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Allahabad High Court · body

2001 DIGILAW 325 (ALL)

MOHD AQUIL v. STATE OF U P

2001-04-09

R.D.SHUKLA, S.H.A.RAZA

body2001
By means of the present writ petition, the petitioner has assailed the order of detention dated 14-11- 2000, passed by the District Magistrate, Faizabad, under Section 3 (2) of the Na tional Security Act, 1980. 2. The grounds of detention, upon which the order of detention was based, narrate a horrible story. According to the grounds of detention, the petitioner, his family and his friends have been in doctrinated and influenced by dogmatic religious preachings as a result of which he alleged to have placed a bomb in Sabarmati Express train. As a result of explosion of the said bomb the bodies of about ten persons were blown over in pieces. Such an incident also occurred in Aligarh Univer sity. The person arrested there disclosed that he and the petitioner were involved in explosion of the bomb in Sabarmati Ex press train. It has been alleged in the grounds of detention that the petitioner accepted his involvement in the said inci dent in which ten persons were killed and damage was caused to the railways. 3. In dealing with such matters, it was incumbent upon the District Magistrate to have acted with promptness but it is really unfortunate that the District Magistrate in the present case has acted in a most casual and lethargic manner. 4. The National Security Act was enacted for such cases where national security is in danger due to sabotage and violence. A heavy duty is cast upon the executive authorities when passing such an order of detention, keeping in view the National Security Act and Article 22 (5) of the Constitution and to see that the detenu, who is detained under National Security Act, is given an opportunity to prefer a representation against his deten tion before the State Government as well as Central Government a under Article 22 (5) of the Constitution of India. 5. Such a representation should be decided without any delay because under Article 22 (5) of the Constitution, it should be decided "as soon as possible". 6. It is really unfortunate that large number of Habeas Corpus petitions are allowed only for the reason that the repre sentations are not decided promptly but the officers responsible for latches are never put to tasks. 6. It is really unfortunate that large number of Habeas Corpus petitions are allowed only for the reason that the repre sentations are not decided promptly but the officers responsible for latches are never put to tasks. It is the bounden duty of the State to inform the officers, who have been given the power to pass such orders, the requirement of law as well as the prece dents of High Court and Supreme Court. But representations are often allowed to dust on the desk of the officers and often are decided belatedly. 7. In the present case, the petitioner has averred in para No. 27 of the writ petition that he represented to the State Government on 4-12-2000, while he was detained in District Jail, Barabanki. The District Magistrate in para 9 of the counter-affidavit, in reply to the aver ments made in para No. 27 of the writ petition, did not bother to reply the above averment. The District Magistrate has not even stated as to whether any repre sentation was received by her or not. The Deputy Jailor, in para No. 9 of his counter- affidavit has stated that the representation was received by the Jailor on 4-12-2000 which was sent to the State Government, Home Ministry, Government of India and U. P. Advisory Board, Lucknow on 4-12- 2000 itself. The Under Secretary, in his counter-affidavit, in para No. 3 stated that the petitioners representation dated 14-12-2000 (4-12-2000) had not been received in the concerned Section of the State Government till then. In para No. 7 of the counter-affidavit filed on behalf of the Central Government similar averment has been made. 8. In view of the denial by the State Government as well as Central Govern ment that they did not receive the repre sentation of the petitioner till the date of filing of the counter- affidavit, we sum moned the original record as well as Jailor of the District Jail, Barabanki He ap peared before this Court today alongwith the record. The representation of the petitioner finds place on the record which shows that on 4-12-2000 Jailor of the Dis trict Jail, Barabanki received the reprc-sentat1!. 1 and on the same day it was sent to the District Magistrate, Faidabad by registered post. The receipt of the registered letter and the letter enclosed alongwith the representation find place on the record. The representation of the petitioner finds place on the record which shows that on 4-12-2000 Jailor of the Dis trict Jail, Barabanki received the reprc-sentat1!. 1 and on the same day it was sent to the District Magistrate, Faidabad by registered post. The receipt of the registered letter and the letter enclosed alongwith the representation find place on the record. We have also perused the relevant registers. The entries, made in kadiyana Register as well as dispatch Register mention that the representation, preferred by the petitioner, was sent to the District Magistrate by registered post. Al though acknowledgment due docs not find place in the register, but the registry receipt, correct address mentioned in the registers, enclosed letter which was sent alongwith the representation raises a presumption under Section 114 of the Evidence Act that such a registered en velope was sent to the District Magistrate by the authorities of District Jail, Barabanki. If those representations, which were sent, have been lost in the office of the District Magistrate, then the persons who are responsible for such a lapse may be held responsible. It is amply proved from the record produced before us that jail authorities did not delay in sending the representation and on the same day, they received it, sent the same to the District Magistrate. 9. Assuming that such representation was not received by the District Magistrate even after filing of the writ petition it would have been appropriate for the Dis trict Magistrate to have contacted the jail authorities to obtain copy of the repre sentation, after looking into the jail record that such a representation was made, could have immediately sent the representation to the State Government and Central Government for its disposal. But the Dis trict Magistrate slept over the matter and did not care to find out the fate of the representation. It is for the State Govern ment to look into the matter and take appropriate action for which no direction is necessary. 10. We are definitely of the view that the representation submitted by the petitioner on 4-12-2000 was not attended to by the authorities concerned as soon as possible, as provided under clause (5) of Article 22 of the Constitution of India. Non- disposal of the representation is against the mandate of the Constitution of India, contained in Article 22 (5) of the Constitution of India. Non- disposal of the representation is against the mandate of the Constitution of India, contained in Article 22 (5) of the Constitution of India. Hence, for that reason the further detention of the petitioner is totally vitiated. As we allow this writ petition only for that reason, we have not delved into the other grounds which have been taken in the writ petition and agitated before us. 11. In view of what has been stated herein above, the writ petition in the na ture of Habeas Corpus, filed by the petitioner, is allowed. A writ in the nature of mandamus is issued commanding the respondents to set the petitioner at liberty forth with, unless wanted in any other case. 12. The record of the District Jail, Barabanki, which was summoned earlier, is returned to the Jail authorities. Petition allowed. .