Allahabad High Court
Imran vs Union Of India & 3 Others on 19 February, 2018
Author: Vipin Sinha
Bench: Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 51 Case :- HABEAS CORPUS WRIT PETITION No. - 36372 of 2017 Petitioner :- Imran Respondent :- Union Of India & 3 Others Counsel for Petitioner :- Nazrul Islam Jafri Counsel for Respondent :- G.A.,A.S.G.I.,G.P.Asthana Hon'ble Vipin Sinha,J.
Hon'ble J.J. Munir,J.
(Delivered by Hon'ble J.J. Munir, J.)
1. The petitioner Imran has been detained by an order dated 28.05.2017 passed under Section 3(2) of the National Security Act, 1980. This order has been passed by the District Magistrate, Deoria on ground that it is necessary to detain the petitioner in order to prevent him from acting in a manner prejudicial to the maintenance of public order. The aforesaid order is annexed as Annexure no. 7 to the petition and is hereinafter referred to as 'Detention Order'. The Detention Order is supported by grounds of detention annexed as Annexure no. 8 to the petition that furnish details of those facts, circumstances and evidence that have been taken into consideration by the District Magistrate, Deoria to form his subjective satisfaction required under the statute. The grounds also undertake and inform of the detenue of all his rights to represent against the Detention Order including the authorities to whom he could represent, the time within which he could do so and the provisions of the National Security Act, 1980, for short the Act, which entitle the detenu to represent. The grounds of detention in support the detention order are also dated 28.05.2017 and have been duly served upon the petitioner along with the report of the sponsoring authority (the police) as also other documents that have been taken into consideration by the District Magistrate, Deoria who is hereinafter referred to as the 'Detaining Authority'.
2. The petitioner has laid challenge to his detention pursuant to the Detention Order through the instant habeas corpus writ petition that was filed on 10.08.2017. The writ petition came up for admission on 16.08.2017 when the learned counsel for the petitioner sought time to file a supplementary affidavit. The following order was passed by this Court on that day:
"Mr. Gyan Prakash Asthana, Advocate has put in appearance on behalf of the respondent no. 1- Union of India.
As prayed by Mr. Nazrul Islam Jafri, learned counsel for the petitioner, list the matter in the next cause list to enable him to file supplementary affidavit."
3. A supplementary affidavit sworn on 17.08.2017 by one Abdul Rahman Khan was filed in the office regarding which an office report dated 22.08.2017 was recorded. The petition came up for admission on 23.08.2017 along with supplementary affidavit when the following order was made:
"Heard learned counsel for the petitioner and learned A.G.A. for the opposite parties.
Learned counsel for the petitioner has filed supplementary affidavit today which is taken on record.
In paragraph 6 of the supplementary affidavit, it has been stated as follows:-
"6. That under Secretary Home (Confidential Department Government of U.P. had sent a radiogram/ crash to the Superintendent District Jail Deoria and District Magistrate Deoria, on 19.07.2017 thereby informing them about the report of the advisory board having confirmed the detention order passed against the petitioner by the District Magistrate Deoria dated 28.05.2017 and further the State Government had also confirmed the said detention order passed against the petitioner u/s 12(1) of the National Security Act. Photocopy of the radiogram dated 19.07.2017 issued by the under Secretary Home (Confidential) Department Government of U.P. is being filed herewith and marked as Annexure No.S.A.1 to this affidavit."
Respondents are granted six weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter."
