Anil Vitkar vs The State Of Maharashtra And Ors
2018 Latest Caselaw 1039 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION


                CRIMINAL WRIT PETITION NO. 4883 OF 2017


                Anil Vitkar,
                An Indian National, aged 32 Years,
                residing at 3, Lal Chawl, Gokhale Nagar,
                Pune 16                                  .. Petitioner
                                                         Brother in law
                                                         of the detenu

                                             V/s.

      1)        The State of Maharashtra,
                through Additional Chief
                Secretary (Home),
                Government of Maharashtra,
                Home Department (Special)
                Mantralaya, Mumbai

      2)        Rashmi Shukla,
                The Commissioner of Police,
                Pune.

      3)        The Inspector of Police,
                Pimpri Police Station, Pune

      4)        The Superintendent of
                Nashik Road Central Prison,
                Nashik.                                                .. Respondents

                                   ......
      Mrs. Aisha Mohd. Zubair Ansari a/with Ms Nasreen Ayubi
      for Petitioner.
      Mr. J.P. Yagnik APP for Respondents.
                                  ......




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                CORAM : S.C. DHARMADHIKARI AND
                        SMT. BHARATI H. DANGRE, JJ.


                        DATED : 29th JANUARY, 2018.
                        (Order Reserved on    : 17.01.2018)
                        (Order Pronounced on : 29.01.2018)


      JUDGMENT (Per SMT.BHARATI H. DANGRE, J.):

1. The present petition filed by the petitioner who

is brother-in-law of one Shri Ganesh Narayan Mane, who has

been detained by the Commissioner of Police, Pune by an

order of detention dated 08.09.2017, assails the order of

detention and after quashing and setting aside the same,

prays to release the detenu forthwith.

For effective adjudication of the present petition,

we find it necessary to cull out the necessary facts and

events leading to file the present Writ Petition:-

The respondent No.2, Commissioner of Police,

Pune on being satisfied that Shri Ganesh Narayan Mane

needs to be detained under the Maharashtra Prevention of

Dangerous Activities of Slumlords, Bootleggers, Drug

Offenders, Dangerous Persons, Video Pirates, Sand

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Smugglers and Persons engaged in Black-marketing of

Essential Commodities Act, 1981 (hereinafter in short as

"M.P.D.A. Act, 1981), with a view to prevent him from acting

in any manner prejudicial to the maintenance of public order

passed an order of detention on 08.09.2017 in exercise of

power conferred by Sub-section (2) of Section 3 of the Act

directed that the detenu be detained under the said Act for a

period of one year from the date of service of order upon

him. On the same date, the Detaining Authority passed

committal order directing detention of the detenu in Nashik

Central Prison, Nashik under the conditions including

conditions as to maintenance of discipline and punishment

for breach of discipline laid down in the M.P.D.A Act, 1981.

The detention order was served on the detenu on 08.09.2017

and he was detained in Nashik Road, Central Prison. On

08.09.2017 itself the detenu was served with grounds of

detention as contemplated under Section 8 of the M.P.D.A.

Act, 1981.

The grounds of detention set out that the criminal

record of the detenu was reflective of his conduct of

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indulging himself in selling illicit liquor and thereby

endangering human life and ruining poor families. The

grounds of detention reveal that the detenu was habitually

committing offences under the Bombay Prohibition Act,

1949 and he was engaged in bootlegging activities and the

detenu was clamped as "Bootlegger" as defined in Section

2(b) of the Act and the said activities are found to be

prejudicial to the maintenance of the public order. The

Detaining Authority referred to the past activities of the

detenu for passing the detention order but had relied on a

crime registered in the recent past vide CR. No.247/2017

under Section 65(F) of the Bombay Prohibition Act, 1949.

Reliance was also placed on nine in-camera statements

which came to be recorded in the background, that no

person was ready to complain against the detenu because of

fear of retaliation and when certain residents of the area

were taken into confidence and were assured that their

names would not be disclosed and they would not be

summoned to give evidence in any court or any other forum

and these witnesses then got their statements recorded.

