Judgment Case ID: 6469

Judgment:
ffidavit and the addi tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time. In fact	 he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse quent proceedings have been dealt with by the officials of the Secretariat. It is	 therefore	 terribly shocking and surprising that a police officer who has no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come for ward to swear about the entire proceedings from the begin ning right up to the rejection of the representation includ ing the holding of the meeting of the Advisory Board on behalf of the appropriate authority. The affidavit filed by the Deputy Superintendent of Police is	 therefore	 not worth consideration. [841D F; 836F G] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30 1 of 1990. From the Judgment and Order dated 15.1.1990 of the Rajasthan High Court in H.C.P. No. 2866 of 1989. Pallave Shishodia	 Sandeep Mehta and D. Bhandari for the Appellant. Chandmal Lodha	 S.C. Gupta (N.P.)	 M.N. Shroff	 I. Makwana and Manoj Prasad for the Respondents. The Judgment of the Court was delivered by section RATNAVEL PANDIAN	 J. This appeal by grant of special leave is directed against the Order of the High Court of Rajasthan at Jodhpur in Habeas Corpus Petition No. 2866/1989 dismissing the Writ Petition filed by the detenu Gazi Khan @ Chotia. The order of detention dated 30.5. 1989 under challenge has been passed by the Administrative Secretary and Commis sioner	 Home Department	 State of Rajasthan in exercise of powers under Section 834 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act	 1989 (for short 'the Act ') on reaching his subjective satisfaction that the detenu has been involved in illegal business of smuggled charas and heroin and other psychotropic substances. The relevant facts as set out in the grounds of deten tion giving rise to this appeal may be recapitulated as follows: The detenu Gazi Khan @ Chotia was actively involved in illegal and objectionable activities by organising a group of smugglers and financing them in the activities of smug gling without directly involving himself in such activities. However	 the police of Jaisalmer has opened a history sheet showing the indirect involvement of the detenu in such smuggling activities. The modus operandi of the detenu is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were apprehended in the course of smuggling. On 3.11. 1986 the detenu has himself given a statement before the Customs Officer admit ting his involvement in smuggling of readymade garments and bides. He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act. But since no evidence was available incriminating the detenu with those offences no action could be taken. Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code. The detaining authority on the above materials placed before him has passed this impugned order. The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration. Hence this appeal. The learned counsel appearing on behalf of the appel lant	 raised several contentions	 the main thrust of which being that the representation made by the detenu was not decided within. a reasonable time and hence the delay is fatal to the detention. This point has been taken even before the High Court. But the High Court accepting the explanation given by the Deputy Superintendent of Police	 Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing: "In the present case as from the facts mentioned in the additional affidavit and referred to above	 it cannot be said that there was undue lethargy or indifference." 835 Under Ground No. (d) of paragraph 16 of the Special Leave Petition	 a contention is raised with regard to the delay of disposal of the representation stating that "the extraordinary delay of 27 days in consideration of representation of the petitioner is sought to be explained by mere ipso dixit of the detaining authorities who merely rest content with the skeletal chronology of days taken allegedly by several authorities with copies of unexplained silence about why actually several days as alleged by au thorities were taken to process and consider the representa tion of petitioner. " Before this Court a reply is filed by the Deputy Super intendent of Police	 Jaisalmer stating that he is "appointed as Officer Incharge in this case" and that he is replying to the allegations made in the Special Leave Petition with reference to the record connected with this case. In para graph 15(d) of his reply	 it is averred that "there is no delay in the consideration of representation of the peti tioner. " The same Deputy Superintendent of Police in an additional affidavit filed before the High Court has sought to explain the delay stating that the representation of the detenu was placed before the Assistant Secretary on 19.6. 1989 with a proposal that a report might be called from the District Magistrate	 Jaisalmer	 who was the sponsoring authority	 that the District Magistrate who received the communication on 22.6.1989 forwarded his comments to the State Government on 29.6.1989	 that the comments were re ceived by the State Government on 1.7. 