4. The order dated 23.08.2017 constitutes issue of a rule nisi requiring each of the respondents to show cause against the petitioner's detention by dint of the Detention order. The earliest of returns that came to be filed was one by the Union of India being a counter affidavit sworn on 10.10.2017 by one Sri Rajesh Ranjan, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi that was formally signed by the learned Central Government Counsel on 24.10.2017 and was filed on record on a date that is not discernible from the order sheet. The next in chronology is the return filed on behalf of the Detaining Authority sworn on 17.10.2017 by Sujit Kumar the incumbent officer who has made the Detention Order. The aforesaid counter affidavit on behalf of the Detaining Authority was formally signed by the learned Additional Government Advocate on 01.11.2017, and, once again, placed on record with no mention of it in the order sheet. There is also a counter affidavit on behalf of the Superintendent, District Jail , sworn on 24.10.2017 and formally signed by the learned Additional Government Advocate on 01.11.2017. This affidavit appears to have been filed along with the counter affidavit on behalf of the Detaining Authority but without mention of it being so filed in the order sheet by an office report. There is then the last return which is a counter affidavit filed on behalf of the State being an affidavit sworn by Surya Nath Ram, Deputy Secretary, Home (Confidential Department), U.P. Civil Secretariat, Lucknow. The said affidavit was signed by the Additional Government Advocate on 14.11.2017 and filed to record on same day the precise mention of which does not find place in the order sheet from any office report.
5. The petitioner has filed a rejoinder affidavit sworn on 05.11.2017 by Abdul Rahman Khan whereby the petitioner has put across a reply each to the counter affidavits on behalf of the respondent nos. 1 to 4 progressively across a total of 32 paragraphs all sworn on the basis of personal knowledge of the deponent who claims to be a cousin to the petitioner, Imran. There is an office report dated 23.11.2017 submitted in compliance to the Court's order dated 17.11.2017 that mentions in omnibus terms about the counter affidavits received in the office without indicating the date of receipt of each return or the identity of the respondent on whose behalf a particular return was filed. Be that as it may, pleadings in this petition were complete when the matter was called on for hearing on 24.11.2017 and judgment was reserved.
6. We have heard Sri N.I. Jafri, learned counsel for the petitioner, Sri Sanjay Tripathi, learned Additional Government Advocate for respondent nos. 2, 3 and 4 and Sri G.P. Asthana for the Union of India.
7. The precipitating occurrence as set out in the grounds of detention that moved the sponsoring authority was an incident dated 04.01.2017 in the morning hours of 10:00 a.m. It appears that on 31.12.2017 one Rahmatulla S/o Faiz Ansari, a young man of 22 years and a resident of town/P.S. Madanpur District Deoria was missing and his dead body was recovered apparently on 04.01.2017 regarding which information was received at 09:45 a.m. by Shobha Singh Solanki, SHO, P.S. Madanpur. As per the information received the dead body was lying near the village Kewataliya on the bank of river Raapti. Upon receipt of the said information, the Inspector in-charge immediately dispatched a police team to the place where the dead body reportedly lay, and, herself followed suit.
8. By the time, the police reached the scene of discovery, a large multitude of people under the command and control of the petitioner had already gathered surrounding the dead body. The petitioner happens to be the husband of the village Pradhan of village Madanpur, commonly referred to as Pradhan Pati. The petitioner in order to make an issue of the retrieved dead body of the youth, fomented emotions of the gathered multitude, working them up to frayed tempers, and, incited them to commit acts of violence. In consequence, the gathered mass of people under the command of the petitioner suddenly resorted to thick violence and attacked the houses of two natives of village Kewataliya, to wit, one Indrasen Yadav and other Shiv Shankar Yadav. In the incident at the house of Indrasen Yadav that came to pass at 10:00 a.m, the mob commanded by the petitioner forced their entry to the house, robbed the inmates of jewellery, money etc, damaged the house and beat up those found within; the mob also damaged a tractor and two two-wheelers belonging to Indrasen Yadav. A first information report of the incident was lodged by Indrasen Yadav giving rise to Case Crime No. 02 of 2017 under Section 147, 323, 542, 427, 395 IPC, P.S. Madanpur, District Deoria.
