Judgment:
D.K. Trivedi, J.
1. The petitioner-detenu has filed this petition and challenged the order passed by the 1st Respondent, the Commissioner of Police, Brihan Murnbai, dated 15th June, 1996, and prayed that the order of detention passed by the 1st respondent be quashed and set aside and prayed for release from the detention.
2. The first respondent, Commissioner of Police on considering the material placed before him after recording satisfaction, in exercise of the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980, has passed the order detaining the detenu and as per committal order the detenu was ordered to be kept with Superintendent, Mumbai Central Prison, Arthur Road, Mumbai.
3. While passing the order of detention against the petitioner-detenu, the detaining authority has recorded satisfaction that the detenu is acting prejudicial to the maintenance of public order and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, he resorted to pass the order of detention under the National Security Act. After the said order was passed on 15th June, 1996, the detenu was served with the said order along with grounds of detention and other material on 18th July, 1996.
4. In the petition, the petitioner has challenged the order of detention on several grounds and the petitioner has also annexed the order of detention and the grounds of detention and other documents to the petition.
5. As reflected in the grounds of detention, the detaining authority considered the involvement of the detenu in a criminal case registered against him and his associates dated 29th February, 1995 and another offence took place on 23rd March, 1996. The detaining authority on considering the material has recorded satisfaction that the person (detenu) is a weapon wielding desperado, a dreaded criminal and an extortionist and thereby a perpetual danger to the society at large and the detenu is creating a terror in the minds of the peace loving and law abiding citizens of the localities of Ambala Doshi Marg, Fort, Shahid Bhagatsingh Road, Colaba and areas adjoining thereto falling within the jurisdictions of M.R.A. Marg and Colaba Police Stations in Brihan Mumbai. People in the said localities and areas are experiencing a sense of insecurity and living and carrying out their daily routines under a constant shadow of fear whereby the even tempo of life of the society is disturbed. The detaining authority further recorded that the action taken against the detenu under the ordinary law of the land is found to be inadequate and ineffective to control the criminal activities of the detenu and the detenu's activities are prejudicial to the maintenance of public order.
6. It is also found from the grounds of detention wherein the detaining authority has given details in connection with the offence which took place on 29th February, 1996, the detaining authority has narrated the said facts in paragraph 4(a)(i) of the grounds of detention. The offence was registered at Colaba Police Station vide C.R. No. 92 of 1996 under Section 307, 506 34 of I.P.C. read with 3, 25, 27 of the Arms Act against the petitioner-detenu and other co-accused. The petitioner-detenu was arrested on 22nd March, 1996 in C.R. No. 92 of 1996. It is also found from the grounds of detention that the petitioner-detenue has not been granted bail facility in connection with above two offences registered at Colaba Police Station vide C.R. No. 92 of 1996 as well as M.R.A. Marg Police Station vide C.R. No. 98 of 1996.
7. The detaining authority on considering the material has recorded satisfaction that the detenu is a weapon wielding desperado, a dreaded criminal and an extortionist and thereby a perpetual danger to the society at large and created a terror in the minds of the peace loving and law abiding citizens of the localities of Ambala Doshi Marg, Fort, Shahid Bhagatsingh Road, Colaba and areas adjoining thereto falling within the jurisdiction of M.R.A. Marg and Colaba Police Station in Brihan Mumbai. People in the said localities and areas are experiencing a sense of insecurity and living and carrying out their daily routines under a constant shadow of fear whereby the even tempo of life of the society is disturbed. The action taken against the detenu under the ordinary law of the land is found to be inadequate and ineffective to control his criminal activities and his activities are prejudicial to the maintenance of public order in the said localities and areas in Brihan Mumbai. The detaining authority has further recorded satisfaction that the detenu is acting in a manner prejudicial to the maintenance of public order and in view of his tendencies and inclinations reflected in the offences committed by the detenue as stated above, the detaining authority is further satisfied that the detenu is likely to indulge in activities prejudicial to the maintenance of public order in future and that it is necessary to detain him under the National Security Act, 1980 to prevent him from acting in such a prejudicial manner in future.
8. On behalf of the detaining authority an affidavit in reply is filed by Shri Subhaschandra Malhotra, Commissioner of Police, Brihan Mumbai, dated 2nd May, 1997 wherein he has replied the petition parawise and the contentions raised by the petitioner were denied and averred that the detaining authority, the Commissioner of Police, after considering the material has found that the detenu is acting prejudicial to the maintenance of public order and passed the order of detention under the National Security Act and prayed for the dismissal of the petition.
