Atikur Rahaman alias Atiq Kirana vs Union of India and Others

Vinod Prasad, J.—The detenu Petitioner Atikur Rahaman alias Atiq Kirana has challenged his detention u/s 3(3) of the National Security Act, 1980 (hereinafter referred to as the Act), passed by the Detaining Authority / District Magistrate, Allahabad, Respondent No. 3, on 24.10.2008 (Annexure-1) to this habeas corpus writ petition.

According to Annexure-2, which are the grounds of detention, it is stated that on an information received by S.O. Kareli, he raided the house of Liyakat Khan on 20.9.2008 alongwith police force. On the second floor of the house, the said S. O. pushed open the door of a room and found the Petitioner alongwith Shamsul Haq, Satish Sharma and Shams-A-Tabraj alias Sameer present inside it. Shamsul Haq was sitting in front of a computer and was counting counterfeit currency notes of Rs. one thousand (Rs. 1,000). Satish Sharma was operating the said computer. The aforesaid three persons made a vain attempt to escape from the room but were apprehended by the raiding police party. Personal search of each of those apprehended accused got recovered, from the possession of the Petitioner, 50 counterfeit currency notes of Rs. 500 denomination from the left pocket and 20 genuine currency notes of Rs. 100 from the right pocket of his kurta. From the possession of Shamsul Haq, 50 counterfeit currency notes of Rs. 1,000 denomination were recovered. Recovery of two fake currency notes of Rs. 1,000, which were being printed on the computer, 20 fake vehicle insurance certificates, 732 plain vehicle insurance forms, four fake Bank papers of Canara Bank were made from Satish Sharma. From beneath the table, two vehicle registration plates with inscribed numbers RJ 14 UB 2012 were recovered. From the possession of Shams-A-Tabraj alias Sameer, 100 currency notes of Rs. 500 denomination were recovered. On interrogation by the police co-accused Shamsul Haq disclosed that they import fake currency notes and circulate it in the market with the help of their own boys and other accused persons. He also informed that when his business started flourishing then he started scanning, printing and circulating the fake currency notes with the help of Satish Sharma. Shamsul Haq further disclosed that counterfeit currency notes were circulated with the help of Firoz Ansari alias Gullu and Jaanu. Further disclosures by him revealed that the vehicles parked in garage on the ground floor plied by Satish Sharma and Samir were stolen ones and so were the motorcycles of Gullu and Jaanu. All the recovered articles were seized by the raiding party. The disclosures made above facilitated recovery of Motorcycles No. U.P. 70 AJ-8268, Hero Honda Splendour Motorcycle No. U.P. 70 AE 1333 and motorcycle No. U.P. 70 A.M. 3579, plied by the Petitioner were also seized by the police u/s 207 of Motor Vehicles Act and were taken in possession. Thereafter on the disclosed information, the raiding party raided Munna Colony, Gaus Nagar and apprehended Firoz Ansari alias Gullu and Jaanu alongwith their motorcycles numbers U.P. 70 AE 4175 and 702-9013 at 7.15 p.m. Personal search of Firoz Ansari alias Gullu got recovered, from the pocket of the shirt, ten fake currency notes of Rs. 1,000 denomination, counterfeit currency notes of Rs. 100. From the possession of Mohammad Yusuf alias Jaanu, from his pant pockets, seven fake currency notes of Rs. 1,000 denomination, 28 counterfeit currency notes of Rs. 100 denomination were recovered. From his possession a vehicle registration certificate was also recovered, which was alleged to be forged by Satish Sharma. All the recovered fake currency notes and vehicles were seized and sealed by the raiding party. In respect of the committed offences, F.I.R. of Crime No. 156 of 2008, for offences under Sections 418, 420, 467, 468, 472 and 489, C, D, E, F, I.P.C. and Crime No. Nil of 2008 u/s 41/411, I.P.C. were registered at P.S. Kareli, district Allahabad.

All the accused persons were arrested and incarcerated in Central Jail, Naini by the police. Recovered counterfeit currency notes were got checked from Reserve Bank of India, Kanpur Nagar, which established that the recovered currency notes were counterfeited. Investigation of the registered crime concluded in laying down a charge-sheet against all the accused persons in the appropriate Court.

