LexGAZI KHAN @ CHOTIA versus STATE OF RAJASTHAN AND ANR.
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GAZI KHAN @ CHOTIA A 1 v. I STATE OF RAJASTHAN AND ANR. -- MAY 2, 1990 [S. RATNAVEL PANDIAN AND K. JAYACHANDRA B REDDY, JJ.] ·~ Preventive Detention: Prevention of Illicit TraJJIC in Narcotic Drugs and Psychotropic Substances Act, 1989: •••• Section 3( 1)-Detention order-Delay in disposal of representa· . tion of detenu-Validity of-Whether violation of fundamental rights- c Practice of allowing a police officer not having dealt with the case at any y" point and having no personal knowledge, to -swear counter/reply affidavits-Deprecated. Constitution of India, 1950: Article 22(5 )-Detention order- D Delay in disposal of detenu's representation-Whether violative. The appellant challenged before the High Court the order of detention passed against him under Section 3(1) of the Prevention of r Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1989, on various grounds including delay in disposal of his representation. An E affidavit was filed by a Deputy Superintendent of Police, on behalf of the respondents stating that the representation was placed before the Assistant Secretary on 19.6.1989, a report was called for from the District Magistrate, the comments, which were received by the State \ Government on I. 7.1989, were placed before the Assistant Secretary on _._,L_ 3. 7 .1989 who, in turn, submitted to the higher authorities with his note F -~ on 9. 7.1989 and the representation was rejected on ll.7.1989. The High Court dismissed the Writ Petition holding that there was no undue lethargy or indifference. In the appeal, by special leave, on behalf of the detenu, it was ~-ontended that the detenu's representation was not decided within a G reasonable time and hence the extraordinary delay of 27 days was fatal to the detention. j-- A reply was filed by the same Deputy Superintendent of Police, as Officer Incharge of the case, who filed the affidavit before the High H Court, stating that there was no delay in the consideration of the representation. 831 8'" ~~ SUPREME COURT REPORTS [1990) 2 S.C.R. A Subsequently, on the direction of the Court, an additional ' affidavit sworn by the Commissioner and Secretary (Home Depart- ment) stating that there was no inordinate delay in considering the representation and it was rejected after CIU'efnl consideration, was ,, filed. B Allowing the appeal, this Court, HELD: 1. There is no explanation for the delay from 3rd to 9th J nly, 1989 i.e. for 7 days, for the Assistant Secretary to merely pot up a note on the basis of comments of the District Magistrate. The addi- tional affidavit sworn to by the Commissioner and Secretary does not • whisper any explanation as to why such a delay of 7 days had occurred at c the hands of the Assistant Secretary. The order of detention is, there- fore, a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution oflndia. [841F-G; 842F] Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police & D Ors., [1989] 3 SCC 173; relied on. Smt. Shalini Soni v. Union of India, [1980] 4 SCC 544, referred to. 2.1 A counter affidavit shonld normally be r.Jed by the detaining ·,., ' E authority himself, but this is not a rigid or inflexible rule and, in the absence of any allegations of ma/a fide or abuse of powers of personal bias attributed to the detaining a1dhority, it may be sworn by a responsible officer who personally dealt with or processed the case or by an officer dnly authorised under the Rules of Business of the Govern- I ment concerned. However, the practice of allowing a police ollicer who ----'-- - F has not dealt with the case any point of time at any level and who in the ' very nature of the case could not have any personal knowledge of the + proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection. [836H; 837A-B; 836F-GJ G The State of Bombay v. Purushottam Jog Naik, [1952] SCR 674; Ranjit 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 r H & Ors., [1974] 4 SCC 527: Suru Mallick v. State of West Bengal, [1975] j ,,,,
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