PRATAP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed challenging the detention order dated 30th August, 1990, passed under sub-Section 2 of Section 3 of National Security Act, 1980 by the Commissioner of Police, Delhi. The main ground of challenge is based on the question of delay in communicating the order rejecting the representation of the petitioner. The brief facts which are relevant for the decision of the writ petition are as follows ;

(2.) The impugned detention order was passed on 30th August, 1990 and was executed on 6th September, 1990. The Advisory Board considered the matter on 9th October, 1990 and the detention order was confirmed on 29th October, 1990. The petitioner sent a representation dated 1st November, 1990 by registered post on 3rd November, 1990. According to the petitioner, the representation was received by the respondents on 6th November 1990. However, the respondents have alleged that the representation was received on 16th November, 1990. The rejection of the representation was communicated to the petitioner on 7th January, 1991. According to the petitioner, the delay in communicating the rejection of the representation entitles him to the relief he has sought in the writ petition and the detention order deserves to be quashed on that ground alone. A counter affidavit has been filed by the respondents and record of the case has also been produced in Court today for our perusal. According to the respondents, the representation was received on 16th November, 1990 which was forwarded to the Deputy Commissioner of Police on 20th November 1990. He sent it back to the Commissioner of Police on 23rd November, 1990 and on 26th November 1990 it was sent to the office of Lt. Governor and the Lt. Governor dealt with the representation on 30th November 1990. According to the respondents, along with the representation the petitioner had also submitted an application for parole and the Lt. Governor disposed of both, the application for parole as well as the representation on 30th November 1990. It is submitted by the learned Counsel for the respondents that the petitioner was released on parole as per the order. However, for some reason the order dismissing the representation was not communicated to the petitioner till 7th January, 1991. Learned Counsel submitted that since the order of rejection by the Central Government was already communicated to the petitioner no prejudice is caused to the petitioner and the delay in communication of the order of rejection does not vitiate the detention order.

(3.) We find that the submission of the respondents is without any force. It has been repeatedly held that the respondent is bound to explain the delay in communicating the order of rejection and if the delay remain unexplained the consequences are fatal. On perusal of the file also we find that the order of rejection of the representation was not communicated because the respondent lost sight of the fact that by the order of 30th November, 1990 both, application for parole as well as representation, were rejected. Learned Counsel for the petitioner has relied on the judgment of the Supreme Court dated 9.5.91, Hassan Mohd. Kanhl Chhegala v. Union of India & others. Cr. Writ Petition No. 41/91,1989 (3) SCC 277 and submitted that the Supreme Court has quashed detention orders even when the delay was in transmission of the detention order.