- (1.) S. K. Agarwal, J. This writ petition has been filed by Surendra Nath Tewari against the order of detention dated 4-9-1998 passed against him by District Magistrate, Kheri under Section 3 (2) of the National Security Act.
(2.) WE have heard the learned Counsel for the petitioner, learned Government Advocate an?1 learned Counsel for Union of India. The argument advanced before us by the learned Counsel for the petitioner is that enormous delay has been caused in disposal of the representation of the petitioner by the Central Government. It emerges from the counter-affidavit of Sri Bina Prasad filed on behalf of the Union of India that the representation made by the petitioner was received in the Ministry of Home Affairs, Government of India on 21-9-1998 from District Magistrate, Kheri. It was processed immediately and it was discovered that certain vital information i. e. report of Advisory Board was sought from the State of U. P. through crash wire less message dated 23-9-1998. On receiv ing this information on 20-10-1998 from the Stale Govt. department took six days to put up his representation before the Director, Ministry of Home Affairs. It was so put upon 26-10-1998. The Director, in turn submitted the representation for con sideration by the Joint Secretary with his comments on the same day and the Joint Secretary in turn put up the case before the Home Minister, Government of India, on 26-10-1998 itself. Thus, it has been urged before us that two officials in the Ministry of Home had prepared their comments in just one day. The tenor argument as ap peared to us is that it indicates non-ap plication of mind by the Director and the Joint Secretary, Ministry of Home Affairs and the case was put up before the Home Minister mechanically. The Home Mini ster disposed of the representation on 30-10-1998 so in all five days were taken by the Home Minister for deciding the repre sentation. It has been argued before us that in view of the decision of the Apex Court in the case of Rajammal v. State of Tamil Nadu and another, 1999 SCW 139, this constitutes enormous delay. The next argument on the point of delay in consideration of the repre sentation is that waiting for the report of the Advisory Board by the Central Government for a long period of 27 days was uncalled for. This report was desired by the Home Ministry from the State Government on 23-9-1998 through a crash wireless message. The report was received on 20-10-1998 i. e. it took 27 days. Yet another aspect raised before us is that even after receiving the vital information on 20-10-1998 the Central Government kept the case unattended till 26-10-1998 i. e. for 6days without any valid explanation.
(3.) WE have given our anxious con sideration to the argument raised at the bar and we are of the opinion that there is inordinate delay in consideration of the representation by the Central Govern ment. The arguments raised are tenable. Law does nowhere require the Central Government to await the report of the Advisory Board. The appropriate Governments are under an obligation to decide the representation made to them without waiting for the report of the Ad visory Board. So far as the concerned Government is concerned, the law clearly specifies under Section 3 (4) that no deten tion order shall remain in force for more than 12 days from the date of its making without approval of the concerned Government. The State Government has to approve the same in this period of 12 days. So the State Government under this provision is not required to await the report of the Advisory Board before ac cording approval. The same analogy is to be adopted in the case of Central Govern ment with regard to its obligation imposed by Section 3 (5) upon the Central Government. The State Government is under obligation to report any such detention alongwith grounds of such detention to the Central Government within 7 days. Article 22 (5) comes into picture at the stage of consideration of representation made by detenue so far as the two Govern ments are concerned. So far as the Advisory Board is concerned, it plays its part only when this formality is gone into by the concerned Government. The report of the Advisory Board may have some impact upon the consideration after compliance of the provision of 3 (4) by the State Government at a later stage when the report of Advisory Board is received by the concerned Government. This is what is the scheme of the Act as envisage under Section 12. In our view the report of the Advisory Board is not any vital informa tion for which such a long delay caused in the consideration of the dentenue's representation can be permitted. It is not at all necessary for the decision of any repre sentation by the Central Government. The delay was avoidable. It thus render the further detention of the detenue illegal.;