N.N.MATHUR, J. - (1.) By way of this habeas corpus petition, the petitioner Sumar Khan has challenged the detention of his brother Beebuda alias Birbal Langa resident of 6-Dhani Mohangarh, Police Station Mohangarh, District Jaisalmer. The District Magistrate, Jaisalmer in exercise of powers conferred by Sec. 3(2)(3) of National Security Act, 1980 (hereinafter referred to as NSA) having satisfied that with a view to prevent Beebuda from acting in any manner prejudicial to the security of the State, directed to detain him by order dated 28th August, 1999. He was arrested and the order of detention as well as grounds of detention were served on him on the same day. It appears from the ground of detention that the detenu was found indulged in anti- national activities including sending of information to I.S.I. through I.S.D./P.C.O. and his activities were prejudicial to the national security. He was also found indulged in the smuggling of arms, ammunitions and drugs. The first respondent-State of Rajasthan confirmed the detention by order dated 6-9-99 vide Annexure/3. The first respondent-State of Rajasthan by order dated 30-10-99 in exercise of powers under Sec. 12(1) of the N.S.A. has ordered to keep him under detention for the period 29-8-99 to 28-8-2000. The representation made to the State Govt. was rejected and the decision was communicated vide letter dated 29-9-99 Annexure/6. The detention has been challenged mainly on the following grounds: (1) The detenu was denied the opportunity of submitting effective representation violating his fundamental rights guaranteed under Article 22(5) of the Constitution of India inasmuch as that he was not allowed to meet his lawyer. (2) Detenu's continuing detention deserves to be quashed on the ground that there is delay in considering his representation at the level of the Central Government. (3) Subjective satisfaction recorded by the Detaining Authority is vitiated as the Detaining Authority has not kept in view that the detenue was already in jail and his bail application was rejected.
(2.) We shall deal with each contention in seriatim : Contention-1 It is submitted that on 14-9-99 the detenu's counsel Mr. G. M. Khan sought permission from the Superintendent of Central Jail, Jodhpur to meet the detenu for submitting the petition. A copy of said letter dated 14-9-99 Annexure-7 is placed on the record. The Superintendent, Central Jail, Jodhpur after obtaining the signatures of the detenu on 'Vakalatnama' returned to the petitioner's counsel but did not permit him to meet his counsel. In this regard, in reply submitted on behalf of first and second respondent, it is stated that the Superintendent, Central Jail, Jodhpur asked Mr. G. M. Khan, learned counsel for the detenu to submit his affidavit and proper application before him to meet the detenu but, the counsel did not furnish the same. During the course of arguments, Mr. R. P. Vyas, learned Addl. Adv. Gen. has placed before me a direction of the State Govt. dated 15-8-94 which provides certain instructions with respect to persons seeking permission to meet the detenus. One of the instructions is that the lawyer who wants to meet the detenu should submit an application in writing along with affidavit giving full details of his identification or identification from the Advocate General or Advocate-on-record in case of Supreme Court (cases pertaining to Supreme Court). The instructions clearly provide that the permission can be granted only on proper identification, of the lawyer meeting the detenu. Perusal of the record shows that Mr. G. M. Khan, the learned Advocate who submitted an application Annexure/7 was advised to file an appropriate affidavit disclosing his identity and desire to meet the detenu, but, no such affidavit was filed. In our view, no complaint can be made by the detenu on this ground as his counsel did not file requisite affidavit before the Jail Authorities. Accordingly, the first contention stands rejected. Contention-2 It is averred in para 9 of the writ petition that on behalf of the detenu his counsel submitted a representation dated 20-9-91 Annexure/9 to the first respondent District Magistrate, Jaisalmer with a copy to His Excellency the President of India, Rashtrapati Bhawan, New Delhi. The another set of representation was sent to the Advisory Board, NSA, Rajasthan, Jaipur. The petitioner's representation was delivered in the Rashtrapati Bhawan on 25-9-99. The petitioner's counsel Mr. G. M. Khan received communication dated 29-9-99 from Rashtrapati Bhawan informing him that his representation has been forwarded to the Secretary, Govt. of India, Ministry of Home Affairs. It is submitted that the said representation has yet not been decided. The affidavit has been filed by Shri Sushil Kumar, Under Secretary, Ministry of Home, stating that the report of the State Govt. with respect to the detention of Beebuda alias Birbal Langa was received under communication dated 9-9-99. The report was examined by the Home Ministry and a decision was taken on 16-9-99. No ground was found to interfere with the decision of the State of Rajasthan. As regards the representation, it is stated that the representation dated 20-9-99 made on behalf of detenu was received by the Ministry of Home Affairs only on 12-11-99 from President's Secretariate. Mr. N. M. Lodha, learned Central Govt. counsel has placed the record