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Taking into consideration bootlegging record and

in-camera statements of the witnesses, the Detaining

Authority arrived at a conclusion that a detenu is a habitual

and dangerous bootlegger and his activities of bootlegging

was reflecting ascending trend and in order to prevent the

detenu from indulging into such activities and in order to

curb the bootlegging activities, the Detaining Authority was

satisfied that it necessary to detain Shri Ganesh Narayan

Mane. The detenu was supplied with the material on which

the Detaining Authority had formed the subjective

satisfaction and detenu was made aware of the

Constitutional safeguards available to him as a detenu and

he was also made aware of his right to make representation

to the Detaining Authority and to the State Government.

The detenu was also informed that the State Government

would make a reference to the Advisory Board and it was

open to the detenu to make any representation before the

Advisory Board against the order of detention and he can

avail the right of being heard in person by the Advisory

Board and he would be accordingly intimated of the date of

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such hearing.

2. It is this order of detention which is a subject

matter of the present writ petition. The impugned order of

detention dated 08.09.2017 is challenged by the detenu on

several grounds but the grounds on which more emphasis is

laid are as under:-

(a) The petitioner says and submits

that according to the provision of Section 3

of the M.P.D.A. Act and also according to the

Scheme of the Act, the mention of the period

of 1 year as the period of detention in the

impugned order of detention issued Under

Section3 of the Act is impermissible and this

mention by itself vitiate the order of

detention. The petitioner further says and

submits that the period for which a person is

to be detained under the M.P.D.A is not to be

determined and specified at the time of

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making the original order of detention Under

Section 3(1) of the M.P.D.A Act. The

petitioner says and submits that according to

the scheme of the Act period for detention of

a person is to be specified or determined at

the time of confirming the order of detention

under Section 12 of the act and after

receiving the report of the Advisory Board.

(b) The petitioner says and submits

that detenu was arrested on 22.05.2017.

The petitioner further state that he was

granted bail on the same day i.e on

22.05.2017 which was availed by him on the

same day i.e on 22.05.2017; where as the

impugned order of detention was issued on

08.09.2017 after a period of 3 ½ months

whilst denying that the impugned order of

detention was warranted to be issued

promptly and vigilantly without any delay or

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loss of time. The petitioner says and submits

that if at all the impugned order was

warranted to be issued as such it ought to

have been issued without any delay. The

petitioner says and submits that the

impugned order has been issued after an

inordinate and in excusable delay.

(c) The petitioner says and submits

that the detenu has filed representation

through the prison authorities which was

addressed to the State Government. The

petitioner says and submits on this petition

being admitted and Rule Nisi being issued, it

would be incumbent upon the State

Government to satisfy this Hon'ble Court as

to whether the said representation of the

detenu was considered by the State

Government expeditiously, and as to whether

its reply was communicated to the detenu

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without any loss of time. The petitioner says

and submits that on the failure of the State

Government and the prison authority in so

satisfying this Hon'ble Court on the aforesaid

Courts, the impugned order of detention be

held as violative of Article 22(5) of the

Constitution.

3. We have heard learned counsel Mrs. Ansari

representing the petitioner. Learned counsel for the

petitioner would argue before us that the order of detention

needs to be quashed and set aside on various grounds. She

emphasied that there is a delay in passing the order of

detention and the Detaining Authority has not acted

promptly and vigilantly and therefore the live-link between

the activities of the detenu was snapped when the detention

order was passed. Mrs. Ansari also took us to the material

relied on by the Detaining Authority and according to her

there was no sufficient material on the basis of which the

Detaining Authority has arrived at a subjective satisfaction

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that the detenu is a "Bootlegger". She would argue that in-

camera statements centred around an individual act and it

cannot be said that the activities of the detenu had affected

the public at large and according to her activities of the

detenu at the most would fall under the category "Law and

Order" issue and does not affect the public order. Mrs.

Ansari also vehemently argued that on the issue as to what

is the effect of a detention order which mentions period of

detention and she painstakingly invited our attention to

various judgments on the said issue to support her

contention that the order of detention is vitiated when the

Detaining Authority mentions the period of detention in the

same order and according to the learned counsel this

renders her right to make representation to the State

Government otiose. According to the learned counsel for the

petitioner, in view of period of detention being mentioned in

the order of detention itself, the detenu was under a

confusion as to where and to whom the representation is to

be made and this caused great prejudice to the detenu.

