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Judgment
V. Rajagopala Reddy, J.—The order of detention passed against Balagani Sreenivasa Rao S/o Venkata Subbaiah, brother of the petitioner, dt.25-2-1997, is under challenge.
The Collector and District Magistrate, Prakasam District, Ongole, passed an order of detention on 11-12-1996 against the detenu on the ground that he contravened the provisions of Section 8(b) of A.P. Prohibition Act, 1995 and that he was a Boot Legger causing harm to the general public. In exercise of power u/s 3(1) and (2) of A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, ''the Act''), the detenu was detained in the central prison at Nellore.
The detenu filed a representation before the Government dt. 20-12-1996 to set aside the order of detention. The matter was referred to the Advisory Board. The Advisory Board confirmed the order of detention, rejecting the representation of the detenu. By G.O.Ms. No. 1010 General Admn. (Law & Order-II) Department, dt. 25-2-1997 the Government confirmed the detention order and directed the detenu to be detained for a period of 12 months from 11-12-1996.
Learned counsel for the petitioner urged that the 1st respondent kept the representation of the detenu, pending receipt of the opinion from the Advisory Board. It ought to have considered the representation without awaiting the opinion of the Advisory Board, which was received on 27-1-1997, whereas the representation was given on 20-12-1996. Hence the action of the 1st respondent, keeping the representation pending till 27-1-1997, was wholly illegal and hence the detention order should be quashed. He relied upon the decision in Navalshankar Ishwarlal Dave and another Vs. State of Gujarat and others, .
The 1st respondent filed counter affidavit dt. 19-5-1997, stating that the order of the Government was independent of the opinion of the Advisory Board. It was stated that para-wise remarks of the detaining authority were received on 10-2-1997, which was much later to the opinion of the advisory Board dt. 27-1-1997. The Government kept the representation pending awaiting the para-wise remarks from the detaining authority and not the opinion of the Advisory Board. Hence it was contended that the decision cited (supra) was not applicable to the facts of the case.
Thereafter, the petitioner filed an additional affidavit dt. 7-8-97, stating that there was inordinate delay for consideration of the representation D/- 14-12-96 filed by the petitioner, by the Government from 14-12-96 to 25-2-97, i.e., a delay of 73 days in disposing of the representation. Even after the para-wise remarks were received on 10-2-97, there was delay of 10 days by, the 1st respondent to consider the representation. Hence, the unexplained delay of 73 days would vitiate the order of detention.
On behalf of the 1st respondent, the Dy. Secretary to Government, G.A.D., filed counter affidavit dt. 9-8-97, stating that no representation dt. 14-12-1996 or 20-12-1996 was received by the Government. The representation sent by the wife of the detenu through the Collector and District Magistrate, Ongole, dt. 26-12-96, was received by the Government, stating that the mother of the detenu died and it was requested to release the detenu for one day. The said request was considered by the authorities on 31-12-1996. The detenu was released for one day. Thereafter, a further representation dt. 26-12-1996 to release the detenu was received by the Government through the jail on 1-1-1997. Another representation dt. 26-12-1996 was also received to release for 10 days. The file was received in the concerned Section on 2-1-1997. It was processed and put up for signature of the Joint Secretary, Law and Order on 3-1-1997. The Joint Secretary signed on 3-1-1997 and the file was put up to the Chief Secretary on 4-1-1997. On the same day the Chief Secretary signed the said file rejecting the request of the detenu for releasing him for ten days. The memo rejecting the request for release of detenu for ten days was despatched on 6-1-1997. It was further stated that the file was processed on 7-1-1997 to call for remarks from the Collector, who is the detaining authority and on the same day it was put up to the Jt. Secretary, Law and Order. The Jt. Secretary signed on the said note on 8-1-1997 on 9-1-97 memo calling for the remarks was typed and the concerned Section Officer signed on 10-1-97. 11th, 12th, 13th and 14th January, 1997 were public holidays. Hence, the letter calling for remarks was dispatched on 15-1-97 by registered post. Para-wise remarks were received from the detaining authority on 10-2-97. The file was scrutinised in the concerned Section and nothing on the note file was prepared basing on the 7 pages representation of the detenu. 16-2-97 being a Sunday, the file was put up to the Deputy Secretary, Law and Order, on 18-2-97. On 19-2-97, the Dy. Secretary, Law and Order signed on the note. Then the file was sent to the Secretary Political, who also signed on the same day and sent the file to the Chief Secretary, who also signed on the same day rejecting the representation of the detenu and the file was sent back to the concerned Section on 20-2-97. Memo rejecting the representation was prepared on 21-2-97 and sent for approval of the Asst. Secretary and Jt. Secretary, Law and Order, who signed on the file on 22-2-97 and the file was dispatched on 25-2-97, 23-2-97 being Sunday, rejecting the representation. It was stated that during the period from 10-2-97 to 15-2-97 (16-2-97 being Sunday) the concerned Section had been attending to the Advisory Board work with regard to 24 detention cases. The Advisory Board meetings were held on 19th and 20th February, 1997. Hence, it was stated that there was no delay at all on the part of the Government in considering and disposing of the representation of the detenu.
