with this detention order and who had not at  any relevant  time personally dealt with the case has come  for- ward  to swear about the entire proceedings from the  begin- ning right up to the rejection of the representation includ- ing  the  holding of the meeting of the  Advisory  Board  on behalf of the appropriate authority. The affidavit filed  by the Deputy Superintendent of Police is, therefore, not worth consideration. [841D-F; 836F-G]

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&     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  30 1 of 1990.     From  the  Judgment  and Order dated  15.1.1990  of  the Rajasthan High Court in H.C.P. No. 2866 of 1989.     Pallave Shishodia, Sandeep Mehta and D. Bhandari for the Appellant.     Chandmal  Lodha,  S.C.  Gupta (N.P.),  M.N.  Shroff,  I. Makwana and Manoj Prasad for the Respondents. The Judgment of the Court was delivered by     S. RATNAVEL PANDIAN, J. This appeal by grant of  special leave  is  directed against the Order of the High  Court  of Rajasthan at Jodhpur in Habeas Corpus Petition No. 2866/1989 dismissing the Writ Petition filed by the detenu Gazi Khan @ Chotia.     The order of detention dated 30.5. 1989 under  challenge has been passed by the Administrative Secretary and  Commis- sioner,  Home Department, State of Rajasthan in exercise  of powers under Section 834 3(1) of the Prevention of Illicit Traffic in Narcotic  Drugs and  Psychotropic Substance Act, 1989 (for short ’the  Act’) on reaching his subjective satisfaction that the detenu  has been  involved  in illegal business of smuggled  charas  and heroin and other psychotropic substances.     The  relevant facts as set out in the grounds of  deten- tion  giving  rise to this appeal may  be  recapitulated  as follows:     The  detenu Gazi Khan @ Chotia was actively involved  in illegal  and objectionable activities by organising a  group of  smugglers and financing them in the activities of  smug- gling without directly involving himself in such activities. However, the police of Jaisalmer has opened a history  sheet showing  the  indirect  involvement of the  detenu  in  such smuggling  activities. The modus operandi of the  detenu  is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were  apprehended in  the  course of smuggling. On 3.11. 1986 the  detenu  has himself given a statement before the Customs Officer  admit- ting his involvement in smuggling of readymade garments  and bides. He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act. But  since no  evidence  was available incriminating  the  detenu  with those offences no action could be taken. Further the  detenu is  said to have been involved along with his associates  in certain  criminal cases registered under the  provisions  of the Indian Penal Code. The detaining authority on the  above materials placed before him has passed this impugned  order. The High Court before which he challenged the impugned order of  detention  on  various grounds has  dismissed  the  Writ Petition  holding  that all the contentions  did  not  merit consideration. Hence this appeal.     The  learned counsel appearing on behalf of  the  appel- lant,  raised several contentions, the main thrust of  which being  that  the representation made by the detenu  was  not decided  within.  a reasonable time and hence the  delay  is fatal  to  the  detention. This point has  been  taken  even before  the  High Court. But the High  Court  accepting  the explanation  given by the Deputy Superintendent  of  Police, Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing:

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"In  the  present case as from the facts  mentioned  in  the additional  affidavit  and referred to above, it  cannot  be said that there was undue lethargy or indifference." 835 Under  Ground No. (d) of paragraph 16 of the  Special  Leave Petition, a contention is raised with regard to the delay of disposal of the representation stating that-- "the  extraordinary  delay of 27 days  in  consideration  of representation  of the petitioner is sought to be  explained by  mere ipso dixit of the detaining authorities who  merely rest  content  with the skeletal chronology  of  days  taken allegedly by several authorities with copies of  unexplained silence  about why actually several days as alleged  by  au- thorities were taken to process and consider the representa- tion of petitioner."     Before this Court a reply is filed by the Deputy  Super- intendent of Police, Jaisalmer stating that he is "appointed as Officer Incharge in this case" and that he is replying to the  allegations  made in the Special  Leave  Petition  with reference  to the record connected with this case. In  para- graph  15(d) of his reply, it is averred that "there  is  no delay  in the consideration of representation of  the  peti- tioner."  The  same Deputy Superintendent of  Police  in  an additional affidavit filed before the High Court has  sought to explain the delay stating that the representation of  the detenu  was placed before the Assistant Secretary  on  19.6. 1989 with a proposal that a report might be called from  the District  Magistrate,  Jaisalmer,  who  was  the  sponsoring authority,  that  the District Magistrate who  received  the communication  on  22.6.1989 forwarded his comments  to  the State  Government on 29.6.1989, that the comments  were  re- ceived by the State Government on 1.7. 1989 and were  placed for perusal of the Assistant Secretary on 3.7.1989 and  that the Assistant Secretary after putting up a note  incorporat- ing the comments of the District Magistrate on the represen- tation  placed the same for perusal to the Deputy  Secretary on  9.7.1989  and thereafter on the  recommendation  of  the Special Secretary (Home) the representation was rejected  on 11.7.1989.     A  perusal of the above additional affidavit shows  that the Deputy Superintendent of Police speaks on behalf of  the detaining  authority, namely, the State Government  as  well the  authorities who dealt with the representation,  namely, the  Assistant  Secretary and the  Special  Secretary  (Home Department). Finally, in regard to the delay in the disposal of the representation he states in para 7 of the said  affi- davit thus:       "  .....   The  delay has occasioned not  by  lack  of deligence 836 or promptness on the part of the party concerned but due  to unavoidable  circumstances  and  for  the  reasons  entirely beyond the control of the Detaining Authority." In this connection, we would like to point out that the main reply and the additional affidavit before the High Court  as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2.     After the judgment was reserved, we after going  through the  papers directed the matter to be reported  for  further hearing.  Accordingly the matter was listed on 17.4.1990  on which date we asked the learned counsel for the  respondents to  explain as to under what authority the  Deputy  Superin- tendent of Police has arrogated himself to the knowledge  of the  entire file relating to the impugned order  and  speaks

