R. R. K. TRIVEDI, J. ( 1 ) BY means of this Habeas Corpus Writ Petition petitioner has questioned the legality of his detention under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act) by the order dated 23-12-1999 (Annexure 1) passed by the District Magistrate, Meerut. ( 2 ) ALONG with the impugned order of detention petitioner was served with the grounds on which basis detaining authority formed his subjective satisfaction for detaining the petitioner under the Act. The allegations against the petitioner contained in the grounds, in brief, are that, on 11/07/1999 he along with his companions kidnapped Swatantra Rastogi while he was travelling along with Arun Kumar Jain in Maruti Car No. UP 15 J 5317. It has also been alleged that petitioner and Arun Kumar Jain had conspired to kidnap Swatantra Rastogi and Arun Kumar Jain who was also the friend of Swatantra Rastogi, was taking him in his Maruti Car in pursuance of that conspiracy. Petitioner and his three companions came from behind in Maruti Car No. DL-3-CP-7850 and over took the car in which Swatantra Rastogi was travelling with Arun Kumar Jain near Diwan Tyre at Partapur bye pass and kidnapped Swatantra Rastogi by force. A report of this occurrence was lodged by Arun Kumar Jain same day at 12. 30 PM at P. S. Partapur, which was registered as case crime No. 201 of 1999 under Sections 364-A/394 Indian Penal Code; that this kidnapping was done for realisation of Rupees five Crores as ransom money, which was demanded from the relation of Swatantra Rastogi and Arun Kumar Jain acted as mediator. On account of the aforesaid incident commotion prevailed in entire city of Meerut and in also other adjoining districts namely, Muzaffar-nagar, Ghaziabad and Delhi. The businessman and industrialists were under fear and terror and they do not feel secure in travelling on national highway. Various business organisations expressed their reaction and demanded immediate action against the culprits and to provide protection to them. This kidnapping got wide coverage in newspapers having circulation in the entire country and in the State of Uttar Pradesh. Public order was badly disturbed. That on 23/07/1999 at 3. 15 PM petitioner and his companions, Sri Ram alias Siriya Pahalwan, Mittu Lal, Azad Singh and Ram Pratap had fired at Delhi Police near Ashoka Hotel. This kidnapping got wide coverage in newspapers having circulation in the entire country and in the State of Uttar Pradesh. Public order was badly disturbed. That on 23/07/1999 at 3. 15 PM petitioner and his companions, Sri Ram alias Siriya Pahalwan, Mittu Lal, Azad Singh and Ram Pratap had fired at Delhi Police near Ashoka Hotel. In defence police also fired, in which Siriya Pahalwan died on the spot and petitioner and his three companions were arrested by Delhi Police. On search one Mouser Pistol No. 527512 along with cartridges in magazine, one mobile telephone and diary of Swatantra Rastogi were recovered from the petitioner. From the companions also illicit fire arms were recovered. In respect of this occurrence case Crime No. 270 of 1999, under Sections 186, 353, 307/34 Indian Penal Code and 25, 27, 54/59 of Arms Act were registered in P. S. Chanakyapuri, Delhi. After investigation charge sheet has been submitted in the Court. ( 3 ) SHRI A. K. Singh, Station Officer, P. S. Partapur who was also Investigating Officer of case Crime No. 201 of 1999 learnt about the arrest of petitioner and his companions, Vikram Khari and Arun Gurjar. He went to Delhi and recorded the statements of accused persons. Accused confessed their involvement in the conspiracy and kidnapping of Swatantra Rastogi for realising ransom of Rupees five Crores. On 24/07/1995 Arun Kumar Jain was also arrested who had joined hands with them in this heinous crime for giving lesson to Swatantra Rastogi. ( 4 ) ON 13/07/1999 at 5. 30 AM Swatantra Rastogi was released and he was recovered by Meerut police while moving in Delhi. Investigating Officer then recorded the statement of Swatantra Rastogi who disclosed the names of petitioner and his companions, Vikram Khari, Arun Gurjar and Jagdish alias Jaggi. He also gave statement that petitioner snatched his watch, ring and golden chain. Case crime No. 201 of 1999 then was converted for offences under Sections 364-A and 394 Indian Penal Code. CBCID investigated the case and has filed charge sheet against the petitioner and his companions, Arun Kumar Jain, Vikram Khari, Jagdish Prasad Kasana alias Jaggi and Arun Gurjar on 19-10-1999, which is under consideration. ( 5 ) THE petitioner is presently confined in criminal case No. 201 of 1999, under Sections 364-A, 394, Indian Penal Code of P. S. Partapur and other criminal cases. ( 5 ) THE petitioner is presently confined in criminal case No. 201 of 1999, under Sections 364-A, 394, Indian Penal Code of P. S. Partapur and other criminal cases. The petitioner is trying for his release from jail by obtaining bail from the Court. He has been granted bail by the High Court and in remaining offences applications are pending. There is strong possibility that he shall be granted bail. Petitioner has 20 