Orissa High CourtGouranga Alias Goura Jena vs State Of Orissa And Ors. on 17 January, 1986Equivalent citations: 1987CRILJ624Author:G.B. PatnaikBench:G.B. PatnaikORDER
 

G.B. Patnaik, J.1. This is a detenu's application for the second time in this Court for issue of a writ of habeas corpus challenging the order of detention, his first application having been rejected by this Court on 16-8-1985.2. The petitioner has been detained pursuant to an order UnderSection 3(3)of the National Security Act (hereinafter referred to as the "Act") passed by the District Magistrate, Puri, on 25-3-1985 and the grounds of detention were communicated to him on 28-3-1985. He had made a representation to the State Government on 9-4-1985 and the decision of the Government rejecting the same was passed on 30-4-1985. The detenu thereafter preferred a writ petition in O.J.C, No. 1174 of 1985 challenging the legality of his detention and this Court by judgment dt. 16-8-1985 dismissed the said application. The decision of this Court in the aforesaid case has been reported in (1985) 60 Cut LT 317, (Gouranga @Goura Jena v. State of Orissa). The present application was filed on 8-11-1985.3. Mr. Pasayat, the learned Counsel for the petitioner, raises two contentions at the time of hearing. According to Mr. Pasayat, the State Government approved the order of detention in accordance with Sub-section (4) ofSection 3of the Act on 6-4-1985 and reported the said fact to the Central Government on the same date. The Central Government not having paid any attention to the said report has failed in its duty and there has been an infraction of Sub-section (5) ofSection 3of the Act and on this ground the detenu is entitled to be released. The learned Counsel for the petitioner further submits that there has been an infraction of the mandatory requirements of Sub-section (5) ofSection 3inasmuch as the fact of approval has not reached the Central Government within seven days from the date of approval and, therefore, the detention of the detenu must be held to be illegal.4. In the counter-affidavit filed by Shri V. K. Sethi, Desk Officer of the Ministry of Home Affairs, Government of India, it has been categorically stated that the report of the State Government dt. 6th of April, 1985, was received in the Ministry of Home Affairs in the Central Government on 1 lth of April, 1985 and the same was immediately attended to. As the grounds of detention were in Oriya language, an English version of the same was obtained and after consideration of all materials, the Central Government decided that there was no necessity to interfere with the order of approval passed by the State Government and this decision was taken on 1-5-1985.5. In view of the aforesaid assertion in the counter-affidavit filed by the Union Government, there is no substance in the contention of Mr. Pasayat, the learned Counsel for the petitioner that there has been an infraction of Sub-section (5) ofSection 3of the Act The order of detention was approved by the State Government on 6-4-1985 and the fact of approval has been reported to the Central Government on the same date which has been received by the Central Government on 11-4-1985. Thus, the fact of approval must he held to have been reported to the Central Government within seven days from the date of approval as required under Sub-section  (5) ofSection 3of the Act and consequently there cannot he said to have been any infraction of the provisions of Sub-section  (5) ofSection 3of the Act.6. As regards the other submission of Mr. Pasayat, the counter-affidavit filed on behalf of the Union Government squarely answers the same. As has been stated in the counter-affidavit, the Central Government on receiving the report paid due attention to the same and the competent authority has ultimately taken the decision that there is no ground to interfere with the order of approval passed by the State Government.7. Mr. Pasayat, the learned Counsel for the petitioner, then urges that the Central Government has not acted with due diligence in not attending to the report sent by the State Government with reasonable expedition and sat over the matter for about twenty days. The Central Government, therefore, has failed in its duty and the basic purpose of sending a report of approval to the Union Government has been frustrated and thus the constitutional right of the detenu has been infringed. According to the learned Counsel, the detenu is entitled to be released on this score.In support of the aforesaid contention, the learned Counsel places reliance on the decision of the Supreme Court in the case ofSabir Ahmed v. Union of India, wherein a pari materia provision under theConservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was considered. After going through the aforesaid decision,.we are of the opinion thatthe said decisionhas no application to the facts and circumstances of the present case. In that case, an application by the detenu for revocation was made UnderSection 11of the said Act on 19-11-1979 and till the habeas corpus petition was moved in the Supreme Court no action had been taken by the Central Government. In those facts the Supreme Court held that since a representation made by the detenu to the Central Government had been ignored and left unattended for a period of about four months, the detention could not be justified as being according to procedure prescribed by law.The Supreme Court relied upon its earlier decision in the case ofTara Chand v. State of Rajasthan, wherein Fazal Ali, J., speaking for the Court had observed:....S. 11(1)of COFEPOSA Act clearly enjoins that the Central Government may revoke or modify an order passed by the State Government............Thus, when once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions ofArticle 22(5)so as to render the detention unconstitutional and void....In the present case, from the affidavit filed by the Central Government, we find that the report of approval by the State Government together with the grounds on which the order had been made and some other documents having a direct bearing on the necessity for the order was duly received by the Central Government on 11-4-1985. The competent authority immediately applied his mind but as the documents were in Oriya, the English version of the same was obtained whereafter the report and all other materials were considered and finally the decision was taken on 1-5-1985 to the effect that there was no necessity to intef ere with the order of approval passed by the Central Government. In the circumstances, it cannot be said that there was any negligence, callous inaction, avoidable red-tapism or unduly protracted procrastination in the matter of consideration of the report by the Central Government. It is no doubt true that the Act casts duty on the CentFal Government to consider the report of the State Government received under Sub-section  (5) ofSection 3of the Act with reasonable expedition, but neither the Constitution nor the Act expressly provides for any time limit for consideration of the same. The constitutional requirement of expeditious consideration has been spelt out by the Supreme Court from the language ofArticle 22(5)of the Constitution. Whether in a given case the Central Government has considered the report with reasonable dispatch must necessarily depend on the facts and circumstances of that case, as it is not possible to lay down any rigid period of time uniformaily applicable to all cases.The Court, therefore, in each case has to consider on the available materials if there has been any unreasonably long delay in the matter and whether the explanation offered by the appropriate authority for such delay can be accepted or not. Considering the present case from the aforesaid standpoint, we do not find any force in the contention of Mr. Pasayat that there has been undue delay in attending to the report received from the State Government UnderSection 3(5)of the Act. Our aforesaid conclusion gets support from a series of decisions of the Supreme Court. (SeeSk. Hasan Ali v. State of West Bengal;Babul Mitra v. State of West Bengal;Nagendra Nath Mondal v. State of West Bengal1972 SCC (Cri) 227 : 1972 Cri LJ 482 and Deonarayan Mondal v. State of West Bengal 1973 SCC (Cri) 252 : 1973 Cri LJ 1150).8. In the ultimate result, therefore, we find no merits in this application which is  accordingly dismissed.B.N. Misra, J.9. I agree.