IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.396 of 2010 SATYENDRA PRASAD @ DADANJI @ RAHULJI @ NARESHJI Versus STATE OF BIHAR & ANR ----------- For the Petitioner:- Shree Krishna Prasad Singh, Sr. Adv. Mr. Bhaskar Shankar, Adv. For the State:- Mr. K.K. Jha, Adv. -------------- 4. 23.6.2010 Heard learned counsel for the petitioner and learned counsel for the State. Three counter affidavits have been filed on behalf of the respondents. The first is by the Superintendent of Police, Dehri-on-Sone, the second is on behalf of the Principal Secretary, Department of Home (Police), the Secretary, Department of Home (Police) and the Under Secretary, Department of Home (Police) and the third counter affidavit is on behalf of the District Magistrate, Rohtas at Sasaram affirmed by the Director, NEP, Incharge Legal Section, Collectorate, Rohtas at Sasaram. The petitioner was preventively detained under Section 12(2) of the Bihar Control of Crime Act 1981 (hereinafter referred to as the Crime Act) by order dated 9.12.2009. The grounds were served on him on 10.12.2009 in accordance with Section 17 of the Crime Act. He submitted his reply to the same on 19.12.2009 before the Superintendent of District Jail, Sasaram. The detention was approved by the State Government on 19.12.2009 and by 2 the advisory board on 19.1.2010. The statutory representation of the petitioner submitted on 19.12.2009 before the Jail Superintendent was forwarded by the latter to the Home Department (Police) on 24.12.2009. It was sent to the detaining authority for his comments on 29.12.2009, as it is stated that 25.12.2009 to 28.12.2009 were holidays. The detaining authority furnished his comments on 18.1.2010, when the representation was examined thoroughly by the State Government at different levels and approved ultimately on 24.1.2010 as communicated to the petitioner on 28.1.2010. Learned counsel for the petitioner has urged that preventive detention stands apart from routine detention. It is not a curtailment of liberty for an offending act but in perceived apprehension of an offending act. Therefore, the constitutional safeguards under Article 22(5) of the Constitution of India have to be scrupulously followed as it concerns the constitutional guarantee of liberty. Delay in consideration of the representation shall vitiate the detention as it results in unjustified incarceration and custody curtailing the liberty of the citizen for what is urged as non-justifiable reason. Strong reliance has been placed on A.I.R. 1999 SC 684, 2009(3) PLJR 77 and 2008(4) PLJR 553 to urge that delay in consideration of the representation is writ large at every step and there is no explanation worth 3 the name in the several counter affidavits filed. The detention is therefore vitiated. Counsel for the State sought to persuade this Court that what shall be a reasonable time for disposal of the representation shall depend on the facts of the case. The delay must not be fatal in nature. Official procedures take a reasonable time as the files have to move and are examined at several levels. There has been no deliberate or conscious delay to defeat the liberty of the petitioner. Lastly, it was urged that the aspect of the liberty of the citizen has to be balanced with the larger interest of the society. It was strenuously urged that the petitioner is an accused in several cases of serious offences being a hard core Naxalite. If he is not preventively detained, it shall be prejudicial to the maintenance of public order. Learned counsel has strongly relied upon (2000) 7 SCC 606 (Kantilal Hirji Shah Vs. State of T.N. & Ors.) Paragraphs 4 and 5 and (2009) 5 SCC 296 (Pooja Batra Vs. Union of India & Ors.) Paragraphs 11, 12 and 13. The constitutional mandate for individual liberty guaranteed under Article 22(5) of the Constitution of India finds reflection in the need for expeditious disposal of the representation by the detenue. This finds statutory expression in Section 17 of the Crime Act. Considering the need to balance the liberty of the citizen with the need for 4 preventive detention in A.I.R. 1999 SC 684, Rajammal Vs. State of T.N. & Ors., relied upon by the petitioner, the Supreme Court observed that there can be no hard and fast rule with regard to time for disposal of the representation and it would depend on the facts and circumstances of each case. No period was prescribed under the Constitution on the detention law. However, there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in disposal of the representation would be a breach of the Constitutional mandate rendering the continued detention impermissible and illegal. The Court emphasized that it was not the duration of the delay but the explanation furnished