Judgment:
ORDER
1. The petitioner, Mr. Paramvir Singh alias Pammu has challenged his detention vide detention order dated 4-2-1993 passed under Section 3(2) of the National Security Act (hereinafter called 'N.S.A.') by filing this Criminal writ petition on various grounds including Ground IX that there is a long delay in consideration of the representation made by the petitioner and as such the detention is vocative of Art. 22(5) of the Constitution of India.
2. As per the averments made by the petitioner in the petition, the order of detention under S. 3(2) of the N.S.A. was passed on 4-2-1993. This detention order was served upon him while in Central Jail on 5-2-1993. On 8-2-1993 father of the petitioner made an application to the Commissioner of Police stating that the grounds of detention Police stating that the grounds of detention may be served on the petitioner so hat he can make an effective and purposeful representation. On 9-2-1993 the petitioner was served with the grounds of detention. On 13-2-1993 a representation was made by the petitioner to the detaining authority and the same was rejected on 12-3-1993, which was communicated to the petitioner on 15-3-1993.
3. As per the contentions of the petitioner, there is a long delay in consideration of the representation made by the petitioner and as such the detention of the petitioner is vocative of Art. 22(5) of the Constitution of India. The representation has not been considered by the Commissioner of Police. In fact, he has only forwarded the representation to the Lieutenant Governor and as such the detention is vocative of Art. 22(5) of the Constitution of India. In the said representation the petitioner had requested for supply of various documents material and information which were very relevant but they having not been supplied inspire of demand, except for some of the bail applications, which bail applications, orders ought to have been supplied to the petitioner pari passu the grounds of detention. In any case, the petitioner alleges that there is a delay in supply of the same and that makes the detention illegal
4. In the counter affidavit filed by Mr. M. B. Kaushal, Commissioner of Police, Police Headquarters, New Delhi in reply to Ground IX it is stated as under :-
'Not admitted. There is no delay in consideration of the application of the petitioner and as such there is no violation Art. 22(5) of the Constitution of India. The application was duly considered by the deponent as well as by the Lt. Governor of Delhi. The copies of the documents for which the petitioner had made request have been supplied to him without loss of time.'
5. The learned counsel for the petitioner has stated that the representation was made on 13-2-1993 and it was decided on 12-3-1993 and communicated on 15-3-1993. According to him, there is a delay of more than one moth in deciding this representation. According to the learned counsel this delay of one month has not been explained in the counter affidavit nor otherwise. He has put reliance upon a decision of the Supreme Court in the case of Lakhvinder Singh v. Union of Indian Criminal Appeal No. 42 of 1990 (arising out of Special Leave Petition No. 2427 of 1989) in support of his contention that when in the counter affidavit there is no Explanationn about the delay, this delay is fatal to the prosecution case and the detention was liable to be held illegal. In that case there was an unexplained delay of 28 days and under these circumstances, the detention order was quashed.
6. In the present case, as per the record, this petitioner was detained under section 3(2) of the N.S.A. under the orders of Respondent No. 2 on 4-2-1993; the order of detention was served on the petitioner on 5-2-1993 while in jail and the grounds of detention were served on 9-2-1993. A representation was made by the petitioner on 13-2-1993 and the said representation was rejected on 12-3-1993 and was communicated on 15-3-1993. In view of these facts which are available on record, it was for the respondent to explain this delay of more than one month in the disposal of the representation. The petitioner has specifically stated in the writ petition that his representation has been decided after a long delay and the delay has not been explained, but in the counter affidavit filed by respondent No. 2 these facts have not been controverter nor the delay of more than one month has been explained in any way. This point arose before the Hon'ble Supreme Court in the case of Lakhvinder Singh v. Union of India (supra) and their Lordships after considering the entire case and the case law observed as under :-
'...... there is no material on record explaining the delay of 28 days in considering the appellant's representation. Learned Additional Solicitor General appearing for the respondent made an attempt to explain the delay on the basis of original records. We are of the opinion that in a matter like this where the liberty of a citizen is involved, where he is detained without trial and notice is issued to the detaining authority, it is the imperative duty of the detaining authority to file counter affidavit, placing all the necessary fact before the Court. Since the appellant had raised the specific grievance that there was an unreasonable delay of 28 days in disposing of is representation, it was the duty of the respondent to file affidavit, explaining the circumstances under which 28 days were required in considering and disposing of the appellant's representation. In the absence of such an affidavit, it is not possible to uphold the order of the High Court.'
7. In this case, the petitioner has specifically raised this ground in his writ petition that there is an unreasonable and unexplained delay of more than 30 days in the disposal of his representation. Though the respondent No. 2 has filed the counter affidavit, he has kept silent about this fact and has not at all explained this delay of more than 30 days in disposal of the petitioner's representation. It means that this plea of the petitioner has not been controverter in the counter affidavit and no Explanationn has come forth to justify the delay.
8. This unreasonable and unexplained delay of more than 30 days has made the detention order in valid inasmuch as this petitioner has been deprived of his valuable right as enshrined in Art. 22(5) of the Constitution of India. Though the petitioner has taken some other grounds for quashing this detention order, but for the purpose of this detention order, this ground of unreasonable and unexplained delay of more than 30 days in disposal of the petitioner's representation is more than sufficient to quash the detention order.
9. I, thereforee, allow this writ petition, quash the detention order dated 4-2-1993 and the Rule is made absolute. Order accordingly.
10. Petition allowed.