JUDGMENT
H.H. Kantharia, J.
1. By this habeas corpus petition under Article 226 of the Constitution, the petitioner-detenu (hereinafter referred to as ‘the detenu’) takes exception to the detention order dated 2-5-1992 passed against him by the Commissioner of Police, Greater Bombay, under sub-section (2) of section 3 of the National Security Act, 1980.
2. It was alleged against the detenu that he had been indulging in acts of physical violence by making use of dangerous weapons such as choppers and iron rods and the like and waylaying people and committing various offences punishable under Indian Penal Code. It was also alleged against him that the people in the localities of Ambyachi Bharni, Shivneri, Tanaji Wadi, Tulshet Pada, Sai Hill, Nardas Nagar, Pipe Line, Tembipada of Bhandup (West) were mortally afraid of him on account of his nefarious and notorious activities. He is considered to be a weapon wielder, desperado and a gangster. Therefore, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, the Bombay Police Commissioner took a decision to detain him under sub-section (2) of section 3 of the National Security Act, 1980.
3. In order to challenge the detention order, the detenu raised number of grounds in his writ petition. However, it is not necessary to deal with them all as the petition should succeed on a single ground that his representation was not considered by the Central Government as expeditiously as possible and there was considerable delay in doing so which has not been satisfactorily explained. Mr. Pradhan, learned Counsel appearing for the detenu, accordingly urged that admittedly the detenu had submitted his representation on 30-10-1993 to the jail authorities for being transmitted to the State Government and the Central Government for their consideration. The said representation was admittedly received by the Central Government on 19-11-1993. Mr. Pradhan pointed out that the representation in question was admittedly rejected by the Central Government on 12-12-1993 and the delay in considering the representation of the detenu between 19-11-1993 and 12-12-1993 has not been satisfactorily explained. Mr. Pradhan then urged that from the affidavits filed on behalf of the State Government and the Central Government it is crystal clear that the delay in considering the representation of the detenu was on account of the fact that the Central Government was awaiting the opinion of the Advisory Board constituted under the National Security Act which opinion, further submitted by Mr. Pradhan, was not binding on the Central Government as the Central Government could take its own decision, the report of the Advisory Board notwithstanding.
4. We find substance in the arguments of Mr. Pradhan because the record shows that the representation of the detenu dated 30-10-1993 which was received by the Central Government on 19-11-1993 was processed and a wireless message was sent by the Central Government to the State Government on 23-11-1993 enquiring about the opinion of the Advisory Board. On 24-11-1993 the State Government gave a reply to the Central Government that the report of the Advisory Board was not yet received. Thereafter the State Government received the report of the Advisory Board on 26-11-1993 and thereafter it was intimated by the State Government to the Central Government by a wireless message on 1-12-1993. In the meanwhile, once again on 26-11-1993 the Central Government had sent wireless message to the State Government reminding about the opinion of the Advisory Board. And finally after receipt of the opinion of the Advisory Board on 1-12-1993, the Central Government rejected the representation of the detenu on 12-12-1993. Thus, there was delay in considering the representation of the detenu by the Central Government between 19-11-1993 and 12-12-1993 which delay is not satisfactorily explained. Mr. Satpute, learned Counsel appearing on behalf of the Central Government, urged that the affidavit of Ishwar Singh, Desk Officer, Ministry of Home Affairs of the Government of India, in paras 6 and 7, shows that it was not merely the receipt of the opinion of the Advisory Board that was awaited by the Central Government but the Central Government also awaited parawise comments from the State Government. A perusal of paras 6 and 7 of the affidavit of Ishwar Singh does not show that such parawise comments were asked for by the Central Government from the State Government and all that is mentioned in these paras is that a certain vital information was required by the Central Government which was sought to be obtained from the State Government through a wireless message dated 19-11-1993. But the fact remains that the Central Government was awaiting the report of the Advisory Board. The fact of the matter is that it is not on account of either the vital information or the parawise comments which the Central Government required to consider the representation of the detenu but the opinion and report of the Advisory Board. It is no doubt true that after the intimation of the report of the Advisory Board on 1-12-1993 the Central Government took immediate steps and considered and rejected the representation of the detenu on 12-12-1993. But the crucial point is why should the Central Government wait for the report of the Advisory Board right from 19-11-1993 to 12-12-1993 which report is not binding on the Central Government. The position in law is now well settled that if the opinion of the Advisory Board is in favour of the detenu, the same is binding on the Government and the detenu has to be released on the opinion of the Advisory Board. But if the report is against the detenu, even then the Central Government on its own can consider the representation of the detenu and release him if the Central Government so thinks fit and proper by revoking the detention order. In other words, the opinion of the Advisory Board notwithstanding, it is the duty of the Central Government to independently consider the representation of the detenu and take an independent decision whether or not to revoke the detention order and release the detenu. That being the position in law, it is not understandable as to why the Central Government should wait for the report of the Advisory Board from 19-11-1993 to 12-12-1993 and consider the same and thereafter take a decision one way or the other. To put is differently, the Central Government did not consider the representation of the detenu as expeditiously as possible and caused the delay in considering the same between 19-11-1993 and 12-12-1993 which delay has not been satisfactorily explained. The conclusion, therefore, is inevitable and irresistible that the constitutional right guaranteed to the detenu under Article 22(5) is violated. Therefore, the continuation of the impugned detention order cannot be sustained in law and the same has got to be quashed and set aside.
5. In the result, the writ petition succeeds and the same is allowed. The continuation of the impugned detention order is quashed and set aside and the petitioner-detenu is ordered to be set at liberty forthwith unless required in some other case. Rule is accordingly made absolute.