Azimuddin Alias Hazi v. Superintendent — 1996 DIGILAW 549 (ALL)

Judgment : R.N. Ray, J. 1. THIS petition has been preferred by Azimuddin alias Hazi, s/o Sayeeduddin, r/o 402, Firoznagar, Lisari Road, P. S. Lisari Gate, District Meerut for quashing detention order dated 4.8.95 passed by the District Magistrate, Meerut under Section 3 (2) of the National Security Act, 1980. On the same day, the copy of the detention order was given to the petitioner. The petitioner's case is that he was arrested on 31.7.95/1.8.95 by the H.S.O. Kotwali Meerut. A telegram was sent by the petitioner's father addressed to the Chief Minister, at Lucknow, as such the interference of the Chief Minister was sought for the illegal detention of the petitioner by the police from the residence of the petitioner within the P. S. Lisari Gate, Meerut. Another telegram was made on behalf of the petitioner on 1.8.95 wherein it was alleged that the petitioner was arrested in the mid-night of 31.7.95/1.8.95 from his residence and that telegram was also addressed to the Chief Minister and was also addressed to the Chief Justice of India, New Delhi. In fact petitioner's further case is that though he was arrested in the mid-night of 31.7.95/1.8.95 but he was shown as arrested on 2.8.95 at 8.20 p.m. from Indra Chowk, P. S. Kotwali, Meerut. The allegation against the petitioner runs as follows : He was manufacturing bombs and his associates died out of explosion of the bomb while they were engaged in making bombs. It is further alleged that the petitioner was arrested on 2.8.95 at about 8.20 p.m. while the time-bomb exploded near the railway bridge within the police station Kotwali, District Meerut. It has been contended that the petitioner was shown as arrested in connection with Crime No. 207/85, under Section 4/5 of the Explosive Act and he has been implicated in that way for the alleged prejudicial activity to public security. The District Magistrate, Meerut, passed the impugned detention order on the basis of the report of the S.S.P., Meerut on 4.8.95 which was served upon the petitioner on the same day. It is the further case of the petitioner that the District Magistrate did not apply his mind but mechanically, as per request made by the S.S.P., Meerut, passed the impugned detention order dated 4.8.95 under Section 3 (2) of the National Security Act. It is the further case of the petitioner that the District Magistrate did not apply his mind but mechanically, as per request made by the S.S.P., Meerut, passed the impugned detention order dated 4.8.95 under Section 3 (2) of the National Security Act. Petitioner was produced before the court in the aforesaid Crime No. 207/85, under Section 4/5 of the Explosive Act and he was send to jail on 3.8.95 by the order of the learned Magistrate. The Circle Officer of Kotwali Police Station made a proposal for detention of the petitioner on 3.8.95 which was placed before the S.S.P., Meerut and who in his turn alongwith the connecting papers requested the D.M., Meerut for passing the necessary detention order against the petitioner on 4.8.95 and actually the D.M., Meerut passed the impugned detention order on 4.8.95 and sent the order along with papers to the appropriate authorities of the State Government on 7.8.95 for approval of the order dated 4.8.95 and the State Government approved the said detention order dated 4.8.95. The State Government sent the order of approval along with the order of the D.M., Meerut, to the Central Government on 14.8.95. Thereafter, the petitioner submitted his representation to the Superintendent, District Jail, Meerut, which was addressed to the District Magistrate, Meerut, as such the Superintendent, District Jail Meerut, sent the said detention order alongwith particulars to the Central Government. The petitioner submitted his representation to the Jail Superintendent which was considered by the Advisory Board on 1.9.95. The State Government received the advice of the Advisory Board on 2.9.95 relating to the petitioner's detention and the representation made by the petitioner and that detention order was affirmed by the State Government for a period of one month. On 22.9.95, the representation of the petitioner was sent to the Central Government and on 21.9.95, the same was rejected by the Central Government. Be it noted that the representation made by the petitioner (eight copies) were received by the Superintendent Jail at Meerut on 19.8.95. The Superintendent, Central Jail, Meerut, sent the same to the D.M. Meerut, on 24.8.95, and the D.M. Meerut, sent the same to the State Government and the State Government received the same on 25.8.95. Parawise comments of the D.M. Meerut were sent by the State Government to the Central Government and the same was received by the Central Government on 30.8.95. Parawise comments of the D.M. Meerut were sent by the State Government to the Central Government and the same was received by the Central Government on 30.8.95. The representation of the petitioner along with parawise comments of the D.M. were sent to the Secretary Homes, on 30.8.95 and the Central Government rejected that representation of the petitioner on 21.9.95 which was intimated by the Government of India on 10.10.95 and the same intimation was received by the Superintendent Central Jail on 22.10.95. The representation of the petitioner for sending the same through post was made on 18.8.95 which was received by the Superintendent, Central Jail, Meerut on 19.8.95. The parawise comments sent by the District Magistrate, Meerut to the State Government was received by the State Government on 30.8.95 and the Principal Secretary, Government of U. P. examined the parawise comments on 31.8.95 and the State of U. P. rejected the representation of the petitioner on 31.8.95 and the District Magistrate received the rejection order of the State Government on 4.9.95. The detention order has been challenged by the petitioner on the following grounds :- 2. IT has been contended by the petitioner that he was arrested in the mid-night on 31.7.95/1.8.95, but he was shown as arrested on 2.8.95 at about 8.20 p.m. which was contrary to the facts. The arrest of the petitioner was made on 31.7.95/1.8.95 and information of such arrest on 31.7.95 by the telegram was given by petitioner's father on 1.8.95 and on 2.8.95 by petitioner's mother. Copy of the telegrams were not placed before the Advisory Board to the prejudice of the petitioner. The copies of the aforesaid telegrams were not placed before the Central Government also for due consideration along with petitioner's representation against the impugned detention order passed by the D. M., Meerut. IT has been contended that though the representation of the petitioner was received by the Superintendent, Central Jail, Meerut on 19.8.95 but no body in Jail took pain for sending the same to the Central Government and the Superintendent, Central Jail, committed 11 days delay in sending the representation of the petitioner to the Central Government and the rejection order of the Central Government was passed after a month. Since the representation petition was received by the Superintendent, Central Jail, Meerut on 19.8.95, as such this inordinate delay in transmitting the same to the authority concerned should also be taken into consideration for quashing the detention order. In view of the provisions of Article 22 (5) of the Constitution read with Section 14 of the National Security Act, the impugned detention order become illegal and liable to be set aside. In support of his contention, learned counsel for the petitioner, referred the following cases reported in 1980 SCC (Cri) 14 ; 1982 (Cri) LJ page 1 ; JT 1996 (2) SC 532; JT 1994 SC 517; 1993 LLJ 58 paras 46-48; 1989 SCC (Cri) 554; 1994 SCC (Cri) 706 (Para 2); 1995 SCC (Cri) 1408; 1993 SCC (Cri) 126; 1993 SCC (Cri) 234 (Paras 2, 3. 4); 1994 SCC (Cri) 482 ; 1994 SCC 498 ; 1989 SCC (Cri) 153 ; 1984 (Cri) LJ 1751 and AIR 1979 SC 447 . 3. LEARNED counsel for the State submitted that those telegrams which were claimed to have been sent by parents of the accused were product of planned thinking to defeat the detention order by making all attempts to show as if the petitioner was actually arrested on the night of 31.7.95/1.8.95. It is a product in apprehension of the petitioner's prospective arrest by the police. 4. IT has been contended that the petitioner was arrested at about 8.20 p.m. on 2.8.95 and as such, he was produced in connection with case Crime No. 207/85, under Section 4/5 of the Explosive Act and he was produced before the learned C.J.M., Meerut on 3.8.95 and he was sent to jail by the order of the learned C.J.M., Meerut. Since the petitioner has not furnished bail bonds or bail order before the Superintendent, District Jail, Meerut, as such he could not be released and the petition itself on that ground is liable to be dismissed in limine. It has been further contended that since the order of detention was passed by the D.M., Meerut, and was approved by the State Government. U.P. which happens to be the appropriate Government within the meaning of Section 2 (a) of the National Security Act, 1980. It has been further contended that since the order of detention was passed by the D.M., Meerut, and was approved by the State Government. U.P. which happens to be the appropriate Government within the meaning of Section 2 (a) of the National Security Act, 1980. so far as the alleged detention order is concerned, the State Government of U. P. is the appropriate authority who approved the detention order and the representation of the petitioner was duly considered by the State Government and thereafter rejected the representation of the petitioner. Under such circumstance also, this petition is liable to be dismissed. It has been contended that there is no allegation against the District Magistrate, Meerut, that he was biased against the petitioner or the members of the Advisory Board or the State Government were biased and have not applied mind to the detention order and the representation petition moved by the petitioner, so this writ petition is liable to be dismissed for non-availability of grounds to the petitioner In support of contention for quashing the detention order. 