Holding

Inordinate delay in considering a detenu's representation under the National Security Act vitiates the detention order as it violates Article 22(5).

Summary

Piara Singh was detained under the National Security Act, 1980 and later served with a detention order under COFEPOSA. After his COFEPOSA detention was revoked, he failed to make a representation against the NSA order, believing he was only detained under COFEPOSA. He subsequently filed a representation to the Punjab Government on 24 December 1986 challenging the NSA detention; the representation was received on 14 January 1987 but was not disposed of until 26 February 1987. The Supreme Court held that such inordinate delay violated the safeguards of Article 22(5) of the Constitution and vitiated the detention order. The Court also ruled that a representation made by an advocate without a formal authority is permissible and that the dismissal of a High Court writ petition does not substitute for consideration of the representation. Consequently, the petition was allowed, the detention order was set aside, and the petitioner was ordered to be released.

Issues considered

The adequacy of the State's compliance with Article 22(5) of the Constitution in dealing with a detenu's representation under the National Security Act.
Whether a representation made by an advocate on behalf of a detenu, without explicit authority, is valid.
Whether the dismissal of a High Court writ petition can be treated as consideration of the detenu's representation.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA)s. 3(1)
National Security Act, 1980s. 12, s. 14-A, s. 3

Subjects

National Security Actpreventive detentionrepresentationArticle 22(5)inordinate delayadvocate authoritywrit of habeas corpus

Judgment

PIARA SINGH
A v.
STATE OF PUNJAB

OCTOBER 13, 1987

B [R.S. PATHAK, CJ! AND M.H. KANIA, J.]

National Security Act, 1980: Section 3-Detenu's representation
y
to Government-Duty of State to determine with utmost expedition-
Failure to do so--Vitiates detention order-Infringement of fundamen- ).

ta/ right under Article 22(5) of the Constitution-Advocate-Whether
prevented from making representation on behalf of detenu-Writ
c Petition-Dismissal by High Court-Whether ground for non-consi- f
deration by Government of detenu's representation. 1
The petitioner was detained by the Punjab Government pursuant
to an order of detention passed under sub-sections (1) and (2) of section 3
D of the National Security Act, 1980. When in jail, he was served with an
order passed under section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Act (COFEPOSA) directing his
detention.

The petitioner made a representation against his order of deten- ).
E tion nnder COFEPOSA. He"was produced before the Advisory Board.
Pursuant to Board's recommendation, his detention was revoked. He
was also produced before the same Board, being also the Advisory
Board under the National Security Act. He did not make any represen-
talion against his detention under the National Security Act, believing
that his detention was only under COFEPOSA. The Board confirmed
the detention order. On January 24, 1986 an order passed under sub- I
f
section (1) of section 12 read with section 14-A(1)(2)(c) and (d) of the f--
National Security Act, 1980, as amended, confirmed the aforesaid
order of detention and the petitioner was directed to be continued to be
detained for a period of 2 years from the date of his detention.

G The petitioner made a representation dated December 18, 1986,
through his Advocate, addressed to the President of India for the revo-
cation of his detention. On December 24, 1986, the petitioner made a
~
representation to the Government of Punjab against his detention, con-
tending that his detention was invalid as vital facts and materials that
should have influenced the minds of the declaring authority and the
H detaining authority had not been placed before them. Both these
456
PIARA SINGH v. STATE OF PUNJAB 457

representations were rejected on 26.2.1987.
A
The petitioner challenged the order of detention on various
grounds including the one that there was inordinate delay in dealing
with bis representation to the Punjab Government. It was contended
that there was no justification for the undue delay in disposing of bis
representation, which had resulted in violation of bis rights under Arti· B
cle 22(5) of the Constitution and that his continued detention was not
valid in law.

It was contended on behalf of the respondent-State that the re-
presentation was received on January 14, 1987, and it was invalid as the
Advocate who sent it bad no authority to make it and that the delay in c
'
t-- dealing with it was on account of the fact that it was made by a person
claiming to be an Advocate of the petitioner whose authority was not
checked, and that the delay bad caused no prejudice to the petitioner
because he preferred a writ petition against his detention to the High
Court which was dismissed.
D
This Court allowed the writ petition, set aside the order of deten-
lion, and directed release of the petitioner.

