Raisuddin @ Babu Tamchi Vs. State of
Uttar Pradesh & ANR [1983] INSC 148 (7 October 1983)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) MISRA, R.B. (J)
CITATION: 1984 AIR 46 1984 SCR (1) 340 1983
SCC (4) 537 1983 SCALE (2)603
CITATOR INFO :
R 1984 SC1334 (21) F 1985 SC1082 (11) F 1989
SC1403 (8) R 1989 SC1861 (18) R 1990 SC1455 (13)
ACT:
National Security Act, 1980-Sec. 3
(3)-Detention order- Delay in dealing with detenu's representation vitiates
detention order-Whether there is delay depends upon facts and circumstance of
each case-There is no rigid rule or set formula.
National Security Act, 1980-Sec.
10-Interpretation of- The words "place before the Advisory Board"
means forward to or submit before the Advisory Board and nothing more.
HEADNOTE:
The petitioner who was detained by an order
passed under sec. 3 (3) of the National Security Act, 1980 challenged the
validity of his detention on the ground that there had been inordinate delay on
the part of the detaining authority in forwarding the petitioner's
representation to the State Government and that there had been violation of the
mandatory provisions of sec. 10 of the Act which enjoins the State Government
to take steps to see that the case of the detenu is considered by the Advisory
Board within three weeks from the date of detention.
Dismissing the writ petition,
HELD: The question whether the representation
submitted by a detenu has been dealt with all reasonable promptness and
diligence is to be decided not by the application of any rigid or inflexible
rule or set formula nor by a mere arithmetical counting of dates, but by a
careful scrutiny of the facts and circumstances of each case; if on such
examination, it is found that there was any remissness, indifference or
avoidable delay on the part of the detaining authority/State Government in
dealing with the representation, the Court will undoubtedly treat it as a
factor vitiating the continued detention of the detenu; on the other hand, if
the Court is satisfied that the delay was occasioned not by any lack of
diligence or promptness of attention on the part of the authority concerned,
but due to unavoidable circumstance or reasons entirely beyond his control,
such delay will not be treated as furnishing a ground for the grant of relief
to the detenu against his continued detention. [344 C-F] The instant case falls
under the latter category inasmuch as the court is satisfied on its perusal of
the original file pertaining to this case maintained in the office of the
District Magistrate and the averments contained in the counter affidavit filed
on behalf of the respondents that the petitioner's representation has been
dealt with all the promptness that was reasonably possible 341 under the
circumstances then obtaining and that there was no avoidable delay on the part
of the District Magistrate in forwarding the petitioner's representation. [344
B; G] Under sec. 10 of the Act a duty is cast on the appropriate Government to
"place before'; the Advisory Board constituted under sec. 9 within three
weeks from the date of detention the grounds on which the order of detention
has been made and the representation, if any, made by the person affected by
the order. It is wholly wrong to interpret the words "place before"
as meaning anything more than 'forward to submit before' the Advisory Board the
relevant papers relating to the detention of the detenu. It is entirely for the
Advisory Board to regulate its schedule of holding meetings and conducting its
business in accordance with the procedure laid down under sec. 11 of the Act
which has specified a time limit of seven weeks from the date of detention for
the submission of the Board's report to the appropriate Government. [345 G-H;
346 A-B] In the present case the Advisory Board had disposed of the
petitioner's case well within the period of seven weeks specified in sub-sec.
(1) of sec. 11, of the Act. [346 C]
ORIGINAL JURISDICTION: Write Petition
(Criminal) No. 37 of 1983.
(Under Article 32 of the Constitution) Mrs.
M. Qamaruddin and Rizwan A. Hafiez for the Petitioner.
O.P. Malhotra, and D. Bhandari for the
Respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. Taking into consideration the fact that this is a
petition for a writ of Habeas Corpus filed under Article 32 the Constitution of
India challenging the legality of the preventive detention of the petitioner
under the provisions of the National Security Act 1980 and the consequent
urgency of the matter, as soon as the hearing of arguments in the case were
completed, we announced the conclusion reached by us by passing the following
order:
"After hearing counsel, appearing on
both sides, we have come to the conclusion that the order of detention impugned
in this Writ Petition does not call for any interference. The Writ Petition is
accordingly dismissed. Detailed reason will follow." We now proceed to
state the reasons that weighed with us in reaching the aforesaid conclusion.
