- (1.) WE have heard Sri Daya Shankar Misra, the Government ad vocate appearing on behalf of the Stale of U. P. as well as Sri Ginsh Pandey who has put in appearance on behalf of the Central Government.
(2.) THE only point is the delay in the disposal of the representation of the petitioner sent to the Central Govern ment. THE admitted facts of the case in short compass appears to be is that the petitioner under the order of the detaining authority, was detained on 15-6-1999. He sent a representation to the Central Government on 3rd July, 1999, through the jail authorities which was received by the Central Government in the concerned desks of the Central Government on 20-7-1999 through the State of Uttar Pradesh. THE representation was processed for con sideration in the case of detention and put up before the Under- Secretary, Ministry of Home Affairs on 26-7-1999, who con sidered the same with his comments and put up the same before the Joint Secretary, Ministry of Home Affairs on 27-7-1999, the Joint Secretary considered the same and with his comments put up before tlu Home Secretary on 27-7- 1999 who is said to have been delegated the powers to dis pose of such cases, by the Union Home Minister. THE Union Home Secretary rejected, the representation of the detenu on 27-7-1999. From the aforesaid facts it is evi dent that there was a considerable delay on the part of the State Government in send ing the representation of the petitioner to the Central Government which was received after on the desk of the Ministry of Home Affairs on 20-7-1999. There is no explanation in the counter-affidavit to in dicate as to why the representation of the petitioner reached to the desk of the Min istry of Home Affairs after seventeen days. There was a delay of six days in putting the representation of the petitioner before the Under-Secretary, Ministry of Home Af fairs who is with his comments placed before the Joint Secretary of Ministry of Home Affairs on 27-7-1999 and on that date the representation of the petitioner was rejected. No explanation has come forward from the side of the Central Government as to why there was a delay of six days in putting the matter before the Under- Secretary. It seems that at least for six days the file was dusted in the office of the Home Secretary. Only this much has been said in paragraph 10 of the sup plementary counter-affidavit that a decision to reject the said representation was taken by the Central Government in the Ministry of Home Affairs within a six days (excluding 24th and 25'li July, 1999 being holidays of its effectively becoming available for consideration and thus there was no delay in taking the decision on the representation of the detenu. When the liberty of a citizen is taken away by the detention under the Provisions of the National Security Act it is incumbent upon the authorities concerned to dispose of the representation of the detenu forthwith because that is the only opportunity which is given to a detenu to place before the authorities concerned that his detention was bad. Under Article 22 (5) of the Constitution of India reads as under: "when any person is detained in pur suance of an order made under any law provid ing for preventive detention, the authority making the order shall, as soon as may be, com municate to such person the grounds on which the order has been made and shall afford him at the earliest opportunity of making a repre sentation against the order. "
(3.) IF the representation of a detenu is not disposed of at the earliest opportunity then the detention of the detenu would be vitiated. As the law of detention is a harsh one and a person when del-lined under any trial the provisions of Article 22 (5) of the Constitution of India as well as the Nation al Security Act should be strictly con stitutes. In a recent decision of this Bench in Bachchu v. Union of India and others, habeas corpus, Writ petition No. 37913 of 1999, considering the fact that no explana tion has come forward from I he District Magistrate to explain the substantial delay which had occasioned in delivering the representations of the petitioner to the Central Government on 21-7-1999. The Division Bench also observed: "a submission without any foundation was made by Sri Mahcndra Pratap, learned A. G. A. , that the District Magistrate might have sent the representations through registered post as it was not incumbent upon him to have sent the same through special messenger. This sub mission is wide off the mark for one simple reason as the District Magistrate has chosen to forward the representation to the Slate Govern ment through special messenger. District Magistrate was not relieved of his duly by send ing the representations to the Slate Govern ment through special messenger. He was duty bound to forward the representations to the Central Government through some mode which would not have consumed the period as has taken place in the present case in Mohar Ali v. State of U. P. and others, 1999 Cr. R. 640, it was observed by a Division Bench of this Court that a duty is cast on the authorities concerned to take every possible steps for consideration of the representation of the detenu at the earliest without any loss of time by faster and quicker means, which have come up in the modern society. In our view, the callous attitude of the District Magistrate, in the present case is clearly discernible from the fact that he did not realise the implications of his forwarding and transmit ting the representations to the Central Govern ment with the speed which they deserved. Per haps, the District Magistrate was unmindful of the guarantees engrafted in Article 22 (5) of the Constitution of India. He allowed the repre sentations to drift in the usual course. " More or less similar observations were made in Wall Ahmad v. The District Magistrate, Hathras and others, habeas cor pus, petition No. 30962 of 1999, decided on 19-11-1999 wherein it was observed that the representation of the petitioners dated 26-5-1999 was received by the Central Government on 31-5-J999 and the repre sentations of the Guddan 28- 5-1999 was received on 3-6-1999 and on their repre sentations on 22-6-1999, because the Central Government was waiting for the decision of the Advisory Board. We need not multiplied the authorities on the question that the delay in disposal of the repre sentation effect the liberty of the petitioner but while referred to decision of Hon'ble Supreme Court in Rajammal v. State of Tamil Nadu, 1999 SCC (Crl) 93 : 1999 (1) JIC 524 (SC); wherein it was ob served: "it is a constitutional obligation of the Government to consider the representation for warded 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 mes sage that the representation should be con sidered 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. " It was further observed in Rajammal v. Slate of Tamil Nadu and another, (supra) that: "if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect fur ther detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be ex plained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. In the present case the representation was sent by the detenu on 13-1-1998 which reached he Secretary to the Government of Famil Nadu on 5-2-1998. The Government which received remarks from different authorities submitted the relevant files before the Under-Secretary for processing it on the next day. The Under secretary forwarded it to the Deputy Secretary on the next working day. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14-2-1998. Though there is ex planation for the delay till 9-2-1998 there is no explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14-2- 1998 is not a justifiable explanation when the liberty of a citizen guaran teed under Article 21 of the Constitution is involved. Absence of the Minister at the Mead-quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen. ";