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TMI Blog2015 (5) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Supreme Court is to be honestly carried out by the Authority, the Authority should endeavor to prepare themselves to deal with such representation more expeditiously in the interest of upholding the law. The file is said to have been received from Nagpur in Mumbai on 23.12.2014 after which the rejection intimation was sent to Nashik Road central prison. If that be so, we wonder how in the affidavit on behalf of DRI it is stated that it received a communication from the office of Detaining Authority to the effect that the representation made by the detenu was rejected by the Detaining Authority on 19.12.2014. Surely, there is more than meets the eye. Since admittedly, the Additional Chief Secretary had rejected the representation on 20.12.2014 there is no explanation on how communication of the said decision could have been received by the DRI on 19.12.2014. We are, therefore, convinced beyond all reasonable doubt that the delay is not properly explained and continued detention of the detenu is in violation of the constitutional mandate of Article 22(5) of the Constitution of India and order of detention stands vitiated - Decided in favour of appellant. - WRIT PETITION NO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the retraction statement dated 4.10.2013 and the impugned detention order came to be passed on 29.9.2014. The detention order was executed on 25.10.2014. The detenu has been lodged in Central Prison, Nashik since. 4. We have heard learned counsel for the parties. On behalf of the applicant Mr.V.B. Singh learned Advocate confined his challenge to ground (H) in the petition, without prejudice to various other grounds. Learned counsel submitted that the detenu had submitted a representation addressed to the Detaining Authority, State Government, Central Government and the State Advisory Board through the Superintendent of Nashik Central Jail which was not expeditiously considered. The learned counsel urged that the reply to the said representation of the detenu ought to have been served upon the detenu without loss of time and in any event within reasonable time. According to him a reply to representation ought to have been issued independently by the Detaining Authority and State Government uninfluenced by the views of the Advisory board. In view of the fact that the replies were not so served, he submitted the detention would be violative of Article 22(5) of the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of Sunday. Further there were holidays on 7.12.2014, 12.12.2014 and 13.12.2014 on account of Sunday, Second Saturday and Sunday. The parawise comments from the Sponsoring Authority were received on 17.12.2014 by the letter dated 16.12.2014. We cannot help observing that the dates of receipt of representation and date of calling of parawise comments and sending letter for reminder are all identical to the dates mentioned in the affidavit of the Detaining Authority. 8. It appears that parawise comments were sent to the Additional Chief Secretary on 17.12.2014. The affidavit further goes on to state that the Deputy Secretary and Additional Chief Secretary (Home) were in Nagpur apparently to attend the Winter Session of Maharashtra Legislative Assembly session at Nagpur which commenced on 8.12.2014. In view of the fact that there was no possibility of the two gentlemen returning to Mumbai till the end of the Assembly Session, the file was sent to Nagpur on 18.12.2014. After considering the representation of the detenu and the parawise comments from the Sponsoring Authority and the Additional Chief Secretary (Home) rejected the representation on 20.12.2014. The file sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, the time taken to decide the representation of the detenu is not justifiable specially in the light of various pronouncement of the Hon'ble Apex Court. In the case of Harish Pahwa Vs. State of U.P. AIR 1981 SC 1126, the Supreme Court observed that the manner in which the representation (made by the appellant in that case) was dealt reveals a sorry state of affairs. Considering the fact that the representation was made by a person detained without trial , the Supreme Court observed that there is no justification for the delay and why the representation has to travel from table to table for six days before reaching the Authority who was to decide the representation. The Court observed, as it did on numerous earlier occasions, that such delay cannot be looked upon with equanimity when the liberty of a person is concerned. That the State is expected to treat the matter with utmost expedition, meaning thereby that the matter must be taken into consideration as soon as such a representation is received and, must be dealt with continuously unless it was absolutely essential to wait for some assistance in connect ion with it until a final decision is taken and communicated to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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 authority is so unsatisfactory, such delay could vitiate the order of detention. It is to be noted that Article 22(5) enjoins upon the State to satisfy the constitutional requirement but if this constitutional imperative is observed in the breach, it would amount to negation of the constitutional obligation thereby rendering continued detent ion impermissible. The Supreme Court highlighted the fact that the representation should be expeditiously decided with due promptitude and without avoidable delay. 13. Having considered the facts of the present case and having applied the tests laid down by the Supreme Court in the aforesaid pronouncements, the response of the concerned respondents is unacceptable. The manner in which the representation of the detenue was dealt with does not in our view comply with the constitutional mandate and falls foul of the obligation to decide the representation as soon as may be in Article 22(5) of the Constitution. In our view the representation could h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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