Jaleesh Ahmad vs State of U.P. and Others

Uma Nath Singh, J.—By way of this writ petition, Petitioner has prayed for issuance of (i) a writ, order or direction in the nature of habeas corpus directing Respondents to release him from preventive detention, (ii) a writ in the nature of certiorari for quashment of detention order dated 19.2.2009, passed by District Magistrate, Lucknow u/s 3(2) of National Security Act, 1980 ( For short "the N.S.A."), and (iii) any other appropriate writ, order or direction in the facts and circumstances of this case.

It appears that the impugned detention order was passed on the basis of an incident being the subject-matter of Case Crime No. 554 of 2008 registered Under Sections 489B, 489C and 420, I.P.C. and also on account of registration of offence u/s 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.

We have heard learned Counsel for parties and perused the materials on record.

Learned Counsel for Petitioner challenged the detention order while contending that it has been passed in a mechanical manner, and without application of mind by the detaining authority. Had the relevant documents been placed before the detaining authority by police which is the sponsoring authority, perhaps, the detaining authority would not have passed the order. Learned Counsel also submitted that the alleged solitary incident was directed only against a particular individual and it did not carry a tendency to affect the public at large so as to warrant the imposition of detention order under N.S.A. There is no rational connection between the alleged offence dated 27.9.2008 and the order of preventive detention, dated 19.2.2009, as the time gap between the two was over four months, and thus, the object and purpose behind passing the detention order did not survive.

Petitioner did not have a criminal past, and thus, this High Court granted him bail on 4.9.2009. Learned Counsel also submitted that in fact the Petitioner was picked up by Hasan Ganj Police of Lucknow from his house and after his wife sent a telegram to Superintendent of Police, Sitapur, Chief Justice of this High Court, and Senior Judge of Lucknow Bench on 26.9.2008, the police proposed to impose Gangster Act against the Petitioner, and then also processed the case for detention under N.S.A. The relevant materials which formed the basis for application of mind of the detaining authority were also not furnished to the Petitioner. The detaining authority has not given any cogent reason for arriving at his subjective satisfaction and the conclusion that there was an imminent likelihood of release of Petitioner on bail in near future, and indulging into similar activities again, said to be prejudicial to the maintenance of public order. Thus, there was no pressing reason for the detaining authority to pass the order of detention against Petitioner who was in custody at the time of passing of the detention order. The representation of Petitioner was also not dealt with promptly, and thus, there is a violation of the provisions, of Article 22(5) of the Constitution of India. Besides, the detention order passed against co-accused Sanjay Kumar Pandey has since already been revoked and he has been released from jail. There has been a non-compliance of the provisions of Section 3(3) and Section 8(1) of the N.S.A. Further, the State Government failed to send its report to the Central Government within a week as required u/s 3(5) of the N.S.A. The Petitioner had not engaged the advocate known as Bhola Pandey to move any bail application on his behalf, and the alleged bail application was a part of larger conspiracy hatched by the police against the Petitioner.

On the other hand, learned State counsel referred to paras 3 to 6 of the affidavit sworn in by Sri Prem Shanker, Under Secretary (Home), Government of U.P. Averments made in the affidavit are reproduced as under:

That, in reply to the averments made in paragraphs 17 (p) of the petition, it is submitted that the Petitioner''s representation dated 2.3.2009 alongwith parawise comments thereon, forwarded by the District Magistrate, Lucknow, vide his letter dated 13.3.2009, was received in the concerned section of the State Government on 15.3.2009. The State Government sent copies of the representation and parawise comments thereon to the U.P. Advisory Board vide its letter dated 17.3.2009. Thereafter, the concerned section of the State Government examined the representation and submitted a detailed note of 18.3.2009. The deponent examined it on 19.3.2009. The Joint Secretary examined it on 20.3.2009. Dates 21.3.2009 and 22.3.2009 were holidays on account of Saturday and Sunday. The Special Secretary examined it on 23.3.2009 and thereafter submitted it to the Secretary. The Secretary examined it on 24.3.2009. The file was then submitted to the higher authorities for final orders of the State Government. After due consideration, the said representation was rejected finally by the State Government on 24.3.2009. The rejection of representation was communicated to the Petitioner through district authorities by the State Government radiogram dated 25.3.2009. The facts mentioned above, show clearly that the representation of the Petitioner has been dealt with expeditiously at every stage by the State Government. Averments to the contrary are denied.