342 By an order dated November 6, 1982,
passed by the District Magistrate, Moradabad, in exercise of the powers
conferred under section 3, sub-section 3 of the National Security Act,
1980-hereinafter called the Act-the petitioner, Shri Raisuddin @ Babu Tamchi
was ordered to be arrested by the Senior Superintendent of Police and to be
detained in the District Jail, Moradabad, with a view to his being prevented
from indulging in any activity which may affect the maintenance of public
order. Pursuant there to, the petitioner was arrested on 8th November, 1982,
and placed under detention. On the same day (8.11.1982), the petitioner was
served with the order of detention and a memorandum setting out the grounds of
his detention. On 12th November, 1982, the State Government approved the
detention of the petitioner and on the 18th of November, the case was referred
by the State Government to the Advisory Board constituted under section 9 of
the Act. Subsequently, on 24th November 1982, the petitioner submitted his
representation against the order of detention. The said representation was
addressed by the petitioner to the District Magistrate, Moradabad. The District
Magistrate forwarded the representation on the same day to the Senior
Superintendent of Police, Moradabad, for his comments on the submissions
contained in the letter. On the 27th of November, 1982, the Senior
Superintendent of Police submitted his comments to the District Magistrate.
Thereafter, on 3rd December, 1982, the
District Magistrate sent a report to the State Government enclosing the
representation as well as the comments submitted by the Senior Superintendent
of Police. The aforesaid papers despatched from Moradabad were received by the
State Government on the 6th December, 1982. On 9th December, 1982, the State
Government considered the petitioner's representation and rejected the same.
Simultaneously, on the same day, the State Government forwarded the
representation of the petitioner to the Advisory Board. On 10.12.1982, the
Advisory Board met to consider the case of the petitioner, gave a personal
hearing to the petitioner and drew up its report holding that there was
sufficient cause for the detention of the petitioner. The report of the Advisory
Board was received by the State Government on 12th December, 1982, and on 21st
December, 1982, the State Government confirmed the detention order under
section 12 of the Act.
The petitioner was informed about the order
of confirmation on 24.22.1982.
Though a faint attempt was made before us by
the counsel for the petitioner to contend that the grounds of detention. served
on the petitioner did not disclose any material relevant under section 3 of 343
the Act, there is no scope at all for urging such a contention in the present
case. The imputation against the petitioner is that he was inciting and
fomenting communal hatred and violence and creating an atmosphere of fear and
tension in the town of Moradabad as a result of which the schools, colleges and
shops were remaining closed in the town and terror reigned in the whole town.
Two criminal cases had been registered against him under section 147/353/153A
I.P.C./7 Criminal Law Amendment Act. As there was a possibility of his being
released on bail and continuing to indulge in such activities which were
greatly prejudicial to the maintenance of public order, it was considered
necessary by the detaining authority to place the petitioner under detention.
Having regard to the situation then prevailing in the town of Moradabad which
was unfortunately the scene of grave communal disturbances, it is impossible to
countenance the contention advanced on behalf of the petitioner that the
grounds set out in support of the order of detention are irrelevant for sustaining
an order of detention being made under section 3 of the Act.
The next argument advanced on behalf of the
petitioner was that there had been inordinate delay on the part of the
detaining authority in forwarding the petitioner's representation to the State
Government. The petitioner had addressed his representation not to the State
Government as contemplated by section 8 of the Act, but to the District
Magistrate, Moradabad. It was received by the District Magistrate on the 24th
of November and promptly, on the same day, the District Magistrate forwarded it
to Senior Superintendent of Police for the latter's comments. The comments of
the Senior Superintendent of Police were received in the office of the District
Magistrate on the 27th November but it was only on the 3rd December that the
District Magistrate forwarded his report to the State Government enclosing the
petitioner's representation and the comments of the Senior Superintendent of
Police. It was vehemently argued by the counsel for the petitioner's that there
had been undue and unexplained delay on the part of the detaining authority in
forwarding the petitioner's representation to the State Government inasmuch as
a period of nearly six days had elapsed between the receipt of the comments of
the Senior Superintendent of Police in the office of the District Magistrate
and the submission of his report to the State Government. The original file
pertaining to this case maintained in the office of the District Magistrate was
produced before us for our perusal by Shri O. P. Malhotra, the learned Senior
Advocate appearing on behalf of the respondents. It is seen therefrom that
during 344 the period from 28th November to the evening of the 1st December,
1982, the District Magistrate had to emergently leave his headquarters because
of the disturbances that had occurred in other localities within his
Jurisdiction where his presence was urgently needed for tackling the explosive
situation. After he returned to the headquarters on the evening of 1st
December, the District Magistrate without losing any further time forwarded the
petitioner's representation to the State Government on the 3rd December
together with his report and the comments received from the Senior
Superintendent of Police. We are fully satisfied on our perusal of the file and
the averments contained in the counter affidavit filed on behalf of the
respondents that the petitioner's representation has been dealt with by the
District Magistrate with all the promptness that was reasonably possible under
the circumstances then obtaining in Moradabad city and the surrounding areas
and that the charge of inordinate delay levelled by the petitioner is baseless.
