JUDGMENT
Mukundakam Sharma, J.
1. This petition is filed by Sh. Dinesh Giri son of Sh. Mahavir Giri, a detenu under the National Security Act, as a habeas corpus petition seeking for quashing and setting aside his order of detention dated 1.4.2004 passed by the Commissioner of Police, Delhi.
2. The Commissioner of Police, Delhi acting as the detaining authority and being so empowered under sub-section (2) of Section 3 of the National Security Act, passed an order of detention in the case of the petitioner after recording his satisfaction that the petitioner is being detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
3. Grounds of detention were also served on the petitioner. In the aforesaid grounds of detention, reference is made by the detaining authority to 29 criminal cases registered against the petitioner. It is also indicated therein that out of the aforesaid 29 criminal cases registered against the petitioner, the detenu has been acquitted in six cases, discharged in two cases, released in three cases whereas one case ended in compromise. Final report under Section 169 Cr.P.C has been submitted in two cases. It is further stated that 11 cases are pending trial and two cases are pending under investigation against him. It is also indicated in the said grounds of detention that except the case mentioned at Sr.No.27 of the grounds of detention, in all other pending cases the petitioner has been granted bail. The grounds of detention also mention that the criminal activities as reflected from the cases registered against the petitioner clearly show that the petitioner is a desperate and and dangerous criminal whose activities are prejudicial to the maintenance of public order. The detaining authority has also indicated his awareness that the petitioner is in judicial custody at the time of issuance of the aforesaid order of detention in connection with FIR case No.1203/2003 under Section 392 IPC. In that regard it was stated that he has already filed his bail application and that there is imminent possibility/apprehension that he might be granted bail and, therefore, keeping in view his past criminal activities, there is every apprehension/imminent possibility that just after his release from jail he would again indulge in similar type of criminal activities which would adversely affect the maintenance of public order and, therefore, there is a necessity of issuance of such an order under the provisions of Section 3(2) of the National Security Act to prevent him from further committing similar criminal activities prejudicial to the maintenance of public order. It was also mentioned in the said grounds of detention that the petitioner could make a representation to the detaining authority, namely, the Commissioner of Police, Delhi or to the Lieutenant Governor, Delhi, Raj Niwas, under Section 8 of the National Security Act and also to the Advisory Board against his detention. The grounds of detention also indicated that the petitioner could file a representation to the Central Government, if he so desires, which should be made under Section 14 of the National Security Act. The Commissioner of Police, Delhi indicated in the said grounds of detention that in case such a representation is made to the Central Government the same should be sent at the following address through the Superintendent, Central Jail, Tihar, New Delhi:-
“The Secretary, Government of India, Ministry of Home Affairs, Department of Internal Security, North Block, New Delhi.
4. After issuance of the notice on this habeas corpus, the respondents entered appearance and they have filed affidavits in response to the allegations made in the petition. We have considered the pleadings of the parties filed in this case and also perused the documents and the records connected with the case and after hearing the counsel appearing for the parties, we proceed to dispose of this writ petition by this judgment and order.
5. During the course of arguments, counsel appearing for the petitioner challenged the aforesaid order of detention passed against the petitioner solely on the ground that there was inordinate and unexplained delay in disposal of the representation submitted by the father of the petitioner on behalf of the petitioner, by the Central Government. No other ground was advanced before us for challenging the order of detention and, therefore, we are required and called upon to examine the aforesaid issue raised before us, which pertains to disposal of the representation filed by the father of the petitioner.
