PETITIONER:
RAISUDDIN @ BABU TAMCHI
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH & ANR.
DATE OF JUDGMENT07/10/1983
BENCH:
ERADI, V. BALAKRISHNA (J)
BENCH:
ERADI, V. BALAKRISHNA (J)
MISRA, R.B. (J)
CITATION:
1984 AIR 46 1984 SCR (1) 340
1983 SCC (4) 537 1983 SCALE (2)603
CITATOR INFO :
R 1984 SC1334 (21)
F 1985 SC1082 (11)
F 1989 SC1403 (8)
R 1989 SC1861 (18)
R 1990 SC1455 (13)
ACT:
National Security Act, 1980-Sec. 3 (3)-Detention order-
Delay in dealing with detenu's representation vitiates
detention order-Whether there is delay depends upon facts
and circumstance of each case-There is no rigid rule or set
formula.
National Security Act, 1980-Sec. 10-Interpretation of-
The words "place before the Advisory Board" means forward to
or submit before the Advisory Board and nothing more.
HEADNOTE:
The petitioner who was detained by an order passed
under sec. 3 (3) of the National Security Act, 1980
challenged the validity of his detention on the ground that
there had been inordinate delay on the part of the detaining
authority in forwarding the petitioner's representation to
the State Government and that there had been violation of
the mandatory provisions of sec. 10 of the Act which enjoins
the State Government to take steps to see that the case of
the detenu is considered by the Advisory Board within three
weeks from the date of detention.
Dismissing the writ petition,
HELD: The question whether the representation submitted
by a detenu has been dealt with all reasonable promptness
and diligence is to be decided not by the application of any
rigid or inflexible rule or set formula nor by a mere
arithmetical counting of dates, but by a careful scrutiny of
the facts and circumstances of each case; if on such
examination, it is found that there was any remissness,
indifference or avoidable delay on the part of the detaining
authority/State Government in dealing with the
representation, the Court will undoubtedly treat it as a
factor vitiating the continued detention of the detenu; on
the other hand, if the Court is satisfied that the delay was
occasioned not by any lack of diligence or promptness of
attention on the part of the authority concerned, but due to
unavoidable circumstance or reasons entirely beyond his
control, such delay will not be treated as furnishing a
ground for the grant of relief to the detenu against his
continued detention. [344 C-F]
The instant case falls under the latter category
inasmuch as the court is satisfied on its perusal of the
original file pertaining to this case maintained in the
office of the District Magistrate and the averments
contained in the counter affidavit filed on behalf of the
respondents that the petitioner's representation has been
dealt with all the promptness that was reasonably possible
341
under the circumstances then obtaining and that there was no
avoidable delay on the part of the District Magistrate in
forwarding the petitioner's representation. [344 B; G]
Under sec. 10 of the Act a duty is cast on the
appropriate Government to "place before'; the Advisory Board
constituted under sec. 9 within three weeks from the date of
detention the grounds on which the order of detention has
been made and the representation, if any, made by the person
affected by the order. It is wholly wrong to interpret the
words "place before" as meaning anything more than 'forward
to' cr submit before' the Advisory Board the relevant papers
relating to the detention of the detenu. It is entirely for
the Advisory Board to regulate its schedule of holding
meetings and conducting its business in accordance with the
procedure laid down under sec. 11 of the Act which has
specified a time limit of seven weeks from the date of
detention for the submission of the Board's report to the
appropriate Government. [345 G-H; 346 A-B]
In the present case the Advisory Board had disposed of
the petitioner's case well within the period of seven weeks
specified in sub-sec. (1) of sec. 11, of the Act. [346 C]
JUDGMENT:
ORIGINAL JURISDICTION: Write Petition (Criminal) No. 37
of 1983.
(Under Article 32 of the Constitution)
Mrs. M. Qamaruddin and Rizwan A. Hafiez for the
Petitioner.
O.P. Malhotra, and D. Bhandari for the Respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. Taking into consideration the
fact that this is a petition for a writ of Habeas Corpus
filed under Article 32 the Constitution of India challenging
the legality of the preventive detention of the petitioner
under the provisions of the National Security Act 1980 and
the consequent urgency of the matter, as soon as the hearing
of arguments in the case were completed, we announced the
conclusion reached by us by passing the following order:
“After hearing counsel, appearing on both sides, we
have come to the conclusion that the order of detention
impugned in this Writ Petition does not call for any
interference. The Writ Petition is accordingly
dismissed. Detailed reason will follow.”
We now proceed to state the reasons that weighed with us in
reaching the aforesaid conclusion.
