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PETITIONER: HARISH PAHWA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT18/03/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1126            1981 SCR  (3) 276  1981 SCC  (2) 710        1981 SCALE  (1)704  CITATOR INFO :  RF         1987 SC1977  (3)  RF         1987 SC2377  (6)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act, 1974-Detenu  assailing  detention order-Failure   of    State   Government   to   dispose   of representation within reasonable time-Point not taken before High  Court-Whether   can  be   raised  in   Supreme  Court- Representations of detenus to be dealt with continuously and disposed of expeditiously-Duty of State Government.

HEADNOTE:      The appellant  who was  detained by an order dated 16th May, 1980,  made a  representation dated 3rd June, 1980 from jail, which  was received  by the  State Government  on  4th June, 1980.  Comments  were  called  for  from  the  Customs Authorities on  the 6th  of June,  1980 and were received on 13th  June,   1980.  On  the  17th  June,  1980,  the  State Government referred the representation to its Law Department for opinion  which was furnished on the 19th June, 1980. The representation was  rejected by  an order  dated 24th  June, 1980, which  was communicated  to the  jail authorities  two days later.      The appellant’s  writ petition having been dismissed by the High  Court, he  came in  appeal to this Court raising a new plea  that the  representation made  by him  against the detention to  the State  Government was not decided within a reasonable  time  and  that  the  delay  was  fatal  to  the detention.      Allowing the appeal, ^      HELD: 1. In matters of this kind where all the material necessary for  the determination of a new point is available on the  record, and  having regard  to the importance of the matter, this  Court can  entertain the  point even if it had not been raised before the High Court. [277 F-G]      2. The order of detention declared unconstitutional and appellant directed to be set at liberty. [279 F]      3. On numerous earlier occasions this Court has made it clear that  it does  not look with equanimity upon delays in considering  the   representations  of  detenus.  Where  the

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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.                                                    [278 G-H]      In the  instant case  no explanation  had been given by the Government,  as to  why  no  action  was  taken  on  the representation of the detenu on 4th, 5th and 277 25th of June 1980 and what consideration was given from 13th June, 1980 to 16th June, 1980 and why the file had to travel from table  to table before reaching the Chief Minister, who was the only authority to decide the representation.                                                    [278 E-F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 183 of 1981.      Appeal by  special leave  from the  Judgment and  Order dated 30.1.1981  of the  High Court  of Allahabad  in  Civil Misc. Habeas Corpus Writ No. 6343/80.      R.K. Garg,  Naresh K.  Sharma and  Mukul Mudgal for the Appellant.      R.K. Bhatt for Respondent No. 1      Hardayal  Hardy   and  Miss   A.  Subhashini   for  the Respondents.      The Judgment of the Court was delivered by      KOSHAL, J.  This is  an  appeal  by  one  Harish  Pahwa against the  judgment dated  30th January,  1981 of the High Court of  Allahabad dismissing  a petition  presented by the appellant to  it under  Article 226  of the  Constitution of India with  a prayer  that a writ of habeas corpus be issued against the  State of Uttar Pradesh and Union of India in as much as  the detention  of the  appellant by them was not in accordance with law.      2. The only point that has been raised before us by Mr. Garg appearing  on behalf  of  the  appellant  is  that  the representation made  by him  against his  detention  to  the State Government  was not  decided within  a reasonable time and that the delay is fatal to the detention. This point was no doubt not taken before the High Court, but in view of its importance and  the fact that all the material necessary for its determination  is  available  on  the  record,  we  have allowed it  to be  raised before  us and  have  overruled  a preliminary objection  taken by the State to the effect that it should not be entertained.      3. In order to decide the point we may refer to certain admitted facts.  The order  of detention  is dated 16th May, 1980 and the representation made by the appellant against it from Varanasi  Jail bears  date the  3rd of  June, 1980. The State Government received 278 the representation on the 4th June, 1980 but for two days no action was  taken in connection with it. On the 6th of June, 1980 comments  were called  for from the Customs authorities with regard  to the  allegations made  in the representation and such  comments were  received by the State Government on the 13th  June, 1980.  On the  17th of June, 1980, the State Government referred the representation to its Law Department for its  opinion which  was furnished  on the  19th of June, 1980 The  rejection of the representation was ordered on the 24th of  June, 1980  and it  was communicated  to  the  jail authorities two days later.

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    The case  of the  State is  that the representation was with the  Customs authorities  who  were  formulating  their comments from  7th June,  1980 to the 12th of June, 1980 and that the  representation was  under the consideration of the Government for  four days from 13th June, 1980 to 16th June, 1980, of  its Law  Department from  17th June,  1980 to 19th June, 1980  and then  again under  its own consideration for six days from 19th June, 1980 to 24th June, 1980.      In our  opinion, the manner in which the representation made by  the appellant  has been  dealt with reveals a sorry state  of   affairs  in   the  matter  of  consideration  of representations made  by  persons  detained  without  trial. There is no explanation at all as to why no action was taken in reference  to the  representation on 4th, 5th and 25th of June, 1980.  It is  also not  clear what  consideration  was given by  the Government  to the  representation  from  13th June,  1980  to  16th  June,  1980  when  we  find  that  it culminated only in a reference to the Law Department, nor it is apparent  why the  Law Department  had to be consulted at all. Again, we fail to understand why the representation had to travel  from table  to table for six days before reaching the Chief  Minister who was the only authority to decide the representation. We  may make  it clear,  as we  have done on numerous earlier  occasions, that  this Court  does not look with equanimity  upon such  delays when  the  liberty  of  a person   is   concerned.   Calling   comments   from   other departments,  seeking   the  opinion   of  Secretary   after Secretary and  allowing the  representation to  lie  without being attended  to is not the type of action which the State is expected  to take  in a  matter of  such vital import. We would emphasise  that it is the duty of the State to proceed to  determine   representations  of   the  character   above mentioned with  the utmost  expedition, which means that the matter must  be taken up for consideration as soon as such a representation  is  received  and  dealt  with  continuously (unless it is absolutely necessary to wait for 279 some  assistance  in  connection  with  it)  until  a  final decision is  taken and  communicated to the detenu. This not having been  done in  the present case we have no option but to  declare   the  detention   unconstitutional.  We   order accordingly, allow  the appeal and direct that the appellant be set at liberty forthwith. N.V.K.                                       Appeal allowed. 280