M/S. Act Digital Home ... vs Union Of India
2021 Latest Caselaw 897 AP

    IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI



 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                     &
             HON'BLE MR. JUSTICE C. PRAVEEN KUMAR


                  WRIT PETITION No.23138 of 2020

                    (Taken up through video conferencing)


M. Nirmalamma W/o. Late Murugeshan,
R/o. Narasimhapuram Village, Aged about 54 years,
Palasamudram Mandal, Chittoor District.
                                                        .. Petitioner
       Versus

The State of Andhra Pradesh,
Represented by its Chief Secretary,
Secretariat Buildings, Amaravathi,
at Velagapudi, Guntur District, and others.

                                                        .. Respondents


Counsel for the petitioner         : Mr. D. Purnachandra Reddy

Counsel for the respondents        : Mr. Syed Khader Masthan,
                                     Spl. GP, for Addl. AG

Date of hearing                   : 08.02.2021

Date of order                      : 17.02.2021



                                 ORDER

per Arup Kumar Goswami, CJ

This petition, in the nature of Writ of Habeas Corpus, was filed

praying for release of M. Ramdas @ Ramadasu, son of the petitioner, who

is lodged in Central Prison, YSR Kadapa, and to set him free, after

declaring his detention under Andhra Pradesh Prevention of Dangerous

Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral

Traffic Offenders and Land Grabbers Act, 1986 (for short, 'the Act'), as

unconstitutional and illegal.

2. The second respondent- Collector & District Magistrate, Chittoor,

passed an order dated 13.08.2020 in exercise of power conferred under

Section 3(2) read with Section 3(1) of the Act and also keeping in view

public interest, to detain the son of the petitioner from the date of service

of the order upon him and to lodge him in Central Prison, YSR Kadapa.

The grounds of detention in English and Telugu and the material in

support thereof were served to the son of the petitioner.

3. In the aforesaid order, it was indicated that the case of the son of

the petitioner would be referred to the Advisory Board for review and

opinion under Section 10 of the Act and it was also noted that the detenu

would have a right to make representation (i) to the Collector & District

Magistrate, Chittoor, before the order is approved by the Government or

(ii) to the Chief Secretary, Government of Andhra Pradesh, Vijayawada, or

(iii) to the Advisory Board or to all of them.

4. Heard Mr. D. Purnachandra Reddy, learned counsel for the

petitioner, and Mr. Syed Khader Masthan, learned Special Government

Pleader representing the learned Additional Advocate General, for the

respondents.

5. Learned counsel for the petitioner has pressed into service only one

ground, namely, unexplained delay in disposal of the representation

submitted by the son of the petitioner, to contend that the order of

detention is unconstitutional and illegal, which is sought to be

controverted by Mr. Syed Khader Masthan, by placing reliance on the

averments made in Paragraph 13 of the counter-affidavit by urging that

delay, if any, has been appropriately explained and, therefore, no

interference is called for with the order of detention of the detenu.

6. Mr. D. Purnachandra Reddy, learned counsel, submits that the

representation was submitted to the Government on 12.10.2020, which

was received on 16.10.2020, and the same was rejected on 26.11.2020,

which is after 41 days of the date of submission of representation. In

support of his submission, learned counsel placed reliance on the

decisions of the Hon'ble Supreme Court in K.M. Abdulla Kunhi and B.L.

Abdul Khader v. Union of India and others, reported in (1991) 1

SCC 476, Abdul Nasar Adam Ismail v. State of Maharashtra and

others, reported in (2013) 4 SCC 435 and P. Aruna Kumari v. State

of Andhra Pradesh and others, reported in 2020 SCC OnLine AP

653.

7. Having regard to the contours of controversy as presented by the

learned counsel for the petitioner, it will not be necessary for us to refer

to the grounds based on which the order under Section 3(1) and 3(2) of

the Act was passed by the Collector and District Magistrate, Chittoor.

8. At this juncture, it would be relevant to take note of Article 22(5) of

the Constitution, which provides that when any person is detained in

pursuance of an order made under any law providing for preventive

detention, the authority making the order shall, as soon as may be,

communicate to such person the grounds on which the order has been

made and shall afford him the earliest opportunity of making a

representation against the order.

9. Thus, under Article 22(5) of the Constitution, the detenu has two

rights: (i) to be informed, as soon as may be, of the grounds on which the

order of detention is based, i.e., the ground which led to the subjective

satisfaction of the detaining authority and (ii) to be afforded the earliest

opportunity of making a representation against the order of detention.

10. It is now well established by series of judicial pronouncements that

constitutional right to make representation under Article 22(5) of the

Constitution, by necessary implication, also guarantees the constitutional

right to a proper consideration of the representation.

