B.P. Das, J.
1. This is an application for habeas corpus under Article 226 of the Constitution of India challenging the order of detention dated 3.10.1999 passed by the District Magistrate, Sundargarh, Under Section 3(2) of the National Security Act, 1980 (in short 'the Act') vide Annexure-6 and its approval by the State Government vide Annexure-13.
2. The case of the petitioner is that he is presently a Councillor representing Ward No. 9 of Rajgangpur Municipality for the second time and is an active worker of Biju Janata Dal in the district of Sundargarh. He has associated himself with many social and health programmes for the larger interest of the people of the society being the member of the Pulse Polio Immunisation Co-ordination Committee and the National Leprosy Elimination Campaign Programme within Rajgangpur municipal areas. He is also a member of the Finance Committee of the Municipality. He is also associated in construction and trading business having a turnover of more than Rs. 30 lakhs per annum. It has been alleged by the petitioner that due to business rivalry and being actuated with political malice as he is opposed to the present political party in power, the impugned order of detention has been passed with the aid and assistance of the ruling party in order to harass him. The further case of the petitioner is that in the year 1993 the then Collector, Sundargarh, being satisfied with his conduct had issued an arm licence bearing No. 3/93/Sadar for self protection. The contention of the petitioner is that the impugned order of detention was passed on political motivation while he was in custody. The petitioner due to political rivalry was implicated in some false and frivolous criminal cases and was arrested on 12.9.1999 in connection with Rajgangpur P.S.Case No. 140/99.The sum and substance of the political reasons and the detaining authority detained him without application of mind. The petitioner challenges the order of detention. inter alia, on the following grounds :
(i) The grounds set forth in the ground of detention do not make out a case of public order.
(ii) The representation so submitted by the petitioner vide Annexure- 11 had not been disposed of even after 100 days.
(iii) After filing of the writ petition, the order passed by the State Government Under Section 3(4) of the Act approving the order of detention was without application of mind.
3. The State Government and the detaining authority, i.e., the District Magistrate, Sundargarh, have filed separate counter affidavits. An affidavit has also been filed on behalf of the Union of India informing the Court that the report regarding the detention of the petitioner sent to the Union of India by the State Government on 22.10.1999 was received by the Ministry of Home Affairs on 28.10.1999. The representation along with the report was considered and rejected on 29.10.1999 and the order of rejection was communicated to the detenu on 1.1 1.1999 vide written message and letter dated 2.11.1999.
4. The State Government in its counter affidavit while rebutting the allegations of the petitioner has stated that from the grounds of detention it is evident that the criminal activities of the detenu were receiving such momentum day-by-day that the normal law of the land was not sufficient to curb his anti-social activities, and with a view to maintain public order as well as peace and tranquillity in Rajgangpur town, the detaining authority on being subjectively satisfied and on proper application of mind passed the impugned order of detention in exercise of his powers conferred Under Section 3(2) of the Act and accordingly, he was detained in the District Jail, Sundargarh, on 3.10.1999 and the fact of detention of the petitioner along with the relevant documents was reported to the State Government for approval. The State Government after careful consideration of the grounds of detention approved the order of detention as required by Section 3(4) of the Act.
5. So far as the representation of the petitioner dated 1 2.10.1999 is concerned, the same was received on 14.10.1999 in the Home Department after which the District Magistrate was requested to furnish para-wise comments, which was received in the Department on 20.1 1.1 999. The file was then placed before the Chief Minister, who after careful consideration, rejected the petitioner's representation which was communicated to the detenu by Home (SS) Department letter No. 581/C dated 24.1.2000. It is also slated that the file was submitted to the Chief Minister on 17.1.2000 and after the same was returned from the Chief Minister, the order of rejection was communicated to the detenu.
6. Let us now examine, whether the activities of the detenu amount to disruption of public order or not.
From the grounds of detention, it is seen that the detenu was involved in a series of crimes and on several occasions the cases ended in acquittal as the witnesses refused to support the case of the prosecution. A case registered against him vide Rajgangpur P.S. Case No. 261 dated 23.12.1980 Under Sections 147/148/336/329/427 of the I.P.C. had been charge-sheeted and the matter is subjudice. The detaining authority found that most of the cases ended in acquittal as the witnesses did not depose against the detenu out of fear and in order to curb the anti-social activities and to maintain peace in the locality, cases Under Sections 107 and 110 of the Cr.P.C. were also initiated against the petitioner by the law enforcing agency. In spite of all this, when it was not possible to curb the anti-social activities of the detenu, and the activities of the detenu continued and had gone beyond the normal law and order channel and as it was not possible to deter the detenu from committing offences affecting public order, there was no other way than to detain him Under Section 3(2) of the Act.
7. The antecedents of the petitioner as, well as his activities while in jail custody of sending threat messages to the persons to face dire consequences if they would assist the police, created sense of insecurity in the mind of the peace-loving citizens. There is nothing to indicate that there was no subjective satisfaction on the part of the detaining authority. The antecedent of the petitioner as narrated is certainly a matter touching public order and the action of the detaining authority, in the facts and circumstances of the case, is justified.