9. It is mentioned in the grounds that on the basis of the aforesaid occurrence Case Crime No. 2 of 2017 under Sections 147, 323, 452, 427, 395 IPC, P.S. Madanpur, District Deoria came to be registered on an information lodged by Indrasen Yadav; it has been recorded in the grounds that on the basis of the statements of eye witness that the petitioner was in command of the entire violent mob that indulged in pillage and created mayhem where the petitioner was seen exhorting and instigating the mob to commit varied offences in their frenzy. It is indicated that the petitioner was at the centre stage of this violence and by his daring act leading to offences of widespread nature the maintenance of public order was affected. It is then setforth in the grounds of detention that the mob commanded by the petitioner attacked the house of Shiv Shanker Yadav on 04.01.2017 at 10:00 a.m. damaging the house, two wheelers and upon gaining entry to the house, beat up the women folk relieving them of their ornaments and robbing clothes, utensils etc.
10. It is mentioned that the occurrence was reported to the police by the victim Shiv Shanker Yadav through a written information nominating a number of accused including the petitioner along with thousands of unknown offenders giving rise to Case Crime No. 4 of 2017 under Sections 147, 323, 452, 395, 427 IPC, P.S. Madanpur, District Deoria. It is set out explicitly in the grounds that during investigation, it was revealed that the petitioner played in the occurrence an important role.
11. The eye witness account would have it that the petitioner was in command of the entire unlawful assembly/mob that ravaged and plundered the house of Shiv Shanker Yadav where he had the role of exhorting and instigating the aggressive mob to indulge in acts of pillage, damage to property and the like. It is mentioned that the daredevilry with which the petitioner commanded the violent mob to commit offences of a serious nature led to a disturbance of the public order. The grounds go on to mention that once done with the ransacking of houses of Indrasen Yadav and Shiv Shanker Yadav, the petitioner commanding the same unlawful assembly attacked the premises of police station, Madanpur, District Deoria in the manner that on 04.01.2017 at about 11:00 O'clock in the morning hours, the petitioner led the violent mob armed with sticks (lathi-danda), Farsa(a sharp edged weapon), Fawra (a sharp edged tool used in agriculture), Eit-patthar (brickbats) and kerosene oil damaging the premises, ransacking it; vehicles were torched, Government and private firearm besides ammunitions kept in armory were looted and burnt besides Government property destroyed and police personnel subjected to murderous assault.
12. It is indicated that the petitioner's acts amount to very heinous offences of a daredevil character which left many police men injured and valuable Government property destroyed. A case in relation to the aforesaid occurrence was registered on a written information of the then Inspector in-charge of the police station Shobha Singh Solanki giving rise to Case Crime No. 1 of 2017 under Sections 147, 148, 149, 307, 435, 436, 395, 397, 323, 504, 506, 453, 427, 186, 336, 34, 452, 120B and Section ¾ Prevention of Public Properties Act and Section 7 Criminal Law Amendment Act, P.S. Madanpur, District Deoria wherein along with the petitioner, 43 nominated accused and an unnamed 1000 figure; wherein the name of the petitioner stands at serial number-4 in the list of nominated accused. It is also said in the grounds that during investigation the eye witnesses amongst the police personnel as also from the public have stated that the petitioner was in command of this very violent mob and was instigating and exhorting the members of the unlawful assembly to indulge in violence that was unleashed.
13. It is included in the grounds that the aforesaid act led to public order being adversely affected. It is further said in the grounds that on 04.01.2017 at about 11:00 O'clock in the morning with the petitioner in command of the same violent mob damaged and ransacked shops, Ujala building in Town Madanpur indulging in acts of pillage, robbery and murderous assault, torching a truck standing at the shop. It is stated that in connection with said incident informant Pankaj Pandey S/o Subhash Chandra Pandey filed a written first information nominating the petitioner besides others and thousands of unnamed offenders comprising the unlawful assembly that came to registered as Case Crime No. 3 of 2017 under Sections 147, 148, 149, 435, 307, 352 IPC, P.S. Mdanpur, District Deoria. It is said in the grounds that on investigation in relation to the Ujala building Material Shop Owner, a victim and an eye witness, Guddu Singh @ Amrendra Singh moved an application supplementing the first information on the basis of which Sections 436, 397, 34, 120-B IPC were added to Case Crime No. 3 of 2017.
