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PETITIONER: SMT. KHATOON BEGUM ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS. ETC. ETC.

DATE OF JUDGMENT09/03/1981

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1077            1981 SCR  (3) 137  1981 SCC  (2) 480        1981 SCALE  (1)507  CITATOR INFO :  R          1981 SC1389  (1)  R          1986 SC 356  (3)

ACT:      Constitution of  India, 1950,  Article 22(5)  - Whether delay in  considering the  representation made  by a  detenu vitiates the detention under the National Security Act.

HEADNOTE:      Allowing the appeals, the Court ^      HELD: 1:  1. Article 22 (5) of the Constitution enjoins a duty  on the  authority making  the order  of detention to afford the  detenu the  earliest  opportunity  of  making  a representation against  the order.  The right and obligation to make  and to  consider the representation at the earliest opportunity is  a constitutional  imperative which cannot be curtailed or abridged. [140 E]      1: 2. If the Parliament or the State Legislature making the  law   providing  for  preventive  detention  devises  a circumlocutory procedure  for considering the representation or if  the inter-departmental  consultative  procedures  are such  that   delay  becomes  inevitable,  the  law  and  the procedures will  contravene the constitutional mandate. [140 F]      1 :  3. It  is essential  that any  law  providing  for preventive detention and any authority obliged to make order for preventive  detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative  red tape  makes delay  inevitable.  The constitutional mandate  brooks no  unreasonable delay in the consideration of a representation. [140 G, 141A]      1: 4.  The right  of detenu  to have his representation considered "at  the earliest opportunity" and the obligation of the  detaining authority  to consider  the representation "at the  earliest  opportunity"  are  not  a  right  and  an obligation flowing  from either  the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 or the National  Security   Act  or,  for  that  matter  any  other Parliamentary  or   State  law   providing  for   preventive detention. They are a right and an obligation created by the

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very Constitution which breathes life into the Parliamentary or State law. [140 D]      Jayanarayan Sukul v. State of West Bengal, [1970] 3 SCR 225; Narendra  Purshotam  Umrao  etc.  v.  B.B.  Gujral  and Ors.,[1979] 2  SCR 315;  V.J. Jain  v. Pradhan,  AIR 1979 SC 1501; Smt.  Ichhu Devi  Choraria v. Union of India and Ors.; AIR 1980 SC 1983; Ramachandra A. Kamat v. Union of India and Ors. [1980]  2 SCR  1072; Frances  Coralie Mullin  v. W.  C. Khambra and Ors.. [1980] 2 SCR 1095, referred to.

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  Nos. 293,391 and 392 of 1981.            (Under Article 32 of the Constitution) 138      M.M.  Abdul   Khader  and   Shakeel   Ahmed   for   the Petitioners.      R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the Respondents.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. These  three Writ Petitions may be disposed  of  by  a  single  judgment  since  the  principal question argued  in all the three cases is one. The question is whether delay in considering the representation made by a detenu under  Art. 22(5)  of  the  Constitution  vitiates  a detention under  the National  Security Act and entitles the detenu to be released on that ground alone. As a result of a series of decisions of this Court,(’) it is now well settled that the representation made by a detenu under Art. 22(5) of the   Constitution   against   his   detention   under   the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974, must  be considered  by the detaining authority  with   the  ut-most   expedition  and   that  any unexplained delay  in considering the representation will be fatal to the detention. The learned counsel for the State of Uttar Pradesh  urged that  the  rule  requiring  expeditious consideration of  a detenu’s  representation is a judge-made rule based  on provisions  of the  Conservation  of  Foreign Exchange and  Prevention of  the Smuggling  Activities  Act, 1974, and  that the extension of the application of the rule to cases  of detention  under the  National security Act was unwarranted. The  learned counsel  contrasted the provisions of the  National Security  Act and  the  provisions  of  the Conservation of  Foreign Exchange  & Prevention of Smuggling Activities  Act,  1974,  and  urged  that  in  the  case  of detention under  the National Security Act, a certain amount of delay  was inevitable  having due regard to the procedure prescribed by the Act and, 139 therefore, delay  in  consideration  of  the  representation should not  be allowed  to prejudice  the detention.  We are unable to  agree with the submission of the learned counsel. We will  presently give  our reasons  for our  inability  to accept the  learned counsel’s  submissions but we will first like to refer to a few facts.      In Writ  Petition (Criminal)  No. 293 of 1981 the order and the  grounds of  detention were  served on the detenu on October 30,  1980 and  November 12,  1980 respectively.  The detenu made  a representation  on November  12, 1980. Though according to  the detenu  he has  received no  communication from the Government about his representation, the Additional District Magistrate has stated in his counter-affidavit that the representation was rejected on December 9, 1980 and that

