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1984 Supreme(Gau) 6
GAUHATI HIGH COURT
K. LAHIRI, N. IBOTOMBI SINGH, B. L. HANSARIA, S. M. ALI, DR. T. N. SINGH, JJ.
HITENDRA NATH GOSWAMI
VERSUS
STATE OF ASSAM AND OTHERS
Civil Reference No. 203 of 1983 from Civil Rule (HC) No. 17 of 1983,
Decided on : 6 -1 -1984.
The discretionary power of the Central Government under S. 14(1) of the Act in the context of S. 3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty.
Headnote:
The Central Government is clothed with supervisory power under S. 11 of the COFEPOSA and this power is intended to be an additional check or safeguard against the improper exercise of power of detention. For the effective exercise of the power, the scheme has been built into the statute; and the Parliament has in its wisdom enacted S. 11 of the COFEPOSA. A report received under S. 3 of the COFEPOSA or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procastination.
Fact of the Case:
The detenu, Sri Hitendra Nath Goswami, was detained by order dt. 5-1-83 of the State Government passed, in pursuance of S. 3(2) of the Act. The State Government reported the fact of detention to the Central Government together with the grounds on which the order has been made, within 7 days of the order of detention, in compliance with sub-s. (5) of S. 3 of the Act. The detenu, Sri Hitendra Nath Goswami, made no representation to the Central Government (Sic) received the report on 28-1-83, considered and found it prima facie valid. As a result, the order of detention has not been revoked by the Central Government in exercise of its power under S. 14(1)(b)of the Act.
Finding of the Court:
The Central Government is clothed with supervisory power under S. 11 of the COFEPOSA and this power is intended to be an additional check or safeguard against the improper exercise of power of detention. For the effective exercise of the power, the scheme has been built into the statute; and the Parliament has in its wisdom enacted S. 11 of the COFEPOSA. A report received under S. 3 of the COFEPOSA or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procastination.
Issues: Whether on the report from the State Government under S. 3(5) National Security Act, 1980, the Central Government has the discretion coupled with duty to consider the question of revocation of detention order expeditiously, irrespective of the fact that there is no representation/petition from the detenu to the Central Government for the purpose.
Ratio Decidendi: The discretionary power of the Central Government under S. 14(1) of the Act in the context of S. 3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty.
Final Decision: The discretionary power of the Central Government under S. 14(1) of the Act in the context of S. 3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty.
N. Ibotombi Singh, J.: - A question of law of general importance about the interpretation of S. 14(1) National Security Act, 1980, read with S. 3(5) of the Act, has been referred by the Division Bench to a larger Bench for determination, the question being "whether on the report from the State Government under S. 3(5) National Security Act, 1980, the Central Government has the discretion coupled with duty to consider the question of revocation of detention order expeditiously, irrespective of the fact that there is no representation/petition from the detenu to the Central Government for the purpose".
2. In the case out of which the question above has arisen, the detenu, Sri Hitendra Nath Goswami, was detained by order dt. 5-1-83 of the State Government passed, in pursuance of S. 3(2) of the Act. The State Government reported the fact of detention to the Central Government together with the grounds on which the order has been made, within 7 days of the order of detention, in compliance with sub-s. (5) of S. 3 of the Act. The detenu, Sri Hitendra Nath Goswami, made no representation to the Central Government (Sic) received the report on 28-1-83, considered and found it prima facie valid. As a result, the order of detention has not been revoked by the Central Government in exercise of its power under S. 14(1)(b)of the Act. As such a question arose whether the discretion of the Central Government under S. 14(1) is coupled with duty to consider the report made by the State Government in pursuance of sub-s. (5) of S. 3 of the Act with expedition, where no representation has been made by the detenu to the Central Government to exercise its power of revocation under S. 14 of the Act; and if not, its legal effect. In Joynath Sarma v. State of Assam (1983) 1 Gauhati LR 289 : (1984 Cri LJ 92), a Division Bench held that where no decision has been taken either on the report or on the representation of the detenu by the Central Government, the constitutional mandate under Art. 22(5) has been violated, which renders the continued detention illegal, inasmuch as the Central Government has failed to discharge its duty enjoined under S. 14 of the Act. In Bikash Narayan Sarma v. State of Assam (1983) 1 Gauhati LR 431 : (1984 Cri LJ 81), a case which arose in another Bench of this Court, the Court found on the materials before it that the State Government sent its report to the Central Government, in compliance with sub-s. (5) of S. 3 of the Act, but the Central Government had not applied its mind to such a report. The Division Bench held the view that though it was open to the Central Government to revoke an order if it thought fit to do, a question of discretion coupled with duty mention of which has been made in Sabir Ahmed would arise only when petition/representation has been made. The Division Bench observed: "Indeed, Sabir Ahmed has used this expression in the context of dealing with the petition/representation; otherwise it would be a case of 'complete discretion' and not reviewable by a Court of law".
3. In course of hearing of Hitendra Nath Goswami's case, the Division Bench considered the question of law above to be of general importance and referred it to a larger Bench for determination. This is how it has come up before the larger Bench.
4. I proceed to consider first the cases in Julius v. Bishop of Oxford (1874-80) All ER Rep 43 and Padfield v. Minister of Agriculture (1968) 1 All ER 694, which were relied on by the Division Bench in Bikash Narayan Sarma's case (1984 Cri LJ 81), in support of the proposition that the Central Government has 'complete discretion and not reviewable by a Court of Law' on the report made under S. 3(5) of the Act. In Julius's case, S. 3, Church Discipline Act. 1840, provided that with regard to certain charges against any clerk in Holy Orders, it 'shall be lawful' for the Bishop of diocese 'on the application of any party complaining thereof' to issue a Commission for enquiry. The Bishop declined,
