Zafar Ahmad vs State of U.P.

In both the petitions questions of facts and law are similar and they can be conveniently decided by a common order against which the parties Counsel have no objection. Habeas Corpus Petition No. 30891 of 1998 shall be the leading case.

These petitions have been filed challenging the orders dated 29th May, 1998 passed by respondent No. 3, District Magistrate, Mau under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) under which the petitioners have been detained. Along with the impugned orders, petitioners were also served with the grounds on which detaining authority formed its subjective satisfaction for detaining the petitioners. From a perusal of the grounds it appears that the petitioners were involved in case Crime No. 139 of 1997 under Sections 153A and 203, Indian Penal Code register at Police Station Dakshin Tola, in which allegations against the petitioners were that they spread rumours which created tension between the two communities. The second case in which the petitioners were involved is case Crime No. 205 of 1998 under Sections 147, 148, 149, 336,392, 504, 332, 307,427, 323,153A and 295A, Indian Penal Code and Section 7 of the Criminal Laws Amendment Act, which was registered at police station Kopaganj of district Mau. In this case allegation against the petitioners was that they collected a crowd of more than 2000 persons consisting of Surmi Muslims and attacked the procession of Moharram of Shia Muslims, which disturbed the public order in the area. The third case is case Crime No. 206 of 1998 under Sections 147, 148, 149, 307, 323, 336, 427, 332 and 506 Indian Penal Code and Section 7 of the Criminal Laws Amendment Act, which was registered at police station Kopaganj, District Mau. In this case also the allegations were that the petitioners collected more than 200 persons of Sunni Muslims and attacked the procession of Shia community.

Learned Counsel for the petitioners, however, has challenged detention of the petitioners on the ground of inordinate and unexplained delay in deciding the representations of the petitioners by the Central Government. In this connection undisputed facts are that the petitioners filed their representations on 14th June, 1998 which were received by the Central Government through the State Government on 26th June, 1998. As per the facts stated in the counteraffidavit filed by Bina Prasad, the representations were considered and certain vital information (opinion of the Advisory Board) was required from the State Governmeni through wireless message dated 29th June, 1998. The requisite information could be received by the Central Government in 21st July, 1998 which was sent by the State Government on 17th July, 1998. It maybe noticed here that opinion of the Advisory Board was received on 16th July, 1998. On receipt of the information the case was put up before the Director, Ministry of Home Affairs on 22nd July, 1998, who after consideration put up the same with his comments before the Joint Secretary on 25lh July, 1998. The Joint Secretary considered the case and put up the same before the Home Minister on 27th July, 1998. The Home Minister considered the representations of the petitioners and rejected the same on 12th August, 1998. Learned Counsel for the petitioners has submitted that the representations of the petitioners were rejected after 46 days from the date of their receipt and the delay has not been explained. The only explanation which has been given in paragraph 8 of the counter affidavit of Bina Prasad relates to six days with regard to 25th and 26th July, 1998 and 1st, 2nd, 8th and 9th August, 1998. Learned Counsel for the petitioners has submitted that under the law the respondents are required to explain the entire delay in deciding the representation.

We have heard Sri Daya Shankar Mishra assisted by Sri K.K. Rai for the petitioners, Sri A.K. Tripathi, learned Additional Government Advocate for the State Government and Sri S.N. Srivastava, Senior Standing Counsel for Union of India and also perused the record.

The High Court as well as the Hon''ble Supreme Court in a number of cases have stressed that the representation filed by the detenu should be decided expeditiously as required under Article 22(5) of the Constitution of India. The law in this connection has been cry stallised and settled and needs no elaboration. In a recent case, Rajammai v. State of Tamil Nadu, JT 1998 (8) SC 598, Hon''ble Supreme Court has held that the test is not duration or range of delay but material thing is how delay has been explained by the authority concerned. Relevant paragraph 9 of the judgment is jreproduced below:

"The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it in for the authority concerned to explain the delay, if any, is disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by theauthority concerned."

If the facts of the present case are tested in the light of the position of law expressed by the Hon''ble Supreme Court there remains no doubt that the representations of the petitioners were not decided expeditiously as required in law. Representations coupled with all material were placed before the Home Minister on 27th July, 1998 but they were decided on 12th August, 1998 i.e. after 15 days. In normal course such a representation could be decided within a day or two. This delay of 15 days could also be explained by the respondents, but in paragraph 8 of the counteraffidavit explanation has been given only with regard to four days. i.e. with regard to 1st, 2nd, 8th and 9th August, 1998. If four days are excluded, there was delay of 11 days which remained unexplained. The Hon''ble Supreme Court in case of Rajammai (supra) found continued detention illegal, as four days'' delay in deciding the representation was not explained. In our opinion, the present case is squarely covered by the above decision of the Hon''ble Supreme Court and the petitioners are entitled for relief, as their detention has been rendered illegal.

For the reasons stated above, the writ petitions are allowed. Respondents are directed to release the petitioners Jafar Ahmad and Ansar Ahmad forthwith if their detention is not required in any other case. Petition allowed.