years old criminal history behind him. He is hardened and expert criminal and habitual in committing crime after release on bail which shall be prejudicial to the maintenance of public order. ( 6 ) ON the aforesaid grounds detaining authority recorded his satisfaction that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order it has become necessary to detain him under the Act. ( 7 ) PETITIONER was also informed that he has right to make representation under Section 8 of the Act against his detention to the State Government and the Central Government, which may be submitted through Superintendent of Jail where petitioner is confined presently. He was also informed that he has right to make representation under Section 10 of the Act to the Advisory Board and his case shall be referred for consideration within three weeks. Petitioner was also intimated his right of personal hearing before the Advisory Board under Section 11 of the Act and if he so desires he may intimate it through jail authorities. ( 8 ) THE detention order dated 23-12-1999 was approved by the State Government on 3-1-2000, under Section 3 (4) of the Act. The order of detention together with grounds and other connected papers were sent to the Central Government, which were received on 8-1-2000 under Section 3 (5) of the Act. ( 9 ) THE case of the petitioner was referred to the Advisory Board on 3-1-2000 under Section 10 of the Act. The Advisory Board fixed 13-1-2000 for hearing on which date petitioner personally appeared. The Advisory Board hearing the petitioner gave opinion on 28-1-2000 that there was sufficient cause for detaining the petitioner under the Act. On receipt of the opinion of Advisory Board, State Government again examined the case of the petitioner and confirmed his detention for the period of 12 months. The Advisory Board hearing the petitioner gave opinion on 28-1-2000 that there was sufficient cause for detaining the petitioner under the Act. On receipt of the opinion of Advisory Board, State Government again examined the case of the petitioner and confirmed his detention for the period of 12 months. ( 10 ) PETITIONER submitted his representation on 10-1-2000 to Superintendent, Central Jail No. 2 Tihar, New Delhi, which was received by the State Government on 18-1-2000. Another representation dated 11-1-2000 submitted to Superintendent Jail No. 2 Tihar, New Delhi was received by the State Government on 25-1-2000. Consideration on both the representations was started on 28-1-2000. It was submitted to the Secretary, Home and Confidential Department on 29-1-2000. The representations were finally rejected by the State Government on 31-1-2000. ( 11 ) THE representation of petitioner dated 21-1-2000 forwarded by the U. P. Advisory Board along with letter dated 28-1-2000 was received by the State Government on 29-1-2000. The consideration on this representation was started on 2-2-2000, which was rejected on 4-2-2000. ( 12 ) IN this petition counter affidavits have been filed by Shri A. K. Awasthi, District Magistrate, Meerut (detaining authority), by R. A. Khan, under Secretary, Government of U. P. in Home and Confidential Department and by Sushil Kumar, Under Secretary, Ministry of Home Affairs, Government of India for respondent No. 4. Rejoinder affidavit has also been filed. ( 13 ) WE have heard Shri D. S. Misra, learned counsel for the petitioner, Shri Sudhir Mehrotra, learned AGA for respondents Nos. 2 and 3 and Shri K. N. Pandey for respondent No. 4. ( 14 ) LEARNED counsel for the petitioner has made following submissions :- 1. That representation of the petitioner was not placed before the Advisory Board as required under Section 10 of the Act and it rendered continued detention of the petitioner illegal. In support of his submission reliance has been placed on para 3 of the counter-affidavit filed by Shri R. A. Khan. 2. Learned counsel has submitted that incident relating to alleged kidnapping of Swatantra Rastogi took place on 11-7-1999 and petitioner was arrested on 23-7-1999, however, the impugned order has been passed on 23-12-1999 i. e. after five months and for this delay no explanation has been given by the detaining authority. 2. Learned counsel has submitted that incident relating to alleged kidnapping of Swatantra Rastogi took place on 11-7-1999 and petitioner was arrested on 23-7-1999, however, the impugned order has been passed on 23-12-1999 i. e. after five months and for this delay no explanation has been given by the detaining authority. Learned counsel has invited our attention to para 15 of the writ petition and para 14 of the counter-affidavit filed by the detaining authority. It is submitted that delay of five months was too long to snap the live link between the order of detention and the object and purpose for which it was thought necessary to prevent the petitioner. It has been submitted that impugned order is liable to be quashed. 