Learned counsel took us to the scheme of enactment and she

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would argue the order is passed by the Detaining Authority

which requires to be approved within a period of 12 days by

the State Government and thereafter a reference is to be

made to the Advisory Board within 12 days. She would also

submit that State Government would require to make a

reference to the Advisory Board within a period of three

weeks from the date of detention and the Advisory Board is

obliged to submit a report within seven weeks from the date

of detention specified its opinion as to whether there is

sufficient cause for detention of the detenu and on receipt of

the said report from Advisory Board the Government has a

power to revoke the detention order if no sufficient cause is

shown for detention or it may confirm the order of detention

and at this stage and it should specify the period of

detention. According to the learned counsel for the

petitioner there is no Constitutional and statutory obligation

upon the State Government until after the report of Advisory

Board to decide the period of detention.

Mrs. Ansari would also stress on the ground

raised by her in the petition as ground No.9 namely the

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representation filed by the detenu being not decided

promptly and she would argue that on failure of the State

Government to decide the representation, which is a

valuable right vested in the detenu, the continued detention

is liable to be quashed.

4. Learned Assistant Public Prosecutor Shri Yagnik

representing the Detaining Authority has placed reliance on

affidavit filed by the Detaining Authority on 10.01.2018.

Shri Yagnik would argue that activities of the detenu were

prejudicial to the maintenance of public order and the

Detaining Authority had recorded the subjective satisfaction

reached on the basis of material placed before her that the

detenu was bootlegger and he was indulging in the activity

of brewing illicit liquors which has endangered human life

and his activities are detrimental to the interest of the

society. Shri Yagnik invited our attention to the activities of

detenu, to warrant his detention under the provisions of

M.P.D.A. Act, 1981.

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As regards the grounds raised by the counsel for

petitioner that the Detaining Authority need not specify the

period of detention while passing the order of detention, Mr.

Yagnik invited our attention to the provisions of Section 3

and according to him Section 3(1) confers on the State

Government to delegate the power to the Commissioner or

the District Magistrate and he placed heavy reliance on the

judgment of the Hon'ble Apex Court in case of Mrs. T.

Devaki Vs. Government of Tamil Nadu 1990 2 SCC 456 for

the proposition that "neither sub-section (1) nor sub-section

(2) of Section 3 of the Act require the detaining authority to

specify the period of detention for which a detenu is to be

kept under detention". Mr. Yagnik also relied on the

affidavit to demonstrate the sufficiency of the material

placed on the basis of which the Detaining Authority has

arrived at a subjective satisfaction. The affidavit of the

Detaining Authority denies the allegations that there was

delay in passing the order of detention and the live-link was

thus snapped and the Detaining Authority has offered an

explanation in the affidavit as to the steps taken from the

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date of receipt of proposal of detention till the date when the

detention order was served on the detenu. The Detaining

Authority has stated in affidavit that due care and caution is

taken for scrutiny and evaluation and analysis of the

material by the Detaining Authority and the said period

cannot be said to be an inordinate delay.

5. Though counsel for petitioner assailed the ground

of order of detention on various grounds and we have

considered all those grounds in details, we, however, find

substance in the ground canvassed by the petitioner that

there is delay in deciding the representation and the State

Government ought to have decided the representation of the

detenu expeditiously. The petitioner has contended that the

representation was preferred by the petitioner on

23.11.2017 and it came to be rejected on 16.12.2017 and

was so communicated to the detenu. It is the grievance of

the petitioner that there is inordinate delay in deciding the

said representation and in view such delay, the continued

detention of the detenu becomes illegal and the petitioner

be released forthwith. It is also argued counsel for the

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petitioner that no explanation is offered for the said delay

and that is the reason why it is fatal.

