ICTION Writ Petition Crl No 86 of 1989
Criminal Appeal No 376 of 1989
Under Article 32 of the Constitution of India
RB Thakre Avadhut M Chimalker Deepak and MN Nargolkar for the PetitionerAppellant
TC Sharma Ms A Subhashini AM Khanwilkar and AS Bhasme for the Respondents
The Judgment of the Court was delivered by section 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 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 31888
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 941988 at about 1130 pm 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 1041988 the detenu along with his associates went to a pharmaceutical company at Worli and demanded a sum of Rs3000 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 18388 for offences under Sections 384 and 114 of the Indian Penal Code
On 14488 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 9888
But later on he was released on bail 3 On 1888 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 291288 was registered in Dadar Police Station under the Bombay Police Act 195 1
On 2888 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 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 lantpetitioner 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 26988 and as such the continued detention of the appellant is unconstitutional and illegal being violative of the mandato ry provisions of Article 225 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 26988
But the 3rd respondent which has already completed the examination of the report dated 6988 sent by the 2nd respondent the State Government under Section 35 of the Act even on 13988
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 310
1988 to the State Government asking for further infor mations
The required information was received by the third respondent only on 171088
Thereafter the representation was considered and the final decision to reject it was taken on 271088 and the decision of the Central Government rejecting the representation was communicated to the appel lant through crash wireless message on 311088
In attempting to explain the delay from 171088 to 271088 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 271088 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 121088 and thereafter 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 vs State of West Bengal  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 vs State of Madhya Pradesh  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 vs State of West Bengal  and Pankaj Kumar Chakraborty and Others vs State of West Bengal  has stated in Rashik Sk
vs State of West Bengal  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 The use of the words as soon as may be occurred in Article 225 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 vs Union of India  Ors
  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 225 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 225 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 vs State of Orissa  Jnanendra Nath Roy vs The State of West Bengal  Frances Coralie Mullin vs WC Khambra and Others   Vijay Kumar vs State of Jammu and Kashmir  Ors   Raisuddin alias Babu Tamchi vs State of Uttar Pradesh and another  and Mohinuddin alias Moin Master and Ors
vs DM Beed  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 225 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 225 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 171088 after a delay of nearly 14 days and then the repre sentation of the detenu was disposed of on 271088 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 225 of the Constitution of India
In the result the appeal as well as the Writ Petition are allowed
The detenu is directed to be set at liberty forthwith
YL Petitions Allowed


Summary:
Section 41 of the West Bengal Rural Employment
and Production Act 1976 provided for levy of rural employment cess on immovable properties
Clause aa of section 42 as amended by section 7b of the West Bengal Taxation Laws Amend ment Act 1981 provided for levy of rural employment cess in respect of tea estates on the despatches of tea grown therein
The first proviso thereto provided for exclusion of despatches of tea for sale made at recognised centres
The second proviso thereto empowered the State Government 10 fix different rates of cess on despatches of different classes of tea
Sub section 4 of the amended section 4 provided for exemption of certain categories of despatches from the liability to pay the whole or part of the cess or to reduce the rate of the cess payable thereon
The first proviso to section 42aa was
however omitted by the West Bengal Taxa tion Laws Amendment Act 1982
Article 304b of the Constitution permits the legislature of a State to impose reasonable restrictions on the freedom of trade commerce or intercourse with or within that State provided the Bill or amendment for that purpose is introduced with the previous sanction of the President
It was contended for the petitioners that the levy of the cess under section 41 read with section 42aa of the Act as amended in 1981 and 1982
was violative of the freedom guaranteed by Article 301 of the Constitu 294 tion and also lay outside the legislative competence of the State Government
Allowing the writ petitions
HELD 11 If the levy of a tax on goods has direct and immediate effect of impeding the movement of goods through out the territory of India there is a violation of Article 301 of the Constitution
If however the impact of the levy is indirect or remote no valid complaint can be made in relation to Article 301
There is also no violation of Article 301 if the case fails under Article 304b and its proviso
299F 300D E 12 Therefore if the legislature of a State enacts a law which imposes such reasonable restrictions on the free dom of trade commerce or intercourse with or within that State as may be required in the public interest and further that the Bill or amendment for the purposes of clause b has been introduced or moved in the Legislature of a State with the previous sanction of the President such enactment will not offend Article 301
The rural employment cess in the instant case was a tax
300F 299F Ariabari Tea Co Ltd vs The State of Assam  Ors   The Automobile Transport Rajasthan Ltd vs The State of Rajasthan  Ors 1963 1 SCR 491 Firm ATB Mehtab Majid and Company vs State of Madras  Anr 1963 Suppl
2 SCR 435 Kalyani Stores vs TIre State of Orissa  Ors   State of Mysore vs Ii
Sanjeeviah  and Andhra Sugars Ltd  Anr
vs State of Andhra Pradesh  Ors
   referred to
21 To determine whether the levy was in respect of tea estates and therefore of land thus making an indirect impact or was a levy on despatches of tea thereby directly impeding movement of goods the substance of the legislation must be ascertained from the relevant provisions of the statute
301B 22 The subject of the levy the nature of which de fines the quality of the levy however must not be confused with the measure of liability that is to say the quantum of the tax
Furthermore the standards laid down for measur ing the liability under the levy must bear a relationship to the nature of levy
301B C 302D E 295 Union of India  Ors
vs Bombay Tyre International Ltd 23 If the levy is regarded as one in respect of tea estates and the measure of the liability is defined in terms of the weight of tea despatched from the tea estate there must be a nexus between the two indicating a relationship between the levy on the tea estate and the criteria for determining the measure of liability
If there is no nexus at all it can conceivably be inferred that the levy is not what it purports to be
301H 302A 24 In the instant case the nexus with the tea estate is lost altogether in the provisions for exemption or reduc tion of the levy and throughout the nexus is confined to despatches of tea rather than related to the tea estate
There is nothing to suggest that a particular tea estate produces only one class of tea and when reference is made to a certain class of tea the reference identifies a certain class of tea estates
302E F 25 While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions
Variations considered appropriate for the purpose of determining the measure must correspond to variations in the subject of the levy
If the measure of levy is to vary with the despatches of different classes of tea there must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy
So also if the measure varies with the centre of sale of tea the variation must relate to a reason to be found in the nature of the tea estate concerned
Ultimately the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy
302F 303A 26 In the instant case the relevant statutory provi sions including section 42aa and section 44 indicate no such relationship or nexus between the tea estate and the varied treatment accorded in respect of the despatch of different kinds of tea
The levy of rural employment cess was there fore a levy in respect of despatches of tea and not in respect of tea estates
It must thus be regarded as con stituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India
303B C 27 Such a levy could avoid the injunction declared in Article 301 296 only if it satisfied the provisions of Article 304b and the proviso thereto
The amendments made to the West Bengal Act in 1981 and 1982 had not been moved in the Legislature of the State with the previous sanction of the President
The provisions brought into the Act by the said amendments were therefore unconstitutional and void and could not be given effect to
303C D F G 3
Under the Parliament had assumed con trol of the tea industry including the tea trade and control of tea prices
Under section 25 of that Act a cess on tea pro duced in India had also been imposed
The State legislation imposing a cess on despatches of tea was therefore also void for want of legislative competence as it pertained to a covered field
304B