Harish Pahwa Vs. State of Uttar
Pradesh & Ors  INSC 72 (18 March 1981)
ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1126 1981 SCR (3) 276 1981
SCC (2) 710 1981 SCALE (1)704
CITATOR INFO :
RF 1987 SC1977 (3) RF 1987 SC2377 (6)
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974-Detenu assailing detention
order-Failure of State Government to dispose of representation within
reasonable time-Point not taken before High Court-Whether can be raised in
Supreme Court- Representations of detenus to be dealt with continuously and
disposed of expeditiously-Duty of State Government.
The appellant who was detained by an order
dated 16th May, 1980, made a representation dated 3rd June, 1980 from jail,
which was received by the State Government on 4th June, 1980. Comments were
called for from the Customs Authorities on the 6th of June, 1980 and were
received on 13th June, 1980. On the 17th June, 1980, the State Government
referred the representation to its Law Department for opinion which was
furnished on the 19th June, 1980. The representation was rejected by an order
dated 24th June, 1980, which was communicated to the jail authorities two days
The appellant's writ petition having been dismissed
by the High Court, he came in appeal to this Court raising a new plea that the
representation made by him against the detention to the State Government was
not decided within a reasonable time and that the delay was fatal to the
Allowing the appeal,
HELD: 1. In matters of this kind where all
the material necessary for the determination of a new point is available on the
record, and having regard to the importance of the matter, this Court can
entertain the point even if it had not been raised before the High Court. [277
2. The order of detention declared
unconstitutional and appellant directed to be set at liberty. [279 F]
3. On numerous earlier occasions this Court
has made it clear that it does not look with equanimity upon delays in
considering the representations of detenus. Where the liberty of a person is
involved it is the duty of the State to determine his representations with the
utmost expedition and deal with it continuously until a final decision is taken
and communicated to the detenu.
[278 G-H] In the instant case no explanation
had been given by the Government, as to why no action was taken on the
representation of the detenu on 4th, 5th and 277 25th of June 1980 and what
consideration was given from 13th June, 1980 to 16th June, 1980 and why the
file had to travel from table to table before reaching the Chief Minister, who
was the only authority to decide the representation.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 183 of 1981.
Appeal by special leave from the Judgment and
Order dated 30.1.1981 of the High Court of Allahabad in Civil Misc. Habeas
Corpus Writ No. 6343/80.
R.K. Garg, Naresh K. Sharma and Mukul Mudgal
for the Appellant.
R.K. Bhatt for Respondent No. 1 Hardayal
Hardy and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
KOSHAL, J. This is an appeal by one Harish Pahwa against the judgment dated
30th January, 1981 of the High Court of Allahabad dismissing a petition
presented by the appellant to it under Article 226 of the Constitution of India
with a prayer that a writ of habeas corpus be issued against the State of Uttar
Pradesh and Union of India in as much as the detention of the appellant by them
was not in accordance with law.
2. The only point that has been raised before
us by Mr. Garg appearing on behalf of the appellant is that the representation
made by him against his detention to the State Government was not decided
within a reasonable time and that the delay is fatal to the detention. This
point was no doubt not taken before the High Court, but in view of its
importance and the fact that all the material necessary for its determination
is available on the record, we have allowed it to be raised before us and have
overruled a preliminary objection taken by the State to the effect that it
should not be entertained.
3. In order to decide the point we may refer
to certain admitted facts. The order of detention is dated 16th May, 1980 and
the representation made by the appellant against it from Varanasi Jail bears
date the 3rd of June, 1980. The State Government received 278 the
representation on the 4th June, 1980 but for two days no action was taken in
connection with it. On the 6th of June, 1980 comments were called for from the
Customs authorities with regard to the allegations made in the representation
and such comments were received by the State Government on the 13th June, 1980.
On the 17th of June, 1980, the State Government referred the representation to
its Law Department for its opinion which was furnished on the 19th of June,
1980 The rejection of the representation was ordered on the 24th of June, 1980
and it was communicated to the jail authorities two days later.
The case of the State is that the
representation was with the Customs authorities who were formulating their
comments from 7th June, 1980 to the 12th of June, 1980 and that the
representation was under the consideration of the Government for four days from
13th June, 1980 to 16th June, 1980, of its Law Department from 17th June, 1980
to 19th June, 1980 and then again under its own consideration for six days from
19th June, 1980 to 24th June, 1980.
In our opinion, the manner in which the
representation made by the appellant has been dealt with reveals a sorry state of
affairs in the matter of consideration of representations made by persons
detained without trial.
There is no explanation at all as to why no
action was taken in reference to the representation on 4th, 5th and 25th of
June, 1980. It is also not clear what consideration was given by the Government
to the representation from 13th June, 1980 to 16th June, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent
why the Law Department had to be consulted at all. Again, we fail to understand
why the representation had to travel from table to table for six days before
reaching the Chief Minister who was the only authority to decide the
representation. We may make it clear, as we have done on numerous earlier
occasions, that this Court does not look with equanimity upon such delays when
the liberty of a person is concerned. Calling comments from other departments,
seeking the opinion of Secretary after Secretary and allowing the
representation to lie without being attended to is not the type of action which
the State is expected to take in a matter of such vital import. We would
emphasise that it is the duty of the State to proceed to determine
representations of the character above mentioned with the utmost expedition, which
means that the matter must be taken up for consideration as soon as such a
representation is received and dealt with continuously (unless it is absolutely
necessary to wait for 279 some assistance in connection with it) until a final
decision is taken and communicated to the detenu. This not having been done in
the present case we have no option but to declare the detention
unconstitutional. We order accordingly, allow the appeal and direct that the
appellant be set at liberty forthwith.
N.V.K. Appeal allowed.