S.D.BAJAJ,J - (1.) CHARANJIT Singh son of Sadhu Singh, resident of village Samrai, Tehsil Phillaur, District Jalandhar, is being detained in terms of detention order Annexure P-2 dated 16.9.1988 based on grounds of detention Annexure P-3 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Detenu made representation against his detention on 24.10.1988 which was received by the jail authorities as late as on 11.11.1988. Jail Superintendent admittedly detained the representation unnecessarily for 18 long days. Factual position obtaining in this regard has been duly conceded in paragraph 9 of the reply which reads :- "Averments made in this para are not true and hence denied. Facts are that detenu made his representation on 22.10.1988 and signed the same on 24.10.1988 though typed date mentioned on the said representation is 11.10.1988. The said representation was received by the Ministry on 11.11.1988 and the representation was put up on 15.11.1988 (12 and 13.11.1988 being holidays) to Minister of State who is turn put up the file to Finance Minister on 15.11.1988 itself. The Finance Minister rejected the representation and the detenu was informed of the same vide memo dated 16.11.1988 and hence there is no delay in considering the representation. It has also been clearly mentioned in the memo dated 16.11.1988 that the representation of the detenu has been rejected by the Central Government."
(2.) IN Criminal Writ Petition No. 6 of 1989 filed by Harbans Singh, father-in-law of the detenu, the sole point pressed at the stage of arguments is the indifference, slackness and callous attitude on the part of the Jail Superintendent in unnecessarily withholding the representation of the detenu for an inordinately long period of 18 days and the resultant violation of Article 2(5) of the Constitution of India because the representation put in by the detenu could not be decided by the Detaining Authority with utmost expedition envisaged in law. In similar circumstances, the Supreme Court observed in Criminal Appeal No. 573 of 1988 (Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others), decided on 4.4.1989, 1989(1) Recent Criminal Report 486 as follows :- "It is seen from the impugned judgment, a similar contention was also raised before the High Court but that contention has not been properly disposed of. When this contention was urged before us, the learned Counsel for the respondent sought time for filing an affidavit from the Jail Superintendent showing the date of communication of the representation to the Government. Accordingly, an affidavit dated 17.3.1989 sworn by the Superintendent of Prisons, Bombay, was filed attempting to explain the delay that had occasioned in transmitting the representation. The explanation reads thus :- "I say that 16.6.1988 is the date of receipt of the detenu's representation and the said representation was forwarded to the Ministry on 22.6.1988. Further I have to submit that on 19th June, 1988 there was a holiday being Sunday." From the above explanation, it is clear that though the detenu had handed over the representation to Superintendent of Central Prison on 16.6.1988, the latter has callously ignored it and left the same unattended for a period of 7 days and forwarded the same to the Government at his pleasure on 22.6.1988. This Superintendent of Central Prison has not given any satisfactory and convincing explanation as why he had kept the representation with himself except saying that during the period of 7 days there was a Sunday. This Court in Abdul Karim and other v. State of West Bengal, 1969(1) SCC 433 held :- "The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality." This view was reiterated in Rashid S.K. v. State of West Bengal, 1973(3) SCC 476 while dealing with the constitutional requirement of expeditious consideration of the petitioner's representation by the Government as spelt out from Article 22(5) of the Constitution observing thus :- "The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion". It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression 'reasonable expedition' is explained in Sabir Ahmed v. Union of India, 1980(3) SCC 295 as follows :- 'What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination". See also Vijay Kumar v. State of Jammu and Kashmir and others, 1982(2) SCC 43 and Raisuddin alias Babu Tamchi v. State of Uttar Pradesh and another, 1983(4) SCC 537.
(3.) THUS when it is emphasised and re-emphasised by a serious of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge the obligation with all reasonable promptness and diligence without giving room for any complaint or remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution. A contention similar to one pressed before us was examined by this court in Vijay Kumar's case (supra) wherein the facts were that the representation of the detenu therein dated 29.7.1981 was forwarded to Government by the Superintendent of Jail on the same day by post followed by a wireless message, but according to the Government, the representation was not received by them. Thereafter, a duplicate copy was sent by the Jail Superintendent on being requested and the same was received by Government on 12.8.1981. Considering the time lag of 14 days in the given circumstances of that case, this court though overlooked the same and allowed the Writ Petition on the subsequent time lag, made the following observation :- "The Jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transport. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the Detaining Authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order." Reverting to the instant case, we hold that the above observation in Vijay Kumar's case will squarely be applicable to the facts herein. Indisputably the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16.6.1988 for mere onward transmission to the Central Government has callously ignored and kept it in cold storage unattended for a period of 7 days, and as a request of that, representation reached the Government 11 days after it was handed over to the Jail Superintendent. Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this Court has permitted the respondent to explain the delay in this appeal, if not before the High Court. In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary had ultimately caused undue delay in the disposal of the appellant's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. The avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ;