JUDGMENT
Vishnu Sahai, J.
1. This petition under Article 226 of the Constitution of India preferred by the petitioner, who is the real brother of the detenu Ashok @ Babu s/o Yeshwant Manjarekar, seeks to impugn the order dated 13th February, 1995 passed by respondent No. 1 detaining the detenu under section 3(2) of the National Security Act, 1980.
2. The detention order was served on the detenu on 28th July, 1995.
3. The prejudicial activities of the detenu necessitating the issuance of the detention order are contained in the grounds of detention which are annexed as Exhibit ‘C’ to the petition. In our view, recapitulating those grounds would not be necessary for the disposal of this petition.
4. The short ground on which Mr. Prakash Naik, learned Counsel for the petitioner, challenges the detention order is the inordinate delay on the part of respondent No. 3, the Superintendent of Jail, Kolhapur Central Prison, Kalamba, Kolhapur, in forwarding the representation of the detenu to the respondent No. 2 i.e. State Government, resulting in the latter very belatedly disposing of the same. Mr. Naik urged that on 13th September, 1995, the representation of the detenu addressed to the State Government was sent by his Counsel to respondent No. 3 and the same was received by him on 16th September, 1995. He further urged that the respondent No. 3 sat over this representation for nearly 51 days and despatched the same to the State Government as late as 4th November, 1995.
5. The above mentioned ground has been replied to in paragraphs 2 and 3 of the return filed by Prakash Pandharinath Joshi, Jailor Group-II, attached to Kolhapur Central Prison, Kolhapur, wherein the detenu has been detained. In paragraph 2 he has admitted that the detenu’s representation was received in Kolhapur Central Prison on 16th September, 1995 and that very day signatures of the detenu were obtained on it. In paragraph 3, he has admitted that it was forwarded to the State Government respondent No. 2 on 4th November, 1995 upon receiving a wireless message from respondent No. 2. In the same paragraph he has deposed that inadvertently it was not forwarded to the State Government immediately.
Thus, the admitted position is that the respondent No. 3, the Superintendent of Jail, Kolhapur Central Prison, Kolhapur, sat over the representation of the detenu for a period of 51 days without any justifiable explanation.
6. Article 22(5) of the Constitution of India mandates:—
“22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”
The Apex Court has held in a catena of decisions that in the fundamental right conferred on the detenu by Article 22 of the Constitution of India, of making a representation at the earliest, is also implicit the obligation on the part of the concerned authorities of disposing of that representation at the earliest.
In the instant case, there is no escape from the fact that without any cogent explanation there has been an inordinate delay of fifty-one days by the State Government (respondent No. 2) in disposing of the representation of the detenu. This has resulted in the infraction of the fundamental right of the detenu conferred by Article 22 of the Constitution of India and has rendered his continued detention illegal and unsustainable in law.
7. We wish to emphasise that this Court zealously guards fundamental rights and would not condone their infraction unless the most convincing and authentic justification exists and inadvertence of officers of State can never be such a justification. And if an infraction of fundamental right has resulted from it, the State has to suffer the consequences.
8. In the result, we have no option but to allow this petition. The impugned detention order dated 13th February, 1995 passed by the respondent No. 1 detaining the detenu Ashok @ Babu s/o Yeshwant Manjarekar under section 3(2) of the National Security Act is quashed and it is directed that he be set at liberty forthwith unless wanted in some other case.
Rule is made absolute.