5. IT has been contended by the learned counsel for the State that there was no delay In deciding the said representation and if at all the delay Is found, then that should be taken as sufficiently explained and In view of the rejection of the representation of the present petitioner after due consideration of materials before the authorities concerned. The Honble Apex Court held that even unexplained delay in forwarding the representation of the petitioner to the Central Government does not render the continued detention Illegal. In this connection, learned counsel for the State referred the case reported In Satpal v. State of Punjab, 1981 SCC 2230. IT has been further submitted that another decision as reported in 1993 SCC(Cri) 913, where there was delay for more than 2 months in which about 25 days were totally unexplained, the Apex Court has held the detention to be legal. In other decision reported in 1990 SCC 446, In which there was 35 days delay and about 15 days unexplained delay the detention was held to be legal. In other decision reported in 1990 SCC 446, In which there was 35 days delay and about 15 days unexplained delay the detention was held to be legal. IT has been further argued that the court is to see whether there was any biased mind as reflected from the order passed by the Central Government or by State Government in deciding the representation petition of the petitioner and whether due consideration was given on the material facts placed before them. IT has been further argued that in another decision as reported In Panna v. A S. Samra. 1994 SCC 1274, 52 days delay was held to be legal for not quashing the detention order. In this connection learned State Counsel referred two other decisions as reported in Noor Salman Makani v. Union of India, 1994 SCC 575 paras 3 and 4 and in State of U. P. v. Sakeel Ahmad, JT 1995 (8) 561. IT has been further argued that the decisions pronounced in the cases where orders are passed in a COFEPOSA, do not apply in the present case because there is no section under COFEPOSA as Section 8 (1) of National Security Act. Though Section 11 of COFEPOSA is para materia of Section 14 of National Security Act, the Hon'ble Supreme Court and Hon'ble High Court has interpreted Section 11 read with Article 22 (5) of the Constitution of India, should not be attracted unless it appears that the said detention order was without Jurisdiction and was having justification for passing the same. IT has been submitted that copy of the telegrams have been annexed for the first time with this petition. The District Magistrate also stated that the petitioner was involved in an incident on 28.7.95. The contents of telegram has also been denied. The telegram is not an authentic document, unless confirmed by a subsequent signed application, representation or affidavit. The contents of telegram have no authenticity at all and cannot be taken into consideration. In support of his contention, he referred the following decisions : N. Meera Rani v. Government of Tamil Nadu (3) Judges, 1989 SCC 2029 ; District Magistrate v. Jothi Shankar, 1993 SCC 2633 and District Magistrate v. R. Kumar Veli, 1994 SCC (Cri) 229. 6. The contents of telegram have no authenticity at all and cannot be taken into consideration. In support of his contention, he referred the following decisions : N. Meera Rani v. Government of Tamil Nadu (3) Judges, 1989 SCC 2029 ; District Magistrate v. Jothi Shankar, 1993 SCC 2633 and District Magistrate v. R. Kumar Veli, 1994 SCC (Cri) 229. 6. IT has been further argued that the petitioner moved ball application before the learned C.J.M., Meerut on 3.8.95 but nothing has been said In that ball application either about telegram or its contents that he was arrested on 1.8.95. A copy of the said bail application has been supplied to the petitioner and it is also made as a part of the record. IT has been further submitted that from carina of decision right from Rameshwer Shaw's case (Constitution Bench), 1964 SCC 334, it is crystal clear that even in case of a person in custody a detention order can validily be passed, if the detaining authority is aware of the fact that petitioner is actually in custody. If he has reason to believe that the petitioner is trying to be released on bail or there