Since we find substance in the said ground

raised by the counsel for petitioner we called upon the

learned Assistant Public Prosecutor to deal with the said

ground. He invited our attention to the affidavit of the

Deputy Secretary, Government of Maharashtra, Home

Department (Special) Mantralaya, Mumbai filed before this

Court on 10th January, 2018. In the said affidavit in para 2 it

is stated as under :

"With reference to para 6 (ix) of the Petition, it is submitted that the representation of the detenu dated 23.11.2017 was received in the MPDA desk on 24.11.2017. Thereafter, the remarks were called for, from the Detaining Authority, Commissioner of Police, Pune vide letter dated 24.11.2017. The Detaining Authority was asked to submit its remarks immediately. The remarks from Detaining Authority were received on 16.12.2017 vide letter dated 16.12.2017. The concerned Assistant Section Officer submitted file containing remarks of Detaining Authority alongwith the representation of the detenu to the Section officer on 16.12.2017. The Section Officer endorsed it on 16.12.2017 and forwarded it to the Additional Chief Secretary (Home) on that day as the Deputy Secretary was on official duty at Nagpur for Assembly Session. The Additional Chief Secretary

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(Home) considered the representation of the detenu and the remarks of the detaining authority and rejected the representation on 16.12.2017 by applying his mind. The rejection of representation was communicated to the detenu vide letter dated 16.12.2017. Thus the representation of the detenu was considered by the State Government as expeditiously as possible. Hence, the contention of the petitioner raised in this paragraph is not true and denied in toto."

He also invited our attention to the affidavit filed by the

Detaining Authority dealing with the said grounds where she

has stated as below:-

"16. With reference to Para 6(x) (xi) of the petition, I denied all the contents therein.

I say that the Detenu has filed his representation, November, 2017 (date not mentioned) before the State Government. Thereafter the State Government has sent this representation by E-mail to the Commissioner of Police, Pune City office to prepared para wise comments. The said representation was received to Crime Branch, P.C.B. Office on 24.11.2017. in the period there were six government holidays (i.e 25.11.2017, 26.11.2017, 1.12.2017, 3.12.2017, 09.12.2017 and 10.12.2017), the representation was placed before me in the morning of 27/11/2017. Thereafter, I perused the said para- wise comments and I had also discussed with Sponsoring Authority as well as Law officer of my office. Then I had given dictation. The said para-

wise comments was finalized by me on 12.12.2017

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and the hard copy of the said para-wise comments sent to the State Government on 13.12.2017. The representation of Petitioner/ Detenu was rejected by the government on 16.12.2017. Therefore there is not delay from my office and in any manner the detenu's right is not prejudice to make any effective representation and in any other manner the same is not effecting any other right of the Detenu."

6. It is not in dispute that the law relating to the

preventive detention is a drastic law as it authorises

detention of an individual which resultantly deprives the

individual of his liberty without conduct of a trial in a

competent court of law. In fact such preventive detention is

in a way encroachment on the person's liberty and freedom.

The Constitution of India has recognised the liberty

guaranteed to a citizen as enshrined under Article 21 of the

Constitution of India to be sacred and sacrosanct and the

Constitution makers as well its implementors and

interpretors have always placed the liberty of a citizen on

the highest pedestal and has always viewed it as such. No

doubt it is true that in order to have an orderly society, laws

have been enacted depriving individual of his liberty and

preventive detention being one such enactment where a

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person can be preventively detained on a suspicion that the

person is likely to act in a manner detrimental to the interest

of the public at large. The Constitution itself has provided

minimum safeguards for protection of the rights of such an

individual who is to preventively detained. Such safeguards

which are enshrined in the Constitution are expected to be

zealously watched and stringently adhered to.

The Constitutional safeguards provided under

Article 22 and those which are included in the Enactment

relating to preventive detention deriving its force from

Article 22 mandates that when any person who is detained

by an order made under any permitting preventive

detention, it is imperative to inform the detenu the grounds

on which the order has been made so as to afford him an

opportunity of making a representation against the order

and on communication of grounds of detention, the detenu

has a right to make a representation against the order. The

authority to whom the representation is to be made is not

specified in the order of detention.

