Full Judgment Text
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CASE NO.:
Appeal (crl.) 770 of 2001
Special Leave Petition (crl.) 1299 of 2000
PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
MANISH BAHAL @ NISHU
DATE OF JUDGMENT: 09/07/2001
BENCH:
Ruma Pal, D.P.Mohapatro
JUDGMENT:
D.P. MOHAPATRA, J.
Leave granted.
The Union of India through the Secretary, Ministry of
Home Affairs, the Lt. Governor of NCT of Delhi, the
Commissioner of Police, Delhi and the Superintendent,
Central Jail, Tihar, have filed this appeal assailing the
judgment of the Delhi High Court dated 14th December, 1999
in Criminal Writ Petition No.809 of 1999 quashing the order
of detention under section 3(2) of the National Security Act,
1980 (hereinafter referred to as ’the Act’) and directing
immediate release of the respondent unless required in
connection with any other case. As appears from the
impugned judgment the order of detention has been
quashed by the High Court solely on the ground that the Lt.
Governor of Delhi rejected the representation of the detenu-
respondent taking into consideration the report submitted by
the Advisory Board and therefore, did not consider the
representation independently.
The Commissioner of Police, Delhi vide order dated
17.5.1999 ordered the detention of the respondent under
section 3(2) of the Act with a view to prevent him from
indulging in activities prejudicially affecting the public order.
The said order of detention was approved by the Lt.
Governor of NCT of Delhi under section 3(4) of the Act vide
order dated 20 May, 1999. On 4.6.1999 the respondent
addressed a representation to the Advisory Board against
the order of his detention. The Advisory Board submitted its
report on 10.6.99 stating that there was sufficient cause for
the detention of the respondent. The report was received at
the Police Headquarters on 11.6.1999. Thereafter the Lt.
Governor on consideration of the report along with other
material placed on record confirmed the order of detention
and directed that the detenu shall be detained for a period
of 12 months from the date of his detention i.e. 18.5.1999.
By a separate order passed on the same day (21.6.99) the
Lt. Governor rejected the representation made by the
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respondent to the Advisory Board. Thereafter the
respondent filed the writ petition in the High Court
challenging the detention order dated 3rd August, 1999.
The question that arises for consideration is whether
the High Court is right in holding that there was no
independent consideration of the representation submitted
by the detenu by the Lt. Governor.
A perusal of the relevant provisions of the Act reveals
the scheme which so far as material for the purpose of this
case may be stated thus :
In sub-section (3) of section 3 power is vested in the
State Government to pass order that District Magistrate or
Commissioner of Police may also, if satisfied as provided in
ss(2) exercise the power conferred by the said sub-section
within their respective local jurisdiction. In the proviso to the
said sub-section maximum period during which such an
order shall remain in force has been prescribed. In section
3(2) of the Act it is provided that the Central Government or
the State Government may, if satisfied with respect to any
person that with a view to preventing him from acting in any
manner prejudicial to the security of the State or from acting
in any manner prejudicial to the maintenance of public order
or from acting in any manner prejudicial to the maintenance
of supplies and services essential to the community it is
necessary so to do, make an order directing that such
person be detained. Sub-section (4) of the said section
mandates that when an order of detention is made by an
officer mentioned in ss(3) he shall forthwith report the facts
to the State Government to which he is subordinate together
with the grounds on which the order has been made and
such other particulars as, in his opinion, have a bearing on
the matter, and no such order shall remain in force for more
than twelve days after the making thereof unless, in the
meantime, it has been approved by the State Government.
In sub-section(5) it is provided that when any order is made
or approved by the State Government under this Section the
State Government shall within seven days, report the fact to
the Central Government together with the grounds on which
the order has been made and such other particulars as, in
the opinion of the State Government, have a bearing on the
necessity for the order.
In section 8(1) it is laid down that when a 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 grounds
on which the order has been made and shall afford him the
earliest opportunity of making a representation against the
order to the appropriate Government.
The constitution of the Advisory Boards is provided in
Section 9 of the Act.
In section 10 it is laid down that save as otherwise
expressly provided in the Act, in every case where a
detention order has been made under the Act, the
appropriate Government shall, within three weeks from the
date of detention of a person under the order, place before
the Advisory Board constituted by it under section 9, the
grounds on which the order has been made and the
representation, if any, made by the person affected by the
order, and in case where the order has been made by an
officer mentioned in sub-section(3) of the Section, also the
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report by such officer under sub-section (4) of that section.
