Sherene vs The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai-8. and others

Judgement pronounced by V.S. Sirpurkar, J.—The petitioner herein challenges the detention order in respect of one Sahir Hussain, the

husband of the petitioner detaining the said Sahir Hussain under the provisions of Section 3(2) of the National Security Act 1980. The order is

passed by the Commissioner of Police, Greater Chennai.

Since the learned counsel restricts his submission only to the delayed consideration of the representation sent to the Central Government, we

need not advert to the facts involved and the reasons behind the detention order.

Learned counsel points out that after the detention order was passed and was served on the petitioner on 26.4.1998, two representations were

sent, one dated 10.5.1998 and another dated 5.6.1998. It seems, learned counsel submits that these representations were rejected and an

intimation to that affect was given vide order dated 5.10.1998. Learned counsel points out that this rejection order dated 5.10.1998 refers to both

the representations dated 10.5.1998 and 5.6.1998. By way of the explanation, learned counsel for the Central Government points out that the

representations reached the Central Government only on 30.8.1998. We may say here that in paragraph 6 of the counter, while there is reference

to the representation dated 5.6.1998, there appears to be no reference to the representation dated 10.5.1998, but we would take it that both the

representations reached the Central Government on 30.6.1998. It is then pointed out that since some vital information was required, the Central

Government sent wireless message on the same to the State Government, and since it did not receive the said information, sent the reminders also

on 17.7.1998, 10.8.1998 and 3.9.1998. However, it seems that the required information reached the Central Government on 4.9.1998. The

counter goes on to suggest that thereafter the matter was put before the Joint Secretary, Ministry of Home Affairs on 7.9.1998, who considered

the same on the same date and put up before the Honourable Home Minister, Government of India on the same day. It seems that thereafter, the

matter remained pending before the Honourable Home Minister, Government of India till 25.9.1998 and it is suggested that it is on 25.9.1998 that

the representation came to be rejected.

4 It is then pointed out in paragraph 8 that the intimation to that effect was given by a crash wireless message dated 30.9.1998 through the Home

Secretary, Government of Tamil Nadu and Superintendent, Central Prison, Vellore. It is then reiterated that a letter dated 6.10.1998 intimating the

rejection was thereafter sent. Thus, the counter gives the only explanation that the representation, after it was received, was worked on by the

Central Government without any unreasonable delay and because it received the comments from the State Government late, that representations

could not be considered earlier and further after the matters were put before the Honourable Home Minister on 7.9.1998, the matter remained

pending before the Honourable Home Minister for 18 days. From this counter, one thing is clear that there is absolutely no explanation as to why

so much time was taken in receiving the comments from the State Government. After having sent the wireless message on 30.6.1998, the

comments were not received and early action was solicited on the part of the State Government. Central Government woke up for the first time in

this behalf on 17.7.1998, thereafter on 10.8.1998 and thereafter on 3.9.1998 in sending reminders. These materials, we are afraid, could have

been sought earlier. Therefore, there is no explanation of this period. Even after receiving the comments from the State Government on 4.9.1998,

once the matters were put before the Honourable Home Minister on 7.9.1998, there is absolutely no explanation as to what happened to the said

representation upto 25.9.1998. Beyond a bold explanation that the matter remained before the Honourable Home Minister, there is no explanation

as to why the matter should have remained before the Honourable Home Minister for a period of almost 18 days. Strangely enough, even after the

rejection on 25.9.1998, there is no explanation as to why the wireless message was sent only on 30.9.1998 and a further intimation on 6.10.1998.

Therefore, even in the matter of intimating the result of the representation, the State Government has not acted with an alacrity that was demanded

of it in such matters.

Learned counsel for the Central Government very earnestly suggested that these are very serious cases where the allegations against the detenu

were for taking part in the bomb blasts and, therefore, their remaining free was a matter of greater hazard to the security of the State. Under these

circumstances, we can only say that the matters could have been attended to with mere alacrity. If has already been held by the Apex Court in

Rajammai v. State of Tamil Nadu & another, 1998 (9) Supreme 398 that it is not the length of the delay which is material but what is immaterial is

non-explanation of certain period. There can be a reasonable explanation for long delay also. But where there is no explanation for certain period,

the delay would be fatal. In the present case, there is absolutely no explanation atleast for the delay between 7.9.1998 and 25.9.1998 and even

prior thereto. Under the circumstances, we are left with no other alternative, but to allow this petition.

Accordingly, the H.C.P. is allowed. The detention order as well as detention is set aside. The petitioner shall be set at liberty unless is required

in any other case.