GARIBULLAH; VAKIL AHMAD; ABDUL JALIL ALIAS CHUNNA; MOHD HANIF v. STATE OF U P
2003-04-24
K.K.MISRA, S.RAFAT ALAM
body2003
DigiLaw.ai
In these four writ petitions under Article 226 of the Constitution the petitioners have challenged the order of their detention dated 29th September, 2002 passed by the District Magistrate, Basti under Section 3 (2) of the National Security Act,1980 (for short the Act ). 2. Since in all these petitions the impugned order of detention is based on similar accusation and pleadings of the parties are also similar and identical to each other, they were heard together and are being disposed of by this common order. 3. Counter and rejoinder affidavits of the parties are on record. We have heard Sri I. M. Khan, learned Counsel appearing for the petitioners, Sri Arvind Tripathi, learned Additional Government Advocate for respondent Nos. 1, 2 and 3 and Sri. A. K. Sinha, learned Standing Counsel appearing for the respondent No. 4 Union of Indian in Habeas Corpus Writ Petition Nos. 53369 of 2002 & 53371 of 2002 and Sri T. N. Pandey, learned Standing Counsel appearing for the respondent No. 4 Union of India in Habeas Corpus Writ Petition Nos. 53365 of 2002 & 53373 of 2002. 4. In the grounds of detention, inter alia, it is alleged that on receipt of secret information of the effect that cow slaughter on a large scale is expected to take place in village Majhuwa Meer, P. S. Walterganj, the Inspector Incharge, Kotwali along with police personnel and the informer decided on the spot and found that one cow was being slaughtered. On seeing the police party, 8 to 9 persons managed to escape but the petitioners along with 14 other persons were caught on the spot. Accordingly, Case Crime No. 240 of 2002 under Sections 147/148/149/353/153-A/429/504/506, IPC and Section 3/5/8 of the U. P. Cow Slaughter Act and Section 3/11 of the Animal Cruelty (Prevention) Act and Section 7 of the Criminal Law Amendment Act was registered at P. S. Walterganj in the district of Basti. It has also been alleged in the grounds of detention that due to the above incident communal tension was flared up in the locality and the public order was disturbed. 5. Although the impugned order of detention has been challenged on several grounds, but Sri I. M. Khan, learned Counsel for the petitioners, during the course of submission urged two points only.
5. Although the impugned order of detention has been challenged on several grounds, but Sri I. M. Khan, learned Counsel for the petitioners, during the course of submission urged two points only. Firstly, that the representation of the petitioners though sent to the Central Government by the detaining authority along with its comments has not been disposed of and on that ground petitioners detention is vitiated. Secondly, that there is inordinate delay in the disposal of the presentations by the State Government which has not been properly explained. On the other hand, learned Additional Government Advocate, opposed the prayer and submitted that since the representation were not addressed to the Central Government, it has rightly not been considered and disposed of and the delay has sufficiently been explained. 6. We have considered the submissions made on both sides. 7. In para 13 of the writ petition it has been asserted that the detenue sent their representation on 7-10- 2002 against the detention order dated 29-9-2002 to the State Government, Central Government and the Advisory Board through respondent No. 2, the District Magistrate, Basti. In the counter-affidavit of the then District Magistrate, Basti, reply to paras 13, 20, 21 & 25 of the writ petition has been given in para 7 wherein it has been, inter alia, stated that the said representation of the petitioners was sent to the Superintendent of Police, Basti for his comments 8-10-2002. The Superintendent of Police, Basti prepared his comments and sent it to the District Magistrate, Basti on 10-10-2002. The deponent District Magistrate, Basti prepared his comments and sent the representations along with comments to the State Government on 11-10-2002 through special messenger and to the Central Government on 12- 10-2002 through speed post. Therefore, the fact that the petitioners gave their representation to the Central Government, has not been denied, although it has been stated in the same counter-affidavit that the representations were addressed to the State Government and to the Advisory Board. In para 7 of the counter-affidavit filed on behalf of the jail authorities sworn by Raja Ram Singh Chauhan, Deputy Jailor, District Jail, Basti, it has been stated that the petitioners submitted their representation on 7-10- 2002 and on the same day it was forwarded to the District Magistrate, Basti for the further action in the matter.