In his counter affidavit filed on 11-8-97, the Collector and District Magistrate, Prakasam District, Ongole, stated that he received intimation from the Government on 20-1-97 directing him to send para-wise remarks on the representation of the detenu. After perusing the said representation, he sent the same to the Asst. Commissioner, Prohibition & Excise Prakasam District, Ongole, for remarks and it was received by him on 25-1-97, who in turn returned the file on 4-2-97. The said file was put up to the District Magistrate on 5-2-97. He has perused the para wise remarks and the representation of the detenu and prepared his remarks on 5-2-97 itself and sent it to the Government, which was received at the Secretariat on 10-2-97. Hence, it was stated that there was no delay on his part in sending the para-wise remarks to the Government.
The first contention raised by the learned counsel for the petitioner was that the 1st respondent, ought not to have awaited the opinion of the Advisory Board, which was passed on 27-1-97, to consider the representation of the detenu. Keeping the representation pending until the receipt of the Advisory Board''s opinion, rendered the order or detention void. As already stated, learned counsel relied upon the decision in Navalshankar''s case (supra), in support of the contention. This contention has no force. In fact the facts brought out in the counter affidavits reveal that the 1st respondent did not await the opinion of the Advisory Board in considering the representation of the petitioner. After receipt of the representation of the detenu it was forwarded to the detaining authority for para-wise remarks, which was received on 10-2-97 and on considering the para wise remarks the representation was considered and rejected. Meanwhile, the opinion of the Advisory Board dt. 27-1-97 was also received by the Government. It is, therefore, incorrect to contend that the Government awaited the opinion of the Advisory Board to consider the representation of the detenu.
In the additional affidavit filed by the petitioner he clearly stated that the detenu filed the representation to the Government on 14-12-96 requesting the Government to set aside the detention order. The 1st respondent in his counter affidavit has categorically stated that no such representation was received by the Government on 14-12-96. The case of the 1st respondent was that the representation dt. 26-12-96 was made by the wife of the detenu for the release of the detenu for one day and he was accordingly released on 1-1-97. The 2nd representation of the same date was received by the Government through jail authorities for the release of detenu. Another representation for release for ten days to perform the religious rites in connection with the death of the detenu''s mother, was also received on 1-1-97, which was considered and rejected. It was intimated to the detenu in the memo dt. 4-1-97, which was dispatched on 6-1-97. However, it was stated in the counter affidavit that the file was further processed and in the memo dt. 20-2-97, it was rejected and the same was dispatched on 25-2-97 and the delay caused from 26-12-96 to 25-2-97 was due to the reasons stated in the counter affidavit and according to the Government the delay was properly explained.
Learned counsel for the petitioner, however, contends that a representation on behalf of the detenu dt. 14-12-96 was filed before the District Magistrate, Prakasam District, Ongole, questioning the order of detention as illegal and to release the detenu forthwith. The District Magistrate has forwarded the said representation to the 1st respondent. But the 1st respondent has not considered the said representation at all, thus violating the procedural guarantee prescribed under Art. 22(5) of the Constitution. Hence, the order of detention is vitiated. Learned counsel further contends that the Government for the District Magistrate have not properly explained the delay caused for considering the representation dt. 26-12-96 for release of the detenu. Hence, the order of detention has to be held as illegal and void.