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for the detaining authority and other authorities who subse- quently  dealt  with the file. The learned counsel  took  an adjournment and has now filed an additional affidavit  sworn by  the Commissioner and Secretary (Home  Department)  dated 21.4.1990.  In the present additional affidavit no  explana- tion  is  given to our query. The explanation given  by  the Secretary  in  his affidavit for the  complaint  of  delayed disposal of the representation is as follows: "That  there  was  no inordinate delay  in  considering  the representation  of the petitioner and the same was  rejected after careful consideration."     We  are  terribly shocked and surprised to note  that  a police  officer who seems to have no  connection  whatsoever with  this detention order and who had not at  any  relevant time  personally  dealt with the case has  come  forward  to swear about the entire proceedings from the beginning  right up  to  the rejection of the  representation  including  the holding  of the meeting of the Advisory Board on  behalf  of the  appropriate  authority.  This practice  of  allowing  a police officer who has not dealt with the case at any  point of time at any level and who in the very nature of the  case could not have any personal knowledge of the proceedings, to swear  the  counter and reply affidavits on  behalf  of  the appropriate  authorities  should be  highly  deprecated  and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.     This Court on several occasions has expressed its  views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by  the  detaining  authority himself though  it  cannot  be suggested  as a rigid or inflexible rule applicable  in  all cases  of detention under all circumstances.  However,  when allegation of mala fide or abuse of powers or personal  bias is attributed to the detaining authority, the said authority should  himself swear to the counter affidavit. In  the  ab- sence  of  any  such allegation in the  petition  a  counter affidavit may be sworn by a responsible officer who  person- ally dealt with or processed the case or by an officer  duly authorised  under  the Rules of Business of  the  Government concerned.     A  Constitution  Bench  of this Court in  the  State  of Bombay  v. Purushottam Jog Naik, [1952] SCR 674. in which  a similar  question  arose,  the learned  Judges  answered  as follows: "   .....  if the Home Secretary has the requisite means  of knowledge, for example, if the Minister had told him that he was  satisfied or he had indicated satisfaction by his  con- duct and act and the Home Secretary’s affidavit was regarded as  sufficient in the particular case, then that would  con- stitute legally sufficient proof. But whether that would  be enough  in  any given case, or whether  the  "best  evidence rule"  should  be applied in strictness in  that  particular case, must necessarily depend upon its facts. In the present case, there was the element that 57 cases were dealt with in the  course of 6 days and orders passed in all on  one  day. But we do not intend to enter into the merits. All we desire to  say  is  that if the learned Judges of  the  High  Court intended to lay down as a proposition of law that an affida- vit from the Minister in charge of the department is  indis- pensable in all such cases, then they went too far."     In Ranjit Dam v. State of West Bengal, [1972] 2 SCC 5 16 the counter affidavit was filed by the Assistant  Secretary, Home (Special) Department, who was authorised to file it  as the  detaining  authority had since then been  appointed  as

