Full Judgment Text
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PETITIONER:
RAMA DHONDU BORADE
Vs.
RESPONDENT:
V.K. SARAF, COMMISSIONER OF POLICE & ORS.
DATE OF JUDGMENT05/05/1989
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
RAY, B.C. (J)
CITATION:
1989 AIR 1861 1989 SCR (3) 191
1989 SCC (3) 173 JT 1989 (2) 579
1989 SCALE (1)1581
CITATOR INFO :
F 1990 SC 225 (17)
RF 1990 SC 231 (18)
R 1990 SC1361 (15)
D 1990 SC1446 (11)
F 1990 SC1455 (20)
RF 1991 SC 574 (12)
RF 1992 SC 139 (4)
ACT:
Article 22(5)--Detenu’s representation against deten-
tion--Necessity for consideration and disposal of represen-
tation as expeditiously as possible.
National Security Act, 1980 & National Security (Condi-
tions of detention) (Maharashtra) Order 1980--Section 3
Clause 4---Detention Order--Representation of Detenu--Neces-
sity for disposal with the promptitude and diligence.
HEADNOTE:
With a view to preventing the petitioner-detenu from
indulging in activities that were prejudicial to the mainte-
n-
ance of public Order in Greater Bombay, the Commissioner of
Police, Greater Bombay, in exercise of the powers conferred
on him by Sub-Section (2) of Section 3 of the National
Security Act, 1980 read with clause 4 of the National Secu-
rity (Conditions of detention) (Maharashtra) Order 1980
passed on Order of detention, pursuant whereof the Petition-
er--detenu was detained in Central Prison, Nasik. He was
furnished with copies of grounds of detention and other
material on the basis of which the detaining authority based
his subjective satisfaction.
In order to challenge the legality and validity of the
detention Order, the detenu filed a Writ Petition before the
Bombay High Court which was dismissed. Against the Order of
the High Court, the detenu--petitioner has filed criminal
appeal after obtaining special leave. He has also filed a
separate Writ Petition in this Court challenging his deten-
tion. Both were heard together by this, Court.
Counsel for the appellant raised several contentions
assailing the legality of the detention order, one of which
being that there was inordinate and unexplained delay caused
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by the Union of India in considering and disposing of his
representation dated 26-9-88, as such his continued deten-
tion was unconstitutional and illegal being violative of
Article 22(5) of the Constitution.
Allowing the appeal as also the Writ Petition this Court
192
HELD: The detenu has an independent constitutional right
to make his representation under Article 22(5) of the Con-
stitution of India. Correspondingly there is a Constitution-
al mandate commanding the concerned authority to whom the
detenu forwards his representation questioning the correct-
ness of the detention Order clamped upon him and requesting
for his release, to consider the said representation within
reasonable dispatch and to dispose the same as expeditiously
as possible. [198H; 199A-B]
(Jayanarayan Sukul v. State of West Bengal, [1970] 1 SCC
219; A bdul Karim & Ors. v. State of West Bengal, [1969] 1
SCC 433; Pankaj Kumar Chakravarty & Ors. v. State of West
Bengal, [1969] 3 SCC 400.
This constitutional requirement must be satisfied with
respect but if this constitutional imperative is observed in
breach, it would amount to negation of the constitutional
obligation rendering the continued detention constitutional-
ly impermissible and illegal; since such a breach would
defeat the very concept of liberty--the highly cherished
right which is enshrined in Article 21 of the Constitution.
[199B-C]
The use of the word "as soon as may be" occurring in
Article 22(5) of the Constitution reflects that the repre-
sentation should be expeditiously considered and disposed of
with due promptitude and diligence and with a sense of
urgency and without avoidable delay. What is reasonable
dispatch depends upon the facts and circumstances of each
case and no hard and fast rule can be laid down in that
regard. [199D]
Rashik Sk. v. State of West Bengal, [1973] 3 SCC 476.
Smt. Shalini Soni & Ors. v. Union of India & Ors.,
[1980] 4 SCC 544,
In the instant case, the gap between the receipt and
disposal of the representation is 28 days but upon the date
of service of the order of rejection on the detenu the delay
amounts to 32 days. The only explanation offered by the 3rd
respondent is that further information required from the
State Government was received by the third respondent on
17-10-88 after a delay of nearly 14 days and then the repre-
sentation of the detenu was disposed of on 27-10-88 within
which period there were certain holidays. There is an inor-
dinate and unreasonable delay and the explanation given by
the third respondent is not satisfactory and acceptable.
