Jaswant Singh @ Jassu vs Commissioner Of Police, Delhi And ...
1999 Latest Caselaw 243 Del

ORDER

Anil Dev Singh, J.

1. By this writ petition the petitioner challenges the order of his detention dated August 25, 1998 passed by the Commissioner of Police, Delhi, under section 3(2) of the National Security Act, 1980 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.

2. The order of detention is based on the material indicated in the grounds of detention, which were served on the petitioner on September 1, 1998 on execution of the order of detention. The petitioner is stated to have committed three criminal offences in the year 1997 which included offences of robbery & attempts to murder. He is also stated to be a leader of a criminal gang having propensity to use fire arms and indulge in violence at public places in pursuit of his objectives and this renders him a grave threat to the maintenance of public order. The grounds of detention further allude to the fact that the witnesses in the criminal cases pending against him are likely to be intimidated by his presence and free movement and they may not come forward to depose against him. The grounds of detention also speak of his criminal activities, which are stated to be prejudicial to public peace and tranquillity and public order, and his notoriety and terror, which are deterring people from reporting his criminal depredations. The grounds of detention also disclose pending prosecutions against the petitioner in three criminal cases, namely, (1) Case FIR No. 274 dated July 17, 1997 Police Station Roop Nagar, Delhi, under section 307/302/34 I.P.C. pertaining to firing incident in which one Pradeep Kumar, a shop owner of Roop Nagar, Delhi, sustained bullet injuries; (2) Case FIR No. 440/97 dated July 19, 1997 under section 392/34 IPC PS Ashok Vihar, Delhi, pertaining to robbery at Head Post Office, Ashok Vihar; and (3) Case FIR No. 371/97 dated September 4, 1997 under section 307/34 IPC PS Narela, Delhi, in respect of a firing incident at Constable Suresh.

3. The petitioner challenges his detention mainly on the ground that the representation submitted through the Superintendent, Central Jail, Tihar on September 3, 1998 was disposed of by the Lt. Governor of Delhi after much procrastination on September 23, 1998. Mr. Rana, learned counsel appearing for the petitioner submitted that no worthwhile explanation is forthcoming from the respondents for taking twenty days in disposing of the representation of the detenu. According to the learned counsel, delay in the disposal of the representation is fatal and vitiates the continuous detention of the petitioner. He also urged that the alleged conduct attributed to the petitioner does make out a case of disturbance of public order. At the most it can be a case of breach of law and order which does not attract the provisions of the National Security Act.

4. On the other hand, Mr. S.S. Gandhi, learned counsel for the respondents, contended that there was no delay in considering the representation of the petitioner by the Lt. Governor. He further submitted that the representation of the petitioner was being continuously dealt with by the concerned authorities till its disposal. Mr. Gandhi also urged that the activities of the petitioner were prejudicial to public order and it was not simply a case of breach of law and order.

5. We have considered the submissions of the learned counsel for the parties. At the outset we may restate the principle that the representation of a detenu should be promptly attended to and the disposal thereof should not exhibit any lethargy on the part of the administrative authorities otherwise the continued detention of the detenu is rendered impermissible and illegal. The instant case, however, does not suffer from indifferent attitude of the State Government and its officers to the representation of the petitioner. This is clear from the affidavit of Shri Kewal Singh, Deputy Commissioner of Police, Headquarters, filed on January 22, 1999, which while dealing with the question of consideration of the representation of the petitioner, explains the time taken by the Lt. Governor in disposing of the representation of the petitioner. The relevant part of the affidavit reads as follows :-

