Shakir (in Jail) vs Union of India (UOI) and Others

Vishnu Sahai, J.—Through this writ petition, preferred under Article 226 of the Constitution of India, the Petitioner/detenu Shakir has impugned the order dated 15.4.2004, passed by Mr. R. Ramesh Kumar, District Magistrate, Moradabad, detaining him u/s 3(2) of the National Security Act.

The detention order, along with the grounds of detention, which are also dated 15.4.2004, was served on the Petitioner/detenu on 15.4.2004, itself and their true copies have been annexed as Annexures-1 and 2 respectively to the writ petition.

The prejudicial activities of the Petitioner/detenu prompting the opposite party No. 3 to issue the impugned detention order against him are contained in the grounds of detention (Annexure-2). Since, in our view, a reference to them is not necessary for the adjudication of the pleadings contained in paras 8 and 9 of the petition and those contained in ground No. 18 (A) thereof, on which alone this writ petition deserves to succeed, we are not adverting to them.

We have heard learned Counsel for the parties.

The short and long of the averments contained in paras 8 and 9 of the petition and those contained in ground No. 18 (A) thereof is that the continued detention of the Petitioner/ detenu has been rendered violative of Article 22(5) of the Constitution of India because his representation has not been dealt with a sense of urgency and continuity.

During the course of his submission Mr. S. K. Singh, learned Counsel for the Petitioner restricted his challenge to the representation made by the Petitioner to the Union of India. He invited our attention to para 5 of the affidavit of Smt. Rita Dogra wife of Shri O. P. Dogra, working as under Secretary, Ministry of Home Affairs, Government of India, New Delhi. He pointed out that a perusal of the aforesaid para would show that the representation of the Petitioner/ detenu dated 25/26.4.2004, was received by Respondent No. 1 (Union of India) on 27.4.2004 and the competent authority in the Central Government u/s 14 of the National Security Act rejected it vide order dated 5.5.2004 and communicated the factum of rejection to the Petitioner/detenu vide crash wireless message dated 7.5.2004.

Mr. Singh contended that neither in para 5 of her return nor in any other para thereof has Smt. Rita Dogra stated as to how at various stages the said representation was dealt with by various functionaries of the Union of India, between 27.4.2004 and 5.5.2004. In his contention a bald explanation of the type set-forth in para 5 of Smt. Dogra''s return is no explanation in the eyes of law.

Mr. Manish Bajpai, learned Counsel for Union of India made a two-fold submission before us. He contended that the delay between 27.4.2004 and 5.5.2004, would only be of eight days. He urged that in these eight days there was a Saturday and Sunday, which being holidays would bring down the delay to only six days. In Manish Bajpai''s contention neither a delay of eight days, much less delay of six days is inordinate enough to vitiate the continued detention of the Petitioner/detenu under Article 22(5) of the Constitution of India.

We have considered the rival submissions and make no bones in observing that we find substance in the submission of Mr. S. K. Singh, learned Counsel for the Petitioner/ detenu. The Supreme Court in para 5 of the oft-quoted case of Harish Pahwa v. State of U.P. and Ors. 1981 ARC 281 (SC): 1981 SCC 589, while dealing with a representation in a preventive detention matter in para 5 has observed as follows:

We would emphasise that it is the duty of the State to proceed to determine representations of the character abovementioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu....

Emphasis supplied.

A perusal of the aforesaid extract would show that the ratio laid down by the Supreme Court is that a representation should be dealt with continuously unless it is absolutely necessary to wait in connection with it.

We are constrained to observe that neither para 5 of the return of Smt. Rita Dogra nor any other para thereof shows that the representation of the Petitioner/detenu has been dealt with continuity. At the cost of repetition, we would like to mention what has been mentioned in para 5, namely, that the representation of the Petitioner/detenu was received by Union of India on 27.4.2004 and was disposed of on 5.5.2004. There is nothing in the return of Smt. Dogra to show that the representation of the Petitioner/detenu has been continuously dealt with as mandated by the Supreme Court.

In the circumstances, there is no getting away from the inference that the delay in the disposal of the representation of the Petitioner/ detenu by the Union of India has not been satisfactorily explained. And that being so, the continued detention of the Petitioner/detenu would stand vitiated in terms of Article 22(5) of the Constitution of India.

In the result, this writ petition is allowed and the Petitioner/detenu Shakir is directed to be released forthwith unless wanted in some other case.