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2020 DIGILAW 326 (ALL)

Afsar v. State Of U. P.

2020-01-29

PANKAJ NAQVI, SAMIT GOPAL

body2020
JUDGMENT : Samit Gopal, J. 1. Additional Affidavit filed by respondent No. 2 today in Court is taken on record. 2. Heard Syed Ali Imam, learned counsel for the petitioner and Sri Jitendra Prasad Mishra, Advocate for respondent No.2/Union of India and the learned A.G.A for respondent Nos. 1, 3, 4 and 5. 3. The present petition has been filed challenging the order of detention dated 26.07.2019 Annexure -1 to the writ petition passed by respondent No. 3 vide order No. 1569/Nyay Sahayak in exercise of powers under Section (3) of the National Security Act, 1980 directing the detention of the petitioner (Afsar) under Section 3 (2) of the National Security Act as a simple prisoner under the supervision of the respondent No. 4. Counter affidavits of all the respondents have been filed and the rejoinder affidavits to the same have also been filed. This Court while entertaining the petition on 03.01.2020 passed the following order:- “Heard in part. Put up in the additional cause list on 20.1.2020 in order to enable Sri Jitendra Prasad Mishra, the learned counsel appearing for Union Of India to file a supplementary counter affidavit along with the alleged report of the Central Agency, explaining the delay on a day-to-day basis, from the receipt of the representation in the Ministry on 23.8.2019 till its placing before the Under Secretary (NSA) on 11.9.2019, as averred in the counter affidavit dated 16.12.2019. Copy of this order be supplied to Sri Mishra forthwith.” 4. Subsequently, in compliance to order dated 03.01.2020 counsel for respondent No. 2 placed before us a sealed envelope and after going through the same the following order was passed on 20.01.2020:- “Supplementary counter affidavit on behalf of respondent no. 2 and a rejoinder affidavit are taken on record. Sri Jitendra Prasad Mishra for respondent no. 2/Union of India has placed on record a sealed envelop, which on our directions, is opened. We have gone through its contents and do not find the said document to be either confidential or of such sensitivity which may put national security at risk. We direct the Bench Secretary to seal the envelop with its contents and hand over the same to Sri Mishra in the Court itself. List on 29.1.2020 on which date Sri Mishra, learned counsel for respondent no. We direct the Bench Secretary to seal the envelop with its contents and hand over the same to Sri Mishra in the Court itself. List on 29.1.2020 on which date Sri Mishra, learned counsel for respondent no. 2 shall file an affidavit of a duly authorized person, bringing the contents of the envelop on record as also the material disclosing the satisfaction, if any, by the officer concerned, forming the basis for the report.” 5. Today an affidavit in compliance of order dated 20.01.2020 was filed. 6. The facts as emerging in the present matter are that the respondent No. 2 passed the impugned order of detention on the grounds that the petitioner is involved in Case Crime No. 318 of 2018 under Section 3/5/5(A)/8 of Cow Slaughter (Prevention) Act. He was served with the detention order dated 26.07.2019 on the same date. The State Government approved the detention order on 05.08.2019. The petitioner preferred a representation dated 08.08.2019 which was submitted on the same day before the Jail Superintendent, Bulandshahar. The said representation was then forwarded by the jail authorities and was received by the District Magistrate on 09.08.2019 itself. On 09.08.2019 the District Magistrate called for comments from the sponsoring authorities, in compliance of which the police submitted its comments on 14.08.2019. The District Magistrate then rejected the representation on 15.08.2019 on the ground that it was submitted after the approval of the detention by the State Government. The representation was then forwarded on 15.08.2019 to the State Government which was received therein on 16.08.2019. The State Government rejected the same on 28.08.2019. The Central Government received the representation of the petitioner on 23.08.2019 and rejected the same on 12.09.2019. In the meantime, the State Government vide its order dated 05.09.2019 confirmed the detention order. 7. Learned counsel for the petitioner argued that there has been an inordinate delay by respondent No.2/Union of India in deciding the representation of the petitioner for which there is no explanation. He further stated that the respondent No. 2 received the representation on 23.08.2019 whereas it was rejected on 12.09.2019 i.e. after about 19 days of the date of receipt of the same. He further stated that the respondent No. 2 received the representation on 23.08.2019 whereas it was rejected on 12.09.2019 i.e. after about 19 days of the date of receipt of the same. He argued that the unexplained delay of 19 days in deciding the representation of the petitioner by the Union of India is good enough to allow the present petition and to set aside the order of detention and direct the release of the petitioner forthwith as there is no justifiable explanation when liberty of a citizen guaranteed under Article 21 of the Constitution of India is violated. 8. Paragraph 5 and 6 of the counter affidavit dated 16.12.2019 on behalf of respondent No. 2 attempts to give some details about the delay in deciding the representation but one fact which emerges from the same is that the representation of the petitioner was received on 23.08.2019, some enquiry/report was called for by the said officer from a Central Agency which was subsequently received and then the file was placed before the Under Secretary, N.S.A on 11.09.2019 and later on the said representation was rejected on 12.09.2019. Since the delay in deciding the representation was not explained on day to day basis another affidavit dated 20.01.2020 titled as supplementary affidavit on behalf of respondent No. 2 was filed in which in paragraph 4 it was mentioned that the file reached the table of the Joint Secretary concerned on 23.08.2019, the Union Home Secretary then directed to seek an independent report from the Central Agency on 24.08.2019, 25.08.2019 was a holiday being Sunday, then on 28.08.2019 a letter followed by a reminder letter was sent which was again forwarded on 09.09.2019 to the Central Agency for seeking the requisite report. The report of the Central Agency was received on 11.09.2019 and subsequently on 12.09.2019 the said representation was rejected. On the question as to what was the reason for the officer concerned to seek a report from the Central Agency, an additional affidavit dated 28.01.2020 is filed today disclosing in paragraph 3 the contents of the report obtained from the Central Agency. The said report as obtained has been quoted