JUDGMENT
A.V. Savant, J.
1. Heard the learned Counsel.
2. This is a petition by Sunita Gopal Rajwani, wife of the detenu Gopal Thavardas Rajwani, who has been detained under the order-Exhibit “A” dated 5th August, 1995 issued by the Commissioner of Police, Thane, in exercise of his powers under sub-section (2) of section 3 of the National Security Act, 1980. The grounds of detention furnished to the detenu set out the facts in detail, but in view of the contentions raised before us, we do not think it necessary to refer to the facts in detail. Suffice it to say that what has been alleged against the detenu is that the detenu was collecting-extorting large amounts of monies from the builders constructing buildings in Ulhasnagar, District Thane. It is further alleged that the detenu’s associates were extorting monies from the builders and causing panic and fear in the minds of the builders and the residents of the area. Some cases were registered against the detenu. But he was able to obtain bail and even anticipatory bail in some cases. A list of such cases has been enumerated in the grounds of detention, with the different orders of bail granted either by the Sessions Court or by the High Court. It is then concluded that having regard to the past conduct of the detenu, he was likely to revert to criminal activities thereby disturbing public order and with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under sub-section (2) of section 3 of the National Security Act, 1980. The grounds of detention are accompanied by the relevant material. The period of detention is one year from 7th August 1995.
3. The petition was filed on 16th September, 1995 in this Court and Rule was issued on 25th September, 1995, returnable within eight weeks. Affidavits-in-reply have been filed by (i) Commissioner of Police, Thane, Shri R.H. Mendonca; ii) Shri M.D. Ambade, Desk Officer, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, iii) Shri C.S. Awale, Jailor Gr. II, attached to the Nashik-Road Central Prison, District Nashik; and iv) Shri Ishwar Singh, Desk Officer, Ministry of Home Affairs, Government of India, New Delhi. As stated earlier, we are not setting out the pleadings in detail since the only contention that has been raised before us, which we are inclined to uphold, is the unexplained delay on the part of the State Government in considering the representation of the detenu made on 28th August, 1995. The averments in this behalf are to be found in para 3, ground (xiii) of the petition. The relevant dates are as under.
4. The order of detention was issued on 5th August, 1995. It was served on the detenu on the 7th August, 1995. The detenu sent the representation on the 28th August, 1995 addressed to the Principal Secretary (Preventive Detention), Government of Maharashtra, Home Department, Mantralaya, Mumbai, through the Superintendent, Nasik Road Central Prison, Nasik. It was forwarded by the said Superintendent on 28th August, 1995 itself and was received in the Home Department, at Mumbai, on 30th August, 1995. The representation has been rejected on 16th September, 1995 and a reply to that effect was sent to the detenu on 18th September, 1995, which was served on the detenu in the Nasik Road Central Prison on 20th September, 1995. The grievance of the detenu is that there is no explanation for the period from 30th August, 1995 to 20th September, 1995 and this violates his right under Article 22(5) of the Constitution of India, as also the statutory right under section 8 of the National Security Act, 1980. Clause (5) of Article 22 of the Constitution requires that 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. Section 8 of the National Security Act dealing with the obligation to disclose the grounds of order of detention to a person affected by the order similarly provides that when any person is detained in pursuance of a detention order, the authority making the order, shall as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the ground on which the order has been made and shall afford him the earliest opportunity of making representation against the order to the appropriate Government. What is contended before us is that the detenu’s rights, both under Article 22(5) of the Constitution and section 8 of the Act would be illusory and meaningless unless the representation is considered expeditiously. We will refer to some of the authorities in this behalf in the later part of the Judgment.
