K. Lahiri, J.
1. This is an application for a writ of Habeas Corpus questioning the validity of the order of detention and the continued detention of the petitioner Under Section 3(2) of the National Security Act, 1980. While the petitioner was confined in jail, in connection with some criminal cases, he was served with an order of detention dated 2-7-83 passed by Shri S. Chatterjee, District Magistrate, Nowgong, being satisfied that the detention of the petitioner was necessary for interdicting him "from acting in any manner prejudicial to maintenance of public order" and directed that the petitioner should be detained" with immediate effect until, further orders".
2. On 8-7-83 the detenu was served with the grounds of detention rendered by the detaining authority on 4-7-83. The petitioner submitted his representation to the Central Government on 22-9-83 through the Superintendent of Special Jail, Nowgong praying for revocation of his order of detention Under Section 14 of "the Act". The petitioner contends that he was not informed by the defining authority or any other authority that he had a constitutional as well as legal right to make such representation to the Central Government and hence there was delay on his part. In this writ petition filed on 26-9-83, the petitioner took up positive grounds that the Central Government left over his representation, dis not consider it and failed to apply its mind to the representation which is violative of Section 8 of the Act read with Article 22 of the Constitution. The Central Government was made a party and Mr. S. Ali, Senior Standing Counsel, Central Government received notice of the Rule on 26-9-83, Since 5-10-83 the matter was in the hearing list. An affidavit was filed on behalf of the Central Government on 8-11-83 annexing therewith a copy of the teleprinter message received by learned Standing Counsel, Central Government.
In para 4 of the Affidavit-in-opposition filed by the Central Government it was stated that the representation dated 22-9-83 submitted by the petitioner to the Central Government was received by them on 1-10-83 along with the forwarding letter of the State Government and it was "immediately processed for consideration" and it was found that some information absolutely necessary for its consideration were wanting. So a crash wireless message was sent on 1-10-83 and the reply was received from the State Government on 3-10-83 and "immediately the representation was processed for final decision". This affidavit was sworn by Md. Hassen Ali, an Advocate's Clerk who made the above statements in para 4 of the affidavit as "true to my information derived from the facts on record." We have before us only Annexure I to the Affidavit as records furnished by the Central Government. No other record has been placed before us by Mr. Ali, learned Standing Counsel, to show that the representation was processed for consideration by the Central Government not to speak of the fact of consideration of the representation of the detenu. In Annexure 1, the telex message, we find the following statements pertaining to the question of decision of the Central Government on the representation made by the detenu, which we extract :
Regarding paras 10 comma 11 of the petition it may be stated that a representation dated the 22nd Sept. 1983 from the detenu addressed to the Central Government was received by the Central Government in the Ministry of Home Affairs on the 1st of Oct. 1983 with the State Government letter dated the 28th Sept. 1983 stop It was immediately processed for consideration arid it was found that some information which was basically necessary for its consideration was wanting stop The wanting information was asked for from the State Government through a crash wireless message of 1st Oct. 1983 stop This information has been received from State Government today and the representation of the detenu is being processed for a final decision stop.
It is thus seen that the representation of the detenu dated Sept. 22,1983 addressed to the Central Government was received by the Central Government in the Ministry of Home Affairs on Oct. 1, 1983 ; with the State Government's letter dated 28th Sept. 1983, which was processed for consideration but it was found that the information necessary for its consideration was wanting and the said information was sought from the State Government through a crash wireless message on Oct. 1, 1983 and the information was received from the State Government and it was being processed for consideration.
3. As alluded the Central Government has not produced the records nor is there any material to show that the representation of the detenu has been considered even today. There is no affidavit filed by and/or on behalf of the Central Government to show that the representation made by the detenu has been considered by the Central Government at all.
