Mohar Ali vs State of U.P. and Others

M.C. Jain, J.—By means of this writ petition, the Petitioner has challenged the detention order dated 8.1.1999 passed against him by Respondent No. 2 District Magistrate, Chitrakoot u/s 3(2) of the National Security Act, 1980 and his continued detention thereunder.

Counter and rejoinder-affidavits have been exchanged.

We have heard Sri S.F.A. Naqvi, learned Counsel for the Petitioner. Sri Mahendra Pratap, learned A.G.A. for Respondent Nos. 1, 2 and 3 and learned Counsel representing Respondent No. 4, Union of India. It has, inter alia, been submitted by the learned Counsel for the Petitioner that there was inordinate delay in sending his representation dated 15.4.1999 to the Central Government which reached there as late as on 4.5.1999. It has been argued that it has resulted in inordinate and unexplained delay in consideration of his representation, which was ultimately rejected by the Home Minister on 8.5.1999. On the other hand, it has been argued by the learned A.G.A., representing Respondent Nos. 1 to 3 that as mentioned in the supplementary counter-affidavit of Sri Jwala Prasad Tewari, Additional S.D.M., the representation of the Petitioner was sent to the Central Government by registered post on 21.4.1999. He has relied upon the case of M. Mohammed Sulthan v. Joint Secretary to Government of India, Finance Department AIR 1990 SC 2222; in which it was held by the Apex Court that delay in postal delivery was not uncommon. In that case, period from 23.1.1990 to 30.1.1990 covering the time taken in communicating the representation to the Central Government and the period from 30.1.1990 to 12.2.1990 covering the time taken in obtaining the comments of the sponsoring authority had been excluded, regard being had to the fact that the two authorities were stationed at Madras and Delhi.

We have considered the respective submissions of the learned Counsel for the parties. In paragraph 6 of the counter-affidavit filed by Bina Prasad, Under Secretary on behalf of the Central Government, it has been stated that the representation dated 15.4.1999 from the detenu was received by the Central Government in the concerned desk of the Ministry on 4.5.1999 through District Magistrate, Chitrakoot. It was ultimately processed for consideration and the case was put up before the Joint Secretary on 7.5.1999 who considered it and with his comments put up the same before the Home Minister on 7.5.1999. The Home Minister duly considered the case of the detenu and rejected the representation on 8.5.1999. Additional counter-affidavit filed by Sri Jwala Prasad Tewari, Additional S.D.M. states in paragraph 3 that the comments on the representation of the detenu were prepared by the District Magistrate, Chitrakoot and the same had been sent to the State Government on 19.4.1999. On 19.4.1999 itself the District Magistrate sent the said representation and comments to Nazir Sadar. Collectorate Nazarat with a direction to send the same to the Central Government and it was actually sent to the Central Government by registered post on 21.4.1999.

It is significant to point out that underlying idea behind Section 8 of the National Security Act is that the detenu should have earliest opportunity of making a representation against the detention order to the appropriate authorities. Indeed, a duty is cast on the authorities concerned also to take every possible step for consideration of the representation of the detenu at the earliest without any loss of time. In the facts and circumstances of the present case, the ruling relied upon by the learned A.G.A. which was handed down nearly 9 years back would not come to the rescue of the authorities concerned. There has been marked improvement in the means of the communication during the intervening period. Several fast means of communication have come to occupy the field. The District Magistrate, Chitrakoot ought to have ensured the communication and delivery of the representation dated 15.4.1999 of the detenu to the Central Government by faster and quicker means instead of dealing with the representation in a casual manner by directing the Nazarat on 19.4.1999 to send it to the Central Government. The Nazarat itself took two days in complying with this order and sent the representation to the Central Government by registered post on 21.4.1999. It has been admitted by the District Magistrate. Sri Jagannath Singh, Respondent No. 2 in paragraph 8 of his counter-affidavit that the representation was submitted by the Petitioner on 15.4.1999 whereupon, parawise comments were prepared which were ready on 19.4.1999. The period thereafter consumed upto 4.5.1999 when the representation of the Detenu reached the Central Government is inordinate and cannot be explained by simply averring that it was sent to the Central Government by registered post on 21.4.1999. Such inordinate and unexplained delay ultimately contributed in the consideration of the representation of the detenu by the Central Government where it was rejected by the Home Minister on 8.5.1 999. When the question of liberty is involved, and that too by means of preventive detention, it is incumbent upon all the authorities to explain the delay in consideration of the representation. They have to act as one unit to ensure earliest decision on the representation of the detenu. Every step is required to be taken by each part of the machinery of the authorities concerned to facilitate and ensure the earliest decision on the representation of the detenu. In the instant case, the requisite steps and care had not been taken by Respondent No. 2 in sending the representation of the Petitioner to the Central Government by quicker and faster means available now-a-days. There is no valid and justified explanation of the delay between 19.4.1999 to 4.5.1999 (16 days). In our opinion, it renders the continued detention of the Petitioner to be illegal and the Petitioner is entitled to the relief.

As this writ petition succeeds only on this ground, we need not delve on other grounds raised in the writ petition.

For the reasons stated above, the writ petition is allowed. As the continued detention of the Petitioner is found to be illegal, the Respondents are directed to set the Petitioner at liberty forthwith if his detention is not required in any other connection.