5. In reply to the aforesaid contention, regarding the unexplained delay on the part of the State Government in considering the representation, there is nothing in the affidavit of the detaining authority viz. the Commissioner of Police, Thane. The relevant pleadings are to be found in the affidavit of Shri Ambade, the concerned Desk Officer. He has set out the progress in the matter of consideration of the representation in para 2 of his affidavit and since we are disposing of this petition only on the said ground of unexplained delay on the part of the State Government in considering the representation against the order of detention, it would be necessary to reproduce the relevant portion of the said affidavit
“2. With reference to para 3(XIII) of the petition, I say that a copy of the representation, dated the 28th August, 1995 addressed to the Principal Secretary (Preventive Detention), Government of Maharashtra, Home Department, Mantralaya, Mumbai, was forwarded by the Superintendent, Nasik Road Central Prison, Nasik with his letter dated the 28th August, 1995 which was received in the Home Department on 30th August, 1995. As the material was available on record, the representation was scrutinized and was submitted through the officers concerned of the Home Department to the Deputy Chief Minister (Home) for his consideration on 2nd September, 1995. On 3rd September, 1995 there was public holiday. The said file was received in the office of the Deputy Chief Minister (Home) on 4-9-95. On 9th and 10th September, 1995 there was public holidays. The Deputy Chief Minister (Home) was on tour and was not present in Mumbai for the period from 11-9-95 to 13-9-95. He returned to Mumbai on 14-9-95. He carefully considered the representation and rejected the same on 16-9-95. On 17-9-95 there was public holiday. The file was received back in the Home Department on 18-9-95 from the office of the Deputy Chief Minister. Accordingly, a reject reply was given to the detenu vide Government Letter, dated the 18-9-95 through the Superintendent, Nasik Road Central Prison, Nasik. The same has been served on the detenu on 20-9-95. It is respectfully submitted here that the Deputy Chief Minister is the Minister in charge of the Departments of Home and Energy and he has to look after the Business of these Departments. He was extremely busy in attending the very urgent Government work such as law and order situation in the State, etc. Because of very busy schedule of the Hon’ble Deputy Chief Minister with important and urgent matters, the representation of the detenu could not be attended to and considered by him during the period from 4-9-95 to 8-9-95. Thus the representation addressed to the State Government has been considered independently and without inordinate delay”.
In the affidavit of Shri Awale, the concerned Jailor from Nasik, there is nothing relevant to this point. Similarly, in the affidavit of Shri Ishwar Singh, the concerned Desk Officer, in the Ministry of Home Affairs, Government of India, New Delhi, there is nothing on this aspect of the matter.
6. Reverting to the affidavit of the Desk Officer Shri Ambade, it appears that the representation was received in the Home Department on 30th August, 1995. The Desk Officer says that the material was available on record. But the next statement is that it was scrutinised and submitted by the officer concerned to the Deputy Chief Minister on 2nd September, 1995. The offices of the Home Department and that of the Deputy Chief Minister are on the same floor. The file is supposed to have been received by the Deputy Chief Minister’s Office on 4th September. Nothing was done about this representation of a detenu on 4th, 5th, 6th, 7th, 8th, 9th and 10th. It is brought to our notice that 9th September was second Saturday and was a holiday and 10th September, 1995 was a holiday being Sunday. Assuming that the matter could not be considered on 9th and 10th September there is no explanation in the earlier part of para 2 of the affidavit of the Desk Officer as to why no steps were taken between 4th September, and 8th September, 1995. Then, it is stated that the Deputy Chief Minister was on tour from 11th September to 13th September. Normally, in such matters, our experience is that the details of the alleged tours are stated on affidavit. Nothing has been disclosed here as to whether the tours were to the nearby places or far-off places. The Deputy Chief Minister is supposed to have returned to Bombay on 14th September. Nothing has been stated as to why the matter was not considered on the 14th September and 15th September. It does appear that the representation was considered for the first time on 16th September and was rejected on the same day. It is then stated that since 17th September was a public holiday, being a Sunday, the file was received back in the Home Department on the 18th September, 1995 and the reply of rejection was given to the detenu by letter dated 18th September, which was served on him on 20th September. Then, there is an omnibus statement that since the Deputy Chief Minister is in charge of the Departments of Home and Energy he was extremely busy attending to urgent work of Home Department, such as law and order situation in the State and because of very busy schedule of important and urgent matters, the representation of the detenu was not attended to and considered during the period from 4th September to 8th September, 1995. It is, therefore, stated that the State Government has considered the representation without inordinate delay. It is necessary to consider this explanation in the light of the legal position settled by several decisions of the Supreme Court, though we may only refer to a few, so that we do not burden this Judgment.