That, in reply to the averments made in paragraph 25 of the petition, it is submitted that, the detention order dated 19.2.2009, grounds for detention and all other connected documents, forwarded by the District Magistrate, Lucknow, vide his letter dated 20.2.2009 were received by the State Government on 24.2.2009. After examining every aspect of the case of Petitioner in detail, the State Government approved the order of detention on 28.2.2009. The approval of the detention order was communicated to the Petitioner through the district authorities by the State Government radiogram and letter, both dated 28.2.2009, that is, within 12 days from the date of the detention order as required u/s 3(4) of the Act. A copy of detention order, grounds of detention and all other connected documents, received from the District Magistrate, Lucknow, were also sent to the Central Government by Speed Post on date 2.3.2009, that is within seven days from the date of approval by the State Government as required u/s 3(5) of the Act. These facts as mentioned above show that the provisions of Sections 3(4) and 3(5) of the Act, have been fully complied with. Averments to the contrary are denied.

That, it is submitted that the Petitioner was detained under the Act on 20.2.2009. The case of the Petitioner was referred to the Advisory Board by the State Government by forwarding the detention order, grounds of detention and all other connected documents on date 28.2.2009, well within three weeks from the date of his actual detention as required u/s 10 of the Act. The Advisory Board by its letter dated 19.3.2009, reported the State Government that the case of the Petitioner would be taken up for hearing on 24.3.2009 and directed that the Petitioner be informed that if he desired to attend the hearing before the Advisory Board alongwith his next friend (non-advocate), he could do so and be allowed to take his next friend (non-advocate). This fact was accordingly communicated to the Petitioner through district authorities by the State Government radiogram dated 20.3.2009. The Petitioner appeared before the Advisory Board on the date fixed. The Board heard the Petitioner In person, considered his representation and gave its report expressing therein its opinion that there was sufficient cause for detention of the Petitioner. This report and the records of the case were received in the concerned section of the State Government through Registrar, U.P. Advisory Board (Detentions) letter dated 2.4.2009 on date 2.4.2009, that is, within seven weeks from the date of detention of the Petitioner. On receipt thereof, the State Government once again examined afresh the entire case of the Petitioner alongwith the opinion of the Advisory Board and took a decision to confirm the detention order and also for keeping the Petitioner under detention for 12 months. Accordingly, orders of confirmation and for keeping the Petitioner under detention for 12 months from the date of his actual detention under the Act, that is, from 20.2.2009 were issued by the State Government through radiogram and letter, both dated 13.4.2009.

That, in reply to the averments made in paragraph 19A of the petition, it is stated that the Advisory Board did not find sufficient cause for the detention of co-accused Sanjay Kumar Pandey as the name of co-accused Sanjay Kumar Pandey has come on the disclosure made by the Petitioner. Thus, as provided u/s 12(2) of the Act the State Government revoked the detention order passed against co-accused Sanjay Kumar Pandey. However, the Advisory Board found sufficient cause for the detention of the Petitioner. Thus, the State Government u/s 12(1) of the Act confirmed the detention order passed against the Petitioner. Averments to the contrary are denied.

Then District Magistrate, Lucknow, Sri Chandra Bhanu has also sworn in an affidavit in support of the detention order. Para 10 of the affidavit being relevant reads as:

That in reply to the contents of para 17, it is submitted that the representation of the Petitioner, which was received in, the office of the District Magistrate, Lucknow, on 2.3.2009 and on the same date it was sent to the Superintendent of Police for comments. The comments from authorities were received on 7.3.2009. The police authorities took some time in preparing the comments. The deponent has also rejected the representation of the Petitioner on 7.3.2009. The police took some time in preparing the comments. The deponent has also rejected the representation of the Petitioner on 7.3.2009. The comments and the representation of the Petitioner were also sent to the Central Government and State Government through speed post and special messenger on 13.3.2009. The State Government rejected the representation of the Petitioner and sent a message dated 25.3.2009.

The Petitioner was informed through a notice dated 21.3.2009 that he can appear before the Advisory Board on 24.3.2009 alongwith his next friend (non-advocate), but he himself appeared before the U.P. Advisory Body on the date fixed, i.e., on 24.3.2009 and was heard. The State Government has confirmed the detention order for a period of 12 months and sent a message dated 13.4.2009.

