Case: Niranjan Singh Vs. State Of Madhya-Pradesh

1. By this application under Art. 32 of the Constitution, the petitioner challenges his detention under S.2-A of the Madhya Pradesh Public Security (Amendment) Act of 1970 (hereinafter called the Act). The District Magistrate of Gwalior by his order dated May 26, 1971 under the said Act thought it necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds on which the detention was sought to be justified were dated the same day and appear to have been served on the detenu, though it is not apparent on what date those grounds were served on him. As he was informed by the Government that he has a right to make a representation within a period of 30 days, the petitioner says that he submitted his representation to the State Government on June 19, 1971 but here again there is nothing to show from the counter-affidavit of the respondent as to when that representation was received or on what date it was considered and rejected. The petitioner, however, alleges that his representation was dismissed on August 17, 1971 by the Governor of Madhya Pradesh relying on the recommendation of the Advisory Board. In other words, it is his contention that his representation was not considered till after the Advisory Board had given its opinion to the State Government and only then it was rejected. Whether this is so or not, we are in no position to ascertain. It is true that the Advisory Board, as appears from the order of the Governor, was of the opinion that there exists sufficient grounds for the detention of the petitioner and consequently the Government acting on that opinion confirmed the order of detention passed against the petitioner and directed that the order of detention shall remain in force till 26th May, 1972. The detenu filed a Writ Petition in the High Court of Madhya Pradesh under Art. 226 of the Constitution challenging the detention order on the ground that his previous conviction in 1964 could not form the basis for detention and that the other grounds mentioned in the grounds served on him were all vague and non-existent as on the date the detention order was passed. Jagmohan was no more. Even the ground that in May-June, 1969, four rifles of 303 bore were given to Sobran Singh for Rs.4,000/- was also vague. This petition was, however, rejected by a Division Bench of the High Court by its judgment dated September 18, 1971.

Reasoning: 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.