"The petitioner Shri Jaswant Singh @ Jassu, a detenu under the National Security Act, 1980 submitted his representation against his detention under the National Security Act, 1980 to the Jail authorities on 3.9.98 at 6 P.M. The representation addressed to the Lt. Governor, Delhi, was despatched by the Jail authorities to Lt. Governor, Delhi, on 4.9.98. 5th and 6th of September 1998 were holidays. The representation received in the office of Principal Secretary (Home) Govt. of the National Capital Territory of Delhi from the Raj Niwas on 7.9.98. It was received in the concerned branch dealing with the subject (Home Police-II) on 8.9.98. The same was sent to PHQ for furnishing parawise comments on 9.9.98. On 10.10.98 the representation was received in Police Headquarters and on the same day it was forwarded to the office of Dy. Commissioner of Police, North-West District, Delhi, for furnishing the parawise comments on the paras raised in it. Thereafter the copy of representation was sent to Police Station Sultan Puri through ACP/concerned. 12th and 13th of September 1998 were holidays. On 16.9.98 the brief facts/parawise comments duly prepared by SHO/Sultan Puri received in Police Headquarters through proper channel of ACP/concerned and DCP/North-West Distt.,Delhi. The same day the brief facts/parawise comments on the representation were forwarded to the Consultant (Home), Govt. of the National Capital Territory of Delhi and also to Ministry of Home Affairs, Govt. of India, New Delhi. On 17.9.98 the comments on the representation received in the concerned branch dealing with the subject, i.e., Home Police-II. The same were put up on file to be considered by the Lt. Governor, Delhi, on 18.9.98. 19th and 20th of September, 1998 were holidays. On 21.9.1998 the file reached the Lt. Governor, Delhi office after routing through the Principal Secretary (Home), Govt. of the National Capital Territory of Delhi. On 22.9.98 the representation submitted by the petitioner rejected by the Lt. Governor, Delhi, after taking into consideration all aspects of the same. On 23.9.98 necessary orders were issued under the signatures of Dy. Secretary (Home), Govt. of the National Capital Territory of Delhi. The same was conveyed to the detenu through Jail authorities...."

6. Thus, it is apparent that there was no undue and unaccounted delay in disposal of the representation of the petitioner. Time lag between the submission of the representation and its disposal has been explained. It is also clear from the affidavit that the same was not held up unduly at any level but moved promptly from one level to another.

7. Mr. Rana, learned counsel for the petitioner, submitted that even five days delay in disposal of a representation vitiates the continued detention of a detenu. In support of his submission he referred to the decision of the Supreme Court in Rajammal Vs. State of Tamil Nadu and Another, 1998 IX AD (S.C.) 353. He also referred to a decision of this Court in Dheer Singh Vs. Union of India and Others, 1999 II AD (Delhi) 46, where a month's delay in disposal of the representation of the detenu was held to be not validly explained and the plea of the State that there were thirteen holidays during the period for which the representation remained pending, contributed towards delay in disposal of the representation, was rejected on the ground that the holidays were not unforeseen and were known holidays and it was expected that the concerned officials would act so as to avoid delay by anticipating the holidays. Learned counsel for the petitioner also placed reliance on the decision of the Supreme Court in Prof. Khaidem Ibocha Singh, etc. Vs. The State of Manipur, 1972 S.C.C. (Cri) 894, in which seventeen days unexplained delay in disposal of the representation was held to amount to violation of Article 22(5) thereby making the detention bad and illegal. Learned counsel also cited several other decisions for the same proposition, viz., that if there is any delay in disposal of the representation the reason for the delay must be indicated to the Court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would vitally affect the order of detention.

8. Insofar as the proposition of law is concerned, for which the learned counsel for the petitioner cited the aforesaid authorities, the same is well settled and cannot be disputed.

9. At the same time it needs to be pointed out that in Mst. L.M.S. Ummu Saleema Vs. B.B. Gujaral and Another, and Francis Coralie Mullin Vs. W.C. Khambra it was held that the time imperative can never be absolute or obsessive. In Raisuddin Vs. State of Uttar Pradesh, , the Apex Court held that the question whether there has been a delay in dealing with the representation of a detenu cannot be decided by application of any rigid, inflexible and set formula but is to be decided by scrutiny of facts of each case. In Rajammal's case (supra) there was no explanation for the five days' delay in the disposal of the representation of the detenu.