Smt L.P. Srivastava Under Secretary Ministry of Home Affairs, Government of India, has filed her affidavit and explained in para 13 the time taken by the Central Government in the disposal of representation of the Petitioner which is as follows:

That in reply to the contents of para 17 of the writ petition it is submitted that this Ministry received a letter No. 274/JA/NSA/Rep/2009, dated 13.3.2009 from District Magistrate, Lucknow, forwarding the parawise comments on the representation of the detenu. However, this Ministry neither received the representation either from the detenu nor found with the aforesaid letter of the District Magistrate, Lucknow. Accordingly, a wireless message was sent to Government of Uttar Pradesh and District Magistrate, Lucknow vide No. II/15028/216/2009-N.S.A.I., dated 22.4.2009 requesting them to send the representation of the detenu followed by a reminder wireless message dated 9.6.2009. By its letter No. 425/JA/NSA/ Rep/2009, dated 15.6.2009 District Magistrate, Lucknow informed that the representation addressed to the Central Government was forwarded to the Secretary, Government of Uttar Pradesh alongwith the parawise comments and he also had forwarded a copy of the representation addressed to District Magistrate, Lucknow, to the Central Government. The letter dated 15.6.2009 was received in the concerned section of Ministry of Home Affairs on 23.6.2009. As the representation was not received in the Ministry and hence it could not be considered earlier. After its receipt, as above, the representation, alongwith parawise comments, thereon was processed and put up to Under Secretary (N.S.A.) and Deputy Secretary (S) on 29.6.2009. Since the contentions of Inspector In-charge Hasanpur Police Station/District Magistrate were contradictory to the report of State Government in so far criminal history was concerned, it was decided to obtain the criminal history of the detenu. Accordingly, a FAX was sent to Uttar Pradesh Government vide letter No. II-15028/216/2009-N.S.A., dated 1.7.2009 requesting them to send the criminal history of the detenu and the same was received from the Magistrate, Lucknow, on 23.7.2009 vide his letter No. 504/J.A./N.S.A./2009, dated 18.7.2009. This representation was accordingly further processed for consideration on 23.7.2009 and the case of the detenu was processed at the levels of Under Secretary, Deputy Secretary (S) and Joint Secretary who placed the same before the Union Home Secretary on 24.7.2009. The Home Secretary (who has been delegated powers by the Central Government to decide such cases) considered the case of the detenu and after carefully going through the detention order, grounds of detention, representation of the detenu and parawise comments of D.M./State Government, rejected the representation of the detenu on 27.7.2009 (24/25.7.2009 being holidays as Saturday and Sunday) and the file was marked to Joint Secretary the file reached the Joint Secretary on 28.7.2009 and the desk concerned through aforesaid levels of officers on 29.7.2009.

The decision of the Central Government was sent by a wireless message No. II/15028/ 216/2009-N.S.A., dated 29.7.2009 to the Home Secretary, Government of Uttar Pradesh and Superintendent District Jail, Lucknow, Uttar Pradesh informing that the representation of the detenu, Shri Jalees Ahmad was considered and rejected by the Central Government on 27.7.2009. These authorities were also requested to inform the detenu that his request for revocation of detention order passed against him has not been accepted to by the Central Government. This message was followed by a letter dated 4.8.2009 addressed to the detenu informing him that his request for revoking the detention order has not been accepted to by the Central Government. Thus, it is seen that there has been delay in processing the representation of the detenu but it was due to delay in receipt of the representation and clarification from the Government of Uttar Pradesh. Hence, it is humbly prayed that the Hon''ble Court may kindly condone the delay.

That the contents of paras 18, 19, 19A and 20 of the writ petition need no reply.

The contents of paras 21, 22, 23 and 24 of the writ petition are false and hence denied. Insofar as para 25 of the writ petition is concerned, it is submitted that a report as envisaged u/s 3(5) of the National Security Act, 1980 about the detention of the Petitioner was made by the Government of Uttar Pradesh vide its letter No. 84/2/53/2009-CX-5, dated 28.2.2009 to the Central Government and was received in the concerned Section of the Ministry of Home Affairs on 6.3.2009. The said report was carefully considered, duly taken note of by Deputy Secretary (L) (who has been delegated powers of the Central Government to take note of such cases).