is reasonable apprehension in the mind of the detaining authority that (detenue) was likely to be released. From the facts and circumstances whether the detaining authority had reasonable reasons before him to think that release of the petitioner would be prejudicial in the public interest and he might indulge in prejudicial activities. The detaining authority passed the order after recording his satisfaction in this behalf, the detention order cannot be struck down that the petitioner was not detained on 2.8.95, but on 1.8.95. The material thing is that he was actually in custody on 4.8.95 when detention order was passed. The petitioner was taken into custody by virtue of the impugned order of detention on 4.8.95 while he was already in jail custody by virtue of the order passed by the learned C.J.M., Meerut. IT has been contended that the allegations that law officer of U. P. State represented the State Government and petitioner was not allowed to engage his next friend at the time of hearing before the Advisory Board. IT has been contended that the allegations that law officer of U. P. State represented the State Government and petitioner was not allowed to engage his next friend at the time of hearing before the Advisory Board. In Para 43 of the writ petition, the District Magistrate has said that the State has instructed to the District Authority to produce the record before the Advisory Board on 1.9.95 and in pursuance thereof the District Magistrate and Superintendent of Police were present along with their respective records before the Advisory Board. In pare 6 of the State's counter-affidavit, it has been clearly denied that no law officer represented the State Government before the Advisory Board. In para 6 of the affidavit filed on behalf of Jail Authority it has been clearly stated that the petitioner was informed that he can appear before the Advisory Board along with his next friend (non-advocate) but he had not desired to do so. Moreover, in the representation petition, petitioner did not claim that he may be allowed to appear with his next friend but simply stated that he may be produced before the Advisory Board so that he may plead his case before the Advisory Board. IT has been submitted by the State and these facts have not been denied. The activities of the petitioner are very serious in nature which have been mentioned on the ground. In any case, if the petitioner disputes the fact, the writ petition must fail on this ground alone, because the factual matter cannot be gone into a writ petition and for that purpose proper evidences are to be taken into consideration by the court. In this way learned counsel for the State submitted that the writ petition should be decided in view of the decisions as reported in Sharad Kumar Tyagi v. State of U. P., AIR 1989 SCC 764 paras 20, 21 and Vyay Kumar v. Union of India, AIR 1988 SCC 935. Duly considered the submissions of both sides. We have perused the writ petition along with affidavit and its annexures and also counter-affidavit and supplementary-affidavit along with its annexures and also went through the decisions as referred above by the learned counsel for the petitioner and learned Addl. Govt. Advocate. Duly considered the submissions of both sides. We have perused the writ petition along with affidavit and its annexures and also counter-affidavit and supplementary-affidavit along with its annexures and also went through the decisions as referred above by the learned counsel for the petitioner and learned Addl. Govt. Advocate. Though there is regular provision under Section 8 (1) of the National Security Act to intimate the ground to the detenue relating to the order of detention within the stipulated period as provided in Section 10 of National Security Act, 1980. The appropriate Government are under the legal obligation to place the entire papers before the Advisory Board constituted by the State Government under Section 9 of the Act along with the representation, if any, made by the persons so affected by the said detention order for his due consideration and passing necessary orders of either approval or release as the case may be still then taken control of the provisions of Article 22 (5) of the Constitution of India and every detention order can be challenged regarding his appropriate legality and justification and as such we think that the provisions of Article 22 (5) is duly applicable to see whether this alleged impugned detention order is valid and does not suffer from any infirmity on the grounds of delay etc. 7. IT has been held by Hon'ble Supreme Court that it is necessary for the valid continuance of detention order subject to Article 22 (5) and copies of documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenue along with the detention or in any event not later than the number of days mentioned in the section. The copies of these documents, statements, etc. should be available with the detaining authority itself so that they could be supplied to the detenue immediately as soon as a request is made in that behalf. The decision of the Hon'ble Apex Court reported in 1980 (4) SCC 531 ; 1981 SCC (Cri) 25 and 1980 (4) SCC 624 , is very clear on that point. 