JUDGMENT
Om Prakash, J.
1. Petitioner Yidya Singh has been detained by an order dated 12-4-1991 passed under Sub-section (2) of Section 3 of the National Security Act. The detention order and grounds of detention were served on him on 13-4-1991 and 14-4-1991 respectively. The detention order was confirmed by the State Government on 22-4-1991. The petitioner filed a representation against his detention on 24-4-1991. It was rejected by the State Government on 10-6-1991 and the order of rejection was communicated to the petitioner on 11-6-1991.
2. Petitioner’s involvement in some criminal cases has been relied upon by the detaining authority, District Magistrate, Gopalganj, for passing the detention order. His involvement in one of such cases, namely, Vijaypur P.S. case No. 43/85, dated 13-11-1986 has been relied upon by the detaining authority in the following terms:
4. Vidya Singh was a non F.I.R. accused in Vijaypur P.S. Case No. 43/85, dated 13-11-1986 under Sections 363/364/366/386, IPC. The complainant of this case Kanhai Ram son of Lakhan Ram of village Ahiyapur registered this case against Vinod, Shahi and Anirudh Shahi regarding the kidnapping of his daughter Bhanu Devi. In the process of investigation against Vidya Singh came in this case and was substantiated by the evidence collected. In the special report; of this case which was issued on 9-9-1988 of Vidya Singh. Despite this order being passed on 9-9-1988 till 30-3-1991 the actions of arrest/attachment of property was not carried out. One prominent reason behind non-compliance of the instructions of S.P. appears to be the pressure tactics employed by Vidya Singh and his gang on the local officers. It is not worthy nor that the kidnapped girl Bhanu Devi was also pressurized by the accused of this case. She has succumbed to the pressure and has given statement in court in favor of the accused. In this case charge-sheet has already been submitted against Vidya Singh.
3. Learned Counsel for the petitioner has challenged the detention of the petitioner on the following two grounds only, (1) Non-supply of the copy of the special report issued on 9-9-1988 relied upon by the detaining authority to detain the petitioner has prevented him from making an effective representation against his detention to the State Government and thus it has infringed his right granted under Article 22(5) of the Constitution of India; (2) undue delay in disposal of petitioner’s representation to the State Government has also violated his right granted by Article 22(5).
4. In my view when a person is not named in the F.I.R. as an accused and his name comes up in course of investigation, it is constitutional obligation of the detaining authority to supply copies of the material collected against him in course of investigation including special report, if any, to the petitioner with the grounds for detention to enable him to make an effective representation against his detention. It is immaterial whether copies of such documents relied upon by the detaining authority are demanded by the detune or not. Such documents form a part of the grounds of detention. If copies of such documents are not supplied with the grounds of detention, the detune would be in dark with regard to the material i.e., evidence collected and found against him in course of investigation. In such situation, it would not be possible for the detune to make an effective representation, he would have no real and meaningful opportunity to explain his stand against his detention. When a detune is not afforded proper opportunity to make an effective representation against his detention by the detaining authority, his fundamental right as guaranteed by Article 22(5) of the Constitution of India is apparently violated.
5. In the instant case, undisputedly the Special Report, i.e., the evidence collected against the petitioner in course of investigation in Vijaypur P.S. case No. 43/85 has not been supplied to the petitioner along with the grounds for detention. I am, therefore, of the opinion that the petitioner has been deprived of his constitutional and legitimate right to make an effective representation to the State Government against his detention granted by Article 22(5) of the Constitution.
6. It. has been held in the case of Smt. Salani Sohtti v. Union of India , that the “grounds” must be self-sufficient and self-explanatory. Therefore, copies of documents to which reference is made in the “grounds” must be supplied to the detune as part of the “grounds”. The failure to communicate the factual material as a part of the “grounds” would amount to non-communication of grounds on which the order of detention has been made and thus would infringe Article 22(5).
7. Similarly, it has been held in the case of Kamla v. State of Maharashtra , that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be, supplied to the detune pari passu the grounds of detention. If the documents and materials are supplied later then the detune is deprived of an opportunity of making an effective representation against the order of detention. Before an order of detention can be supported the constitutional safeguard must strictly observed.
