Case: Niranjan Singh Vs. State Of Madhya-Pradesh

representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet-will and convenience. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu". These principles ae now well established in their application to the detention of a citizen under any law made by a State Legislature or by the Central Parliament. 4. The next question is, whether it is incumbent upon the State in a habeas corpus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in cl. (5) of Art. 22 of the Constitution. It is contended by the learned advocate for the petitioner that in a habeas corpus petition under Art. 32 when, a return is made by the State, it should set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further contends that the consequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned Advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy @ Katu v. State of West Bengal, (Writ Petn. No. 52 of 1972 (reported in AIR 1972 SC 1858 to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was not expeditiously considered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to the Advisory Board forthwith and subsequently consider that representation. In view of the delay in making the representation, the Government could not be blamed in not considering it expeditiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at a decision therein. It was only subsequently that they were in a position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained........See Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438 and Ranjit Dam v. State of West Bengal (W. P. No. 14 of 1972 decided by Shelat and Khanna, JJ. on 24th April, 1972) (reported in AIR 1972 SC 1753). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter-affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal.

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

Explanation:
1[ds]4. The next question is, whether it is incumbent upon the State in a habeas corpus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in cl. (5) of Art. 22 of the. It is contended by the learned advocate for the petitioner that in a habeas corpus petition under Art. 32 when, a return is made by the State, it should set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further contends that the consequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned Advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy @ Katu v. State of West Bengal, (Writ Petn. No. 52 of 1972 (reported in AIR 1972 SC 1858  to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was not expeditiously considered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to the Advisory Board forthwith and subsequently consider that representation. In view of the delay in making the representation, the Government could not be blamed in not considering it expeditiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at a decision therein. It was only subsequently that they were in a position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained........See Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438  and Ranjit Dam v. State of West Bengal (W. P. No. 14 of 1972 decided by Shelat and Khanna, JJ. on 24th April, 1972) (reported in AIR 1972 SC 1753). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter-affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal.