Judgment:
ORDER
A.V. Savant, J.
1. Heard all the learned Counsels; Shri Chitnis for the petitioner, Shri Patil for respondent Nos. 1 to 3 and Shri Mehta for respondent No. 4.
2. The petitioner Smt. Chandrabhaga Pandurang Ranjane is the mother of the detenue Prakash Pandurang Ranjane who was detained under the order issued by the Commissioner of Police, Thane on 4th May, 1996 in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act, 1980. The order dated 4th May 1996 was served on the detenue on 5th May, 1996. It is not necessary to discuss the several contentions sought to be raised since, in our view, the petitioner must succeed on the contentions raised in para (F) of the grounds. Para (F) reads as under :
F. That for and on behalf of the detenue, a representation has been forwarded to the Government of India, Ministry of Home Affairs. Department of Internal Security, on or about 27th June 1996 and it is necessary that the said representation must be considered expeditiously and if, there is any supine indifference shown in dealing with the said representation on behalf of the detenue, the continued detention of the detenue would be necessarily rendered bad in law.'
3. In reply to the said contention, Ishwar Singh, Desk Officer, Ministry of Home Affairs, Government of India, New Delhi has filed his affidavit on 13th December, 1996. Paras 6 and 7 of the said affidavit are in reply to the contention raised in ground (F) of the petition. Paras 6 and 7 of the said affidavit read as under;
6. The allegations made in the ground 'F' of paragraph No. 10 of the petition, it is stated that a representation dated 27-6-96 on behalf of the detenue was received by the Central Government in the Ministry of Home Affairs on 4-7-96 through Shri M.S. Chitnis, Advocate. This representation was immediately processed for consideration and it was found that certain vital information required for its further consideration needed to be obtained from the State Government/Commissioner of Police, Thane, through a crash wireless message dated 5-7-96.
7. That the required information was received by the Central Government in the Ministry of Home Affairs on 22-7-96 vide the Commissioner of Police Thane's letter dated 19-7-96. On receiving the said information on 22-7-96, the case of the detenue was put up before Deputy Secretary, Ministry of Home Affairs on 23-7-96 who carefully considered the same and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 24-7-96. The Joint Secretary considered the case and desired a copy of the detailed report of the Advisory Board before submitting the case to the Special Secretary, Ministry of Home Affairs on 24-7-96. After obtaining the report of the Advisory Board, the case was resubmitted to the Deputy Secretary on 13-8-96. The case was discussed by the Joint Secretary with the Special Secretary and re-submitted it on 10-9-96. It is stated that the Special Secretary considered the matter and after processing the same put it before the Home Minister, Government of India on 11-10-96. The Home Minister himself duty considered the case of the detenue and rejected the representation of the detenue on 24-11-96.'
4. It is clear from the above version of Ishwar Singh that the representation dated 27th June, 1996 was received by the Central Government in the Ministry of Home Affairs on 4th July 1996. Certain information was sought to be obtained from the State Government and the Commissioner of Police, Thane, which was received in the Ministry of Home Affairs on 22nd July 1996. On receipt of the said information, the case was put up before the Deputy Secretary on 23rd July 1996. The Deputy Secretary put up the matter before the Joint Secretary on 24th July 1996. It appears to us that till this datethere is no delay on the part of the officers of the Central Government in considering the representation. However, it is stated in para 7 that the Joint Secretary desired a copy of the detailed report of the Advisory Board before submitting the case to the Special Secretary, Ministry of Home Affairs on 24th July, 1996. It is then stated that after obtaining the report of the Advisory Board the case was resubmitted to the Deputy Secretary on 13th August, 1996. In our view, the consideration of the representation by the Central Government has to be independent of the consideration by the Advisory Board.
5. It is well settled by series of decisions of the Supreme Court that the detenue's right under Article 22(5) of the Constitution to make a representation carries with it the obligation on the part of the appropriate Government to consider the representation expeditiously. It is implicit in the scheme of Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation cannot depend upon the views of the Advisory Board and has to consider the representation independently of the opinion of the Advisory Board. This has been clearly stated by the Constitution Bench of the Supreme Court in K.M. Abdulla Kunhi and R.I. Abdul Khader v. Union of India and others, : 1991CriLJ790 . The relevant observations in the judgment at page 578 read as under:
11. It is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenue an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenue along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenue to examine whether there is sufficient cause for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Cl. (5) of Article 22 and it is independent of the consideration of the detenue's case and his representation by the Advisory Board under Cl. (4) of Article 22 read with section 8(c) of the Act. See Sk. Abdul Karim v. State of West Bengal, : 1969CriLJ1446 Pankaj Kumar Chakrabarty v. State of West Bengal, : [1970]1SCR543 ; Shyamla Chakraborty v. The Commissioner of Police, Calcutta, : [1970]1SCR762 ; B. Sundar Rao v. Stateof Orissa, : AIR1972SC739 ; John Martin v. State of West Bengal, : 1975CriLJ637 , S.K. Sekawat v. State of West Bengal, : 1975CriLJ33 , and Haradhan Saha v. State of West Bengal, : 1974CriLJ1479 .'
6. In view of the above ratio of the Constitutional Bench decision in K.M. Abdulla Kunhi's case, in our view, it was not necessary for the Joint Secretary to have thought it necessary to await the report of the Advisory Board before submitting the case to the Special Secretary. Apart from the above lapse, it appears to us that there is further delay at each of the stages after the report was obtained from the Advisory Board. This is clear from the affidavit of Ishwar Singh. He says that after obtaining the report of the Advisory Board the case was resubmitted to the Deputy Secretary on 13th August, 1996. The case was discussed by the Joint Secretary with the Special Secretary and resubmitted nearly one month later i.e. on 10th September, 1996. It is then stated that the Special Secretary considered the matter and after processing it the same was put up before the Home Minister, Government of India on 11th October, 1996. There is not even a whisper as to why the Special Secretary took one month to put it up before the Home Minister. It is then stated that the Home Minister himself considered the file and rejected the representation after a month and 12 days after the matter was put up before him i.e. on 24th November 1996. Nothing is stated as to why it took one month and 13 days for the Home Minister to reject the representation. In the absence of even an attempt to explain the delay at each of the stages, we are of the view that the right of the detenue under Article 22(5) of the Constitution has been clearly violated.
7. In this view of the matter, the order of detention cannot be sustained. The same is accordingly set aside. The detenue is ordered to be released forthwith unless he is otherwise required to be detained.
8. Rule made absolute as above.
9. Petition allowed.