Tara Chand Jain vs State of U.P.

Uma Nath Singh, J.—By way of this writ petition detenu Tara Chand Jain has challenged the detention order dated 09-03-2009 (Annexure-1) passed by District Magistrate, Kheri, and prayed for issuance of writ, order or direction in the nature of Habeas Corpus for his release by declaring the detention order illegal.

According to petitioner the detention order dated 09-03-2009 was passed on the basis of a solitary incident dated 04-10-2008 relating to case crime No. 1119 of 2008, registered under Sections 420/489-B/489-C I.P.C. and 2/3 of U.P. Gangsters Act at P.S. Pasgawan, Distt. Kheri. The detention order was served on petitioner the same day along with grounds of detention and other supporting materials. Moreover, the order was passed after five months of the incident and thus there was no nexus between the act and the detention order, and thus, it was unreasonable to cite the solitary incident as the sole ground for passing the detention order. Besides, the grounds of detention also contain several wrong and misleading facts which, later by the order dated 16-03-2009, were tried to be corrected in the name of human error. Thus, the detention order was passed without application of mind. As per the detention order, and reports of sponsoring police authority, some fake currency notes were found in the possession of petitioner however, the petitioner was not found to be using the notes. There was no independent and public witness of the incident nor was the public peace and tranquility disturbed. Thus, it is not a case of disturbing public order. The petitioner has no criminal history except the solitary offence as aforesaid. Further there is unexplained delay in the disposal of representation and the petitioner after his arrest had also moved bail application before the Court of Special Judge (Gangsters Act) on 29-10-2008, but the same had already been rejected before the detention order was passed. A complete copy of bail application was not supplied to the petitioner; therefore, he was not able to make an effective representation to the authority. There was a likelihood of immediate release of the petitioner which may have caused apprehension for passing the detention order. In any case, the offence alleged against the petitioner would not come within the ambit of National Security Act as it does not come in the category of offences that may cause prejudice to the maintenance of supplies and services, essential to the community.

Union of India, Ministry of Home Affairs through Under Secretary, Smt. L.P. Shrivastava has filed affidavit and in paras 4, 5, 6 and 7 there is explanation for delay, if any, in disposal of representation as under:

The allegations made in paras Nos. 29, 30, 31, 32 and grounds No. (d), (e) and (g) of para 48 of the petition, are denied as being incorrect. It is stated that a representation dated 21-03-2009 from the detenu alongwith the parawise comments of the detaining authority were received by the Central Government in the concerned section on 06-04-2009 through District Magistrate, Kheri, vide letter No. xy.61 Rep.-NSA-Tarachand Jain/09/J.A. dated 23-03-2009.

That during the relevant period, the section had received a large number of representations relating to detention under NSA especially in Uttar Pradesh. Further, the concerned dealing hand proceeded on medical leave for 20 days consequently the work concerning his desk got adversely affected and on his return from leave he took about two weeks to clear the backlog in chronological order.

This representation was examined in section and considered at the level of Under Secretary, Ministry of Home Affairs on 24-04-2009. Consultant(S), Joint Secretary, and the same was placed before the Union Home Secretary (who has been delegated powers of the Central Government to decide such cases) on 28-04-2009. The Union Home Secretary, after carefully going through the material on record, including the order of detention and grounds for the same, the representation of the detenu and the comments of the detaining authority thereon, he found that the detenu has been unable to bring forth any material cause or grounds in his representation to justify revocation of the order by exercise of powers of the Central Government u/s 14 of the Act, and rejected the representation. The file was received in the section on 29-04-2009 through the levels of Joint Secretary, Consultant and Under Secretary. Immediately on receipt of the file, a crash wireless message No. II/15028/269/2009-NSA dated 29-04-2009 was sent to Government of Uttar Pradesh and Superintendent, District Jail, Kheri informing about the rejection of the representation of the detenu with the request to inform the detenu of the same. A copy of this wireless message No. II/15028/269/2009-NSA dated 29-04-2009 is enclosed as C.A.I. This wireless message was followed by a letter dated 30-04-2009 addressed to the detenu informing him of the rejection of this representation by the Central Government. He was also informed that Home Secretary, Government of Uttar Pradesh and Superintendent District Jail, Kheri, were also requested to inform him of rejecting of his representation(Annexure C.A.-II).

It may be mentioned that during the intervening period of receipt of representation and it examination there were 8 holidays in the month of April, 2009 on account of Mahavir Jayanti(7th), Good Friday(10th), Public Holidays being Saturday and Sunday(11th, 12th, 18th, 19th, 25th and 26th).

