Supreme Court of India
UNION OF INDIA AND ORS.versusLAISHRAM LINCOLA SINGH @ NICOLAI
- Citation
- 2008 INSC 389
- Decided
- 24 March 2008
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that there was no inordinate or unexplained delay in the disposal of the representation, rendering the High Court's order unsustainable.
Summary
The respondent was detained under Section 3(3) of the National Security Act, 1980 for a period of twelve months. He filed a writ of habeas corpus alleging an unexplained delay in the disposal of his representation made on 12 October 2005. The Guwahati High Court accepted the claim of delay and granted relief. On appeal, the Supreme Court examined the timeline of the representation, noting that the Central Government received it on 31 October, sought comments, and rejected the representation on 29 November 2005, communicating the decision on 30 November 2005. The Court held that the disposal was expeditious, that no inordinate delay existed, and that the High Court's order was unsustainable. Consequently, the High Court judgment was set aside and the appeal was partly allowed, leaving the detention order in force but noting that its period had expired, allowing the detaining authority to reconsider further detention.
Issues considered
- Whether there was an unexplained or inordinate delay in disposing of the detainee's representation under the National Security Act.
- Whether the Guwahati High Court erred in granting a writ of habeas corpus on the ground of such delay.
- Whether the detention order remains valid after the expiry of the fixed period of detention.
Legislation cited
- National Security Act, 1980s. 3(3)
Subjects
preventive detentionNational Security Acthabeas corpusrepresentation delaydetention orderSupreme Courthigh courtappeal
Judgment
[2008) 5 S.C.R. 270
A UNION OF INDIA AND ORS. ......
v. '!>-
LAISHRAM LINCOLA SINGH @ NICOLAI
(Criminal App1eal No. 519 of 2008)
MARCH 24, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] ..;.
Preventive Detention - Detention under National
Security Act- Writ Petition challenging detention on the ground
c of delay in disposal of repn9sentation of detenu - High Court
issu;ng writ of Habeas Corpus - On appeal, held: In the facts
of the case, order of High Court unsustainable - Constitution
of lnd;a, 1950 -Article 226 - Nat;onal Security Act- s. 3 (3).
Detention order was passed against the respondent
D in exercise of powers cionferred uls 3 (3) of National
Security Act. The period of detention was fixed for 12
years. Respondent filed writ petition seeking writ of
)'
' .
Habeas Corpus against the detention order primarily on
the ground that there was unexplained delay in disposing
E of the representation made by the detenu. High Court
allowed thei petition accepting the plea of delay.
In appeal to this court appellant-State contended that
there was no delay in disposing of the representation.
F Partly allowing the appeal, the Court
HELD: In the facts of lthe case, the order of the High
Court is unsustainable. The period of detention fixed by
the order 4Df detention being over, it is open to the
detaining authority to consider whether there is any need
G for detaining the respondent as the situation stands now.
[Para 8] [275-F, G]
Senthamilselvi v. State of TN. and Anr. 2006 (5) SCC
676; Vinod K. Chawla v. Union of lnd;a and Ors. 2006 (7) SCC
:
H 270
UNION OF INDIA AND ORS. v. LAISHRAM LINCOLA 271
SINGH@ NICOLAI [DR. ARIJIT PASAYAT, J.]
-+ 337 - referred to. A
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 519 of 2008.
From the final Judgment and Order dated 05.04.2006 of
the High Court of Gauhati, Gauhati in W.P. (Crl.) No. 53 of 2005. B
'
"- Vikas Singh, ASG, Abha R. Sharma and Sushma Suri for
the Appellants.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted. c
2. Challenge in this appeal is to the judgment of the
Division Bench of the Guwahati High Court, Imphal Bench
ailowing the habeas corpus petition filed by the respondent. The
habeas corpus petition was filed questioning the order of
D
detention passed by the District Magistrate, Manipur, Imphal
~· .
...
