| an Lot, copes --RAISUDDIN'@ BABU TAMCHI aoe ; parte”
an “STATE OF-UTTAR PRADESH & ANR. a a ee October 7, 1983 et 7 +4 renee \- BALAKRISHNA ERADI AND R.B. Misra, JJ.] sy pe
National’ Security Act; 1980—Sec. 3. (3)—Detention order—Delay™ in’ s
. dealing with detenu’s representation vitiates detention order-—Whether there is re} : delay depends upon fa:ts and circumstance of each case—-There is no rigid rule - >° onset formula, > we Fo ee ee:
- ¢. National Security Act, 1980—Sec. * 10— Interpretation of ~The _words “place: before the Advisory Boar: ** means forward to or submit before . the a Advisory Board and nothing more. ~, cho ios co
D 3, The petitioner who was detained by an order passed under sec. 3 (3) of w+... + | the National Security Act, 1980 challenged the validity of his detention on ‘the ~. ~~. geound that there had’ been inordinate deiay.on the part of the detaining © ’ authority in forwarding the petitioner’s representation to the State Government. © “o." and that there had been violation of the mandatory provisions of sec. 19 of the ; wort Aet which enjoins the State Government to take steps to see that the case of E ."s! the detenu is considered by the Advisory Board within three weeks -frogi the wats date of detention. 0-0 a , po ' "Dismissing the writ petition, 2 re
HELD ¢-The question whether the representation submitted by a detenu has been dealt with all reasonable promptness and: diligence is to ‘be decided cl E ”” not by the application of any rigid of inflexible rule or set f ormula nor by a: ° . mere arithmetical counting of dates, but by a careful scrutiny of the facts and >. gircumstances of each case; if on sugh examination, it is found that there was any remissness, indifference or avoidable delay on the part of the. detaining’ _authority /State Government in dealing with the representation, the Court will
*. undoubtedly treat it as a factor vitiating the continued detention of the detenu; -
--on the other hand, if the Court is satisfied that the delay was occasioned’ not
-_ G~ -} by any lack of diligence or promptness of attention ‘on the part of the authority ~ eo concerned, but due to unavoidable circumstance or reasons entirely - beyond Dt > fis control, such delay will not be treated as furnishing a ground forthe grant; .
.<" of relief to the detenu against bis continued detention. (344 C-F] : "The instant case falls under the ‘latter category inasmuch as_the ‘court *
H is satisfied on its perusal of the original file pertaining to ‘this fcase maintained
” Lap the office of the District Magistrate and: the averments contained in the-- . '. counter affidavit filed on behalf of the respondents that .the petitioner’s: repre- ..- * - : gentation has been dealt with all the promptness that was reasonably. possible ~-
“ as
1983.
RAISUDDIN y. U.P, STATE (V.B. Eradi, J.) 341.
| under the circumstances then obtaining and that there was no avoidable delay, on the part of the District Magistrate in forwarding the Petitioner's representation. [344 B; G]
Under sec. 10 of the Act a duty’is cast on the appropriate Government to “place before’; the Advisory Board constituted under sec. 9 wighin three weeks from the date of detention the grounds on which the order of detention has been made and the representation,.if any, made by the person affected by the order. It is wholly wrong to interpret the words “place before’ as meaning anything more than ‘forward to’ er ‘submit before’ the Advisory Board the televant papers relating to the detention of the detenu. It is entirely for the . ;
Advisory Board to regulate.its schedule of holding meetings and conducting its business in accordance with the procedure laid down under sec. 11 of the Act’
" which has specified a time limit of seyén weeks from the date of detention for the submission of the Board's report to the appropriate Government.
[345 G-H; 346 A-B)
In the present case the Advisory Board had disposed of the petitioner’s case well within the period of seven weeks Specified i in sub-sec, (1) of sec. 1), of the Act. (346 a. . ®
OrIcINAL JURISDICTION : Writ. Petition (Criminal) No. 37 of
(Under Article 32 of the Constitution) Mrs. M. Qamaruddin and Rizwan A. Hafiez for the Petitioner. O-P. Malhotra, and D. Bhandari for the Respondents.
| The Judgment of the Court was delivered by
BaLaKRISHNA Eran, J. Taking: into consideration the fact tbat
. this is a petition for a writ of - Habeas Corpus filed under
Article 32 the Constitution of India challenging the legality of the preventive detention of the petitioner under the provisions of the National Security Act 1980 and the consequent urgency of the matter, as soon as the hearing of arguments in the case were completed, we announced the conclusion teached by us by passing the following - order:
“After hearing counsel, appearing on both sides, we have. come to the conclusion that the order of detention impugned in this Writ Petition does not call for any interference. The . Writ Petition is. accordingly dismissed.
