Mukesh Chand vs District Magistrate,Agra & Ors.

Heard the learned Counsel for the petitioner, Sri A.P. Mishra, learned Government Advocate and Smt. Amita Agrawal, learned Additional Standing Counsel Central Government.

By means of this habeas corpus writ petition the petitioner has challenged his detention order under National Security Act passed by the District Magistrate, Agra on 5299 as well as the order dated 15299 passed by the State Government confirming the order of thedetention.

Learned Counsel for the petitioner has submitted that the petitioner was arrested in connection with an F.I.R. lodged as Case Crime No. 4092/99 under Section 4/5 Explosive Substance Act, P.S. Fatehpursikri, District Agra. He was granted bail on 41 99 But before he was released from Jail an order was served upon him under the National Security Act dated 5299. IP the meantime the State Government confirmed the order of detention vide Gov nment order dated 15299. Thereafter he preferred a representation on 21299 to the Home Secretary, Government of Uttar Pradesh, Advisory Board (Detention U.P., Lucknow) and the Home Secretary, Government of India. Thereafter the detenue was produced before the Advisory Board on 22299. Learned Counsel for the petitioner, Sri A.P. Mishra has pressed this petition only on the ground that there is delay in deciding the representation by the State Government as well as by the Central Government, which has not been explained. Hence his detention is rendered illegal and the impugned order of detention is liable to be quashed on this ground alone.

Counter affidavits have been filed on behalf of the Superintendent District Jail, Agra, State of U.P. and Union of India separately, which show the following fact:

Orr5299 the impugned detention order was passed, which was served upon the petitioner on the same day.

On 15299 the detention order was approved by the State Government i.e. within a period of ten days, which was intimated to the petitioner on 16299. The copy of the same was served upon the petitioner on 5399.

On 22299 the petitioner preferred a representation, which was sent to the District Magistrate/Agra on the same day for necessary action.

The District Magistrate sent his comments vide his letter dated 24299 to the State Government, which was received by the State Government on 26299.

On 27299 the representation of the petitioner alongwith comments was forwarded by the State Government to the Advisory Board. Beside this, the State Government rejected the representation of the petitioner on 3399 as the office note was put up to the Under Secretary Home on 27299. The Under Secretary Home examined the representation and sent file to the Home Secretary on the same day. Thereafter the Home Secretary examined the same and submitted it for the order of the higher authorities on the same day. Thereafter the representation was rejected on 3399 communicated by the State Government vide Radiogram to the District Magistrate/Superintendent District Jail Agra on 5399.

On 24299 the petitioner was heard by the Advisory Board and the report of the Advisory Board was received by the State Government vide letter of the Registrar dated 22399 and thereafter the matter was again examined by the Slate Government on 23399. Thereafter on 24399 the State Government confirmed the detention order under Section 12(1) of the Act. The order of confirmation was issued on 27399 and the same was served upon the petitioner through the Superintendent District Jail, Agra on 29399.

According to the counteraffidavit of Sri Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India, the representation dated nil from the detenue was received by the Central Government in the Ministry of Home Affairs on 31399 through the District Magistrate, Agra which was immediately processed for consideration and it was found that certain vital information was required for further consideration. Hence through a crash wireless message dated 4399 the same was desired from the Stale Government. The required information was received by the Central Government on 24399 by Radiogram of State Government dated 23399. Thereafter the case of the petitioner was put up before the Director, Ministry of Home Affairs on 303 99, who put up the same before the Joint Secretary, Ministry of Home Affairs on the same day. The Joint Secretary also considered and put up the same before the Hon''ble Home Minister on the same day i.e. 30399. the Hon''ble Home Minister considered the case and rejected the representation of the petitioner on 5499. It has also been staled that 25, 27, 28 and 29399 were holidays. The petitioner was informed of the decision of the Central Governmenl by a fresh wireless message on 5499 through the Home Secretary, Government of U.P. and the Superintendent District Jail, Agra as 2, 3 and 44 99 were holidays. The message was followed by a letter.

Through a separate counter affidavit filed by the Joint Secretary Gopni Anubhag, Civil Secretariat, U.P. Lucknow it has been stated that the Ministry of Home Affairs vide Radiogram message dated 4399 required to send the opinion of the Advisory Board and vide letter dated 6399 it was informed to the Ministry of Home Affairs in New Delhi that the opinion of the Advisory Board was not made available and the same would be sent as soon as it is made available. The opinion of the Advisory Board was received by the State Government on 22399 and on 23 399 information was sent about the opinion of the Advisory Board to the Ministry of Home Affairs by the Stale Government.

Thus from the above mentioned facls, ii appears that the Central Government desired lo consider ihe reporl of the Advisory Board and a message was sent in this regard on 4399 to the State Government, but the State Government had given reply lo ihe same on 6399, staling therein that the report of Advisory Board has not yet made its opinion available to the Government and it appears that the Central Governmenl wailed for the report of the Advisory Board. When the report of the Advisory Board was made available and was sent lo the Central Government vide Radiogram daled 23399, ihe rcpresentation was processed by ihe Central Governmenl.

On ihis ihe learned Counsel for the petitioner has placed reliance on a case lawlaid down by the Division Bench of this Courl in Ihe mailer of Pappu alias Ausan Singh v. Adhikshak Janpad Kargai; Main puri reported in 1998 L.Cr. R. page 23 (Writ Petition II.C. 21277 and 21293 of 1998). In this case it was held as under:

"That the Central Government or the State Government has to decide the representation of the detenue irrespective of the fact as to whether the Advisory Board has already heard and decided the matter and has submitted its report or not. The authority concerned, namely, the State Government or the Central Government has not to wait for the result of the hearing before the Advisory Board. It must consider the representation on its own merits without waiting for Advisory Board to decide the matter and wait for its report. The Central Government wrongly wailed for the report of the Advisory Board to be furnished to it by the State Government. Thus the reason which has been put forward to explain the delay is either valid nor cogent. The representation is undoubtedly to be decided at the earliest. Had the Central Government not asked for and waited for the report of the Advisory Board, there seems to be no reason that it would have certainly decided the representation earlier. Postponing the consideration of the representation for a reason not legally admissible will in no way explain the delay. The Central Government got the report of the Advisory Board after about three weeks of receipt of the representations of the detenue. Waiting of this period could be avoided. The State Government also can not be said to have acted with all promptness as on receipt of the report of the Advisory Board it forwarded the same to the Central Government, which was received there only on 11298. We are, therefore, of the view that the representations of the petitioners have not been considered and decided by the Central Government with the speed and promptness which is required for disposal of such representation. After receiving the representations on 1911998 the Central Government called for the report of the Advisory Board which was not necessary and took no steps in the matter until the report was furnished to the Central Government."

In the instant matter also the Central Government had received the representation of the petitioner on 1399 and the report of the Advisory Board was desired by a message sent on 4399 to the Slate Government. Thereafter the Central Government kept mum till 30399. The required information was received by the Central Government on 24399. In spite of that no action was taken till 29399. the representation could be considered in the absence of the opinion of the Advisory Board, but that was not done and hence there is unexplained delay of 29 days which vitiated the detention.

In view of the above mentioned facts and circumstances we are of the opinion that the continued detention of the petitioner on the strength of the impugned detention order dated 5298 passed by the District Magistrate, Agra under Section 3(2) of the National Security Act is liable to be quashed. Therefore, the same is quashed and it is directed that the petitioner shall be set at liberty forthwith unless he is required in any other case.

The writ petition is allowed accordingly. Noorderas to costs.