M. Obula Reddy, Adv. vs Government of Andhra Pradesh and Others

Jeevan Reddy, J.—In this petition, for the issuance of a writ of Habeas Corpus the validity of detention of Dr. M. V. Ramana Reddy is called in question. Dr. M. V. Ramana Reddy was detained under the order dt. 16-6-1985 passed by the Collector and District Magistrate, Cuddapah under S. 3(2) of the National Security Act 1980. The present writ petition was filed on 25-6-1985. In this writ petition, the constitutional validity of S. 5A of the Act was challenged as violative of Art. 22(5) of the Constitution. Subsequently, the petitioner filed WPMP 9822/1985, impleading the Union of India as the 4th respondent in the writ petition, which was ordered and the Union of India was impleaded as prayed for. The Union of India was impleaded in view of the fact that the constitutional validity of a Section in the Central Act was called in question. The Union of India has filed a counter-affidavit, and is represented by the learned Additional Standing Counsel for Central Government, Sri K. Nagaraja Rao.

We examined the grounds of detention and found that out of the six grounds stated in the grounds of detention, ground No. 1 is irrelevant; ground No. 5 is remote and ground No. 6 is vague. It is, however, not necessary for us to state the reasons for the above opinion of ours, because we are allowing this writ petition on a different ground altogether. We are only stating the above facts more by way of narration. Inasmuch as out of the six grounds, three grounds were found to be bad, we found it necessary to go into the question of constitutional validity of S. 5A. After the matter was argued at length and practically at the close of the arguments, it was discovered that there was delay on the part of the Government in considering and disposing of the detenu''s representation. Accordingly, we made an order on 7th August 1985 to the following effect :-

During the course of hearing of this matter, it came to light that while the representation of the detenu against the detention was made on 20th June 1985 the Government rejected the same on 18-7-1985. The counsel for the petitioner contends inter alia that this delay in considering the petitioner''s representation by itself vitiates the order of detention. The learned Additional Advocate-General says that since this point was not raised in the writ petition there was no occasion or opportunity for the respondents to explain the circumstances in which the Government took about twenty eight days for disposing of the petitioner''s representation. Mr. Padmanabha Reddy counters this objection saying that the order of approval of the Government was not communicated to the detenu and therefore, he could not have raised this contention earlier. Be that as it may, since the matter affects the liberty of a citizen, we direct the Government to file a counter-affidavit explaining the reasons for which it took twenty eight days for disposing of the petitioner''s representation. The counter-affidavit shall be filed on Monday Post on Monday".

In pursuance of the above order, the learned Addl. Advocate General has today filed an additional counter affidavit, sworn to by the Secretary (Political) to Government, General Administration (General. A) Dept., Government of Andhra Pradesh, Hyderabad, seeking to explain the delay in disposing of the detenu''s representation. The relevant file is also placed before us. We have heard the parties again today, on this question. We are satisfied that there has been undue and unexplained delay in considering the detenu''s representation, which itself is a violation of the guarantee contained in Art. 22(5) of the Constitution and that on this ground alone, this writ petition is liable to be allowed. We shall now proceed to state the facts relevant to the above question.