Detailed reason ‘will follow.” ;
We now proceed to state the reasons that weighed with us in reaching the aforesaid conclusion.
. tion was addressed by the petitioner to the District Magistrate, .
ra soy
$42 7 — SUPREME COURT REPORTS . (1984) i s.cr.
By an order dated: November 6, 1982, passed by the District
‘Magistrate, Moradabad, in exercise of the powers conferred under Section 3, sub-section 3 of the National Security Act, 1980-herein-.
after called the Act-the petitioner, Shri Raisuddin @ Babu Tamchi was ordered to be arrested by the Senior Superintendent of Police and to be detained in the District Jail, Moradabad, with a view. to his being prevented from indulging in any activity which may affect the maintenance of public order. Pursuant there to, the petitioner was arrested on 8th November, 1982, and placed undes detention. On the same day (8.11°1982), the petitioner was served with the order of detention ‘and a memorandum setting out the grounds of his detention. On 12th November, 1982, the State Government approved the detention of the petitioner and on the 18th of November, the case was referred by the State Government to the Advisory Board constituted under section 9 of the Act. Subse- quently, on 24th November -1982, the petitioner submitted his - representation against the order of detention. The said representa-
Moradabad. The District Magistrate forwarded the representation’ on the same day to the Senior Superintendent of
_ Police, Moradabad, for his comments on the submissions contained in the letter. On the 27th of November, 1982, the Senior Superintendent of Police submitted his comments to the District Magistrate. Thereafter, on 3rd December, 1982, the District Magistrate sent a report to the State Government enclosing the representation as well as the comments submitted by the Senior Superintendent of Police. —
The aforesaid papers despatched from Moradabad were received by the State Government on the 6th December, 1982, On 9th December, 1982, the State Government considered the petitioner’s representation and rejected the same. Simultaneously, on the same day, the State Government forwarded the _ representation of the petitioner to the Advisory Board. On 10.12.1982, the Advisory Board met to consider the case of the petitioner, gave a, personal hearing to the petitioner and drew up its report holding that there was sufficient cause for the detention of the petitioner. The report of the Advisory Board was received by the State Government on 12th December, 1982, and on 21st December, 1982, the State Government
- confirmed’ the detention order under section 12 of the Act. The peti- tioner was informed about the order of confirmation on: 24.22.1982.
: Though a faint attempt was made before us by the counsel for the petitioner to contend that the grounds of detention served on the.
petitioner did not disclose any material relevant uader section 3 of
+ o
Poon wi
RAISUDDIN v. U.P. STATE (V.B. Eradi, J.) _ 343
' \ the Act, there is no scope at all for urging such a contention in the present case. The imputation against the petitioner is that he was inciting and fomenting communal hatred and violence and creating an atmosphere of fear and tension in the town of Moradabad as a result of which the schools, colleges and shops were remaining closed . in the town and terror reigned in the whole town.. Two criminal cases had been registered against him under section 147/353/153A ‘LP.C./7 Criminal Law Amendment Act. As there was a possibility
. of. his being released on bail and continuing to indulge in such acti- vities which were greatly prejudicial to the maintenance of public order, it was considered necessary by the detaining authority to place the petitioner under detention. Having regard to the situation then
_ prevailing in the town of Moradabad which was unfortunately the scene of grave communal disturbances, it is impossible to counte-. nance the contention advanced on behalf of thé petitioner that the ©
"grounds set out in support of the order. of detention are. irrelevant for sustaining an order of detention being made under section 3 of . the Act. ,
~The next argument advanced on behalf of the petitioner was that there had been inordinate delay on the part of the detaining authority in forwarding the petitioner’s representation to the State Government. The petitioner iad addressed his representation not to the State Government as contemplated by section 8 of the Act, . but to the District Magistrate, Moradabad. It was received. by the District Magistrate on the 24th of November and promptly, on the same day, the Dirtrict Magistrate forwarded it to Senior Superintendent of Police for the latter’s comments. The comments of the Senior Superintendent of Police were received in the office of the District Magistrate on the 27th November but it was only on the 3rd December that the District Magistrate forwarded his report to the State Government enclosing the petitioner’s representation and the comments of the Senior Superintendent of Police. It was vehemently argued by the counsel for the petitioner that there had been undue and unexplained delay on the part of the detaining authority in forwarding the petitioner’s representation to the State Government inasmuch as a period of nearly six days had elased between the receipt of thecomments of the Senior Superintendent of Police in the office of the District Magistrate and the submission of his report to the State Government. The original file pertaining to this case maintained in the office of the District Magistrate was produced before us for our perusal by Shri O P. Malhotra, the learned Senior Advocate appear-
" ing on behalf of the respondents. It is seen therefrom that during
344 ; ‘ SUPREME court REPORTS: . [1984] 1 S.c.R.