Not satisfied with the counter affidavits filed by the 1st respondent, we have directed the learned Government Pleader to submit the original file to the Court. Accordingly, the said file was produced before the Court and we have carefully perused the same. It has been categorically denied that the Government has received any representation dt. 14-12-96 and the same has been given only to the District Magistrate, Ongole. We find from the file that representation dt. 14-12-96 has been filed before the District Magistrate, Ongole, along with a memo of appearance by two Advocates on behalf of the detenu in Rc.No. 3018/96/C3, and which was received on 17-12-96. This is evident form page 89 of the file. The representation dt. 14-12-96, is found at page 91 of the file, was stated to have been submitted to the District Magistrate, Ongole, to be forwarded to the Advisory Board for appropriate orders. In the said representation, the order of detention was questioned as illegal and it was requested that the detenu may be directed to be released. The said representation was forwarded to the Chief Secretary to the Government on 20-12-96 and the same was received by the Chief Secretary on 23-12-96. The file is silent about what action was taken by the Government on the representation dt. 14-12-96. It is also stated in the counter affidavit by the District Magistrate in W.P.No. 28103/96 filed on behalf of the detenu questioning the same order of detention, that the representation dt. 14-12-96 was filed on behalf of he detenu for his release and it was forwarded to he Chief Secretary. Thus, this fact that the representation dt. 14-12-96 filed on behalf of the detenu for his release, reached the Government is established. But the Government did not consider she said representation. Learned Government Pleader submits that since the said representation was given to the District Magistrate, it can be treated that there was no representation to the Government dated 14-12-96 in the eye of law and that the Government was not liable to consider the same. This submission is wholly untenable. When once a representation on behalf of the detenu reached the Government for the purpose of his release, it should be treated as a representation made by the detenu under Art. 22(5) of the Constitution and the Government is bound under the said provisions to consider and dispose of the same within the shortest period. This constitutional provision has been violated by the Government in this case.
It is, however, contended by the learned counsel for the petitioner that the representation dt. 14-12-96 having been received by the District Magistrate, Ongole, who is the detaining authority, he is bound to consider the same and dispose it of, since he has got a right of revocation of the order of detention in view of the provisions of Section 15 of the A.P. General Clauses Act, 1891, which empowers to revoke the order by the authority who made the order. But the District Magistrate has not considered the said representation at all. In support of his proposition, the learned counsel has relied upon decision in K. Jayam v. JT Secretary to Govt. of India 1990 (1) LS 262. Hence, it was contended that the order of detention has to be declared as violative of Art. 22(5) of the Constitution.
It is true that the District Magistrate being the authority who was empowered to revoke the order of detention, he is bound to consider the representation and revoke the order, if the order of detention was found unsupportable. Section 3(2) of the Act provides for the District Magistrate to make an order of detention. However, Section 3(3) of the Act requires him to forthwith report the fact to the State Government and the State Government shall approve the order. The order made by the District Magistrate shall remain in force only for a period of not more than 12 days, unless it was approved by the State Government. It is, therefore, clear that approval of the State Government gives life to the order of detention passed by the District Magistrate, failing which it would die of natural death. Therefore, the Government, for all practical, purposes, is the detaining authority from the date of the order of approval and the right of revocation lies only in the State Government. Hence it is only the State Government who has to revoke the order. According to the provisions of Section 15 of the A.P. General Clauses Act, 1891, the authority who makes an order is empowered to revoke the same. The power of the State Government under the Act to revoke the order is with out prejudice to the provisions of Section 15 of the A.P. General Clauses Act, 1891. That means the provision of the Act does not detract the power of the detaining authority to revoke the order. However, in view of the fact that after the approval the Government becomes, for all practical purposes, the detaining authority, it is only the Government that has to approve or revoke the order of detention. This proposition of law is squarely covered by the decision in Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, . Hence, the contention that the District Magistrate has not disposed of the representation made to him, is without substance.