8. In the case of M. Zakhir v. Delhi Administration , the Supreme Court has held that it is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detune may make an effective representation immediately instead of waiting for the documents to be supplied with. It is manifest that question of demanding the documents is wholly irrelevant. The infirmity in this regard is violative of the constitutional safeguard enshrined in Article 22(5) of the Constitution of India.
9. Similar views have been expressed by the Supreme Court in the cases of Kirit Kumar v. Union of India ; Ana Carelina D”Soma v. Union of India ; Yumnam Mangibabu Singh v. State of Manipur ; Kailash Pandey v. State of U.P. and Ibrahim Ahmad v. State of Gujarat .
10. Learned Standing Counsel has argued that supply of copy of a document is not necessary if factual inference drawn or gist is given in the grounds. In this connection, he has referred to the decision in the case of Ham Singh v. State of Delhi AIR (38) 1951 SC 270. In this case, order of detention was based upon speeches made by the detune and then it was held that detaining authority need not communicate to the petitioner the offending passages or even the gist of such passenger on pain of having the order quashed if it did not. If the time and place at which the speeches were alleged to have been made are specified and their general nature and effect is also stated these constitute sufficient particulars to enable the detune to make his representation to the authority concerned and the requirement of Article 22(5) are complied with. In my view, this decision is of no assistance of the respondents simply because in the instant case detention order is not based upon speeches, but involvement in a criminal case in which the petitioner is not named in the F.I.R.
11. Another decision relied upon by the learned Standing Counsel is in the case of Wakil Singh v. Jammu and Kashmir , wherein it has been held that grounds must contain the pith and substance of primary facts but not subsidiary facts or evidential details. In that case, detention was made on the grounds of espionage and the basic facts such as the name of notorious Pak agent and courier through whom he was supplying the information about the Indian Army were communicated to the detune. He was further informed about the places in Pakistan which he was visiting and that in lieu of the supply of this information he was receiving money from Pakistan. Then it was held that nothing more was required to be intimated to enable him to make an effective representation. But no basic facts about abduction or kidnapping or extortion showing involvement of the petitioner has been told to him in this case.
12. Learned Standing Counsel has also relied on the decision in the case of Puranlal Lakhanpal v. Union of India . In that case the petitioner was detained for acting in a manner prejudicial to the security of India and the relation of India with foreign powers. And it was held that right of the detune to be furnished with facts or particulars was subject to the limitation mentioned in Clause (6) and even if the grounds communicated were not as precise and specific as might have been desired, the appropriate authority has the right to withhold such facts or particulars, the disclosure of which it considers to be against the public interest. But in the instant case, the petitioner has not been detained for acting in a manner prejudicial to the security of India and the relation of India with foreign powers. He has been detained for abducting kidnapping/extortion and hence privilege under Clause (6) is not available to the detaining authority.
13. Learned Standing Counsel has also referred to the decision in the case of S.V. Parulekar v. D.M. Thana wherein after considering the communication sent to the petitioner the Supreme Court has held that the communication as a whole was not vague and was sufficiently definite to apprise the petitioners of what they were charged and to enable them to give their explanation therefore. But the ground No. 4, quoted above, is not definite to apprise the petitioner of what he is charged and to enable him to give his explanation.
14. Learned Standing Counsel has also relied upon the decision in the case of Raj Kumar Singh v. State of Bihar . In that case, the Supreme Court had found that all the relevant documents were in fact supplied to the detune and no other document was asked for. But in the instant case, admittedly, material document referred to above has not been supplied.
15. Learned Standing Counsel has also referred to a decision of the Supreme Court in the case of Haridas Amur Chand Saha v. V.K.L. Verma . It has been held in this case that it is not necessary to furnish to the detune copies of the all the documents seized from him which are not material and relevant for reaching subjective satisfaction of detaining authority merely because there were mentioned in panchnama. Moreover, in absence of any application from the detune requesting detaining authority to furnish copies of such documents detention order is not vitiated on ground that failure to supply those documents infringed fundamental right to make effective representation. In my view, this decision, too, is of no assistance to the respondents simply because in the instant case copies of those documents have not been supplied which are material and relevant to make an effective representation. Application appears necessary for supply of documents which are not material or relevant.