9. During the hearing of this petition, though the petitioner has challenged the order of detention on several grounds, Mr. Tripathi has placed in service only one ground that the representation dated 28th August, 1996 meant for consideration for the various authorities is not considered by the Central Government and no communication is received from the Central Government and non-consideration of the represenation, the order of detention is liable to be quashed and set aside in view of the decision of the Apex Court. In paragraphs 10-A and 10-H of the petition, the petitioner has taken the ground regarding the representations made by him. Paragraphs 10-A and 10-H read as follows:
10-A The petitioner says and submits that 7 copies of representations were handed over to the Jail authority of Bombay Central Prison at Bombay on 28.8.96 by his lawyer on his behalf to forward those to the concerned authorities. The petitioner submits that so far he has not received any communication from the Central Government as regards to the consideration of the said representation of the detenue, thereby the' Central Government has delayed in considering the representation of the detenue and also in communicating the decision taken thereon, if any. Law is well settled that any competent authority to whom a representation is addressed is constitutionally obliged to consider the same expeditiously, diligently and independently. The Central Government is called upon to disclose and explain to this Honourable Court as regards to the delay, by which authority and at what stage of such consideration such delay occured. The petitioner submits that the continued detention is illegal and bad in law for delay in consideration of the representation of the detenue and also for delay in communicating its decision to the detenue. The order of detention is illegal and bad in law, ought to be quashed and set aside.
10-H The petitioner says and submits that a representation dated 24.1.1997 was sent to the Central Government by speed post with fresh grounds for their consideration and revocation of the order. The petitioner submits that so far no communication has been received by the detenu as regards to the decision taken on the said representation, thereby the central government has delayed in considering the representation expeditiously. The continued detention of the detenu is illegal and bad in law. The Central Government is called upon to explain to this Honorable Court as to why and what stage of consideration such delay occured. The order of detention is illegal and bad in law, ought to be quashed and set aside.
10. On behalf of the respondent-State of Maharashtra an affidavit of Shri V.D. Narkar, Desk Officer, Home Department (Special), Mantralaya, Mumbai, dated 6th May, 1997 is filed. In the said affidavit Shri Narkar has dealt with the reply pertaining to paragraph 10-A and also furnished details that after the passing of the order of detention how the report was submitted and thereafter giving particulars about the order passed by the State Government approving the said order as well as the report made in favour of the Central Government as per the provisions under Section 3(5) of the National Security Act and the reference made under Section 10 of the said Act in favour of the Advisory Board and after the report received from the Advisory Board the order of confirmation was issued by the Government. As reflected in his affidavit the detenu was actually detained on 18th July, 1996. The representation of the detenu dated 28th August, 1996 was received in the Home Department vide letter of the Superintendent, Mumbai Central Prison, dated 28th August, 1996. Before processing the said representation to the Government, the report of the Advisory Board along with the representation of the detenu addressed to the Advisory Board were also received. The report of the Advisory Board along with both the representations; were submitted before the Deputy Chief Minister (Home) for his consideration on 2nd September, 1996, as the 1st September, 1996 was public holiday. The Deputy Chief Minister (Home) after considering both the representations has rejected the same and the rejection reply was sent to the detenu on 4th September, 1996 through the jail authority. So far as the consideration of the representations by the State Government is concerned, the said representations were processed immediately and decided by the Deputy Chief Minister (Home).
11. While dealing with the contentions taken by the petitioner as to how the representations of the detenu were dealt with by the Union of India, on behalf of the Respondent No. 3 i.e. Union of India an affidavit of Shri Ishwar Singh, Desk Officer, Government of India, New Delhi dated 3rd March, 1997 is filed. In his affidavit Shri Ishwar Singh has stated that he had read the copy of the criminal writ petition and as he was conversant with the facts of the case, in his official capacity he was authorised to file affidavit. In his affidavit in paragraph 3 he has referred to grounds A and H of paragraph 10 and paragraph 5 of the petition while giving details as to how the representation of the detenu was processed. In ground A, the petitioner has referred to the representation dated 28th August, 1996 and in ground H the petitioner has referred to the representation dated 24th January, 1997 sent to the Central Government by speed-post with fresh grounds for consideration and revocation of the order. While filing reply Shri Ishwar Singh, the Deponent, has not dealt with in particular about the representation the detenue addressed to the Central Government dated 24th January, 1997. So the contention of the petitioner about his representation dated 24th January, 1997 is not dealt with by the Central Government at all. As reflected in his affidavit that the representation of the detenu dated 28th August, 1996 was received by the Central Government in the Ministry of Home Affair on 30th August, 1996 through the Superintendent Mumbai Central Prison, Mumbai. After the said representation was received the same was processed and it was found that certain vital information is required and accordingly a crash wireless message was sent in favour of the State Government, Commissioner of Police, Brihan Mumbai, on 30th August, 1996 and thereafter a reminder was sent on 25th September, 1996.