11. In the judgment and order dated 16.02.2021 passed in

W.P.No.22583 of 2020 between C. Vallemma v. State of Andhra

Pradesh, this Court had occasion to take note of the cases cited by the

learned counsel for the petitioner. It will be appropriate to extract

Paragraphs 12 to 16 of the said judgment:

"12. It is now well established by series of judicial

pronouncements that constitutional right to make

representation under Article 22(5) of the Constitution, by

necessary implication, also guarantees the constitutional right

to a proper consideration of the representation.

13. The Constitution Bench of the Hon'ble Supreme

Court in the case of K.M. Abdulla Kunhi (supra) observed

that Article 22(5) of the Constitution casts a legal obligation

on the Government to consider the representation as early as

possible. While explaining the words "as soon as may be" as

appearing in Article 22(5), it was observed that the same

reflects the concern of the framers of the Constitution that the

representation should be expeditiously considered and

disposed of with a sense of urgency without any avoidable

delay. The delay, if any, has to be considered in the facts and

circumstances of the case and there can be no hard and fast

rule in that regard. It was laid down that any unexplained

delay in the disposal of the representation would be a breach

of the constitutional imperative and it would render the

continued detention impermissible and illegal. It was further

observed that the Government's consideration of the

representation is for the purpose to find out whether the

detention is in conformity with the power under the statute.

14. In Abdul Nasar Adam Ismail (supra), the

Hon'ble Supreme Court referred to the judgment in K.M.

Abdulla Kunhi (supra) and observed that though no time

limit is prescribed for disposal of the representation, the

constitutional requirement is that it must be disposed of as

soon as possible. Though every day's delay in dealing with

the representation of the detenu does not need to be

explained, there should also be no supine indifference,

slackness or callous attitude. It was observed if the inter-

departmental consultative procedures are such that the

delay becomes inevitable, such procedures will contravene the

constitutional mandate. Any authority obliged to make order

of detention should adopt a procedure calculated towards

expeditious consideration of the representation.

15. In the aforesaid case, the Hon'ble Supreme

Court, while holding on facts that there was no delay in

disposal of the representation, recorded that there was

unexplained delay in forwarding the representation by the

Superintendent of Jail to the detaining authority. The Hon'ble

Supreme Court further observed that delay in disposal of the

representation has vitiated only the continued detention of the

detenu and not the detention order and it does not affect the

validity of the order of detention.

16. In P. Aruna Kumari (supra), at paragraph 16,

it was noted as under:

"Admittedly, the representation dated 5.5.2020

was sent to the Government and it is to be presumed

that it must have been received within a couple of

days, as the counter filed by the Government is silent

as to the date when it was received by the

Government. In para 16 of the counter it is stated that

the said representation was received by the Home

Department and thereafter with an endorsement dated

19.6.2020, it was forwarded to the GAD, which was

looking after the preventive detention matters. The

representation was received by the GAD on 19.6.2020

and as 20.6.2020 and 21.6.2020 were holidays, called

for remarks from the District Collector on 22.6.2020

and thereafter rejected the representation on

26.6.2020. From a perusal of the above, it is clear that

from 5-5-2020 onwards, the representation of the

petitioner was lying with the Government till 19.6.2020

i.e., for nearly 40 days. No explanation is forthcoming

in the counter as to why the representation was in the

Home Department till 19.6.2020 without being

attended to."

12. Let us now advert to the facts of the present case. It is not

disputed that the representation dated 12.10.2020 was received on

16.10.2020. However, the same was sent to the Chief Minister and

Principal Secretary to the Government (POLL) on 21.10.2020. That itself

goes to show that the representation was not dealt with promptitude at

that stage. After receipt of the same on 21.10.2020, the same was sent

to the Deputy Secretary, GAD, on 22.10.2020. The representation was

sent to the detaining authority by e-mail on 11.11.2020. There is no

explanation whatsoever why there was such a long gap of nearly 20 days

in sending the e-mail to the detaining authority. The detaining authority

submitted his remarks to the Principal Secretary (POLL) on 16.11.2020. It

is admitted position that the representation was rejected on 26.11.2020.

There is also no explanation why the interregnum period of 10 days was

taken for consideration of the representation.

13. A representation submitted by a detenu, in the context of

preventive detention, relates to the liberty of the individual, a cherished

right enshrined in Article 21 of the Constitution.

14. On the basis of the facts alluded above, we are of the unhesitant

opinion that there is unexplained delay in disposal of the representation,

on account of which continued detention of the detenu would be

unconstitutional and illegal.

15. In view of the above discussion, we direct that the detenu shall be

released forthwith, if he is not required in any other case.

16. Resultantly, the writ petition is allowed. No costs. Pending

miscellaneous applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                               C. PRAVEEN KUMAR, J

                                                                       IBL

HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

WRIT PETITION No.23138 of 2020

(Per Arup Kumar Goswami, CJ)

Dt: 17.02.2021

IBL