the period from 28th November to the . evening of the Ist December,
' 1982, the District Magistrate had to emergently leave his headquar-.
ters because of the disturbances that had occurred in other localities within his Jurisdiction where his presence was urgently needed for tackling the explosive situation. After he returned to the headguar- ters on the evening. of. Ist December, the District Magistrate without — losing any further time forwarded the petitioner’s representation to the State Government on the 3rd December ‘together with his report and the comments received from the Senior Superintendent of Police. We are fully satisfied on our perusal of the file and the averments contained in the counter affidavit filed on behalf of the respondents that the petitioner’s representation has been. dealt with by the District Mihgistrate with all the promptness that was réasonably possible under the circumstances then obtaining ‘i in Moradabad. city and the surrounding areas and that thé charge of inordinate delay levelled by the petitioner is baseless. Id this context we consider it necessary
. to emphasise that the question whether the representation submitted by a detenu has been dealt with all reasonable promptness and
* deligence is to be decided not by the application of any rigid or inflexible rule or-set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the ‘facts and, circumstances of each case; if on such examination, it is found that there was any remissness, indifference, or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued, ~ detention of the detenu; on ‘the other hand, if the Court is satisfied that the delay was occassioned not by any lack of deligence or .
* promptness of attention on the part of the authority concerned, but due to unavoidable circumstances or reasons entirely beyond his
- control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued: detention. As already indicated, the case before us falls under the latter category _ inasmuch as we are satisfied that there was no avoidable delay on the part of the District Magistrate in forwarding the petitioner’ s representation.
The last point urged on behalf of the petitioner is that there has been a violation of the provisions of the section 10 of the Act because the Advisory Board had not considered the case of the petitioner within three weeks from the date of detention. As already noticed, the petitioner submitted his representation ‘to the District Magistrate against the detention only on 24.11:1982 even though he
‘pad been arrested fnd placed under detention on 8th November. The
RAISUDDIN ¥. U.P. STATE (V.B. Eradi, J.) 345 said representation reached the State Government-on 6th December,
1982. In the meantime, the petitioner’s case. had been referred by the State Government to the Advisory Board'on the 18th November
‘itself. The representation received from the petitioner was forwarded:
by the State Government to the State Advisoty Board on 9th Decem- ber, 1982. The Advisory Board held its meeting on 10th December, |. . 1982 and, after affording a personal hearing to the petitioner, made its report finding sufficient cause for the detention of the petitioner.
The argument put forward on behalf of the retitioner is that section. . 10 mandatorily enjoins the State Government to take steps. to ‘see . _that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention. We are unable. to see any merit in this contention. Section 10 reads :
“Save as otherwise expressly provided in this Act, in every case where a detention. order has been made under this Act, the appropriate Government ‘shall, within three weeks from the date of detention of a person. under _ the order, place before the Advisory Board constituted by - it under section 9, the grounds on which the order has been made and the representation, ifany, made by. the _ person affected by the order, and in case where the order. has beén made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under subsection (4) of that section.”
Under the section; a ‘duty is cast on the appropriate Government, o “‘place before’ the Advisory” Board constituted under section 9 within three weeks from the date of detention, the grounds on which the order of detention has been made and the representation, \ Ff if any, made by the person affected by the order. The petitioner's counsel wanted us to interpret the words “‘place before the Advisory
Board” as meaning “‘get considered by the Advisory Board”. We are wholly-unable to accede to this argument. Under the terms of.the section, the duty cast on the appropriate Government is to forward to the Advisory-Board constituted under section 9 within three weeks © from the date of detention, the papers pertaining to the detention of the detenu consisting of the grounds on which the order has been
_ mnade, the representation, if any, made by the person affected by the order, etc. It is to be remembered that the Advisory Board is not an entity subordinate to the Government. It is a wholly independent body consisting of persons who are or have been or are qualified to be
346. SUPREME COURT REPORTS .—= [1984] 1 S.c.k.
appointed as Judges of a'High Court. It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure Jaid down under section 11 of the Act which has ‘specified a time. limit or seven weeks from the date of detention for the submission of the Board’s report to the appropriate Government. It is, therefore, wholly wrong to interpret the words “‘place before’’ as meaning anything more than forward . to or submit before the Advisory Board the relevant papers relating to the detention of the detenu. In the present case, the Advisory Board has disposed of the petitioner’s case well within the period of seven weeks specified in sub-section (1) of Section 11 of the Act. This contention of the petitioner is. also, therefore, devoid of substance. «is .. ,
The conclusion that emerges from the foregoing discussion is that there is no ground whatevér justifying any interference with the order of detention passed against the petitioner and the writ petion is, therefore, only to be dismissed.
H.S.K. _ Petition dismissed.
et