K.M.Natarajan, J. - (1.) THIS writ petition is filed by one Kala, wife of the alleged detenu Subban, under Art.226 of the Constitution of India, seeking for the issuance of a writ of habeas corpus setting aside the order of detention dated 23.1.1992 passed against the detenu and set him at liberty. The detenu came to the adverse notice as forest offender in view of the two cases referred to in the preamble of the grounds of detention and was detained on the basis of the ground case by the District Magistrate and Collector of North Arcot, Ambedkar District at Vellore, the first respondent herein, in exercise of the powers conferred in sub-sec(1) of Sec.3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) with a view to pre-venting him from acting in any manner prejudicial to the maintenance of public order. The details of the ground case which led to the passing of the order of detention were set out in the grounds of detention which was duly served on the detenu. Hence, in view of the limited plea taken in this writ petition, we do not propose to reiterate the same once again in this order. Though the writ petition was challenged on various grounds set out in the affidavit, the learned counsel for the petitioner, Mr.V.Gopinath, confined his arguments to grounds Nos.(d) and (f). In ground No.(d), it is contended as follows: "I state that the representation dated 17. 2.1992 sent by the detenu has not been considered expeditiously and not attended to immediately. I state that there is considerable delay in considering the representation of the detenu and the authorities have failed to consider the representation effectively and properly. The representation has to be considered expeditiously and continuously. The authorities have failed to consider the representation made by the detenu." In reply to the same, in the counter-affidavit filed on behalf of the second respondent by the Deputy Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, it is averred in para 4 as follows: "4; With regard to the contention "raised- in grounds (d), (e) and (f) of paragraph 6 of the affidavit it is submitted that a representation dated Nil from the detenu was received by the Government on 25.2.1992 through the Superintendent, Central Prison, Vellore, in his letter dated 21.2.1992. A copy of it was sent to the. Advisory Board on 5.3.1992 which has programmed to review the detenu's case on 5.3,1992. The Government carefully examined the representation and the connected records on 9,3.1992, 10.3.1992, 11.3.1992 and 12.3.1992, 83.1992 was a Government holiday. Connected file was submitted to officers on 13.3.1992. Under Secretary has seen the file on 13.3.i992 and Deputy Secretary has seen the file on 14.3.1992. Secretary to Government has seen the file on 16.3.1992. After obtaining orders in circulation on 17. 3.1992 from Minister of Law rejecting the request of the detenu, rejection order was issued in Government letter dated 17. 3.1992. There were Government holidays on 14.3.1992 and 15.3.1992. The Government considered the representation of the detenu actively, continuously and independently. Hence, I submit that the contentions raised in the said paragraphs are not tenable or sustainable."
(2.) IT is seen from the counter-affidavit filed on behalf of the second respondent that though the representation of the detenu was received by the Government on 25.2.1992, the Government did not call for parawar remarks from the detaining authority and without calling for the parawar remarks, the file was submitted to the officers on 13.3.1992 and after consideration, the rejection order was passed on 17. 3.1992. The point strenuously urged on behalf of the detenu was that when the detenu has raised various contentions in his representation challenging the order of detention, the State Government, namely the Secretary, Prohibition and Excise Department cannot summarily reject the representation in a casual and mechanical manner and that is not the proper consideration of the representation. Besides that, it was contended that the order is vitiated on the ground of inordinate and unexplained delay in rejecting the representation. Since it is stated that in many cases the Government have disposed of the representations of various detenus without calling for parawar remarks from the concerned detaining authority, we proposed to deal with the same and give a finding on this question. Hence, we asked the learned counsel for the petitioner and the learned Public Prosecutor to advance arguments on this question. Accordingly they advanced arguments. In John Martin v. State of West Bengal, 1975 Crl.L.J. 637, three learned Judges of the Apex Court held as follows: "This, however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiassed mind." "But the order of the State Government rejecting the representation of the detenu need not be a speaking order. There is no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government. It is not necessary that the order of the State Government must be a reasoned order. Jayanarayan Sukul v. State of West Bengal, A.I.R. 1970 S.C. 675 and Haradhan Saha v. State of West Bengal, A.I.R. 1974 S.C. 2154:1974 Crl.L.J. 1479, Followed: Bhut Nath Mato v. State of West Bengal, A.I.R 1974 S.C. 806: (1974)1 