6. Counsel appearing for the petitioner submitted that the petitioner did not submit any representation to any authority but his father on his behalf submitted a representation to the Central Government, which was received at the Rashtrapati Bhawan, and it was addressed to the President of India. It was submitted by her that the aforesaid representation was sent by the father of the petitioner on 12th July, 2004 to the President of India and that the said representation filed by the father of the petitioner on behalf of the petitioner was disposed of only on 14th September, 2004 It was therefore submitted that there was inordinate delay in disposal of the aforesaid representation submitted by the father of the petitioner and no explanation whatsoever is given in the counter affidavit filed explaining the circumstances in which such delay had occurred. It was also submitted by the counsel appearing for the petitioner that in view of the aforesaid inordinate and unduly long delay in disposal of the representation by the Central Government, further detention of the detenu has become illegal and, therefore, the order of detention is required to be set aside and quashed. In support of the said contention, the counsel relied upon the decision of the Supreme Court in RAGHAVENDRA SINGH VS. SUPERINTENDENT, DISTRIC JAIL, KANPUR AND OTHERS and the decision of the Supreme Court in RUMANA BEGUM VS. STATE OF ANDHRA PRADESH AND ANOTHER reported in 1993 Supp.(2) SCC 341. Reliance was also placed by the counsel for the petitioner in that regard in two decisions of this court in SH.SULEMAN VS. UOI and OTHERS in Criminal Writ Petition NO.138/2003 disposed of on 25th August, 2003 and the decision in Criminal Writ No.1006/1999 in the case of of DILJEET SINGH VS. UOI and ORS disposed of on 3rd August, 2000.
The decisions rendered by this court in the aforesaid two cases were entirely on the basis of the aforesaid decisions of the Supreme Court in the case of Raghvendra Singh (supra) and Rumana Begum (supra).
7. Counsel appearing for the respondents , however, submitted before us that the aforesaid representation, which was filed by the father of the petitioner on behalf of the detenu, was addressed to the President of India, which was not received by Secretary, Government of India, Ministry of Home Affairs. It was submitted that the Secretary, Government of India, Ministry of Home Affairs, Department of Internal Security, North Block, New Delhi received a copy of the representation of the detenu from the office of the Commissioner of Police, Delhi, on 10th September, 2004, which was expeditiously dealt with and the decision was communicated to the petitioner through the Home Secretary, Govt. of NCT of Delhi and Superintendent, Central Jail, Tihar, New Delhi on 17th September, 2004
8. It was also submitted by her that the petitioner has not come to the court with clean hands as despite the fact that it was specifically mentioned in the grounds of detention that representation, if any, is to be filed to the Central Government should be sent to the address of the Secretary, Ministry of Home Affairs, Department of Internal Security, New Delhi, the said representation filed on behalf of the detenu on whom the aforesaid grounds of detention were served, was not sent to the authority or the address to which it should have been sent but it was deliberately sent to the President of India. It was submitted that it was not indicated in the petition or in the representation filed as to why the representation was made to the President of India and not sent to the authority or the specified address indicated in the grounds of detention. It was stated that the said representation was sent by the father of the detenu with ulterior motives to gain an undue advantage of technicalities and, Therefore, taking into view all the aforesaid circumstances, the writ petition should be dismissed. In support of the said contention, the counsel relied upon a decision of the Supreme Court in UNION OF INDIA VS. PAUL MANICKAM AND ANOTHER .
9. In the light of the aforesaid submissions of the counsel appearing for the parties, we may now proceed to decide the issue arising before us and record reasons therefore. In the grounds of detention the criminal activities of the petitioner were sets out by giving the facts of 29 cases , which were instituted against the petitioner. The criminal cases mentioned at Sr.Nos.1-21 were set out in order to narrate his past conduct. The detention order was , however, passed against him in view of his criminal activities in the cases cited from Sr.Nos. 21-29. No arguments were advanced and no challenge was made by the counsel appearing for the petitioner in respect of the grounds of detention at all. As the only submission and challenge was made to the order of detention on the ground of inordinate and undue delay in disposal of the representation, therefore, it is not necessary for us to consider any other facet of the detention order except for considering the only issue, which was specifically raised before us.
