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2021 DIGILAW 950 (ALL)

Kali Prasad @ Pandit Singh v. Union Of India

2021-08-27

PIYUSH AGRAWAL, SURYA PRAKASH KESARWANI

body2021
JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri Daya Shankar Mishra, learned Senior Advocate, assisted by Sri Chandrakesh Mishra, learned counsel for the petitioner, Sri Rishi Chaddha, learned A.G.A. for the State-respondents and Sri Ajay Singh, learned Central Government Counsel for the respondent no.1. 2. This writ petition has been filed praying for the following relief : “(i) Issue a writ order or direction in the nature certiorari quashing the impugned order of detention dated 2.11.2020 passed by District Magistrate District Basti/ respondent no.3 in Order no.5176/J.A. (NSA)/2020 by exercising of power U/s 3(3) of National Security Act, 1980. (ii) Issue a Habeas Corpus writ order or direction in the nature of mandamus directing the respondents to release the petitioner forthwith from detention U/s 3(3) of National Security Act, 1980.” 3. Briefly stated facts of the present case are that by the impugned order dated 02.11.2020, under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as “the Act 1980”), passed by the District Magistrate, Basti, the petitioner was detained for the grounds/reasons mentioned in the impugned order. The petitioner was informed about the grounds of detention and his right to make representation. The petitioner submitted an objection dated 12.11.2020 before the concerned respondents. 4. As per paragraph No. 4 of the counter affidavit filed on behalf of the respondent no.1 i.e. Union of India, dated 18.01.2021 (filed on 03.02.2021), the representation of the detenu/petitioner was rejected and he was informed about it vide wireless message dated 06.01.2020. In paragraph No. 4 of the supplementary counter affidavit dated 23.07.2021 (filed on 26.07.2021) respondent no.1 has explained the time taken in passing the order, as under : “That, in continuation of para 4 of the affidavit dated 18.01 2021, it is submitted that the representation dated 12.11.2020 of the detenu along with parawise comments of the detaining authority was forwarded by the Under Secretary, Government of Uttar Pradesh vide letter no. 84/2/77/2020-C.X-5 dated 01.12.2020. The same was received in the section concerned in the Ministry of Home Affairs on 10.12.2020. Despite of unprecedented situation of COVID-19 the representation along with parawise comments of the detaining authority was processed for the consideration of Union Home Secretary on 17.12.2020. 84/2/77/2020-C.X-5 dated 01.12.2020. The same was received in the section concerned in the Ministry of Home Affairs on 10.12.2020. Despite of unprecedented situation of COVID-19 the representation along with parawise comments of the detaining authority was processed for the consideration of Union Home Secretary on 17.12.2020. The matter was thoroughly examined by Under Secretary with Section Officer and section staff and after satisfying all the facts, the Under Secretary (NSA) with her comments forwarded the file to the Deputy Legal Advisor (DLA) on 23.12.2020. The Deputy Legal Advisor (DLA) forwarded the file to the Joint Secretary (IS-II) on 24.12.2020. Thereafter, there was a intervening period 25h, 26th, 27th December, 2020 due to Saturday, Sunday and Christmas Eve. On 28th December, 2020, the matter was discussed with Joint Secretary (IS-II) and the Deputy Legal Advisor (DLA). Thereafter, the Joint Secretary (IS-II) with his comments forwarded the file to the Union Home Secretary on 02.01.2021. Thereafter, the Union Home Secretary having carefully gone through the material on record, including the order of detention, the grounds for detention, the representation of the detenu and the comments of the detaining authority thereon concluded that the detenu had failed to put forth any material cause or grounds in his representation to justify the revocation of the order by exercise of the powers of the Central Government under Section 14 of the National Security Act, 1980. He, therefore, rejected the representation on 04.01.2021 and sent the file back to the Joint Secretary (Internal Security-II). The file reached the section through the aforesaid levels of officers on 06.01.2021. Accordingly, the detenu and the authorities concerned were informed vide Wireless Message No. II/15028/197/2020- NSA dated 06.01.2020. It is pertinent to mention there were intervening period of 9 days on 12th, 13th, 19th, 20th, 25th, 26th, 27th December, 2020; and 02nd and 03rd January, 2021 due to Saturday, Sunday and Christmas Eve. It is further submitted that the representation was examined with utmost care and caution with promptitude.” 