S.C.C. 645:1974 Crl.L.J. 890:1974S.C.C. (Crl.) 300, explained." It may be pointed out that both the decisions in Jayanarayan Sukul's case, A. I. R. 1970 S.C. 675 and Haradhan Sana's case, A.I.R. 1974 S.C. 2154:1974 Crl.L.J. 1479,were decisions rendered by a Bench of five Judges. In Jayanarayan Sukul's case, A.I.R. 1970 S.C. 675, while dealing with the procedure in respect of the disposal of the representation of the detenu, it was held as follows: "Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority js entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board." It is clear from the above decision that the appropriate Government is expected to exercise its opinion and Judgment on the representation sent by the detenu. In Vijay Kumar v. Union of India, A.I.R. 1988S.C. 934, it was observed in para 25 as follows: "25. It is, however, complained that when the representation was made to the Government, it was not at all justified on the part of the detaining authority to reject the representation. In other words, it issubmitted,thedetain-ing authority had no jurisdiction to reject the representation when it was meant for the Government. It is true that the said S.K.Chaudhary has stated in his affidavit that the detaining authority rejected the representation of the appellant's wife by his order dated 4.5.1987. Mr.Kuldip Singh, the learned Additional Solicitor General, however, points out on a reference to the record, that the detaining authority did not reject the representation, but only commented "merits rejection". Thus, a wrong statement has been made in the affidavit. Even though the position is altered, yet it is submitted by the learned counsel for the appellant that the comment of the detaining authority "merits rejection" had influenced the mind of the Minister, who considered the representation on behalf of the Government. Counsel further submits that there was no necessity for getting a comment from the detaining authority inasmuch as any comment by him against the detenu would influence the mind of the Government. We are unable to accept the contention. In our view, unless the comments of the relevant authorities are placed before the Minister, it will be difficult for him to properly consider the representation. There is no substance in the contention that any comment from the detaining authority would influence the mind of the Government. Such assumption is without any foundation. The contention in this regard is, accordingly, rejected." The learned counsel relied on the observations of the Apex Court and submitted that even the Apex Court was of the view that unless the comments of the relevant authorities are placed before the Minister, it will be difficult for him to properly consider the representation. Hence, from the above expression by their Lordships of the Supreme Court, the comments of the relevant authorities are necessary for proper consideration of the representation.
(3.) PER contra, the learned Public Prosecutor submitted that what is required under Art.22(5) of the Constitution is that whenever a representation is received, it must be considered by the authority and disposed of. In a case where the facts raised in the representation are already on record, the parawar remarks need not be called for as it is nowhere contemplated that parawar remarks should be called for before ever the Government disposes of the representation. In this connection the learned Public Prosecutor relied on certain decisions of the Apex Court. In Salim v. State of West Bengal, (1975)3 S.C.R. 394, it was observed: "It is next contended that the State Government having rejected the petitioner's representation the very next day that it was received, it must be held that it did not apply its mind to the representation. We do not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it." In Masuma v. State of Maharashtra, A.I.R. 1981 S.C. 1753:1981 Crl.L.J. 1256: (1981)3S.C.C 566: 1981 S.C.C. (Crl.) 736, it was observed: "Now, it cannot be said that the Government acted unreasonably in-forwarding the representation of the detenu to the Collector of Customs and waiting for the parawise comments of the customs authorities, since there were various allegations made in the representation which called for the comments of the customs department and without such comments, the State Government could not fairly -and properly consider the representation of the detenu." The learned Public Prosecutor also drew our attention to the decision reported in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India, A.I.R. 1991 S.C. 574, wherein it was held: "The consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government." After referring to the ratio laid down in the above decisions, the learned Public Prosecutor fairly submitted that in a case where there is a necessity of calling for comments for a fair and proper consideration of the representation by the Government, parawise remarks should be obtained. But, this cannot be a universal rule and in a case where the representation of the detenu does not require calling for any comments but can be disposed of on the basis of the available records, the failure to call for parawar remarks from the concerned authority would not vitiate the order of detention. After