1989 and were placed for perusal of the Assistant Secretary on 3.7.1989 and that the Assistant Secretary after putting up a note incorporat ing the comments of the District Magistrate on the represen tation placed the same for perusal to the Deputy Secretary on 9.7.1989 and thereafter on the recommendation of the Special Secretary (Home) the representation was rejected on 11.7.1989. A perusal of the above additional affidavit shows that the Deputy Superintendent of Police speaks on behalf of the detaining authority	 namely	 the State Government as well the authorities who dealt with the representation	 namely	 the Assistant Secretary and the Special Secretary (Home Department). Finally	 in regard to the delay in the disposal of the representation he states in para 7 of the said affi davit thus: " . . The delay has occasioned not by lack of deligence 836 or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority. " In this connection	 we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2. After the judgment was reserved	 we after going through the papers directed the matter to be reported for further hearing. Accordingly the matter was listed on 17.4.1990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and speaks for the detaining authority and other authorities who subse quently dealt with the file. The learned counsel took an adjournment and has now filed an additional affidavit sworn by the Commissioner and Secretary (Home Department) dated 21.4.1990. In the present additional affidavit no explana tion is given to our query. The explanation given by the Secretary in his affidavit for the complaint of delayed disposal of the representation is as follows: "That there was no inordinate delay in considering the representation of the petitioner and the same was rejected after careful consideration. " We are terribly shocked and surprised to note that a police officer who seems to have no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come forward to swear about the entire proceedings from the beginning right up to the rejection of the representation including the holding of the meeting of the Advisory Board on behalf of the appropriate authority. This practice of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings	 to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection. This Court on several occasions has expressed its views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by the detaining authority himself though it cannot be suggested as a rigid or inflexible rule applicable in all cases of detention under all circumstances. However	 when allegation of mala fide or abuse of powers or personal bias is attributed to the detaining authority	 the said authority should himself swear to the counter affidavit. In the ab sence of any such allegation in the petition a counter affidavit may be sworn by a responsible officer who person ally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned. A Constitution Bench of this Court in the State of Bombay vs Purushottam Jog Naik	 ; in which a similar question arose	 the learned Judges answered as follows: " . . if the Home Secretary has the requisite means of knowledge	 for example	 if the Minister had told him that he was satisfied or he had indicated satisfaction by his con duct and act and the Home Secretary 's affidavit was regarded as sufficient in the particular case	 then that would con stitute legally sufficient proof. But whether that would be enough in any given case	 or whether the "best evidence rule" should be applied in strictness in that particular case	 must necessarily depend upon its facts. In the present case	 there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day. But we do not intend to enter into the merits. All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida vit from the Minister in charge of the department is indis pensable in all such cases	 then they went too far." In Ranjit Dam vs State of West Bengal	 16 the counter affidavit was filed by the Assistant Secretary	 Home (Special) Department	 who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board. This Court in that circumstance stated thus: "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 terms on that fact we need say no more about it for the present. " Sarkaria	 J. in Shaik Hanif vs State of West Bengal	 ; observed thus: 838 "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective stand ards	 it is all the more desirable that in response to the rule nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the author ity on whose subjective satisfaction the detention order under Section 3_ .was passed. If for sufficient reason shown to the satisfaction of the Court	 the affidavit of the person who passed the order of detention under Section 3 cannot be furnished	 the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submit ted it to the Minister or other officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters. " The learned Judge after referring to Ranjit Dam 's case (albeit) and to I.N. Roy vs State of West Bengal	 stated as under: "Nevertheless	 the failure to furnish the counter affidavit of the Magistrate who passed the order of detention	 is an impropriety. In most cases	 it may not be of much conse quence but in a few cases	 for instance	 where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority	 it may	 taken in conjunction with other circumstances	 assume the shape of a serious infirmity	 leading the Court to declare the detention ille gal. " 71 having regard to the facts of that case wherein the Deputy Secretary Home) filed the counter instead of District Magistrate it was held that he mere omission to file the affidavit by District Magistrate did not vitiate the deten tion order. Speaking for the Bench	 Krishna Iyer	 J. in Bhut Nath Mete vs State of West