12. The Central Government in the Ministry of Home Affairs received the particular information on 3rd October, 1996 from the Commissioner of Police, Brihan Mumbai, vide his letter dated 30th September, 1996. After the information was received, the case of the detenu was put up before the Joint Secretary, Ministry of Home Affairs on 9th October, 1996. The joint Secretary considered the case and with his; comments put up before the Special Secretary, Ministry of Home Affairs on 10th October, 1996. Thereafter the Special Secretary after processing the same put up before the Home Minister, Government of India on 11th October, 1996. It is further found from the affidavit of Shri Ishwar Singh that the Home Minister has returned the file as he desired re-examination of the case on 18th December, 1996. After the case was returned, the said case was re-examined by the concerned Deputy Secretary and it was resubmitted in favour of the Joint Secretary on 10th January, 1997 and the Joint Secretary thereafter cleared the file and placed it before the Special Secretary (ISP) on 18th January, 1997 and thereafter the Special Secretary has placed the file before the Minister of State for Home Affairs on 20th January, 1997. The Minister of State for Home Affairs has considered the case of the detenu and the rejected the said representation on 21st January, 1997 and the detenu was informed the decision of the Central Government by issuing crash wireless message on 14th February, 1997 through the Home Secretary, Government of Maharashtra and Superintendent, Nasik Road Central Prison, Nasik and the message was followed by the letter dated 17th February, 1997.
13. As reflected from the affidavit of Shri Ishwar Singh that the delay was on account of Home Minister reviewing the matter relating to NSA cases and deciding to delegate the work to the Minister of State for Home. As can be seen from the affidavit of Shri Ishwar Singh that after the representation was received in the Central Ministry on 30th August, 1996, the Ministry has called for the vital information from the Stale Government as well as from the detaining authority on the very day and the reminder was issued on 25th September, 1996. Even after the required particular information was received in the Ministry of Home Affairs on 3rd October, 1996 and when the representation was processed by the various authorities and when the same reached up to the Special Secretary, Ministry of Home Affairs on 10th October, 1996 and when he has cleared immediately and placed it before the Home Minister, Government of India on 11th October, 1996, the delay is thereafter not at all explained as the Home Minister has returned the case on 13th December, 1996, as he desired re-examination of the case. Even thereafter when the file was returned by the Home Minister on 13th December, 1996, the file was not processed till 9th January, 1997 and thereafter there is no explanation from 12th January, 1997 to 19th January, 1997 when the Special Secretary has cleared the file and placed it before the Minister of State for Home Affairs who in turn rejected the representation on 21st January, 1997. Even after the rejection of the representation, the Ministry has not promptly intimated to the detenu about the decision as the wireless message was sent only on 14th February, 1997.
14. To appreciate the contention, as reflected from the affidavit filed on behalf of the Union of India, we are of the view that the Central Government has not dealt with the representation of the detenu dated 24th January, 1997 meant for consideration of the Central Government. Till today the said representation is not dealt with. Even the representation of the detenu dated 28th August, 1996 is disposed of by the Minister of State for Home on 21st January, 1997. As observed earlier that after the vital information received from the Government of Maharashtra and the detaining authority by the Central Government on 3rd October, 1996, the representation is not processed promptly and even the delay is not explained that why the time has taken to process the representation when the representation is placed before the Home Minister on 11th October, 1996 till he returned the case filed for re-examination on 13th October, 1996. Even when the representation thereafter processed by the various authorities, no explanation is rendered for the period from 13th January, 1997 till the same was placed before the Minister of State for Home Affairs on 20th January, 1997. As per the settled legal position, the representation is to be dealt with promptly. The delay is also required to be explained by giving details that how the representation was processed by the various authorities. In our view there is a delay in deciding the representation of the detenu dated 28th of August, 1996 and even the delay is not explained by the Respondent No. 3 - Central Government.
15. In view of the settled legal position, we are of the view that there is a delay in not promptly considering the representation of the detenu. The representation of the detenu dated 24th January, 1997 meant for Central Government is not at all considered by the Central Government. By not explaining the said delay and by not considering the representation of the detenu dated 24th January, 1997, the order passed by the first respondent, Commissioner of Police, is deserved to be set aside. The continued detention of the detenu is accordingly bad in law.
16. During the hearing, we are told that the detenu, in offence registered at Colaba Police Station vide. C.R. No. 92 of 1996 and the offence registered at M.R.A. Marg Police Station vide C.R. No. 98 of 1996, is not released on bail and is in custody. Accordingly, the petition is allowed and the order of detention dated 15th June, 1996 passed by the 1st Respondent is quashed and set aside. The rule is made absolute. However, we are not passing any order about the release of the detenu as from the grounds of detention it is reflected that the detenu is not released on bail and he is in judicial custody in respect of his arrest in offence registered vide C.R. No. 92/96 at Colaba Police Station and offence registered vide. C.R. No. 98/96 at M.R.A. Marg Police Station.