Research › Search › Judgment

Delhi High Court · body

2001 DAILYLAW 845 (DEL)

SNEH JAIN v. UNION OF INDIA

2001-03-02

Devender Gupta, Manmohan Sarin

body2001
( 1 ) PETITIONER has filed the present review petition seeking review of the judgment dated 11/10/1996, by which the; Division Bench had dismissed the Criminal Writ Petition No. 717/95. ( 2 ) PETITIONER by the said writ petition, had challenged the order of detention dated 15/9/1995, passed by the Detaining Authority under the COFEPOSA. Review is sought on the ground that the finding, namely remarks/comments of the sponsoring authority on the detenu s representation can be called for by an officer other than the detaining authority is in conflict with an earlier judgment of another Division Bench in crl. W. 326/86 dated 27/3/1987 reported at U,p. Aboobacker Vs. UOI and others (1987) 3 Reports Del. 492. ( 3 ) IN the judgment dated 11/10/1996, the plea of the petitioner that comments on the representation, could be called for only by the Detaining Authority was negatived, on the following rationale: "in our opinion, there is no rule or principle that remarks of the sponsoring authority cannot be called by any other officer other than the detaining authority. If upon receiving the representation of a detenu, one has to wait till the file reaches the detaining authority even for calling for remarks, then obviously there will be more delay in the disposal of the representation. Experience shows that there are practically no instances where the detaining authority does not seek the views of the sponsoring authority and if, with a view to shorten the delay, the remarks of the sponsoring authority in relation to the points raised in the representation are called for in advance, and the representation together with the remarks, is placed before the detaining authority, the detenu cannot, in our opinion, have any grievance. The procedure followed is more beneficial to him. If the calling for remarks - which is known as invariable practice, is to await the directions of the detaining authority - like the Lt. Governor, then there is bound to be delay in the file reaching him and then in his directions being carried out. We are of the view therefore that Chittaranjan Mitra s case is, not correctly decided and on this point, the said judgment is overruled. Governor, then there is bound to be delay in the file reaching him and then in his directions being carried out. We are of the view therefore that Chittaranjan Mitra s case is, not correctly decided and on this point, the said judgment is overruled. " ( 4 ) LEARNED counsel for the petitioner submits that the above view is in conflict with an earlier decision of the Division Bench in U. P. Aboobacker vs. UOI and others reported at 1988 34 DLT 21 , which could not be brought to the attention of the court during arguments. The Division Bench in the above cited case had held as under: "the decisions as to whether the representation should be dealt with and disposed of straightaway or needed comments and, if so, from whom, should be taken by the detaining authority to whom the representation is addressed and by no other person not even one who can also exercise powers of detention under the COFEPOSA Act. There is no doubt in the present case that the representation dated 28/5/1986 was seen by Sri Dwivedi for the first time, only on 9/7/1986 and this, in our opinion is a gross and vital delay which vitiates the detention. " ( 5 ) NOTICING the conflicting views the Division Bench vide its order dated 19/2/1999 referred the matter to Full Bench for deciding whether the view taken by the Division bench in its judgment dated 11/10/1996 was correct or whether the view taken by the division Bench earlier in U. P. Aboobacker (Supra) was correct? ( 6 ) THE matter came up before the Full Bench comprising Hon ble Mr. Justice devinder Gupta, Hon ble Mr. Justice, S. K. Mahajan and Hon ble Mr. Justice K. S. Gupta. The Full Bench vide its order dated 8/10/1999, disposed of the reference holding that the position has since been made clear by the Supreme Court in its decision in R. Paulsamy Vs. UOI reported at (1999) 4 SCC 415 . In the aforesaid decision, the Supreme Court held that comments from the Sponsoring Authority on the detenu s representation could only be called for by any of the officers, who had been empowered. The Full Bench, therefore, held that there was no need to answer the reference and posted the above review petition for disposal before the Division bench. In the aforesaid decision, the Supreme Court held that comments from the Sponsoring Authority on the detenu s representation could only be called for by any of the officers, who had been empowered. The Full Bench, therefore, held that there was no need to answer the reference and posted the above review petition for disposal before the Division bench. ( 7 ) THE records had been called for by us to ascertain as to whether the comments from the Sponsoring Authority had been called for by an empowered officer or not? In the meanwhile, the correctness of the decision in R. Paulsamy Vs. UOI (Supra) came to be considered by a three judge Bench of the Supreme Court in Kantilal Hirji shah Vs. State of Tamil Nadu and others reported at 2000 (07) SCC 6. The larger bench of the Supreme Court has. overruled the view taken in R. Paulsamy s case (supra ). The three Judge Bench has held that the comments of the Sponsoring authority can be called for by any subordinate officer, who is dealing with the representation as long as the consideration is by the person who is to dispose of the representation. The Supreme Court observed as under: "it appears to us that the very fact that on receipt of the representation a comment was sought for from the sponsoring authority by an officer who had not passed the order of detention was itself treated to be the ground for the conclusion that the representation has been dealt with in a routine manner and there was no application of mind by the competent officer. We cannot subscribe to the aforesaid conclusion expressed by the learned judges in the aforesaid case. When a representation is received in the Department of the authority concerned it is not necessary for the authority to whom the representation is made, himself to make entry in the diary and immediately deal with the matter without taking the assistance of any other subordinate officers. A detenu under Article 22 (5) has a right that his representation should be considered by the appropriate authority as expeditiously as possible and there should not be unexplained delay in the matter of disposal of the representation. A detenu under Article 22 (5) has a right that his representation should be considered by the appropriate authority as expeditiously as possible and there should not be unexplained delay in the matter of disposal of the representation. A subordinate officer callling for comments from any other authority does not, in fact, deal with the representation nor does it express any view on the representation and acts clerically only to get the necessary comments for being considered by the persons on whom the power to dispose of the representation vests. That being the position, and taking into account the system through which the Government functions, it is difficult for us to sustain the conclusion of this Court in Paulsamy case (1999) 4 SCC 415 :1999 SCC (Cri) 549) in para 6 quoted above. In our view, therefore, the fact therein receipt of the representation, the Joint Secretary of the Department called for the comments of the sponsoring authority immediately and on respect of a same had forwarded to the higher authority which was dealt with by the appriate authority, would not constitute any infringement of the constitutional rjght of the detenu under Article 22 (5) nor can it be said that the representation has been dealt with mechanically without application of mind. We therefore hold that the law laid down by this Court in the aforesaid case is not correct Applying our mind to the manner in which the representation has been dealt with by the Central Government, as indicated in the counter -. affidavit, it is difficult for us to hold that there has been any unexplained delay in disposal of the representation, and therefore the contention of the learned counsel for the detenu that the order of detention should be quashed on that score cannot be accepted. "from the foregoing, it would be seen that Supreme Court has now authoritatively endorsed the view taken by the Division Bench in its judgment dated 11/10/1996. The matter is no longer res Integra. Learned counsel for the petitioner attempted to urge in vain that in the instant case the Detaining Authority was the Lt. Governor and he was persona designata and could not be equated with State of Government and he alone could call for comments. The submission is wholly devoid of merit. In view of the judgment of the Supreme Court in Kantilal Hirji Shah Vs. Governor and he was persona designata and could not be equated with State of Government and he alone could call for comments. The submission is wholly devoid of merit. In view of the judgment of the Supreme Court in Kantilal Hirji Shah Vs. State of Tamil Nadu and others, as noticed above, we hold that no ground for review is made out and the review petition is dismissed.