Saldanha, J.:— The petitioner before us has assailed the order of detention dated 26-3-1992 passed by Respondent No. 1 under the provisions of the National Security Act, 1980. It is undisputed that the order of detention was served on the detenu on 3-4-1992. Against this order the detenu addressed a representation dated 15-6-1992 which was received by the Central Government on 19-6-1992. Thereafter parawise comments/details relating to the case were called for from the Detaining Authority on 24-6-1992. Reply from the State Government was received on 9-7-1992. According to the affidavit filed on behalf of the Union of India, the case of the detenu was put up before the Joint Secretary, Ministry of Home Affairs, on 10-7-1992 and he considered the same and with his comments put up the case before the Special Secretary, Ministry of Home Affairs on 10-7-1992. The Special Secretary in turn, after considering the matter put up the case before the Home Minister, Government of India on 11-7-1992. The Home Minister himself duly considered the case and rejected the representation of the detenu on 19-7-1992. This was communicated to the detenu by means of a crash wireless message on 22-7-1992 to the Superintendent, Nasik Road Central Prison, where the detenu at that time was lodged. This message was confirmed by letter dated 23-7-1992.
2. Mr. Chitnis, learned counsel appearing on behalf of the detenu sought to canvass several points before us, but the principal ground of challenge advanced before us is with regard to what he termed as “inordinate” delay on the part of the Central Government in the consideration and disposal of the representation. Mr. Chitnis's submission is that the law is now well crystallised whereby the Central Government is enjoined upon to consider the representation submitted to it with utmost expediency. Mr. Chitnis submits that this detention stands vitiated by virtue of the breach of this requirement and cannot be defended, even if one has to make allowance for the holidays which intervene, because the number of days spent by the Central Government i.e the period between 9-7-1992 when the reply was received from the Detaining Authority at Bombay and 19-7-1992 when the Home Minister rejected the representation, stands compounded by the further delay between these dates and 22-7-1992 when the rejection was finally communicated to the detenu. According to the learned Counsel, there is no explanation whatsoever on record for the time-lag during this period. He, therefore, submits that the irresistible conclusion would be that the representation was not attended to with atmost expediency. Learned counsel has criticised the approach of the authorities concerned on the ground that they have acted in a casual manner, but we are not in agreement with this contention because there is nothing on record to justify the same.
3. Unfortunately, the Central Government has once again filed the usual stereotyped Affidavit, mechanically setting out the aforesaid date and nothing else. It is incumbent on the authority, having regard to the state of the law, to indicate the precise reasons justifying why it took a full 10 days for the representation to be considered and another 3 days before the decision could be despatched. Where justification is absent the inevitable conclusion would be that the delay was unjustified, and that the authorities were dragging their feet in total disregard of the consideration and oblivious of the fact that the liberty of a citizen was at stake and time was ticking away.
4. Mr. Chitnis placed reliance on the decision of the Supreme Court in Rama Dhondu Borade v. V.K Saraf, Commissioner of Police reported in (1989) 3 SCC 173 : AIR 1989 SC 1861. The Supreme Court in that case had occasion to examine an identical question to the one before us and came to the conclusion that the number of days spent for disposal of the representation were required to be fully and properly explained by the concerned authority. It is the non-explanation of the period which renders the continuation of the detention order bad in law. In the present case, we are once again faced with an identical situation. We are, therefore, in agreement with the submission of Mr. Chitnis that the ratio of Rama Dhondu's decision would apply squarely to the facts of the present case.
5. Mr. Satpute, learned counsel appearing for the Union of India contended before us that the Court should take judicial notice of a number of factors such as the fact that the Home Minister is required to attend to pressing issues concerning the law and order, security etc. of the whole country, none of which can be side-lined. Under these circumstances, unless it is demonstrated that there was virtually an unconscionable time-lag, the Court ought not to interfere with the detention order. This submission would have been justified if in the affidavit filed on behalf of the Union of India specific reasons had been indicated for the number of days that had been taken at each stage. In the absence of any fact spelt out in the affidavit filed on behalf of authority, such as for instance, reasons why the concerned Minister or Officer was busy with other matters and if so, the exact nature of those matters, the number of representations that the Home Minister was required to deal with, the number of staff available and other cogent circumstances, this Court would have certainly afforded full consideration to the genuineness and validity of the grounds pleaded. We are conscious of the fact that one needs to be realistic while dealing with these issues and that there may be very valid, cogent and genuine explanations forthcoming. If this be the situation the authority concerned must specifically point it out on Affidavit, the main reason being that the petitioner would then be able to contest the correctness of what is stated. Asking a Court to take judicial notice in the absence of such material is a request that action be taken in a state of total vacuum and is therefore impermissible. Under these circumstances, it is inevitable that this Court will have to record that the delay both in consideration of the representation as also delay in communication of the rejection of the representation to the detenu are fatal to the continued detention of the detenu.
6. In a valiant attempt to defend the action of the Central Government, Mr. Satpute attempted to distinguish Borade's case as also a string of other decision of the Supreme Court wherein unexplained delay of what he termed as a reasonably short period” spent in considering the representation has been held to be fatal to the detention order. He stated that each of the representations submitted, which are invariably drafted by lawyers, is relatively long and that similarly the parawise comments and material forwarded by the detaining authorities also run into several pages. He advanced a strong plea that the Court must take a cognizance of the fact that from the State of Maharashtra alone over a hundred such representations are received every month which would average over five per working day. The Central Government is required to consider the representations from all over the country and in these circumstances it is essential to make due allowance for what can be physically completed within a prescribed time. He also pointed out to us that even if the concerned Secretaries were to sift the material in the first instance, that it was a legal requirement for the Minister to examine each file personally and either uphold or reject the representation. He sought to point out that it has been demonstrated in a number of cases that in order to save time the papers are often put up to the Minister who does consider them even on holidays. He, therefore, concluded that in view of all these time-limitations, that a Court ought not to hold that a total period of ten days constituted inordinate delay, particularly at times when Parliament is in session and the greater part of the working day is required to be devoted to urgent matters of State. He sought to canvass the contention that the Home Minister is not an officer of the Government set aside exclusively and especially for these functions and that these administrative duties are in addition to and apart from the heavy schedule of work that already exists. According to Mr. Satpute, there are matters of common knowledge which the Court can act on even if not specifically set out in the affidavit in reply. It is true that the law does not require of the Government and those who man it, that they set aside all important day to day business relating to the administration of the country, which is their first priority, and attend to these representations. All that is necessary is that they be attended to expeditiously and without delay which presupposes disposal within reasonable time.
7. Detention without trial is an unexceptional situation where a citizen is kept in custody in the absence of an order convicting him. Since it is his liberty that is at stake, it is a salutary requirement of law that the challenge presented by him against his detention be disposed of on a top priority basis all other considerations being secondary, for the reason that he be released forthwith in the event of his succeeding. This is the principle underlying the additional requirement that the decision be communicated with utmost expediency so that, in the event of failure, the detenu could move for legal redress through the Courts. In a given situation and on a particular set of facts it would be reasonable to hold that certain number of days for consideration of the representation and communication of the decision is justified. For that, however, the authority will have to explain in every case where such delay has occurred as to whether such delay can be reasonably justified. There can be no generalisation in matters of such importance.
8. It is in these circumstances that we hold the continued detention of the detenu to be bad in law. The petition is accordingly allowed. Rule is made absolute and it is directed that the detenu be released forthwith if not required in any other criminal case.
Petition allowed.