West, dated 23.9.2005 in exercise of powers conferred by sub-
section (3) of Section 3 of the National Security Act, 1980 (in
short the 'Act') read with Home Department's order No.17(1 )/
49/80-H(Pt) dated 6.9.2005, which was approved by the State
E
Government under order No.17(1 )/947/2005-H dated 5.10.2005
and again confirmed by order of State Government being
No.17(1)/947/2005-H dated 7.11.2005 fixing the period of
detention for 12 months from the date of detention. The order of
,~tention was challenged primarily on the ground that there was
unexplained delay in disposing of the representation made by F
the detenu. The High Court accepted the plea that there was an
unexplained delay.
3. Learned counsel for the appellants submitted that the
representation was made on 12.10.2005 and the Central
G
Government received the same on 31.10.2005. It immediately
wrote to the State Government to give its parawise comments.
Such comments were received on 22.11.2005 and immediately
thereafter after consideration of all relevant aspects the order
of rejection was passed on 29.11.2005 which was
H
272 SUPREME COURT REPORTS [2008] 5 S.C.R.
A communicated to the detenu on 30.11.2005.
4. It was submitted that the High Court did not even
consider thE~ explanation given by the appellants to show that
there was, in fact, no delay. No reason has been indicated by
the High Court in the impugned order to show any application
B of mind to the relevant aspect.
5. There is no appearance on behalf of respondent.
6. In Senthamilselvi v. State of TN. and Anr. (2006 (5)
sec 676) it was held as under:
c
"6. Corning to the plea that there was delay in disposal of
the representation it is to be noted that the order of
detention is dated 1.12.2005. The representation was sent
on 11.12.2005 which was received by the respondents on
15.12.2005. The details were called for on 16.12.2005
D
which were received on 20.12.2005. The file was
submitted on 21.12.2005 and dealt with by the Under
Secretary and Deputy Secretary on 22.12.2005. The
concerned Minister passed order on 22.12.2005 and the
. order of rejection which was passed on 27.12.2005 was
E issued on 28.12.2005 which was sent to the
Superintendent of the Jail where the detenu was
incarcerated, which was communicated to the detenu. It
was received by the prison authorities and it was served
on the detenu on the day it was received by the Jail
F authority. The factual scenario indicated above indicates
that the representation was dealt with utmost expedition.
There can be no hard and fast rule as to the measure of
reasonable time and each case has to be considered
from the facts of the case and if there is no negligence or
G callous inaction or avoidable red-tapism on the facts of a
case, the Court would not interfere. It needs no reiteration
that it is the duty of the Court to see that the efficacy of the
limited, yet crucial, safeguards provided in the law of
preventive detention is not lost in mechanical routine, dull
H casualness and chill indifference, on the part of the
UNION OF INDIA AND ORS. v. l.AISHRAM LINCOLA 273
SINGH @ NICOLAI [DR. ARIJIT PASAYAT, J.]
' + authorities entrusted with their application. When there is A
remissness, indifference or avoidable delay on the part of
the authority, the detention becomes vulnerable. That is
not the case at hand. It may be noted that the writ petition
was filed on 22.12.2005, even before the order of rejection
was served. That being so the detenu cannot make B
•
~· grievance that the State had not explained the position as
to how his representation was dealt with."
7. In Vinod K.Chawla v. Union of India and Ors. (2006 (7)
sec 337), it was observed as under:
c
"13. The contention raised cannot be judged by any
straitjacket formula divorced from facts. This has to be
examined with reference to the facts of each case having
regard to the volume and contents of the grounds of
detention, the documents supplied along with the grounds,
D
JI'
the inquiry to be made by the officers of different
)' .. departments, the nature of the inquiry, the time required
for examining the various pleas raised, the time required
in recording the comments by the authorities of the
department concerned, and so on.