of the Ministry before us. The record shows that the said representation was received in the Ministry only on 12-11-99. The representation was immediately processed for consideration and the case of the detenu was put before the Under Secretary. Home Affairs on 15-11-99 who carefully considered the same and put it before Dy. Secretary, Home Affairs on the same day. The matter was again placed before the Joint Secretary and then before Home Secretary, Govt. of India on 16-11-99. The Union Home Secretary who has been delegated the powers of Union Home Ministry for discharging such cases, himself duly considered the case of the detenu and rejected the representation on 16-11-99. The detenu was informed of the decision of the Central Govt. by wireless message dated 17-11-99 through the Home Secretary, Govt. of Rajasthan and Superintendent, Central Jail, Jodhpur. The message was followed by a letter dated 25-11-99. It is contended by Mr. Khan that the representation submitted to the President of India must be considered as the representation submitted to the Central Govt. The representation was received in the Rashtra-pati Bhawan as back as on 25-9-99 but the same was decided as late as on 16-11-99. Thus, there is considerable delay in deciding the representation. The learned counsel has relied upon various decisions of the Apex Court wherein it is held that it is constitutional obligation of the Govt. to consider representation forwarded by the detenu without delay. Learned counsel has placed reliance on decision of the Apex Court in Rajammal v. State of T. N., reported in (1999) 1 SCC 417 : (1999 Cri LJ 826). He has also placed reliance on another decision of the Apex Court in Rajindra v. Commissioner of Police, Nagpur, reported in 1994 Suppl (2) SCC 716. In Raghavendra Singh v. Superintendent, District Jail, Kanpur, reported in AIR 1986 SC 356 : (1986 Cri LJ 493) the Apex Court in view of the provisions of Sec. 3(8) of the General Clauses Act held that the representation addressed to the President must be considered to be a representation properly addressed to the Central Govt. The Court however, observed that when a representation is made to the President or the Prime Minister the allowance may be made for the time taken to forward the representation to the appropriate Ministry. The Court in para 3 of the judgment has observed as follows : "Under S. 3(8) of the General Clauses Act, the 'Central Government' means the President and a representation addressed to the President must, therefore, be considered to be a representation properly addressed to the Central Govt. Even so some allowance may be made for the time taken to forward the representation to the appropriate Ministry. Due allowance being made for the time which may ordinarily be taken for forwarding the representation from the President's Secretariaet to the concerned Ministry, we are unable to say in the present case that there has been adequate explanation for the delay."
(3.) In the instant case the representation Annexure/13 has been drafted by a lawyer Shri Gulam Mustafa, who has regular appearance before this Court in detention matters. Learned counsel instead of sending the representation to the concerned Ministry has chosen to send it to his Excellency the President. It is significant to notice that it is only the copy of the representation addressed to the District Magistrate, Jaisalmer which has been sent to his Excellency the President of India. It clearly appears that the copy has been endorsed to his Excellency the President of India with oblique motive to make a ground for quashing of detention, keeping in view the law in this regard. If there was any seriousness in early disposal of the representation, the lawyer would have definitely addressed the representation to the Ministry of Home. We disapprove this sort of practice adopted by the lawyers practising in the detention matters. They must clearly understand that such sort of strategy is not going to help them. We are not prepared to put our common sense in cold storage in the name of Rule of law. While dealing with the cases of preventive detention, a balance has to be struck with regard to constitutional safeguards because the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law and at the same time care has to be taken that the purpose and object of the Act is not to defeat on the basis of hyper-technical approach to observance of procedure. It is also to be remembered that constitutional safeguards and the rights under Articles 21 and 22 of the Constitution of India cannot be sacrificed at the altar of preventive detention under the Act. Thus the delay designed by the legal adviser of the detenu must be excluded. Thus, in the instant case the time till representation reached to the Ministry for effective consideration is held to be satisfactorily explained i.e. the period between 25-9-99 to 12-11-99. The letter Annexure/15 from President's Secretariate simply speaks that the representation has been forwarded to Home Ministry. It does not say when it was actually dispatched and when it was received in the Home Ministry. As soon as the representation was received in the Ministry of Home on 12-11-99, the same was decided in the shortest possible time i.e. by 16-11-99. Thus, in our opinion the delay has been properly explained and the detenu's detention cannot be quashed on this ground.;