TMI Blog1990 (5) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... y such officer merit nothing but rejection. [836H; 837A-B; 836F-G] The State of Bombay v. Purushottam Jog Naik, [1952] SCR 674; Ran]it Dam v. State of West Bengal, [1972] 2 SCC 516; Shaik Hanifv. State of West Bengal, [1974] 1 SCC 637; J.N. Roy v. State of West Bengal, [1973] SCC (Cri) 123; Bhut Nath Mete v. State of West Bengal, [1974] 1 SCC 645 at page 658; Asgar Ali v. District Magistrate Burdwan Ors., [1974] 4 SCC 527: Suru Mallick v. State of West Bengal, [1975] 4 SCC 470; Gulab Mehra v. State of U.P. Ors., [19881 ] SCR 126; State of Gujarat v. Sunil Fulchand Shah Anr., [1988] 1 SCC 600 and Madan Lal Anand v. Union of India, [1990] 1 SCC 81, referred to. In the instant case, the reply affidavit and the addi- tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time. In fact, he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse- quent proceedings have been dealt with by the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a statement before the Customs Officer admit- ting his involvement in smuggling of readymade garments and bides. He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act. But since no evidence was available incriminating the detenu with those offences no action could be taken. Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code. The detaining authority on the above materials placed before him has passed this impugned order. The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration. Hence this appeal. The learned counsel appearing on behalf of the appel- lant, raised several contentions, the main thrust of which being that the representation made by the detenu was not decided within. a reasonable time and hence the delay is fatal to the detention. This point has been taken even before the High Court. But the High Court accepting the explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining authority, namely, the State Government as well the authorities who dealt with the representation, namely, the Assistant Secretary and the Special Secretary (Home Department). Finally, in regard to the delay in the disposal of the representation he states in para 7 of the said affi- davit thus: ..... The delay has occasioned not by lack of deligence or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority. In this connection, we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2. After the judgment was reserved, we after going through the papers directed the matter to be reported for further hearing. Accordingly the matter was listed on 17.4.1990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin- tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his con- duct and act and the Home Secretary's affidavit was regarded as sufficient in the particular case, then that would con- stitute legally sufficient proof. But whether that would be enough in any given case, or whether the best evidence rule should be applied in strictness in that particular case, must necessarily depend upon its facts. In the present case, there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day. But we do not intend to enter into the merits. All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida- vit from the Minister in charge of the department is indis- pensable in all such cases, then they went too far. In Ranjit Dam v. State of West Bengal, [1972] 2 SCC 5 16 the counter affidavit was filed by the Assistant Secretary, Home (Special) Department, who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board. This Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy. Why is an affidavit then needed at all? The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre-emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit. The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of adminis- tration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit. The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par- ticipated in the process of approval by Government-not one who, long later, reads old files and gives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future. Ray, J. speaking for the Bench while setting aside the order of detention held thus: This clearly goes to show that the Sub-inspector has arro- gated to himself the knowledge about the subjective satis- faction of the District Magistrate on whom the power is conferred by the Act. The District Magistrate, the detaining authority in this case has not chosen to file his affidavit. The affidavit-in-opposition filed by the Station Officer of Police implies that he has access to the file of the Dis- trict Magistrate or he influenced the decision of the Dis- trict Magistrate for making the detention order. Again in State of Gujarat v. Sunil Fulchand Shah Anr., [1988] 1 SCC 600, accepting a further affidavit of the Deputy Secretary (Home Department), this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally. However, the Court said: It is true that in a case where a point as mentioned above arises the detaining authority should person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Police Ors., [1989] 3 SCC 173 to which decision one of us (Ratnavel Pandian, J.) was a party. In that decision after referring to various decisions of this Court including Smt. Shalini Soni v. Union of India. [ 1980] 4 SCC 544 the following proposition was laid down: The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for- wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona- ble dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob- served in breach, it would amount to negation of the consti- tutional obligation rendering breach would defeat the very concept of liberty--the highly cherished right--which is enshrined in Article 21 of the Constitution. However, in the same decision it has been pointed out that what is reasonable dispatch depends on the fact ..... 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