Detenu directed to be set at liberty forthwith. [199F-H;
200A, B]
193
B. Sundar Rao & Ors. v. State of Orissa, [1972] 3 SCC
11; Jnanendra Nath Roy v. The State of West Bengal, [1972] 4
SCC 50; Frances Coralie Muffin v. W.C. Khambra and Others,
[1980] 2 SCC 275; Vijay Kumar v. State of Jammu and Kashmir
JUDGMENT:
State of Uttar Pradesh and another, [1983] 4 SCC 537 and
Mohinuddin alias Moin Master and Ors., v. D.M. Beed, [1987]
4 SCC 58, referred to.
&
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.)
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No. 86 of 1989. Criminal Appeal No. 376 of 1989.
(Under Article 32 of the Constitution of India).
R.B. Thakre, Avadhut M. Chimalker, Deepak and M.N.
Nargolkar for the Petitioner/Appellant.
T.C. Sharma, Ms. A. Subhashini, A.M. Khanwilkar and A.S.
Bhasme for the Respondents.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. Rule nisi in the writ petition
and leave granted in the special leave petition.
Both this writ petition and the criminal appeal are
preferred by one Rama Dhondu Borade--the detenu herein-
challenging the legality and validity of the Order of deten-
tion passed by the Commissioner of Police, Greater Bombay in
exercise of the powers conferred by sub-section (2) of
Section 3 of the National Security Act 1980 (Central Act 56
of 1980) (hereinafter referred as the ’Act’) read with
clause 4 of the National Security (Conditions of Detention)
(Maharashtra) Order, 1980 with a view to preventing the
detenu from indulging .in activities that are prejudicial to
the maintenance of public order in Greater Bombay.
In pursuance of the impugned order, the detenu is de-
tained in the Central Prison, Nasik from 31.8.88. He has
been furnished with the copies of the grounds of detention
and other materials on the basis of which the detaining
authority drew his subjective satisfaction. In the grounds
of detention the detenu is stated to have been involved in
three incidents; they being:
(1) On 9.4.1988 at about 11.30 p.m. the detenu
and his associate
194
Sunil attacked one Laxman Devsingh Gurkha,
during the course of which Sunil slapped on
his face while the detenu caused an injury
with a sword on the neck of Laxman. In respect
of this incident a case as CR No. 269 of 1988
for offences under Sections 324 and 114
Indian Penal Code has been registered by Dadar
Police;
(2) On 10.4.1988 the detenu along with his
associates went to a pharmaceutical company at
Worli and demanded a sum of Rs.3000 at the
point of choppers from one Banwarilal Bhagi-
rath and on subsequent dates from one Babulal
Mistry. Relating to this incident, Babulal
lodged before Worli Police Station a complaint
which was registered as CR No. 183/88 for
offences under Sections 384 and 114 of the
Indian Penal Code. On 14.4.88 the police
attempted to arrest the detenu and his associ-
ates, but they all managed to escape. However,
the police arrested one of his associates
Suresh P. Shelar who on search was found to be
in possession of a chopper. Subsequently the
detenu was arrested on 9.8.88. But later on he
was released on bail;
(3) On 1.8.88 the detenu was arrested near
the gate of Century Bazar and on search he was
found to be in possession of a Rampuri knife.
In this connection, a case vide LAC No.
2912,88 was registered in Dadar Police Station
under the Bombay Police Act, 195 1. On 2.8.88
the detenu was released on bail.
In view of the above alleged violent activities of the
detenu creating a sense of insecurity in Greater Bombay, the
detaining authority on being satisfied on the materials
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placed before him that the activities of the detenu were
prejudicial to the maintenance of public order in Greater
Bombay, passed the impugned detention order. Challenging the
correctness of this detention order, the detenu filed Writ
Petition No. 1044 of 1988 before the High Court of Bombay
which for the reasons mentioned in the judgment dismissed
the same. This criminal appeal is preferred against that
judgment. In addition to that, he has filed Writ Petition
No. 86 of 1989 before this Court.
The learned counsel appearing on behalf of the appel-
lant/petitioner raised several contentions assailing the
legality of the order one of which being that there is an
inordinate and unexplained delay caused by the third re-
spondent (Union of India) in considering and
195
disposing of the representation of the detenu dated 26.9.88
and as such the continued detention of the appellant is
unconstitutional and illegal being violative of the mandato-
ry provisions of Article 22(5) of the Constitution of India.
As we are inclined to dispose of this appeal and the
writ petition on this ground alone we do not propose to
traverse on other grounds canvassed before us.
With regard to the right of making the representation
the detenu has been informed in the grounds of detention as
follows:
"You are further informed that you have a
right to make a representation to the Central
Government, the State Government and the
undersigned against the order of detention and
that you shall be afforded the earliest oppor-
tunity to make such a representation."
