Case: Ranjit Dam Vs. State of West Bengal

Board. The reason given in this counter-affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory. But as nothing turns on that fact we need say no more about it for the present. The counter-affidavit affirms the fact of the Government having received the petitioners said representation on July 9, 1971, as also the fact of the State Government having considered and rejected it. The counter-affidavit, however, does not set out the dates when the Government rejected the said representation. Indeed, it leaves the date blank, and only states that after such rejection the Government forwarded that representation to the Advisory Board for its consideration. The counter-affidavit thus does not throw any light as to the date when the Government disposed of the said representation, nor the date when it sent it to the Board. 7. for the respondent-State, however, was good enough to produce the Government file in connection with the petitioner. That file showed that the Government had sent the said representation to the Board of July 27, 1971, for its consideration. This fact read along with the counter-affidavit would show that the Government must have considered and rejected the said representation on or before July 27, 1971. The date of such rejection being kept blank in the counter-affidavit, it is not possible, however, to say when exactly the Government passed its order rejecting the representation. The counter-affidavit also did not explain why the Government took time between July 9 and 27, 1971, in disposing of the said representation. Thus, the delay, prima facie, of 19 days has remained unexplained by reason of the counter-affidavit keeping silence about the date of rejection. 8. The question is whether such delay can be considered in the circumstances of the case to be undue delay as contended by counsel. 9. In Khairul Haque v. State of West Bengal (Writ Petition No. 246 of 1969, decided on September 10, 1969.), this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation in the light of all the facts and circumstances of the case considered by an Advisory Board. The principle on which such a right was deduced was that the fact Article 22(5) enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such a representation must, when made, be considered and disposed of as expeditiously as possible. For, otherwise the obligation to furnish the earliest opportunity to make a representation would lose both its purpose and meaning. Next, in Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) , Ray, J., in emphasising the need of expedition in considering a detenus representation said that since in such cases the personal liberty of a citizen was at stake, delay in such consideration would be unconstitutional because the Constitution enshrined the fundamental right of a detenu to have his representation considered and it was imperative that when the liberty of a person was in peril immediate action should be taken by the relevant authorities. He, however, added that no definite time could be laid down within which such representations should be dealt with save and except that it was a constitutional right of a detenu to have his representation considered as expeditiously as possible. It would, thus, depend upon the facts and circumstances of each case whether the appropriate Government had disposed of the representation expeditiously. Following these decisions, this Court held in Prof. Khaidem Ibocha Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , that an unexplained delay of 17 days was enough to render the detention illegal. Similarly, in Durga Show v. State of West Bengal (Writ Petition Nos. 198-205 of 1969, decided on September 2, 1969 : (1970) 3 SCC 696.) , delay of 16 days was held to have vitiated the detention. Recently, in Baidya Nath Chunnakar v. State of West Bengal (Writ Petition No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , delay of 29 days not accounted for by the State was considered enough to entitle a detenu to have his detention declared illegal. In Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) , on the other hand, although 34 days intervened between the receipt by Government of the representation and its disposal by it, the delay was held not to be undue as it was satisfactorily explained. Thus the Court would look into the facts and circumstances of each case and decide whether the detaining authority, in exercise of its extraordinary power to detain a person without trial, has discharged its duty with sufficient alacrity and without any undue tardiness. 10. There is no doubt that in the present case there was delay in considering the petitioners representation. The counter-affidavit filed by the State kept blank the data when it was dealt with and disposed of by the Government. The only thing that counsel could gather from the file relating to the detenu was that the Government received it on July 9, 1971 and submitted it to the Board on July 27, 1971. But counsel could not say either from the counter-affidavit from the said file the precise date of its disposal by Government. The Government must have known from the decisions referred to earlier that it had to explain the delay and yet kept the date of the disposal blank in the affidavit and did not also offer any explanation for the intervening period of 19 days. In the circumstances of the case we are constrained to hold that there was delay of 19 days which remained unexplained and which in view of the decisions referred to above rendered the petitioners detention illegal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. The petition was resisted by the Government who filed at of the Assistant Secretary, Home (Special) Department. The Assistant Secretary was authorised, it appears, to file it as the District Magistrate who passed the impugned order was at the time not available as he had since then been appointed the Secretary of the State Electricity Board. The reason given in thist for the District Magistrate not making the affidavit himself does not appear to be satisfactory. But as nothing turns on that fact we need say no more about it for the present. Thet affirms the fact of the Government having received the petitioners said representation on July 9, 1971, as also the fact of the State Government having considered and rejected it. The, however, does not set out the dates when the Government rejected the said representation. Indeed, it leaves the date blank, and only states that after such rejection the Government forwarded that representation to the Advisory Board for its consideration. Thet thus does not throw any light as to the date when the Government disposed of the said representation, nor the date when it sent it to the Board7. for the, however, was good enough to produce the Government file in connection with the petitioner. That file showed that the Government had sent the said representation to the Board of July 27, 1971, for its consideration. This fact read along with thet would show that the Government must have considered and rejected the said representation on or before July 27, 1971. The date of such rejection being kept blank in the, it is not possible, however, to say when exactly the Government passed its order rejecting the representation. Thet also did not explain why the Government took time between July 9 and 27, 1971, in disposing of the said representation. Thus, the delay, prima facie, of 19 days has remained unexplained by reason of thet keeping silence about the date of rejection10. There is no doubt that in the present case there was delay in considering the petitioners representation. Thet filed by the State kept blank the data when it was dealt with and disposed of by the Government. The only thing that counsel could gather from the file relating to the detenu was that the Government received it on July 9, 1971 and submitted it to the Board on July 27, 1971. But counsel could not say either from thet from the said file the precise date of its disposal by Government. The Government must have known from the decisions referred to earlier that it had to explain the delay and yet kept the date of the disposal blank in the affidavit and did not also offer any explanation for the intervening period of 19 days. In the circumstances of the case we are constrained to hold that there was delay of 19 days which remained unexplained and which in view of the decisions referred to above rendered the petitioners detention illegal.