3. Third submission of the learned counsel for the petitioner is that co-accused, Arun Kumar Jain was detained under the Act vide order dated 13-9-1999. The order of detention was, however, revoked by the State Government on 28-10-1999. However, this order was not placed before the detaining authority or before the appropriate Government at the time of confirmation under Section 12 of the Act and the order of detention vitiated for non-consideration of the above orders. 4. Lastly, it has been submitted that, admittedly, first representation of the petitioner dated 10-1-2000 was received by the State Government on 18-1-2000 but the consideration on it was started on 28-1-2000 i. e. after ten days. No explanation for this delay has been given, which rendered continued detention of the petitioner illegal. ( 15 ) LEARNED AGA, on the other hand, submitted that delay in deciding the representation has been explained in para 3 of the counter-affidavit filed by Shri R. A. Khan and the detention of petitioner does not suffer from any illegality. It has also been submitted that petitioner was granted bail on 8-12-1999 by the High Court and he was trying to obtain bail in other criminal cases and when there appeared real possibility of petitioner being released on bail sponsoring authority submitted its report on 22-12-1999 and the impugned order of detention was thereafter passed on 23-12-1999. Hence, there was no question of any delay in passing the impugned order. It is incorrect to say that live link between the incident and the detention order had snapped on the date it was passed. Hence, there was no question of any delay in passing the impugned order. It is incorrect to say that live link between the incident and the detention order had snapped on the date it was passed. ( 16 ) WE have carefully considered the submissions made by the learned counsel for the parties. For considering the first submission of the learned counsel for the petitioner that representation of the petitioner was not placed before the Advisory Board as required under Section 10 of the Act and this failure rendered continued detention of the petitioner illegal, it is necessary to consider the provisions of Section 10 of the Act, which reads as under :-"reference to Advisory Board :-- Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date detention of a person under the order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of Section 3, also the report by such officer under sub-section (4) of that section. " ( 17 ) FROM perusal of provision contained in Section 10 it is clear that it created an obligation on the Government to place before the Advisory Board the grounds on which basis the order has been passed and the representation, if any, made by the person affected by the order. The aforesaid requirement incorporated in Section 10 of the Act, is towards fulfilment of the constitutional mandate contained in Article 22 (4) of the Constitution. Thus, the obligation created is mandatory and its breach may render continued detention illegal. It should not be forgotten that consideration by the Advisory Board of the matter and the material used against the detenu, is only opportunity available to him for a fair and objective appraisal of the case. ( 18 ) HOWEVER, the legal position with regard to placing of representation of the detenu before the Advisory Board is slightly different as compliance of this part of Section 10 is dependant on submission of the representation by the detenu. ( 18 ) HOWEVER, the legal position with regard to placing of representation of the detenu before the Advisory Board is slightly different as compliance of this part of Section 10 is dependant on submission of the representation by the detenu. Honble Supreme Court in the case of State of Rajasthan v. Shamsher Singh, AIR 1985 SC 1082 : (1985 Cri LJ 1348), considered this legal position and in para 7 of the judgment held as under :-"the legislative scheme contained in this section envisages the situation that there may be a case where no representation at all is made or within the time contemplated under Section 10, the representation has not been forthcoming. We agree with the submission of Mr. Jethmalani that obligation cast under Section 10 of the Act is paramount and the strictness with which a mandate has to be complied with is absolute. While making of the reference under Section 10 with the grounds of detention is a must, furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government. Though under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter, there is no obligation cast on the detenu to make a representation within the definite time. We are, therefore, prepared to accept the submission of the learned Advocate-General that while considering the compliance with Section 10 of the Act emphasis has to be laid on making of the reference and forwarding of the grounds of detention, and the placing of the representation has to be judged on different basis. We may not be understood to be of the view that it is open to the appropriate Government to withhold the placement of the representation unduly or indefinitely. We may not be understood to be of the view that it is open to the appropriate Government to withhold the placement of the representation unduly or indefinitely. " ( 19 ) HONble Supreme Court