RAJINDRA Vs. COMMISSIONER OF POLICE NAGPUR DIVISION

JUDGEMENT

(1.) This appeal arises out of a detention order passed by the State government in exercise of power conferred by Ss. (2 of Section 3 of the National Security Act, 1980. By this order the Commissioner of Police, Nagpur, ordered the detention of Ravi alias Ravindra son of Ishwarsingh paigawar on the ground that his conduct was prejudicial to public order. The grounds of detention of even date referred to two specific instances, one of 24/09/1992 in regard to an offence registered under S. 143, 147, 353 and 323 of the Indian Penal Code, the prosecution for which was pending in the court of the Judicial Magistrate, 1st Class, court No. 4, Nagpur, under CC No. R. 261/92, dated 23/10/1992. The second instance related to an incident which occurred on 23/01/1993 in regard to which an offence was registered under S. 186, 187, 353, 506 (B) , 332 and 365 of the Indian Penal Code which was then under investigation. On the basis of these two instances the Commissioner of Police, Nagpur, concluded that the conduct of detenu was prejudicial to public order.

(2.) Immediately after the detention order was passed and the detenu was taken in custody, he made a representation dated 12/02/1993, addressed to the central government. This representation was rejected on 7/04/1993. Two contentions were urged in the High court, namely, (1 that the grounds of detention, which referred to two specific instances, did not justify the conclusion that the detenu was engaged in conduct prejudicial to 'public order' and (2 there was an inordinate delay in dealing with his representation. The high court, dealing with the second contention in regard to the delay, points out in paragraph 9 of its judgment that the first activity of the central governmentwas to send a wireless message to the State government on 4/03/1993 seeking some details. There is no indication as to how the representation was dealt with between 12/02/1993 and 4/03/1993. If, as conjectured by the learned Additional Solicitor General, the representation though dated 12/02/1993 was actually handed over late for despatch to the Central government, that fact should have been specifically pleaded in the counter expected to be filed by the central government as well as by the State government. It may be mentioned that since the central government did not file any counter-affidavit in the Habeas Corpus proceeding before the High court this delay remained unexplained. Thereafter it appears that in response to the wireless message dated 4/03/1993, the State government sent its reply on 6/03/1993; yet it took the central government over a month to dispose of the representation. The learned Additional Solicitor General tried to explain this delay by saying that further information was received by the State government on 18/03/1993. In this connection our attention was drawn by the learned Additional Solicitor General to the counter filed on behalf of the state government wherein the chronology of events was set out. Nowhere we find in that chronology that the central government had sought additional information from the State government. What appears from the chronology is that the Advisory Board took a decision on 18/03/1993, and that information was conveyed to the central government. The central government has not filed any counter to state that it was not satisfied with the reply sent on 6/03/1993 and had, therefore, sought further information on any specific issue in connection with the detention. The learned Additional Solicitor General tried to satisfy us that between 18/03/1993 and 7/04/1993, there were only nine working days and, therefore, there was no delay but the learned additional Solicitor General overlooks the fact that the central government has failed to explain the delay between 6/03/1993 and Mar 18/03/1993. An effort was made by the learned Additional Solicitor General to persuade us to adjourn the matter to enable the central government to produce the file for our perusal. It appears that of late the central government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, of filing a counter in time before the court dealing with the Habeas corpus petition. Needless to say that the central government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The court is expected to go by the pleadings and the central government is expected to place the factual material in connection with the detention order by filing a counter-affidavit so that the petitioner has an opportunity to meet with that factual information. The indulgence shown by the courts in pursuing the file seems to have given an impression that the Central government is under no obligation to file a counter-affidavit to explain the delay. We propose to remove this impression once and for all if it persists and to impress upon the central government that it is under obligation to file its counter within the time permitted by the court failing which the case may go by default. Let it be clearly understood that production of the file is not a substitute for a counter to be filed by the central government. The court peruses the file not to absolve the central government of its responsibility to file a counter but to satisfy its conscience if it notices ambiguities in the government's stand. Ifthe courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. In the instant case no counter was filed and the High court has taken note thereof but, if we may say so with respect, the court has shown indulgence by observing that the counter is not filed 'presumably because there is no specific allegation in this behalf in the petition'. Let it be stated that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously. If there is some ex facie delay, the obligation is on the State to explain that delay. There is no question of a specific allegation to be made in the petition except pointing out by placing facts that there has been a delay which ex facie calls for an explanation and that obligation has to be discharged by filing a proper counter and explaining the delay. The courts have not been unduly strict in insisting that each day's delay must be explained but it is obligatory on the part of the government to show by filing a counter-affidavit that it had acted promptly in dealing with the representation. What is essential is that the court must be satisfied that the officers dealing with the representation were not indifferent to the urgency of the situation of the detenu being in jail. We are afraid that in the instant case by failing to file a counter-affidavit and by failing to explain the ex facie delay, the central government failed in its duty and, therefore, we see no alternative but to uphold the contention and quash the detention order.

(3.) In the result this appeal succeeds. The order of detention is quashed. The detenu will be set at liberty at once unless required in any other case. A copy of this order be sent to the secretary, Home Department, government of India, to ensure that no such lapse takes place in future.