5. In paragraph Nos. 3, 4, 5, 6, 7, 10 and 11 of the counter affidavit of the respondent no.2, i.e. the State of U.P., has stated as under : “3. That, it is submitted that the detention order dated 02-11-2020, grounds for detention and all other connected documents, forwarded by the District Magistrate, Basti vide his letter dated 02.11.2020 were received by the State Government on 05.11.2020. That, it is submitted that the detention order dated 02-11-2020, grounds for detention and all other connected documents, forwarded by the District Magistrate, Basti vide his letter dated 02.11.2020 were received by the State Government on 05.11.2020. After examining every aspect of the case of petitioner in detail, the State Government approved the order of detention on 11-11-2020. The approval of the detention order was communicated to the petitioner through the district authorities by the State Government radiogram and letter, both dated 12-11-2020, that is within 12 days from the date of the detention order as required under section 3(4) of the Act. 4. That it is further stated a copy of detention order, grounds of detention and all other connected documents, received from the District Magistrate, Basti were also sent to the Central Government by Speed Post on 13-11-2020 within seven days from the date of approval by the State Government as required under section 3(5) of the Act. Hence, the facts mentioned above goes to show that the provisions of section 3(4) and 3(5) of the Act, have been fully complied with. 5. That, it is submitted that the petitioner was detained under the Act on 02-11-2020, i.e. on the date of service of detention order upon the petitioner. The case of the petitioner was referred to the U.P. Advisory Board (Detentions), Lucknow by the State Government by forwarding the detention order, grounds of detention and all other connected papers on 13-11-2020, well within three weeks from the date of his actual detention as required under section 10 of the Act. 6. That it is submitted that a copy of petitioner's representation dated 12.11.2020 alongwith parawise comments was received in the concerned Section of State Government on 01.12.2020 alongwith letter of District Magistrate, Basti dated 27.11.2020. The State Government sent copies of the representation and parawise comments thereon to the Central Government, New Delhi and to the U.P. Advisory Board (Detentions) vide its separate letters both dated 01.12.2020. Thereafter, the concerned section, that is Home (Gopan) Anubhag-5 of the State Government examined the representation on 02.12.2020. 7. That it is further stated the deponent examined the representation on 03.12.2020. The Deputy Secretary examined the representation on 03.12.2020. The Special Secretary examined the representation on 04.12.2020. The Secretary, Government of Uttar Pradesh, Lucknow examined the same on 04.12.2020. Thereafter, the concerned section, that is Home (Gopan) Anubhag-5 of the State Government examined the representation on 02.12.2020. 7. That it is further stated the deponent examined the representation on 03.12.2020. The Deputy Secretary examined the representation on 03.12.2020. The Special Secretary examined the representation on 04.12.2020. The Secretary, Government of Uttar Pradesh, Lucknow examined the same on 04.12.2020. The Additional Chief Secretary, Government of Uttar Pradesh, Lucknow, examined the representation on 04.12.2020. Dates 05.12.2020 and 06.12.2020 were holiday Saturday and Sunday. Thereafter the file was submitted to the higher authorities for final orders of the State Government. After due consideration, the said representation was finally rejected by the State Government on 07.12.2020. 10. That it is further stated that on receipt thereof, the State Government once again examined afresh the entire case of the petitioner alongwith the opinion of the U.P. Advisory Board and took a decision to confirm the detention order and also for keeping the petitioner under detention for a period of three months tentatively from the date of actual detention of the petitioner i.e. since 02.11.2020. Accordingly, orders of confirmation and for keeping the petitioner under preventive detention of 3 months tentatively from the date of his actual detention under the said Act, were issued by the State Government through radiogram and letter, both dated 21.12.2020 (Annexure no.1 of this counter affidavit). 