E
14. In LM.S. Ummu Saleema v. 8.8. Gujaral (1981 (3)
sec 317) it was held that there can be no doubt that the
representation made by the detenu has to be considered
by the detaining authority with the utmost expedition but
as observed in Frances Coralie Mullin v. WC. Khambra F
(1980 (2) SCC 275) (SCC p. 279, para 5), "the time-
imperative can never be absolute or obsessive". In Madan
Lal Anand v. Union of India (1990 (1) SCC 81) the
representation dated 17-1-1989 of the detenu who was
detained under COFEPOSA was rejected after more than
G
a month on 20-2-1989. After referring to L.M.S. Ummu
Saleema it was held that the detaining authority had
explained the delay in disposal of the representation and
accordingly the order of detention cannot be faulted on
that ground. In Kamarunnissa v. Union of India (1991 (1)
H
274 SUPREME COURT REPORTS (2008] 5 S.C.R.
A sec "128) the representation made by the detenu on 18- + >
12-198'9 was rejected on 30-1-1990 and it was contended
that there was inordinate delay in consideration of the
representation. In the E!Xplanation given in the counter-
affidavit filed in reply, it was submitted that considerable
B period of time was takem by the sponsoring authority in
forwarding its comments. It was contended on behalf of
the detenu that the views of the sponsoring authority were
totally unnecessary and the time taken by that authority
could not be taken into consideration. The contention was .
c repelled by this Court and it was observed that consulting
the authority which initiated the proposal can never be
said to be an unwarranted exercise. It was further
emphasised that whether the delay in considering the
representation has been properly explained or not would
D- depend upon the facts of each case and cannot be judged
in vacuum. Similarly, in Birendra Kumar Rai v. Union of
India (1993 (1) SCC 272) the petitioner made a
represemtation against his detention on 22-12-1990 which
was rejected by the Central Government after a month on
25-1-1 B91. It was observed that the explanation offered
E for the delay in consideration of the representation was
not such from which an inference of inaction or callousness
on the part of the authorities could be inferred and
accordingly the challenge on the ground of delay was
rejected. The subsequent decisions of this Court are also
F on the same lines and we do not consider it necessary to
refer to them as the principle is well settled that there
should be no inaction or lethargy in consideration of the
representation and where there is a proper explanation
for the time taken in disposal of representation even though
G· it may be long, the continued detention of the detenu would
not be rendered illegal in any manner.
15. The grounds of detention in the present case are a
long one running into· 35 paragraphs which were
accompanied by 82 documents running into 447 pages.
H
UNION OF INDIA AND ORS. v. LAISHRAM LINCOLA 275
SINGH @ NICOLAI [DR. ARIJIT PASAYAT, J.]
+ The representation made by the appellant was also a fairly A
long one. The representation made by the appellant on
24-3-1998 was received by the Ministry on 27-3-1998.
The comments of the sponsoring authority were called on ·
30-3-1998 which were received on 17-4-1998. The
comments were placed before the Secretary (R) through 8
,. the ADG on 22-4-1998 (18th and 19th being holidays).
~
The decision of the Central Government was taken and
communicated on 29-4-1998 (25th and 26th being
holidays). The representation was also considered by the
detaining authority in the meantime and was rejected on c
21-4-1998. In the additional affidavit filed on behalf of the
sponsoring authority before the High Court, it was stated
that the representation was received by them on 2-4-1998
and the comments were dispatched on 17-4-1998. During
this period, there were holidays on 4th, 5th, 8th to 12th
D
April, and only seven working days were available. Again
.,,
,.. . there were holidays on 18th, 19th, 25th and 26th April.
Having regard to the facts and circumstances of the case,
we are clearly of the opinion that the entire time taken in
consideration and disposal of the representation made
by the appellant has been fully explained and it cannot be E
said by any stretch of imagination that there was any
inordinate delay or unexplained delay in considering the
representation made by the appellant. The challenge to
the detention order made on the ground of delay in
consideration of the representation made by the appellant F
has no substance and deserves to be rejected."
8. The order of the High Court is clearly unsustainable and
is set aside. The period of detention fixed by the order of
detention being over, it is open to the detaining authority to
G
consider whether there is any need for detaining the respondent
as the situation stands now.
9. The appeal is allowed to the aforesaid extent.
K.K.T. Appeal partly allowed.
H
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