10. In Dheer Singh's case (supra) thirteen days' holidays which were taken as a shield for warding off the attack on the ground of delay in the disposal of the representation of the detenu, could not come to the rescue of the State as it had failed to show prompt action on the working days.

11. If the State and its officers are able to explain the delay in the disposal of the representation, the mandate of Article 22(5) cannot be said to have been violated.

12. On scrutiny of facts as detailed in the affidavit of Shri Kewal Singh, Deputy Commissioner of Police, Headquarters, we are of the view that the representation of the petitioner has been dealt with promptly and with diligence and there is no inaction on the part of the respondents.

13. Learned counsel for the petitioner also submitted that the co-detenu, Rajesh, who is alleged to have participated in the commission of the offences with the petitioner, has since been released pursuant to the order passed in the habeas corpus petition challenging the detention order passed against him (Rajesh) by the Commissioner of Police under section 3(2) of the National Security Act. Learned counsel submitted that since the grounds of detention in the case of the petitioner and co-detenu Rajesh are almost identical, parity must be maintained in their treatment by this Court. In support of his submission he relied upon the decision of the Allahabad High Court in Wazir Yadav Vs. The State of U.P. and others, 1993 Crl.L.J. 1220. We have given our anxious consideration to the submission of the learned counsel for the petitioner. We, however, regret our inability to accept the same. In order to allay any misgivings it must be clarified that the representation submitted by co-detenu Rajesh remained pending with the office of the Lt. Governor from August 24, 1998 to September 15, 1998. No valid explanation was rendered for the delay in considering his representation. However, in the case of the petitioner that is not so. At this stage, it would be convenient to refer to the supplementary affidavit filed by Shri Kewal Singh, Deputy Commissioner of Police, on February 17, 1999. The affidavit, insofar as it is relevant to the question in issue, reads as follows :-

"The contention of the petitioner that Rajesh @ Raju has been released by this Hon'ble Court on the very same grounds is wrong and denied. In fact the representation submitted by Rajesh @ Raju remained pending with the office of the Lt. Governor, Delhi, from 24.8.98 to 15.9.98. Considering the delay the Hon'ble Court has quashed the detention order vide judgment dated 7.1.1999 (copy enclosed). While in the case of Jaswant Singh @ Jassu, the petitioner, the representation submitted by him was dealt with by the authorities concerned in time and there was no delay in the consideration of representation. An additional reply affidavit in this regard has also been filed on 22.1.99 in this Hon'ble Court. Hence contention of the petitioner that Rajesh @ Raju was detained under N.S.A. was released on same grounds is wrong and denied...."

14. The reliance of the learned counsel for the petitioner on the decision of the Allahabad High Court in Wazir Yadav's case (supra) is also of no avail to the petitioner. In that case the grounds of detention of Wazir Yadav and that of the co-detenu were identical. The detention of the co-detenu was revoked by the State Government in consonance with the opinion of the Advisory Board. Wazir Yadav urged that his detention should also be declared void as the same was per se arbitrary inasmuch as when on the same grounds detention order of his co-detenu was revoked on the recommendation of the Advisory Board, there was no justification for not meting out the same treatment to him. This argument found favour with the Allahabad High Court. But there is a marked difference between the case in hand and the case of Wazir Yadav (supra) and no parity therefore, can be drawn between the two.

15. Lastly, the contention of the petitioner that the alleged activities of the petitioner do not attract the provisions of section 3(2) of the National Security Act, 1980 is also not well founded. The criminal activities in which the petitioner is said to have participated, namely, firing in public places and robbery at Head Post Office, Ashok Vihar, in our opinion make out a case of public order as such incidents disturb the even tempo or keel of public life. Therefore, if the detaining authority in the circumstances was satisfied that the incidents disturb public order, we see no infirmity in the order of the detaining authority.

16. In view of the foregoing discussion, we do not find any merit in the writ petition. Accordingly, the writ petition is dismissed.