Bengal	 11974] 1 SCC 645 at page 658 (para 21) has expressed his considered view on this point as hereunder: "True	 we should have expected an affidavit from the detain ing authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy. Why 839 is an affidavit then needed at all? The fact of subjective satisfaction	 solemnly reached	 considering relevant and excluding irrelevant facts	 sufficient in degree of danger and certainty to warrant pre emptive casting into prison	 is best made out by the detaining District Magistrate	 not one who professionally reads records and makes out a precis in the form of an affidavit. The purpose is missed	 going by the seriousness of the matter	 the proof is deficient	 going by ordinary rules of evidence	 and the Court is denied the benefit of the word of one who takes responsibility for the action	 if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of adminis tration	 an officer may be held up far away	 engrossed in other important work	 thus being unavailable to swear an affidavit. The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par ticipated in the process of approval by Government not one who	 long later	 reads old files and gives its gist to the Court. Mechanical means are easy but not legitimate. We emphasize this infirmity because routine summaries of files	 marked as affidavits	 appear in the returns to rules nisi	 showing scant courtesy to the constitutional gravity of deprivation of civil liberty. In some cases	 where a valid reason for the District Magistrate 's inability to swear affidavits directly has been furnished	 this Court has accepted the concerned Deputy Secretary 's affidavit. This should	 however	 be the exception	 not the rule. " Khanna	 J. in Asgar Ali vs District Magistrate	 Burdwan & Ors.	 while answering a contention that an affidavit by the detaining authority was essential for sustaining the validity of the detention order observed as follows: "Although normally the affidavit of the person actually making the detention order should be filed in a petition for a writ of habeas corpus	 the absence of such an affidavit would not necessarily be fatal for the case of the respond ents. It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduces a fatal infirmity. In case an allegation is made that the officer making the detention order was actuat ed by some personal bias against the detenu in 840 making the detention order	 the affidavit of the person making the detention order would be essential for repelling that allegation. Likewise	 such an affidavit would have to be filed in case serious allegations are made in the peti tion showing that the order was mala fide or based upon some extraneous considerations. In the absence of any such alle gation in the petition	 the fact that the affidavit filed on behalf of the respondents is not that of the District Magis trate but that of the Deputy Secretary	 Home (Special) Department of the Government of West Bengal would not by itself justify the quashing of the detention order. " In Suru Mallick vs State of West Bengal	 	 this Court accepted the affidavit of the Deputy Secretary (Home) who dealt with the matter as the District Magistrate was not available and preoccupied with some urgent business. In Gulab Mehra vs State of U.P. & Ors.	 [ 1988] 1 SCR 126	 a Station House Officer of Kydganj Police Station filed the counter stating that District Magistrate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future. Ray	 J. speaking for the Bench while setting aside the order of detention held thus: "This clearly goes to show that the Sub inspector has arro gated to himself the knowledge about the subjective satis faction of the District Magistrate on whom the power is conferred by the Act. The District Magistrate	 the detaining authority in this case has not chosen to file his affidavit. The affidavit in opposition filed by the Station Officer of Police implies that he has access to the file of the Dis trict Magistrate or he influenced the decision of the Dis trict Magistrate for making the detention order. " Again in State of Gujarat vs Sunil Fulchand Shah & Anr.	 ; 	 accepting a further affidavit of the Deputy Secretary (Home Department)	 this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally. However	 the Court said: "It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf	 but it cannot be sug gested as an inflexible rule applicable to all detention cases irrespective of the circumstances." 841 Recently in Madan Lal Anand vs Union of India	 Dutt	 J. speaking for the Bench pointed out: "There can be no doubt that a deponent who has no personal knowledge about any fact may	 on the basis of some other facts	 make his submissions to the court. We do not think that any importance should be attached to the said statement made by the deponent in the counter affidavit. " Thereafter the learned Judge has expressed his views that when there is an allegation of mala fide or bias made against the detaining authority	 then the detaining authori ty should himself swear to the counter affidavit. Ultimately having regard to the allegation made therein and to the fact that the Under Secretary to the Government has filed the counter	 the learned Judge pointed out: "Merely because the detaining authority has not sworn an affidavit	 it will not in all circumstances be fatal to the sustenance of the order of detention." As we have pointed out supra the reply affidavit and the additional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who