Judgment:
Mukul Mudgal, J.
1. This writ petition was filed by the petitioner questioning the order of detention dated 18th September, 2006 passed by the Commissioner of Police against the petitioner.
2. The Commissioner of police passed the detention order against the petitioner under Section 3(2) of the National Security Act for a period of one year. This order was executed on 19th September 2006 and the petitioner was detained pursuant thereto and it is not in dispute that the period of more than 10 months is already over and the substantial part of the detention period has been served by the petitioner.
3. The learned Counsel for the petitioner submitted that while she had certain other pleas in respect of the delay by all the authorities, however, she will confine her petition to the plea of delay in disposal of the representation by the Lt. Governor by order dated 22nd June, 2007. The counter affidavit explains that the date by which the comments of all concerned authorities reached the Lt. Governor was 30th May, 2007. Thereafter the representation was rejected on 22nd June, 2007.
4. The learned Counsel for the petitioner has challenged the validity of the said period of delay as being fatal to the order of detention and has relied on the judgment of the Hon'ble Supreme Court in Rajamal v. State of Tamil Nadu and Anr. : 1999CriLJ826 and in particular has relied upon paragraph 8 of the said judgment wherein the following position of law was laid down:
8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words 'as soon as may be' in Clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Ors. : 1991CriLJ790 . The following observations of the Bench can profitably be extracted here:
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words 'as soon as may be' occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
5. The Hon'ble Supreme Court has held that it is open to the Court to consider the Explanationn preferred for the delay in disposal of the representation. However, in the present case no Explanationn has been given for the period between 30th May, 2007 and 22nd June, 2007 when the representation was disposed of by the Lt. Governor. The learned Counsel for the petitioner has also relied on the judgment dated 9th December, 1998 of a Division Bench of this Court in Crl. Writ Petition No. 787/98 titled Mohd. Abdullahi Yusuf v. Union of India and Ors. which followed the position of law laid down in Kamleshkumar Ishwardas Patel v. Union of India and Ors. : 1996(53)ECC123 . She has relied upon the following portion of the said judgment:.Even when one representation is made to an authority which has the power to revoke the detention, the representation must also be circulated or sent to other authorities which are equally empowered to revoke the detention. In the instant case the petitioner had made a specific request in the representation to the Central Government, that a copy of the same representation should also be forwarded to the detaining authority for the latters consideration but it appears that no heed was paid by the Central Government to the request of the petitioner.
6. The learned Counsel for the respondent Ms. Mukta Gupta states that the Lt. Governor was not bound to consider the representation as it was not addressed to him and in the representation made to Central Government it was requested to forward the said representation to the Lt. Governor, and Lt. Governor nevertheless considered it. It is submitted that since the Lt. Governor was not bound to consider the representation, the mere fact that the representation was belatedly rejected cannot grant any benefit to the petitioner. In our view, this plea of the learned Counsel for the respondent is not tenable as the Lt. Governor has considered the representation on merits while rejecting it. Since the Lt. Governor has not rejected the representation of the petitioner on the ground that it was not addressed to him and it rejected the representation on merits, we have to judge the effect of delay by the Lt. Governor in the disposal of the representation. We find no reason or Explanationn for the 23 days delay from 30th May, 2007 to 22nd June, 2007.
7. The learned Counsel for the State has also relied upon the judgment of the Hon'ble Supreme Court in Jasbir Singh v. Lt. Governor : [1999]2SCR706 and in particular paragraph 4 thereof, which reads as follows:
4. Coming to the second submission of the learned Counsel appearing for the appellant, namely, though the representation was addressed to the Advisory Board yet the same was also to be considered by the Central Government and non-consideration of the same by the Central Government infringes the Constitutional right under Article 22(5) of the Constitution, the learned Counsel relies upon Section 11 of the Act and the decision of this Court in Smt. Gracy v. State of Kerala and Anr. According to the learned Counsel the Central Government under Section 11 has the power of revocation and, thereforee, when a detenu made a Representation to the Advisory Board it ought to have to be considered by the Central Government notwithstanding the fact that the Central Government had not been addressed in the representation itself. There is no dispute that under Section 11 of the Act a power of revocation lies with the Central Government. This power is a supervisory power and is intended to be an additional check or safeguard against the improper exercise of the power of detention by the Detaining Authority or the State Government, and thereforee, to retain the statutory safeguard the Central Government has to discharge its responsibility with constant vigilance and watchful care. This power also is independent of power of confirmation or setting aside the order of detention. But the question for consideration is when the Representation has not been addressed to the Central Government but is addressed to the Advisory Board can it be said that the Central Government also owes obligation to consider the same and decide one way or the other. It may be stated at this stage that while serving the grounds of detention on the detenu it was clearly indicated that if the detenu wishes to make any representation against the order of detention he may do so to the Lt. Governor of the National Capital Territory of Delhi and to the Central Government and for that purpose he may address it to the Lt. Governor or to the Secretary to the Government of India, Ministry of Finance, Department of Revenue. It was further stated that if he desires to make any Representation to the Advisory Board then he may address to the Chairman, Advisory Board, COFEPOSA State, High Court of Delhi, Slier Shah Road, New Delhi. In the decision of this Court in Smt. Gracy (supra) on which learned Counsel for the appellant relied upon what has been stated by the Court is that if there is one representation by the detenu addressed to the detaining authority then the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board and, thereforee, when the representation of the detenu was addressed to the detaining authority and in that case it was Central Government and not to the Advisory Board yet the Advisory Board was duty bound to consider the same, as such a representation is the only right of the detenu under Article 22(5) of the Constitution. It was further stated that any representation of the detenu against the order of detention has to be considered and decided by the Detaining Authority and the consideration by the Advisory Board was an additional requirement implied by reading together Clauses 4 and 5 of Article 22. In the said case the Central Government was the detaining authority and, thereforee, in that case the Court held that the representation though may not have been addressed to the Advisory Board but the same was also required to be considered by the Central Government. We fail to understand how the aforesaid ratio can be held to be applicable in the present case where the Detaining Authority was the Lt. Governor of Delhi. In such a case if the representation had not been addressed to the Central Government even though indicated in the grounds of detention then it cannot be said that any representation made by the detenu to the Advisory Board ought to have been considered by the Central Government. That apart the detenu also did file a representation to the Central Government on 22.6.94 and the same was disposed of by the Central Government on 12.7.95 and, thereforee, in the said premises, the question of infraction of constitutional right of the detenu because of the representation addressed to the Advisory Board had not been considered by the Central Government does not arise. This contention, thereforee, was rightly rejected by the High Court.
8. In our view the above judgment does not apply to the facts of the present case as the rejection of the representation by the Lt. Governor was not on the ground that it was addressed to the Central Government but was on merits. In fact, the applicable judgment would be the judgment of Mohd. Abdullahi Yusuf dated 9th December, 1998 in Crl.W.P. No. 787/1998 rendered by a Division Bench of this Court which clearly stated that the representation addressed to one authority should be forwarded to all other authorities empowered to revoke the order of detention. In the present case, the petitioner had specifically prayed for forwarding of the representation to the Lt. Governor. Consequently, we are satisfied that the impugned order violates the constitutional right of the petitioner guaranteed under Article 22(5) of the Constitution. Accordingly, the writ petition is allowed and the impugned detention order dated 18th September, 2006 against the petitioner is quashed and set aside. The petitioner is directed to be set free forthwith and in any case not later than 23rd July, 2007, if not required in any other case.
9. The writ petition stands disposed of accordingly.