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2009 DIGILAW 2285 (ALL)

INTEZAR v. UNION OF INDIA

2009-05-21

R.K.RASTOGI, Y.C.GUPTA

body2009
JUDGMENT Hon’ble R.K. Rastogi, J.—This Habeas Corpus Writ Petition has been filed by the petitioner Intezar challenging his detention under Section 3 (2) of the National Security Act and for seeking his release from detention under the above Act. 2. The facts relevant for disposal of this writ petition are that on 21.6.2008 Case Crime No. 26 of 2008 was registered at Police Station Kotwali Dehat, District Saharanpur against the petitioner and other co-accused persons under Sections 3/5/8 of the U.P. Prevention of Cow Slaughter Act. There was tension in the village due to cow slaughtering committed by the petitioner and his colleagues and public order was disturbed. Hence, SHO of Police Station Kotwali Dehat, District Saharanpur submitted a report for his detention under the National security Act through proper channel to the District Magistrate, Saharanpur and the District Magistrate being satisfied with this report and the recommendations of the concerned authorities on that report passed an order on 30.6.2008 for his detention under Section 3 (2) of the above Act. The petitioner submitted his representations against that order but they were rejected. Then he filed this petition. 3. Counter affidavits have been filed by all the respondents and rejoinder affidavits have also been filed from the side of the petitioner in reply to those counter affidavits. A date was fixed for hearing of arguments and learned counsel for the petitioner as well as learned AGA for the respondents No. 2 to 4 were present. But learned counsel for the respondent No. 1 Union of India did not appear even after revision of the list though the counter affidavit of the Union of India is on record. We, therefore, heard learned counsel for the petitioner as well as the learned AGA and went through the record including the counter affidavit of respondent No. 1 and now we are deciding the writ petition on merits. 4. It was submitted by the learned counsel for the petitioner that there has been undue delay on the part of Union of India in communication of the rejection order passed on his representation. 4. It was submitted by the learned counsel for the petitioner that there has been undue delay on the part of Union of India in communication of the rejection order passed on his representation. He referred to para 4 & 5 of the counter affidavit of Smt. Lalit Prabha Srivastava, Under Secretary in the Home Ministry in the Union of India who had stated that the representation of the petitioner dated 7.7.2008 along with para wise comments was received at the concerned Desk in the Ministry of Home Affairs on 18.7.2008 and then it was put up before the Under Secretary for process on 21.7.2008. The Under Secretary after considering the case put it up before the Director (Security) with her comments on the same date. The Director (Security) also considered the same and put it up before the Joint Secretary on the same date. The Joint Secretary considered it and forwarded the same to the Home Secretary on the same date and the Union Home Secretary rejected the representation on 22.7.2008. Learned counsel for the petitioner submitted that there has been no delay upto 22.7.2008 in disposal of the representation but thereafter the intimation of the rejection was to be given to the petitioner at the earliest. But its intimation was given on 28.7.2008. He submitted that in this way there has been delay of six days in communication of the rejection order and so continued detention of the petitioner is vitiated. 5. The only explanation given in para 5 of the counter affidavit regarding this delay is that after decision of the Home Secretary on the representation on 22.7.2008, the file was received back in the concerned Section on 28.7.2008. We are unable to understand as to how this delay of six days was caused in sending the file from the office of the Home Secretary to the concerned Section in the Home Ministry dealing with the representations of habeas corpus. It is to be seen that after receipt of the file in the concerned Section of the Ministry, the entire proceedings were completed within two days from 21.7.2008 to 22.7.2008 only from the stage of the Under Secretary to the stage of Union Home Secretary and after rejection of the representation, the file took six days time in reaching back in the concerned Section of the Under Secretary. There is no explanation for this unreasonable delay of six days in communication of the rejection order and so further continued detention of the petitioner stands vitiated on this ground. 6. It further appears that the petitioner again made his representation on 24.7.2008 which was received in the office of the concerned Section of the Home Ministry of the Central Government on 5.8.2008. It was put up before the concerned authority on 6.8.2008 and was rejected by the concerned authority but the information of the rejection order was given after the lapse of a week on 13.8.2008 as is apparent from para 10 of the counter affidavit of Smt. Lalit Prabha Srivastava. Smt. Lalit Prabha Srivastava has stated that the photo copy of the letter of rejection dated 13.2.2008 was being annexed with the counter affidavit as Annexure CA-2 but no such Annexure has been filed with this counter affidavit which contains only one Annexure termed as ‘Annexure CA-1 which is wireless massage dated 28.7.2008. 7. It appears that the deponent Smt. Lalit Prabha Srivastava as well as the Notary Commissioner before whom the affidavit was verified did not go through its contents and did not check it as to whether it contains all the Annexures or not. Anyhow it is clear that there has been unreasonable delay of six and seven days respectively in communication of the rejection orders to the petitioner for which no explanation has been offered in the counter affidavit of Smt. Lalit Prabha Srivastava. As such, the continued further detention of the petitioner is vitiated. 8. The writ petition is, therefore, allowed holding that the continued further detention of the petitioner is vitiated. Let the petitioner Intezar be set at liberty forthwith if he is not required to be detained in any other case. ———