11. That, it is further stated that on the report/recommendation dated 25.01.2021 received from the District Magistrate, Basti and after consideration of the facts and circumstances of the case the State Government satisfied that it is necessary to extend the above detained period 3 months. So the State Government amended the above order and extended it for 6 month from the actual date of detention order that is, since 02.11.2020. Accordingly the above detention order dated 21.12.2020 was amended and the order was issued on date 29.01.2021 tentatively for 6 months from the actual date of detention that is, since 02.11.2020 (Annexure No.2).” 6. The contents of the aforequoted paragraph Nos. 3, 4, 5, 6, 7 have been replied by the petitioner in paragraph No. 4 of the rejoinder affidavit and contents of aforequoted paragraph Nos. 10 & 11 of the counter affidavit have been replied by the petitioners in paragraph No. 6 of the rejoinder affidavit. Paragraph Nos. 4 & 6 of the rejoinder affidavit are reproduced below : “4. 3, 4, 5, 6, 7 have been replied by the petitioner in paragraph No. 4 of the rejoinder affidavit and contents of aforequoted paragraph Nos. 10 & 11 of the counter affidavit have been replied by the petitioners in paragraph No. 6 of the rejoinder affidavit. Paragraph Nos. 4 & 6 of the rejoinder affidavit are reproduced below : “4. That the contents of paragraphs no.3, 4, 5, 6, 7 of the counter-affidavit are matter of records same can be verify from the records. 6. That the content of paragraphs' no. 10, 11 of the counter affidavit are matter of records same can be verify from the records.” 7. Thus, from perusal of the aforequoted paragraph Nos. 3, 4, 5, 6, 7, 10 & 11 of the counter affidavit clearly reveals sufficient explanation for time taken in passing the order by the respondent No.2, which has not been disputed by the petitioner in paragraphs Nos. 4 & 6 of the rejoinder affidavit. Thus, the only ground of attack of non explanation of time taken in passing the order, by the respondent No.2, has no substance on the admitted facts stated in paragraph Nos.3, 4, 5, 6, 7, 10 & 11 of the counter affidavit of the respondent No.2 and its reply in paragraph Nos. 4 & 6 of the rejoinder affidavit filed on behalf of the petitioner. 8. A detailed counter affidavit by the respondent No.3, i.e. District Magistrate, Basti, and a counter affidavits on behalf of the respondent no.5, i.e. Superintendent of District Jail, Basti, have been filed and the petitioner has filed rejoinder affidavit to the aforesaid counter affidavits which all are on record. 9. The only submission made by learned counsel for the petitioner before this Court, as has also been noted in the order dated 27.07.2021; is that the delay of 57 days in deciding the representation by the respondent no.1 is unexplained and, therefore, further detention of petitioner is wholly illegal and unwarranted and consequently the writ petition should be allowed. 10. In support of his contention learned counsel for the petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Rajammal Vs. 10. In support of his contention learned counsel for the petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Rajammal Vs. State of Tamil Nadu and another, AIR 1999 SC 684 , with specific reliance, the relevant portion of which has been quoted in the order dated 27.07.2021, and the same is reproduced below :- "It is for the authority concerned to explain the delay, if 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. It was further held that delay from 09.02.1998 to 14.02.1998 remains unexplained and such unexplained delay has vitiated the further detention of the detenue. The corollary thereof is that further detention must necessarily be disallowed". 11. There is no quarrel on the aforequoted principle of law stated by Hon'ble Supreme Court in the case of Rajammal (supra) that the test is not the duration or range of delay, but how it is explained by the authority concerned. 