7. In this behalf, it is necessary to bear in mind the approach of the Supreme Court in dealing with the unexplained delay in the matter of considering the representation against the order of detention. What is at stake is life and liberty of the citizen and, therefore, it is necessary to ensure that constitutional safeguards embodied in Article 22(5) of the Constitution are strictly observed. It was observed by the Supreme Court in the case of Smt. Shalini Soni v. Union of India and others, reported at , that the obligation imposed on the detaining authority by Article 22(5) to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19, the courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu.
8. In the case of Mohinuddin v. District Magistrate, Beed and others, , the Supreme Court had occasion to deal with a similar question under the National Security Act where this Court had accepted the explanation of the State Government about the delay on the part of the Chief Minister in considering the representation dated 22nd September, 1986, which was rejected by the Chief Minister on 17th November, 1986. In the affidavit-in-reply in Mohinuddin’s case, it was pointed out that on the receipt of the representation para-wise comments were called for from the detaining authority viz. the District Magistrate, Beed on 26th September, 1986, which were received by the Government on 6th October, 1996. Thereafter, the representation was processed and was rejected by the Chief Minister on 17th November, 1986. It was further pointed out that the Chief Minister was preoccupied with important matters of State involving tours, as well as meetings outside the State capital. Two Cabinet Meetings were held at Pune and Aurangabad during 28th October, 1986 and 12th November, 1986 for two days each at Pune and Aurangabad. Dealing with such a situation, the Supreme Court referred to its earlier decision in the case of Harish Pahwa v. State U.P. and others, and several other decisions and came to the conclusion that when the life and liberty of a citizen is involved, it is expected that the Government will ensure that constitutional safeguards embodied in Article 22(5) of the Constitution are strictly observed. The Supreme Court observed that it was necessary to repeat that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws. It was reiterated that the history of personal liberty is largely the history of insistence on observance of the procedural safeguards.
9. Then, a reference was made by the Supreme Court in Mohinuddin’s case (supra) to the decision in the case of Narendra Purshotam Umrao v. B.B. Gujral and others, . Dealing with the nature and dual obligation of the Government and the corresponding dual right in favour of the detenu under Article 22(5) of the Constitution and it was concluded that the fact that Article 22(5) enjoins upon the detaining authority to offer to the detenu earliest opportunity to make a representation must impliedly mean that such representation must when made, be considered and disposed of as expeditiously as possible, otherwise it is obvious that the constitutional obligation to afford him the earliest opportunity to make a representation loses both its purpose and meaning. Finally, the Supreme Court concluded in para 8 of its Judgment in Mohinuddin’s case at page 1982 of the report that there was no explanation at all as to why the Chief Minister had not attended the representation for a period of 25 days. It was observed as under :—
“There was no reason why the representation submitted by the appellant could not be dealt with by the Chief Minister with all reasonable promptitude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation. In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, the further detention of the appellant must be held illegal and he must be set at liberty forthwith”.
10. Mr. Gupte, the learned Counsel for the petitioner, then placed reliance on the Supreme Court decision in the case of Moosa Husein Sanghar v. State of Gujarat and others5, reported at . The Supreme Court considered the earlier two decisions of the Constitution Bench in Jayanarayan Sukul v. State of West Bengal, and K.M. Abdulla Kunhi v. Union of India. In Moosa Husein Sanghar’s case, the representation dated 15th March, 1991 was received by the detaining authority on March 18, 1991 and the case of the appellant was referred to the Advisory Board on March 25, 1991 and representation was actually considered by the Advisory Board on April 30, 1991. The date of receipt of the representation by the State Government in that case appears to be March 20, 1991. It was not the case of the respondent in Moosa Husein Sanghar’s case that there was no time for the State Government to consider the said representation of the appellant before referring the matter to the Advisory Board on March 25, 1991. The only explanation that was given by the State Government was that there were holidays on March 23, 1991 and March 24, 1991 and there was hardly 5 days’ time with the authorities between the time they received the representation of the appellant and the time reference was made to the Advisory Board. The State Government had not given any reason to indicate that the said period was insufficient for the proper consideration of the representation. Moreover, even after the reference was made on March 25, 1991, the representation of the detenu could have been considered by the State Government and it could have been forwarded to the Advisory Board alongwith the decision of the State Government on the said representation. Instead of adopting this course, the State Government forwarded the representation to the Advisory Board and took up the said representation for consideration after the receipt of the opinion of the Advisory Board and rejected it by order dated May 13, 1991. As a result, the representation of the detenu which was submitted on March 15, 1991 was considered by the State Government only on May 13, 1991. It was, therefore, held that there was inordinate delay on the part of the State Government in considering the representation of the detenu and the said delay in the disposal of the representation had rendered the continued detention of the detenu illegal.