14. The statements of the eye witnesses revealed that the petitioner had a central role to play in the occurrence involving the Ujala Building Material Shop in that, that he commanded the frenzied mob exhorting and instigating them to indulge in violence that they did. It is said in the grounds that the aforesaid act constitute heinous offences of a daredevil nature which led to the maintenance of public order being vitiated; at the time that the grounds were served upon the petitioner investigation in each of the four case crimes was in progress.
15. The grounds go on to say summing of the impact of the four distinct episodes giving rise to the distinct crimes committed by the petitioner commanding the violent and unruly mob that he along with the co-accused exhorted and instigated the said unruly mob in the entire series of occurrences. He indulged in widespread violence that led to an atmosphere of terror in the locale of the occurrence and in the entire area of town Madanpur where the even tempo of life was thrown out of gear. It is said that seeing the occurrence and on hearing about it common people in the area were terror struck; the movement of the locals and the general public was badly affected in the entire region, schools, shops, banks and commercial establishments were closed; social meetings and engagements were kept with great difficulty if at all; educational institutions being closed, students were badly affected, patients and their attendants had to face great hardships; the entire sequence of incidents being one of a very intense dimension the even tempo of life was in disarray, peace and public order were badly affected; for many days the newspapers prominently published reports about the occurrence, all of which led to the even tempo of life being affected. In order to restore normalency and public order, additional police force had to be summoned from the entire district and also from neighbouring districts; for days together and after much effort, by and by normal tempo of life was restored.
16. The grounds go on to say that the petitioner made desperate efforts to escape but the then SHO, P.S. Madanpur, District Deoria in swift action arrested the petitioner on 05.01.2017 in connection with Case Crime No. 1 of 2017 (Supra) whereafter the petitioner was remanded to judicial custody, and, while in judicial custody, the petitioner was summoned to court from jail and remanded further in relation to Case Crime No. 2 of 2017, 3 of 2017 and 4 of 2017 (Supra).
17. The petitioner had already moved this Court for bail. It is further said that there is confidential information received by the Detaining Authority that in the event of being released on bail, the petitioner would again indulge in such acts of violent crime as would lead to fear and terror in the locality throwing the even tempo of life out of gear, in consequence of which there is a strong likelihood of the maintenance of public order being disrupted/adversely affected. The Detaining Authority has recorded on all these facts and relevant material annexed to the grounds that he is subjectively satisfied that the petitioner on being released is likely to an act in a manner that would adversely affect the maintenance of public order, and, to prevent the petitioner from doing so, it is necessary to keep him in detention.
18. The learned counsel for the petitioner has urged two grounds to assail the Detention Order:
i. There was no real possibility or likelihood of the petitioner's release from jail on the date the detention was made and the Detaining Authority passed the Detention Order ignoring from consideration relevant material necessary to form a valid subjective satisfaction that there was a real likelihood of the petitioner being released on bail when the Detention Order was made.
ii. There is an unexplained delay of six days by the Detaining Authority in forwarding the petitioner's representation to the State Government that was admittedly received in the office of the Detaining Authority on 06.06.2017 and admittedly forwarded to the State Government on 13.06.2017 which being an unexplained delay vitiates the detention order.
19. That turning to the first ground, learned counsel for the petitioner has invited the attention of the Court to the grounds of detention, specifically to page nos. 62 and 63 of the paper book where the relevant part of the grounds occur. He submits that a perusal of the last paragraph of the grounds at page no. 62 of the paper book and rolling over to the next page in the continuing paragraph explicitly go to show that the Detaining Authority is aware that the applicant is in jail in connection with Case Crime Nos. 1 of 2017, 2 of 2017, 3 of 2017 and 4 of 2017 and further that the petitioner is making efforts to secure bail. Learned counsel for the petitioner pointed out that a reading of the paragraph under reference shows that for the purpose of forming a subjective satisfaction that the petitioner is making efforts to be released on bail, the Detaining Authority has taken into consideration the fact that the petitioner has moved this Court on 05.05.2017 for bail in Case Crime No. 1 of 2017 (Supra); however, in the entire part of the grounds dealing with the issue of a real possibility of release of the petitioner on bail, there is not as much as the whisper about the efforts, if any, made by the petitioner to seek bail in Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017 (Supra).
