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2010 DIGILAW 2545 (ALL)

Phool Chand Nishad v. State of U. P. And Others

2010-08-19

BALA KRISHNA NARAYANA, POONAM SRIVASTAV

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Hon. Bala Krishna Narayana, J.: - Heard Sri Amit Srivastava, counsel for the petitioner, Sri Sudhir Mehrotra Advocate appearing on behalf of respondent nos. 1, 2 and 3 and Mrs. Nuzhat Parveen Advocate on behalf of Union of India, respondent no. 4. Counter and rejoinder affidavits have been exchanged. The habeas corpus petition is taken up for final hearing. The petitioner has challenged the detention order dated 1.10.2009 under the provisions of Section 3(3) of the National Security Act (hereinafter referred to as NSA), passed by the District Magistrate, Gorakhpur respondent no. 2 detaining the petitioner as a preventive measure after he was involved in a criminal case. The facts of the case are that the petitioner was taken into custody in connection with case crime No. 707 of 2009 for an offence under Sections 489-B and 489-C I.P.C., Police Station Pipraich, District Gorakhpur. On 6.7.2009 at 14.30 hours the petitioner along with another was taken into custody. Both the persons were found in possession of fake currency notes 218 in number of Rs. 500 denomination, total amount of Rs. 1,09,000/-. The F.I.R./Recovery memo mentions the numbers of those fake currency notes and further allegation is that the accused admitted that they bring these counterfeit notes from the neighboring country Nepal. The detention order was served while the petitioner was already in jail. A report was submitted by the police of Police Station Pipraich, District Gorakhpur. On the basis of said report, the District Magistrate, Gorakhpur examined the entire facts and record and thereby arrived at a subjective satisfaction that circulation of these counterfeit notes in the society will impair the national economy and also will hamper the essential services to the public at large. Therefore, the District Magistrate, Gorakhpur was of the considered view that to prevent recurrence of such an offence the petitioner was liable to be detained as a preventive measure under Section 3(3) of NSA. This was also necessary because the petitioner was all along making an effort to be enlarged on bail though his bail application was dismissed by the District and Sessions Judge but the bail application was also pending in the High Court. Notice was already given and it was in these circumstances, the District Magistrate considered it proper and necessary to detain the petitioner. Notice was already given and it was in these circumstances, the District Magistrate considered it proper and necessary to detain the petitioner. The detention order has been challenged on a number of grounds:- The first challenge is that the District Magistrate has passed the detention order mechanically upon non-existent facts and was led away by the assertions in the police report preferred by the police of police station Pipraich, District Gorakhpur. The District Magistrate has not applied his independent mind before passing the detention order. The next ground is that the petitioner's right stands considerably prejudiced for the reason that the District Magistrate failed to inform the petitioner that in case he so desires, he is entitled for his personal hearing before the Advisory Board. On account of non-communication of this right, petitioner's continuous detention stands vitiated. The third grievance of the petitioner is that though he handed over the representation to the Superintendent, District Jail, Gorakhpur very promptly but it was not forwarded to the State Government and other official immediately. There was delay in dispatch of the representation of the petitioner. The State Government as well as Central Government have acted illegally. They have not considered the representation of the petitioner within reasonable time and slept over the matter. The detention order can not be sustained in the eyes of law on account of delay. The District Magistrate has rejected the petitioner's representation vide order dated 19.10.2009. Lastly it has been canvassed on behalf of the petitioner that the petitioner has approached to Home Ministry of Government of India through his representation dated 12.10.2009 which was rejected on 9.11.2009 without assigning any reason. Needless to say that the representation of the petitioner was decided almost after one month which very well can be construed as an excessive delay whereby continuous detention of the petitioner is violative of his fundamental right. It is also stated that though the Home Ministry, Government of India rejected the representation of the petitioner on 9.11.2009 but the order was served on the petitioner only on 20.11.2009. Evidently the petitioner was behind bar and there was no problem in serving the detention order promptly. Sri Sudhir Mehrotra appearing on behalf of respondent nos. 1, 2 and 3 has disputed each and every arguments on behalf of the petitioner. Evidently the petitioner was behind bar and there was no problem in serving the detention