MOHINUDDIN @ MOIN MASTER v. DISTRICT MAGISTRATE, BEED & ORS.

The Judgment of the Court was delivered by B --{ SEN, J. This appeal by special leave is directed against the judg- ment and order of the High Court of Bombay dated january 19, 1987 rejecting the petition under Art. 226 of the Constitution filed by the appellant in the High Court for grant of a writ of habeas corpus. The appellant has been placed under detention by the impugned order dated September 7, 1986 passed by the District Magistrate, Beed under s. 3(2) of the National Security Act, 1980 on his being satisfied that it was necessary to do so 'with a view to preventing him from acting in any manner prejudicial to the maintenance of public order'. The appellant challenged the impugned order of detention on grounds inter al'ia that there was infraction of the constitutional safeguards enshrined in Art. 22(5) read withs. 8 of the Act inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation.

On the view that we take, it is not necessary to deal with the facts elaborately. The material facts are these. The appellant was taken into custody on September 8, 1986 and was lodged at the Aurangabad Central Prison, Aurangabad where he is now detained. He was served with the grounds of detention along with the copies of the relevant documents on September 14, 1986. It appears that a week thereafter. i.e. on September 22, 1986 he addressed a representation to the Chie'f Minister through the Superintendent, Aurangabad Central Priso·n, F Aurangabad which the Superintendent forwarded to the Hqime Department on September 24, 1986. The State Government, in.' the meanwhile, under s. 3 (4) of the Act accorded its approval rq· the impugned order of detention on September 18, 1986. On Octobt'f 6, 1986 the appellant made another representation to the Advisory Bpard which met and considered the same on October 8, 1986. On Oct\ober G 13, 1986 tlie Advisory Board after considering the representation .,. made by the appellant together with the materials placed before it forwarded its report to the State Government recommending confir- mation of the impugned order of detention as there was, in its opinion, sufficient cause for the detention of the appellant. Acting upon the report of the Advisory Board, the State Government by its ordeF dated H November 19, 1986 confirmed the order of detention. In the mean-

MOHINUDDIN v. DISTI. MAGISTRATE (SEN, J.] 673

time, the appellant moved the High Court on November 13, 1986. A The main ground on which the legality of the impugned order of detention was assailed in the High Court was that although the appel- lant had addressed a representation to the Chief Minister on Septem- ber 22, 1986, it was not considered and disposed of by the Chief Minis- } ter till November 17, 1986 i.e. there was unexplained, unreasonable B v delay in disposal of the same. It was said that such unreasonable delay r in disposal of the representation was sufficient to render the con- tinued detention of the appellant illegal. The High Court did not think

- it necessary to call upon the respondents and by an oral judgment dismissed the writ petition mainly on the ground of imperfect plead- ings. It observed that the appellant had not specifically pleaded that .'+ there was unreasonable delay in the office of the Chief Minister which c had not been explained and therefore the detention was illegal, but his grievance was that his representation had not been considered. It re- ferred to paragraph 4 of the writ petition where it is submitted:

"It is submitted that in Jaw, the State Government is bound D to consider the representation before the decision of the Advisory Board, but in the instant case neither the State Government has considered the representation of the petitioner nor the Government has communicated its decision.'' E It referred to the underlined portion of the averments in paragraph 4 of the writ petition, namely:

"Eight weeks have elapsed since the date of detention of the petitioner but still neither the State Government has taken any decision on the representation forwarded through the F Home Department nor the petitioner is communicated any decision pursuant to the report ......... "

The High Court distinguished the decision of this Court in Harish Pahwa v. State of Uttar Pradesh & Ors., [1981] 3 SCR 276 on -f the ground that in that case the Court had before it the affidavit of the G Government showing that it had no explanation to offer except that it had referred the matter to the Law Department and also there was sufficient material to show that there was unreasonable delay in deal- ing with the representation whereas in the present case there was no such ground raised. The High Court disallowed the prayer for grant of a writ of habeas corpus mainly on the ground of defective pleadings, and H

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A added that the appellant "had not even asked for time to amend the petition" and "put the respondents to ~otice". It observed:

"While the State undoubtedly has the duty to process the representation of the detenu promptly, it is also the duty of the petitioner to make specific averments of facts and their B effect, if necessary, by amendment. This is necessary to put -( the respondents to notice, that the effect of these facts have to be answered and explained. The respondents may have an explanation as to why the Chief Minister took so much time. On such submission we cannot hole! that the respon- dents have failed to explain delay or that the time taken by the Chief Minister was wholly necessary. We should not be c understood to have held that the time taken by the Govern- ment was justified. Far from it. But we cannot allow the petitioner to take the respondents by surprise by such a style of pleading."