20. It is the submission of learned counsel for the petitioner that until date that the order of the detention was passed and grounds in support drawn up and served, that is to say, until 28.05.2017, he had not applied for bail in Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017 (Supra). In this connection, learned counsel for the petitioner has invited the attention of the Court to paragraph no. 14 of the writ petition which reads thus:
"14. That in the present case perusal of the ground of detention indicates that the petitioner is in District Jail, Deoria on account of his being involved in case crime no. 1/2017, case crime no. 2/2017, case crime no. 3/2017 and case crime no. 4/2017 was making efforts through his pairokar to obtained bail and in this regard he had moved a bail application before the High Court in case crime no. 1/2017 and in case the petitioner is released on bail there is strong possibility of the petitioner again indulge in activities which will disturbed public order. In the detention order the detaining authority has failed to record any satisfaction in the impugned order that there was real possibility of the petitioner who was already in judicial custody, being released on bail and therefore in view of it the detention order passed against the petitioner dated 28.05.2017 passed by District Magistrate, Deoria is illegal and is liable to be quashed by this Hon'ble Court under Article 226 of the Constitution of India."
21. The contents of paragraph no. 14 of the writ petition though not answered specifically with reference to the paragraphwise assertions, as the learned AGA would point out has been dealt with in paragraph no. 23 of the counter affidavit filed on behalf of the Detaining Authority that reads thus:
"23. That the order of detention has been passed by the deponent/District Magistrate by taking into consideration the entire facts, the impact of the incident on the society at large, the fear and terror created on account of the said incident and by also evaluating fact that the petitioner and his family members were making efforts for releasing the petitioner on bail. The deponent at the end of initial period of detention again sought further report from the police administration and recommended for further extension of the detention period. It is submitted that the deponent while passing the detention order took note of the fact that hectic efforts are being made from the side of the petitioner for getting him to be released on bail. The bail application was taken note by the deponent. It is humbly submitted that while forming the subjective satisfaction, what is to be seen, is the effort being made by the petitioner for setting him free. The safeguard as provided under the National Security Act has been duly followed by the deponent and on each and every step the petitioner has been informed about his rights and therefore the detention order is wholly in accordance with law and the resent habeas corpus petitioner filed by the petitioner is liable to be dismissed. More so ever, the petitioner has been granted bail by this Hon'ble Court on 10.08.2017 in Case Crime No. 2 of 2017, under Sections 147, 323, 452, 427 and 395. In Case Crime NO. 1 of 2017 under sections 147, 148, 149, 307, 435, 436, 395, 397, 323, 504, 506, 332, 353, 427, 186, 336, 34, 452, 120 B of IPC section ¾ Prevention of Damages to Public Property Act and section 7 Criminal Law Amendment Act. Bail has been granted to the petitioner on 30.05.2017 by this Hon'ble Court. In Case Crime No. 3 of 2017, under sections 147, 148, 149, 435, 307, 352, 436, 397, 34 and 120-B of IPC bail has been granted tot he petitioner on 18.08.2017 by this Hon'ble Court and in Case Crime No. 4 of 2017, under sections 147, 323, 452, 395 and 427 of IPC bail has been granted to the petitioner by this Hon'ble Court on 18.09.2017."