The order of detention is dt. 16-6-1985. The grounds of detention were served upon the detenu along with the order on detention. The detenu submitted his representation addressed to the Chief Secretary to the Govt. through the Superintendent of Jails, District Jail, Secunderabad on 20-6-1985. The Superintendent of Jails forwarded the representation to the Government on 21-6-85 and it was received by the later on 22-6-1985. The Government approved the order of detention on 26-6-1985 (vide G.O.Rt. No. 2802 General Administration (General. A) Department dt. 26-6-1985). On 27-6-1985, the Government by its Memo. No. 1027/General. A/85-4 dt. 27-6-85 addressed the Collector and District Magistrate, Cuddapah to send his remarks on the representation made by the detenu. This letter was despatched by post on 28-6-1985. The Collector and District Magistrate says that this letter was received by him on 4-7-1985. (Meanwhile, it appears, there was a telephonic talk between the Collector and the Secretary to the Government. Wherein the Collector seems to have stated that he has not received the copy of the representation sent by the Government. In pursuance of this telephonic talk, the Government sent another copy of the representation to the Collector on 4-7-1985. The Collector who received the letter of the Government dt. 27-6-1985 along with a copy of the representation on 4-7-1985, sent his remarks on 7-7-1985. (It appears as if the Government''s subsequent communication dt. 4-7-1985 enclosing another copy of the representation was not received by the Collector by 7-7-1985). The Collector''s remarks were received in the Secretariat on 8-7-1985. Indeed, it appears that on the same day, obviously before receiving the remarks of the Collector, the Government sent a wireless message to the Collector, reminding him to send his parawise remarks to the detenu''s representation forthwith. Be that as it may, after the Collector''s remarks were received by the Government, the matter appears to have been examined by the Assistant Secretary on 9-7-1985. The Assistant Secretary put up a note on 15-7-1985, recommending that the representation of the detenu may be rejected. (In this note, the Assistant Secretary refers to the fact that the detenu''s case is coming up for consideration before the Advisory Board on 18-7-1985 and that the stand taken by the Government on the said representation has to be communicated to the Advisory Board before that date). On 15-7-1985, the Joint Secretary to the Government agreed with the note of the Assistant Secretary that there are no merits in the representation made by the detenu and that it may be rejected. The Secretary to Government agreed with the same on 16-7-85, the Chief Secretary too agreed with the said opinion on the same day and the matter was sent up to the Chief Minister, who agreed with the opinion on 18-7-1985. The record does not show that this rejection of the detenu''s representation was communicated to the detenu. This fact, in our opinion, is responsible for the present contention not having been urged by the detenu at the earliest possible time. As stayed above, the writ petition was filed on 25-6-1985 and by that date, obviously, the consideration had not taken place. Even after the consideration took place and the representation rejected on 18-6-1985, it was not communicated to the detenu. Therefore, no contention based upon the delay in considering the representation was or could be raised at the outset of the arguments by the petitioner. Be that as it may, since the matter pertains to the liberty of a citizen, we ignored the technicalities of pleadings and directed the Government to explain the delay in consideration, under our order dt. 7-8-1985 referred to above. The question that arises in the above circumstances is whether the period of 28 days, i.e., from 20-6-1985 to 18-7-1985 taken for considering the representation can be said to be undue delay and if so, whether it can be said to have been property explained by the Government ?

It has been held by the Supreme Court in Frances Coralie Mullin Vs. W.C. Khambra and Others, that the representation made by the detenu should be considered at the earliest possible time since that is the guarantee implicit in Art. 22(5) of the Constitution. While saying so, the Supreme Court proceeded to make the following observations, which, in our opinion : apposite :

"We, however, hasten to add that the time-imperative can never be absolute or obessive. The Court''s observations are not to be so understood. There has to be lee-way, depending on the necessities (we refrain from using the word ''circumstances'') of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before them but may merely forward it to the Board without himself considering it. Several such situations may arise compelling as departure from the time-imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority".

In Prof. Khaidem Ibocha Singh, etc. Vs. The State of Manipur, , there was a delay of 17 days in disposing of the representation made by the detenu. In this case, the representation was received by the Government on 3rd March, 1971 and it was rejected on 20th March, 1971. The said period of 17 days was complained of as unexplained delay, vitiating the detention. The Government sought to explain the said delay by saying that after receiving the representation, they had to ascertain a particular fact, namely, whether one Professor Nandalal Sharma was also detained under the Act and for that purpose, they addressed a letter to the Jailer. The Jailor replied to the said letter on 18th March, 1971, after receiving which, the matter was disposed of on 20th March, 1971. The Supreme Court observed that there was no reason why the Government should have taken about 15 days for obtaining the information from the Jailor, and that if any such information was called for, they could have obtained it by telephone, because the jail was situated in the same town, at a short distance away. On the above reasoning, the said explanation was rejected and it was held that the delay of 17 days in considering the representation, vitiates the detention. Similarly, in Narinder Singh Suri Vs. Union of India (UOI) and Others, , a delay of 20 days was held to vitiate the detention. The representation by the detenu in this case was made on 5th October, 1979 and was received by the Government on 10th October, 1979. It was rejected on 30th October, 1979. In view of the fact that there was no explanation for this delay of 20 days, the detention was quashed. It is unnecessary to multiply the decisions. Suffice it to observe that the representation made by the detenu should be considered and disposed of by the Government expeditiously and without any undue delay. While, without a doubt, we should give due regard to the procedures involved in such consideration on the part of the Government, yet the representation must receive urgent, and prompt consideration at every stage of consideration as emphasised by the Supreme Court in first of the decisions referred to above (Frances Coralie v. W. C. Khambra).