The Constitutional safeguards of limiting the

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period of detention as provided under clause 4 of Article 22

which mandates that the law providing for preventive

detention shall not authorise a detention of person for a

longer period than three months unless, the Advisory Board

has reported before expiration of said period of three

months that in its opinion there is sufficient cause for such

detention. The detenu therefore has a right of consideration

of his representation and of getting it decided expeditiously.

Since life and liberty of the detenu being at stake, utmost

promptitude is expected in taking a decision on the said

representation. The delay in passing an order of detention

has a different connotation than the delay in deciding the

representation, the delay in former case may vitiate the

subjective satisfaction reached by the Detention Authority, if

it is found that the detention order is passed when the live-

link between the activities of the detenu and the order of

detention is snapped, whereas in the latter case on account

of inordinate delay, in deciding the representation the

continued detention becomes bad in law.

In the present case the argument of the counsel for

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petitioner as raised in ground No.10 is about the delay in

deciding the representation and therefore it would have no

effect on the subjective satisfaction arrived by the Detaining

Authority but it would have its implication on the continued

detention of the detenu, subsequent to the order detaining

him.

7. Coming to the provisions of M.P.D.A. Act, 1981,

which is a law providing for preventive detention of

Slumlords, Bootleggers, Drug Offenders, Dangerous

Persons, Video Pirates, Sand Smugglers and Persons

engaged in Black-marketing and for preventing from

dangerous activities prejudicial to the maintenance of public

order, the scheme of the enactment mandates that after

passing the order of detention under sub-Section (2) of

Section 3 of the MPDA Act, to forthwith forward the report

to the State Government together with the grounds on which

the order of detention has been made and such order

continues to remain in force for 12 days after making

thereof unless in the meantime it has been approved by the

State Government. Thus, under the scheme of the Act

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where an order has been made by a delegate of the State

Government, he is expected to obtain approval of the State

Government to the said order of detention within a period of

12 days. Further in every case where detention order has

been made under the Act, it is imperative on the part of the

State Government to place the order before the Advisory

Board constituted by it under Section 9 of the Act, within a

period of three weeks from the date of detention of person

under the order and if a representation is made by the

detenu the said representation would also be forwarded to

the Advisory Board. The Advisory Board constituted under

Section 9 of the M.P.D.A. Act, 1981 is duty bound to consider

the material placed before it and it may call for such

information as is necessary from the State Government or

from any person called for through the State Government or

from the person concerned and it may also afford an

opportunity of hearing the detenu in person and then it

would submit its report to the State Government within

seven weeks from the date of detention of person concerned.

The Advisory Board would specify whether in its opinion

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there is sufficient cause for continuing the detention and in

such contingency the State Government would confirm the

detention order and continue the detention of the person

concerned for such a period not exceeding the maximum

period prescribed by Section 13. In case where an Advisory

Board has reported that there is no sufficient cause for

detention, the State Government shall revoke the order of

detention and the detenu is entitled to be released forthwith.

In the entire scheme of the enactment there is no time limit

prescribed by the legislature within which the

representation preferred is to be decided. However, since

the detenu is deprived of his liberty and freedom, it is

expected that the authority to whom the representation is

made should act with swiftness and that there is no inaction

or lethargy in consideration of the said representation.

Since, the legislature has not prescribed the period within

which the representation has to be decided, by applying the

principle of administrative law, it would have to be decided

within a reasonable period. However, since the detenu is

deprived of his liberty, it is expected that the decision on the

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said representation should be taken with extreme

expediency and if it is found that there is an undue delay in

deciding the same, the continued detention is liable to be

declared as unsustainable. No straight jacket formula can

be laid down as to what would amount to undue delay in

deciding the representation and while examining whether

the representation was decided by the authorities with

promptness, it would be necessary to look into the reasons

cited by the authorities explaining the period consumed /

delay in considering the said representation.