10. The order of detention passed against the petitioner is dated 1st April, 2004 The grounds of detention were also served on the petitioner on 1st April, 2004 itself. The aforesaid detention order of the petitioner was approved by the State Government on 6th April, 2004 The opinion of the Advisory Board was also obtained within the statutory time limit and thereafter the order of detention was confirmed by issuing the order dated 29th May, 2004
11. The detenu did not submit any representation either to the detaining authority or to the Lieutenant Governor. No representation was sent to the authority and address specified in the grounds of detention. The father of the petitioner sent representation addressed to the President of India on 12th July, 2004 A postal certificate is also placed on record to show that the aforesaid representation, which was sent by the father of the petitioner to the President of India, was delivered on 13th July, 2004
12. The respondents have specifically pleaded that the aforesaid representation sent to the President of India was not received in the office of the Secretary, Govt. of India, Ministry of Home Affairs, Department of Internal Security, North Block New Delhi. It is the specific plea of the respondents that a copy of the said representation was received by the respondent No.1 on 10th September, 2004 from the office of the Commissioner of Police, Delhi and that the said representation was immediately processed for consideration and the case of the petitioner was considered at various levels and finally the same was rejected on 17th September, 2004 Therefore, it cannot be said that there was any delay in disposal of the said representation which was stated to have been received on 10th September, 2004 as the same was disposed of on 17th September, 2004 There were two holidays in between being 11th and 12th September, 2004
13. It was, however, submitted by the counsel appearing for the petitioner that the aforesaid representation which was directly sent to the President of India on 10th July, 2004 was received in the President’s Secretariat on 13th July, 2004 It was submitted that the said representation sent to the President of India was, in fact, in law a representation submitted to the Central Government and accordingly the same having been disposed of by the Central Government only on 14th September, 2004, there was inordinate and undue delay, which is not explained and, therefore, the said order of detention is required to be quashed.
14. There cannot be any dispute with regard to the fact that the representation submitted to the President of India would amount to a representation submitted to the Central Government. However, a glaring fact, which comes to our notice, should be mentioned at this stage. In the grounds of detention, which were served on the petitioner, it was specifically mentioned that in case the detenu desires to send a representation as against the order of detention to the Central Government, the same should be addressed to the authority specifically mentioned in the said order of detention. In the representation sent directly to the President of India, it was specifically stated that the said representation was filed by the father of the petitioned on behalf of and on instructions of the detenu. Therefore, the father of the petitioner was fully aware of the fact that the said representation should have been addressed to the authority whose particulars and details were furnished in the grounds of detention. In Ground-G of the present petition, the petitioner has mentioned that the father of the petitioner sent a representation dated 10th July, 2004 to the Central Government on 12th July, 2004 vide Regd. A.D on behalf of and under the instructions of the petitioner. The aforesaid statement which was made, did not give the correct picture as although the said representation is addressed to the President of India, amounting to a representation submitted to the Central Government yet the same was not sent to the authority to whom it should have been addressed as stated in the grounds of detention.
15. We may, at this stage, appropriately refer to the decision of the Supreme Court in Union of India vs. Paul Manickam (supra) wherein the Supreme Court dealt with similar facts and circumstances and in that context in paras 17, 18 and 19 held as follows:
“17. Coming to the question whether the representation to the President of India meets with the requirement of law, it has to be noted that in Raghavendra Singh vs. Superintendent, District Jail and Rumana Begum vs. State of A.P it was held that representation to the President of India or the Governor, as the case may be, would amount to representation to the Central Government and the State Government respectively. Therefore, the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government . But this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made. Such indication is also a part of the move to facilitate an expeditious consideration of the representations actually made.
18. The respondent does not appear to have come with clean hands to the court. In the writ petition there was no mention that the representation was made to the President; instead it was specifically stated in paragraph 23 that the representation was made by registered post to the first respondent on 11.5.2000 and a similar representation was made to the second respondent. Before the High Court in the writ petition the first and the second respondents were described as follows:-
1. State of Tamil Nadu, rep. by its Secretary, Government of Tamil Nadu, Public (SC)Department, Fort St.George,Chennai-600009
2. Union of India, rep. by its Secretary, Ministry of Finance, Department of Revenue, New Delhi.
19. As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writs petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose and red herrings the court has to take serious note of unclean approach. whenever a representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but the day-to-day administration at respective levels is carried on by the Heads of the Departments/Ministries concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration.”