22. Paragraph no. 23 of the counter affidavit has been answered in the rejoinder affidavit vide paragraph no. 27 of the rejoinder affidavit that reads thus:
"27. That in reply to the contents of paragraph no.23 of the counter affidavit it is submitted that admittedly the petitioner had no criminal history prior to the registration of case crime no. 1 of 2017 at Police Station Madanpur, Deoria and further it is admitted fat that the petitioner did not file any bail application in case crime no.2 of 2017, case crime no.3 of 2017 and case crime no. 4 of 2017 before the learned courts below and as such the detaining authority had failed to record its satisfaction in the impugned detention order dated 28.05.2017 regarding the real possibility of the release of the petitioner from jail and further there was no material to show that after released on bail, the petitioner will indulge again in the alleged activities and therefore without their being any such material, the detention order passed against the petitioner should not have been approved or confirmed by the respondent no. 1, 2 and 3 and as such the detention order passed against the petitioners has become wholly illegal and is liable to be set-aside by this Hon'ble Court and the petitioner be ordered to be released forthwith."
23. Learned counsel for the petitioner has laid much emphasis that there was no bail application made on his behalf to any court in the three Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017 (Supra) on the date the detention order was passed, that is to say, on 28.05.2017. On the said date, the only bail application or in substantial terms efforts to seek bail were made in Case Crime No. 1 of 2017 to which specific allusion has been made in the grounds of detention but not the other three case crimes. On these state of facts, learned counsel submits that in a case where a person is already in jail there cannot be a real possibility of his release on bail unless he has moved a bail application which is pending. In case, there is no bail application pending there cannot be a real likelihood of the detenu already in custody in a crime being released on bail. In such a situation if the Detaining Authority passes an order of preventive detention, the same would be illegal as his subjective satisfaction would be based on no material. This according to the learned counsel for the petitioner is the position of the law to which there is an exception which comes into play where a co-accused whose case stands on the same foot has been granted bail; in such a case the Detaining Authority can reasonably conclude that there is a real likelihood of the detenu being released on bail despite no bail application filed on his behalf pending as most courts grant bail on the principle of parity. He further elaborates that the law in that eventuality (exception of parity) requires the Detaining Authority to furnish details of similar cases where co-accused have been granted bail which led him to form a subjective satisfaction that on grounds of parity, the detenu who has not applied for bail has real likelihood of being released as a matter of course, as if it were, in order to support the aforesaid position of law. The learned counsel counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in Rekha vs. State of Tamilnadu through Secretary to Government and another (2011) 2 SCC 596 where in paragraph no. 27 of the report it is held by their Lordships thus:
"27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. I t follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."
24. The learned Standing Counsel, on the other hand, submitted that the subjective satisfaction of the Detaining Authority as to the likelihood of release of a detenu on bail is to be decided in the facts and circumstances of each case and further that the mere rejection or non pendency of a bail application made by a detenu is not in itself determinative of the fact that the Detaining Authority had no material before it to form a valid subjective satisfaction as to the real likelihood of the detenu being released on bail. Learned Standing Counsel in this regard has depended upon the law laid down by the Hon'ble Supreme Court in case of Ahmad Nassar vs. State of Tamilnadu and others reported in AIR 1999 SC 3897 where their Lordships in paragraph nos. 44A to 46 of the report have held thus:
" 44-A. We have already observed in the matter of testing satisfaction of any detaining authority, it has to be tested on the facts and circumstances of each case. Examining the facts in the present case, we find in para 7 of the counter affidavit filed on behalf of respondent No.l (State) by Mr. S. Retnaswamy, Deputy Secretary to Government, Public Department, Government of Tamil Nadu, Chennai- 9 it is stated :
"....It is further submitted that the detaining authority has considered the bail application of the detenu dated 1.4.1999 and arrived at the subjective satisfaction that there is likelihood of the release of the detenu on bail and hence it cannot be staled that there is non-application of mind on the part of the detaining authority."
45. So before the detaining authority, there existed not only order dated 12.4.1999 rejecting his bail application but the contents of the bail application dated 1.4.1999. The averment made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail ap-plication was then pending is no premise to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chances of being bailed out, in case there be pending bail application or in case, if it is moved in future, is decided. The word "likely" shows it can be either way. So without taking any such risk if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion. The contents of bail application would vary from one case to the other, coupled with the different set of circumstances in each case, it may be legitimately possible in a given case for a detaining authority to draw an inference that there is likelihood of detenu being released on bail. The detention order records :-
"The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court(s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released."
