CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 322 of 1987.
From the Judgment and Order dated 19.1.1987 of the Bombay High Court in Criminal Writ Petition No. 103 of 1986. Hardev Singh and Ms. Madhu Moolchandani for the Appellant.
B.A. Masodkar, A.S. Bhasme and A.M. Khanwilkarforthe Respondent. The Judgment of the Court was delivered by
SEN, J. This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated January 19, 1987 rejecting the petition under Art. 226 of the Constitution filed by the appellant in the High Court for grant of a writ of habeas corpus. The appellant has been placed under detention by the impugned order dated September 7, 1986 passed by the District Magistrate, Beed under s. 3(2) of the National Security Act, 1980 on his being satisfied that it was necessary to do so ’with a view to preventing him from acting in any manner prejudicial to the maintenance of public order’. The appellant challenged the impugned order of detention on grounds inter alia that there was infraction of the constitutional safeguards enshrined in Art. 22(5) read with s. 8 of the Act inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation.
On the view that we take, it is not necessary to deal with the facts elaborately. The material facts are these. The appellant was taken into custody on September 8, 1986 and was lodged at the Aurangabad Central Prison, Aurangabad where he is now detained. He was served with the grounds of detention along with the copies of the relevant documents on September 14, 1986. It appears that a week thereafter i.e. on September 22, 1986 he addressed a representation to the Chief Minister through the Superintendent, Aurangabad Central Prison, Aurangabad which the Superintendent forwarded to the Home Department on September 24, 1986. The State Government, in the meanwhile, under s. 3 (4) of the Act accorded its approval to the impugned order of detention on September 18, 1986. On October 6, 1986 the appellant made another representation to the Advisory Board which met and considered the same on October 8, 1986. On October 13, 1986 the Advisory Board after considering the representation made by the appellant together with the materials placed before it forwarded its report to the State Government recommending confirmation of the impugned order of detention as there was, in its opinion, sufficient cause for the detention of the appellant. Acting upon the report of the Advisory Board, the State Government by its order dated November 19, 1986 confirmed the order of detention. In the meantime, the appellant moved the High Court on November 13, 1986.
The main ground on which the legality of the impugned order of detention was assailed in the High Court was that although the appellant had addressed a representation to the Chief Minister on September 22. 1986, it was not considered and disposed of by the Chief Minister till November 17, 1986 i.e. there was unexplained, unreasonable delay in disposal of the same. It was said that such unreasonable delay in disposal of the representation was sufficient to render the continued detention of the appellant illegal. The High Court did not think it necessary to call upon the respondents and by an oral judgment dismissed the writ petition mainly on the ground of imperfect pleadings. It observed that the appellant had not specifically pleaded that there was unreasonable delay in the office of the Chief Minister which had not been explained and therefore the detention was illegal, but his grievance was that his representation had not been considered. It referred to paragraph 4 of the writ petition where it is submitted:
"It is submitted that in law, the State Gov-
ernment is bound to consider the representa-
tion before the decision of the Advisory
Board, but in the instant case neither the
State Government has considered the represen-
tation of the petitioner nor the Government
has communicated its decision."
It referred to the underlined portion of the
averments in paragraph 4 of the writ petition,
namely:
"Eight weeks have elapsed since the date of
detention of the petitioner but still neither
the State Government has taken any decision on
the representation forwarded through the Home
Department nor the petitioner is communicated
any decision pursuant to the report .........
The High Court distinguished the decision of this Court in Harish Pahwa v. State of Uttar Pradesh & Ors., [1981] 3 SCR 276 on the ground that in that case the Court had before it the affidavit of the Government showing that it had no explanation to offer except that it had referred the matter to the Law Department and also there was sufficient material to show that there was unreasonable delay in dealing with the representation whereas in the present case there was no such ground raised. The High Court disallowed the prayer for grant of a writ of habeas corpus mainly on the ground of defective pleadings, and added that the appellant "had not even asked for time to amend the petition" and "put the respondents to notice". It observed:
"While the State undoubtedly has the duty to
process the representation of the detenu
promptly, it is also the duty of the petition-
er to make specific adverments of facts and
their effect, if necessary, by amendment. This
is necessary to put the respondents to notice,
that the effect of these facts have to be
answered and explained. The respondents may
have an explanation as to why the Chief Minis-
ter took so much time. On such submission we
cannot hold that the respondents have failed
to explain delay or that the time taken by the
Chief Minister was wholly necessary. We should
not be understood to have held that the time
taken by the Government was justified. Far
from it. But we cannot allow the petitioner to
take the respondents by surprise by such a
style of pleading."