in paragraph 3 of the additional affidavit. On the question as to what was the reason for the officer concerned to seek a report from the Central Agency, an additional affidavit dated 28.01.2020 is filed today disclosing in paragraph 3 the contents of the report obtained from the Central Agency. The said report as obtained has been quoted in paragraph 3 of the additional affidavit. Even in the present affidavit the officer concerned has not explained the reason as to why the report from the said independent agency was called for as there was no reference of the petitioner being involved in any serious or any anti national activity. Even in the report of the sponsoring officer, dated 24.07.2019/Annexure -5 to the writ petition, the recommendation of the Senior Superintendent of Police, Bulandshahar dated 25.07.2019/Annexure-3 to the writ petition and even the grounds of detention Annexure-2 to the writ petition, the perusal of the report of the independent agency as quoted in paragraph-3 of the additional affidavit nowhere gives any detail of the petitioner being involved in any serious anti national activity. The petitioner was granted bail in the case on which his detention was sought for by the sponsoring officer vide order dated 19.07.2019 passed in Criminal Misc. Bail Application No. 28863 of 2019 (Afsar vs. State of U.P.) by the High Court. The said order is Annexure-12 to the writ petition. The petitioner could not come out of jail in the said case after the order granting him bail and has been detained in the National Security Act, 1980 on the basis of the impugned detention order dated 26.07.2019. The delay as is being tried to be explained by respondent No. 2 in deciding the representation is wholly unsatisfactory which vitiates his detention. 9. The Apex Court in Rajammal vs. State of T.N. and Another (1999) 1 SCC 417 relying upon the decision in K.M. Abdulla Kunhi vs. Union of India (1991) 1 SCC 476 held as follows:- “6. Learned counsel also cited an earlier two Judge Bench decision of this Court in Raghavendra Singh vs. Superintendent, District Jail, Kanpur ( 1986 1 SCC 650 ) in which similar delay of a few days in considering the representation was found to have vitiated the detention. That is a case where delay was held be "wholly unexplained". A three Judge Bench of this Court in Rumana Begum vs. State of Andhra Pradesh (1993 Supp. That is a case where delay was held be "wholly unexplained". A three Judge Bench of this Court in Rumana Begum vs. State of Andhra Pradesh (1993 Supp. 2 SCC 341) disapproved the delay in considering the representation on the mere ground that the representation on the mere ground that the representation was not addressed to the Chief Secretary. That was a case where representation was sent to the Governor. Hence it was found that there was unexplained and unreasonable delay and consequently the detention was held vitiated. We are reminded of the following observations made by this Court in Kundanbhai Dulabhai Sheikh vs. District Magistrate, Ahmedabad: (SCC p. 203, para 21) "21. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the 'liberty and freedom' to the person whose detention is allowed to become bad by the government itself on account of his representation not being disposed of at the earliest." 7. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India and others (1991 (1) SC 476). The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India and others (1991 (1) SC 476). The following observations of the Bench can profitable be extracted here:(SCC p. 484, para 12) "It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal." 8. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, it any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.” 10. In the judgment of Rajammal (Supra) the Supreme Court held that an unexplained delay of 05 days from 09.02.1998 to 14.02.1998 in deciding the representation of detenue vitiated his continued detention. The relevant part of the said judgment is extracted herein below:- “9. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. The relevant part of the said judgment is extracted herein below:- “9. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9.2.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.2.1998. Though there is explanation for the delay till 9.2.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen. 11. 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. The corollary thereof is that further detention must necessarily be disallowed. We therefore allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith.” 11. From the above judgment of the three Judge Bench of the Hon'ble Supreme Court the legal principle which comes out is that if there is a delay in deciding the representation of a detenue the same is to be explained by the concerned authority. It is not the duration of delay, rather cause for delay is relevant. The authority is duty bound to explain delay, if any, in deciding the representation by demonstrating that it was actually necessary for the authorities to work on the same during the intervening period without which they could not have effectively dealt with the representation. A Division Bench of this Court in Habeas Corpus Writ Petition No. 390 of 2019 (Sonu @ Firoz vs. State of U.P. and others) quashed the detention order due to unexplained delay from 22.12.2018 to 27.12.2018 i.e. of 05 days in not submitting the comments/report called for from the sponsoring authority. A Division Bench of this Court in Habeas Corpus Writ Petition No. 390 of 2019 (Sonu @ Firoz vs. State of U.P. and others) quashed the detention order due to unexplained delay from 22.12.2018 to 27.12.2018 i.e. of 05 days in not submitting the comments/report called for from the sponsoring authority. In the present case from the supplementary affidavit dated 20.01.2020 it is not evident that what was the reason that compelled the officer concerned to call for an independent report from the Central Agency. The delay in deciding the representation for the period 23.08.2019 to 12.09.2019 (19 days) clearly shows that it was without any explanation. 12. Thus we hold that the delay of 19 days in furnishing the independent report by the Central Agency remained unexplained. The officer dealing with the representation of the petitioner acted in a most irresponsible and negligent manner and has failed to account for the reason as to why did he call for the report from the Central Agency. 13. We in view of above discussion are of the considered opinion that the right of the petitioner under Article 22 (5) of the Constitution of India was seriously infringed, rendering his detention as illegal. The petition is allowed. The order of detention dated 26.07.2019 is quashed. The petitioner shall be set at liberty forthwith unless wanted in any other case. No order as to costs.