order promptly. Sri Sudhir Mehrotra appearing on behalf of respondent nos. 1, 2 and 3 has disputed each and every arguments on behalf of the petitioner. Submission is that the petitioner has clearly admitted that he used to bring counterfeit currency notes from Nepal for circulation in India. This had a direct effect on the economy of our country. Besides, even the genuine currency notes were not accepted by traders causing great loss and inconvenience to the public at large and thereby essential services were considerably hampered. In paragraph 7 of the counter affidavit filed by the District Magistrate, Gorakhpur it is stated in unequivocal terms that activities of the petitioner has badly effected day to day affairs of the public at large and effects the Indian economy as well as it is prejudicial to the maintenance of services and supplies essential to the community at large. The allegation that the petitioner was not enlightened that he is entitled for a personal hearing before the Advisory Board, has been clearly denied. It is also stated in the counter affidavit that the petitioner was apprised of the fact that he should submit his representation before expiry of 12 days or before approval by the State Government whichever was earlier. Affidavit filed by Sri Anand Kumar Singh, Deputy Jailor, District Jail, Gorakhpur has also confirmed in paragraph 10 of his affidavit that the information regarding hearing before the Advisory Board was received through radiogram dated 23.10.2009 on 24.10.2009 and the petitioner was informed through the jail authorities with regard to the date, time and place fixed before the Advisory Board at Lucknow on the same day. But no request was made by the petitioner to be produced before the Advisory Board on the date of hearing fixed i.e. 29.10.2009. Smt. L.P. Srivastava, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi has also filed her affidavit on behalf of Union of India. Paragraph 4 of the counter affidavit states that the representation dated 12.10.2009 along with parawise comments of the detaining authority was received on the desk of Ministry of Home Affairs on 27.10.2009 vide letter No. 1560/J.A. (NSA)-09 dated 19.10.2009. Respondent no. Paragraph 4 of the counter affidavit states that the representation dated 12.10.2009 along with parawise comments of the detaining authority was received on the desk of Ministry of Home Affairs on 27.10.2009 vide letter No. 1560/J.A. (NSA)-09 dated 19.10.2009. Respondent no. 4 has further stated that the representation was put up for consideration through various levels of officers i.e. Under Secretary, Deputy Secretary, Joint Secretary and placed before Union Home Secretary on 3.11.2009. 31st October and 1st November, 2009 were holidays being Saturday and Sunday. 2nd November, 2009 was gazetted holiday on account of Gurunanak Birthday. Thus the representation was examined and processed promptly and order was passed on 4.11.2009 rejecting the representation. Thereafter the file reached the Section on 6.11.2009. A wireless message was sent to the Home Secretary, Govt. of Uttar Pradesh and Superintendent, District Jail, Gorakhpur. The said wireless message was also followed by a letter dated 9.11.2009 addressed to the detenu informing that his request for revoking the detention order has not been accepted. Thus, evidently the Union of India sent a letter by registered post on 10.11.2009 and, therefore, by no stretch of imagination, it can be said that the representation was decided with utmost promptness by Union of India. The petitioner has asserted that rejection of his representation was communicated to him only on 20.11.2009. Thus, evidently this inordinate delay deciding the representation by the Central Government and its communication can not be said to be justified in the circumstances of the case. A very cursory reply has been given. Surprisingly the representation dated 12.10.2009 was rejected and communicated to the detenu on 20.11.2009 approximately after lapse of one and half month. We are of the view that we need not give our opinion and conclusion on the other aspects since the writ petition is liable to be allowed and detention order to be revoked on the ground of delay alone. Extra ordinary delay by Union of India is difficult to accept since not even a proper explanation has been tendered by respondent no. 4. On the ground of delay alone by Union of India in deciding the representation and communicating it to the petitioner, we quash the detention order dated 1.10.2009 passed by the District Magistrate, Gorakhpur and set the petitioner at liberty. In view of what has been stated above, the writ petition is allowed. 4. On the ground of delay alone by Union of India in deciding the representation and communicating it to the petitioner, we quash the detention order dated 1.10.2009 passed by the District Magistrate, Gorakhpur and set the petitioner at liberty. In view of what has been stated above, the writ petition is allowed. The detention order dated 1.10.2009 passed by the District Magistrate, Gorakhpur is revoked and it is directed that the petitioner be set at liberty forthwith.