342
By an order dated November 6, 1982, passed by the
District Magistrate, Moradabad, in exercise of the powers
conferred under section 3, sub-section 3 of the National
Security Act, 1980-hereinafter called the Act-the
petitioner, Shri Raisuddin @ Babu Tamchi was ordered to be
arrested by the Senior Superintendent of Police and to be
detained in the District Jail, Moradabad, with a view to his
being prevented from indulging in any activity which may
affect the maintenance of public order. Pursuant there to,
the petitioner was arrested on 8th November, 1982, and
placed under detention. On the same day (8.11.1982), the
petitioner was served with the order of detention and a
memorandum setting out the grounds of his detention. On 12th
November, 1982, the State Government approved the detention
of the petitioner and on the 18th of November, the case was
referred by the State Government to the Advisory Board
constituted under section 9 of the Act. Subsequently, on
24th November 1982, the petitioner submitted his
representation against the order of detention. The said
representation was addressed by the petitioner to the
District Magistrate, Moradabad. The District Magistrate
forwarded the representation on the same day to the Senior
Superintendent of Police, Moradabad, for his comments on the
submissions contained in the letter. On the 27th of
November, 1982, the Senior Superintendent of Police
submitted his comments to the District Magistrate.
Thereafter, on 3rd December, 1982, the District Magistrate
sent a report to the State Government enclosing the
representation as well as the comments submitted by the
Senior Superintendent of Police. The aforesaid papers
despatched from Moradabad were received by the State
Government on the 6th December, 1982. On 9th December, 1982,
the State Government considered the petitioner’s
representation and rejected the same. Simultaneously, on the
same day, the State Government forwarded the representation
of the petitioner to the Advisory Board. On 10.12.1982, the
Advisory Board met to consider the case of the petitioner,
gave a personal hearing to the petitioner and drew up its
report holding that there was sufficient cause for the
detention of the petitioner. The report of the Advisory
Board was received by the State Government on 12th December,
1982, and on 21st December, 1982, the State Government
confirmed the detention order under section 12 of the Act.
The petitioner was informed about the order of confirmation
on 24.22.1982.
Though a faint attempt was made before us by the
counsel for the petitioner to contend that the grounds of
detention. served on the petitioner did not disclose any
material relevant under section 3 of
343
the Act, there is no scope at all for urging such a
contention in the present case. The imputation against the
petitioner is that he was inciting and fomenting communal
hatred and violence and creating an atmosphere of fear and
tension in the town of Moradabad as a result of which the
schools, colleges and shops were remaining closed in the
town and terror reigned in the whole town. Two criminal
cases had been registered against him under section
147/353/153A I.P.C./7 Criminal Law Amendment Act. As there
was a possibility of his being released on bail and
continuing to indulge in such activities which were greatly
prejudicial to the maintenance of public order, it was
considered necessary by the detaining authority to place the
petitioner under detention. Having regard to the situation
then prevailing in the town of Moradabad which was
unfortunately the scene of grave communal disturbances, it
is impossible to countenance the contention advanced on
behalf of the petitioner that the grounds set out in support
of the order of detention are irrelevant for sustaining an
order of detention being made under section 3 of the Act.
The next argument advanced on behalf of the petitioner
was that there had been inordinate delay on the part of the
detaining authority in forwarding the petitioner’s
representation to the State Government. The petitioner had
addressed his representation not to the State Government as
contemplated by section 8 of the Act, but to the District
Magistrate, Moradabad. It was received by the District
Magistrate on the 24th of November and promptly, on the same
day, the District Magistrate forwarded it to Senior
Superintendent of Police for the latter’s comments. The
comments of the Senior Superintendent of Police were
received in the office of the District Magistrate on the
27th November but it was only on the 3rd December that the
District Magistrate forwarded his report to the State
Government enclosing the petitioner’s representation and the
comments of the Senior Superintendent of Police. It was
vehemently argued by the counsel for the petitioner’s that
there had been undue and unexplained delay on the part of
the detaining authority in forwarding the petitioner’s
representation to the State Government inasmuch as a period
of nearly six days had elapsed between the receipt of the
comments of the Senior Superintendent of Police in the
office of the District Magistrate and the submission of his
report to the State Government. The original file pertaining
to this case maintained in the office of the District
Magistrate was produced before us for our perusal by Shri
O. P. Malhotra, the learned Senior Advocate appearing on
behalf of the respondents. It is seen therefrom that during
344
the period from 28th November to the evening of the 1st
December, 1982, the District Magistrate had to emergently
leave his headquarters because of the disturbances that had
occurred in other localities within his Jurisdiction where
his presence was urgently needed for tackling the explosive
situation. After he returned to the headquarters on the
evening of 1st December, the District Magistrate without
losing any further time forwarded the petitioner’s
