Criminal Write Petition No. 1292 of 1993. Case: Sadanand alias Sadu alias Sada Vasudeo Shetty Vs A. S. Samra Commissioner of police Greater Bombay. High Court of Bombay (India)
| Case Number | Criminal Write Petition No. 1292 of 1993 |
| Counsel | For Petitioner: U. N. Tripathi, Advs. and For Respondents: S. G. Page, P.P., H. V. Mehta, Advs. |
| Judges | A. C. Agarwal , J. and P. S. Patankar, J. |
| Issue | National Security Act (65 of 1980) - Sections 8, 14, 3(3); Constitution of India- Article 22(5) |
| Citation | 1994 CriLJ 2379 |
| Judgement Date | February 09, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
P. S. Patankar, J.
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This Petition under Art. 226 of the Constitution of India has been filed by the detenu challenging the order dated 16th August 1993 passed by the Commissioner of Police, Greater Bombay, under Section 3 sub-section (2) of the National Security Act, 1980. The order came to be passed against the detenu with a view to prevent him from acting in any manner prejudicial to the "maintenance of public order. The grounds of detention were served on the detenu pari passu.
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Considering the two points raised by the learned Advocate for the detenu, it is not necessary to state in detail the grounds on which the detenu came to be detained. However, in nutshell, they are as follows:-
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The ground 2 shows that the detenu is a gang leader and a weapon wielding desperado, committed heinous crimes by using weapons like swords, revolver and choppers. He has created a reign of terror in the minds of the public in the localities of Ravalpada, S.N. Dube Marg, Maratha Colony and adjoining areas of Bombay. He has a criminal record which shows he is a person of violent character and indulging in terrorist activities and in spite of various actions taken against him under the ordinary law of the land, he could not be prevented from committing such terrorising and criminal activities. It has also been stated that the detenu and his associates always move about armed with deadly weapons and do not hesitate to use the same while committing various offences like robberies, assault, extortion and criminal intimidation. Under clause 3(a) to (e), five instances of such criminal activities committed by the detenu are narrated. Clause 3 (f) mentions that confidential enquiries about the detenu disclosed that the fearstruck persons, who were victims of atrocities committed by the detenu, were afraid to lodge their complaints against him due to fear of ruthless retaliation at his hands. It has been mentioned that as the police gave assurance that their names and identity particulars shall not be disclosed and they shall not be called to give evidence against the detenu in Court, four witnesses expressed their willingness to make statements depicting the atrocities committed by the detenu. Clause 3 (f) (i) to (iv) a gist of in camera statements of the four persons is given.
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The learned Advocate for the detenu raised various points in the petition. However, he has only urged two points.''
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The first point raised is that there was delay at different stages, such as transmitting etc. the representation made by the detenu leading to the violation of constitutional mandate enshrined in clause 5 of Article 22 of the Constitution of India and hence the order of detention is invalid and vitiated. Before dealing with the factual aspect, we shall first state the law on this point. In view of the various judgements delivered by the Apex Court it is well settled and the same can be summarised as follows:
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The representation should be transmitted, considered and disposed of with due or reasonable promptitude and diligence. There should be no amount of supine indifference, slackness or callous attitude in considering the representation. The delay should be explained and should not be unreasonable. There can be no hard and fast or absolute rule in that respect, and each case has to be considered on its own facts and circumstances.
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The learned Advocate for the detenu cited four Judgements in support of his contention. They are:-
(i)1990 Cri LJ 1420: (AIR 1990 SC 1361) (SC) (Gazi Khan alias Chotia v. State of Rajasthan).
(ii) 1989 Cri LJ 1447: (AIR 1989 SC 1403) (Supreme Court) (Aslam Ahmed Zahire Ahmed Shaikh v. Union of India).
(iii) (1981) 2 SCC 709: (1981 Cri LJ 1283 (1)) (Mehrunissa v. State of Maharashtra).
(iv) 1990 Cri LJ 1507: (AIR 1990 SC 1455) (Supreme Court (Mahesh Kumar Chauhan alias Banti v. Union of India).
The learned Government Pleader cited the latest judgement of the Apex Court reported in 1992 Cri LJ 3578 -State of Tamil Nadu v. C. Subramani. It also considered the judgements in the case of Gazi Khan and Aslam Ahmed (mentioned above) cited by the learned Advocate for the detenu. The apex Court relied upon its judgement delivered by the Constitution Bench in K.N. Abdulla Kunhi and B.L. Abdul Khader v. Union of India, State of Karnataka, (1991) 1 SCC 476: (1991 Cri LJ 790) and quoted para 12 of the said judgement which dealt with the phrase 'as soon as may be' occurring in clause 5 of the Article 22 of the Constitution. The said para runs as follows:-
"The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal."
Then it was observed as follows:-
Thus the question of any period taken in dealing with the representation has to be decided in the particular facts and circumstances of each case and it cannot be determined on the basis of any rigid period of time uniformly applicable to all cases. A lee-way has to be given in considering such representation by the Government and no inference of delay leading to the violation of constitutional mandate enshrined in Clause (5) of Article 22 can be drawn unless it shows that the authorities dealing with the representation had adopted, an attitude of leisureness, supine indifference, slackness unduly protracted procrastination or callous attitude in considering such representation.
It also considered that in the case of Gazi Khan (cited supra) the Apex Court held that there was no explanation for delay from July 3 to July 9, 1989 though 7 days taken by the Assistant Secretary to the Government merely to put up a note on the basis of the comments of the District Magistrate. The Court was not satisfied in respect of such delay of 7 days which had occurred at the hands of the Assistant Secretary and inview thereof, continued detention was held to be invalid. Similarly, in the case of Aslam Ahmed (supra), the Superintendent of Central Prison, Bombay to whom the representation was handed over by the detenu on June 16, 1988 for mere onward transmission to the Central Government took a period of 7 days. The Apex Court in those circumstances held that the Superintendent of Central Prison, Bombay callously ignored and kept the representation incold storage unattended for a period of 7 days and as a result of that the representation reached the Government 11 days after it was handed over to the Jail Superintendent. In the case of Mehrunissa (supra) the question of delay arose in the following circumstances. The order of detention was dated May 16, 1980 and the representation was made by the detenu against it from Varanasi Jail which bore the date June 3, 1980. It was received by the State Government on June 4, 1980 but for 2 days no action was taken in connection with it. On June 6, 1980, comments were called for from the Customs Authorities with regard to the allegations made in the representation and such comments were received by the State Government on June 13, 1980. On June 17, 1980, the State Government referred the representation to the Law Department for its opinion which was furnished on June 19, 1980. The representation was rejected on June 24, 1980. In those circumstances, it was held that the manner in which the representation made by the detenu has been dealt with reveals a sorry state of affairs in the matter of consideration of representation made by the detenu and as there was no explanation furnished, it was held that the order of detention was vitiated. In 1990 Cri LJ 1507, in the case of Mahesh Kumar Chauhan, the representation was forwarded to the concerned sponsoring authority on 23-8-89 and the comments from the sponsoring authority were received by the Department on 11-9-l989. Absolutely no explanation for the said delay was furnished. Therefore, the Apex Court held that the Constitutional...
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