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Secretary of the State Electricity Board. This Court in that circumstance stated thus: "The reason given in this counter-affidavit for the District Magistrate not making the affidavit himself does not  appear to  be  satisfactory. But as nothing terms on that  fact  we need say no more about it for the present."     Sarkaria,  J.  in Shaik Hanif v. State of  West  Bengal, [1974] 1 SCC 637 observed thus: 838 "Since  the Court is precluded from testing  the  subjective satisfaction of the detaining authority by objective  stand- ards,  it is all the more desirable that in response to  the rule  nisi  the  counter-affidavit on behalf  of  the  State should be sworn to by the District Magistrate or the author- ity  on  whose subjective satisfaction the  detention  order under Section 3_ .was passed. If for-sufficient reason shown to  the  satisfaction  of the Court, the  affidavit  of  the person  who  passed the order of detention under  Section  3 cannot  be furnished, the counter-affidavit should be  sworn by  some  responsible officer who personally dealt  with  or processed the case in the Government Secretariat or  submit- ted  it  to the Minister or other  officer  duly  authorised under  the  rules of business framed by the  Governor  under Article 166 of the Constitution to pass orders on behalf  of the Government in such matters." The  learned  Judge  after referring to  Ranjit  Dam’s  case (albeit) and to I.N. Roy v. State of West Bengal, [1973] SCC (Cri) 123 stated as under: "Nevertheless, the failure to furnish the  counter-affidavit of  the Magistrate who passed the order of detention, is  an impropriety.  In  most cases, it may not be of  much  conse- quence but in a few cases, for instance, where mala fides or extraneous  considerations are attributed to the  Magistrate or  the  detaining authority, it may, taken  in  conjunction with  other  circumstances, assume the shape  of  a  serious infirmity, leading the Court to declare the detention  ille- gal." 71  having  regard  to the facts of that  case  wherein  the Deputy Secretary Home) filed the counter instead of District Magistrate  it  was held that he mere omission to  file  the affidavit by District Magistrate did not vitiate the  deten- tion order.     Speaking  for the Bench, Krishna Iyer, J. in  Bhut  Nath Mete  v. State of West Bengal, 11974] 1 SCC 645 at page  658 (para 21) has expressed his considered view on this point as hereunder: "True, we should have expected an affidavit from the detain- ing  authority but even that is felt too inconvenient and  a Deputy  Secretary who merely peruses the records and  swears an affidavit in every case is the poor proxy. Why 839 is  an affidavit then needed at all? The fact of  subjective satisfaction,  solemnly  reached, considering  relevant  and excluding  irrelevant facts, sufficient in degree of  danger and certainty to warrant pre-emptive casting into prison, is best made out by the detaining District Magistrate, not  one who  professionally reads records and makes out a precis  in the  form of an affidavit. The purpose is missed,  going  by the seriousness of the matter, the proof is deficient, going by  ordinary rules of evidence, and the Court is denied  the benefit of the word of one who takes responsibility for  the action, if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of  adminis- tration,  an officer may be held up far away,  engrossed  in other  important  work, thus being unavailable to  swear  an

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affidavit.  The next best would then be the oath of  one  in the  Secretariat who officially is cognisant of or has  par- ticipated  in the process of approval by Government-not  one who,  long later, reads old files and gives its gist to  the Court.  Mechanical  means are easy but  not  legitimate.  We emphasize this infirmity because routine summaries of files, marked  as affidavits, appear in the returns to rules  nisi, showing  scant  courtesy to the  constitutional  gravity  of deprivation  of civil liberty. In some cases, where a  valid reason  for  the District Magistrate’s  inability  to  swear affidavits  directly  has  been furnished,  this  Court  has accepted  the concerned Deputy Secretary’s  affidavit.  This should, however, be the exception, not the rule."     Khanna, J. in Asgar Ali v. District Magistrate,  Burdwan &  Ors., [1974] 4 SCC 527 while answering a contention  that an  affidavit by the detaining authority was  essential  for sustaining  the validity of the detention order observed  as follows: "Although  normally  the affidavit of  the  person  actually making the detention order should be filed in a petition for a  writ of habeas corpus, the absence of such  an  affidavit would not necessarily be fatal for the case of the  respond- ents. It would indeed depend upon the nature of  allegations made  by the detenu in the petition for determining  whether the absence of affidavit of the person making the  detention order introduces a fatal infirmity. In case an allegation is made that the officer making the detention order was actuat- ed by some personal bias against the detenu in 840 making  the  detention order, the affidavit  of  the  person making the detention order would be essential for  repelling that  allegation. Likewise, such an affidavit would have  to be  filed in case serious allegations are made in the  peti- tion showing that the order was mala fide or based upon some extraneous considerations. In the absence of any such  alle- gation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magis- trate  but  that  of the Deputy  Secretary,  Home  (Special) Department  of  the Government of West Bengal would  not  by itself justify the quashing of the detention order." In  Suru Mallick v. State of West Bengal, [1975] 4 SCC  470, this  Court accepted the affidavit of the  Deputy  Secretary (Home) who dealt with the matter as the District  Magistrate was not available and preoccupied with some urgent business. In Gulab Mehra v. State of U.P. & Ors., [ 1988] 1 SCR 126, a Station  House Officer of Kydganj Police Station  filed  the counter  stating  that District Magistrate  had  passed  the detention  order when the appellant was already in  jail  on the apprehension that the appellant therein was likely to be released  on bail in the near future. Ray, J.  speaking  for the  Bench while setting aside the order of  detention  held thus: "This clearly goes to show that the Sub-inspector has  arro- gated  to himself the knowledge about the subjective  satis- faction  of  the District Magistrate on whom  the  power  is conferred by the Act. The District Magistrate, the detaining authority in this case has not chosen to file his affidavit. The affidavit-in-opposition filed by the Station Officer  of Police  implies that he has access to the file of  the  Dis- trict  Magistrate or he influenced the decision of the  Dis- trict Magistrate for making the detention order." Again  in  State of Gujarat v. Sunil Fulchand Shah  &  Anr., [1988]  1  SCC  600, accepting a further  affidavit  of  the Deputy  Secretary  (Home  Department), this  Court  did  not attach  much importance to the fact that the  affidavit  was