It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habseas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under Art. 166 of the Constitution to pass orders on behalf of the Government in such matters: Niranjan Singh v. State of Madhya Pradesh, [1973] 1 SCR 691; Habibullah Khan v. State of West Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State of Bihar & Anr., [1974] 4 SCC 455 and Mohd. Alam v. State of West Bengal, [1974] 4 SCC 463.
In the present case, in answer to the notice issued by this Court under Art. 136, the affidavit in reply has been filed by Shri S.V. Joshi, District Magistrate, Beed who passed the impugned order of detention. There is a general denial in paragraph 2 of the counter-affidavit that there was unreasonable delay in the disposal of the representation made by the appellant. However, the delay in disposal of the representation was in the Secretariat and therefore it is averred in paragraph 11:
"I say that the affidavit filed by Shri Vish-
wasrao, Desk Officer, Home Department
(Special), Mantralaya, Bombay on behalf of
State of Maharashtra in the High Court Bench
at Aurangabad will reveal that different
steps, as required by the provisions of Na-
tional Security Act, 1980 are taken immediate-
ly, within stipulated period." and it is then averred in paragraph 12 that the contentions raised by the appellant with regard to delay have been dealt with by the High Court while deciding the writ petition. It is said that the appellant has raised the contention about unreasonable delay in disposal of his representation, for the first time in this Court presumably on the reasoning of the High Court. There is on record an affidavit sworn by I.S. Vishwasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay in answer to the grounds 16(A) and 16(E). As regards the grounds 16(A) and 16(E) formulated in the petition for grant of special leave regarding unreasonbale delay, it is averred in paragraph 3 of the affidavit:
"I say that the representation dated 22nd
September, 1986 addressed to the Chief Minis-
ter by the detenu was forwarded by the Super-
intendent, Aurangabad Central Prison, Auranga-
bad on 24th September, 1986. I further say
that the said representation was received in
the Department on 26th September, 1986. I
further say that the parawise remarks on the
said representation were called for from the
detaining authority, i.e. District Magistrate,
Beed on 26th September, 1986 and remarks of
the District Magistrate dated 3rd October,
1986 were received by the
Government on 6th October, 1986. I further say
that thereafter, the said representation was
processed together with report of the Advisory
Board and as stated in the earlier paragraphs,
the said representation was rejected and the
detention of the detenu was confirmed by the
Chief Minister on 17th November, 1986."
In the same paragraph, there is the following
averment made with regard to delay in disposal
of the representation in the Chief Minister’s
Secretariat:
"I further say that the Chief Minister was
pre-occupied in connection with very important
matters of the State which involved tours as
well as meetings outside Bombay. I further say
that during the period from 23.10.1986 to
17.11. 1986, two Cabinet meetings were held at
Pune and Aurangabad, each meeting lasting for
two days i.e. 28th and 29th October, 1986 at
Pune and 11th and 12th November, 1986 at
Aurangabad. I further say that such meetings
in Pune and Aurangabad are generally held once
a year to focus the attention on regional
problems. I further say that the preparations
for these meetings as well as other meetings
held with the concerned Ministers and offi-
cials demanded a lot of time of the Chief
Minister and this naturally resulted in some
delay in disposing of several cases submitted
to the Chief Minister including this case. I
further say that the cases where such repre-
sentations are made in the detention matters,
they required a close scrutiny of all the
relevant record and careful application of
mind. I therefore, respectfully submit that
the time taken for passing the Government
order in this case should be viewed in the
light of the averments made in this affidavit
and therefore, if properly considered, it
cannot be said that the delay in disposing of
the representation is unreasonable and unex-
plained."
It is somewhat strange that the State Government should have acted in such a cavalier fashion in dealing with the appellant’s representation addressed to the Chief Minister. We are satisfied that there was failure on the part of the Government to discharge its obligations under Art. 22(5). The affidavit reveals that there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated October 6, 1986. While the Advisory Board acted with commendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report together with the materials on October 13, 1986, there was utter callousness on the part of the State Government to deal with the other representation addressed to the Chief Minister. It was not till November 17, 1986 that the Chief Minister condescended to have a look at the representation. When the life and liberty of a citizen is involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Art. 22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti-social 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. The history of personal liberty is largely the history of insistence on observance of the procedural safeguards.