4. Mr. A.K. Bhattacharyya, learned Counsel appearing for the detenu has made various submissions. However, we propose to consider only the following two contentions : (1) That the detenu had a constitutional as well as statutory right to move the Central Government for revocation of the order of his detention and for that purpose he submitted a representation addressed to the Central Government on 22-9-83 but the Central Government has callously kept the same and has not dealt with it so far. The delay in action, which now exceeds over three months vitiates the detention and learned Counsel places reliance on Sabir Ahmed v. Union of India (UOI) , Sat Pal v. State of Punjab , Vijay Kumar v. State of J & K :
, Rattan Singh v. State of Punjab AIR 1982 SC 1 : 1982 Cri LJ 146 and Tara Chand v. State of Rajasthan . (2) That on 2-7-83 when the order of detention was rendered by Shri S. Chatterjee, District Magistrate, Nowgong, the petitioner was in jail and the order of detention does not show that the detaining authority had in mind the fact that the petitioner was in detention and/or had in view that the detenu who was already in jail his further detention was necessary. There is no revelation in the order of detention that the subject was already in jail yet a preventive detention order was necessary. There is no affidavit filed by the detaining authority as to the awareness of the relevant facts and as such the detention order was a mechanical exercise of the power. It has been further contended that absence of the awareness clearly establishes the fact of non-application of mind by the detaining authority to the most relevant facts and the order of detention is liable to be set aside.
5. Let us deal with the first contention. The undisputed facts are (1) that the detenu made representation to the Central Government on 22-9-83, (2) that the same was received by the authority and (3) that there is no material before us to show that it has been considered till today. What is the effect of non-consideration? In Sabir Ahmed (supra) which considering the provisions of Sections 3(2) and 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, for short COFEPOSA, and Article 22(5) of the Constitution the Supreme Court has held in positive and affirmative term that 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 procrastination.
6. It is needless to mention that the provision of Sections 3(2) and 11 of COFEPOSA are similar to Sections 3(5) and 14 of the National Security Act. In Sabir Ahmed (supra) while considering the effect of Section 11 their Lordships held that power Under Section 11 of COFEPOSA could be exercised on information received by the Central Government from its own sources or on information received from the State Government Under Section 3 or from the detenu in the form of a petition or representation. Indeed, it is a discretion of the Central Government to revoke or not to revoke the detention order but "the discretion" has been held to be coupled with a duty and the duty is inherent in the very nature of the jurisdiction. The power Under Section 11 has been held to be "supervisory". It has been held that the provisions are additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. It has been observed by their Lordships that if the statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge and supervise responsibility with constant vigilance and watchful care. Their Lordships, further held that about 4 months had gone by since the despatch of the representation of the detenu yet the Central Government had not applied its mind to the representation. It was just . ignored, and, relying on Tara Chand 1980 Cri LJ 1015 (supra) and Shyam Ambalal Siroya v. Union of India (UOI) , their Lordships held that the delay in consideration of the representation amounted to violation of Article 22(5) of the Constitution and allowed the writ petition setting aside the detention and directed release of the detenu. In Sabir Ahmed (supra), Sarkaria & R.S. Pathak, JJ, relied on the observations made by Murtaza Fazal Ali J. in Tara Chand (supra) on Section 11(1) of the COFEPOSA, which we extract :
clearly enjoins that the Central Government may revoke or modify an order passed by the State Government Once a representation is made to the Central Government, it is duty-bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provision of Article 22(5) so as to render the detention unconstitutional and void.
Dealing with the question of representation their Lordships quoted with approval the following observations of Fazal Ali, P.S. Kailasam and A.D. Koshal JJ. in Shyam Ambalal Siroya v. Union of India (UOI) : , which we extract below :
The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition. It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation.
In that case as well the representation was not attended for nearly four months and on that count the continued detention of the petitioner was set aside.
7. In Vijay Kumar 1982 Cri LJ 988 (SC) (supra), while dealing with the provisions of Section 13 of J & K Public Safety Act, 1978 which reads as follows :
13. Grounds of order of detention to be disclosed to persons affected by the order :- ;(1) When a person is detained in pursuance of a detention order, the authority making the order shall as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government.
D. A. Desai and B. Islam JJ. have held that the representation made by the detenu must be disposed of expeditiously and with promptitude and any slackness in this behalf, not properly explained, would be denial of the protection conferred by the statute and would result in invalidation of the detention order. Their Lordships quashed the order of detention for the delay in disposal of the representation. While dealing with the question of representation their Lordships laid down the law on the subject as under :
When power to detain without trial is exercised, the authority exercising the power must afford an opportunity to the detenu to convince the Government detaining authority that the power was not justifiably exercised or no occasion arose for exercise of the power. In a punitive detention which is the end product of a trial in which the convict participates and has full opportunity to present his side of the case while preventive dentention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the detenu to explain his side of the matter before he is deprived of the liberty and, therefore, so soon after the detenu is deprived of his personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent his side of the case and which inheres the corresponding obligation on the authority to consider the same. The word 'earliest' which qualifies the oppotunity must equally qualify the corresponding obligation of the State to deal with the representation, if and when made, as expeditiously as possible. The opportunity contemplated by the section is the opportunity to make a representation against the detention order to the Government and therefore ex hypothesi soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation. The representation is to be made to the Government. Therefore the detenu who has already been served with the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities. The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities has also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.