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it was communicated to the detenu through the Superintendent of the  Central Jail.  The counter-affidavit  mentions not a word to explain the delay in considering the representation. The only  reference to  the representation  in the  counter- affidavit is  in these  two sentences:  "It is admitted that the detenu  made a  representation to  the Home Secretary on November 12,  1980, and the same was rejected on December 9, 1980. The  rejection of  the representation was communicated to the  detenu through  Superintendent, Central  Jail by the Government".      Similarly in  Writ Petition  (Criminal No. 391 of 1981, the order  and the  grounds of  detention were served on the detenu on November 12, 1980. The representation was rejected on December  10, 1980. In the counter affidavit filed by the Section Officer,  Confidential Department, of the Government of Uttar  Pradesh, it  is stated  that  on  receipt  of  the representation, the Secretary’ Home Department, forwarded it to the  District Magistrate  for his  comments. In  order to meet the  allegations in  the representation,  the  District Magistrate had  to gather  information from many sources and the representation  alongwith his  comments was  returned to the Home  Secretary by  the District  Magistrate on November 25, 1980.  Thereafter Law  Department was  consulted and the file could reach the Home Minister on December 5, 1980 only. The representation  was rejected  by the  Home  Minister  on December 8, 1980 and then communicated to the detenu through the Superintendent, Central Jail.      In Writ  Petition (Criminal)  No. 392 of 1981 the order and the  grounds of  detention were  served on the detenu on October 16,  1980.  The  detenu  made  a  representation  on October 24,  1980. It was rejected on November 25, 1980. The counter- 140 affidavit filed  by the  Additional District Magistrate does not offer any explanation for the delay in the consideration of the  representation. He  has satisfied  himself with  the statement "as  regards the  representation of  the detenu to the Home Secretary this fact is admitted."      The question  for consideration  is  whether  a  person preventively detained  under the  provisions of the National Security Act is entitled to be released if there is delay in the consideration  of the  representation made by him to the detaining authority.  It is  true that  the series  of cases where delay  in the consideration of the representation made by a  detenu was  held to  be fatal  to detention were cases which arose  under the  Conservation of Foreign Exchange and Prevention  of   Smuggling  Activities  Act,  1974.  We  are however, unable to see how that would make any difference.      The  right   of  detenu   to  have  his  representation considered "at  the earlier  opportunity" and the obligation of the  detaining authority  to consider  the representation "at the  earliest  opportunity"  are  not  a  right  and  an obligation flowing  from either  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, or the National  Security Act  or, for  that matter  any  other Parliamentary  of   State  law   providing  for   preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State  law. Art.  22(5) enjoins  a duty  on the authority making the  order of  detention to  afford the  detenu  "the earliest opportunity  of making a representation against the order". The right and obligation to make and to consider the representation   at    the   earliest   opportunity   is   a Constitutional  imperative  which  cannot  be  curtailed  or abridged. If  the Parliament or the State legislature making

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the  law   providing  for  preventive  detention  devises  a circumlocutory procedure  for considering the representation or if  the inter-departmental  consultative  procedures  are such  that   delay  becomes  inevitable,  the  law  and  the procedures will contravene the constitutional mandate. It is essential that  any law  providing for  preventive detention and any  authority obliged  to make  orders  for  preventive detention  should   adopt  procedures   calculated   towards expeditious  consideration   of  representations   made   by detenus. It will be no answer to a demand for liberty to say that administrative  red tape  makes delay  inevitable.  The learned counsel  for the  State of Uttar Pradesh pointed out certain differences  between  the  Conservation  of  Foreign Exchange and  Prevention of Smuggling Activities Act and the National Security  Act which  according to  him  make  delay inevitable in 141 the consideration  of representations  in cases of detention under  the   National  Security   Act.  We  think  that  the differences pointed  out are  irrelevant. The constitutional mandate brooks no unreasonable delay in the consideration of a representation.  In the  cases before us, in Criminal Writ Petition Nos. 293 of 1981 and 392 of 1981 no explanation was offered by  the detaining  authority for  the delay  in  the consideration  of   representations  and  in  Criminal  Writ Petition No.  391 of  1981, administrative  red tape was the only explanation  offered. We  are satisfied that in all the three  cases   there   was   unreasonable   delay   in   the consideration of  the representations  and the  detenus are, therefore, entitled  to be  released. They  will be released forthwith. The Writ Petitions are allowed. V.D.K.                                    Petition allowed 142