Judgment

CHINNAPPA REDDY, J. :- These three writ petitions may be disposed of by a single judgment since the principal question argued in all the three cases is one. The question is whether delay in considering the representation made by a detenu under Article 22 (5) of the Constitution vitiates a detention under the National Security Act and entitles the detenu to be released on that ground alone. As a result of a series of decisions of this Court, (a) Jayanarayan Sukul v. State of West Bengal (1970) 3 SCR 225; (b) Narendra Purshotam Umrao v. B. B. Gujral, (1979) 2 SCR 315; (c) Ramchandra A. Kamat v. Union of India, (1980) 2 SCR 1072; (d) Frances Coralie Mullin v. W. C. Khambra, (1980) 2 SCR 1095; (e) V. J lain v. Pradhan, AIR 1979 SC 1501; (f) Smt. Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983, it is now well settled that the representation made by a detenu under Article 22 Act, (5) of the Constitution against his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must be considered by the detaining authority with the utmost expedition and that any unexplained delay in considering the representation will be fatal to the detention. The learned counsel for the State of Uttar Pradesh urged that the rule requiring expeditious consideration of a detenus representation is a judge-made rule based on the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and that the extension of the application of the rule to cases of detention under the National Security Act was unwarranted. The learned counsel contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and urged that in the case of detention under the National Security Act, a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and, therefore, delay in consideration of the representation should not be allowed to prejudice the detention. We are unable to agree with the submission of the Learned counsel. We will presently give our reasons for our inability to accept the learned counsels submissions but we will first like to refer to a few facts.

2. In Writ Petition (Criminal) No. 293 of 1981 the order and the grounds of detention were served on the detenu on October 30. 1980 and November 1, 1980 respectively. The detenu made a representation on Nov. 12, 1980. Though according to the detenu he has received no communication from the Government about his representation, the Additional District Magistrate has stated in his counter-affidavit that the representation was rejected on December 9, 1980 and that it was communicated to the detenu through the Superintendent of the Central Jail. The counter-affidavit mentions not a word to explain the delay in considering the representation. The only reference to the representation in the counter-affidavit is in these two sentences: "It is admitted that the detenu made a representation to the Home Secretary on November 12, 1980, and the same. was rejected on December 9, 1980. The rejection of the representation was communicated to the detenu through Superintendent Central Jail by the Government".

3. Similarly in Writ Petition (Criminal) No. 391 of 1981, the order and the grounds of detention were served on the detenu on November 12, 1980. The representation was rejected on December 10, 1980. In the counter-affidavit filed by the Section Officer, Confidential Department, of the Government of Uttar Pradesh, it is stated that on receipt of the representation, the Secretary, Home Department, forwarded it to the District Magistrate for his comments. In order to meet the allegations in the representation, the District Magistrate had to gather information from many sources and the representation along with his comments was returned to the Home Secretary by the District Magistrate on November 25, 1980.