Mukhtar Ansari vs Superintendent Central Jail and Others

R.R.K. Trivedi and M.C. Jain, JJ.—This petition has been filed challenging the order of detention of 20th March, 1999, Annexure-1 to the writ petition u/s 3(2) of the National Security Act, 1980 (hereinafter referred to as Act) under which the Petitioner has been detained.

Mr. D.S. Misra, learned Counsel for the Petitioner has questioned the legality of continued detention of the Petitioner under the impugned order on the ground of inordinate and unexplained delay in not deciding the representation of the Petitioner sent to Central Government. It has been submitted that one representation was sent by registered post on 30th March, 1999 through counsel which had already been delivered to the Central Government as is clear from the acknowledgment receipt filed as Annexure-2 to the rejoinder-affidavit. It has been further submitted that nine copies of the representation were presented to the jail authorities for being forwarded to the State Government, Central Government and Advisory Board. The representation was forwarded by the District Magistrate with his comments on 7th April, 1999 to the State Government. The State Government received the representation on 8th April, 1999 and forwarded it to the Central Government on 9th April, 1999, which was received by Central Government on 10th April, 1999. It is submitted that more than a month has passed but the representation has not been decided. Learned Counsel for the Petitioner has placed before us the counter-affidavit filed by Sri R.S. Agrawal, Joint Secretary, Home and Confidential Department U.P. Civil Secretariat, Lucknow. In paragraph 5 of the counter-affidavit it has been stated that the representation was forwarded to the Central Government on 9th April, 1999, which was received in the Ministry of Home Affairs, New Delhi on 10th April, 1999. On 16th April, 1999, vide telex message the Central Government asked to send opinion of the Advisory Board. As the report was not available, hence the State Government intimated to the Ministry of Home Affairs, New Delhi, through letter dated 19th April, 1999 that the report of the Advisory Board would be sent as soon as the same is received. The report of the Advisory Board was received on 26th April, 1999 and it informed the Central Government through State Government''s fax message dated 26th April, 1999 with the opinion of Advisory Board that there is sufficient cause for detention of the Petitioner. Learned Counsel has submitted that inspite of the knowledge that the report of the opinion of the Advisory Board was not available, consideration of the representation filed by the Petitioner was postponed and it has not been decided.

By order dated 16th April, 1999, learned Counsel for Union of India was granted three weeks time to file counter-affidavit, however, counter-affidavit could not be filed on 11th May, 1999. This petition was again listed. On behalf of the Union of India further time was asked to file counter-affidavit as a matter of last opportunity one week''s further time was granted by a stop order to the Union of India. In the order it was also made clear that no further time shall be allowed. The case was fixed for 18th May, 1999. On 18th May, 1999 again a request was made by Sri S.N. Srivastava, learned senior standing counsel for Union of India that this case may be adjourned for today and the counter-affidavit shall be filed, however, no counter-affidavit has been filed to controvert the facts mentioned above. Sri S.N. Srivastava has expressed his inability to file counter-affidavit. He asked for further time which we are not inclined to grant.

From para 10 of the counter-affidavit filed by Sri V.K. Jain, Senior. Superintendent Central Jail. Agra, it appears that a message was received by radiogram dated 3rd May, 1999 from the Central Government that the representation of the Petitioner has been rejected by the Central Government, but the representation was received on 10th April, 1999. It is clear from the affidavit of Sri R.S. Agrawal that Central Government was also informed that opinion of the Advisory Board has not yet been received, but the representation could not be decided. There is no explanation for the delay. There is also no material to disclose the actual date on which the representation was rejected. In the circumstances and on the basis of the material available on record it is established that there was inordinate delay in deciding the representation of the Petitioner by Central Government which rendered the continued detention of the Petitioner illegal.

We have also heard Sri A.K. Tripathi and Sri Mahendra Pratap, learned A.G.A. They have submitted that there is no delay on the part of the State Government. All the constitutional safeguards have been complied with meticulously. However, in absence of necessary facts as to on which date the representation was decided by the Central Government, they could not justify further detention of the Petitioner under the impugned order.

For the reasons stated above, this petition is allowed as the continued detention of the Petitioner has been found illegal. The Respondents are directed to set the Petitioner at liberty forthwith, if his detention is not required in any other case.