Let us examine the facts of this case from the above stand-point. The representation was received as stated above on 22-6-1985. The Government took no steps whatsoever until 27-6-1985, until they addressed a letter to the Collector, calling for his remarks; that letter too was despatched not on the same day, but only on the next day. It is not stated in the counter affidavit, nor does it appear from the file placed before us that there were any particular facts or circumstances in the representation submitted by the detenu which called for or which required the remarks of the Collector calling for remarks appears to be a mechanical exercise. Be that as it may, having called for the remarks of the Collector on 27-6-1985, the Government waited till 4th July, 1985 to remind the Collector to send his remarks. Even after remarks were received on 8th July, we find that there is undue and unacceptable delay on the part of the Government. It is stated that the mater was placed before that Assistant Secretary on 9-7-1985. But the Assistant Secretary expressed his opinion only on 15-7-1985, i.e., he took as many as 6 days for expressing his opinion. If it stated that there was voluminous record which has to be looked into, even then, it should not have taken as many as 6 days. In view of the fact that undue delay had already occurred, the Government ought to have considered the representation with promptitude at least at this stage. Indeed, the note of the Assistant Secretary makes it appear as if he put up his note on 15-7-1985 only because the mater was coming up before the Advisory Board on 18-7-1985 and he thought that the Government''s stand on the detenu''s representation must be made clear to the Board on 18-7-1985. The ultimate rejection by the Chief Minister was on 18-7-1985. It is thus clear that the following periods have remained unexplained, or at any rate the explanation submitted by the Government is unacceptable, viz., 1. from 22-6-1985 to 27-6-1985 i.e., 5 days, 2. from 27-6-1985 to 8-7-1985, i.e. 11 days, 3. from 8-7-1985 to 15-7-1985, i.e., 7 days.

As pointed out above, it is not the case of the respondents that the representation contained any new facts, which called for an explanation from the detaining authority, nor was there any reference to legal department in this case, as in the case before the Supreme Court in Frances Coralie Mullin Vs. W.C. Khambra and Others, .

Calling for the remarks from the Collector appears to be a mechanical exercise in this case. It is stated that that is the practice followed by the Government. We are unable to appreciate such practice, if any. If there are indeed some questions which call for a report, remarks or explanation of the detaining authority, the report can always be called for. But it cannot be a mechanical or automatic exercise in every case. In this view of the matter, the period of 11 days (27-6-85 to 8-7-85) must be said not to have been properly explained. Even after receiving the remarks of the Collector, the Govt. did not act promptly. The Asst. Secretary took 6 to 7 days for expressing his opinion, which again has not been satisfactorily explained. The net result of all this is that it took 26 days for considering the detenu''s representation, which in the circumstances and in the light of the principles emerging from the decisions of the Supreme Court referred to above, must be held to be bad. The said delay vitiates the detention by itself and the detenu is to be released on the said ground alone.

In view of the said conclusion of ours, we desist from expressing any opinion on the question of the constitutional validity of S. 5A, notwithstanding the fact that we have heard the counsel fully on the above aspect.

For the above reasons, the writ petition is allowed and the order of detention is quashed. There will be no order as to costs.

The detenu shall be released and set at liberty forthwith.

Petition allowed.