Giving reasons for its decision, this Court,
-'. E
HELD: 1.1 Where the liberty of a person is involved, it is the
duty of the State to determine his representation with utmost expedition

- . and deal with it continuously until a final decision is taken and com-
municated to detenu. Failure to do so vitiates the order of detention,
because it infringes the fundamental right given to every citizen under
Article 22(5) oftbe Constitution oflndia. [461F·G, 460H]
F
--\_ In the instant case the delay in dealing with repre!lentation of the
petitioner, which was admittedly received by the Government on
January 14, 1987 and rejected as late as on February 26, 1987, must be
considered as inordinate delay in dealing with the representation.
No explanation is given in the counter affidavit as to why the represen· G
talion could not have been dealt with and disposed of earlier. Hence, the
order of detention is vitiated by reason of delay in dealing with his
--+ representation. [462C·EI

Saleh Mohammad v. Union of India, [1980] 4 SCC 428 and
Harish Pahwa v. State of U.P. & Ors., (1981] 3 S.C.R. 276, relied on. H
458 SUPREME COURT REPORTS [1988) I S.C.R.

A 1.2 There is nothing in law which prevents a representation being
made by an Advocate on behalf of the detenu. If there was any diffi-
culty on that account, enquiry should have been made with the Advo-
catt! as to what was his authority to represent the detenu. No such
enquiry has been made in the present case. Thus, the fact that the
rt!presentation was made by the Advocate does not explain, and cannot
Jil: constitute any explanation for the delay in dealing with that represen-
tation. l462G-H)

1.3 No doubt the writ petition preferred by the petitioner was
dismissed but Special Leave Petition against thatdecision is pending i~
this Court. Further, at that time, the petitioner had not made represen-
tation to the State Government at all. Hence the dismissal of the writ
c petition by the High Court cannot be regarded as any substitute for
consideration of his representation by the State Government which,
unlike the Court, might be entitled to go into the factual merits of the
grounds forming the basis of detention order. [463B-C)

D Smt. Asha Keshavrao Bhosale v. Union of India & Anr., [1985) 2
SCALE 634, distinguished.

ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 30
of 1987.
).
E (Under Article 32 of the Constitution of India).

Harjinder Singh for the petitioner.

R.S. Sodhi for the Respondent.

F The Judgment of the Court was delivered by
(

)·-
KANIA, J. This is a petition under Article 32 of the Constitution
of India for a writ of habeas corpus or any other appropriate writ or
order quashing the order dated 3rd January, 1985 passed by the
Special Secretary to the Government of Punjab for detention of the
G petitioner and praying for the release of the petitioner.

By our order dated 8th May, 1987, we had held that the writ
petition succeeds for the reasons which we would give later. We had
also set aside the order of detention and directed the petitioner to be
H released. We are now giving the reasons for the said order.
PIARA SINGH v. STATE OF PUNJ~ (KANIA, J.( 459

';-< The facts necessary for disposal of the writ petition lie within a
A
fairly narrow com1mss. The petitioner was detained on 21st November,
1985 pursuant to an order of detention dated 3rd Japuary, 1985 passed
under Sub-Sections 1 & 2 of Section 3 of the National Security Act,.
1985 signed by the Special Secretary to the Government of Punjab
setting out that the President of India in exercise of the powers confer-
red by Sub-Sections (1) & (2) of Section 3 of the National Security Act, B
1985 was pleased to order that the petitioner should be detained. The
'y ground given in that order is that the petitioner is indulging in activities
prejudicial to the defence of India and the security of the State. On
17th April, 1985, the petitioner, when he was in jail, was served with
an order passed under Section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Act (referred to hereinafter as
c
'f- COFEPOSA), dated 17th April, 1985, directing his detention. The
petitioner made a representation against his order of detention under
COFEPOSA. He was produced before the Advisory Board under that
Act and pursuant to the recommendation of the Advisory Board, his
detention under COFEPOSA w;,s revoked. The petitioner was also
produced before the same Board, being also the Advisory Board D
under the National Security Act. The petitioner did not make any
representation against his detention under that Act as, according to
him, he was confused and believed that his detention was only under
COFEPOSA. It appears that the Advisory Board confirmed the order
1 of his detention. On 24th January, 1986, an order was passed by the
Under Secretary to the Government of Punjab, Home Department E
setting out that the President of India in exercise of powers conferred

- on him under Sub-Section (1) of Section 12 read with Section 14-A(l)
(2) (c) & (d) of the National Security Act, 1980 (No. 65 of 1980) as
amended confirmed the aforesaid order of detention and was pleased
to order that the petitioner would continue to be detained in the
custody of the Inspector General of Prisons, Pun jab for a period of two F
.·~ years from the date of his detention. The petitioner made a representa-
tion dated 18th December, 1986 through his Advocate addressed to
the President of India for revocation of his detention. On 24th
December, 1986 the petitioner made a representation to the Special
Secretary to the Government of Punjab, Department of Home Affair&
and Justice, against his detention. In this representation the peti- G
tioner, inter alia, contended that his detention was invalid as vital facts
and materials that should have influenced the minds of the declaring
~ authority and the detaining authority had not been placed before
them. Both the representations made by the petitioner were rejected
on 26th February, 1987. According to the respondent, the representa-
lion made to the Special Secretary, Government of Punjab was H
460 SUPREME COURT REPORTS [1988] I S.C.R.

