A.P.SHAH,J. - (1.) THIS petition under article 226 is filed by the father of the detenu Hajarat @ Barkya Shaukatali Khan for issuing a writ of habeas corpus quashing the order of detention dated 21st September, 1996 passed by the first respondent, Commissioner of Police, Mumbai under section 3 of the National Security Act, 1980. The circumstances leading to the detention of the detenu are elaborately stated in the grounds of detention annexed at exhibit "C" to the petition. We do not feel it necessary to recapitulate the allegations contained in the grounds of detention since we are inclined to allow the petition on a short ground, namely, that there was undue delay in disposing of the representation made by the detenu to the Central Government.
(2.) MR .Muzumdar, learned counsel for the petitioner has urged that the detention order stands vitiated on account of the fact that there was inordinate delay on the part of the respondent No.3 (Central Government) in considering the representation addressed by the detenu. Mr.Muzumdar urged that in view of the decision of the Apex Court rendered in Kundanbhai Dulabhai Shaikh vs. District Magistrate, Ahmedabad {(1996) 3 SCC 194}, an obligatory duty is cast on the authorities to consider such representation at the earliest. Mr.Muzumdar urged that the delay caused in considering the detenu's representation has fatally affected the order of detention and, therefore, his continued detention has become illegal. This ground of inordinate delay in the disposal of the representation has been raised in ground (Y) on page 39 of the writ petition which reads as follows : "The petitioner states and submits that on or about 24.2.1997 the detenu had preferred and submitted the representation addressed to the Secretary to the Government of India, Ministry of Home Affairs, (Department of Internal Security), North Block, New Delhi, through the respondent No.4. The petitioner craves leave to refer to and rely upon the representation and receipt in connection therewith. The petitioner says and submits that the said representation was necessarily required to be dealt with and considered by the Central Government, independently with the utmost expedition at, every possible stage. The petitioner further says and submits that every authority must deal with the representation with the utmost expedition at every possible stage from the date of its receipt up to the date when the reply embodying the outcome of consideration, if any, is actually communicated to the detenu. The petitioner, therefore, says and submits that non-consideration of the said representation by the Central Government, and/or lapse on the part of any authority in dealing with the representation expeditiously shall result in an infraction of the provisions of N.S.A. and/or Article 22(5) of the Constitution of India. As such, it is enjoined upon the respondents to satisfy this Hon'ble Court that the said representation was dealt with and considered by every authority with utmost expedition. The failure, on the part of any authority in satisfying this Hon'ble Court about the above will render the detention and/or continued detention, illegal, unconstitutional and void. Without prejudice to what is stated hereinabove the petitioner says and submits that the State Government and the respondent No.1 are bound to consider the representation dated 24.2.1997, independently and expeditiously, and are further bound to inform the detenu the outcome of consideration. The petitioner says and submits that it shall be incumbent upon the respondent No.1 and the State Government to disclose and satisfy this Hon'ble Court as to whether the said representation of the detenu was also considered and replies were communicated to the detenu by the said authorities expeditiously and independently without any unavoidable delay. The petitioner says and submits that on the failure of the said authorities in so disclosing and satisfying this Hon'ble Court on the aforesaid counts, the detention of the detenu be held to have been rendered violative of provisions of N.S.A. and Article 22(5) of the Constitution, and, as such vitiated.
(3.) GROUND (Y) has been replied to by Mr.Rohtas Singh, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi as follows : "That with regard to the allegations made in the grounds (X) and (Y) of para 7 of the petition are denied being incorrect in so far as the Central Government is concerned. It is stated that a representation dated 24.2.1997 from the detenu was received by the Central Government in the Ministry of Home Affairs on 27.2.97 through the Superintendent, Nasik Road Central Prison, Nasik. This representation was immediately processed for consideration and it was found that certain vital information required for its further consideration was needed to be obtained from the State Government/Commissioner of Police, Brihan Mumbai and the same was sought through a crash wireless message dated 28.2.97. That the required information was received by the Central Government in the Ministry of Home Affairs on 7.3.96 vide the Commissioner of Police's letter dated 6.3.96. On receiving the said information on 7.3.97 the case of the detenu was put up before the Deputy Secretary, Ministry of Home Affairs on 11.3.97 who carefully considered the same and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 13.3.97. The Joint Secretary considered the case and with his comments put up the same before the Minister of State for Home Affairs on 13.3.97 . The Minister of State for Home Affairs himself duly considered the case of the detenu and rejected the representation of the detenu on 19.3.97. That the representation from the detenu along with all the required information became effectively available to the Central Government in the Ministry of Home Affairs for consideration only on 11.3.97. That a final decision to reject the said representation was taken by the Central Government in the Ministry of Home Affairs within 13 days (excluding 7 and 8.3.97 being holidays) of its effectively becoming available for consideration." ;