8. Now we have to see whether or not there is any irregularity on the part of the detaining authority in exercise of the powers conferred by Section 3(2) of the Act while the detenu was already in custody. The contention of the counsel for the petitioner is that there was non- application of mind on the part of the detaining authority as there was no material to show that the detenu was likely to be released on bail and in that event, he was likely to indulge in such prejudicial activities affecting public order. Law is well settled in this regard that subsisting custody of a detenu by itself does not invalidate the order of preventive detention. But while passing an order of detention, in a case where the detenu was already in custody, the authority should take the following facts into consideration :
(i) The detaining authority must show his awareness to the fact of subsisting custody of the detenu; and
(ii) While making the order, the detaining authority is to be reasonably satisfied on cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities.
9. We have gone through the records and the affidavits and find that the detenu in spite of being arrested and forwarded to custody on several occasions has not corrected himself but continued including in anti-social activities, rather more vigorously and fearlessly. The records also indicate that the detaining authority was aware of the fact that the detenu was in custody and after considering his past conduct he was further satisfied that there was possibility of his release on bail and in that event he would in all probability indulge in prejudicial activities affecting public order. Hence, the contention of the learned counsel for the petitioner that the detaining authority had not applied his mind to the aforesaid fact, is not correct and on this ground the impugned order of detention cannot be said to be vitiated.
10. The next ground of attack of the petitioner to the order of detention is delay in disposal of his representation. The State Government in its counter has stated that the petitioner's representation dated 12.10.1999, which was received in the Department on 14.10.1999 was ultimately rejected on 17.1.2000 and the order of rejection was communicated to the detention on 24.1.2000.
It is a fact that there is no rigid period of time within which the representation of the detenu has to be disposed of, but it cannot be denied that the representation should be considered with reasonable expedition and it is imperative on the part of every authority to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay caused by slackness on the part of any authority will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution. This was the view taken Joy the apex Court in the cases of Aslam Ahmed v. Union of India, AIR 1989 SC 1403, and Rama Dhondu Borade v. V.K.Saraf, AIR 1989 SC 1861. In Rama Dhondu Borade's case (supra), a gap of 28 days between receipt and disposal of the representation of the detenu was held to be as unreasonable delay.
11. The next question is whether the delay in disposal of the petitioner's representation has been duly explained in the counter affidavit or not. In this type of cases, facts and circumstances of each case should be separately dealt with and the Court has to examine whether the delay that occurred is reasonable or not. This must be examined in the light of the fact that the right of representation is a valuable right which has been incorporated in Article 22(5) of the Constitution which should be dealt with by the State to whom the representation was made with utmost expedition. In the present case though the State Government has filed a counter affidavit, no explanation has been offered explaining the delay in disposing of the representation except saying that the rejection order was communicated after the file was received back from the Chief Minister. Hence, though the representation of the petitioner dated 12.10.1999 was received in the Department on 14.10.1999, the same was rejected on 17.1.2000 and this delay has become fatal and clearly violates the mandate in Article 22(5) of the Constitution and accordingly the order of detention cannot stand.
We, therefore, quash the impugned order vide Annexure-6 as also the order of approval vide Annexure-13.
13. For the reasons indicated, the writ petition is allowed. The petitioner be set at liberty forthwith if his detention is not required in connection with any other case or proceedings.
14. In this case we reiterate our dissatisfaction for the manner in which a case involving detention of a detenu under the Act on the allegation of breach of public order has been dealt with by the functionaries of the State. While dealing with the right to make representation, which is a valuable right that accrues to a detenu, this Court in several decisions has deprecated the action and the manner in which the State Government has dealt with the representations and passed the orders of rejection after much delay thereby violated the mandate of the Constitution, which is contrary to the direction given by the apex Court as well as this Court.
P.C. Naik, J.
While agreeing with brother Das, J, I would like to express my surprise at the casual manner in which the representations filed by the detenu are being dealt with by the State.
It is now well settled by a catena of decisions of the apex Court that the representation filed by the detenu is to be dealt with expeditiously and in case there is delay or slackness in disposal thereof, it leads to the consequence of quashing the detention order. I find it difficult to comprehend that the authorities concerned are not conscious of this legal position and in case they are not conscious thereof, it is high- time to take note of the legal position and attend to the representations of the detenu in accordance with law expeditiously. But, if inspite of being conscious of the legal position they continue to deal with the representations in casual or indifferent manner, it only suggests that they are not serious about the continuance of the detenu under detention and otherwise want to see that the detenu is released. In such a situation, it becomes easy for them to express their helplessness for the release of the detenu which it is explained by them to be by order of the Court, for the general public at large is not able to appreciate that the detention is quashed because of the laches or inaction on the part of the State. In case the authorities concerned are not serious about the detenu being kept under detention for reasons - political or otherwise - best known to them inspite of strong grounds being there, there is no use of their making a drama - an empty formality.
The case at hand is a glaring example of the laches on the part of the State in dealing with the representation of the detenu for which the detenu is required to be released though there are strong grounds for his detention. Can it be expected that the State would see that there is no recurrence of such inaction on its part
Let the Registrar (Judicial) of the Court forward a copy of this judgment to the Chief Secretary to the Government of Orissa-as well as the Home Secretary and the Director-General and Inspector General of Police, Orissa, for information.