Section 11 which contains provision regarding
procedure of Advisory Boards states that the report of the
Advisory Board shall, after considering the materials placed
before it and, after calling for such further information as it
may deem necessary from the appropriate Government or
from any person called for the purpose through the
appropriate Government or from the person concerned, and
if, in any particular case, it considers it essential so to do or if
the person concerned desires to be heard, after hearing him
in person, submit its report to the appropriate Government
within seven weeks from the date of detention of the person
concerned.
In Section 12 sub-section(1) it is laid down that in any
case where the Advisory Board has reported that there is, in
its opinion, sufficient cause for the detention of a person, the
appropriate Government may confirm the detention order
and continue the detention of the person concerned for such
period as it thinks fit. Sub-section (2) of the section provides
that in any case where the Advisory Board has reported that
there is, in its opinion, no sufficient cause for the detention
of a person, the appropriate Government shall revoke the
detention order and cause the person concerned to be
released forthwith.
The High Court, as noted earlier, has quashed the
order of detention only on the ground that the Lt. Governor
rejected the representation made by the detenu-respondent
taking into consideration the report of the Advisory Board.
The High Court has placed reliance on the decision of the
Constitution Bench of this Court in the case of K.M. Abdulla
Kunhi and B.L. Abdul Khader vs. Union of India and others
(1991 (1) SCC 476). The High Court has observed that in
view of the settled position of law which has been laid down
by this Court such disposal of the representation offends the
right of the detenu enshrined in Article 22(5) of the
Constitution.
Shri Ashok Bhan, learned counsel for the appellant
contended that the decision of the High Court is based on a
misreading and mis-construction of the decision of this Court
in K.M. Abdulla case (supra). The learned counsel
submitted that the High Court is in error in its conclusion that
the Lt. Governor did not independently consider the
representation of the respondent merely from the fact that
the order rejecting the representation was passed after
receipt of the report of the Advisory Board.
Per contra Shri Harjinder Singh, learned counsel
appearing for the respondent, supported the judgment of the
High Court. He urged that the view taken by the High Court
is in accord with the ratio of the Constitution Bench judgment
in K.M. Abdulla case (supra).
Para 11 of the Judgment of K. M. Abdulla case (supra)
on which reliance has been placed by the High Court in its
impugned judgment reads as follows:
"It is now beyond the pale of
controversy that the constitutional right
to make representation under Clause (5)
of Article 22 by necessary implication
guarantees the constitutional right to a
proper consideration of the
representation. Secondly, the obligation
of the government to afford to the
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detenu an opportunity to make
representation and to consider such
representation is distinct from the
government’’ obligation to refer the case
of detenu along with the representation
to the Advisory Board to enable it to
form its opinion and send a report to the
government. It is implicit in Clauses (4)
and (5) of Article 22 that the
government while discharging its duty to
consider the representation, cannot
depend upon the views of the Board on
such representation. It has to consider
the representation on its own without
being influenced by any such view of the
Board. The obligation of the government
to consider the representation is
different from the obligation of the Board
to consider the representation at the
time of hearing the references. The
government considers the
representation to ascertain essentially
whether the order is in conformity with
the power under the law. The Board, on
the other hand, considers the
representation and the case of the
detenu to examine whether there is
sufficient case for detention. The
consideration by the Board is an
additional safeguard and not a
substitute for consideration of the
representation by the Government. The
right to have the representation
considered by the government, is
safeguarded by Clause (5) of Article 22
and it is independent of the
consideration of the detenu’s case and
his representation by the Advisory
Board under Clause (4) of Article 22
read with section 8(c) of the Act."
In the said decision the Constitution Bench referring to
the several decisions decided earlier held that the right to
have the representation considered by the Government is
safeguarded by clause (5) of Article 22 and it is independent
of the consideration of the detenu’s case and his
representation by the Advisory Board under clause (4) of
Article 22 read with section 8(c) of the Act (COFEPOSA
Act, 1974). But in that very judgment in paragraphs 19-20
the Bench observed that there is no constitutional mandate
under clause (5) of the Article 22 muchless no statutory
requirement to consider the representation before confirming
the order of detention; as long as the Government without
delay considers the representation with an unbiased mind
there is no basis for concluding that the absence of
independent consideration is the obvious result if the
representation is not considered before the confirmation of
detention. This Court held that indeed there is no
justification for imposing this restriction on the determination
of the Government. (emphasis supplied)
In para 20 of the judgment, elucidating the point, the
Constitution Bench observed :
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"It is necessary to mention that with regard
to liberty of citizens the court stands guard
over the facts and requirements of law, but
court cannot draw presumption against any
authority without material. It may be borne
in mind that the confirmation of detention
does not preclude the government from
revoking the order of detention upon
considering the representation. Secondly,
there may be cases where the
government has to consider the
representation only after confirmation of
detention. Clause (5) of Article 22 suggests
that the representation could be received
even after confirmation of the order of
detention. The words ’shall afford him the
earliest opportunity of making a
representation against the order’ in Clause
(5) of Article 22 suggest that the obligation
of the government is to offer the detenu an
opportunity of making a representation
against the order, before it is confirmed
according to the procedure laid down under
Section 8 of the Act. But if the detenu does
not exercise his right to make
representation at that stage, but presents it
to the government after the government
has confirmed the order of detention, the
government still has to consider such
representation and release the detenu if
the detention is not within the power
conferred under the statute. The
confirmation of the order of detention is not
conclusive as against the detenu. It can
be revoked suo motu under Section 11 or
upon a representation of the detenu. It
seems to us therefore, that so long as the
representation is independently considered
by the government and if there is no delay
in considering the representation, the fact
that it is considered after the confirmation
of detention makes little difference on the
validity of the detention or confirmation of
the detention. The confirmation cannot
be invalidated solely on the ground that the
representation is considered subsequent to
confirmation of the detention. Nor it could
be presumed that such consideration is
not an independent consideration. With
all respect, we are not inclined to subscribe
to the views expressed in V.J.Jain V. Shri
Pradhan ( 1979 (4) SCC 401);Om
Prakash Bahl vs. Union of India W.P.No.