A received on 14th January, 1987. But, according to the petitioner, it was
received by the Special Secretary on 30th December, 1986. In support
of this contention the detenu has produced an acknowledgement slip
along with a copy of his representation. We propose to proceed on the
assumption that the representation was received by the Special Sec-
retary on 14th January, 1987 because, even on that assumption, the
a petitioner, in our opinion, must succeed in the petition.

In the petition the petitioner has challenged the order of deten-
y
tion passed against him under the National Security Act on various
grounds including the ground that Section 14-A of the National Secu-
rity Act is void as violating the Constitution of India. We propose to
dispose of the petition only on one ground, namely, that there was
C inordinate delay in consideration of the representation made by the
petitioner to the Government of Punjab through Special Secretary;
and hence we do not propose to discuss the other grounds urged by the
petitioner. We may mention here that as far as representation made by
the petitioner to the Central Government by his Advocate's letter
D addressed to the President of India is concerned, we do not propose to
enter into any controversy regarding that representation as the Union
of India has not been joined as a party to the petition. The contention
of the petitioner, on the basis of which we propose to dispose of this
petition, is that he made a representation to the Government of
Punjab on 18th December, 1986. That representation, as per admis-
E sion of the Government of Punjab, was received on 14th January, 1987
and there was undue delay in disposing of that representation which
was rejected on 26th February, 1987, as aforesaid. According to the
petitioner there is no justification for this delay and on account of this
delay the rights of the petitioner under Article 22(5) of the Constitu-
tion of India have been violated and the continued detention of the
-
F petitioner is not valid in law. \
}-
Coming to the affidavit filed by Shri V.V. Chadha, Under Sec-
retary to the Government of Punjab, in this connection, we may point
out that, apart from saying that the representation made by the
petitioner as aforesaid, was received on 14th January, 1987, no expla-
<G nation whatever is given as to why it took over a month and ten days to
consider and dispose of that representation. It has been repeatedly laid
down that in a matter of detention, the representation made by the
detenu should be disposed of with utmost expedition and failure to do
so vitiates the order of detention, because it infringes the fundamental
right given to every citizen under Article 22(5) of the Constitution of
H India. In support of his arguments, learned counsel for the petitioner
PIARA SINGH v. STATE OF PUNJAB [KANIA, J.] 461

drew our attention to the decision of this Court in S4leh MohQmmed v.
A
Union of India, [1980] 4 sec 428 "(here a delay of 22 days in consider-
""' ing the representation of the detenu was held to be Inordinate and
unreasonable. It was held that this delay violated the ri~ts of the
petitioner under Article 22(5) of the Constitution of India and vitiated
the detention order. In that case the detention order was under
COFEPOSA and the detenu was arrested on 21st January, 1980. On B
20th February, 1980 the detenu made a representation to the detaining
'r authority through Superintendent of Jail. On 25th February, 1980 he
was produced before the Advisory Board. bn 10th Marcil, 1980 his
-< detention was ~onfll1lled by the State Government and on 26th March,
1980 his representation was rejected by the State Govefil!llent. In the
affidavit filed by tbe respondent in that ca,se it was contended t!iat the
representation of the detenu made on 20th February, 1980 was c
f-- received in the Home Department on 14th March, 1980. It has l]een
pointed out by this Court in that case that:-

"Tiines out of number, this Court has emphasised that
where the liberty of an individual is curtailed under a law of D
preventive detention, the representation, if any, made by
him must be attended to, dealt with and considered with
watchful care and reasonable promptitude lest the safe-
guards provided in Article 22(5) of the Constitution and
the statute concerned should be stultified and rendered
meaningless." E

It was held that the functionaries of the State were gqilty of gross
negligence in dealing with and disposing of the representation of the
detenu. The delay of about 22 days during which time the representa-
lion of the detenu remained unattended in the Office of the Suprinten-
dent of Jail or Inspector General of Prisons was to be held as inor- F
-{ dinate.

In Harish Pahwa v. State of U.P. & Ors., [1981) 3 S.C.R. 276 it
has been pointed out by this Court that it does not look with equani-
mi!y upon delays in considering the representations of detenus. Where
the liberty of a person is involved, it is the duty of the State to deter- G
mine his representations with the utmost expedition and deal with it
continuously until a final decision is taken and communicated to the
~ detenu. In that case fhe representation of the detenu was received by
the State Government on 4th June, 1980. The detention was under
COFEPOSA. Comments were called for from the Customs authorities
on 6th June, 1980 and the comments were received on 13th June, 1980. H
462 SUPREME COURT REPORTS [1988] 1 S.C.R.