16. The aforesaid observations of the Supreme Court would clearly reveal that the two earlier Supreme Court decisions, on which strong reliance is placed by the counsel for the petitioner in this case also, were considered in the aforesaid decision of Paul Manickam (supra). Even despite the same it was held by the Supreme Court in the said decision that although the representation made to the President of India would amount to a representation to the Central Government yet this position in law cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives of creating a contrived ground for impugning State action on the ground of delay.
In the said case also , like the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made and that such indication is also a part of the move to facilitate an expeditions consideration of the representations actually made.
The facts as delineated in the said case of Paul Manickam (supra), particularly in para 18, are similar to the facts of the present case. In the said writ petition also just as in the present petition there was no mention that a representation was made to the President of India. Instead it was specifically stated in para 23 that the representation was made by Regd. post to the State of Tamil Nadu on 11th May, 2000 and a similar representation was made to the Union of India.
In the light of the aforesaid facts, the Supreme Court held that undue importance is not to be attached to technicalities but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting lose red herrings, the court has to take serious note of unclean approach. It was also observed , as stated in para 19 of the said decision, that whenever a representation is made to the President and the Governor instead of the indicated authorities, it should also but be natural that the representation should indicate as to why the representation was made to the President or the Governor and not to the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case in hand. We may at this stage refer to another decision of the Supreme Court in Crl. Appeal No.1474 of 2004 – Union of India and Another vs. Chaya Ghosal and Another disposed of on 13th December, 2004 wherein the Supreme Court has held as follows:-
“The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day to day administration at respective levels are carried on by the Heads of the Department-Ministries concerned and designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or is interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the really concerned authorities and would not adopt any dubious devices with the sole aim of definitely creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly/immediately concerned with such consideration.
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“Where, however, a person alleging infraction of personal liberty tries to act in a manner which is more aimed at deflecting the course of justice than for protection of his personal right, the Court has to make a deliberate balancing of the fact situation to ensure that the mere factum of some delay alone is made use of to grant relief. If a fraud has been practiced or perpetrated that may in a given case nullify the chershed goal of protecting personal liberty, which obligated this Court to device guidelines to ensure such protection by balancing individual rights and the interests of the nation, as well.”
17. The Supreme Court went on to hold as follows:-
“In law the President or the Governor, as the case may be, cannot be imp leaded as a party. Therefore, there is no question of their explaining as to what happened after representation was received by the office of the President or the Governor, as the case may be. The Central Government or the Detaining Authority are also not authorized and competent in law to say what happened after representation is received in the office of the President or the Governor, as the case may be. The Detaining Authority or the concerned authority of the Central Government has to explain the action taken by the said authority after receipt of the representation by it.”
18. The following observation of the Supreme Court in the same decision are also relevant in the facts of this case and accordingly we extract the same:-
“It has to be noted that the Detaining Authority and/or the Central Government and/or the State Government, as the case may be, have to explain the action taken on the representation after it had reached the concerned authority. The representation should be received by a person authorised to receive it. The Detaining Authority or the concerned authority of the Central Government may have authorised some members of the staff to receive representation or any official document. If the representations handed over to or served on a person who is not authorized to receive it the concerned authority cannot be held responsible if any delay is occasioned on account of inaction by such unauthorized person. If any dispute is raised about the authority of the person to whom the representation is claimed to have been handed over or served, the person making the representation on behalf of the detenu or the detenu, as the case may be, has to establish as to on whom the service was effected and he had authority to receive the document in question.”