It would be useful to make a reference in this

connection to the Constitutional Bench decision of the Apex

Court in K.M.Abdulla Kunhi and B.L.Abdul Khader -Vrs-

Union of India and others (1991) 1 SCC 476. The

Constitution Bench, after taking note of the provisions

contained in sub clause (4) and (5) of Article 22 was pleased

to hold that neither the Constitution nor under the relevant

statutory provisions, any time limit has been fixed for

consideration of representation made by the detenu. The

time limit according to the Constitution Bench has been

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deliberately kept elastic, Hon'ble Court led emphasis on the

expression "as soon as may be" in sub clause 5 of Article 22

and held that said expression sufficiently makes clear that

the representation should be decided expeditiously and

disposed off with sense of urgency without any unavoidable

delay. The Hon'ble Apex Court in Para 12 has observed thus:

"..... there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be a breach of constitutional imperative and it would render the continued detention impermissible and illegal.

The Hon'ble Bombay High Court dealing with the issue

of effect of delay in deciding the representation under the

preventive detention law in full bench judgment in case of

Mrinal Namdev Waghmare -Vs- Smt. Reva Nayyar & Ors.

reported in 2001 ALL MR (Cri) 1583 has observed as follows

in Paragraphs 22 & 23:-

"22. Having carefully perused the two Division Bench judgments of this Court, we do not find that there is any inconsistency so far as the ratio of the two decisions is concerned. In both the

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cases, it was rightly held, relying upon a catena of decisions of the Supreme Court, that the representation made by the detenu has to be disposed of at the earliest, and if there has been any delay in the disposal of the representation, the concerned authority must furnish a satisfactory explanation for the same. Only such delay as is unexplained, or where the explanation offered is found to be unsatisfactory, would adversely affect the continued detention of the detenu. The Bench noticed the decisions of the Supreme Court which lay down the principle that there is no hard and fast rule to measure the time taken by the Appropriate Authority for consideration and disposal of the representation, and the question whether the authority has considered the representation with reasonable despatch, must necessarily depend on the facts and circumstances of each case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. Having done so, the learned Judges considered the material on record, and while in the case of Rafiq Abdul Karim Merchant, recorded a finding that the delay was not sufficient to fault the continued detention of the detenu on the anvil of laches or indolence or red-tapism in the disposal of the representation, in the case of Bishnoi , found the delay to be inordinate, and the explanation furnished for the delay to be untenable and unconvincing. Both the cases have been decided on their own facts, and rightly so.

23. It is open to the Court to consider the explanation furnished and the material on record, and come to its conclusion as to whether the delay in the disposal of the representation, if any, has been satisfactorily explained. We do not find that the two decisions of the Division Bench lay down any other principle inconsistent with each other.

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8. In the backdrop of the law laid down by the

Hon'ble Apex Court and our Court, let us turn to the facts

involved in the present case in hand. According to the

petitioner, the representation was referred by the detenu on

23.11.2017 and the State Government through the

Additional Chief Secretary (Home) rejected the

representation on 16.12.2017. The period consumed by the

authority to decide the representation, according to the

petitioner amounts to inordinate delay. We have already

reproduced the ground raised in this regard by the

petitioner.

The State Government has sworn an affidavit and

the contents of the affidavit are also reproduced above. It is

admitted that the representation of the detenu was received

in the M.P.D.A desk on 24.11.2017. According to the

affidavit of the State Government on receipt of the said

representation, remarks were called for from the Detaining

Authority, Commissioner of Police, Pune by forwarding a

letter on 24.11.2017 Detaining Authority was asked to

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submit the remarks immediately. As per the said affidavit,

the remarks of the Detaining Authority were received on

16.12.2017. The Assistant Section Officer submitted the file

containing the remarks of the Detaining Authority alongwith

representation of the detenu to the Section Officer on

16.12.2017, who endorsed it on the same day and forwarded

to the Additional Chief Secretary (Home) as the Deputy

Secretary was on official duty at Nagpur Assembly Session

and it is then stated in the affidavit, that on considering the

representation of the detenu and the remarks of the

Detaining Authority, the representation was rejected on its

due consideration. Thus, according to the State Government

it had acted with utmost urgency and there was no delay in

deciding the said representation.