Apart from the admitted inordinate delay, there is a fundamental defect which renders the continued detention of the appellant constitutionally invalid. As observed by one of us (Sen, J.) in Narendra Purshotam Umrao v. B.B. Gujral & Ors., [1979] 2 SCC 637 there was a duty cast on the Government to consider the representation made by the detenu without waiting for the opinion of the Advisory Board. The constitution of.an Advisory Board under s. 9 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. It goes without saying that the constitutional right to make a representation guaranteed by Art. 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Art. 22(5) is a valuable constitutional right and is not a mere formality. The representation made by the appellant addressed to the Chief Minister could not lie unattended to in the portals of the Secretariat while the Chief Minister was attending to other political affairs. Nor could the Government keep the representation in the archives of the Secretariat till the Advisory Board submitted its report. In Narendra’Purshotam Umrao’s case it was observed: "Thus, the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand, and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations, independent of each other." After referring to the decisions of this Court in Abdul Karim v. State of West Bengal, [1969] 3 SCR 479; Pankaj Kumar Chakrabarty v. State of West Bengal, [1970] 1 SCR 543 and Khairul Haque v. State of West Bengal, W.P. No. 246 of 1969, decided on September 10, 1969 the nature and dual obligation of the Government and the corresponding dual right in favour of the detenu under Art. 22(5) was reiterated. The following observations of the Court in Khairul Haque’s case were quoted with approval:
"It is implicit in the language of Art. 22
that the appropriate Government, while dis-
charging its duty to consider the representa-
tion, cannot depend upon the view of the Board
on such representation. It has to consider the
representation on its own without being influ-
enced by any such view of the Board. There
was, therefore, no reason for the Government
to wait for considering the petitioner’s
representation until it had received the
report of the Advisory Board. As laid down in
Abdul Karim v. State of West Bengal, the obli-
gation of the appropriate Government under
Art. 22(5) is to consider the representation
made by the detenu as expeditiously as possi-
ble. The consideration by the Government of
such representation has to be, as aforesaid,
independent of any opinion which may be ex-
pressed by the Advisory Board.
The fact that Art. 22(5) enjoins
upon the detaining authority to afford to the
detenu the earliest opportunity to make a
representation must implicitly mean that such
representation must, when made, be considered
and disposed of as expeditiously as possible,
otherwise, it is obvious that the obligation
to furnish the earliest opportunity to make a
representation loses both its purpose and
meaning." In the circumstances, there being a failure on the part of the State Government to consider the representation made by the appellant addressed to the Chief Minister without waiting for the opinion of the Advisory Board, renders the continued detention of the appellant invalid and constitutionally impermissible.
We have no manner of doubt that there is no explanation whatever much less any reasonable explanation for the inordinate delay in consideration of the representation made by the appellant addressed to the Chief Minister and that by itself is sufficient to invalidate the impugned order of detention. In fact, no one has filed any affidavit to explain the cause for the delay in Chief Minister’s Secretariat. The counter-affidavit filed by Shri S.V. Joshi, District Magistrate contains a bare denial in paragraph 2 that there was any unreasonable delay in the disposal of the representation. As regards the delay in disposal of the representation in the Secretariat, he adverts in paragraph 11 to the affidavit filed by Vishwasrao, Desk Officer, Home Department on behalf of the State Government and asserts that it reveals the different steps that were taken and in paragraph 12 he submits that the contention about unreasonable delay in disposal of the representation by the State Government was not raised in the High Court and it has been taken for the first time in this Court. Even so, the appellant having raised the ground in appeal it was the duty of the State Government to have placed all the material along with the counter-affidavit. There is in fact no explanation offered as regards the delay in disposal of the representation in the Secretariat. We have already extracted the relevant portion from the affidavit of Vishwasrao, Desk Officer. It is accepted that the representation made by the appellant to the Chief Minister on September 22, 1986, forwarded by the Superintendent, Aurangabad Central Prison on the 24th, was received in the Home Department on the 26th which in its turn forwarded the same to the detaining authority i.e. the District Magistrate on the same day i.e. 26th for his comments. The District Magistrate returned the representation along with his comments dated October 3, 1986 which was received by the Government on the 6th. It is said that thereafter the representation was processed together with the report of the Advisory Board and was forwarded to the Chief Minister’s Secretariat where the same was received on October 23, 1986. It is enough to say that the explanation that the Chief Minister was "pre-occupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986" was no explanation at all why the Chief Minister did not attend to the representation made by the appellant till November 17, 1986 i.e. for a period of 25 days. 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.
For these reasons, the appeal must succeed and is allowed. The judgment and order passed by the High Court are set aside and the appellant is directed to be set at liberty forthwith. P.S.S. Appeal allowed.