D It was an improper exercise of power on the part of the High y Court in disallowing the writ petition on the ground of imperfect · pleadings. Normally, writ petitions are decided on the basis of affi- davits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habseas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not ~­ illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to ).- satisfy the Court that :;1e detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of deten- tion and he must explain his subjective satisfaction and the grounds therefor; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like .r- - •' the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under H Art. 166 of the Constitution to pass orders on behalf of the Govern-

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ment in such matters: Niranjan Singh v. State of Madhya Pradesh, A [1973] 1SCR691; Habibullah Khan v. State of West Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State of Bihar & Anr., [ 1974) 4 SCC 455 and Mohd. Alam v. State of West Bengal, [ 1974) 4 SCC 463.

In the present case, in answer to the notice issued by this Court under Art. 136, the affidavit in reply has been filed by Shri S.V. Joshi, B

~} District Magistrate, Beed who passed the impugned order of deten- tion. There is a general denial in paragraph 2 of the counter-affidavit \ that there was unreasonable delay in the disposal of the representation made by the appellant. However, the delay in disposal of the represen- tation was in the Secretariat and therefore it is averred in paragraph 11: c "I say that the affidavit filed by Shri Vishwasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay on behalf of State of Maharashtra in the High Court Bench at Aurangabad will reveal that different steps, as required by the provisions of National Security Act, D -"(. 1980 are taken immediately, within stipulated period."

and it is then averred in paragraph 12 that the contentions raised by the appellant with regard to delay have been dealt with by the High Court while deciding the writ petition. It is said that the appellant has raised the contention about unreasonable delay in disposal of his rep- E resentation, for the first time in this Court presumably on the reason- -+ ing of the High Court. There is on record an affidavit sworn by I.S. Vishwasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay in answer to the grounds 16(A) and 16(E). As regards the grounds 16(A) and !6(E) formulated in the petition for grant of special leave regarding unreason bale delay, it is averred in paragraph 3 of the affidavit:

"I say that the representation dated 22nd September, 1986 addressed to the Chief Minister by the detenu was forwar- ded by the Superintendent, Aurangabad Central Prison, Aurangabad on 24th September, 1986. I further say that the said representation was received in the Department on 26th September, 1986. I further say that the parawise re- marks on the said represe.ntation were called for from the detaining authority, i.e. District Magistrate, Beed on 26th September, 1986 and remarks of the District Magis- trate dated 3rd October, 1986 were received by the H

676 SUPREME COURT REPC'JRTS [1987] 3 S.CR.

A Government on 6th October, 1986. I further say that there- ·-{- after, the said representation was processed together with report of the Advisory Board and as stated in the earlier paragraphs, the said representation was rejected and the detention of the detenu was conflrmed by the Chief Minis- ter on 17th November, 1986." B In the same paragraph, there is the following averment made with ~ regard to delay in disposal of the representation in the Chief Minister's Secretariat:

"I further say that the Chief Minister was pre-occupied in connection with very important matters of the State which c involved tours as well as meetings outside Bombay. I further say that during the period from 23.10.1986 to i'

17. I 1.1986, two Cabinet meetings were held at Pune and Aurangabad, each meeting lasting for two days i.e. 28th and 29th October, 1986 at Pune and I Ith and 12th D November, 1986 at Aurangabad. I further say that such meetings in Pune and Aurangabad are generally held once )- a year to focus the attention on regional problems. I further say that the preparations for these meetings as well as other meetings held with the concerned Ministers and officials demanded a lot of time of the Chief Minister and this E naturally resulted in some delay in disposing of several cases submitted to the Chief Minister including this case. I . .J _ further say that the cases where such representations are --..,. made in the detention matters, they required a close scrutiny of all the relevant record and careful application 'of mind. I therefore, respectfully submit that the time taken ~ F for passing the Government order in this case should be viewed in the light of the averments made in this affidavit and therefore, if properly considered, it cannot be said that th'' delay in disposing of the representation is unreasonable and unexplained."