16. As regards the second ground of attack; the petitioner filed his representation against his detention on 24-4-1991 and its rejection was communicated to him on 11-6-1991. Thus, it was considered and rejected after one month’s and 18 days. In this regard, Deputy Secretary, Government of Bihar Home (Special) Department, has stated in his rejoinder as under ;
It was forwarded by Superintendent, Central Jail, Patna on 25-4-91, It was received in the Home (Special) Department, Government of Bihar on 27-4-199J, 28-4-1991 being the weekly holiday (Sunday) comments was called for from District Magistrate, Gopalganj, on 29-4-1991 and finally the said letter was issued by the State Government on 30-4-1991, As the District Magistrate was busy with law and order problems as well as with Election arrangements the comments on the representation was received in the Home (Special.) Department not earlier than 13-5-1991. It was put up before Deputy Secretary on 15-5-1991 for consideration. Deputy Secretary after examining the same put up the file to the Additional Secretary on 16-54991. After scrutiny the facts and’ materials he submitted the file to Secretary Home on 17-5-1991, The Secretary endorsed the file to the Chief Minister on 18-5-1991 for orders.
As the Chief Minister was fully busy with law and order as well as Parliament Election arrangements in the State the files, after obtaining order of Chief Minister, returned in the Home (Special) Department on 4-6-1991 and the order of rejection was issued vide Government letter No. 1306/C, dated 10-6-1991 which was communicated to the detune on 11-6-1991.
17. The above shows that the representation of the petitioner was not dealt and considered with the promptness which if deserved, It should have been considered and the result should have been communicated with great expedition though no time limit can reasonably be fixed to be followed rigidly The fact that the detune has been granted a right to make a representation at the earliest opportunity also means by necessary implication that the representation must be considered at the earliest opportunity. The explanation given by Deputy Secretary that the detaining authority and the Chief Minister were busy with law and order problem as well as with election arrangement is absolutely vague and unsatisfactory. The law and order problem and the Parliament election were not unexpected or unforeseen events and the State Government was not taken by surprise by them. The Government should have made arrangements for disposal of such representation at the earliest as required by Article 22(5) of the Constitution. No facts or particulars about any special law and order problem have been given in the explanation. I am therefore, of the opinion that there has been undue delay in disposal of the representation of the petitioner and his right as guaranteed by Article 22(5) of the Constitution of India, has been violated in this way also.
18. It has been held in Salani’s case (supra) that obligation imposed on the detaining authority by Article 22(5) of the Constitution of India to afford 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 detune can claim is the 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 detune.
19. In the case of Raj Kumar Gupta v. The State of Bihar , a Full Bench of this Court set aside the detention order passed under Bihar” Control Crimes Act on account of inordinate delay of one month in disposal of detenu’s representation by the State Government.
20. In the case of Rashid Sk v. State of West Bengal there was delay of 26 days in dealing with the representation of the detune The explanation offered was that during that time, there was a spate of antisocial activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led the greater pressure of work and this very much delayed the movement of the files. The record in the office was accordingly not regularly available. The Supreme Court considered such explanation as much too vague not requiring any serious notice as no precise details were given and no figures about the abrupt increase of detention cases were supplied. The Apex Court expressed the view that the State Government should, in any event, have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No cogent and convincing material has been placed before the Court to satisfactorily explain the inability of the Strife Government in considering petitioner’s representation within reasonable time. The Court was not satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the Constitution for expeditiously considering the petitioner’s representation.
21. Learned Standing Counsel has relied upon the cases of Arun Kumar Sinha v. State of West Bengal and D.N. Goswami v. State of West Bengal .
22. In Arun Kumar Sinha’s case, when the representation was received the employees in the Home Department had already resorted to constant demonstrations which impeded the work of the Department and it continued even after the date of decision and during the period there was considerable spurt in detention cases and it was considered to be sufficient cause to condone tire delay. But in the instant case, there is no explanation to the effect that the employees of the Home Department had resorted to constant demonstrations at any point of time which impeded the work of the Department.
23. In D.N. Goswami cases, it has been hell that it has to be seen if on the facts and circumstances the State Government can be said to have considered the representation with reasonable dispatch and promptitude realising the importance the Constitution attached to individual’s right to personal liberty. On the facts and circumstances of the instant case, viewed in the light of the decisions of the Supreme Court referred to above, I am of the opinion, that the State Government failed to consider the representation of the petitioner with reasonable dispatch and promptitude.
24. In view of the above, this writ petition is allowed. The detention order dated 12-4-1991 is set aside and the petitioner is directed to be set at liberty forthwith in this case.