Ashwani Kumar alias Soni vs Superintendent District Jail and Others

R.R.K. Trivedi and R.K. Singh, JJ.—This petition has been filed challenging the order dated 23.12.1998. passed by Respondent No. 2, District Magistrate, Muzaffarnagar, u/s 3(2) of National Security Act detaining the Petitioner under the Act. The Petitioner has also challenged the continued detention under the impugned order on the ground of delay in deciding his representation by the Central Government.

Learned Counsel for the Petitioner has submitted that the Petitioner had submitted his representation on 29.12.1998. This representation was received by the Central Government on 4.1.1999 through District Magistrate. The representation was processed and certain information was required from the State Government vide a crash wireless message dated 8.1.1999. The information was received from the State Government on 28.1.1999. Thereafter, Director, Ministry of Home Affairs considered the representation of the Petitioner on 1.2.1999 and put up the same with his comments before the Joint Secretary, Ministry of Home Affairs on 2.2.1999. The Joint Secretary, Ministry of Home Affairs in his turn considered the representation of the Petitioner and put up the same with his comments before the Home Minister on 2.2.1999. The representation was rejected by the Home Minister on 8.2.1999.

Referring the counter-affidavit filed by R.A. Khan on behalf of State Government, Respondent No. 3, learned Counsel for the Petitioner has submitted that the Central Government in fact vide a crash wireless message dated 8.1.1999, asked for the opinion of the Advisory Board. The State Government however, by a Radiogram dated 12.1.1999, informed that the report of the Advisory Board has not as yet been received, hence it cannot be made available. The report of the Advisory Board dated 27.1.1999 was received on the same day and thereafter it was sent by the State Government to the Central Government on 27.1.1999. Learned Counsel has submitted that if the report of the Advisory Board was not available the Central Government was not justified in postponing the consideration of the representation of the Petitioner and the delay after 12.1.1999 upto 1.2.1999 is unjustified and the representation of the Petitioner could have been decided much earlier. For this submission, learned Counsel has placed reliance in the judgment of this Court in the case of habeas corpus writ petition No. 21277 of 1998. Pappu alias Ausan Singh v. Superintendent, District Jail, Mainpuri and Ors. decided on 17.12.1998 1999 JIC 234.

The second submission of the learned Counsel for the Petitioner is that the representation of the Petitioner complete with all material and comments of the authorities was placed before the Home Minister on 2.2.1999. It was rejected on 8.2.1999 i.e., after six days. It has been submitted that in para 8 of the counter-affidavit, it has been stated that 6th and 7th February. 1999 were holidays. Such explanation has been disapproved by this Court in several cases and thus the delay caused at the stage of Home Minister remains unexplained and the Petitioner�s continued detention has been rendered illegal and he is entitled for release. For this submission reliance has been placed in the case of Rajammal Vs. State of Tamil Nadu and Another, .

Sri S.N. Srivastava. learned Counsel appearing for Respondent No. 4 submitted that the opinion of the Advisory Board rightly required by the Respondent No. 4 for his consideration before deciding the representation. It has also been submitted that there is no provision in the Act which prohibits Central Government from considering the opinion of Advisory Board before deciding the representation of the Petitioner. Learned Counsel has submitted that otherwise also the Central Government was justified in awaiting for the report of the Advisory Board as in case the opinion considered would have been in favour of the Petitioner, it would not be necessary for Central Government to decide the representation at all. Sri Srivastava has also submitted that the delay before the Home Minister has been explained and it is not clear that the representation was considered and decided promptly. Such delay of two days cannot be taken to be unreasonable.

Sri Mahendra Pratap, learned A.G.A. appearing for the State of U.P. also submitted that there is no delay in deciding the representation of the Petitioner by the State Government. It was rejected on 2.1.1999 and the delay on the part of the Central Government has been sufficiently explained.