12. The only thing that needs to be tested in the present writ petition is as to whether the time taken in deciding the representation has been properly explained by the respondent No.1. For this purpose, we have to look at the explanation offered by the respondent no.1. The order of detention dated 02.11.2020, under Section 3(3) of the National Security Act, 1980 was passed by the District Magistrate, Basti, against the petitioner. The petitioner submitted an objection/representation to it dated 12.11.2020. As per paragraph No.6 of the counter affidavit of the respondent no.2, a copy of the representation dated 12.11.2020 alongwith parawise comment was received in the concerned section of the State Government on 01.12.2020 alongwith letter of the District Magistrate dated 27.11.2020 and thereupon the State Government sent copies of the representation and parawise comments to the Central Government i.e. the respondent no.1 and to the U.P. Advisory Board (detention) vide separate letters both dated 01.12.2020. 13. The aforesaid representation of the petitioner sent by the respondent no.2 to the respondent no.1 was received in the concerned section of the Ministry of Home Affairs on 10.12.2020. 13. The aforesaid representation of the petitioner sent by the respondent no.2 to the respondent no.1 was received in the concerned section of the Ministry of Home Affairs on 10.12.2020. Despite unprecedented situation due to COVID 19, the representation of the petitioner alongwith parawise comments of the detaining authority was processed for consideration of the Union Home Secretary on 17.12.2020, as has been stated in paragraph no.4 of the supplementary counter affidavit of the respondent No.1 which portion has not been disputed or denied by the petitioner in paragraph no.3 of the rejoinder affidavit. 14. The fact of unprecedented situation due to Pandemic COVID 19 is also reflected from the averments made by the petitioner in paragraph No. 3 of the writ petition sworn on personal knowledge, wherein the counsel for the petitioner has himself declared that due to Pandemic COVID 19, it is impossible for the deponent to come at Allahabad High Court to swear the affidavit, in view of the order dated 11.04.2020, passed by the High Court. 15. The deponent of the affidavit accompanying the writ petition is Krishna Kumar Singh who is elder brother of the petitioner, has stated in paragraph No. 4 of the writ petition that he is filing this habeas corpus writ petition on behalf of the petitioner. In the declaration accompanying the writ petition filed by the Sri Raj Kumar Singh, Advocate (counsel for the petitioner/applicant), it has been stated that “due to Corona Virus (COVID-19) Pandemicand Nation Widelock-down and due to close of Photo I.D. center, the deponent unable to swear the Affidavit filed in support of the present Habeas Corpus Writ Petition.” Thus, the petitioner/deponent of the affidavit accompanying the writ petition as well as the petitioner's counsel have admitted on record the unprecedented situation created due to Pandemic COVID 19. Therefore, the explanation offered with reference to the unprecedented situation created due to Pandemic COVID 19, is well acceptable. 16. The petitioner has also not denied the averments of paragraph No.4 of the supplementary counter affidavit that the matter was thoroughly examined by the under Secretary with Section Officer and Section Staff and after satisfying all the facts, the National Security Advisor (NSA) with her comments forwarded the file to the Deputy Legal Advisor (DLA) on 23.12.2020, who forwarded the file to the Joint Secretary on the very next day i.e. 24.12.2020. The petitioner in his rejoinder affidavit has also not disputed the averments of paragraph No. 4 of the supplementary counter affidavit of the respondent no.1 to the effect that the intervening period 25th, 26th and 27th December 2020 were Saturday, Sunday and Christmas Eve and on 28th December 2020, the matter was discussed with the Joint Secretary (I.S. -II) and the Deputy Legal Advisor (DLA) and immediately thereafter the Joint Secretary (ISII) with his comment forwarded the file to the Union Home Secretary on 02.01.2021 who rejected the representation of the detenu on 04.01.2021 and sent the file back to the Joint Secretary (Internal Security – II). The file reached to the Section through the aforesaid levels of Officer on 06.01.2021 and accordingly the detenu and the authorities concerned were informed vide wireless message dated 06.01.2021. It has also been stated in paragraph No. 4 of the supplementary counter affidavit by the respondent No.1 that 12th, 13th, 19th, 20th, 25th, 26th and 27th December 2020 and 2nd and 3rd January 2021 of the intervening period were Saturday, Sunday and Christmas Eve. The specific averments as stated in paragraph No. 4 of the supplementary