for the delay that was more important. Indifference or lapse in expeditiously considering the representation shall adversely affect further detention. What was observed a decade ago by the Supreme Court in Paragraph-7 of Rajammal (supra) still holds good with regard to the respondents. “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 other files rusting in the secretariat for 5 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." If the authorities refuse to wake up to their constitutional obligations, sublime in their own belief of absolute power without any appreciation of answerability or accountability not only to the Constitution but to the citizen also, there is little that the Court can do about it except to perform its duties by upholding the liberty of the citizen. This Court considers it proper to quote Paragraph-8 of the same Judgment :- “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 6 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 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." We have carefully gone through the three counter affidavits filed on behalf of the respondents. We are constrained to observe that though the issue is of the liberty of the citizen and maintenance of public order by the respondents , the utmost casualness with which the counter affidavits have been filed by the respondent officials of the State Government, suffice it to say disappoints the Court. It is casual to the extent of abdication of responsibilities. There is absolutely no explanation whatsoever as to why the representation submitted by the petitioner on 19.12.2009 was kept by the Superintendent, District Jail, 7 Sasaram with him and forwarded five days later on 24.12.2009. No attempt has been made to explain the same as if it was an irrelevant issue. Even if the explanation of the respondents for the period 24.12.2009 to 28.12.2009, on account of the intervening holidays is accepted, still there is absolutely no explanation even by the District Magistrate himself in his counter affidavit for sleeping over the representation from 29.12.2009 to 18.1.2010. It is unfortunate that the detaining authority remained unmindful of its constitutional obligations towards the liberty of the citizen, needed a reminder, and then passed appropriate orders after nearly twenty days. On the facts of the present case, we are satisfied that it is not necessary for us to deal with the delay of twenty days by the detaining authority as the detention stands vitiated on account of the very first unexplained delay of five days in forwarding the representation of the petitioner to the authorities by the Superintendent District Jail, Sasaram. In A.I.R. 1989 Supreme Court 1403 (Aslam Ahmed Zahire Ahmed Shaik), there was a delay of seven days in forwarding of the representation by the Jail authorities. Quashing the order of detention on that ground alone, the Supreme Court noticed that no explanation whatsoever had been offered for this delay on part of the Jail Superintendent observing in the relevant extract at 8 Paragraph- 10 from A.I.R. 1982 Supreme Court 1023 (Vijay Kumar Vs. State of Jammu & Kashmir) as follows:- “"The Jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earlier opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to -make his representation against his detention to the. Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order." We find that there is a striking similarity between the case of Aslam Ahmed Zahire Ahmed Shaik (supra) considered by the Supreme Court and the present. The case of Kantilal Hirashal (supra) relied upon by the respondents can be easily distinguished from the observation contained in Paragraph-5 of the judgment that the delay had been explained from day to day in the counter 9 affidavit. In the case of Pooja Batra (supra) relied upon by the respondents, the representation of the detenue had been forwarded by the Superintendent of Jail the very day that it was received by him. The liberty of the citizen sacrosanct under the Constitution cannot be sacrificed at the altar of administrative deficiency. It is for the respondents to set their own house in order by fixing accountability and answerability of their officers if public order be there genuine concern. The aforesaid discussion lead us to the conclusion that the detention of the petitioner stands vitiated on account of unreasonable delay in consideration of his representation by the respondents which remains completely unexplained in their counter affidavits. The petitioner is directed to be released and set at liberty forthwith unless he is wanted in any other case. The writ application stands allowed. No order as to costs. P. Kumar ( Navin Sinha, J.) (Dinesh Kumar Singh, J.)