District Magistrate, Allahabad/ Detaining Authority, Respondent No. 3, was of the opinion that the activities of the detenu Petitioner and his associates were detrimental to the social and economic conditions of the society and of the country and that the accused persons were indulging in activities prejudicial to the maintenance of essential supplies to the community. Because of forging, printing, circulation and floating of fake currency notes, an atmosphere of terror and suspicion engulfed the society on and around Allahabad district. Further the activity was in breach of Ordinance No. 11-15011/ 1/82-IS/DO-11 dated 8.2.1982 issued by the Government. Detaining Authority was also of the view that the activity of the detenu Petitioner was detrimental for maintenance of essential supplies to the community regarding which news items were also published in the daily news papers. The society was deterred by use of fake currency notes and the fiscal condition of the society was being deteriorated. Further, being of the opinion that, albeit, the Petitioner was lodged in Central Jail, Naini and though his bail application had already been rejected by Sessions Judge, Allahabad on 17.10.2008, yet his pairokars and advocate had moved his bail application before High Court, Allahabad for getting him released on bail and the chances of detenu being released on bail in near future were imminent and plausible, and since the District Magistrate/ Detaining Authority also apprehended that, after being released on bail, the Petitioner will indulge in recurrence of his illegal activities of indulging in the racket of fake currency notes that the District Magistrate became subjectively satisfied that there was good reasons for him to detain the Petitioner under the Act wielding his power u/s 3(3) of the Act.

On above grounds and reasonings, with the avowed object, to stop the Petitioner from indulging into anti-national and anti-social activities, which were detrimental for maintenance of essential supplies to the community, that the District Magistrate, Allahabad ordered the detention of the Petitioner u/s 3(3) of the Act on 24.10.2008, vide Annexure-1, to this habeas corpus petition, which order of detention, is now under challenge before us.

Counter-affidavits have been filed by all the Respondents in this petition to which rejoinder-affidavits have also been filed.

According to the averments by the Detaining Authority, in his counter-affidavit, he had considered the activities of the detenu Petitioner and was subjectively satisfied that those activities were detrimental and prejudicial to the maintenance of supplies and services essential to the community and therefore he had detained the Petitioner under the Act in a legal and proper manner. District Magistrate, Allahabad has further averred that the State Government had approved the detention order, u/s 3(4) of the Act on 31.10.2008, which approval was communicated to the detenu Petitioner vide T.P. Message dated 3.11.2008. Further, the detention order and the grounds thereof were served to the Petitioner inside Central Jail, Naini on the same day (24.10.2008). Detenu was also informed regarding his rights to make representations to various authorities and the manner in which such representations had to be made.

The detenu Petitioner, after being served with the detention order and the grounds thereof, made a representation, on 6.11.2008, to the Respondent authorities which was received in the office of the Detaining Authority the same day. District Magistrate called for comments from the sponsoring authorities (Police) which was submitted to him on 10.11.2008. Thereafter Detaining Authority prepared his parawise comments on the representation and dispatched both to the Central and State Governments on 10.11.2008 itself. Central Government was communicated through speed post while State Government was communicated through special messenger. Detaining authority, on his part rejected detenu''s representation on 10.11.2008 itself and, through jail authorities, the detenu was also informed accordingly.

On 27.10.2008, the State Government received the detention order alongwith grounds and connected papers thereof, dispatched by the District Magistrate and vide it''s order dated 31.10.2008, it approved the detention order in compliance with Section 3(4) of the Act which approval was also communicated to the detenu, through radiogram and letter both dated 3.11.2008, through district authorities. For observing Section 3(5) of the Act, State Government forwarded all those documents to the Central Government, on 3.11.2008, by speed post.

Detenu''s representation dated 6.11.2008 alongwith parawise comments of the District Magistrate, Allahabad, which was sent to the State Government on 10.11.2008, was received to it on 12.11.2008. The State Government dispatched the representation and parawise comments to the Advisory Board and to the Central Government vide two separate letters on 12.11.2008. The following day was a holiday being Guru Nanak Jayanti and therefore, the concerned section of the State Government examined detenu''s representation on 14.11.2008 and prepared detailed notes. The same day it was examined by Under Secretary (Home and Confidential, Government of U. P.), Special Secretary and Secretary and thereafter it was submitted to the higher authorities for final orders. 15th and 16th November, 2008, were holidays and therefore, the State Government, after due consideration of the Petitioner''s case, rejected his representation on 17.11.2008, which rejection order was communicated to the Petitioner through State Government radiogram dated 18.11.2008.