8. should be available with the detaining authority itself so that they could be supplied to the detenue immediately as soon as a request is made in that behalf. The decision of the Hon'ble Apex Court reported in 1980 (4) SCC 531 ; 1981 SCC (Cri) 25 and 1980 (4) SCC 624 , is very clear on that point. 8. LEARNED A.G.A. did not answer the argument advanced by the learned counsel for the petitioner relating to the ground that obligation cast on the respondent authority to intimate the detenue that he can make representation to the State Government but also to the Central Government was violated as no intimation was given to the detenue, hence is violative of Article 22 (5) of the Constitution. It is not in dispute that no such intimation was given to the detenue that he can make representation to the Central Government hence the detenue made the representation only to the State Government. Of course the State Government sent the representation petition of the petitioner to the Central Government along with parawise comments of the District Magistrate, Meerut who passed the detention order but whether that part of action of the State Government will cure the defects relating to the omission of the State Government in intimating the detenue that he may also prefer representation petition before the Central Government. 9. APART from this, unexplained delay for about 21 days in this case, the disputed fact is that there was no information/intimation to the detenue by the State Government regarding the detenue's legal right to prefer his representation before the Central Government. The contention of the learned Addl. Govt. Advocate that in view of Section 8 (1) of National Security Act, 1980, the State Government being the appropriate Government within the meaning of Section 2 (a) of National Security Act had only obligation to inform the detenue for making representation only to the appropriate Government, did not appear very sound to us. Definitely the State Government is the appropriate Government within the meaning of Section 8 (1) of National Security Act, 1980, but in view of the decision of the Division Bench of this Court as passed in Ramesh Kalia and Dinesh alias Dineshwar and Ramesh v. State of U. P. and another. Definitely the State Government is the appropriate Government within the meaning of Section 8 (1) of National Security Act, 1980, but in view of the decision of the Division Bench of this Court as passed in Ramesh Kalia and Dinesh alias Dineshwar and Ramesh v. State of U. P. and another. Writ Petition No. 493 (HC) of 1993, it was held : "It is also urged that the petitioner was deprived of making representation before the Central Government as he was informed that he could make representation either to the State Government or to the Central Government and as such petitioner made representation to the State Government only and he could not make any representation to the Central Government it is argued on behalf of the State that since the detenue had made representation to the State Government he had no constitutional right to approach Central Government and to get his representation decided by the Central Government as under the Act the representation is to be made to the appropriate authority and in the present case, the appropriate authority is the State Government. Section 3 (5) of the Act provides that when any order is made or approved by the State Government under this Section, State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government having a bearing on the necessity for the order. Section 14 of the Act further provides that the detention order may at any time be revoked or modified notwithstanding that the order has been made by the State Government, by the Central Government. The aforesaid provisions, therefore, go to indicate that even if the State Government passes an order of detention as appropriate authority, the said order can also be revoked or modified by the Central Government. The detenue. In our opinion, therefore, has also a right to approach the Central Government by means of representation to get the order of detention revoked. Similar point was raised in the case reported in Giant Harendra Singh v. State of U. P., 1993 LLJ 58. The detenue. In our opinion, therefore, has also a right to approach the Central Government by means of representation to get the order of detention revoked. Similar point was raised in the case reported in Giant Harendra Singh v. State of U. P., 1993 LLJ 58. A division Bench of this Court has observed that since the Central Government has been given the right to revoke or modify the detention order, it implies that a person detained has the right to approach the Central Government by proper representation." 