Dhanushdhari Mishra vs State of U.P. and Others

R.K. Rastogi, J.—This habeas corpus writ petition has been filed by the Petitioner for quashing the detention order dated 10.6.08 passed by District Magistrate, Ghazipur Respondent No. 2, against the Petitioner u/s 3(2) of the National Security Act and for his release from detention under the above Act.

Counter-affidavits have been filed by all the four Respondents and in reply to those counter-affidavits, the Petitioner has also filed rejoinder-affidavit.

We have heard learned Counsel for the Petitioner, learned A.G.A., for the Respondents No. 1, 2 and 3 and learned Counsel for the Respondent No. 4 and have gone through the writ petition, the counter-affidavits as well as the rejoinder-affidavit.

The facts relevant for disposal of this writ petition are that on 8.5.08 Case Crime No. 1134 of 2008 under Sections 489A, 489B and 489C was registered against the Petitioner Dhanushdhari Mishra and co-accused Jairam and on the basis of registration of that case, an order was passed against him by the District Magistrate on 10.6.08 for his detention under the National Security Act. Aggrieved with that order, the Petitioner filed this habeas corpus writ petition.

Learned Counsel for the Petitioner submitted before us that there has been inordinate delay in disposal of the representation submitted by the Petitioner against his detention and so his detention is vitiated.

A perusal of the documents referred to above reveals that the Petitioner had submitted his representation to the Jail Superintendent, Ghazipur on 24.6.08. The Jail Superintendent forwarded the representation to the District Magistrate on the same date. This representation was received in the office of the District Magistrate on 25.6.08. The District Magistrate called for comments from the Superintendent of Police on that representation on 26.6.08. The comments were received from the office of the Superintendent of Police on 2.7.08. Thereafter, the District Magistrate considered the representation of the Petitioner and rejected it vide his order dated 4.7.08. Thereafter, he sent the representation addressed to the State Government on 4.7.08 by special messenger and the representation addressed to Central Government was sent by registered post on the same date. The representation addressed to the State Government was received in the office of the State Government on 7.7.08. The State Government sent the same to the Advisory Board on 8.7.08. It also sent a copy of the representation to the Central Government by speed post on 9.7.08. The concerned section of the State Government examined the representation and submitted a detailed note on 9.7.08. It was examined by the Under Secretary on 10.7.08 and put before the Joint Secretary on 11.7.08. There were holidays of second Saturday and Sunday on 12.7.08 and 13.7.08 and thereafter the Officer on Special Duty and the Secretary examined the representation on 14.7.08 and it was rejected by the Secretary on the same date and thereafter the information of rejection of the representation was sent to the Petitioner on 15.7.08 by radio gram.

The representation sent to the Central Government was received in its office on 14.7.08. It was put before the Under Secretary on 15.7.08 who put it before the Director (Security) on 16.7.08 and the Director (Security) put it before the Secretary, Home Ministry on 16.7.08. The Home Secretary rejected the same on 16.7.08. Then the file was received back in the concerned section on 22.7.08. The wireless message giving intimation of the rejection was sent to the Petitioner on 23.7.08 and a letter confirming that wireless message was sent on 24.7.08.

It appears from perusal of the above description of dates that though there has not been any undue and unreasonable delay in disposal of the representation but after rejection of the representation of the Petitioner by the Home Secretary, Union of India on 16.7.08, there has been unreasonable delay of one week in communication of the rejection order to the Petitioner. When the representation of the Petitioner had been rejected by the Central Government on 16.7.08, intimation of this rejection must have been sent to the Petitioner on 17.7.08 but it was not done and there was unreasonable delay of six days in sending the file from the office of the Secretary to the concerned section. There is no explanation from the side of Union of India as to how and why this delay of six days was caused in sending back the file from the office of the Secretary to the concerned section dealing with the representations of habeas corpus.

Under these circumstances, this delay of seven days in communicating the order of rejection to the Petitioner is fatal and it vitiates further detention of the Petitioner.

The writ petition is, therefore, allowed. The further detention of the Petitioner under the National Security Act is found to be illegal and vitiated.

Let the Petitioner namely Dhanushdhari Mishra be set at liberty forthwith if not required to be detained in any other case.