Jaiprakash @ Tunnu vs State of U.P.

In the instant petition the sole petitioner has challenged the validity of the order of the District Magistrate, Jaunpur dated 2932004 detaining him under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as ''the Act'') because of his involvement in case crime No. 169 of 2004, under Sections 302/307/504, IPC, Police Station Kotwali, District Jaunpur.

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

We have heard Shri Anurag Pathak, learned Counsel for the petitioner, Shri Arvind Tripathi, learned AGA appearing for respondent Nos. 1 to 3 and Shri N.I. Jafri, learned Additional Standing Counsel appearing for the Union of India, respondent No.4.

Although several points have been raised in the writ petition but learned Counsel for the petitioner, during the course of argument urged only two points. Firstly, that the detaining authority did not record his satisfaction about the possibility of the petitioner being enlarged on bail in near future, which vitiates the order of detention in view of the law laid down by the Hon''ble Apex Court in the case of Dharmendra Suganchand Chelawat and another v. Union of India and others, 1990 SC 1196, and secondly, that the delay of five days in disposing the representation has not been explained by the Union of India in its counteraffidavit and, therefore, nonexplanation of the delay in the disposal of the representation vitiates the continued detention of the petitioner.

On the other heard, Shri Arvind Tripathi, learned AGA appearing on behalf of the Staterespondents opposed the writ petition and submitted that the detaining authority having satisfied with the material placed before him passed the order of detention and in para 5 of his counteraffidavit it has been stated that after having been satisfied about the possibility of the detenu being released on bail in near future, he passed the order of detention. Shri N.I. Jafri, learned Additional Standing Counsel appearing for the Union of India submitted that the representation of the petitioner was received on 1542004 and was disposed of on 2042004 within six days and, therefore, there was no abnormal delay in the disposal of the representation.

We have considered the submissions made on both sides.

It appears that an FIR was lodged on 732004 at 3.45 p.m. alleging that on the eve of holi the informant''s son, Ashish Kumar Srivastava went to his friend''s house for celebrating holi at about 12 noon. However, the petitioner and his friend wanted to break matka on account of that some altercation took place and the petitioner along with his friend assaulted the deceased and his friend with lathi, danda, hokey stick and iron rod. In the meantime, the informant arrived at the place of occurrence and raised alarm to save his son and his friend. It is further alleged that one of the friend of the petitioner fired from his country made pistol as a result of which the deceased and his friend Rajesh received fire arm injuries. They were taken to hospital where the informant''s son was declared dead. Accordingly, an FIR was drawn and registered as case crime No. 169 of 2004, under Sections 302/307/504 , IPC at Police Station Kotwali, District Jaunpur. Therefore, on the report of the sponsoring authority dated 2932004 the District Magistrate having been satisfied with the material placed before him, passed the impugned order of detention. It is not in dispute that when the order of detention was passed the petitioner was already in custody and, therefore, in view of the legal position that where the detenu is already in custody the detaining authority is required to record his satisfaction about the imminent possibility of the detenu being released on bail. In a catena of decisions the Hon''ble Apex Court has held that where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail in near future, the order of detention is vitiated. In the case in hand though the detaining authority was aware that the petitioner is already in custody but he failed to record his satisfaction on the basis of the cogent material placed before him that there is every possibility of his being enlarged on bail in near future.

The contention of the learned AGA that the District Magistrate has stated in the counteraffidavit that on being satisfied that there is every possibility of his being released, the order of detention was passed, has no force because such satisfaction is to be recorded in the grounds of detention and cannot be supplemented by stating in the counteraffidavit.

The second contention that there was delay of five days which has not been explained, has also force. It is well settled proposition of law that in the matter of preventive detention the representation of the detenu is to be disposed expeditiously and if any delay is caused the same has to be explained in the response. In the case of K.M. Abdulla Kunhi v. Union of India, 1991(1) SCC 476, the Hon''ble Apex Court held that nonexplanation of delay in disposal of the representation amounts to breach of the constitutional imperative, which renders the continued detention impermissible and illegal. This view was again reiterated in the case of Rajammal v. State of Tamil Nadu and another, 1999(1) JIC 524 (SC) : 1999(38) ACC 312 (SC), wherein Hon''ble Apex Court has held as under :

�It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words �as soon as may be� in Clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is preempted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes�.

Relying on the aforesaid judgment a Division Bench of this Court of which one of us (S. Rafat Alam, J.) was a Member, in the case of Syed Mehtab Alam v. Superintendent Central Jail, Nani, Allahabad and others, reported in 2004(1) JIC 723 (All) : 2004(4) ACC 745, held that the absence of any explanation in the counteraffidavit for the delay from 26112002 to 30112002 was fatal and vitiated the continued detention of the petitioner.

In the case in hand, it has been averred in the counteraffidavit filed on behalf of the Union of India that the representation of the petitioner dated 742004 was received by respondent No. 4 on 1542004 and was rejected on 2042004. The order of rejection was communicated through crash wireless message No. II/15028/119/2004NSA dated 2142004. However, no explanation has been furnished in respect of the period from 1542004 to 2042004 as to why the representation dated 742004, which was admittedly received on 1542004, was not dealt with from 1542004 to 1942004 and nonexplanation of the delay in the disposal of the representation is fatal and vitiates the continued detention of the petitioner. Thus, in view of the fact that the District Magistrate did not record his satisfaction as required in view of the settled legal position about the release of the petitioner in near future and also in view of the fact that no explanation has been furnished by the Union of India in its counteraffidavit for the period from 1542004 to 2042004, the continued detention of the petitioner is vitiated.

In the result, the writ petition succeeds and is hereby allowed. The respondents are directed to set the petitioner at liberty forthwith provided he is not required to be detained in any other case. However, there shall be no order as to costs.