We have considered the submission of the learned Counsel for the parties. This Court in case of Pappu alias Ausan Singh (supra) while dealing with the question whether the Central Government could postpone the consideration of the representation of detenu on the ground that the report of the Advisory Board is not available expressed the legal position in following words:

As in the present case we are definitely of the view that the Central Government or the State Government has to decide the representation of the detenu irrespective of the fact as to whether the Advisory Board has already heard and decided the matter and has submitted its report or not. The authority concerned, namely, the State Government or the Central Government has not to wait for the result of the hearing before the Advisory Board. It must consider the representation on its own merits without waiting for Advisory Board to decide the matter and wait for its report. The Central Government wrongly waited for the report of the Advisory Board to be furnished to it by the State Government. Thus, the reason which has been put forward to explain the delay is neither valid nor cogent. The representation is undoubtedly to be decided at the earliest. Had the Central Government not asked for and waited for the report of the Advisory Board, there seems to be no reason that it would have certainly decided the representations earlier. Postponing the consideration of the representations for a reason not legally admissible will in no way explain, the delay. The Central Government gets the report of the Advisory Board after about three weeks of receipt of the representations of the detenu. Waiting of this period could be avoided.

Coming to the facts of the present case it is not disputed that the Central Government asked for the report of the Advisory Board by a wireless message dated 8.1.1999. Though in para 6 of the counter-affidavit filed by Bina Prasad it has not been specifically mentioned that the opinion of the Advisory Board was called for from the State Government, but, from para 4 of the counter-affidavit filed by R.A. Khan on behalf of State Government it is clear that the Central Government on 8.1.1999 had asked for the opinion of the Advisory Board. The relevant extract of para 4 of the counter-affidavit filed by R.A. Khan is being reproduced below:

It is further stated that the Government of India vide their radiogram message dated 8.1.1999 asked for the opinion of Advisory Board in the case of Petitioner. The above message received by section concerned of the State Government on 9.1.1999. Since the Advisory Board had not made its report available till then, hence Government of India was informed accordingly through radiogram dated 12.1.1999. The report of Advisory Board was received by the State Government through Registrar, Advisory Board letter dated 25.1.1999 on 25.1.1999. Hence a copy of detailed report of Advisory Board was sent to Government of India by the State Government through radiogram dated 27.1.1999.

In para 7 of the counter-affidavit filed by Bina Prasad on behalf of Central Government it has been clearly admitted that the required information was received by the Central Government in the Ministry of Home Affairs on 28.1.1999 vide the State Government''s Radiogram dated 27.1.1999. Thus, from a perusal of two counter-affidavits filed on behalf of Central Government and the State Government it is clear that the consideration of the representation of the Petitioner was postponed by the Central Government even after receipt of the information from State Government and that report of the Advisory Board is not available. Thus, we are of the opinion that the delay for the period 12.1.1999 to 1.2.1999 without during which consideration of the representation of the Petitioner was postponed has not been explained, and the continued detention of the Petitioner was rendered illegal.

The present case is squarely covered by the aforesaid judgment of this Court in case of Pappu alias Ausan Singh (supra).

Coming to the delay at the stage of the Home Minister, we are of the opinion that the delay of six days at the stage of Home Minister has also not been explained. This Court in a number of cases has already observed that the explanation based on intermittent holidays in between two days cannot be accepted as a good explanation. The representation was put up before the Home Minister on 2.2.1999, 6th February, 1999 was holiday on account of Saturday and 7th February, 1999 was holiday on account of Sunday. The Central Government was under obligation to explain as to why the representation could not be considered on 2, 3, 4 and 5.2.1999. There is nothing on record about these four days. The representation was placed before the Home Minister complete with all materials and comments of the subordinate authorities it could be decided within one or two days. Thus, this delay also remained unexplained and the case is fully covered by the judgment of Hon''ble Supreme Court in case of Rajammal (supra).

For the reasons stated above, this petition is allowed. The continued detention of the Petitioner has been found illegal. The Respondents are directed to set the Petitioner at liberty forthwith, unless his detention is required in any other case.