845 of 1979 decided on October 15,
1979(Unreported) and Khairul Haque
W.P.No.246 of 1969 decided on
September 10, 1969 (Unreported) cases.
They cannot be considered to be good law
and hence stand overruled.
In Ram Sukrya Mhatre vs. R.D.Tyagi (1992 Supp.( 3)
SCC 65) this Court relying on the decision in K.M.Abdulla
Kunhi (supra) case held that it is settled law that right to
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representation under Article 22(5) includes right to
expeditious disposal not only by the State Government
under the relevant provisions of the statute, but also by
Central Government. But in each case it is one of fact to be
ascertained whether the Central Government or the State
Government, as the case may be, has caused delay due to
negligence, callous inaction, avoidable red-tapism and
undue protraction by the authorities concerned. This Court
observed that expedition is the rule and delay defeats
mandate of Article 22(5). Taking note of the decision in
Abdul Salam & Thiyyan v. Union of India (1990 (3) SCC 15)
it was observed that no hard and fast rule as to the measure
of reasonable time can be laid down and each case has to
be considered from the facts presented therein and that if
there is no negligence or callous inaction or avoidable red-
tapism on the facts in that case, it does not warrant
interference.
In the case of Moosa Husein Sanghar vs. State of
Gujarat and ors. (1993 (1) SCC 511) this Court relying on K.
M. Abdulla Kunhi case (supra) and other decisions held,
inter alia, that in a case where the representation has been
received before the case is referred to the Advisory Board,
the appropriate Government must consider the same before
the matter is referred to the Advisory Board and it would be
justified in not considering the same only if there is no
reasonable time to consider and dispose of the
representation before the case is referred to the Advisory
Board and in such case, the representation may be
forwarded to the Advisory Board along with the case of the
detenu. Referring to the provisions under Article 21 and
22(5) of the Constitution the Bench observed:
"Having regard to the importance of the
safeguard of a representation under
Article 22(5) for protection of the right to
personal liberty guaranteed under
Article 21 of the Constitution, this Court
has repeatedly emphasised the need
for expeditious consideration of the
representation submitted by a detenu
and has insisted that the representation
must be disposed with a sense of
urgency without avoidable delay. The
appropriate Government would not be
justified in postponing the consideration
of the representation while the matter is
pending consideration before the
Advisory Board because the obligation
of the Government to consider the
representation is different from that of
the Advisory Board."
In Navalshankar Ishwarlal Dave and anr. Vs.
State of Gujarat and others ( 1993 Supp. ( 3 ) SCC
754), in which the representation was received by the
State Government on 20.3.1993, the State
Government decided to keep it pending awaiting the
report of the Board and on receipt of the report on
March 23, 1993, considered the case and the
representation was rejected on the even date, this
Court held that keeping the representation pending
awaiting the decision of the Board and thereafter its
rejection are illegal. In para 9 of the judgment this
Court referring to the interpretation of the word
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’forthwith’ under Article 22(5) observed that the
expression would mean ’as soon as may be’ that the
action should be performed by the authority with
reasonable speed and expedition with a sense of
urgency without any unavoidable delay; that no hard
and fast rule could be laid nor a particular period is
prescribed; that there should not be any indifference
or callousness in consideration and disposal of the
representation. This Court made it clear that the
determination of the case depends on the facts and
circumstances of each case.