Their Lordships referred to Khudi Ram and held that one of the basic requirements of Article 22(5) of the Constitution was that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation.
8. In Rattan Singh v. State of Punjab : AIR 1982 SC 1 : 1982 Cri LJ 146 while dealing with the question of consideration of the representation of a detenu Y.V. Chandrachud C.J., A. Varadarajan & Amarendra Nath Sen JJ. held ;
....Section 11(1) of COFEPOSA Act confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free.
9. In Joynath Sharma v. State of Assam (1983) 1 Gauhati LR 289 : 1984 Cri LJ 92 a Division Bench of this Court, on consideration of the decisions of the Supreme Court has held that it is the duty of the Central Government to consider the representation of the detenu expeditiously and non-consideration of the representation renders the continued detention of the detenu illegal.
10. We make it very clear that we do not decide in the instant case as to whether the Central Government is duty bound to consider the report of the State Government Under Section 14 of the Act, but we are of the firm opinion that if a detenu makes a representation to the Central Government it is the bounden duty of the Government to consider the said representation as expeditiously as possible and non-consideration of the representation renders the continued detention of the detenu illegal. In the instant case the representation of the detenu has not been considered. Neither the representation has been rejected nor has it been allowed. In view of the law laid down by the Supreme Court we have no hesitation in holding that the representation has not yet I been considered. For such non-consideration I for about 3 months we must hold that the petitioner's statutory right Under Section 3(5) read with Section 14 of "the Act" have been violated. We further hold that inordinate delay in considering the representation amounted to violation of the provisions of Article 22(5) of the Constitution and rendered the continued detention unconstitutional and void.
11. The second contention is also as important. There is no dispute at the bar that on 2-7-83 the detenu was in jail in connection with some criminal cases and the order was rendered on that date while he was in detention. In view of the law laid down by their Lordships in Vijay Kumar 1982 Cri LJ 988 (SC) (supra) and Merugu Satyanarayana v. State of A.P. we have no manner of doubt that their Lordships have conclusively determined that a person in jail custody may be detained under the National Security Act but the detaining authority must be alive, at the time of making the order of detention, (i) that the detenu is in jail custody on the date of passing the detention order (ii) that he is likely to be released on bail, and (iii) that if he is allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order, etc. The crucial and relevant date is the date of rendering the order of detention and no other subsequent date. The three elements referred above must be in the mind of the detaining authority at the time of rendering the order of detention. It must be manifested in the order of detention. If accidentally or otherwise it is omitted, the detaining authority must file affidavit to satisfy the Court that he had been alive to the circumstances (1) that the detenu was in jail (2) that he was likely to be released on bail, and, (3) that if he was allowed to remain at large he would indulge in activities prejudicial to the maintenance of public order, etc.
In the instant case, as set forth above, Shri S. Chatterjee, District Magistrate, Nowgong, was the detaining authority. There is no affidavit filed by Shri Chatterjee stating that he had in mind the three elements referred above. No explanation forwarded as to why no affidavit could be filed by Shri Chatterjee, In this regard Mr. Choudhury, learned Sr. Govt. Advocate points out that all the three elements have been mentioned in the grounds of detention which was prepared by the detaining authority himself. Indeed, it appears that on the date of making the grounds of detention on 4-7-83 it was in the mind of the detaining authority that the (1) the petitioner was in jail custody, (2) there was possibility of his being enlarged on bail and (3) the detention order was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order. However, in the grounds of detention it is nowhere stated that on 2-7-83 these facts were in the mind of the detaining authority, that is, at the time of making the order of detention. At best we can say that this was a statement of facts made by the detaining authority on 4-7-83 i.e. two days after making the order of detention.
