IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.246 of 2010 SUDAMA YADAV, S/O DUDHNATH YADAV, RESIDENT OF VILLAGE- HUSSAINABAD, P.S.-NASRIGANJ (RAJPUR), DISTRICT-ROHTAS ….. PETITIONER Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, ROHTAS 3. SUB DIVISION OFFICER, DEHRI 4. PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT OF BIHAR ….. RESPONDENTS For the Petitioner :- Mr. Shakil Ahmad Khan, Sr. Advocate & Mr. Sajid Salim Khan, Advocate For the State :- Mr. Manoj Kumar Sinha, A.C. to G.P.-I ----------- 06 06.07.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was preventively detained by an order dated 2.9.2009 under Section 12 (2) of the Bihar Control of Crimes Act, 1981 (hereinafter called the Act) till 3.9.2010. He questions the same in the present application. Only after the matter was adjourned twice, counter affidavit has been filed on behalf of respondents on 13.4.2010 affirmed by a senior officer of the rank of District Magistrate. It is not in controversy that a copy of the detention order has been served upon the petitioner in terms of Section 17 of the Act and that he filed his 2 representation against the same on 19.09.2009. Learned counsel for the petitioner submitted that the representation submitted on 19.9.2009, was forwarded to the District Magistrate by the Superintendent of the District Jail, Sasaram, the same day. The District Magistrate called for the comments of the Superintendent of Police only on 29.9.2009 which was received on 2.10.2009, whereafter report on the representation was forwarded on 19.10.2009 to the State Government which confirmed the detention on 23.10.2009. The submission therefore is of unexplained and unreasonable delay in disposal of his representation vitiating the detention. Learned counsel for the State submitted from the counter affidavit that the delay in disposal of the representation was “on account of holidays and engagements in law and order matters”, as explained in paragraph 18 of the counter affidavit. There is no other or further pleading/explanation in the counter affidavit filed by an officer of the rank of the District Magistrate. During the course of hearing, counsel for State sought adjournment to file further affidavit. The Court does not consider it appropriate to grant any further indulgence in a Habeas Corpus matter. It was 3 next submitted that the detention was approved by the State Government on 11.9.2009, as also by the Advisory Board, and confirmed by the State Government on 23.10.2009. The power of preventive detention has been held to be a serious inroad into the liberty of the citizen, and for that reason the Courts have held that the liberty of the citizen sacrosanct under Article 22 (5) of the Constitution has to be protected. The emphasis on the distinction between an order of preventive detention and of custody in respect of a particular offence needs no further deliberation. The purpose of the two are entirely different. There is no explanation at all in the counter affidavit for the delay in consideration of the representation by the District Magistrate from 20.9.2009 till 29.9.2009 when he sought comments from the Superintendent of Police. The latter having responded on 2.10.2009 there is again no explanation from 3.10.2009 to 19.10.2009 forwarding it belatedly to the State Government. It is settled law that it is not the duration of the delay, but the explanation for the delay in disposal of the representation which is crucial and the 4 determinative factor for protection of the liberty of the citizen under Article 22 (5) of the Constitution of India. In AIR 1989 SC 1403 (Aslam Ahmed Zahire Ahmed Shaik Versus U.O.I. & Others) an unexplained delay of 7 days was held to be unreasonable vitiating the detention in absence of any explanation for the same. The fact that the State Government and the Advisory Board may have approved the detention of the petitioner cannot be justification to condone the unexplained and unreasonable delay in disposal of his representation. Despite the observations of the Supreme Court in A.I.R. 1999 (SC) 684 (RAJAMMAL VERSUS STATE OF TAMIL NADU AND ANOTHER), the State officials remain sanguine about the absoluteness of the nature of their power. We consider it appropriate to quote the observation of the Supreme Court hereafter in the relevant extract of paragraphs 7 and 8 of the judgment as follows:- “7. .......We are reminded of the following observations made by this Court in Kundanbhai Dulabhai Sheikh v. District Magistrate, Ahmedabad (1996) 2 JT (SC) 532 : (1996) 3 SCC 194 : (1996 AIR SCW 1281, Para 21) : "In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all 5 other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the 'liberty and freedom' to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest." “8. 8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, (1991) 1 SCC 476 : (1991 AIR SCW 362). The following observations of the Bench can profitably be extracted here (Para 12 of AIR) : "It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The 6 words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal." The counter affidavit by a senior officer of the State is very casual. Perhaps it does not even appreciate the seriousness of the matter of an issue of public order vis-à-vis the liberty of the citizen. We are satisfied that no explanation worth the name , much less any at all, has been furnished by the District Magistrate, to explain the delay and justify the detention. The delay has to be explained reasonably for each day. It is for the respondents to set their own house in order by fixation of answerability and accountability upon those who deal leisurely with 7 matters which the State Government otherwise considers matters of grave urgency to ensure the balance between enforcement of public order and liberty of the citizen in accordance with law. We can do no better than act in accordance with the extract quoted from the judgment of the Supreme Court referred to above, insofar as our duty to uphold the liberty of the citizen is concerned. The liberty of the citizen guaranteed under the constitution cannot be sacrificed at the alter of administrative deficiency. The order of detention is quashed. The petitioner is directed to be set at liberty unless he is wanted in any other case. The application is allowed. P.K. ( Navin Sinha, J.) (Jyoti Saran, J.)