19. Being faced with the aforesaid situation and when it was put directly to the counsel for the petitioner as to why no such mention was made in the petition, it was submitted by her that the observations made in the decision of Paul Manickam (supra) are obiter and the same cannot be considered as it could not have overruled the decision of the three Judges Bench in the case of Rumana Begum (supra). In our considered opinion, the aforesaid observations, made by the Supreme Court in Paul Manickam’s case (supra) were in the light of the facts of the said case and, therefore, the said observations and findings recorded cannot be said to be obiter in any manner. We are also of the considered opinion that although the decision of the Supreme Court Rumana Begum (supra) is a decision of three Judge Bench yet the principle of law laid down is the same as in Paul Manickam’s case (supra). The facts of the said case were distinguishable. An additional aspect of the matter which had not arisen for consideration in the earlier case was adjudicated upon. There is no conflict in respect of the ratio decidending of the decisions of the Supreme Court. The issue with regard to the malafide on the part of a detenu in making the representation to an authority not specified or authorised, deliberating to cause delay in consideration, was not adjudicated upon in the cases cited by the petitioner.
20. We are of the firm opinion that the petitioner has come to this court with unclean mind and unclean hands. There is also suppression of material facts, which were required to be disclosed by the petitioner in the writ petition in terms of the observations made by the Supreme Court in the case of Paul Manickam (supra). The same was intentionally not done in the present case and, therefore, the facts of the present case are clearly distinguishable from the case of Rumana Begum (supra).
21.It was also submitted on behalf of the petitioner that in Paul Manickam’s case the Supreme Court did not interfere with the order of the High Court quashing the order of detention. A bare reading of the said decision would indicate the reasons for which the Supreme Court did not direct for further detention of the petitioner. In paragraph 23 of the said judgment the reason for the same is clearly noted. It was held that as the detenu had already suffered detention for about the whole period of detention, the order of the High Court setting the petitioner at liberty was not interfered with. But, in the present case facts are dissimilar. The duration of the period of detention of the petitioner is for one year and would expire only in the month of March, 2005. Consequently, there could be no scope of setting aside the order of detention on any score.
22. Counsel appearing for the petitioner also drew our attention to the judgment of the Supreme Court in Kamleshkumar Ishwardas Patel vs. Union of India and Others . We have perused the said judgment carefully, a copy of which was placed before us. In our considered opinion the said decision does not lay down a law which is contrary to and inconsistent with the view which we have taken today. The said judgment has said that the right to make a representation carries within it a corresponding obligation on the authority making the order of detention to enable the person detained, of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
In the order of detention in the present case, the detaining authority had informed the petitioner about the said right which flows from Article 22(5) of the Constitution of India. She has also specifically drawn our attention to the observations made by the Supreme Court in the aforesaid decision in Kamleshkumar (supra) that Article 22(5) of the Constitution of India does not, however, indicate the authority to whom the representation is to be made and that since the object and purpose of the representation, that is to be made by the person detained, is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief i.e. the authority which can revoke the order of detention and set him at liberty.
It was also submitted by her that the conclusions reached at by the Supreme Court in Paul Manickam’s case (supra) and in the case of Chaya Ghosal (supra) are against the constitutional provisions of clause (5) of Article 22 of the Constitution of India.
We, however, cannot agree with the submissions of the counsel appearing for the petitioner. In our considered opinion the findings and the conclusions reached by the Supreme Court in Paul Manickam’s case (supra) and in the case of Chaya Ghosal (supra) are in consonance with the aforesaid observations of the Supreme Court, to which reference is made. In fact, the said observations in Kamlesh Kumar’s case (supra)instead of supporting the petitioner supports the respondent that the representation should have been sent by the petitioner to the authority who could grant relief to the petitioner as stated in the order of detention. The particulars were given by the detaining authority, at the address mentioned therein, who is also empowered under he law to deal with the said representation in accordance with law and also enable the authority to expeditiously dispose of the said representation.
23. In our considered opinion the decisions in the case of Paul Manickam (supra) and Chaya Ghosal (supra) apply in full force to the facts of the present case. Accordingly, we hold that where a person alleging infraction of personal liberty tries to act in a manner, which is more aimed at deflecting the course of justice than for protection of his personal right, the court has to make a deliberate balancing of the fact situation to ensure that the mere factum of contrived delay alone is not made use of to grant relief.
Accordingly, we find no merit in this petition and the petition is dismissed.