hearing the arguments of the learned counsel for the petitioner as well as the learned Public Prosecutor and after going through the above decisions, we find that whenever a representation is received from detenu, all that is necessary is that there should be real and proper consideration by the Government. In K.M.Abdulla Kunhi's case, A.I.R. 1991 S.C. 574, five learned judges of the Apex Court referred to earlier deci-sionsand upheld the view that there should be real and proper consideration of the representation by the Government and the representation cannot be disposed of in a casual and mechanical manner. In fact, in K.M.Abdulla Kunhicase, A.I.R. 1991 S.C. 5.74, Their Lordships pointed out the case in Frances Coralie Mullin v. W.C.Khambra, A.I.R. 1980 S.C. 849, where the detenu's representation was received by the detaining authority on December 26,1979. Without any loss of time copy of the representation was sent to the customs authorities for their remarks which was obviously necessary because the information leading to the order of detention was collected by the customs authorities. The facts were undoubtedly complex since the allegations against the detenu revealed an involvement with an international gang of dope smugglers. The comments of the customs authorities were received on January 4,1980. The Advisory Board was meeting on January 4,1980 and so there could be no question of the detaining authority considering the representation of the detenu before the Board met, unless it was done in a great and undue haste. After obtaining the comments of the customs authorities, it was found necessary to take legal advice as the representation posed many legal and constitutional questions, so, after consultation with the Secretary (Law and Judicial), Delhi Administration, the representation was finally rejected by the Administration on January 15,1980. It was held: "If there appeared to be any delay it was not due to any want of care but because the representation required a thorough examination in consultation with investigation agencies and advisers on law." In K.M.Abdulla Kunhi case, A.I.R. 1991 S.C. 574, their Lordships observed that they agree with the observations in Frances Coralie Mullin case. Thus, it is very clear from the above quoted decisions which are also quoted with approval in the latest decision in K.M.Abdulla Kunhi case, A.I.R. 1991 S.C. 574, the representation of the detenu should be disposed of after real and proper consideration and that it cannot be disposed of in a casual and mechanical manner. In a case where the representation of the detenu requires any particulars from the records of the sponsoring authority and the comments of the said authority for disposal of the representation and those facts are within the knowledge of the sponsoring authority, the appropriate Government which is empowered to deal with the representation should call for comments along with the connected records and consider the representation and then give a disposal to the same. On the other hand, in a case where In K.M.Abdulla Kunhi case, A.I.R. 1991 S.C. 574, their Lordships observed that they agree with the observations in Frances Coralie Mullin case. Thus, it is very clear from the above quoted decisions which are also quoted with approval in the latest decision in K.M.Abdulla Kunhi case, A.I.R. 1991 S.C. 574, the representation of the detenu should be disposed of after real and proper consideration and that it cannot be disposed of in a casual and mechanical manner. In a case where the representation of the detenu requires any particulars from the records of the sponsoring authority and the comments of the said authority for disposal of the representation and those facts are within the knowledge of the sponsoring authority, the appropriate Government which is empowered to deal with the representation should call for comments along with the connected records and consider the representation and then give a disposal to the same. On the other hand, in a case where from the allegations stated in the representation, it is found that those allegations can be disposed of with the materials available, there would be every justification for the authority not calling for remarks. We also wish to observe that if the very object of withholding the obtaining of parawar remarks in any case is in order to get over the delay in the disposal of the representation, that practice is to be deprecated. The statutory right conferred on the detenu under Art.22(5) requires the appro-priate Government to consider the representation expressing its opinion and judgment though not by a speaking order. But, as repeatedly held by the Apex Court, all that is necessary is that there should be a real and proper consideration by the Government and the appropriate Government must bring to bear on the consideration of the representation an unbiassed mind and the representation cannot be considered in a casual and mechanical manner. If there is any breach on the part of the appropriate Government and there is no real and proper consideration, certainly in view of violation of Art.22(5) of the Constitution, the order cannot be sustained. However, it depends upon the facts of each case. We answer the above question accordingly.;