Bachau Yadav vs District Magistrate,Ghazipur (Detaining Authority) & Ors.

This petition is directed against the order dated 8th May, 2003 passed by the District Magistrate, Ghazipur, detaining the petitioner under

Section 3 (2) of the National Security Act (in short the Act) on account of his involvement in Case Crime No. 254 of 2003 under Sections 147,

148, 149, 302, 307, 506 IPC and 7 of Criminal Law Amendment Act, Police Station Khanpur, District Ghazipur.

Counter and rejoinder affidavits have been exchanged between the parties and are on record.

We have heard Smt. Kamla Singh, learned Counsel for the petitioner, Shri Mahendra Pratap Singh, Additional Government Advocate for

respondents No. 1, 2 and 5 and Shri D.S. Lal, Additional Standing Counsel for respondent No. 3.

Although several points have been raised in the writ petition but learned Counsel for the petitioner confined her submissions to the point of

unexplained delay in disposal of the petitioner''s representation by the Central Government. It is contended that the representation of the petitioner

was handed over to the Jail authorities on 2952003 and was sent to the District Magistrate, Ghazipur on the same date. The District Magistrate,

thereafter, invited comments from the Superintendent of Police which was also received in the office of the District Magistrate on 162003. The

District Magistrate, thereafter, sent the representation of the petitioner alongwith comments, to the State Government on 2 62003 through special

messenger and to the Central Government through speed post which was received by the Central Government on 662003 but it was rejected on

1962003 and no explanation has been furnished in the counteraffidavit of the Central Government in respect of 10th, 11th, 16th, 17th and 18th

June, 2003.

On the other hand, learned Counsel for the respondents opposed the writ petition and tried to explain the delay but could not point out any

explanation for delay in the counteraffidavit of the Central Government for 10th, 11th, 16th, 17th and 18th June, 2003.

We have considered the submissions made on both sides.

The Central Government in its counteraffidavit sworn by Shri P.K. Jain, Under Secretary Ministry of Home Affairs, Government of India, New

Delhi, has stated that the representation of the detenue alongwith parawise comments of the Detaining Authority was received in the Ministry of

Home Affairs on 662003 and in the concerned Desk of Ministry of Home Affairs on 962003 through the State Government of U.P. vide letter

dated 4 62003. Therefore, admittedly, the representation of the petitioner sent by the Detaining Authority was received in the Ministry of Home

Affairs on 662003 and the representation forwarded by the State Government was also received in the Ministry of Home Affairs, on 912003. It

further appears from the counteraffidavit that the representation was processed and considered by the Director, Ministry of Home Affairs on

962003 and alongwith his comments it was sent to the Joint Secretary Ministry of Home Affairs on the same date. However, the Joint Secretary

forwarded the representation to the Additional Secretary, Ministry of Home Affairs, Government of India on 126 2003. No explanation has been

given in the counteraffidavit as to what steps were being taken by the Joint Secretary on 10th and 11th June, 2003. It further appears from the

averments made in the counteraffidavit that the Additional Secretary considered the representation and forwarded it to the Home Secretary on 13

62003, who has been delegated with the powers to decide such representation by the Union Home Minister. The Union Home Secretary

considered the representation and rejected the same on 1962003. Again no explanation has been furnished in the counteraffidavit for 16th, 17th

and 18th June, 2003. Though in para 7 of the counteraffidavit, explanation for 7th, 8th, 14th and 15th June, 2003 has been given but surprisingly it

has not been stated as to what steps were taken on 10th, 11th, 16th, 17th and 18th June, 2003.

It is settled legal position that in the matter of detention, the representation of the detenue has to be disposed of with all promptness and

unexplained delay in the disposal of the representation is fatal and vitiates the detention.

In the case of K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others; State of Karnataka and others, JT 1991 (1) SC 216,

a Constitution Bench of Hon''ble apex Court while considering its earlier judgment in the matter of delay in disposing the representation of a detenu

observed that there should not be supine indifference, blackness or callous attitude in considering the representation and any unexplained delay in

that regard would be a breach of constitutional imperative, which would render the continued detention impermissible and illegal.

In the case in hand, the respondents having failed to give any explanation for 10th, 11th, 16th, 17th and 18th, June 2003, in our view, the

continued detention of the petitioner is vitiated. Besides that it appears that the representation was rejected on 1962003 but it is said to be

communicated by the Central Government through wireless only on 23rd June, 2003, although in the counteraffidavit of the Jail authorities it has

been stated that message of rejection of the representation of the petitioner was received on 3062003. Therefore, we are of the view that

unexplained delay in disposal of the representation is fatal and has vitiated the further detention of the petitioner.

In the result, the writ petition succeeds and is allowed. Respondents are directed to set the petitioner at liberty forthwith provided he is not

required to be detained in connection with some other case.

There shall be no order as to costs.