It was therefore incumbent upon the Detaining

Authority to explain the period consumed when the file was

forwarded from the Home Department on 24.11.2017 for

remarks of the Detaining Authority and till the time when

the file was remitted back on 16.12.2017. The Respondent

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No.2 Detaining Authority in the affidavit has stated that she

received the representation by e-mail from the State

Government for preparation of parawise comments. It is

also stated by the Detaining Authority that the

representation was received by the Crime Branch on

24.11.2017. We have already reproduced that portion of the

Detaining Authority's affidavit where she has attempted to

offer some explanation for the period consumed by her in

remitting her remarks to the State Government as sought.

Though she has boldly stated that there is no delay from her

office and this did not in any manner prejudice the right of

detenu to make representation, we are not ready to accept

the statement of the Detaining Authority that there is no

delay on her part. The Detaining Authority has stated that

the representation was placed before her on 27.11.2017.

She states that she perused the parawise comments and

discussed with the Sponsoring Authority as well as Law

Officer in her office and then she give dictation. She states

that the parawise comments were finalised by her on

12.12.2017 and hard copy of parawise comments sent to the

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State Government on 13.12.2017. We fail to see any

promptness or eagerness on the part of the Detaining

Authority in offering her comments when the file was with

her. The Detaining Authority in the affidavit has failed to

explain the period from 27.11.2017 to 12.12.2017 that is a

period of 16 days, except making a bald statement that she

was discussing with Sponsoring Authority and Law Officer

and then she gave dictation. There is no other explanation,

except stating that after giving dictation so much time was

consumed to get the matter ready so as to be placed before

her for perusal. She offers no explanation for the period

consumed from 27.11.2017 till 11.12.2017 and on the

contrary she made a bold statement that there is no delay on

her part. We are surprised by such an attitude of high

ranking officer who is authorised by State Government to

pass the order of detention and to deal with the liberty of an

individual and expected to be conscious of the drastic

consequence of preventive detention. Forget the

promptitude or the utmost expendency, the Detaining

Authority has acted callously and in a slipshod manner in

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keeping the case pending with her from 27.11.2017 till

12.12.2017 unmindful of the fact that she is depriving a

citizen of his valuable right of having his representation

being considered with utmost expendency.

We are conscious of the fact that it is not the law

as stated by the Hon'ble Apex Court as well as this Court

that each and every days delay is called upon to be

explained and we are quite conscious that being a high

ranking official it is expected that she was also entrusted

with other enormous responsibilities, but the minimum

expectation is some explanation on the part of the Detaining

Authority for the delay of 16 days. We are surprised at the

casual approach of the respondent No.2 and we are at pains

to observe that though the Detaining Authority has taken

sincere and worthy efforts to arrive at a subjective

satisfaction that the detenu was a 'bootlegger' and to detain

him preventively to safeguard larger public interest, all her

earlier efforts are a sheer waste since, we are required to

set forth such a detenu at liberty only on account of delay in

taking a decision on the representation which has not been

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explained by the Detaining Authority. We expected the

Detaining Authority to have offered a semblance of

justification in the affidavit explaining the period consumed

by her for transmitting the file from its receipt by her till the

time when she remitted it to the Mantralaya with her

remarks and then it was permissible for us to look into

whether the reasons are sufficient or not. However, here we

are confronted with a case where Detaining Authority offers

no explanation for a period of 15 days. In light of settled

proposition of law, we are constrained to declare that the

continued detention of the detenu is bad in law.

9. The Hon'ble Apex Court in Aslam Ahmed vs.

Union of India reported in 1989(3) SCC 277 was pleased to

observe as follows in paragraphs 6, 7 and 9:-

6. This view was reiterated in Rashid S.K. v. State of West Bengal while dealing with the constitutional requirement of expeditious consideration of the petitioner's representation by the Government as spelt out from Article 22(5) of the Constitution observing thus:

The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned,

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for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty-the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.

7. It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression 'reasonable expedition' is explained in Sabir Ahmed v. Union of India as follows:

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.

9. Thus, when it is emphasised and re-

emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting

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or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution.