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not  filed by the detaining authority  personally.  However, the Court said: "It is true that in a case where a point as mentioned  above arises  the detaining authority should personally affirm  on oath  the stand taken on his behalf, but it cannot  be  sug- gested  as  an inflexible rule applicable to  all  detention cases irrespective of the circumstances." 841 Recently in Madan Lal Anand v. Union of India, [1990] 1  SCC 81 Dutt, J. speaking for the Bench pointed out: "There  can be no doubt that a deponent who has no  personal knowledge  about  any fact may, on the basis of  some  other facts,  make his submissions to the court. We do  not  think that any importance should be attached to the said statement made by the deponent in the counter affidavit." Thereafter  the learned Judge has expressed his  views  that when  there  is  an allegation of mala  fide  or  bias  made against the detaining authority, then the detaining authori- ty should himself swear to the counter affidavit. Ultimately having regard to the allegation made therein and to the fact that  the  Under Secretary to the Government has  filed  the counter, the learned Judge pointed out: "Merely  because  the detaining authority has not  sworn  an affidavit, it will not in all circumstances be fatal to  the sustenance of the order of detention."     As we have pointed out supra the reply affidavit and the additional  affidavit before the High Court as well as  this Court  are filed by the Deputy Superintendent of Police  who does  not  seem to have any connection whatsoever  with  the passing of the order or dealing with or processing the  file at any point of time. In fact, the Deputy Superintendent  of Police  could not have got any personal knowledge  with  the passing of the order or its subsequent proceeding since  the impugned  order has been passed by the State Government  and the  subsequent  proceedings  have been dealt  with  by  the officials of the Secretariat. Reverting to the facts of  the case  there is no explanation for the delay from 3rd to  9th July  1989,  i.e.  for 7 days for  the  Assistant  Secretary merely to put up a note on the basis of the comments of  the District Magistrate. The present additional affidavit  sworn to by the Commissioner and Secretary on 21.4.1990 also  does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.     The  learned  counsel  appearing for  the  appellant  in support  of  his contention that the unexplained  delay  has vitiated the order has placed reliance on a decision of this Court  in Rama Dhondu Borade v. V.K. Saraf, Commissioner  of Police & Ors., [1989] 3 SCC 173 to which decision one of  us (Ratnavel Pandian, J.) was a party. In that decision 842 after referring to various decisions of this Court including Smt.  Shalini Soni v. Union of India. [ 1980] 4 SCC 544  the following proposition was laid down: "The detenu has an independent constitutional right to  make his  representation under Article 22(5) of the  Constitution of India. Correspondingly, there is a constitutional mandate commanding  the concerned authority to whom the detenu  for- wards this representation questioning the correctness of the detention  order  clamped upon him and  requesting  for  his release, to consider the said representation within reasona- ble  dispatch  and to dispose the same as  expeditiously  as possible. This constitutional requirement must be  satisfied with  respect but if this constitutional imperative  is  ob- served in breach, it would amount to negation of the consti- tutional  obligation rendering breach would defeat the  very

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concept  of  liberty--the highly cherished  right--which  is enshrined in Article 21 of the Constitution." However,  in the same decision it has been pointed out  that "what  is reasonable dispatch depends on the facts and  cir- cumstances  of  each case and no hard and fast rule  can  be laid  in  that regard." We have already expressed  that  the affidavit  filed by the Deputy Superintendent of  Police  is not worth consideration and there is absolutely no  explana- tion  for  the delay caused at the hands  of  the  Assistant Secretary.     Therefore,  for the reasons stated above, 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 is allowed and the detenu is directed to be  set at liberty forthwith. P.V.                                            Appeal   al- lowed. 843