On 17th June, 1980, the State Government referred the representation
A to its Law Department for is opinion which was furnished on 19th
June, 1980. The representation was rejected on 24th June, 1980. The
rejection was communicated to the jail authorities two days later. The
writ petition filed by the petitioner was dismissed by the High Court.
The aforesaid principles were reiterated by this Court on an appeal
B preferred by the detenu against the decision of the High Court. It was
held in that case that there was no explanation given by the Govern-
ment as to why no action was taken on the representation of the
detenu on 4th,. 5th and 25th June, 1980 and what consideration was
given by the Government to it from 13th June, 1980 to 16th June, 1980.
On that ground it was held that there was inordinate delay in consider-
ing the representation of the detenu and the detention became bad in
c law.

In the light of these decisions in the present case it must be held
that the delay in dealing with the representation of the petitioner,
which was admittedly received by the Government on 14th January,
D 1987 and rejected as late as on 26th February, 1987, must be con-
sidered as inordinate delay in dealing with the representation. No
explanation is given in the counter-affidavit as to why the representa-
tion could not have been dealt with and disposed of earlier, and hence
it must be held that the order of detention of the petitioner is vitiated
by reason of delay in dealing with his representation.
E
It was contended by the learned counsel for the respondent that
the representation made by the detenu to the Special Secretary,
Government of Punjab was invalid as the Advocate who sent the re-
presentation had no authority to make that representation. It was
submitted by him in the alternative that the delay in dealing with the
IF representation was on account of the fact that it was made by a person l
clhaimkeddto be the ~dvocatethof peftittihoner bunttwhtose authonb"ty wahs nodt ,, .
c ec e . 1n our view ne1 er o ese co en ions can e up e1 .
These contentions have not been taken up in the counter-affidavit and
cannot be urged merely at the hearing of the petition. There is nothing
in law which prevents a representation being made by an Advocate on
6 behalf of the detenu. If there was any difficulty on that ground, en-
quiries should have been made with the Advocate as to what was his
authority to represent the detenu, and no such enquiry has been made t-
in the present case. Thus, in the present case, the fact that the rep·
resentation was made by the Advocate does not explain the delay in
dealing with that representation and cannot constitute any explanation
H for the delay in dealing with it.
PlARA SINGH v. STATE OF PUNJAB [KANlA. J.J 463

;:... It was next sought robe contended by learned counsel for the
A
respondent that the delay in dealing with the representation had
caused no prejudice to the petitioner, because it admitted that he
preferred a writ petition against his detention to the Punjab &
Haryana High Court and that writ petition was dismissed by the High
Court. In our view this submission also cannot sustain order olf deten-
tion. It is true that the writ petition preferred by the petitioner to the B
Punjab and Haryana High Court was dismissed, but we are informed
T that a Special Leave Petition filed against that decision is pending in
this Court. Moreover at the time when the writ petition was dismissed,
~
the petitioner had not made any representation to tihe State Govern-
ment at all and hence the dismissal of his writ petition by the High
Court cannot be regarded as any substitute for <:00sideration of his
representation by the State Government wild, unlike the Court, c
~. might be entitled to go into the factual merits of the grounds forming
the basis of detention order. In support of his contention, leamed
counsel for the respondent sought to rely on the decision of this Court
in Smt. Asha Keshavrao Bhosale v. Union of India & Anr., U985l 2
SCALE 634 in which case it was held that the delay of about two D
months in disposal of the representation made by the petitioner on
behalf of the detenu to the Chief Minister against his order of deten-
tion did not vitiate the order of detention. That case, however, is of no
assistance t-0 the respondent because it turns on its own facts. A de-
tailed representation was made in that case by the Secretary, Khed
~ Taluka Maratha Seva Sangh whidt espoused the cause of the detenu E
'
and challenged the detention. That representation was received on
29th November, 1984 in the Secretariat of the Chief Minister. It was
forwarded to the Home Department on 3rd December, 1984 and dis-
posed of expeditiously, namely, on 12th December, 1984. The reje<:-
tion of that representation was communicated on 13th December,
1984. The High Court, which dismissed the petition of the detenu had F
considered the contents of both the representations and held that the
--.\ representation made by the petitioner was the second one and based
.pn the same grounds and delay in disposing of that representation did
not prejudice the case of the detention. That conclusion was confirmed
by the Supreme Court. The facts in this case are nowhere comparable
to the facts of that case, and hence the principles laid down in that case G
have no application to the case before us.

-+ It was for the aforesaid reasons that the order setting aside the
order of detention was passed by us as stated earlier.

N.P.V. Petition allowed. H