12. In dealing with the question, the Supreme Court in Merugu Satyanarayana v. State of A.P. made the following
11. Sub-section (2) of Section 3 of the Act confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc. In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order. In other words, unless the activity is indicated by a preventive detention order the activity which is being indulged into is likely to be repeated. This is the postulate of the section. And this indubitably transpires from the language employed in Sub-section (2) which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order. Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under Sub-section (2) of Section 3, if exercised would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section, and would appear toutologous. An order for preventive detention is made on the subjective satisfaction of the detaining authority. The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order, If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order, See Ujagar Singh v. State of Punjab 1952 SCR 756 : . Now, if
the man is already detained, can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made. In Rameshwar Shaw v. District Magistrate, Burdwan , this Court held that as an abstract proposition
of law the detention order can be made in respect of a person who is already detained. But having said this, the Court proceeded to observe as under at p. 338 of AIR : at p. 261 of Cri LJ :
As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the consideration of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
12. One can envisage a hypothetical case. Where a preventive order may have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. But as stated by this Court it will depend on the facts and circumstances of each case.
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14. Mr. Mukhoty next contended that even if a hypothetical case can be envisaged as contemplated by the decision of this Court in Rameswar Shaw that a preventive detention order
becomes necessitous in respect of a person already confined to jail, the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in jail and yet a detention order is a compelling necessity. It was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order. Otherwise, according to Mr. Mukhoty, the detention order would suffer from the vice of non-application of mind. The awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason. This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non-application of mind to the most relevant fact and any order of such serious consequence resulting in deprivation of liberty, if mechanically passed without application of mind, is obviously liable to be set aside as invalid. And that is the case here.
It is thus seen that a person already in detention may be detained but under compelling circumstances and those circumstances must be revealed by the detaining authority in the order of detention or at least the detaining authority must come forward and swear an affidavit and assert that those factors were in his mind at the time when the order of detention was made. To detain a person already in jail custody and making an order of detention is a serious business. The detaining authority must be aware as to the whereabouts of the detenu at the time of making the order. He must be aware of the fact that he is in jail custody, that he is likely to be released on bail and that the order of detention is necessary to interdict the detenu from preventing him to repeat the past activities. The relevant date of the awareness is the date of making of the order and no other date. The order of detention must reflect the said awareness or the detaining authority must swear affidavit and satisfy the court that he was fully aware of the circumstances on the date of the making the order of detention. In the instant case it has been rightly contended by Mr. Bhattacharyya, learned Counsel for the petitioner, that the compelling factors were not in the mind of detaining authority on the date of making the order so, he did not come forward to swear any affidavit to support the fact that these elements were in his mind on the date of drawal of the detention order. Similar view has been expressed by their Lordships in Vijay Kumar 1982 Cri LJ 988 (SC) (supra) wherein their Lordships observed as under :
....But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. We, however, do not base our order on this ground.
The decision is also a pointer that the awareness must be in the mind of detaining authority on the crucial date of rendering the order and the same must be reflected in the order of detention and/or must be supported by an affidavit by the detaining authority. In the instant case as alluded there is nothing to show in the order of detention that the detaining authority was aware of the crucial factors on the date of making the order of detention. Further, there is no affidavit by the detaining authority in support of the statement that the awareness, as to the three basic elements was in his mind on 2-7-83. However, we do not desire to base our order on this ground as the first ground is sufficient to hold that the continued detention of the petitioner is illegal and void.
13. Learned Govt. Advocate has placed before us a decision of the Supreme Court in Alijan Mian v. District Magistrate, Dhanbad , In our opinion the decision supports our view that the detaining authority must be alive to the three crucial facts on the date of rendering of the detention order and the three elements must be those which we have set forth above. In Alijan (supra) there was a positive statement in the grounds of detention served on the detenu, clearly indicating that the detaining authority was aware of the elements on the date of passing of the detention order. In the instant case we do not find any such statement that the detaining authority has before him the three crucial circumstances on the date of making the order of detention. Further, no affidavit has been filed by the detaining authority. We, however, do not finally decide the question nor do we base our order on this ground, as we find that the first ground is sufficient to declare the continued detention of the petitioner as invalid.
Accordingly, we set aside the order of continued detention of the petitioner and direct that the petitioner be set at liberty unless he is wanted in connection with any other case.