It is not in dispute that the detenu made his represen-
tation both to the State Government as well as the Central
Government on 26.9.88. But the 3rd respondent which has
already completed the examination of the report dated 6.9.88
sent by the 2nd respondent (the State Government) under
Section 3(5) of the Act even on 13.9.88. however, felt that
certain informations were required from the State Government
for its further consideration of the representation and,
therefore, the 3rd respondent sent a wireless message on
3.10. 1988 to the State Government asking for further infor-
mations.
The required information was received by the third
respondent only on 17.10.88. Thereafter the representation
was considered and the final decision to reject it was taken
on 27.10.88 and the decision of the Central Government
rejecting the representation was communicated to the appel-
lant through crash wireless message on 31.10.88.
In attempting to explain the delay from 17.10.88 to
27.10.88 it is stated in the counter-affidavit filed on
behalf of the third respondent that 18th, 20th, 22nd and
23rd October 1988 were the closed holidays; but no explana-
tion is given as to why the representation was not attended
to and disposed of on 17th, 19th, 21st, 24th to 26th Octo-
ber. In explaining the delay in communicating the decision
taken on 27.10.88 it is stated that 29th and 30th October
were holidays but the affidavit is silent as to why that
decision had not been communicated to the detenu either on
27th or 28th October, 1988.
196
With regard to the delay of 14 days in passing the
information required by the 3rd respondent, the 2nd respond-
ent (the State Government) in its affidavit states that it
received the parawise comments of the detaining authority on
the representation of the detenu on 12.10.88 and thereafter
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it forwarded the same to the 3rd respondent. The 1st re-
spondent (the detaining authority) has filed a separate
affidavit stating that since the officer of the Dadar police
station was attending the meeting of the Advisory Board on
the 7th and 11th October, 1988, a delay of 7 days had oc-
curred in forwarding his parawise comments to the 2nd re-
spondent. These explanations given by both the Ist and the
2nd respondents are not at all satisfactory and we are left
with an impression that the 1st and the 2nd respondents had
not diligently collected the informations required by the
3rd respondent and thereby caused a considerable delay which
had further delayed the consideration and disposal of the
representation of the detenu by the 3rd respondent.
We shall now examine the proposition of law relating to
the delayed consideration and disposal of the representation
of a detenu with reference to the judicial pronouncements.
There is a line of decisions of this Court dealing with
this aspect of law of which we shall make reference to a
few.
In Dayanarayan Sukul v. State of West Bengal, [1970] 1
SCC 219 the following observation has been made:
"It is established beyond any measure of doubt
that the appropriate authority is bound to
consider the representation of the detenu as
early as possible. The appropriate Government
itself is bound to consider the representation
as expeditiously as possible. The reason for
immediate consideration of the representation
is too obvious to be stressed. The personal
liberty of a person is at stake. Any delay
would not only be an irresponsible act on the
part of the appropriate authority but also
unconstitutional because the Constitution
enshrines the fundamental right of a detenu to
have his representation considered and it is
imperative that when the liberty of a person
is in peril immediate action should be taken
by the relevant authorities."
This Court in Niranjan Singh v. State of Madhya Pradesh,
[1973] 1 SCR 691 expressed the view that it is incumbent on
the State to
197
explain the inordinate delay in considering and rejecting
the representation of the detenu and satisfy the Court that
there was justification in that delay.
While dealing with the constitutional requirement of
expeditious consideration of the detenu’s representation by
the Government as spelt out from Clause 5 of Article 22 of
the Constitution this Court, after referring to the deci-
sions in Abdul Karim and Others v. State of West Bengal,
[1969] 1 SCC 433 and Pankaj Kumar Chakraborty and Others v.
State of West Bengal, [1969] 3 SCC 400 has stated in Rashik
Sk. v. State of West Bengal, [1973] 3 SCC 476, as follows:
"It is undoubtedly true that neither the
Constitution nor the Act expressly provides
for consideration of a detenu’s representation
by the State Government within any specified
period of time. The constitutional requirement
of expeditious consideration of the petition-
er’s representation by the State Government
has, however, been spelt out by this Court
from clause (5) of Article 22 of the Constitu-
tion."
XXXXXXX XXXXXXX
XXXXXXX
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"The use of the words "as soon as may be"
(occurred in Article 22(5) of the Constitu-
tion) is important. It reflects the anxiety on
the part of the framers of the Constitution to
enable the detenu to know the grounds on which
the order of his detention has been made so
that he can make an effective representation
against it at the earliest. The ultimate
objective of this provision can only be the
most speedy consideration of his representa-
tion by the authorities concerned, for, with-
out its expeditious consideration with a sense
of urgency the basic purpose of affording
earliest opportunity of making the representa-
tion is likely to be defeated. This right to
represent and to have the representation
considered at the earliest flows from the
constitutional guarantee of the right to
personal liberty-the right which is highly
cherished in our Republic and its protection
against arbitrary and unlawful invasion.’
