VIJAY KUMAR v. STATE OF J & K & OTHERS

Citation: [1982] 3 S.C.R. 522

Court: Supreme Court of India

Bench: D.A. DESAI, BAHARUL ISLAM

Judgment text

VIJAY KUMAR v. STATE OF J & K & OTHERS March 17, 1982 [D. A. DESAI AND BAHARUL {SLAM, JJ. ) Jammu & Kashmir Public Safety Act, 1978~Section 13(1)-Detaining _authprity must gi¥t the dttenu earliest opportunity of making reprtsentation- Forwarding detenu's representation to Goternment-Jail authorities-Mere channel of commqnication-Delay in transit-No excuse for delay in dealing with representation-Unexplained delay-Invalidates ·order ofdetention. The petitioner has arrested on June 26, 1981 under the Enemy Agent Ordinance. The Chief Judicial Magistrate rejected his application for bail on the ground that he had no jurisdiction to try him. Tho Addi. Sessions Judge rejected his bail application on the ground that as he was by then ordered to be detained under the J & K Public Safety Act tho bail application has become infructuous. The detention order dated July 11, 1981 was served on the detenue in Jail on July 15, 1981.

His representation dated July 29, 1981 was forwarded to the State Government on July 29. 1981 and simultaneously a wireless message was sent"on the same day. The representation was received by the Government on August 12, 1981. After investigation. the file was put up to tho Chief Minister on August 28, 1981 for approval. The Chief Minister rejected the representation on August 31, 1981 which Was communicated to the petitioner in jail on Septem~ ber 1, 1981. The detenu's case was referred to the Advisory Board on August 3, 1981. Its report was submitted on September 4, 1981. In this petition under art. 32 of the Constitution it was contended before this Court on behalf of the petitioner that as section 13 (1) of the Jammu & Kashmir Public S esai, J. ) 531 • Jllll)mu, Incharge Central Jail, Jammu who has filed his affidavit dated February 6, 1982, has admitted that the detenu submitted his represtntation addressed to the Secretary to the Government, Home Department, on July 29, 1981.

He proceeds tp assert that the said representation in original was forwarded by post to the Government in Srinagar vide his office No. 2595 dated __, July 29, 1981. He further adds that a wireless message No. 2596 dated July 29, 1981, was al~o sent to the Government to intimate that the representation of the detenu had been forwarded to the 'Government for appropriate action. Postal communication from Jammu to Srinagar hardly takes two days unless it is pointed out that there was some break down of communication. Nothing to that effect was brought to our notice. Now, Shri Salathia has stated In his counter affidavit that as no representation was received wireless message was sent on August 6, 1981, making reference to the wireless communication from the Superintendent of Jail. that the representation referred to in the wireless message of the Jail Superintendent bas still not been received at Srinagar.

He requested the Superintendent to send a duplicate copy of the same by air consignment, and gave a further direction that in future all such communications should be sent through air consignment. Be that as it may, be says that the representation was received in the office on August 12, 1981. The comments from S. P. , C. l. D. , Counter Intelligence were called for on August 14, 1981. He. does not state the date on which they were received but be says that the case was examined and processed on August 24, 1981 i~ the office and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28, 1981, and the Chief Minister (Home) rejected the representation on August 31, 1981, and the facto( rejection of the representation was communicated to the detenu on September 1, 1981. There arc two time lags which may De noticed.

Representation admittedly handed in the Superintendellt of Jail on July 29, 1981 to at Jammu reached Srinagar, the summer capital of the State on August 12, 1981, which shows a time lag of 14 days. The second time ·lag is, from our point of view,. more glaring. Even though the concerned office was made aware of the fact by the wireless message of the Superintendent of Jail, Jammu, dated July 29, 1981, that a representation of the detenu has been sent by post, the· first query about its non. receipt came as per the wireless message dated August 6, 1981. That can be overlooked, but it has one important message. The --" concerned office was aware of the fact that a representation . has 532 StJPIU! Mll c:OtJRT IU! MR1'S ,. [I§81] 3s. c. R. already been made and a duplicate was sent for. With the background of this knowledge trace the movement of the representation from the date of its admitted receipt being· Augu5t 12, 1981.

I(the representation was received on August 12, 1981, and the same office dis~osed it of on August 31, 1981, there has been a time lag of 19 days and the explanation in that behalf in the affidavit of Shri Salathia is far from convincing. In . our opinion, in the facts of this case this delay, apart from being inordinate, is not explained on any convincing grounds. In Khudi Ram Das v. State of West Bengal,(') this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to cbnsider the representation of the detenu as early as possible.

Thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, there-· fore, there would be contravention of section 13 of the Act which would result in the invalidation of the order. These are the reasons which had prompted us to quash and set aside the detention order. E. P. B. R. Petition allowed•. (1) [197S] 2 s. c. c. 81.