11. Our attention was then invited to the recent Supreme Court decision in the case of Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad and others, reported at . This case has been decided on February 13, 1996. The Supreme Court has reviewed its earlier decision on the question of unexplained delay and observed in para 21, at page 203 as under:—
“21. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government an its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the “liberty and freedom” to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest”.
In Kundanbhai Dulabhai Shaikh’s case, the representation dated 23rd August, 1995 was received in the office of the Chief Minister on 25th August, 1995 and was ultimately disposed of on 12th September, 1995. During this period, the file was being processed in the Government Department. The internal movement of the file took four days. The inaction in taking up the representation for 6 days was sought to be explained by showing in the counter affidavit that there were 40 to 50 representations pending for disposal and they were to be taken up chronologically. The Supreme Court did not approve of this process of placing the detenu’s representation in queue without giving any precedence over the other representations which were not stated to be relating to detention orders. It was further observed that even if they related to preventive detention, then such of those which were ready for disposal and in respect of which comments from various departments had been gathered and other formalities completed, should have been disposed of immediately and should not have been kept pending on the ground of chronological disposal by saying that the representation filed earlier by other detenues were still to be disposed of. These observations are to be found in para 22 of the Judgment of the Supreme Court at page 204 of the report. In the result, the Supreme Court allowed the petition of the detenu and set aside the order of detention.
12. After referring to the above decisions of the Supreme Court, Mr. Gupte also invited our attention to two decisions of this Court, to which we will make a brief reference. The first is the decision of a Division Bench in Criminal Application No. 180 of 1982 of Harilal R. Yagnik v. The State of Maharashtra & others, decided on 12/13/14th July, 1982. This was a case where the representation dated 21st April, 1982 was rejected on 24th May, 1982. However, the explanation offered for 19 days’ delay in the office of the Chief Minister was that the Chief Minister was on tour from 1-5-1982 to 3-5-1982, then on 8th and 9th May, 1982, on the 12th and 13th May, 1982 and from 15th to 18th May, 1982. In para 33 of the Judgment, this Court observed that the Chief Minister was at the Head quarters from 4th to 7th May, 1982 and also from 9th to 12th May, 1982. On 8th and 9th May he was not on tour though he was at Mahabaleshwar. No explanation was offered as to why on 4th, 5th, 6th, 10th and 11th May, 1982, which were working days, the representation was not considered by the Chief Minister. It was observed that the question cannot be looked at only from the point of view of the detaining authority or the authority, who is competent to consider his representation. The question must be looked at from the point of view of the detenu whose valuable right of personal liberty was involved. It was, therefore, held that the unexplained delay must result in the detention order being struck down.
13. Recently, another Division Bench in Writ Petition No. 9 of 1996 of Smt. Shakuntala Motiram Patil v. K.S. Shinde and others, decided on 11th April, 1996 took a similar view where there was no explanation as to why the delay in the office of the Home Department and the Deputy Chief Minister remained unexplained. The delay was of 10 days and it was held that unexplained delay of 10 days in the consideration of representation made by the detenu had infringed his valuable right under Article 22(5) of the Constitution. In the result, the order of detention was quashed.
14. As against the above decisions, Mr. Bagwe, the learned Asstt. Public Prosecutor invited our attention to the following three decisions of the Supreme Court:—
i) In Mst. L.M.S. Ummu Saleema v. B.B. Gujral and another, .
