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Judgment
V.H. Bhairavia, J.—This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the order of detention dated 17-11-1994 (Annexure ''A'') passed under the National Security Act, 1980. The impugned detention order came to be passed against the detenu under the following reasons :-
That it was reported that the detenu was involved in anti-social activities endangered to the security of the public. The grounds for detention enumerated in the order at Annexure ''C'' considered by the Detaining Authority, respondent No. 1 and satisfied with the report regarding the anti-social activities of the detenu. The proposal for taking action against the detenu under the National Security Act was submitted to the respondent No. 1 on 10-9-94 and the Detaining Authority passed the impugned detention order at Annexure ''A'' on 17-11-94. It reveals from the record that the detention order could be served only on 30th November, 1995 and the detenu was immediately detained on the same day. The detention order was confirmed by the Advisory Board and it was further confirmed on 19th January, 1995 by the Government. It reveals from the record that there was no representation made by the detenu to the Government directly but the representation was submitted by the detenu to the Advisory Board and the Advisory Board has sent that representation along with the papers of its report. It also reveals that the Hon''ble Home Minister received the said representation on 11-1-95 and after consideration, it was rejected. The detenu was informed regarding the rejection of the representation on 19-1-95. Thereafter, this petition was filed, challenging the impugned detention order at Annexure ''A'' and the confirmation order passed by the Government.
Heard the learned counsel Mr. Kadam for detenu. If has been submitted by the learned counsel Mr. Kadam that there is a delay in passing the detention order after the proposal received by the Detaining Authority. It has been submitted that the proposal was sent to the Detaining Authority on 10-9-1994 and the actual detention order came to be passed on 17-11-1994. The learned counsel submitted that delay in passing the detention order shows that there was no such anti-social or dangerous activities carried out by the detenu. Taking support of this arguments, the learned counsel relied on the judgment of this Court delivered in Yashin Amin Shaikh v. Satish Sahney, Commissioner of Police, reported in 1995 (3) Crimes 129.
In the said judgment, it has been observed that :-
"In our Judgment, there is a long and unexplained delay during the period of 18th April, 1994 when the proposal was received and 4th of July, 1994 when the order of detention is passed. The whole purpose and object of the National Security Act is that the persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by the long and explained delay. If there was some tenable explanation for this gap we would have been reluctant to interfere with the detention order but none has been stated in the affidavit in reply filed by the first respondent." It is difficult to accept this contention of the learned counsel for the simple reason that in the instance case, delay has been explained by the respondents in the affidavit-in-reply while in the above-cited case, no explanation was forthcoming. In the affidavit-in reply filed on behalf of the respondents, in paragraph 18, it is stated that :-
"After collecting the necessary documents, the Sponsoring Authority prepared the proposal. It was submitted through Assistant Commissioner of Police, Cantonment Division, Pune on 10-9-1994. It was placed before Deputy Commissioner of Police, Zone-II, Pune City on 23-9-1994. He recommended it on the same day and it was then placed before Deputy Commissioner of Police, Crime Branch, Pune on 24-9-1994. After his approval it was sent to Senior Police Prosecutor, Pune on 30-9-1994. After it was approved by Senior Police Prosecutor, it was placed before me on 17-11-94. I carefully scrutinised the material, I formulated the grounds of detention and contemporaneously issued the detention order on 17-11-1994. It is clear therefore there is no delay in issuing the detention order".
The Detaining Authority has explained the period between the proposal and the detention order. It has been observed by the Supreme Court in Rajendrakumar Natvarlal Shah Vs. State of Gujarat and Others, that :-
"It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible."
Further, the Supreme Court has held in Abdul Salam alias Thiyyan Vs. Union of India and others, that :-
"In our view, the delay has been reasonably explained. The Courts have not laid down that on mere such delay the detention has to be struck down. In Yogendra Murari Vs. State of U.P. and Others, it is held that :-
"It is not right to assume that an order of detention has to be mechanically struck down if passed after the some delay..... It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not."
The citations relied on by the learned counsel for the petitioner is not applicable to the instant case. The next contention of the learned counsel for the detenu is regarding the merits of the detention order. It has been submitted that three Offences have been registered against the detenu punishable under the Indian Penal Code and the detenu has also been granted bail. Therefore, the detenu could not be detained under the National Security Act as the criminal proceedings have been initiated against the detenu. It has been submitted that there is non-application of mind on the part of the Detaining Authority. This argument is unsustainable. Of course, this Court should not go into the merits of the grounds as the detention order is based on the subjective satisfaction of the Detaining Authority and the Detaining Authority has given reasons for his subjective satisfaction. In paras 7, 8 and 9 of his affidavit, the respondent No. 1 has given specific instances which compelled the detaining authority to take prompt action under the National Security Act. These are the grounds relating to the subjective satisfaction of the Detaining Authority. This Court cannot go into the sufficiency of the grounds and therefore, the contention of the learned counsel is rejected.
The third contention of the learned counsel is regarding the consideration of the representation. It has been submitted that there is delay in considering the representation and communicating the decision by the Government. It has been submitted that this contention on behalf of the detenu of the also deserved to be rejected for the simple reason that in the affidavit-in-reply on page 56, column 12, it has been stated that :-
"As per record of this Department, no representation of the detenu is received by the State Government so far. Representation submitted by the detenu at the time of hearing before the Advisory Board was received by the State Government along with the report of the Advisory Board. The said representation was considered by the Minister for Home on 11-1-95 at the time of confirming the continued detention of the detenu. Accordingly rejection reply was given to the detenu on 19-1-95 through the Superintendent, Yeravada Central Prison, Pune".
In view of this specific averment in the affidavit-in-reply, it is not open for the petitioner to raise the objection that the detenu''s representation was not decided within reasonable time and the decision was not communicated to the detenu till the opinion of the Advisory Board received to the Home Department. Hence this argument is rejected.
The last submission of the learned counsel though there is no specific plea in his petition regarding the delay in serving the detention order on the detenu immediately after the order was passed, it has been submitted by the learned counsel that the impugned detention order was passed on 17-11-94 but it was served upon the detenu on 30th November, 1994 and simultaneously, detained the detenu. The delay in not serving the detention order for 13 days, vitiates the detention order. This argument is also unsustainable. That this plea has not been taken in this petition as one of the grounds and the respondents has therefore, failed to give his explanation. However, at the time of hearing, the Court allowed the learned counsel of the petitioner to urge this point in the interest of fair justice. The learned Asstt. Public Prosecutor Mrs. Desai on instructions submitted that the detention order could not be served upon the detenu because he was absconding. This Court do not find any reason for not believing the oral instructions of the learned A.P.P. However, there is no inordinate delay in serving this order as the delay is only 13 days. In the circumstances, the order of detention does not become invalid as it is not vitiated by any reason.
In the result, petition fails. Rule discharged.
Petition dismissed.