The case of the detenu Petitioner was also forwarded to the Advisory Board on 3.11.2008. Advisory Board informed the State Government that it will consider Petitioner''s case on 24.11.2008. Detenu Petitioner was accordingly informed and he personally presented himself before the Advisory Board at the time of hearing. The Advisory Board opined that there were sufficient reasons to detain the Petitioner and therefore it forwarded it''s report and the record of Petitioner''s case back to the State Government which was received to it on 11.12.2008 well within the time prescribed u/s 11(1) of the Act. After receiving the opinion of the Advisory Board, the State Government examined detenu Petitioner''s case afresh and finding sufficient reasons, confirmed the impugned detention order, u/s 12 of the Act, directing confinement of the Petitioner for a period of twelve months from the date of his actual detention (24.10.2008). This confirmation order was also communicated to the detenu Petitioner through radiogram dated 18.12.2008.

Superintendent-Central Jail, Naini, in his counter-affidavit, has also confirmed the receipt of various communications and information supplied by him to the detenu Petitioner.

Union of India, Respondent No. 1, in its counter-affidavit averred that the Petitioner''s representation was received to it directly from the Petitioner on 12.11.2008. 13th November, 2008 was a holiday being a Guru Nanak Jayanti and 15th and 16th Novembers were holidays being Saturday and Sunday. On 18.11.2008 Union of India requested the State Government, through wireless message, to send it''s parawise comments on the said representation, which was furnished to it by the State Government 20.11.2008. The case of the detenu Petitioner was immediately processed and was placed before Under Secretary in Ministry of Home Affairs on 21.11.2008 and in the channel of considerations, it was also placed before the Deputy Secretary (Legal) and Joint Secretary and Union Home Secretary on 21.11.2008 itself. Union Home Secretary, became busy with the terrorist attack in Mumbai on 26.11.2008 and thereafter with the Parliament Session''s on internal security from 10.12.2008 onwards and therefore, it could consider detenu Petitioner''s case on 19.12.2008, on which date Union Home Secretary rejected detenu''s representation, looking to the huge recovery of fake Indian currency notes and the serious menace in which the detenu Petitioner was involved. The record was, thereafter, marked down to the Joint Secretary (IS) and the order rejecting the representation was issued on 31.12.2008, which was communicated to the detenu Petitioner through crash wireless message on the same day followed by a letter dated 28.1.2009 for the said purposes.

In the rejoinder-affidavits filed by the Petitioner the stand taken by the Respondent authorities in their respective counter-affidavits have been refuted and the averments made in the writ petition are reiterated.

On above factual matrix, we have heard Sri Rajiv Joshi, advocate in support of this habeas corpus petition, Sri Dev Raj Rajvedi, learned standing counsel for Union of India and Sri Sudhir Mehrotra, learned A.G.A. in opposition.

Learned Counsel for the Petitioner contended that there has been a delay in disposal of representation by the Central Government and therefore, the detention order of the Petitioner is liable to be set aside. It is further contended that the Union of India has failed to explain the delay from 21.11.2008 till 18.12.2008 in considering Petitioner''s representation. Learned Counsel further criticized the lethargy part of the Union of India and argued that the offered explanation by Union of Home Secretary of being pre-occupied from 10.12.2008 till 18.12.2008 is not at all satisfactory. The detention order is also challenged for the reason that there has been an undue delay in communicating the order of rejection to the detenu. It is further contended that delay in disposal of representation is violative of the cherished principles under Article 22(5) of the Constitution and renders the detention unconstitutional. It is further submitted that the delay of 12 days from the date of disposal of the representation till it''s communication to the detenu by crash wireless message, dated 31.12.2008, is also not at all satisfactory and this fact renders continued detention of the Petitioner illegal Learned Counsel further harangued that the State Government has failed to point out any cogent and acceptable reason as to why the case of detenu Petitioner could not be considered by the Advisory Board on an earlier date. He further submitted that there has been no communication of various orders passed by the authorities to the detenu Petitioner. On such criticism, learned Counsel for the Petitioner, concluded that continued detention of the Petitioner is illegal and invalid and this habeas corpus petition deserves to be allowed and Petitioner be set at liberty forthwith.