46. Thus we hold the conclusion of the detaining authority on the facts of the present case, "there is likehood of his being released on bail" cannot be said to be based on no relevant material."
25. No doubt, the law laid down in Ahmad Nassar (supra)by their lordships of the Supreme Court says that the Detaining Authority can come to its own subjective satisfaction regarding the likelihood of the detenu's release on bail regardless of the fact that no bail application was pending at the time when the detention order was made. The said principle of law laid down in re Ahmad Nassar (supra) may not bind this Court any longer in view of the law laid down in re Rekha (supra) by their lordships of the Supreme Court which is on authority of a three Judge Bench of their lordships whereas the decision in Ahmad Nassar was rendered by a two Judge Bench; also, the decision in Rekha (supra) is subsequentive in point of time and is squarely applicable to the facts obtaining in the present case. In the opinion of this Court, the decision in Rekha (supra) squarely answers the issue.
26. There being no quarrel on facts between parties that on the date the Detention Order was made there was no bail application pending in relation to Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017 (Supra) on behalf of the petitioner in any court and no effort to seek bail in those crimes having been made by that date, it cannot be said that there was any real possibility or likelihood of the petitioner being released on bail. We also hold, therefore, that on the date the Detention Order was made there was no objective/material before the Detaining Authority to form a valid subjective satisfaction that there was a real likelihood of the detenu being released on bail entitling him to make the detention order.
27. Here, we wish to mention that no decision of a larger bench of their lordships or one subsequent in point of time on the issue involved expressing a contrary or different view of the law than the one in Rekha (Supra) has been brought to the notice of this Court.
28. We may now advert to the second ground urged by the learned counsel for the petitioner, that is to say, the delay of six days in forwarding his representation against the detention order to the State Government without a valid explanation. In this connection, it is stated in paragraph no. 17 of the counter affidavit filed on behalf of the Detaining Authority.
"................It is submitted that soon after receiving representation from the petitioner, it was forwarded to the State Government, State Advisory Board, Lucknow and Central Government on 13.06.2017, with the parawise narrative."
(relevant part of the paragraph)
29. Learned counsel for the petitioner in this connection has drawn the attention of this Court to paragraph no. 22 of the rejoinder affidavit that answers paragraph no. 17 of the counter affidavit on behalf of the Detaining Authority which is quoted in extenso:
"22. That in reply to the contents of paragraph no. 17 of the counter affidavit it is submitted that the petitioner had made a representation to the respondent no. 1, 2 and 3 through the respondent no. 4 on 06.06.2017, which was received by the office of the District Magistrate Deoria on 06.06.2017 and yet the representation of the petitioner was forwarded to the State Government, State Advisory Board, Lucknow and Central Government on 13.06.2017 along with the parawise narratives i.e. after 7 days of its receiving and the said delay has not been explained in the said counter affidavit filed by him."
30. In order to substantiate his case that any delay short or long in the disposal of a detenu's representation against the detention order at any step be it transmission or disposal by the authority concerned post receipt vitiates the detention as it militates against the constitutional obligation of the Government enshrined in Article 22 (5) of the Constitution, learned counsel has placed reliance on the law laid down by the Hon'ble Supreme Court in Rajammal vs. State of Tamilnadu and another reported in 1999 SCC (Cri) 93 where in paragraph no. 8 of the report, it has been held thus:
"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, if any, in disposing of 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."