In this context we consider it necessary to emphasise that the question whether
the representation submitted by a detenu has been dealt with all reasonable
promptness and deligence is to be decided not by the application of any rigid
or inflexible rule or set formula nor by a mere arithmetical counting of dates,
but by a careful scrutiny of the facts and circumstances of each case; if on
such examination, it is found that there was any remissness, indifference, or
avoidable delay on the part of the detaining authority/State Government in
dealing with the representation, the Court will undoubtedly treat it as a
factor vitiating the continued detention of the detenu; on the other hand, if
the Court is satisfied that the delay was occasioned not by any lack of
deligence or promptness of attention on the part of the authority concerned,
but due to unavoidable circumstances or reasons entirely beyond his control,
such delay will not be treated as furnishing a ground for the grant of relief
to the detenu against his continued detention. As already indicated, the case
before us falls under the latter category inasmuch as we are satisfied that
there was no avoidable delay on the part of the District Magistrate in
forwarding the petitioners representation.
The last point urged on behalf of the
petitioner is that there has been a violation of the provisions of the section
10 of the Act because the Advisory Board had not considered the case of the
petitioner within three weeks from the date of detention. As already noticed,
the petitioner submitted his representation to the District Magistrate against
the detention only on 24.11.1982 even though he had been arrested and placed
under detention on 8th November. The 345 said representation reached the State
Government on 6th December, 1982. In the meantime, the petitioner's case had
been referred by the State Government to the Advisory Board on the 18th
November itself. The representation received from the petitioner was forwarded
by the State Government to the State Advisory Board on 9th December, 1982. The
Advisory Board held its meeting on 10th December, 1982 and, after affording a
personal hearing to the petitioner, made its report finding sufficient cause
for the detention of the petitioner. The argument put forward on behalf of the
petitioner is that section 10 mandatorily enjoins the State Government to take
steps to see that the case of the detenu is considered by the Advisory Board
within three weeks from the date of detention. We are unable to see any merit
in this contention. Section 10 reads.
"Save as otherwise expressly provided in
this Act, in every case where a detention order has been made under this Act,
the appropriate Government shall, within three weeks from the date of detention
of a person under the order, place before the Advisory Board constituted by it
under section 9, the grounds on which the order has been made and the
representation, if any, made by the person affected by the order, and in case
where the order has been made by an officer mentioned in sub-section (3) of
section 3, also the report by such officer under subsection (4) of that section."
Under the section, a duty is cast on the appropriate Government to "place
before" the Advisory" Board constituted under section 9 within three
weeks from the date of detention, the grounds on which the order of detention
has been made and the representation, if any, made by the person affected by
the order. The petitioner's counsel wanted us to interpret the words
"place before the Advisory Board" as meaning "get considered by
the Advisory Board". We are wholly unable to accede to this argument.
Under the terms of the section, the duty cast on the appropriate Government is
to forward to the Advisory Board constituted under section 9 within three weeks
from the date of detention, the papers pertaining to the detention of the
detenu consisting of the grounds on which the order has been made, the
representation, if any, made by the person affected by the order, etc. It is to
be remembered that the Advisory Board is not an entity subordinate to the
Government. It is a wholly independent body consisting of persons who are or
have been or are qualified to be 346 appointed as Judges of a High Court. It is
entirely for the Advisory Board to regulate its schedule of holding meetings
and conducting its business in accordance with the procedure laid down under
section 11 of the Act which has specified a time limit or seven weeks from the
date of detention for the submission of the Board's report to the appropriate
Government. It is, therefore, wholly wrong to interpret the words "place
before" as meaning anything more than forward to or submit before the
Advisory Board the relevant papers relating to the detention of the detenu. In
the present case, the Advisory Board has disposed of the petitioner's case well
within the period of seven weeks specified in sub- section (1) of Section 11 of
the Act. This contention of the petitioner is also, therefore, devoid of
substance.
The conclusion that emerges from the
foregoing discussion is that there is no ground whatever justifying any
interference with the order of detention passed against the petitioner and the
writ petition is, therefore, only to be dismissed.
H.S.K. Petition dismissed.
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