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2007 Supreme(Gau) 127
IN THE HIGH COURT OF GAUHATI
D. Biswas and B.D. Agarwal, JJ.
Subrata Paul - Appellants
Vs.
Union of India (UOI) and Ors. - Respondent
Decided On: 08.02.2007
The main legal point established in the judgment is that the delay in disposal of the representation by the State and the Central Government amounted to infringement of safeguards provided under Article 22(5) of the Constitution of India.
Headnote:
NSA - Challenge to Detention - National Security Act, 1980 - Section 3(5), 14 - The court examined the delay in considering the representation, the obligations of the detaining authority, and the duty of the Central Government to consider the representation expeditiously. The court held that the delay in disposal of the representation by the State and the Central Government amounted to infringement of safeguards provided under Article 22(5) of the Constitution of India.
Fact of the Case:
The petitioner challenged his detention under the National Security Act, 1980 (NSA) due to delay in considering and rejecting the representation. The court examined the delay in forwarding the representation to the Central Government and the subsequent delay in disposing of the same.
Finding of the Court:
The court found that there was inordinate and unexplained delay in disposing of the petitioner's representation, which infringed the safeguards provided under Article 22(5) of the Constitution of India.
Issues: The main issue was whether the delay in considering the representation infringed the fundamental rights of the detenu enshrined under articles 21 and 22(5) of the Constitution of India.
Ratio Decidendi: The court held that the delay in disposal of the representation by the State and the Central Government amounted to infringement of safeguards provided under Article 22(5) of the Constitution of India.
Final Decision: The court allowed the habeas corpus petition and ordered the release of the petitioner on account of inordinate and unexplained delay in disposal of his representation.
P.G. Agarwal, J.
1. By filing this writ petition under Article 226 of the Constitution of India, the petitioner is challenging his detention under the National Security Act, 1980 (briefly 'NSA') by virtue of order dated 29.08.2006 issued by the District Magistrate, Kamrup (Metropolitan), Guwahati under Memo No. X/2006/NSA/48/CA (A) and also order dated 11.10.2006 issued by the Commissioner & Secretary to the Government of Assam, Home and Political Department under Memo. No. PLA. 459/06/279, confirming the detention for a period of 12 months (Annexures-A and E respectively).
2. We have heard Mr. P.C. Dey, learned Counsel for the petitioner, Mr. D.C. Chakraborty, learned Central Govt. Standing Counsel representing respondent No. 1 and Ms. B. Goyal, learned state counsel representing respondents 2 to 6.
3. The detention order has been basically challenged on the ground of long delay in considering and rejecting the representation. The learned Counsel for the petitioner submitted that delay and latches committed by the respondents in considering the representation has infringed fundamental rights of the detenu enshrined under articles 21 and 22(5) of the Constitution of India. To justify inordinate delay in considering the representation, the learned Counsel for the petitioner has drawn our attention to certain relevant dates and correspondences that took place between different authorities.
4. On the other hand, the learned standing counsel for the respondents submitted that the representation was considered with all promptness and there was no negligence or delay in this regard.
5. From the dossiers of the writ petition and records, we find that the petitioner was detained under the NSA on 29.08.2006 and grounds of such detention was also supplied to the detenu along with the detention order. Thereafter, the petitioner submitted his representation to the appropriate authority through the Assistant Jailor, Central Jail, Dibrugarh on 08.09.2006. This representation was considered and rejected by the District Magistrate on 13.09.2006 and the same was communicated to the detenu on the same day. So far, there was no undue delay in consideration of the representation.
6. According to the learned Counsel for the petitioner, the delay was committed in forwarding the representation to the Central Government and thereafter the Central Government committed inordinate delay in disposing of the same. According to the learned Counsel, the detenu's representation was forwarded to the Central Government on 25.09.2006, i.e., nearly after 2(two) weeks from the date of submission of the same to the District Magistrate. However, for the best reasons known to the authorities, the said representation was received by the Central Government on 12.10.2006 and that too without any comment from the detaining authority. After few communications, comments were submitted and ultimately the representation was rejected only on 16.11.2006.
7. The District Magistrate as well as the Joint Secretary to the Government of Assam, Political (A) Department have submitted their affidavits. However, both the officers are conspicuously silent about the forwarding of the representation to the Central Government. According to them, no representation addressed to the Central Government was at all submitted by the detenu. On this plea, the respondents have also not explained the reasons for not early disposal of the representation by the Central Government.
8. The petitioner has admitted the fact of not submitting any separate representation to be examined and considered by the Central Government. In paragraph-11 of the writ petition it has been stated that the State Government is under obligation to forward the representation to the Central Government. Thereafter the Central Government is also obliged and duty bound to consider the representation expeditiously. Hence, the first question which falls for our consideration is whether the appropriate authority was bound to forwa