Learned A.G.A. as well as learned standing counsel for the Union of India, contrarily, refuted the contentions raised by learned Counsel for the Petitioner and submitted that the case of the Petitioner was handled with utmost urgency and fastness, without any delay, and there is no reason to set aside the detention order, as the Petitioner had indulged into an activity detrimental to the national interest and security of the country. They submitted that the case of the detenu Petitioner is different from other preventive detention cases, as the activity of the detenu Petitioner is hazardous to the security of the nation and its fiscal condition. They further submitted that there has been no delay on the part of Union of India in deciding Petitioner''s representation. There was a threat to the country and there was attack on Mumbai on 26th November, 2008 and therefore, the primary duty of the Union of India and it''s administrative officers was to secure the country. In such a view, if some days passed by in consideration of the detenu''s representation, the same has been explained satisfactorily and it cannot be considered fatal to the stand taken by the Union Government. Learned standing counsel further argued that immediately after the attack on Mumbai there was a Parliamentary Session on internal security, therefore, pre-occupation of the Union Home Secretary with the matters connected with national security can very well be perceived and it is not necessary for him to explain what he was doing at that time as that is a sensitive confidential issue touching national integration and therefore no exception of the averments made by Union Government, in it''s counter-affidavit, regarding some delay can be carved out. Learned standing counsel contended that matter connected with security of the nation are such which cannot be divulged on every occasion, as it may pose a potential threat to the country and therefore, offered explanation by the Union Government in it''s counter-affidavit, is a sufficient explanation for the occasioned delay. He, therefore, contended that details of the pre-occupation of the Home Secretary are not detailed in the counter- affidavit but the fact remains that Union Home Secretary did not take much time in deciding detenu''s representation. He further contended that because the security perception continued, therefore, the delay in communicating the order of rejection to the Petitioner is also not fatal in the present case. The Petitioner, who should be bracketed as anti-national cannot be allowed to come out of jail on mere technicalities when they are well explained, retorted learned standing counsel. Concludingly, it is submitted that the habeas corpus petition sans merit and deserves to be dismissed.

We have considered the arguments raised by both the sides. So far as delay in disposal of representation by Union of India, Respondent No. 1, is concerned, we find the criticism by the learned Counsel for the Petitioner wholly unfounded. Looking to the happenings in the country and the threat to national integration and internal security, the time taken by union Home Secretary in deciding detenu''s representation is well explained and he cannot be faulted with on that score. It is the stand of the Union of India that the detenu''s representation dated 6.11.2008 was received to it directly on 12.11.2008. 13th, 15th and 16th Novembers 2008, were holidays and therefore, State Government was requested, through wireless message, on 18th November, 2008 to send it''s parawise comments on the said representation which was furnished by it and the same was received to the Union of India on 20.11.2008. On the following day, the Under Secretary, Deputy Secretary (Legal), Joint Secretary considered the said representation and placed it before the Home Secretary for his consideration. Just after four days, on 26.11.2008, there was a terrorist attack on Mumbai, the financial capital of the country, aimed to de-establish the nation by ruining it''s economic activities and consequently Union Home Secretary became pre-occupied with the security concerns of the nation. In such a scenario the gap of five days between 21.11.2008 till 26.11.2008 is neither unreasonable nor there was undue delay. From 26.11.2008 till January 2009 National Security was at a stake because of the terrorist attack. While deciding this habeas corpus petition we cannot shut our eyes towards our knowledge regarding the prevalent conditions of the country and the threat perceptions, which loomed large over the safety of every citizens, of this country and national integration. Therefore, if the Home Secretary decided detenu''s representation on 19.12.2008, he cannot be criticised for the delay. First and foremost consideration with him must have been national security and integrity. The Parliament Session was also an integral important aspect of nation''s administration in that situation, as the Parliament was convened to consider various facets of internal and national security and it''s integrity. Paramount consideration at that moment of urgency was to secure Territory of India, life and safety of it''s every citizen first much more than the requirement of deciding detenu''s representation. We are clear in our view that there has been no delay on the part of the Union Home Secretary in disposing of detenu''s representation on the above facts. The first contention by learned Counsel for the Petitioner, therefore, is repelled.

Subsequent argument regarding communication of the rejection order raised by learned Counsel for the Petitioner also do not require much of a deliberation. After detenu''s representation was decided by the Union Home Secretary, under the working guidelines the same was to be brought down from the office of Home Secretary to the Under Secretary for communication. By the time the communication was made by the detenu Petitioner, for the reasons mentioned above, all the Secretaries must have been pre-occupied with the national integration and national security. If some time has been consumed in communicating the rejection of his representation to the detenu, we do not consider it unreasonable and unexplained delay for the same reasons which we have spelt out hereinabove. The second limb of the argument, by the learned Counsel for the Petitioner, is therefore, also rejected.

Coming to another criticism raised by learned Counsel for the Petitioner that the case of the Petitioner could have been considered by the Advisory Board at an earlier date, we only observe this much that the case of the detenu Petitioner was considered well within time prescribed by the Act/Statute. If the Advisory Board has considered detenu Petitioner''s case within the time allowed by the Statute, no criticism can be allowed against prescription of such statutory period. The last argument raised by learned Counsel for the Petitioner is also rejected.

Consideration of detenu''s case from every angle, we do not find any merit in this habeas corpus petition, which stands dismissed.