does not seem to have any connection whatsoever with the passing of the order or dealing with or processing the file at any point of time. In fact	 the Deputy Superintendent of Police could not have got any personal knowledge with the passing of the order or its subsequent proceeding since the impugned order has been passed by the State Government and the subsequent proceedings have been dealt with by the officials of the Secretariat. Reverting to the facts of the case there is no explanation for the delay from 3rd to 9th July 1989	 i.e. for 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate. The present additional affidavit sworn to by the Commissioner and Secretary on 21.4.1990 also does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary. The learned counsel appearing for the appellant in support of his contention that the unexplained delay has vitiated the order has placed reliance on a decision of this Court in Rama Dhondu Borade vs V.K. Saraf	 Commissioner of Police & Ors.	 to which decision one of us (Ratnavel Pandian	 J.) was a party. In that decision 842 after referring to various decisions of this Court including Smt. Shalini Soni vs Union of India. [ ; the following proposition was laid down: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly	 there is a constitutional mandate commanding the concerned authority to whom the detenu for wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release	 to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach	 it would amount to negation of the consti tutional obligation rendering breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." However	 in the same decision it has been pointed out that "what is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard. " We have already expressed that the affidavit filed by the Deputy Superintendent of Police is not worth consideration and there is absolutely no explana tion for the delay caused at the hands of the Assistant Secretary. Therefore	 for the reasons stated above	 we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India. In the result	 the appeal is allowed and the detenu is directed to be set at liberty forthwith. P.V. Appeal al lowed.

Summary:
The appellant challenged before the High Court the order of detention passed against him under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act	 1989	 on various grounds including delay in disposal of his representation. An affidavit was filed by a Deputy Superintendent of Police	 on behalf of the respondents stating that the representation was placed before the Assistant Secretary on 19.6.1989	 a report was called for from the District Magistrate	 the comments	 which were received by the State Government on 1.7.1989	 were placed before the Assistant Secretary on 3.7.1989 who	 in turn	 submitted to the higher authorities with his note on 9.7.1989 and the representation was rejected on 11.7.1989. The High Court dismissed the Writ Petition holding that there was no undue lethargy or indifference. In the appeal	 by special leave	 on behalf of the dete nu	 it was contended that the detenu 's representation was not decided within a reasonable time and hence the extraor dinary delay of 27 days was fatal to the detention. A reply was filed by the same Deputy Superintendent of Police	 as Officer Incharge of the case	 who filed the affidavit before the High Court	 stating that there was no delay in the consideration of the representation. 832 Subsequently	 on the direction of the Court	 an addi tional affidavit sworn by the Commissioner and Secretary (Home Department) stating that there was no inordinate delay in considering the representation and it was rejected after careful consideration	 was filed. Allowing the appeal	 this Court	 HELD: 1. There is no explanation for the delay from 3rd to 9th July	 1989 i.e. for 7 days	 for the Assistant Secre tary to merely put up a note on the basis of comments of the District Magistrate. The additional affidavit sworn to by the Commissioner and Secretary does not whisper any explana tion as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary. The order of detention is	 therefore	 a breach of constitutional obligation as en shrined under Article 22(5) of the Constitution of India. [841F G; 842F] Rama Dhondu Borade vs V.K. Saraf	 Commissioner of Police Smt. Shalini Soni vs Union of India	 ; 	 referred to. 2.1 A counter affidavit should normally be filed by the detaining authority himself	 but this is not a rigid or inflexible rule and	 in the absence of any allegations of mala fide or abuse of powers of personal bias attributed to the detaining authority	 it may be sworn by a responsible officer who personally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned. However	 the practice of allowing a police officer who has not dealt with the case any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings	 to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection. [836H; 837A B; 836F G] The State of Bombay vs Purushottam Jog Naik	 ; ; Ran]it Dam vs State of West Bengal	 ; Shaik Hanifv. State of West Bengal; 	 ; J.N. Roy vs State of West Bengal	 ; Bhut Nath Mete vs State of West Bengal	 ; at page 658; Asgar Ali vs District Magistrate Burdwan & Ors.	 Suru Mallick vs State of West Bengal	 [1975] 833 4 SCC 470; Gulab Mehra vs State of U.P. & Ors.	 [19881 ] SCR 126; State of Gujarat vs Sunil Fulchand Shah & Anr.	 ; and Madan Lal Anand vs Union of India	 	 referred to.