Having given our anxious consideration to the aforesaid materials, we find that there is an inordinate delay in the disposal of representation of Petitioner which was submitted on 2.3.2009. It also appears from the affidavit of the then District Magistrate, Lucknow, Sri Chandra Bhanu, that the comments on the representation of Petitioner were sent to Central Government and State Government through speed post and special messenger on 13.3.2009. As per the affidavit of Smt. L.P. Srivastava, Under Secretary, Ministry of Home Affairs, Government of India, it has been submitted that the Home Ministry received a letter (No. 274/ J.A./N.S.A./Representation / 2009), dated 13.3.2009 from District Magistrate, Lucknow, with parawise comments on the representation of detenu. However, it is categorically averred that the Ministry did not receive a copy of the representation of detenu, nor was any copy of the representation annexed with the said letter of District Magistrate, Lucknow. Hence, a wireless message was sent to Government of U.P and District Magistrate on 22.4.2009 requesting them to send a copy of the representation of detenu and thereafter, a reminder for copy was also sent by a wireless message dated 9.6.2009. By a letter dated 15.6.2009 District Magistrate informed that the representation addressed to the Central Government was forwarded to the Secretary, Government of U.P. alongwith parawise comments and he had in addition also forwarded a copy of the representation to the Central Government, which had been addressed to him by the detenu. The letter dated 15.6.2009 of the District Magistrate was received in the concerned section of Ministry of Home Affairs in Delhi on 23.6.2009. As the representation was not received earlier in the Ministry, so it could not be considered in time. Having been made available in the Ministry, the representation alongwith parawise comments thereon was processed and put up before Under Secretary (N.S.A.) and Deputy Secretary (S) on 29.6.2009. As the report of Inspector-in-charge Hassanpur Police Station/ District Magistrate was contradictory to the report of State Government in so far as the criminal history of Petitioner was concerned, it was decided to obtain the criminal history of detenu afresh. Accordingly, a fax message was sent to U.P. Government on 1.7.2009 requesting them to send the criminal history of detenu afresh which was received from the District Magistrate, Lucknow, on 23.7.2009 vide his letter dated 18.7.2009.

Thus, the representation of Petitioner could not be processed for disposal till 23.7.2009 when a fresh process started, and finally having been received, it was routed through Under Secretary, Deputy Secretary and Joint Secretary, and then placed before the Union Home Secretary on 24.7.2009 who rejected the same on 27.7.2009. The file on return was marked to the Joint Secretary on 28.7.2009. By a wireless message dated 29.7.2009, Home Secretary Government of U.P. Senior Superintendent of Police and District Magistrate, Lucknow, were informed and the detenu also received the information about rejection. Wireless message was followed by a letter dated 4.8.2009 addressed to the detenu informing him about the rejection of his representation. In similar other cases of inordinate delay in the disposal of representations without proper explanations, this Court has taken a consistent view in Writ Petition No. 297 (H/C) of 2009, Shiv Shanker Soni v. Union of India and Ors. Writ Petition No. 297 (H/C) of 2009, Sonu alias Salman v. State of U.P. and Ors. Writ Petition No. 271 (H/C) of 2009,Mukesh Choudhary v. State of U.P. and Ors. and Writ Petition No. 458 (H/C) of 2009, Ashok Kashyap v. State of U.P. and Ors. Writ Petition No. 472 (H/C) of 2009, that on account of dearth of proper explanation for delay in the disposal of representation of a detenu, the detention order would not be sustainable. In the instant case, the representation of Petitioner was dated 2.3.2009 whereas, it was disposed of after an inordinate delay on 29.7.2009. It appears that it got stuck in the midst of red-tapism of bureaucracy without any plausible explanations for such a delay except passing buck to each other inasmuch as the District Magistrate has stated that he had sent the representation with parawise comments to the Central Government, whereas the Central Government, has averred that only parawise comments were received in the Ministry without a copy of the representation which was supplied later by the State Government through the District Magistrate, Lucknow, only on being asked.

Besides, there was a further delay on account of contradictory stands taken by the District Magistrate, Lucknow, and the State Government regarding the criminal history of the detenu which may go to suggest that the authorities have been indifferent towards their responsibility in dealing with this matter.

If the District Magistrate and the State Government rejected the representation of Petitioner, on the basis of materials that weighed with them, then as to why such materials were not promptly made available to the Central Government for taking a decision on the representation.

In the premises set out hereinabove, this Writ Petition No. 712 of 2009 (H/C), Jaleesh Ahmad v. State of U.P. and Ors. is allowed and the impugned order of detention dated 19.2.2009, passed by the District Magistrate, Lucknow, u/s 3(2) of N.S.A., 1980 is quashed.

Detenu Jaleesh Ahmad, son of Iedimiya, resident of Mohalla Karanpur qusba and P.S. Khairabad, district Sitapur, who is presently lodged in detention, is directed to be released forthwith, if not wanted, in any other case.