AI Structured Summary
Not yet generated for this judgment
Judgment
E. Padmanabhan, J.—This application has been taken out to review the order dated 28.9.2000 made in H.C.P No. 860/2000 on the file of this Court.
One Ms. Rathnamala was ordered to be obtained by the orders of the first Respondent State Government, in G.O. No. S.R.I/300-6/2000 dated 26.4.2000 as the first Respondent. State Government arrived at the subjective satisfaction that the said Rathnamala is required to be detained as she had indulged in acts of smuggling and with a view to prevent her from indulging in such further smuggling activities the order of detention has been clamped against the detenuc. Challenging the said detention, the father of the detenu filed H.C.P. No. 860/2000. The Respondents entered appearance, filed their counter and this Court by order dated 28.9.2000. after considering the various contentions advanced, dismissed the Habeas Corpus petition. To review the said order, the present H.C.M.P. had been filed by the very same Petitioner.
At the hearing of the Habeas Corpus Petition. Mr. B. Kumar, learned senior counsel sought to contend that there is a delay in considering the representation, which delay renders the detention illegal. It was pointed out by the Additional Central Government Standing Counsel that no representation had been received by the Central Government and that therefore the contention is factually a misconception. Presumably accepting the contents of the counter. Mr. Kumar, learned senior counsel, did not pursue the said contention. This Division Bench also took the view that it is unnecessary to consider the said contention as in the counter affidavit filed on behalf of the 2nd Respondent it had been specifically set out thus:
With regard to the averments made in para 22 of the affidavit filed in the HCP. it is respectfully submitted that as per records of COFEPOSA Unit of the Department of Revenue, no representation filed by the detenu or on her behalf has been received till date and therefore, the question of delay in considering the representation by the Central Government does not arise.
In the light of the said factual stand taken obviously the counsel for the Petitioner did not pursue the contention though he addressed this point, we also considered that it is not necessary to deal with the said contention.
The present review application has been filed to review the earlier order dismissing the H.C.P. as factually a representation was sent which was rejected belatedly after the hearing. There is considerable delay in considering the representation which renders the continuance of detention illegal and hence this review. This is being urged in this review petition as according to the Petitioners, there is a suppression on the part of the 2nd Respondent with respect to representation submitted and this factual mistake had resulted in the H.C.P being dismissed.
The learned senior counsel submitted that the Petitioner had addressed representation to His Excellency. The President of India, the said representation was received in the President''s Secretariat on 13.5.2000. The said representation had been considered and disposed of and rejected by the Central Government only on 4.9.2000. after a lapse of 3-1/2 months and this delay is fatal renders the detention illegal
In this respect, certain admitted facts have to be set out as disclosed in the counter affidavit filed by the Deputy Secretary to Government of India, Ministry of Finance. The very portion of the counter affidavit filed by the Deputy Secretary to Government, Union of India. Finance Department in this Application reads thus:
With regard to the averments made in Grounds (c) and (d) of the affidavit filed by the Petitioner in the HCMP,. it is respectfully submitted that the Petitioner addressed a representation dated /5/2000 (wrongly mentioned as 11/5/2000) to the Hon''ble President of India (and not to the second Respondent as contended in para 22 of the affidavit filed in H.C.P. No. 860/2000). The said representation was received in the President''s Secretariat and was diarised in the Central Registry Vide diary No. 92/93 dated 13.5.2000. The said representation was some now by mistake forwarded to the Ministry of Home Affairs, by the President''s Secretariat, and the Ministry of Home Affairs received the same on 6/7/2000. The Ministry of Home Affairs forwarded a copy of the said representation to the Government of Tamil Nadu vide their letter dated 28/7/2000. The Government of Tamil Nadu forwarded vide their letter No. 3867/L&O-F/2000-2 dated 23.8.2000 a copy of the said representation to the Special Secretary cum D.G., C.E.I.B. (The Competent Authority of the Central Government for considering the representations filed by or on behalf of Cofepos Cofeposa e Detenus). A time chart regarding consideration and disposal of the said representation by the Central Govern is given below:
a)
Date of representation
(sic)-05-2000
b)
Date on which forwarded Government of Tamil Nadu
23-08-2000
c)
Date of receipt by Central Government
25-08-2000 (6.30 PM)
d)
Date on which comments Sponsoring Authority
28-08-2000 (In between 26th and 27th were closed holidays being Saturday and Sunday)
e)
Date on which comments received from Sponsoring Authority
30-08-2000
f)
Date of which Case filed submitted to Deputy Secretary
31-08-2000
g)
Date on which Deputy Secretary processed the representation and submitted the file to Joint Secretary (Cofeposa)
01-09-2000
h)
Date on which Joint Secretary (Cofeposa) submitted the file to S.S.-cum-DG, CEIB
02-09-2000
i)
Date of which the representation was considered and disposed by S.S.cum-DG, CEIB)
04-09-2000 (in between 3rd Sept. was closed holiday being Sunday)
j)
File received back in COFEPOSA Section
06-09-2000
k)
Date on which memo sent to the detenu as well as representations
07-09-2000
In the light of the above facts set out in the counter affidavit filed in this H.C.P. it is clear that representation had been submitted by the Petitioner addressed to His Excellency The President of India on 13.5.200. It has been repeatedly held by the Apex Court and following the same this Court also held that the representation submitted to the President of India is also a valid representation which is required to be considered expeditiously. There is no controversy with respect to this legal position.