counter affidavit by the respondent no.1 and briefly noted above have not been specifically disputed by the petitioner in paragraph No. 3 of the rejoinder affidavit. Thus, the only submission of learned counsel for the petitioner that there occurred an unexplained delay of 57 days is wholly without substance. The judgment of Hon'ble Supreme Court in the case of R ajam m al (s u p r a) is of no help to the petitioner on the facts of the present case, inasmuch as in the case of Rajammal (supra) Hon'ble Supreme Court has laid down the law that the test is not the duration or range of delay but how it is explained by the authority concerned. Therefore, the delay as alleged by the petitioner in paragraph No. 3 of the rejoinder affidavit, is wholly without substance. 17. Thus, the only point argued and pressed before us by the learned counsel for the petitioner to challenge the impugned detention order, has no substance. No other point has been argued before us by learned counsel for the petitioner. 18. In Hetchin Haokip Vs. State of Manipur, (2018) 9 SCC 562 (Paragraph Nos. 17. Thus, the only point argued and pressed before us by the learned counsel for the petitioner to challenge the impugned detention order, has no substance. No other point has been argued before us by learned counsel for the petitioner. 18. In Hetchin Haokip Vs. State of Manipur, (2018) 9 SCC 562 (Paragraph Nos. 9 to 15), Hon'ble Supreme Court explained the meaning of the word “forthwith” used in Section 3(4) of the National Security Act, 1980, in the context of statute providing for preventive detention and after referring to the Constitution Bench judgment in Keshav Tilak Nilkantah Joglekar Vs. Commissioner of Police, AIR 1957 SC 28 , Vidya dev Verma Vs. District Magistrate, Agartala, AIR 1969 SC 323 and the Division Bench judgment in Salim Vs. State of West Bengal (1975) 1 SCC 653 , held that the word “forthwith” used in Section 3 does not mean instantaneous but without undue delay and within a reasonable time which is to be ascertained from the facts of the case. 19. The facts of the present case as briefly discussed above would reveal that the respondent Nos. 1 & 2 have not caused undue delay in deciding the representation of the petitioner. Both the said respondents well explained the time taken in deciding the representation. 20. In case of preventive detention no offence is proved nor any charge is formulated and the justification of such detention is the suspicion or reasonability. There is no criminal conviction in matters of preventive detention which can only be warranted by legal evidence. Therefore, preventive justice requires an action to be taken to prevent apprehended objectionable activity, but at the same time the greatest human freedoms i.e. personal liberty of a person is deprived. Therefore, the law of preventive detention are construed strictly and a meticulous compliance with procedural safeguard, however, technical, is mandatory. Therefore, preventive detention is also described as “jurisdiction of suspicion”. These principles have been discussed by Hon'ble Supreme Court in Kubic Darusz Vs. Union of India (1990) 1 SCC 568 , Ayya Vs. State of U.P. (1989) 1 SCC 374 and Union of India Vs. Yumnam Anand M. (2007) 10 SCC 190 . 21. In Rajindra Vs. Commissioner of Police (1994) Suppl. These principles have been discussed by Hon'ble Supreme Court in Kubic Darusz Vs. Union of India (1990) 1 SCC 568 , Ayya Vs. State of U.P. (1989) 1 SCC 374 and Union of India Vs. Yumnam Anand M. (2007) 10 SCC 190 . 21. In Rajindra Vs. Commissioner of Police (1994) Suppl. (2) SCC 716, Hon'ble Supreme Court held that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously and if there is some exfaciedelay, the obligation is on the State to explain that delay by filing a proper counter affidavit and the Court should insist that each day's delay must be explained. It is obligatory on the part of the Government to show by filing a counter affidavit that it had acted promptly in dealing with the representation. Thus, what is essential is that the Court must be satisfied that the Officers dealing with the representation were not indifferent to the urgency of the situation of the detenu being in jail. On the facts of the present case, as discussed above, we find that the Government has acted promptly in the prevailing situation and also looking into the urgency of the situation of the detenu being detained in jail. 22. In Union of India and others Vs. Laishram Lincola Singh @ Nicolai (2008) 5 SCC 490 (paragraph Nos. 7 & 8) Hon'ble Supreme Court held as under :- “7. In Vinod K.Chawla v. Union ofIndiaand Ors. (2006) 7 SCC 337 , it was observed as under: "13. The contention raised cannot be judged by any straitjacket formula divorced from facts. This has to be examined with reference to the facts of each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the department concerned, and so on. 14. 