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Allahabad High Court · body

2009 DIGILAW 2153 (ALL)

VIJAY PAL v. UNION OF INDIA

2009-05-08

VINOD PRASAD, Y.C.GUPTA

body2009
JUDGMENT By the Court.—Petitioner has been detained under the National Security Act by the order dated 6.9.2008 passed by District Magistrate, Ghaziabad exercising power under Section 3(3) of the National Security Act. The detention order of the petitioner is Annexure-2 to this Habeas Corpus petition. The grounds on which the petitioner has been detained was served on the detenu-petitioner and is contained in Annexure-3. 2. The reasons for detention of the petitioner, as is culled out from the grounds, are that petitioner was dealing in fake currency notes and thereby he had disturbed the public peace and tempo of even life. 3. Counter affidavit was called for from the Union of India, respondent No. 1, State Government, respondent No. 2, Detaining Authority respondent No. 3, Superintendent of Police, Ghaziabad respondent No. 4 and Superintendent of Jail respondent No. 5 who all have filed their counter affidavits. 4. Learned Counsel for the petitioner, challenging the detention order, canvassed before us many points. However for deciding the present Habeas Corpus petition, we did not go into the details of all his contentions raised before us because in our view only on a short question, this Habeas Corpus petition can be decided. 5. Learned Counsel for the petitioner contended that according to the case of Union of India, respondent No. 1, it had received the record from the State Government under Section 3(5) of the National Security Act on 22nd September, 2008. Learned Counsel submitted that after receiving of the said record, Union of India did not consider the detenu’s case before expiry of 8 days i.e. 30th September, 2008. Learned Counsel submitted that no explanation has been offered for the occasioned said delay by the Union of India from 22nd September, 2008 till 30th September, 2008, which makes the detention order vulnerable, liable to be quashed. Learned Counsel, therefore, submitted that the detention order is vitiated because of the above unexplained delay and deserves to be set aside. In support of the said contention learned Counsel for the petitioner invited our attention to paragraph-4 and 6 of the counter affidavit filed on behalf of the Union of India alongwith para-3 of the Supplementary Counter Affidavit filed by the same authority. In support of the said contention learned Counsel for the petitioner invited our attention to paragraph-4 and 6 of the counter affidavit filed on behalf of the Union of India alongwith para-3 of the Supplementary Counter Affidavit filed by the same authority. For the purpose of appreciation of the above contention, we reproduce the aforesaid paragraphs herein below : (4) "That with regard to para 22 and ground G of para 38 of the petition it is submitted that a report as envisaged under Section 3(5) of the National Security Act, 1980 about the detention of the petitioner was made by the Government of Uttar Pradesh to the Central Government in the concerned Desk in the Ministry of Home Affairs vide their letter No. 108/2/166/2008-CX-7 dated 15.9.2008. The said report was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 22.9.2008 and it was immediately put up to Under Secretary (NSA) on 30.9.2008 who carefully considered the case and submitted to Director(S) (who has been delegated powers by the Union Home Minister to take note of such cases). Director(S) who completed the examination of the report in the Ministry of Home Affairs." (6) "This representation was processed for consideration and the case of the detenu was put up before the Director (Security), Ministry of Home Affairs on 30.9.2008. The Director (Security) carefully considered the same and put up the same before the Joint Secretary, Ministry of Home Affairs on 1.10.2008. The Joint Secretary considered the case and forwarded the same before Home Secretary on 1.10.2008. The Union Home Secretary considered the case of the detenu and rejected the representation of the detenu on 8.10.2008 and the file received back in the Section in the evening of 17.10.2008." Supplementary Counter Affidavit : (3) That it is respectfully submitted that the Joint Secretary considered the case and forwarded the same to the Home Secretary on 1.10.2008. The file containing the representation of the detenu and other related documents reached in the office of the Union Home Secretary on 3.10.2008 in the afternoon. The 4th and 5th of October being public holiday and due to heavy preoccupation with various urgent official matters, inter-alia, including matters pertaining to consideration of Bills by the Parliamentary Standing Committee and its meeting scheduled on 7.10.2008, the Union Home Secretary was not able to consider the representation immediately. The 4th and 5th of October being public holiday and due to heavy preoccupation with various urgent official matters, inter-alia, including matters pertaining to consideration of Bills by the Parliamentary Standing Committee and its meeting scheduled on 7.10.2008, the Union Home Secretary was not able to consider the representation immediately. The representation was considered by the Union Home Secretary on 8.10.2008. Keeping in view the recovery of huge amount of Fake Indian Currency Notes (FICN), and serious menace of the fake currency circulation being faced by the nation with resultant security implications having cross border ramifications, the representation of the detenu was rejected. Thus, the representation was disposed of in an expeditious and just manner." 6. Learned Counsel for the petitioner, thus contended that this Habeas Corpus Petition deserves to be allowed and the detention of the petitioner deserves to be quashed. 7. Learned Counsel for the Union of India, Sri. N.C. Nishad inspite of his all best efforts could not dislodge the said contention and ultimately miserable failed to bring on record any tenable reason for such a delay on the part of Union of India. Sri Nishad time again echoed the argument that there was a meeting of the Parliamentary Standing Committee, but failed to reply the Court’s question regarding the date of such meeting, even though the original record was with him. 8. We, therefore, conclude that Union of India does not have any explanation to offer for the laxity in consideration of the case of the petitioner-detenu from 22nd September, 2008 till 30th September, 2008. In such a view we have no option but to hold that there is totally unreasonable, unexplained delay in considering the case of the petitioner-detenu by respondent No. 1 Union of India and on this short ground, we are of the view that detention of the petitioner-detenu cannot be sustained any more. 9. This Habeas Corpus Petition is allowed. Further detention of the petitioner-detenu under the detention order dated 6.9.2008 passed by the District Magistrate, Ghaziabad, respondent No. 3, is hereby quashed. Detenu-petitioner is directed to be released from district Jail forthwith unless he is wanted in any other case and is in custody under the legal orders. This Habeas Corpus Petition is allowed. ————