LAWS(ALL)-1987-10-23

HASEEB Vs. STATE OF U P

Decided On October 19, 1987
HASEEB Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) The petition under Article 226 of the Constitution of India, is for issue of a writ of habeas corpus to set the petitioner at liberty by declaring his detention, under order dated 12-3-1987, contained in Annexure-1 to the writ petition, under Section j (2) of the National Security Act, to be illegal. 1. The detention order dated 12-3-1987, Annexure-1, along with the grounds, contained in Annexure-2, was served upon the petitioner on 13-3-1987. The order was approved by the State Government on 19- 3-1987, which also made a reference to the Central Government on 20-3-1987. On 31-3-1987 the petitioner made a representation to the State Government through the Superintendent of Jail concerned ; the comments of the District Magistrate thereon were received by the State Government on 8-4-1987. The represent ation was rejected by Government on 14 4-1987. The order was ultimately confirmed by the State Government on 28-4-1987. 3. Subsequently, the petitioner's father Habibullah made a represent ation to the Central Government, which was received in the Dak Section of the Home Ministry Government of India, on 29-6-1987. The representation was received in the concerned State (Internal Security) of the Home Ministry on 8-7- 1987. A radiogram message was issued by the Central Government on 10-7-1987 to the State Government for comments in respect of the representa tion. The radiogram message was received in Confidential Section 5 of the State Government on 16-7-1987. The State Government, howerver, noticed that the radiogram message treated Habibullah himself to be detenu and, therefore, informed the Central Government on 18-7-1987 that there was no detenu of the name of Habibullah, nor any representation dated 25-6-1987 from Habibullah has been received by the State Government. Subsequently on 27-7-1987 when the post copy of the representation of Habibullah, made to the Central Government, was received in the concerned Section of the State Government, the State Government sent its comments on 29-7-1987 through its special massenger to the Central Government. The Central Government was informed that the petitioner's representation dated 31-J- 19j7 and Habibulla's represntatioa dated 2-6-1987, were almost the same, hence the comments in respect of the representation dated 31-3-1987, which were available with the State Govenment were placed before the Central Govern ment in connection with the matter. 4. On receipt of the comments of the State Government on 29-7-1987 by the Central Government, the latter rejected the representation on 10-8 1987, the rejection was conveyed to the petitioner on 11- 8-1987. 5. The above statement of dates is admitted to both the parties. 6. The main question for consideration in the case, raised by the learned counsel for the petitioner, is that there was delay in dealing with the represen tation of Habibullah by the Central Government between 29-6-1987 and 8-7-1987 and again between 29-7-1987 and 10-7-1987. This delay, according to the learned counsel, has not been explained and, therefore, the continued, detention of tfje petitioner js illegal, 7. Learned counsel for the Central Government, Sri Rakesh Sharma, has placed reliance on the contents of the counter affidavit dated 8-10-1987, Sri S. K. Jain Desk Officer Ministry of Home Affairs, Government of India, filed today, Sri Rakesh Sharma says that he also received a statement of the same facts by means of a wireless messsge received on 16-'0-198. 8. The statement contained in the aforesaid counter affidavit is that the representation dated 25-6- 1987 of Hibibullah, father of the present petitioner detenu, was received "by the Central Government in the Ministry of Home Affairs on 9-6-1987 and by the concerned quarter on 8-7-1987. " The affi davit goes on to say that the representation was immediately processed for consideration and it was found that certain vital information for its further consideration needed to be obtained from the State Governmment through a wireless message dated 10-7-1987 and that information was received by the Central Government on 30-7-1987. The important feature in this respect is that the processing of the representation for its consideration is not indicated to have been done during the period between 8-6-1987 to 8-7-1987, it is indicated to have been done between 9-7-1987 and 10-7-1987 during the period from 29-6-1986 to 8-7-1987, all that happened that the represen tation of Habibullah, received in the Dak Section of the Ministry of Home Affairs, was furnished to "the concerned quarter on 8-7-1987". Thus, during the period between 29-6-1987 and 8-7-1987 the only manner in which the representation was dealt with was to transmit it from one section to another section. It is also noticeable that the question of the necessity of certain vital information could be considered only in the "concerned quarter", and not in the Dak Section, the upshot is that between 29- 6-1987 and 8-7-1987 the representation remained unconsidered. 9. Sri Rakesh Sharma says that the time between 29-6-1987 and 8-7-1987 is a bare ten days period which included two holidays, namely, Saturday 4-7-1987 and Sunday 5-7-1987. and therefore, the period should be consi dered to be very small. We do not agree that the period was small. Since the only function which was to be discharged on the receipt of representation on 29-6-1987 in the Dak Section of the Home Ministry was to send it to the "concerned quarter", it is difficult to agree that it could fairly take ten days time for movement from one section to another in the same Miaistry. Further the number of days spent in dealing with a particular matter by itself is not material, except to indicate whether or not there is an "apparent" delay ; the law expects a representation to be dealt with expeditiously and in continuity-whatever may be the length of time for that purpose. Where the delay is apparent and to our mind ten days time in the movement of the paper from the Dak Section to the concerned Section of the same Ministry indicates an apparent delay there must be an explanation of the delay. Moreover, such explanation has to be reasonable. In this case there is no explanation, much- less a reasonable explanation, for the consumption of the time between 29-6-1987 and 8-7-1987. It should have baen indicated in the counter affidavit as to how the representation moved from place to place and in what manner it was dealt with at different places between 9-6-1987 and 8-7-1987. In the present case that delay has no explanation. This violates the constitutional guarantee under Article 22 (5) of the Constitution of India and is sufficient to quash the further detention of the petitioner. 10. In respect of the period from 29-7-1987 to 10-8-1987 the counter affidavit of Sri S. K. Jain contains adequate and acceptable material ; but there is another angle to the case in that respect on which we, however, refrain from expressing any opinion in the present case. When the Central Government made a radiogram communication to the State Government on 10-7-1987 requiring the State Government to furnish its comments, it considered the maker of the representation, namely Habibullah to be the detenu. The State Government informed the Central Government on 18-7-1987 that neither Habibullah was a detenu, nor any representation dated 25-6-1987 had been received from Habibullah It was only when, post copy of the radiogram, along with the representation of Habibullab, was received from the Central Government by the State Government that it examined the case in the light of the representation relating to the present petitioner and submitted its comments to the Central Government on 29-7-1987. It could be a pertinent question whether in the original query by the Central Government, made on 10-7-1987, to the State Government there was some sort of a lack of applica tion of mind to the representation of Habibullah, so that the time which expired between 10-7-1987 and 27- 7-1987 could be considered to have been wasted by neglect. As already stated, we do not express any opinion on this question. 11. However, in view of what we have held earlier, this petition should succeed. 12. The petition is allowed. The petitioner, Haseeb is directed to be set at liberty forthwith, he shall be released from custody unless wanted in some other case. 13. Copy of this judgment be given to the learned counsel for the parties within three days on payment of usual charges. Petition allowed. .