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2002 DIGILAW 770 (ALL)

NIHAL ALIASNIHAL KASAIALIAS v. UNION OF OF INDIA

2002-05-24

KAMAL KISHORE, VISHNU SAHAI

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VISHNU SAHAI, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner challenges the order dated 25-2-2002 passed by the 2nd respondent Mr. R. P. Shukla, the District Magistrate, Ambedkar Nagar detaining him under sub-section (2) of Section 3 of the National Security Act. 2. The detention order along with the grounds of detention, which are also dated 25-2-2002 was served on the petitioner detenue on 25-2-2002 itself and their true copies have been annexed to this petition as Annexure Nos. 1 and 2 respectively. 3. We have heard learned Counsel for the parties. 4. Since in our view this writ petition deserves to succeed on the averments contained in paragraphs 15, 16 and 17 of the petition and Ground No. 24 (g) pleaded in the petition, we are not adverting to the prejudicial acts attributed to the petitioner detenue in the grounds of detention (Annexure-2 ). In paras 15, 16 and 17 of the petition and Ground 24 (g), the substance of the averments is that on 3-3-2002 the petitioner preferred a representation to the opposite parties No. 1, 2 and namely the Union of India, the District Magistrate, Ambedkar Nagar and the State of U. P. through Principal Secretary Home, Government of U. P. , Civil Secretariat, Lucknow respectively but the representation preferred by the petitioner-detenue to the 3rd respondent i. e. the State of U. P. has not been disposed of yet. 5. The averments made in paras 15, 16 and 17 of the petition and Ground 24 (g) of the petition have been replied to in paras 9 and 10 of the return of the detaining authority (District Magistrate, Ambedkar Nagar) and para 3 of that of Mr. C. P. Singh, Deputy Secretary, Home and Confidential Department, U. P. Civil Secretariat, Lucknow. 6. In para 10 of his return the detaining authority has stated that the petitioner made his representation dated 3-3-2002, which was received on 5-3-2002 and was sent to the Central Government and the State Government on 21-3-2002. 7. In Para 3 of his return Mr. C. P. Singh has averred thus : The petitioners representation dated 3-3-2002 was directly received in the concerned section of the State Government on 7-2- 2002. 7. In Para 3 of his return Mr. C. P. Singh has averred thus : The petitioners representation dated 3-3-2002 was directly received in the concerned section of the State Government on 7-2- 2002. Since all the necessary information for deciding the said representation was available, the concerned section of the State Government examined it and submitted a detailed note on 14-3- 2002. Thereafter, the deponent (Mr. C. P. Singh) examined it on 15-3-2002 and Special Secretary examined it on the said date, itself and submitted it to the Secretary, who examined it on 16- 3-2002 and submitted it to the higher authorities of the State Government for final orders. On 16-3- 2002, itself, the State Government rejected the petitioners representation and the rejection was communicated to the petitioner through District Authorities by the State Governments Radiogram, dated 20-3-2002. Some other averments have been made in para 3 of the return, but in our view they are not necessary for the decision of this writ petition. Mr. S. K. Singh, learned Counsel for the respondent Nos. 2 to 6 strenuously urged that there has been no lethargy or delay on the part of the State Government in disposing of the petitioners representation dated 3-3-2002 and in communicating to him its rejection. 8. We have considered rival submissions and are constrained, to observe that we do not find any merit in the submission of Mr. S. K. Singh. We make no bones in observing that there has been definite lethargy on the part of the 3rd respondent, namely the State of U. P. through Principal Secretary, Home, Government of U. P. , Civil Secretariat, Lucknow in disposing of the petitioners representation. A perusal of para 3 of the affidavit of Mr. C. P. Singh, shows that the petitioners representation dated 3-3-2002 was directly received in the concerned section of the State Government on 7-3-2002. It also shows that all the necessary information for deciding the said representation was available. That being so, in our view, there was no justification for the concerned section of the State Government in taking one weeks time i. e. till 14-3-2002 in preparing a detailed note. In our view this time was taken by the concerned section of the State Government because it was oblivious of the promptitude with which a representation in a preventive detention matter had to be disposed of. In our view this time was taken by the concerned section of the State Government because it was oblivious of the promptitude with which a representation in a preventive detention matter had to be disposed of. In our judgment the delay of one week in preparing a detailed note is inordinate and callous. 9. Again we find that there has been a delay on the part of the State Government in communicating to the detenue that his representation dated 3-3-2002 had been rejected by the State Government. A perusal of para 3 of the affidavit of Mr. C. P. Singh shows that the State Government rejected the petitioners representation on 16-3-2002 but the rejection was only communicated to the petitioners detenue by the State Governments Radiogram, dated 20-3-2002. 10. It should be borne in mind that the Supreme Court in para 3 of the oft-quoted case of Harish Pahwa v. State of U. P. , AIR 1981 SC 1126 , has observed thus : "we would emphasise that it is the duty of the State of proceed to determine representation of the character above-mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously `unless it is absolutely necessary to wait for some assistance in connection with it, until a final decision is taken and communication to the detenue. " 11. A perusal of the said observations would show that not only the detenus representation has to be dealt with utmost expedition; in fact continuously unless it is inevitable to wait, but the result has also to be communicated to the detenue with the same expedition. We regret that the ratio laid down in Harish Pahwas case (supra) has been given a go by in the instant case because it is manifest from para 3 of the return of Mr. C. P. Singh that there was an inordinate delay of one week on the part of the concerned section of State Government in preparing a detailed note and an unexplained delay of four days in communicating to the petitioner the rejection of his representation. 12. In our view on account of the said delay, the continued detention of the petitioner-detenue has been rendered illegal and bad in law. 13. 12. In our view on account of the said delay, the continued detention of the petitioner-detenue has been rendered illegal and bad in law. 13. In the result, this petition is allowed, the continued detention of the petitioner detenue is held illegal and bad in law and the petitioner detenue is directed to be released forthwith unless wanted in some other case. Petition allowed. .