JUDGMENT
Y.K. Sabharwal, J.
(1) Rule D.B.
(2) The challenge of the petitioner in this case is to the order of detention dated 22nd December, 1994, made by the Commissioner of Police under sub-Section 2 of Section 3 of the National Security Act, 1980 (for short `the Act’). The petitioner was directed to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The order of detention passed by the Commissioner of Police was approved, as required by the Act, by Lt. Governor of Delhi. The approval is dated 30th December, 1994. The order of detention alongwith order dated 30th December, 1994 was served on petitioner on 5th December, 1996.
(3) The petitioner made a representation dated 30th December, 1996 against the order of detention to the Central Government. The said representation was rejected by the Central Government in terms of its communication dated 3.3.1997 addressed to the petitioner.
(4) One of the contentions vehemently urged before us by learned counsel for the petitioner is that on account of undue, unreasonable and unexplained delay in decision of the representation dated 30th December, 1996, the constitutional right of the petitioner under Article 22(5) has been violated. The stand of Central Government is that the representation dated 30th December, 1996 was received by it in the Ministry of Home Affairs on 30th December, 1996 through Superintendent Central Jail No. 1, New Delhi; it was processed for consideration and it was found that certain vital information required for its further consideration needed to be obtained from the State Government/Commissioner of Police, Delhi, who were informed through a crash wireless message dated 3st December, 1996 sent by Special Messenger and by subsequent reminders dated 14th January, 1997 and 6th February, 1997. It has further been stated by the Central Government that the required information was received by it on 21st February, 1997 vide State Government’s letter dated 21st February, 1997 and on receipt thereof, the case of the detenu was put up before the Deputy Secretary, Ministry of Home Affairs on 24th February, 1997, who carefully considered the same and with his comments put up the matter before the Joint Secretary, Ministry of Home Affairs on 25th February, 1997 and that the Joint Secretary with his comments placed the same before the Minister of State for Home Affairs. The Minister of State for Home Affairs duly considered the case of the detenu and rejected the representation of the detenu on 26.2.1997. It appears that by communication dated 3.3.1997, the petitioner was informed about the rejection of his representation.
(5) We have perused the record produced by learned counsel for Central Government. It appears that the comments in detail were sent by the office of Commissioner of Police to the Central Government vide its communication dated 9th January, 1997. On receipt thereof on 14th January, 1997, the State Government was asked by the Central Government to send the opinion of the Advisory Board. Again vide communication dated 6th February, 1997, the State Government was requested to send to the Central Government the opinion of the Advisory Board. A reminder was again sent by the Central Government to the State Government vide its communication dated 18th February, 1997 stating that opinion of Advisory Board may be intimated to enable the Central Government to process the representation of the detenu. The opinion of the Advisory Board was sent, by State Government to the Central Government in terms of its communication dated 20.2.1997, received by Central Government on 21.2.1997. Thereafter, as already noticed above, the representation was considered by the Central Government and rejected.
(6) It is well established principle of law that the Central Government has to consider the representation of a detenu independently of the opinion of the Advisory Board. It is not proper for the Central Government to await the opinion of the Advisory Board for it to act upon the representations of a detenu. It is also well established that undue, unreasonable and unexplained delay in disposal of a representation of a detenu results in violation of his valuable rights under Article 22(5) of the Constitution of India.
(7) From the facts of the present case as noticed above, it appears that even after receipt of comments dated 9th January, 1997 from the State Government, the Central Government did not decide the representation dated 30th December, 1996 and kept on waiting the opinion of the Advisory Board. The receipt or non-receipt of the opinion of Advisory Board had no relevance for taking an independent decision by the Central Government on the representation of the petitioner. In case the Central Government was not waiting for the opinion of the Advisory Board, there would be no explanation for the period between 9th January, 1997 till 21st February, 1997. It has not been explained that if the Central Government was not awaiting for opinion of the Advisory Board, how the time was consumed between the date of receipt of comments from State Government till consideration of the representation, which consideration in fact started on 21st February, 1997. Looking from any of these angles, it seems clear that provisions of Article 22(5) of the Constitution of India have been violated to the prejudice of the petitioner. In almost similar circumstances in the case of Dhan Raj v. Administrator of the National Capital Territory of Delhi & Ors. 1994 I A.D. (Delhi) 56, the detention of a detenu was quashed holding that it was wrong for the Central Government to await the opinion of the Advisory Board for it to act on the representation of the petitioner.
(8) In view of above, it is not necessary for the Court to consider various other contentions advanced by learned counsel for the petitioner.
(9) For the aforesaid reasons, we allow the petition, make the rule absolute and set aside the impugned order of detention dated 22.12.1994 and the order dated 30.12.1994 passed by Lt.Governor of Delhi. The parties are left to bear their own costs.
(10) The petitioner shall be set at liberty forthwith if not required in any other case.