in the case of Frances Coralie Mullin v. W. C. Khambara, AIR 1980 SC 849 : (1980 Cri LJ 548), relying on Constitution Bench judgment in the case of Jayanarayan Shukul v. State of West Bengal, AIR 1970 SC 675 : (1970 Cri LJ 743), held as under :-"the four principles enunciated by the Court in Jayanarayan Shukul v. State of West Bengal as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom against indifference, insensibility, routine and red-tape and thus to secure to the detenu the right to make an effective representation. We agree : (1) the detaining authority must provide the detenu a very early opportunity to make a representation, (2) the detaining authority must consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. We, however, hasten to add that the time-imperative can never be absolute or obsessive. The Courts observations are not to be so understood. There has to be leeway, depending on the necessities (we refrain from using the word circumstances) of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before than but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority. " ( 20 ) FROM the aforesaid view expressed by Honble Supreme Court it is clear that representation submitted by the petitioner cannot be withheld by the appropriate Government from placing it before the Advisory Board unduly or indefinitely. The representation must be forwarded to the Advisory Board before the Board makes its report. The time imperative cannot be absolute or obsessive. Now it has to be seen when the representation of the petitioner was received by the appropriate Government and how has it been dealt with. For this purpose para 3 of the counter affidavit of Shri R. A. Khan, Under Secretary, Home and Confidential Department is very material. The relevant part of which is being reproduced below :-"3. That, in reply to the averments made in paragraphs-13, 14, 16, 31, 32 and 35 of the petition, it is stated that the petitioners representation dated 10-1-2000 forwarded by the Superintendent, Central Jail No. 2 Tihar, New Delhi through his letter dated 10-1-2000, was received by the State Government in concerned section on 18-1-2000. Another representation dated 11-1-2000, forwarded by Superintendent, Central Jail, No. 2 Tihar, New Delhi through his separate letter dated 11-1-2000, was received in concerned section of the State Government on 25-1-2000. Date 13-1-2000 was fixed as the date of hearing before the Advisory Board. Since the Advisory Board had already concluded hearing of the petitioners case on date 13-1-2000, the petitioners representations were not forwarded to the Advisory Board. " ( 21 ) THUS, it is admitted position that representation of petitioner was not forwarded to the Advisory Board on the ground that hearing of Advisory Board had already concluded on 13-1-2000. However, it may be noted that Advisory Board gave its opinion on 28-1-2000 as is clear from para 6 of the counter affidavit filed by Shri R. A. Khan. Honble Supreme Court has held in the case of Frances Coralie Mullin (supra) that the representation must be forwarded to the Advisory Board before the Board makes its report. However, it may be noted that Advisory Board gave its opinion on 28-1-2000 as is clear from para 6 of the counter affidavit filed by Shri R. A. Khan. Honble Supreme Court has held in the case of Frances Coralie Mullin (supra) that the representation must be forwarded to the Advisory Board before the Board makes its report. There is no doubt that first representation of the petitioner was received by the appropriate Government on 18-1-2000 i. e. 10 days before and second representation was received on 25-1-2000 i. e. 3 days before the opinion was given by the Advisory Board. In these circumstances, the State Government had sufficient time and was under obligation to forward the representations of the petitioner to the Advisory Board for its consideration. The representation could not be withheld from being placed before the Advisory Board on the ground that hearing had concluded on 13-1-2000. In this case we have no hesitation in saying that representation of the petitioner was withheld unduly and indefinitely and in violation of Sec. 10 of the Act, which rendered continued detention of the petitioner illegal. In similar circumstances, in Habeas Corpus Writ Petition No. 45541 of 1999, Govind Singh v. State of U. P. (Reported in 2000 (2) EFR 80) where the representation of the detenu was not forwarded to the Advisory Board though opinion was given by the Advisory Board long after receipt of the same, we vide judgment dated 12-5-2000 held the continued detention as illegal. We draw support from that judgment also. As petitioner is found entitled to succeed on first ground it does not appear necessary for us to consider other submission made by the learned counsel for the petitioner. ( 22 ) FOR the reasons stated above, this writ petition is allowed. As the continued detention of the petitioner has been found illegal, respondents are directed to set the petitioner at liberty forthwith, if his detention is not required in any other case. Petition allowed. .