31. Learned counsel for the petitioner has also relied on a more recent decision of the Hon'ble Supreme Court in Ummu Sabeena vs. State of Kerala and others reported (2011) 10 SCC 781 where on the issue of the effect of delay in disposal of a detenu's representation it has been held thus:
"7. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of K.M. Abdulla Kunhi Vs. Union of India & Ors, 1991 (1) SCC 476. The unanimous Constitution Bench, speaking through Justice K. Jagannatha Shetty, after noting the Constitutional provisions under sub-clauses (4) and (5) of Article 22, was pleased to hold that neither under the Constitution nor under the relevant statutory provision has any time limit been fixed for consideration of representation made by a detenu. The time limit, according to the Constitution Bench, has been deliberately kept elastic. But the Constitution Bench laid emphasis on the expression 'as soon as may be' in sub- clause (5) of Article 22 and held that the said expression sufficiently makes clear the concern of the framers of the Constitution that the representation should be very expeditiously considered and disposed of with a sense of urgency and without any avoidable delay.
8. Considering the aforesaid provision, the Constitution Bench held that: (IK.M. Abdulla case, SCC 484, para 12) "......there should not be any 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".
In support of the said conclusion, the learned Judges of the Constitution Bench relied on various other judgments mentioned in Para 12 at page 484 of the report.
9. In a subsequent judgment in the case of Rajammal Vs. State of T.N. & Anr. (1999) 1 SCC 417, a three Judge Bench of this Court, relying on the ratio of the Constitution Bench decision in Abdulla Kunhi, reiterated the same principles. From Para 9 at page 421 of the report, it would appear that in the case of Rajammal, the Minister concerned, while on tour, received the file after 9.2.1998 and then passed the order on 14.2.1998. No explanation was offered for this delay of about five days. This Court held that such delay has vitiated further detention of the detenu [see para 11 at page 422].
10. In another subsequent judgment of this Court in the case of Kundanbhai Dulabhai Shaikh Vs. Distt. Magistrate, Ahmedabad & Ors., (1996) 3 SCC 194, this Court while reiterating the aforesaid principles, found that representation was received by the Central Government on 21.09.1995 and then comments were called for from the State Government and the same were received by the Central Government on 18.10.1995 and the representation was rejected on 19.10.1995. This Court held in para 22 of the judgment at page 204 that the internal movement of the file thus took four days and this Court found that this inaction in taking up the representation for six days is unexplained and the mere ground was that there were forty or fifty representations pending for disposal is not a valid justification. This Court found that such delay voids the continued detention of the detenus and the detention order was quashed.
11. Going by the aforesaid precedents, as we must, we hold that the procedural safeguards given for protection of personal liberty must be strictly followed. The history of personal liberty, as is well known, is a history of insistence on procedural safeguards. Following the said principle, we find that delay in these cases is for a much longer period and there is hardly any explanation. We, therefore, have no hesitation in quashing the orders of detention on the ground of delay on the part of the Central Government in disposing of the representation of the detenus"
32. Turning to the facts of the present case, this Court finds that a perusal of the paragraph no. 17 of the counter affidavit filed on behalf of the Detaining Authority there is not even a semblance of an explanation coming forth as to the reason why the petitioner's representation admittedly received by the office of the Detaining Authority on 06.06.2017 was forwarded to the State Government, the Advisory Board and the Central Government on 13.06.2017, that is to say, after a delay of six or seven days. The said delay being clearly one that has remained unexplained there is no manner of doubt that the same brings this case in the teeth of the principle law laid down by the Hon'ble Supreme Court in re Rajammal (supra) and in re Ummu Sabeena (supra) besides the principle laid down by the constitution Bench in K.N. Abdulla Kunhi vs. Union of India reported in (1991) 1 SCC 476 all of which go to lay down in explicit terms that any unexplained delay vitiates further detention. In this case, we find and hold that the delay of 6/7 days between 06.06.2017 to 13.06.2017 on the part of the Detaining Authority in forwarding the petitioner's representation against the detention order to the State Government, the Advisory Board and the Central Government vitiates the continued detention of the petitioner.
33. In the result, the writ petition succeeds and is allowed. Rule is made absolute. The continued detention of the petitioner by the dint of the detention order dated 28.05.2017 is hereby declared illegal.
34. The petitioner is directed to be set at liberty unless wanted in any other case.
Order Date :- 19.02.2018 Deepak