10. IN another decision of this Hon'ble Court as reported in Ram Naresh v. Superintendent, District Jail Banda and others, 1995 UP Cr R 385, it was held : The main point, which has been urged before us is that the petitioner has a right to make representation to the Central Government also under Section 14 of the N.S.A. in the detention order the detenue was not informed that he has a right as well. Therefore, there was violation of Article 22 (5) of the Constitution." The right of a detenue to make representation is not confined as stipulated within the meaning of Section 8 (1) of N.S.A. but he has got right to make representation in addition to the appropriate Government and the Central Government by virtue of Section 14 of the N.S.A. In a decision reported in Veeramani v. State of Tamil Nadu, 1994 SCC (Cri) 482, the Hon'ble Apex Court held: "It may be noted that Article 22 (5) casts an obligation on the detaining authority to communicate to the detenue the grounds and to afford to the detenue the earliest opportunity of making the representation. The Article does not say to whom such representation is to be made but the right to make a representation against the detention order undoubtedly flows from the constitutional guarantee enshrined therein. The next question as to whom such representation should be made, depends on the provisions of the Act and naturally such a representation must be made to the authority who has power to approve, rescind or revoke the decision." 11. THE aforesaid decisions make it abundantly clear that right to make representation is to the appropriate authority or the Government which has right to revoke the detention order but the detenue has also right to straight way make representation to the Central Government by virtue of Section 14 of N.S.A. 12. THE aforesaid decisions make it abundantly clear that right to make representation is to the appropriate authority or the Government which has right to revoke the detention order but the detenue has also right to straight way make representation to the Central Government by virtue of Section 14 of N.S.A. 12. THE contention of the learned counsel for the State is that there is difference between National Security Act as there is regular provision of Section 8 (1), whereas such provision is missing in COFEPOSA Act, so violation on the part of the State Government to intimate the detenue that detenue has the right to make representation to the Central Government also is not fatal. We agree to discredit the contention of the learned Addl. Government Advocate because the provisions of Article 22 (5) of the Constitution of India cannot be contrary and violative on the part of the State Government to intimate the detenue regarding his legal right to make representation to the Central Government. Section 14 of N.S.A. certainly is considered as prejudicial to right conferred upon the detenue by our Constitution and Section 14 of N.S.A., 1980. In this connection we rely upon the decision of Hon'ble Supreme Court in a case reported in Kamleshwar Ishwardas Patel v. Union of India, 1995 SCC (Cri) 643 : "Article 22 (5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. THE right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such representation." So we hold that there was unexplained delay in transmitting the representation of the detenue by the jail authority to the State Government and there was also delay in sending of copies of the representation to the Central Government by the State Government as such this delay remained unexplained and so we think that continuation of the detention order has become illegal and requires to be quashed. In another case decided by a Division Bench of this Court under N.S.A. in Writ Petition No. 84 (HC) 1995-Sita Ram v. Superintendent, District Jail, Gonda and others, decided in November, 1995, it was held an opportunity to make representation to the Central Government under Section 14 of the N.S.A., if not given, then detention of a detenue is vitiated and is illegal. So we also hold that impugned detention order has become illegal and continuation of the detention of the petitioner has violated the law in force and as such notice issued against the petitioner be quashed. Hence the petition stands allowed. The impugned order of detention dated 4.8.95 passed by the District Magistrate, Meerut under Section 3 (2) of N.S.A. which was subsequently approved by the State Government stands quashed. The detenue be released forthwith provided he is not wanted in any other criminal case. Petition allowed.