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1985 DIGILAW 602 (ALL)

Kashi Nath Yadav v. Union of India

1985-05-22

I.P.SINGH, SHUKLA

body1985
JUDGMENT I.P. Singh, J. - Kashi Nath Yadav, petitioner, (hereinafter referred to as the 'detenu') has filed this Habeas Corpus Writ Petition under Article 226 of the Constitution of India to challenge the validity of the detention order dated 28.8.84 passed by the District Magistrate, Saharanpur (hereinafter referred to as the 'detaining authority') passed under Section 3(2) of the National Security Act (Act No. 65 of 1980) (hereinafter referred to as the 'Act') with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. 2. We have heard the learned counsel from both sides. After hearing them, we feel that it would not be necessary to detail all the facts and points involved in this writ petition because, in our view, it can be disposed of on a short point .o be discussed hereinafter. 3. The detention order was passed on 28.8.84 by the District Magistrate, Saharanpur. Learned counsel for the detenu has pointed out that in the counter affidavit of Sri M.L. Miglani, Desk Officer, Ministry of Home Affairs, New Delhi, it has been mentioned in paragraph 4 that the report was envisaged under section 3(5) of the Act about the detention of the detenu was made by the State Government to the Central Government vide their letter dated 6.9.1984. That the said report was received by the Central Government in the Ministry of Home Affairs on 13.9.1984 and it was immediately attended to and scrutinised. The scrutiny of the said report was completed by the Central Government in the Ministry of Home Affairs on 18.9.1984. It is further contended that in this way meticulous compliance on section 3(5) was made. 4. In our view, the report which is received by the Central Govt. is not only to be scrutinised but has to be effectively disposed of within the meaning of section 14 of the Act. Section 14 confers wide powers on the Central Govt. to revoke the detention order. This power can also be exercised on the receipt of the report from the State Government. This section confers a right on the detenu to have the said report effectively disposed of because such a disposal may go in favour of the detenu and secure his release. to revoke the detention order. This power can also be exercised on the receipt of the report from the State Government. This section confers a right on the detenu to have the said report effectively disposed of because such a disposal may go in favour of the detenu and secure his release. In this background it becomes incumbent and obligatory on the Central Government to apply its mind to the report submitted by the State Government and effectively dispose of the same. If this obligation is not discharged, it has the effect of rendering the detention order invalid. 5. The scrutiny of the report submitted by the State Government is something which falls too short from its actual disposal. Sri M.L. Nigiani does not specifically say that the said report of the State Government was finally disposed of by the Central Government. It follows that the said report which is pending with the Central Government since 13.9.1984 has not been taken up to complete its disposal till today. The delay in the matter or rather dealing with the said report in a cavalier fashion renders the detention order invalid. Our above view finds support from Full Bench decision in Hitendra Nath Goswami v. State of Assam and others, 1964 Cr. LJ 1558 in which it was held that: "The discretionary power of the Central Government under S. 14(1) in the context of section 3(5) is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and detenu set at liberty." 6. Besides, in the rejoinder affidavit in paragraph 6 it is also alleged that the detenu has directly sent a representation in the month of November, 1984 to the Home Ministry, Union of India, New Delhi, and that also appears not to have been disposed of. There is no rebuttal of the same and we take that the said representation was sent by the detenu in the month of November, 1984 to the Central Government. Its non-disposal also renders the detention. order invalid. The above view of ours also finds support from the following decisions: 1. There is no rebuttal of the same and we take that the said representation was sent by the detenu in the month of November, 1984 to the Central Government. Its non-disposal also renders the detention. order invalid. The above view of ours also finds support from the following decisions: 1. Tarachand v. State of Rajasthan & others, AIR 1980 SC 1361 . Although this decision relates to section 11(1) of the Conservation of Foreign Exchange and Prevention' of Smuggling Activities, 1974 yet those provisions contained in section 14 of the Act. It was held therein: "S. 11(1) clearly enjoins that the Central Government may revoke or modify an order of the detention passed by the State Government. Hence, when once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) so as to render the detention unconstitutional and void." 2. Smt. Raziya Umar Bakshi v. Union of India and others, AIR 1980 SC 1751 . "Section 11 confers a constitutional right on the detenu to have his representation considered by the Central Government. It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is. The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation of the detenu to the Central Government." 7. In the result, the writ petition is allowed. We direct the respondents not to detain the detenu, namely, Kashi Nath Yadav, any more in pursuance of the detention order dated 28.8.1984 passed by the District Magistrate, Saharanpur. It is made clear that the order passed by us today would not entitle the detenu to his physical release if he is wanted in any other case or matter or can be lawfully detained in pursuance of any other order lawfully passed.