G It is somewhat strange that the State Government should have acted in such a cavalier fashion in dealing with the appellant's representation addressed to the Chief Minister. We are satisfied that there was failure on the part of the Government to discharge its obliga- tions under Art. 22(5). The affidavit reveals that there were two representations made by the appellant, one· to the Chief Minister H dated September 22, 1986 and the other to the Advisory Board dated

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October 6, 1986. While the Advisory Board acted with commendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report together with the materials on October 13, 1986, there was utter callousness on the part of the State Govern- ment to deal with the other representation addressed to the Chief Minister. It was not till November 17, 1986 that the Chief Minister condescended to have a look at the representation. When the life and liberty of a citizen is involved, it is expected that the Government will ensure that th~ constitutional safeguards embodied in Art. 22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti-social activities

- can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of the procedural safeguards.

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A and Khairul Haque v. State of West Bengal, W.P. No. 246 of 1969, decided ·-f- on September 10, 1969 the nature and dual obligation of the Govern- ment and the corresponding dual right in favour of the detenu under Art. 22(5) was reiterated. The following observations of the Court in Khairul Haque's case were quoted with approval:

B '"It is implicit in the language of Art. 22 that the appro- ~ priate Government, while discharging its duty to consider the r~presentation, cannot depend upon the view of the Board on such representation. It has to consider the re- presentation on its own without being influenced by any such view of the Board. There was, therefore, no reason for th~ Government to wait for considering the petitioner's c representation until it had received the report of the Advis- ory Board. As laid d-.wn in Abdul Karim v. State of West 7 Bengal, the obligation of the appropriate Government under Art. 22(5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expre- -..,.. ssed by the Advisory Board.

The fact that Art. 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such re- presentation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that * the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." \..

F In the circumstances, there being a failure on the part of the State Government to consider the representation made by the appellant addressed to the Chief Minister without waiting for the opinion of the Advisory Board, renders the continued detention of the appellant in- valid and constitutionally impermissible.

G We have no manner of doubt that there is no explanation what- ·r ever much less any reasonable explanation for the inordinate delay in consideration of the representation made by the appellant addressed to the Chief Minister and that by itself is sufficient to invalidate the impugned order of detention. In fact, no one has filed any affidavit to explain the cause for the delay in Chief Minister's Secretariat. The H counter-affidavit filed by Shri S. V. Joshi, District Magistrate contains

MOHINUDDIN v. DISTI. MAGISTRATE (SEN, J.) 679

a bare denial in paragraph 2 that there was any unreasonable delay in A the disposal of the representation. As regards the delay in disposal of the representation in the Secretariat, he adverts in paragraph 11 to the affidavit filed by Vishwa_srao, Desk Officer, Home Department on behalf of the State Government and asserts that it reveals the different steps that were taken and in paragraph 12 he submits that the conten- tion about unreasonable delay in disposal of the representation by the B State Government was not raised in the High Court and it has been taken for the first time in this Court. Even so, the appellant having raised the ground in appeal it was the duty of the State Government to have pla_ced all the material along with the counter-affidavit. There is

- in fact no explanation offered as regards the delay in disposal cif the representation in the Secretariat. We have already extracted the rele- vant portion from the affidavit of Vishwasrao, Desk Officer. It is C

accepted that the representation made by the appellant to the Chief Minister on September 22, 1986, rorwarded by the Superintendent, Aurangabad Central Prison on the 24th, was received in the Home Department on the 26th which in its turn forwarded the same to the detaining authority i.e. the District Magistrate on the same day i.e. D 26th for his comments. The District Magistrate returned the represen- tation along with his comments dated October 3, 1986 which was re- ceived by the Government on the 6th. It is said that thereafter the representation was processed together with the report of the Advisory Board and was forwarded to the Chief Minister's Secretariat where the same was received on October 23, 1986. It is enough to say that the E explanation that the Chief Minister was "pre-occupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986" was no explanation at all why the Chief Minister did not attend to the representation made by the appellant till November 17, 1986 i.e. for a period of 25 days. There F was no reason why the representation submitted by the appellant coura not be dealt with by the Chief Minister with all reasonable promp- titude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation. In view of the wholly unexplained and unduly long delay in the disposal of the re- presentation by the State Government, the further detention of the G appellant must be held illegal and he must be set at liberty forthwith. For these reasons, the appeal must succeed and is allowed. The judgment and order passed by the High Court are set aside and the appellant is directed to be set at liberty forthwith. P.S.S. Appeal allowed. H