representation to the State Government on the 3rd December
together with his report and the comments received from the
Senior Superintendent of Police. We are fully satisfied on
our perusal of the file and the averments contained in the
counter affidavit filed on behalf of the respondents that
the petitioner’s representation has been dealt with by the
District Magistrate with all the promptness that was
reasonably possible under the circumstances then obtaining
in Moradabad city and the surrounding areas and that the
charge of inordinate delay levelled by the petitioner is
baseless. In this context we consider it necessary to
emphasise that the question whether the representation
submitted by a detenu has been dealt with all reasonable
promptness and deligence is to be decided not by the
application of any rigid or inflexible rule or set formula
nor by a mere arithmetical counting of dates, but by a
careful scrutiny of the facts and circumstances of each
case; if on such examination, it is found that there was any
remissness, indifference, or avoidable delay on the part of
the detaining authority/State Government in dealing with the
representation, the Court will undoubtedly treat it as a
factor vitiating the continued detention of the detenu; on
the other hand, if the Court is satisfied that the delay was
occasioned not by any lack of deligence or promptness of
attention on the part of the authority concerned, but due to
unavoidable circumstances or reasons entirely beyond his
control, such delay will not be treated as furnishing a
ground for the grant of relief to the detenu against his
continued detention. As already indicated, the case before
us falls under the latter category inasmuch as we are
satisfied that there was no avoidable delay on the part of
the District Magistrate in forwarding the petitioners
representation.
The last point urged on behalf of the petitioner is
that there has been a violation of the provisions of the
section 10 of the Act because the Advisory Board had not
considered the case of the petitioner within three weeks
from the date of detention. As already noticed, the
petitioner submitted his representation to the District
Magistrate against the detention only on 24.11.1982 even
though he had been arrested and placed under detention on
8th November. The
345
said representation reached the State Government on 6th
December, 1982. In the meantime, the petitioner’s case had
been referred by the State Government to the Advisory Board
on the 18th November itself. The representation received
from the petitioner was forwarded by the State Government to
the State Advisory Board on 9th December, 1982. The Advisory
Board held its meeting on 10th December, 1982 and, after
affording a personal hearing to the petitioner, made its
report finding sufficient cause for the detention of the
petitioner. The argument put forward on behalf of the
petitioner is that section 10 mandatorily enjoins the State
Government to take steps to see that the case of the detenu
is considered by the Advisory Board within three weeks from
the date of detention. We are unable to see any merit in
this contention. Section 10 reads.
“Save as otherwise expressly provided in this Act, in
every case where a detention order has been made under
this Act, the appropriate Government shall, within
three weeks from the date of detention of a person
under the order, place before the Advisory Board
constituted by it under section 9, the grounds on which
the order has been made and the representation, if any,
made by the person affected by the order, and in case
where the order has been made by an officer mentioned
in sub-section (3) of section 3, also the report by
such officer under subsection (4) of that section.”
Under the section, a duty is cast on the appropriate
Government to “place before” the Advisory” Board constituted
under section 9 within three weeks from the date of
detention, the grounds on which the order of detention has
been made and the representation, if any, made by the person
affected by the order. The petitioner’s counsel wanted us to
interpret the words “place before the Advisory Board” as
meaning “get considered by the Advisory Board”. We are
wholly unable to accede to this argument. Under the terms of
the section, the duty cast on the appropriate Government is
to forward to the Advisory Board constituted under section 9
within three weeks from the date of detention, the papers
pertaining to the detention of the detenu consisting of the
grounds on which the order has been made, the
representation, if any, made by the person affected by the
order, etc. It is to be remembered that the Advisory Board
is not an entity subordinate to the Government. It is a
wholly independent body consisting of persons who are or
have been or are qualified to be
346
appointed as Judges of a High Court. It is entirely for the
Advisory Board to regulate its schedule of holding meetings
and conducting its business in accordance with the procedure
laid down under section 11 of the Act which has specified a
time limit or seven weeks from the date of detention for the
submission of the Board’s report to the appropriate
Government. It is, therefore, wholly wrong to interpret the
words “place before” as meaning anything more than forward
to or submit before the Advisory Board the relevant papers
relating to the detention of the detenu. In the present
case, the Advisory Board has disposed of the petitioner’s
case well within the period of seven weeks specified in sub-
section (1) of Section 11 of the Act. This contention of the
petitioner is also, therefore, devoid of substance.
The conclusion that emerges from the foregoing
discussion is that there is no ground whatever justifying
any interference with the order of detention passed against
the petitioner and the writ petition is, therefore, only to
be dismissed.
H.S.K. Petition dismissed.
347