Abdul Malik vs Adhikshak,Janpad Karagar BareNly & Ors.

The abovenoted three petitions raise a common question for consideration, hence, as agreed by learned Counsel, they have been heard together and arc being disposed of by a common order. Minor difference regarding certain dates, which would make no material difference, shall be indicated at the relevant place.

Petitioners are detained under Section 3(2) of the National Security Act, the detention order of the petitioner Abdul Malik is dated 1851998, the detention orders of the petitioners Abdul Khalik and Abdul Rashid have been passed on 20/2151998. The order of detention of Abdul Malik indicates three grounds of detention mentioning an incident which occurred on 2721998 in respect of which a Case Crime No. 217 of 1998 under Section 307,1.P.C was registered at Police Station Haldwani, district Nainital. The other incident is dated 1931998 in respect of which a Case Crime No. 74 of 1998 was registered at Police Station Bhojipura, district Bareilly under Sections 147,148,149, 427,307 and 302, I.P.C. The incident mentioned in ground No. 3 is dated 841998 in connection where of a Crime Case No. 351 of 1998 under Sections 147,148,149,307, 352,353, 242,224, 225, 511, 427, 504 and 506, I.P.C. was registered at Police Station Haldwani. In so far as the other two petitioners, namely, Abdul Khalid and Abdul Rashid are concerned there was an additional ground relating to an incident dated 4101995 in connection with Crime Case No. 1187 of 1995 was registered under Sections 307,506,342 and 302, I. P. C. at Police Station Haldwani, district Nainital.

Sri D.S. Mishra, learned Counsel appearing for all the petitioners has submitted that there has been inordinate delay on the part of the Central Government in disposing of the representation preferred by the petitioners, hence continued detention of the petitioners is rendered invalid.

We have heard learned Counsel for the petitioners as well as learned Counsel appearing for State of U.P. and the Union of India. We have also perused the counteraffidavits filed on behalf of the State Government and the Central Government.

For purposes of submissions made before us, a few dates will be relevant which may be indicated. Petitioner Abdul Malik was served with the order of detention dated 1851998, the same day while in jail. The detention orders of other two petitioners namely, Abdul Khalid and Abdul Rashid have been passed on 20/2151998 and served upon them on 2151998. The detention orders after having been duly approved by the State Government, their cases were referred to the Advisory Board. So far as their representations to the Central Government are concerned, the detenu Abdul Malik preferred the representation to the Central Government on 2851998. Representations of two other detenus namely, Abdul Khalid and Abdul Rashid were preferred to the Central Government on 9/6/1998. The representation preferred by Abdul Malik was received in the Ministry of Home Affairs on 1161998 and the representations of other two detenus namely, Abdul Khalid and Abdul Rashid were received on 961998. In the counteraffidavit filed on behalf of Central Government, it is indicated that the representations were immediately processed for consideration and it was found that certain vital information was necessary for further consideration, hence the same was required from the State Government through a crash wireless message dated 1561998. The message, as required, was sent by the State Government on 971998 which was received by Central Government in the Ministry of Home Affairs on 1071998 where after cases of detenus were put up before the Director of Ministry of Home Affairs on 1371998 and the Joint Secretary in the Ministry of Home Affairs considered the matter on 1471998. Their cases were put up before the Home Minister on 1471998. According to the counteraffidavit, the Home Minister himself considered the cases and rejected the representation by order dated 281998. It is further stated in the counteraffidavit that the required information became effectively available to the Central Government in the Ministry of Home Affairs only on 1071998 and excluding the holidays which have been indicated about eight, the matter was finally decided on 2898. Hence, submission is that there is no inordinate delay on the part of the Central Government in considering and disposing of the representation.

Mr. S.N. Srivastava, learned Counsel appearing for the Central Government, has submitted that utmost care was taken to dispose of the matter as early as possible and the Ministry of Home Affairs acted with utmost speed for expeditious disposal of the representation. It is further submitted that it was felt that further information was necessary for proper disposal of the representation, hence the same had to be sought from the State Government.

