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Allahabad High Court · body

2013 DIGILAW 2064 (ALL)

Sher Ali v. State of U. P.

2013-08-07

IMTIYAZ MURTAZA, VINAY KUMAR MATHUR

body2013
JUDGMENT The petitioner, by means of this writ petition, has prayed for issuing a writ, order or direction in the nature of certiorari quashing the detention order dated 4.1.2013, passed by District Magistrate, Gonda under Section 3(2) of the National Security Act, 1980. 2. Counter and rejoinder affidavits have been exchanged. 3. The District Magistrate, Gonda, on the basis of material on record, was satisfied to detain the petitioner under Section 3 of the National Security Act to prevent him from indulging in activities prejudicial to the public order. The petitioner alongwith his companions is said to have slaughtered a cow on 27.9.2012 at 7-30 p.m in the grove of Haddees. Thereafter some altercation had taken between the petitioner and the villagers, whereby the public order was disturbed. 4. The petitioner has challenged the said detention order only on the ground that his representation to the Union of India has not been decided in accordance with law, hence his further detention on the basis of the impugned detention order is vitiated. 5. In order to appreciate the submission of counsel for the petitioner, we have carefully examined the averments made in the counter affidavit filed by Sri Ashish V. Gawai, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi. In para 5 of the affidavit, it has been averred that a copy of representation dated 13.1.2013 and parawise comments of the detaining authority were forwarded to the Central Government. The same was received by the Central Government in the concerned Desk of Ministry of Home Affairs on 1.2.2013. The representation was put up for consideration of the Union Home Secretary on 4.2.2013. During this intervening period, 2.2.2013 and 3.2.2013 were holidays being Saturday and Sunday. The representation of the detenu was rejected on 11.2.2013. 6. From a perusal of the counter affidavit, it is clear that the representation of the petitioner was received in the concerned Desk of Ministry of Home Affairs on 1.2.2013. The deponent has explained the delay of only 2.2.2013 and 3.2.2013 and did not utter a single word as to why the detenu's representation was kept lying with the Union Home Secretary from 4.2.2013 to 11.2.2013. This clearly indicates that each day's delay in disposal of the representation of the petitioner has not been properly explained by the concerned authority. The deponent has explained the delay of only 2.2.2013 and 3.2.2013 and did not utter a single word as to why the detenu's representation was kept lying with the Union Home Secretary from 4.2.2013 to 11.2.2013. This clearly indicates that each day's delay in disposal of the representation of the petitioner has not been properly explained by the concerned authority. The petitioner has placed reliance on a decision of Apex Court, reported in 1999 SCC (Cri.) 93, Rajammal versus State of T.N and another, where the delay of about five days without any explanation was considered and further detention of the detenu was set aside. It was observed, "In the present case, there is no explanation forthcoming as to why the representation could not be dealt with by the Minister concerned from 9-2-1998 to 14-2-1998" and it was further observed, "We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu." 7. In the instant case, the representation of the detenu was pending from 4.2.2013 till it was disposed of on 12.2.2013. There is explanation of only two days i.e. of 2.2.2013 and 3.2.2013. The counter affidavit filed on behalf of the Union of India is absolutely silent about the remaining period. We are of the opinion that on account of this unexplained delay, further detention of the petitioner is vitiated. 8. In view of above, this petition succeeds and is allowed. Further detention of the petitioner on the basis of impugned detention order dated 4.1.2013 is hereby set aside. 9. The respondents are directed to set the petitioner at liberty forthwith unless wanted in any other case. 10. The office is directed to communicate this order to the authorities concerned for immediate compliance.