14. In L.M.S. Ummu Saleema v. B.B. Gujaral (1981) 3SCC 317 it was held that there can be no doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC 275 (SCC p. 279, para 5, "the timeimperative can never be absolute or obsessive". In Madan Lal Anand v. Union of India (1990) 1 SCC 81 the representation dated 17-1-1989 of the detenu who was detained under COFEPOSA was rejected after more than a month on 20-2-1989. After referring to L.M.S. Ummu Saleema it was held that the detaining authority had explained the delay in disposal of the representation and accordingly the order of detention cannot be faulted on that ground. In Kamarunnissa v. Union of India (1991) 1 SCC 128 the representation made by the detenu on 18-12-1989 was rejected on 30-1-1990 and it was contended that there was inordinate delay in consideration of the representation. In the explanation given in the counter-affidavit filed in reply, it was submitted that considerable period of time was taken by the sponsoring authority in forwarding its comments. It was contended on behalf of the detenu that the views of the sponsoring authority were totally unnecessary and the time taken by that authority could not be taken into consideration. The contention was repelled by this Court and it was observed that consulting the authority which initiated the proposal can never be said to be an unwarranted exercise. It was further emphasised that whether the delay in considering the representation has been properly explained or not would depend upon the facts of each case and cannot be judged in vacuum. Similarly, in Birendra Kumar Rai v. Union of India (1993) 1 SCC 272 the petitioner made a representation against his detention on 22-12-1990 which was rejected by the Central Government after a month on 25-1- 1991. It was observed that the explanation offered for the delay in consideration of the representation was not such from which an inference of inaction or callousness on the part of the authorities could be inferred and accordingly the challenge on the ground of delay was rejected. It was observed that the explanation offered for the delay in consideration of the representation was not such from which an inference of inaction or callousness on the part of the authorities could be inferred and accordingly the challenge on the ground of delay was rejected. The subsequent decisions of this Court are also on the same lines and we do not consider it necessary to refer to them as the principle is well settled that there should be no inaction or lethargy in consideration of the representation and where there is a proper explanation for the time taken in disposal of representation, even though it may be long, the continued detention of the detenu would not be rendered illegal in any manner. 15. The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24-3-1998 was received by the Ministry on 27-3- 1998. The comments of the sponsoring authority were called on 30-3-1998 which were received on 17-4-1998. The comments were placed before the Secretary (R) through the ADG on 22-4-1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29-4-1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21-4-1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2-4-1998 and the comments were dispatched on 17-4-1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected." 8. The order of the High Court is clearly unsustainable and is set aside. The period of detention fixed by the order of detention being over, it is open to the detaining authority to consider whether there is any need for detaining the respondent as the situation stands now.” 23. Thus, for all the reasons stated above the time taken by the respondent no. 1 and the respondent no.2 in deciding the representation of the petitioner/detenu on facts of the present case can not be said to suffer from undue delay or inordinate delay. 24. Thus, for all the reasons aforestated, we do not find any merit in the present writ petition. Therefore, the writ petition is dismissed. However, there shall be no order as to costs.