District Magistrate, Kheri, has also filed his affidavit while justifying the passing of detention order. He has stated that the activities of petitioner are prejudicial to the maintenance of supplies and services essential to the community. Sponsoring authority had placed various documents before him and having considered the same to be relevant and cogent and having applied his mind, he reached the subjective satisfaction that the activities of petitioner are prejudicial to the maintenance of supplies and services, essential to the community. District Magistrate has also mentioned that there was no delay in passing the detention order since the bail application of petitioner was rejected on 24-11-2008 vide the order passed by Special Judge, Kheri. However, a necessity to pass the impugned detention order arose when the notice for bail application was given to the office of Government Advocate in the High Court and the Police Authorities concerned submitted their reports dated 07-03-2008 and 08-03-2008 before the deponent District Magistrate. According to District Magistrate, there were some typographical errors which were later corrected but there was no material defect in the order of detention which was passed only after complete application of mind, and recording of his subjective satisfaction for passing the same. As many as 23 documents were supplied to the petitioner apart from, reports of sponsoring authority along with grounds of detention. Further, counterfeit currency notes were also recovered from the possession of petitioner and it has come on record that the said notes had been received from one Chandrashekhar Mahto, resident of P.S. Sikta, West Champaran, Bihar, and thus, the activities of petitioner were found to be punishable under Sections 489(B), 489(C) and 420 I.P.C. and Section 2(3) of U.P. Gangsters Act. Besides, his activities were also found to be prejudicial to the maintenance of supplies and services essential to the community. Receiving of counterfeit currency notes is also punishable under I.P.C. Representation submitted by petitioner was received in the office of District Magistrate, Kheri, on 21-03-2009 and after receiving the comments of Sponsoring Police Authority on 22-03-2009, the representation was sent to State Government on 23-03-2009 through special messenger and the same was sent to Central Government on 24-03-2009 by speed post. The detention order was approved on 20-03-2009 by the State Government before the petitioner could make his representation, and then the representation was rejected by the State Government vide a message dated 01-04-2009. District Magistrate also rejected the representation of petitioner on 23-03-2009. District Magistrate was informed on 23-03-2009 by Jail Superintendent, Kheri, that the order of detention dated 23-03-2009 was served upon the petitioner and his thumb impression was taken on 24-03-2009. Thus, there was no delay in the disposal of representation.

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

Learned Counsel for petitioner submitted that there was no sufficient material before the detaining authority to reach its subjective satisfaction that the petitioner has disturbed the public order and he was only found to be in the possession of fake currency notes. It is not a case that the petitioner was using fake currency notes. On the other hand, learned State Counsel submitted that there is a notification of Government of India which includes offence u/s 489 I.P.C. and it is a ground for passing the detention order for the reason that the activities of petitioner were found to be prejudicial to the maintenance of supplies and services essential to the community.

Learned Counsel for Union of India submitted that there was no delay on the part of Central Government in disposing the representation.

We have carefully considered the submissions that there is a notification of Government of India, holding the offence u/s 489 I.P.C. to be prejudicial to the maintenance of supplies and services to the community and further that even on the ground of solitary incident, the State can pass the detention order under N.S.A. and that there was no inordinate delay in the disposal of representation which was submitted on 21-03-2009. It was received in the concerned section through State Government on 06-04-2009 and as the concerned dealing hand proceeded on medical leave for 20 days, it took about two weeks to clear the backlog of his desk. The representation was considered at the level of Under Secretary on 24-04-2009 and finally placed before the Union Home Secretary who after carefully going through the materials on record including the order of detention and grounds as well as comments of the detaining authority rejected the case of petitioner, and the file was received in the concerned section on 29-04-2009. Information about the rejection was sent to Government of U.P. and the Superintendent, District Jail, Kheri.

Having given our anxious consideration to rival submissions and the explanation given for delay in disposal of representation, we notice that the representation was submitted on 21-03-2009 but disposed of after a gap of more than one month on 29-04-2009. The detenu submitted the representation on 21-03-2009 whereas it was received in the office of Central Government on 06-04-2009 and the affidavit of concerned authority does not contain any explanation for the delay. It is not a plausible explanation to mention that the concerned dealing hand had proceeded on medical leave for 20 days, consequently the work concerning his desk had got adversely affected and the matter could not be taken up till 24-04-2009 at the Under Secretary level. This Court has quashed the detention orders on the ground of delay in disposal of representations without proper explanation in writ petitions No. 217 (H/C) of 2009 (Shiv Shanker Soni v. Union of India and Ors.), Writ Petition No. 458 (H/C) of 2009 (Mukesh Choudhary v. State of U.P. and Ors.) Writ Petition No. 472 (H/C) of 2009 (Ashok Kashyap v. State of U.P. and Ors.) and Writ Petition No. 271 of 2009 (H/C) (Sonu @ Salman v. State of U.P. and Ors.) while following ratio of judgments of Supreme Court in:

Harish Pahwa v. State of U.P. and Ors. 1981 SCC (Cri.)589

R. Paulsamy v. Union of India and Anr. 1999 SCC (Cri.) 549

Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors. 1989 SCC (Cri.) 520.

Solomon Castro v. State of Kerala and Ors. 2001 SCC (Cri.) 650.

Rajammal v. State of T.N. and Anr. 1999 SCC (Cri.) 93

Usha Agarwal v. Union of India and Ors. (2007) 1 SCC (Cri.) 342 And

Harshala Santosh Patil v. State of Maharashtra and Ors. (2007) 1 SCC (Cri.) 680

Hence, the writ petition is allowed and the detention order dated 09-03-2009 passed by District Magistrate, Kheri (Annexure-1) is hereby quashed. It is thus directed that the petitioner, namely, Tara Chand Jain, son of Late Gilliram Jain, resident of Pitambarganj, P.S. Kotwali Nagar, District-Hardoi, shall be released forthwith from the detention, if not, wanted in any other case.