A perusal of the counteraffidavit filed on behalf of the State Government shows that the Central Government sent a message for the report of the Advisory Board. The State Government received the message of the Central Government on 1761998. The report of the Advisory Board was made available to the State Government on 271998. Thereafter the State Government proceeded to consider the cases of the petitioners afresh and the report of the Advisory Board was sent to the Central Government on 971998.

Learned Counsel for the petitioners submits that the hearing before the Advisory Board was fixed on 2261998 and the report was received by the State Government on 271998. It was not necessary for the Central Government to wait for the report of the Advisory Board for purposes of consideration of the representation. From the perusal of the dates indicated what clearly transpires is that on receipt of the representation of the petitioners, the Central Government sought information from the State Government on 1561998. The State Government took about 24 days in furnishing the information to the Central Government, namely, it was sent on 971998. From the counter affidavit of the State Government, as indicated above, it is clear that the Central Government had sought the report of the Advisory Board. The Advisory Board heard the matter on 2261998 and the report was made available on 271998. It is thus clear that the State Government had been waiting for the report of the Advisory Board to be sent to the Central Government as desired. So far as this aspect of the matter is concerned, we have already considered it in one of the cases decidedearlier in Habeas Corpus Writ Petition No. 21277 of 1998 connected with other writ petitions decided on December 17, 1998 Since reported in 1999(1) JIC 234 (All). In that connection, reliance had also been placed upon a decision of the Supreme Court in 1993 S.C.C. (Crl.) U26Navalshankar Ishwarlal Dave v. State of Gujarat. The representation preferred by the detenus cannot be detained for considerations waiting for the report of the Advisory Board. Learned Counsel for the Central Government submits that the Central Government had no such information that the cases of detenus have not been heard by the Advisory Board till then. In this connection, we would like to observe that if that was so, the circumstances could very well be made known to the Central Government that the matter had not yet been considered by the Advisory Board, hence the report of the Advisory Board was not in existence. The matter was kept pending waiting for the report of the Advisory Board which was yet not available since the matter was not heard by the Advisory Board till then. The delay caused by waiting for report of the Advisory Board would not fall in the category of delay duly explained. We again find that the State Government after receiving the report of the Advisory Board on 971998 preferred to consider the matter itself first and then forward the report to the Central Government only on 971998. No reason has been indicated as to why it could not be forwarded immediately on its receipt. So far as the Central Government is concerned, it is true that it has been indicated that it took about three or four days for the officers of the Ministry in processing the matter. After processing, the cases were placed before the Home Minister on 14798. It is thereafter indicated that the Home Minister rejected the representation on 281998. There is no explanation whatsoever to explain the time which has been taken in passing the order rejecting the representation. It took 18 days to consider the representation and pass the order after the matter was processed by the officers of the Ministry. In the counter affidavit, it is sought to be explained that the matter was decided within 16 days out of which few days mentioned in paragraph No. 8; according to the learned Counsel for the Central Government, should be excluded. Surprisingly, August 2, 1998 is also indicated as a holiday but we find that the order rejecting the representation is also passed on 2nd August, 1998. It is difficult to appreciate the explanation which has been given to explain the delay by excluding certain days which intermittently fell to be holidays. We hardly feel that it can be said that the delay has been explained by the Central Government. We thus conclude that inordinate delay was caused in disposing of the representation preferred by the detenus more particularly inasmuch as it took about 24 days to the State Government to furnish the information to the Central Government which was called for on 1661998 and was furnished on 971998 and then again taking 18 days to consider and pass appropriate order after the matter was processed by the officers of the Home Ministry.

In view of the discussions made above, the above noted three writ petitions are allowed holding that the continued detention of the petitioners is rendered illegal. The detenus viz. Abdul Malik, Abdul Rashid and Abdul Khalik alias Abdul Khalid shall be released forthwith unless wanted in connection with any other case. Writ petitions allowed.