XXXXXXXXXX XXXXXXXXXX
XXXXXXXXXX
"Now, whether or not the State Government has
in a given
198
case considered the representation made by the
detenu as soon as possible, in other words,
with reasonable dispatch, must necessarily
depend on the facts and circumstances of that
case, it being neither possible nor advisable
to lay down any rigid period of time uniformly
applicable to all cases. The Court has in each
case to consider judicially on the available
material if the gap between the receipt of the
representation and its consideration by the
State Government is so unreasonably long and
the explanation for the delay offered by the
State Government so unsatisfactory as to
render the detention order thereafter
illegal."
Chinnappa Reddy, J. speaking for the bench in Smt.
Shalini Soni and Others v. Union of India & Ors., [1980] 4
SCC 544 has emphasised the constitutional obligation on the
part of the authorities concerned in dealing with the repre-
sentation of a detenu as follows:
"Quite obviously, the obligation imposed on
the detaining authority, by Article 22(5) of
the Constitution, to afford to the detenu the
earliest opportunity of making a representa-
tion, carries with it the imperative implica-
tion that the representation shall be consid-
ered at the earliest opportunity. Since all
the constitutional protection that a detenu
can claim is the little that is afforded by
the procedural safeguards prescribed by Arti-
cle 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 impera-
tive must lead to the release of the detenu."
See also B. Sundar Rao and Others v. State of Orissa,
[1972] 3 SCC 11; Jnanendra Nath Roy v. The State of West
Bengal, [1972] 4 SCC 50; Frances Coralie Mullin v. W.C.
Khambra and Others, [1980] 2 SCC 275; Vijay Kumar v. State
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of Jammu and Kashmir & Ors., [1982] 2 SCC 43; Raisuddin
alias Babu Tamchi v. State of Uttar Pradesh and another,
[1983] 4 SCC 537 and Mohinuddin alias Moin Master and Ors.
v. D.M. Beed, [1987] 4 SCC 58.
The propositions deducible from the various reported
decisions of this Court can be stated thus:
The detenu has an independent constitutional right to
make his representation under Article 22(5) of the Constitu-
tion of India.
199
Correspondingly, there is a constitutional mandate command-
ing the concerned authority to whom the detenu forwards his
representation questioning the correctness of the detention
order clamped upon him and requesting for his release, to
consider the said representation within reasonable dispatch
and to dispose the same as expeditiously as possible. This
constitutional requirement must be satisfied with respect
but if this constitutional imperative is observed in breach,
it would amount to negation of the constitutional obligation
rendering the continued detention constitutionally impermis-
sible and illegal, since such a breach would defeat the very
concept of liberty--the highly cherished right--which is
enshrined in Article 21 of the Constitution.
True, there is no prescribed period either under the
provisions of the Constitution or under the concerned deten-
tion law within which the representation should be dealt
with. The use of the word "as soon as may be" occurring in
Article 22(5) of the Constitution reflects that the repre-
sentation should be expeditiously considered and disposed of
with due promptitude and diligence and with a sense of
urgency and without avoidable delay. What is reasonable
dispatch depends on the facts and circumstances or’ each
case and no hard and fast rule can be laid down in that
regard. However, in case the gap between the receipt of the
representation and its consideration by the authority is so
unreasonably long and the explanation offered by the author-
ity is so unsatisfactory, such delay could vitiate the order
of detention.
Coming to the facts of this case, we shall now examine
whether the delay that had occurred in consideration and
disposal of the representation of the detenu is so inordi-
nate and unreasonable vitiating the order of detention or
whether that delay is satisfactorily explained by the third
respondent.
In the instant case, the gap between the receipt and the
disposal of the representation is 28 days but upto the date
of service of the order of rejection on the detenu the delay
amounts to 32 days. The only explanation offered by the
third respondent is that further information required from
the State Government was received by the third respondent on
17.10.88 after a delay of nearly 14 days and then the repre-
sentation of the detenu was disposed of on 27.10.88 within
which period there were certain holidays. Barring that,
there is no other explanation. This delay when scrutinised
in the light of the proposition of law adumberated above, we
are of the view, that there is an inordi-
200
nate and unreasonable delay and the present explanation
given by the third respondent is not satisfactory and ac-
ceptable.
Hence, for the aforementioned reasons we set aside the
impugned order of detention on the ground that there is a
breach of constitutional obligation as enshrined under
Article 22(5) of the Constitution of India.
In the result the appeal as well as the Writ Petition
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are allowed. The detenu is directed to be set at liberty
forthwith.
Y.L. Petitions Allowed.
?201