In this case, on 13.5.2000. a representation dated NIL - 5-2000 had reached The President''s Secretariat on 13.5.2000. The said representation had been forwarded to the Ministry of Home Affairs by the President''s Secretariat and Home Affairs had received it only on 6.7.2000 after a period of 53 days. The Ministry of Home Affairs had forwarded the said representation to the Government of Tamil Nadu on 28.7.2000. The Ministry of Home Affairs had taken 22 days to forward the said representation to the Government of Tamil Nadu. The Government of Tamil Nadu, in its turn had forwarded the said representation to the Special Secretary Cum D.G.C.E.I.B. who is the competent authority to consider the representation filed by or on behalf of COFEPOSA detenue on 23.8.2000. The State Government had also taken 25 day.s to forward the said representation. The 2nd Respondent had received the said representation on 25.8.2000. Thereafter the 2nd Respondent had called for the comments from the sponsoring authority on 26.8.2000. The comments were received from the sponsoring authority on 30.8.2000. The file was circulated to the Deputy Secretary on 31.8.2000. The Deputy Secretary processed the representation and submitted file to the Joint Secretary (COFEPOSA) on 1.9.2000. The Joint Secretary (COFEPOSA) submitted the file to the Special Secretary cum D.G.C.E.I.B. on 29.2.2000. The competent authority. S.S. -D.G.C.E.I.B. considered the representation and disposed of the same on 4.9.2000. The file was received back in COFEPOSA section on 6.9.2000 and a memo had been sent to the detenue as well as to the writ Petitioner on 7.9.2000. After the representation reaching the Central Government on 25.8.2000. though Tamil Nadu Government, it cannot be stated that there had been delay as the representation had been considered and disposed of within 9 days from the date of receipt of the representation by the Central Government.
The representation submitted by the writ Petitioner had admittedly reached The President''s Secretariat on 13.5.2000. The representation has been allowed to take its own journey between 13.5.2000 to 25.8.2000 from the President''s Secretariat to the Ministry of Home Affairs, Ministry of Home Affairs to the State Government and the State Government to the Central Government. The above journey of the representation was at a snails speed and neither the President''s Secretariat nor the Home Ministry nor the State Government who have received the representation have shown urgency, muchless expediency with respect to the representation. The representation was pending uncared for in the President''s Secretariat for a period of 53 days. The said representation was lying in the Home Ministry between 6.7.200 and 28.7.2000 and the said Ministry had taken 3 weeks to forward the said representation to the State Government. The State Government had in its turn taken another three weeks to forward the said representation to the Special Secretary - L.G.C.E.I.B. the competent authority.
The delay between 13.5.2000 to 25.8.2000 cannot be explained at all as none of the said three authorities had attached any importance to the representation and they have casually forwarded the representation, which concerns with preventive detention. By all standards, the delay is fatal as the three authorities have shown total disregard. Half the authorities forwarded the papers atleast with least expediency the position would have been different. But on the other hand the three authorities referred to above have taken their own time allowed the representation uncared for and unattended for weeks together. This has caused delay and there could be no explanation at all.
Normally this Court would be justified in giving some concession for the forwarding of the representation from one authority, to another authority, if the said authorities have acted promptly. In that event, this Court might not have taken the view that the delay is inordinate. If the representation had reached the 2nd Respondent without delay, this Court would be justified in holding that there is no delay. But on the other hand, it has taken nearly 3-1/2 months for the representation to reach the 2nd Respondent. This has rendered the detention illegal.
The Petitioner also had to blame himself as the Petitioner had merely stated that he had sent a representation to the Central Government and the same had not been disposed of. But the Petitioner had forwarded the representation to His Excellency the President of India and obviously the 2nd Respondent is justified in filling the counter as on the date of filing the counter it had not received the representation. Be that so, which is not going to change the legal position as the delay had rendered the detention illegal, and it is violative of Article 22(5) of the Constitution of India. The learned Additional Central Government Standing Counsel for the Respondent have no quarrel with the legal position that delay in considering the representation renders the detention illegal and unconstitutional and they also have no explanation or answer for the delay as the representation was lying unattended for considerable weeks together at every stage, for which no explanation has been attempted nor it could be attempted. In the circumstances we hold that the delay in considering the representation has rendered the detention unconstitutional and a result of which the detcnue has to be set at liberty.
As regards the maintainability of the application for review, though in the counter affidavit it has been contended by the 2nd Respondent that a review application is not maintainable, but on the facts of the case, this is a fit case where this Court in exercise of its powers under Article 226 as well as the inherent powers will be justified in reviewing its orders as it is a violation of fundamental right and violation of Article 22(5) of the Constitution of India has been made out. As there is a shocking violation of the constitutional guarantees and this compel us to exercise the power of review. It has to be pointed out that this Court on the earlier occasion had already held that a review application is maintainable and this legal position is not being challenge by the counsel for the Respondents.
In the foregoing circumstances, we allow this review application. We review our order in H.C.P. No. 860/2000 on 28.9.2000. set aside the same and consequently, we allow the Habeas Corpus Petition and quash the order of detention on the only ground that the detention had been rendered illegal and unconstitutional consequence to the inordinate delay in considering the representation submitted on behalf of the detenu. Hence, we direct the detenue to be set at liberty forthwith, unless her presence is required in any other case.