The Apex Court in the said case after considering

supine indifference, slackness or callous attitude on the part

of the Jail Superintendent who had unreasonably delayed the

transmission of the representation, ultimately causing undue

delay in disposal of the representation had quashed the

continued detention and held the same to be constitutionally

impermissible. Further the Hon'ble Apex Court in case of

Usha -Vrs- State of Andhra Pradesh, 1994 SCC (Cri), 1408

while dealing with preventive detention held that there was

an inordinate delay in consideration of the representation

made by the detenu resulting in violation of the

constitutional imperative contained in Article 22 (5) of the

Constitution and relied upon the judgment in case of

K.M.Abdulla Kunhi and B.L.Abdul Khader -Vrs- Union of

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India and others. It held that unexplained, inordinate delay

in consideration of the detenu's representation is alone

sufficient to render invalid the continued detention of the

detenu since it has not been shown that the delay was

unavoidable in the circumstances of the case.

The Apex Court as well as this Hon'ble Court

have consistently held that the constitutional protection

conferred on a detenu who is divested of his liberty, to make

a representation against the detention, as mandated in

Article 22(5) of the Constitution also compels the authority

to whom the representation is made to deal with the same

with utmost expediency. The representation is to be so

considered expeditiously keeping in view the fact that

detention of a detenu is based on subjective satisfaction of

the authority concerned and infringement of this right

conferred under Article 22(5) of Constitution would

invalidate the continued detention. The personal liberty

guaranteed under Article 21 of the Constitution is so high in

scale in the Indian Constitution and it is expected that the

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Detaining Authority and the Government follow mandate of

law stringently. Since in case of preventive detention, no

charge is to be framed nor any evidence is required to be

adduced and the justification of such detention being

suspicion, authority must be mindful of the fact that by

invoking the preventive detention law a person is to be

deprived of his personal liberty and therefore the law calls

for meticulous compliance of the procedural safeguards. The

State, cannot act in arbitrary fashion or with callousness

since the State itself is responsible for safeguarding

fundamental rights of a citizen. It is no doubt true that

when the State Government has to consider the

representation, it is required to follow the procedure as

prescribed by the rules of conduct of business and file

necessarily has to be moved from one table to another. In

the whole procedure, as we have seen in the present case

when the representation was made to the State Government,

it called for parawise comments from the Detaining

Authority, we do not find any fault in following such a

procedure and it is for the State Government to decide its

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own procedure. However, we expect every officer involved

in the entire process to act with swiftness and be conscious

of the fact that they are dealing with the sacred right of an

individuals life and liberty and there should be no shifting of

responsibility at the different stages of this process. But we

would like to remind the authorities that they should avoid

the callousness or lethargy and all those involved in the

process should garner themselves to protect the most

cherished value of the Constitution that is a freedom of an

individual.

In the present case we noted there is no

explanation offered by the Detaining Authority for holding

on the file for a period of 15 days though she has attempted

to offer an explanation that on receipt of the file by her on

24.11.2017, there happened to be holidays on 25.11.2017

and 26.11.2017 being Government Holidays and further on

01.12.2017, 03.12.2017 cannot being a Government Holiday

and 09.12.2017 and 10.12.2017 being Saturday and Sunday.

However, we do not expect from the highest police officer of

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a City to count the holidays which intermitted in the working

days and to have a shelter of holidays when whole 11

working days were available to the Detaining Authority and

there is no explanation given by the Detaining Authority

about these days why the exercise of offering the comments

could not be completed. We are of the clear opinion that the

delay caused at the level of the Detaining Authority,

resultantly delay caused in deciding the representation by

the State Government, is fatal and the State has failed to

safeguard precious right of the detenu in the form of his

freedom and liberty and though there is no thumb rule of

universal application as to within what time the

representation is to be disposed of, we are of the opinion

that there is clear callousness in not deciding the

representation with utmost urgency and though after

discounting the Government Holidays falling within that

period, excluding such holiday, we feel the delay is

unexplained and we observe with distress, that the

Respondent State has failed to act with promptitude.

9. In the light of aforesaid discussion, we are of the

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opinion that the continued detention of the detenu is

unsustainable in law and detention order passed on

08.09.2017 cannot be continued and the detenu is entitled to

set at liberty forthwith, if not required in any other case. We

allow the Writ Petition. Rule is made absolute accordingly.

(SMT. BHARATI H. DANGRE, J) (S.C. DHARMADHIKARI, J.)