In Smt. Gracy vs. State of Kerala ((1991 (2) SCC 1) a
Bench of three learned Judges of this Court construing the
provisions of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 and Articles 22(4)
and (5) of the Constitution held that the nature of duty
imposed on the detaining authority under Article 22(5) in the
context of the extraordinary power of preventive detention is
sufficient to indicate that strict compliance is necessary to
justify interference with personal liberty and it is more so
since the liberty involved is of a person in detention and not
of a free agent. The obligation of the government to
consider the representation is different from, independent of
and in addition to the obligation of the Board to consider it at
the time of hearing the reference before giving its opinion to
the government. In that case during the pendency of the
reference before the Advisory Board the detenu made his
representation and addressed it to the Advisory Board. The
Advisory Board considered the reference relating to the
detenu made by the Central Government and also the
detenu’s representation submitted to it and gave the opinion
that there was sufficient cause to justify his preventive
detention. The Central Government then made the order
confirming his detention. This Court observed that detenu’s
representation was not considered by the Central
Government independently at any time. In the counter
affidavit Central Government’s stand was that since the
representation was addressed to the Advisory Board and not
to the Central Government there was no obligation
on it to consider the same independently. Rejecting this
stand of the Central Government and allowing the writ
petition filed on behalf of the detenu this Court observed:
"The contents of Article 22(5) as well as
the nature of duty imposed thereby on
the detaining authority support the view
that so long as there is a representation
made by the detenu against the order of
detention, the aforesaid dual
obligation under Article 22(5) arises
irrespective of the fact whether the
representation is addressed to the
detaining authority or to the Advisory
Board or to both. The mode of address
is only a matter of form which cannot
whittle down the requirement of the
constitutional mandate in Article 22(5)
enacted as one of the safeguards
provided to the detenu in case of
preventive detention.
In the present case there had
been a breach by the Central
Government of its duty under Article
22(5) to consider and decide the
representation independently of the
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Advisory Board’s opinion. The order of
detention as well as the order of its
confirmation passed by the Central
Government are, therefore, quashed.
This shall not, however, affect the
detenu’’ prosecution for the alleged
offence and it shall also not be
construed as a direction to release him
in case he is in custody as a result
of refusal of bail.""
From the conspectus of the views taken in the
decisions discussed above, it is clear to us that what this
Court has consistently laid stress upon is, prompt
consideration and expeditious disposal of representations of
the detenu received by the State Government at any stage
of the proceeding. The view has been taken in the light of
Article 22(4) and (5) of the Constitution. We do not find any
support for the extreme view taken by the High Court in the
case that merely because the report of the Advisory Board
was placed before the Detaining Authority (Lt.Governor)
along with other papers for disposal of the representation
made by the detenu there was no independent consideration
of the same by the authority. In the scheme of things under
the Act, the report of the Advisory Board is not an irrelevant
material in the exercise.
The specific question that arises for consideration is
whether on the facts and circumstances of the case on hand
the order passed by the Lt. Governor rejecting the
representation of the detenu - respondent can be held to
have been vitiated on the ground that it was not passed on
independent consideration. It is relevant to make it clear that
the High Court has not recorded any finding that there was
delay or callousness or bureaucratic lethargy on the part of
the State Government in dealing with the representation of
the respondent or that the Lt. Governor had kept the
representation submitted before him awaiting the report of
the Advisory Board. No finding is also recorded by the High
Court that the Lt. Governor solely depended on or relied
upon the report of the Advisory Board for passing the order
rejecting the representation. It has also not been found
that the report of the Advisory Board was the only material
placed before the Lt. Governor while submitting the
representation for his consideration. In such circumstances,
we are of the view that the High Court committed error in
holding that the order of the Lt. Governor rejecting the
representation of the detenu was not based on his
independent consideration. At the cost of repetition we may
state that the High Court drew such an inference solely on
the ground that the report of the Advisory Board was also
placed before the Lt. Governor while considering the
representation of the respondent. It is relevant to note here
that the observations made by the Constitution Bench in the
case of K.M.Abdulla Kunhi (supra) and other decisions
noted earlier were made with a view to bring home the
importance of expeditious consideration and disposal of
representation of a detenu under the preventive detention
laws in the light of the right vested in the detenu under
Articles 22(4) and (5) of the Constitution.
On the discussions made and the reasons stated in the
foregoing paragraphs, we are constrained to hold that in the
facts and circumstances of the case the judgment of the
High Court is unsustainable. Accordingly, the appeal is
allowed. The judgment dated 14.12.1999 in Criminal Writ
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Petition No.809/99 is set aside. Since about five months
have elapsed after the judgment of the High Court was
delivered, we leave it open to the detaining authority to
decide whether the respondent should be taken in detention
to complete the unexpired period of detention.