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TMI Blog1987 (7) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... guards 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 petitioner 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 Minister 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Vishwasrao, 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 National Security Act, 1980 are taken immediately, 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 unr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e representation is unreasonable and unexplained." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 discharging its duty to consider the representation, cannot depend upon the view 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. 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 obligation of the appropriate Government under Art. 22(5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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