The above facts and the averments in the counter affidavits filed by the respondents show that there are more than one representation in this case made by the detenu for his release. The representation dt. 26-12-96, which is said to have been sent to the Collector & District Magistrate, Ongole, was signed by the wife of the detenu requesting for the release of the detenu for one day on the ground that the detenu''s mother died. The 2nd representation is dated 26-12-96 to release the detenu, which was received through the jail authorities on 1-1-97. Another representation was received on 2-1-97 from the detenu to release him for 10 days. In view of the Court''s order directing to consider to release the detenu for 10 days, in order to perform the last rites of his mother, the representation for release of the detenu for 10 days was considered on top priority and it was processed immediately without processing the representation to release the detenu. The representation for release of the detenu for one day was accepted and the detenu was accordingly released. However, the representation for release of the detenu for 10 days was rejected by the Government on 6-1-97. Thereafter, the representation dt. 26-12-96 for the release of the detenu was processed on 7-1-97 and parawise remarks were called for from the detaining authority and the letter to that effect was dispatched on 15-1-97 by registered post. It is thus seen that representation dt. 26-12-96 received by the Government through the jail authorities on 1-1-97, was thus kept without consideration for 5 days. The obvious reason was that the file was under consideration for the release of the detenu for 10 days, but we find it unacceptable. The Government should have called for the remarks from the collector and District Magistrate, Ongole, for the release of the detenu, simultaneous to the consideration of the request of the detenu for his release for 10 days. Even thereafter, the file was not expeditiously dealt with. We find a casual approach by the authorities in consideration of the representation. Between the Joint Secretary and the Section Officer, the file was moving in a lethargic way, resulting in the dispatch of the memo calling for para-wise remarks only on 15-1-97. It is true that 11-1-97 to 14-1-97 the office was closed for public holidays. But still it should be remembered that the officers concerned should keep in mind, in dealing with an urgent file, that the said days being public holidays and ought to have processed the file expeditiously, and called for remarks on 10-1-97 itself. The Government, it was stated, received the para wise remarks from the District Magistrate on 10-2-97. The enormous delay from 16-1-97 to 10-2-97 was sought to be explained by the District Magistrate, though unsuccessfully, in his counter affidavit. It was stated that on 20-1-97 he received the file from the Government. He sent it to the Asst. Commissioner, Prohibition & Excise, Ongole, for his remarks, who received the same on 25-1-97. It is not, however, explained why it took 5 days for the file to reach from one office to another office in the same town. The file was returned to the District Magistrate with para wise remarks on 4-2-97, well after 10 days. Thereafter, the District Magistrate has returned the file on 5-2-97 with his para wise remarks, which was received by the Government only on 10-2-97, i.e. it took 5 days for the file to reach from Ongole to Hyderabad, through post.
We do not understand why there was abnormal delay of 10 days for the file to be sent to Ongole and to be returned back. In these days of availability of Hi-tech facilities like FAX etc., it should not take one day on each side. At least the file should have been sent through a messenger or through courier service. The authorities should keep in mind the personal liberty which was involved and ought to have taken sufficient care at least to avoid the postal delay. The consideration under Art. 22(5) of the Constitution of the representation of the detenu is not an empty formality. It is a valuable right guaranted to the detenu.
Now coming back to the movement of the file, the Government took 10 days from 10-2-97 to 19-2-97 to process the file and sent it to Secretary, Political, who ultimately rejected the request of the detenu for his release. From 19-2-97 to 25-2-97, there was again no proper explanation for the dispatch of the memo rejecting the request of the detenu, except 23-2-97 being sunday. Thus, ultimately the representation dt. 26-12-96 which was received by the Government on 1-1-97 was disposed of only on 25-2-97, after about two months. Thus, there was enormous delay in disposing of the representation dt. 26-12-96 , which was not properly explained.
The Apex Court in Tara Chand Vs. State of Rajasthan and Others, , held :
"If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Art. 22(5) so as to render the detention unconstitutional and void."
In Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, , O. Chinnappa Reddy, J. as he then was, speaking for the Bench, held : at page 495 (of Cri LJ.
"In view of the wholly unexplained and unduly long delay in the disposal of the representations by the Central Government, the further detention of the appellant must be held illegal and he must be set at liberty in the light of the judgments of this Court in Sabir Ahmed Vs. Union of India (UOI), , Smt. Khatoon Begum Ors. Vs. Union of India (UOI) and Others, and Sat Pal Vs. State of Punjab and others, ."
18.1. In the instant case there was not only inordinate delay in disposing of the representation dt. 26-12-96, but also the representation dt. 14-12-96 was not processed either by the detaining authority or by the Government. Hence, the continued detention of the detenu is no longer permissible.
The writ petition is accordingly allowed and the detenu is set free forth with, if not required any other case
Petition allowed.