SYED GHULAM HUSSAIN v. JAIL SUPERINTENDENT CENTRAL JAIL NAINI ALLAHABAD
2003-08-06
K.K.MISRA, S.RAFAT ALAM
body2003
DigiLaw.ai
This petition under Article 226 of the Constitution of India is directed against the order of the District Magistrate, Allahabad, dated 11-12-2002 detaining the petitioner under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act) because of his involvement in Case Crime No. 253 of 2002 under Sections 255/258/259/260 of the Indian Penal Code. 2. Counter and rejoinder affidavits have been exchanged between the parties and they are on record. 3. We have heard learned Counsel for the petitioner, learned AGA for respondents No. 1, 2 & 3 and the learned Additional Standing Counsel appearing for respondent No. 4. 4. It appears from the grounds of detention a copy whereof is enclosed as Annexure 2 to the writ petition that when the Senior Sub-Inspector Sri Ved Prakash along with other police personnel reached near Medical Chauraha at about 8. 15 p. m. on 10th October, 2002, they found four persons carrying polythene packet in their hands in a suspicious manner on west south corner of the road. On seeing the police personnel, all these four persons including the petitioner started moving towards Civil Lines. However, the police party ultimately arrested them near the house of the Principal of the Government Inter College and on search forged stamp papers were recovered from their possession. They were accordingly brought to the Police Station and taken into custody and an FIR was lodged which was registered as Case Crime No. 253 of 2002 under Sections 255, 258, 259 and 260 IPC. The Senior Superintendent of Police, Allahabad vide his letter dated 6-11-2002 sent proposal for the detention of the petitioner under the provisions of National Security Act whereupon the District Magistrate, Allahabad passed the impugned order detaining the petitioner which was also approved by the State Government on 13-11-2002 as required under sub-section 4 (3) of the Act. 5. It is contended that the petitioner belongs to a respectable family and is a Mechanic of TV and VCR and has been falsely implicated in the aforesaid crime and because of his false implication in the solitary incident the order of detention has been passed without proper application of mind by the detaining authority. It is submitted that the petitioner was never arrested on the spot along with forged stamp papers as has been alleged in the grounds of detention and in the FIR.
It is submitted that the petitioner was never arrested on the spot along with forged stamp papers as has been alleged in the grounds of detention and in the FIR. It is claimed that on 9-10-2002 at about 7. 30 p. m. the Kotwali City Police took the petitioner from his house and detained him in the police lock up. Petitioners father-in-law, therefore, sent telegrams to the District Magistrate, Allahabad, Senior Superintendent of Police, Allahabad and the Chairman Human Rights Commission on 10-10-2002 at about 4. 30 p. m. stating the above facts which was not considered either by the detaining authority or by the State Government and the Advisory Board. It is also submitted that writ petition No. 6631 of 2002 filed on behalf of the co-accused Syed Mehtab Alam has been allowed by this Bench vide order dated 7- 7-2003. It is also contended that the representation of the petitioner sent to the Central Government has not been disposed merely on the ground that it has not been addressed to the Central Government. On the other hand, learned AGA appearing for respondents No. 1 to 3 and the learned Additional Standing Counsel appearing for respondent No. 4, opposed the writ petition. 6. We have carefully considered the submissions made on both sides. It is admitted position that the representation of the petitioner was not decided by the Central Government on the solitary ground that it has not been addressed to it. In Habeas Corpus Petition No. 53369 of 2002, Garibullah v. State of U. P. & others, alongwith the connected writ petitions disposed of vide order dated 24-4-2003, Writ Petition No. 55376 of 2002, Shahzad v. Superintendent, District Jail, Meerut & others, disposed of on 25-4-2003 and Habeas Corpus Petition No. 7138 of 2003, Yaqoob v. Union of India & others, disposed of on 25-4- 2003, this Bench held that continued detention of the detenu is vitiated on account of non-disposal of their representation by the Central Government on the ground that the same has not been addressed to it, although copy of the same was sent to it by the District Magistrate and, therefore, non-consideration of representation is violative of the constitutional safeguard. 7.
7. In para 23 of the writ petition it has been stated that the petitioner made representation on 21-11- 2002 to the State Government as well as the Central Government through the jail authorities with the request that it may be sent directly to the concerned officer, with a copy to the District Magistrate, Allahabad, Principal Secretary (Home), Government of Uttar Pradesh, Lucknow, Chairman, Advisory Board, Lucknow, Secretary, Government of India, Ministry of Home Affairs, New Delhi, President of India and the Governor of Uttar Pradesh. 8. The District Magistrate in para 8 of his counter-affidavit, has stated that the representation of the petitioner was sent to the State Government on 28-11-2002 through special messenger and to the Central Government through speed post. This fact has also been admitted in the affidavit filed on behalf of the jail authorities wherein in para 5 it has been stated that the petitioner submitted his representation on 26-11-2002 through the jail authorities along with seven copies and on the same date it was sent to the office of the District Magistrate, Allahabad for necessary steps. Therefore, it is not in dispute that seven copies of the representation were given by the petitioner to the jail authorities, which were forwarded to the Central Government as well. The clear averment made in para 23 of the writ petition that copies of the aforesaid representation were endorsed to the Secretary, Government of India, Ministry of Home Affairs, has not been denied in any of the counter-affidavits filed by the respondents. The Central Government also in its counter-affidavit has stated that as the said representation was addressed to the Home Secretary, U. P. Lucknow and not to the Central Government, it was returned by the Ministrys letter dated 11-12-2002 for taking action at their end. Hence, the fact remains that the representation was not disposed by the Central Government only on the ground that it has not been addressed to it. Since in a number of writ petitions, some of which have been mentioned above, this Court took the view that once representation of the detenu is forwarded to the Central Government with comments, the Central Government is obliged to consider and dispose the same on merits and non consideration of the same vitiates the order of detention. 9. In the case of Sharoon @ Shanu v. Union of India & others, reported in U. P. Cr.
9. In the case of Sharoon @ Shanu v. Union of India & others, reported in U. P. Cr. R. 2000 (11) page 22, it has been held that the intention of detenu to make representation against his detention cannot be gathered merely on the basis of address given in the representation. Similar view was also taken by another Division Bench of this Court in the case of Billa @ Birla v. Superintendent, District Jail, Basti & others, reported in 2001 (42) ACC 995, wherein para 4 of the judgment it has been opined as under: "in our opinion, even assuming that the representation was not addressed to the Central Government, admittedly the same was sent to the Central Government by the District Magistrate on 3-12-2000 and the Central Government should have decided the same expeditiously. " 10. Section 14 of the Act gives supervisory power to the Central Government to check and prevent the improper exercise of power of detention by the detaining authority and the State Government. Section 14 of the Act reads as under: "14. Revocation of detention orders.-Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified, - (a) notwithstanding that the order has been made by an officer mention in sub-section (3) of the Section 3 by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding that the order has been made by a State Government, by the Central Government. " 11. Thus, the Central Government can revoke the order of detention under Section 14 of the Act and, therefore, it has to discharge its statutory obligation with all promptness. Therefore, in the facts and circumstances of the case, non disposal of representation of the petitioner by the Central Government is fatal which vitiates the continued detention of the petitioner. 12. In view of the discussions made above, the petition succeeds and is allowed. The respondents are directed to set the petitioner at liberty forthwith provided his detention is not required in any other case. There shall, however, be no order as to costs. Petition allowed. .