In para 7 of the counter-affidavit filed on behalf of the jail authorities sworn by Raja Ram Singh Chauhan, Deputy Jailor, District Jail, Basti, it has been stated that the petitioners submitted their representation on 7-10- 2002 and on the same day it was forwarded to the District Magistrate, Basti for the further action in the matter. No reply in respect of the averments made in para 13 of the writ petition that the representation against detention was given for the State Government, Central Government and the Advisory Board, has been given nor it has been denied. 8. In paras 6 & 7 of the counter-affidavit filed on behalf of the Central Government sworn by Sri Ramesh Kumar, under Secretary, Ministry of Home Affairs, Government of India, New Delhi it has been averred as under: "6. The allegations made in the para Nos. 13, 20 and ground 10 of para 17 of the petition are denied being in correct. It is stated that a representation dated 7-10-2002 from the detenu along with the parawise comments of the detaining authority was received by the Central Government in the Ministry of Home Affairs on 21-10-2002 and in the concerned Desk of Ministry of Home Affairs on 22-10-2002 through District Magistrate, Basti on behalf of State Government of Uttar Pradesh vide letter No. 861/j. A. /n. S. A. 1980 dated 11-10-2002. 7. This representation was addressed to Home Secretary Uttar Pradesh and not to Central Government. Therefore, it was returned to State Government for dealing under Section 8 of NSA-1980. 9. From the aforesaid averment in the counter-affidavit of the Central Government, it is apparent that the representation have not been disposed of merely on the ground that it has not been addressed to the Central Government. Therefore, admittedly, copies of the representations of the petitioners along with comments were forwarded by the detaining authority to the Central Government. 10. We are of the view that where the detaining authority forwards the representation of the detenu along with its comments, non disposal of the same by the Central Government vitiates the order of detention.
Therefore, admittedly, copies of the representations of the petitioners along with comments were forwarded by the detaining authority to the Central Government. 10. We are of the view that where the detaining authority forwards the representation of the detenu along with its comments, non disposal of the same by the Central Government vitiates the order of detention. Otherwise, why the representation along with comments was at all forwarded to the Central Government, obviously because of Section 14 of the Act which confers supervisory power on the Central Government and, therefore, once representation along with comments of the detaining authority is sent and received, it is required to be considered and disposed of with all promptness or else the mere forwarding the representation to the Central Government becomes meaningless. 11. It has not been alleged in the counter-affidavit filed on behalf of the respondents that sufficient number of copies of representations were not handed over to them rather the statement of the District Magistrate in the counter-affidavit that the representations of the petitioners were forwarded to Central Government, suggests that sufficient number of copies were provided by the detenu for forwarding the same to the State Government, Central Government and the Advisory Board which supports the stand taken by the petitioners. Therefore, in the facts and circumstances of the case, it is difficult to accept the contention of the learned Additional Government Advocate that since the representations were not addressed to the Central Government, it was not necessary to be decided. 12. In the case of Sharoon @ Shanu v. Union of India & others, reported in U. P. Cr. R. 2000 (2), 22, a Division Bench of this Court held that merely because the representation was addressed to the Advisory Board, it cannot be said that it was not made to the Central Government and the intention of detenu cannot be gathered merely on the basis of the address given on the representation.
R. 2000 (2), 22, a Division Bench of this Court held that merely because the representation was addressed to the Advisory Board, it cannot be said that it was not made to the Central Government and the intention of detenu cannot be gathered merely on the basis of the address given on the representation. Similar view was taken by another Division Bench of this Court in the case of Billa @ Birla v. Superintendent, District Jail, Basti & others, 2001 (2) JIC 48 (All) : 2001 (42) ACC 995, wherein para 4 of the judgment held 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. " 13. We have no reason to differ with the above views. 14. In the facts of the case, we hold that the continued detention of the petitioners is vitiated on account of non-disposal of their representations by the Central Government. We do not propose to deal with the second contention since this writ petition deserves to be allowed on the first submission. 15. In the result, these writ petitions succeed and are allowed. The impugned order of detention dated 29th September, 2002 is hereby quashed. The petitioners shall be set at liberty forthwith unless they are required in some other case. However, there shall be no order as to costs. Petition allowed. .