The representation was received by the detaining authority on 13th February, 1981 and it was disposed of on 19th February, 1981. The detaining authority Shri B.B. Gujral was not available from 13th to 16th February, 1981 as he had gone out of India. There was no delegation of power to consider the representation during absence of the said officer. Under the circumstances, the Supreme Court held that there was no unaccountable or unreasonable delay in the disposal of the representation by the detaining authority.
ii) In Kamlabai (Smt.) v. Commissioner of Police Nagpur and others, .
the delay was short and the Supreme Court observed that the delay by itself could not be a ground which proves to be fatal if there was an explanation. It was further observed that short delay cannot be given undue importance having regard to administrative actions. On the facts of the case it was held that there was no inordinate delay so as to warrant interference. It was also observed that the period of detention had almost come to an end and for all these reasons, the appeal filed by the wife of the detenu was dismissed.
iii) In Smt. Panna w/o Pandharinath L. Waringe v. A.S. Samra and others, , the High Court had observed that having regard to the facts and circumstances, the time-lag between 20th May, 1992 and 28th May, 1992 did not justify the conclusion that there were any laches on the part of the Central Government in disposing of the detenu’s representation expeditiously. Even for the earlier period, between 5th May, 1992 and 20th May, 1992 having regard to the steps taken by the State Government in calling for parawise comments from the detaining authority, the High Court had come to the conclusion that the delay was not unexplained. These observations are to be found in para 4 of the Supreme Court’s decision where the High Court’s conclusions are reproduced at pages 1274 and 1275. Thereafter, in para 6 at page 1276, the Supreme Court observed that it did not find any infirmity in the above quoted reasoning of the High Court in respect of the ground of delay that was urged before the Supreme Court.
15. In the light of the law laid down by the Supreme Court in its earlier decisions, to which we have made a reference in paras 7 to 11 above, including the decisions of the Constitution Bench, to which a reference has been made in A.I.R. 1994 S.C. 1470 Moosa Husein Sanghar v. State of Gujarat and others, and in Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad and others, in our view, the ratio of the decisions in the cases cited by Mr. Bagwe can have no application to the facts of the case before us. As set out above, the representation was received in the office of the Deputy Chief Minister on 2nd September, 1995. We are assuming that the matter would not be considered on 9th and 10th September, 1995 viz. on Saturday and Sunday. There is no explanation as to why no steps were taken on 4th, 5th, 6th, 7th and 8th September, 1995. There is also no explanation as to why no steps were taken on 14th and 15th September, 1995. A bald statement, without any details thereof, that there was urgent Government work with important and urgent matters, cannot be accepted as a proper explanation in view of the decision of the Supreme Court in Kundanbhai Dulabhai Shaikh’s case (supra). We may have adopted a different approach where the explanation gives the details of the alleged tours, as also the details of the busy schedule. No such details have been furnished to us though we had repeatedly enquired as to whether this was possible. We must bear in mind the consistent approach of the Supreme Court in such matters where the Court had insisted on the date-wise details of the action taken or the reasons for the inaction. We have already reproduced above in para 11 the strong observations made by the Supreme Court in para 21 of its decision in Kundanbhai Dulabhai Shaikh’s case. There can be no doubt that the obligation imposed on the detaining authority by Article 22(5) to afford to the detenue the earliest opportunity of making a representation, carries with it the imperative implication that representation shall be considered at the earliest opportunity. The Supreme Court has repeatedly observed that courts have a duty to rigidly insist that the procedure in matters of preventive detention must be strictly observed and a breach of the procedural imperative must lead to the release of the detenu. It has to be also borne in mind that it is not only the convenience of the authority which is called upon to consider the representation that is relevant, the question must be looked at from the point of view of the detenu whose personal liberty is at stake. He is detained without a trial
16. In this view of matter, we are left with no alternative but to come to the conclusion that the delay between 4th and 16th September, 1995 has not been properly explained in the facts of this case. The affidavit filed by the Desk Officer Shri Ambade lacks in furnishing the relevant details date-wise and no explanation is afforded for the inaction during the period between 4th and 8th September, 1995. Similar is the position for the two days viz. 14th and 15th September, 1995. Hence, on account of unexplained delay in considering the representation of the detenu, the order of detention and the continued detention of the detenu is hereby declared illegal and is, therefore, quashed.
17. Rule is made absolute and the detenu is ordered to be set at liberty forthwith unless he is otherwise required to be detained. No order as to costs.
