Allahabad High Court
Aftab Alam Alias Noor Alam Alias Hitler vs Union Of India And 3 Others on 4 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 69
Bench: Surya Prakash Kesarwani, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 468 of 2020 Petitioner :- Aftab Alam Alias Noor Alam Alias Hitler Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Md. Muzzammil.I.Qureshi,Iqubal Hussain,Nazrul Islam Jafri(Senior Adv.) Counsel for Respondent :- A.S.G.I.,Atma Prakash Tripathi,G.A. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Shamim Ahmed,J.
1. Heard Sri N.I. Jafri, Advocate, assisted by Md. Muzzammil.I.Qureshi, learned counsel for the petitioner, Sri Atma Prakash Tripathi, learned Central Government Standing Counsel for the respondent no.1 and Sri Patanjali Mishra, learned counsel for the respondent Nos. 2,3, and 4.
2. This Habeas Corpus Writ Petition has been filed by the petitioner, praying for setting aside the detention order dated 13.07.2020 passed by the District Magistrate, Jaunpur, under Section 3(2) of National Security Act, 1980 and the order of Communication by way of radiogram/crash dated 01.09.2020 containing the order of the confirmation by the State Government.
3. Briefly stated facts of the case are that against the petitioner, an F.I.R. dated 10.06.2020, being Case Crime No. 154 of 2020, under Sections 147, 148, 149, 307, 452, 323, 504, 506, 436, 427, 429, 34, 188, 269 I.P.C., Section 7 of the Criminal Law Amendment Act, 1932, Section 3(2)(V) of the SC & ST Act, 1989, Section 3 of Prevention of Public Property Damages Act, 1984, Section 3 of Epidemic Act, 1897 and Section 51 of Disaster Management Act, 2005 was registered along with 56 named persons, on account of an incident dated 09.06.2020 at 5.00 P.M. The petitioner has been granted bail in Case Crime No. 154 of 2020 by the Additional District and Session Judge (SC/ST Act), Jaunpur. Case Crime No. 156 of 2020, under Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention Act) 1986, Police Station Sarai Khawaja, District Jaunpur, was also registered against the petitioner in which the petitioner has been granted bail on 26.08.2020 by the Additional District and Session Judge-V (Gangster Act), Jaunpur.
4. Order dated 13.07.2020 was passed by the District Magistrate, Jaunpur under Section 3(2) of National Security Act, 1980 and the petitioner was detained. Another detention order on similar set of facts was passed against the co-accused, namely, Javed Siddiqui, whose detention order has been quashed by this Court in Habeas Corpus Writ Petition No. 458 of 2020( Javed Siddiqui Vs. Superintendent District Jail, Jaunpur and 3 others) vide order dated 07.12.2020 and detenue Javed Siddiqui was released forthwith.
5. In the case of petitioner, the detention was order passed by the District Magistrate, Jaunpur on 13.07.2020. The state Government approved the order of detention on 23.07.2020. The petitioner moved a representation in 5 sets before the District Magistrate, Jaunpur through jail authority on 23.07.2020. The District Magistrate, Jaunpur sent the representation to the State Government on 13.08.2020, which was received by the State Government on 17.08.2020. The representation of the petitioner was rejected by the District Magistrate, Jaunpur on 18.08.2020 and by the State Government on 26.08.2020. The representation was rejected by the Central Government on 01.09.2020. The Advisory Board issued notice to the petitioner on 07.08.2020 informing him right of hearing through next friend, but no such request was made by the petitioner. Ultimately, hearing before the Advisory Board took place on 12.08.2020 through Vidio Conferencing. The Advisory Board submitted its report to the State Government on 20.08.2020 under Section 11 of the National Security Act, 1980. After the report of the Advisory Board, the detention order was confirmed on 01.09.2020 by the State Government initially for a period of three months from the date of detention order. Subsequently, the detention order has been extended for a period of three months vide order dated 08.10.2020 passed by the State Government. On these facts, the petitioner has filed the present writ petition challenging the order of detention under Section 3(2) of the National Security Act, 1980.
6. Learned counsel for the petitioner submits as under:-
(i) No satisfaction under Section 3(2) of the National Security Act, 1980 was recorded by the District Magistrate, Jaunpur that there is real possibility of the release of detenue.
(ii) The representation dated 23.07.2020 was forwarded to the State Government on 13.08.2020. Since the representation initially was not forwarded, hence the detention order is vitiated.
(iii) Section 10 of the National Security Act, 1980 was not complied with inasmuch as his representation was not placed before the Advisory Board within three weeks.
7. Learned counsel for the petitioner has further submitted that the impugned order of detention stands vitiated in view of the mandatory provisions of Section 10 of the National Security Act,1980.
8. Learned A.G.A. has supported the impugned order. Learned Central Government Standing Counsel has also supported the impugned order.
9. We have carefully considered the submissions of the learned counsel for the parties.
10. In para no.5 of the counter affidavit of respondent no.2, it has been stated as under:-
Para 5. That it is submitted that the copy of petitioner's representation dated 23.07.2020 alongwith parawise comments was received in the concerned Section of State Government on 17.08.2020 alongwith letter of District Magistrate, Jaunpur dated 13.08.2020. The State Government sent copy of the representation and parawise comments thereon to the Central Government, New Delhi on 18.08.2020. The copy of the representation and parawise comments thereon were not sent to U.P. Advisory Board (Detentions) because hearing had already taken place on 12.08.2020. Thereafter, the concerned section, that is Home (Gopan) Anubhag-6 of the State Government examined the representation on 19.08.2020.
11. From the averments made in para no.5 of the counter affidavit of respondent no.2 i.e. State Government, it is evident that undisputedly copy of the representation and parawise comments were not sent to the U.P. Advisory Board (Detentions). Section 10 of the National Security Act,1980 requires representation and ground of detention order to be placed before the Advisory Board within three weeks. Thus, it is admitted case of the respondent no.2 that the representation was not placed before the Advisory Board as required under Section 10 of the National Security Act,1980.
12. On similar set of facts, in the case of co-accused Javed Siddiqui being Habeas Corpus Writ Petition No. 458 of 2020, this Court considered the matter and observed as under:-
46. The last issue is with regard to the delay in forwarding representation of the petitioner and not placing the same before the Advisory Board. It has been submitted that no reasonable explanation has been given by the respondents. Case law has been referred to in support of this argument. The factual matrix in this regard needs to be mentioned and discussed at this stage. Admitted fact is that the detaining authority passed the detention order on 10.07.2020 against the petitioner and the petitioner gave his representation 20.07.2020 as stated in the counter affidavit of the State. The detention order was approved on 21.07.2020. It is evident that the representation so given by the petitioner was well within the prescribed period of 12 days. On 14.08.2020, his representation was rejected. Prior to that, the Advisory Board had already made recommendation for approval of the detention order on 12.08.2020. The record shows that the representation of the petitioner was not placed before the Advisory Board till 12.08.2020 even though the same was filed on 20.07.2020. It remained pending with the State Government and after 2 days from the date the Advisory Board sent the recommendation, the same was rejected. The submission of the learned Senior Advocate is that the representation of the petitioner was not processed expeditiously without any reasonable explanation, and was not even placed before the Advisory Board for consideration. This inaction on the part of authorities resulted in denial of fair opportunity of hearing and on this ground alone, the impugned detention order is vitiated.
47. We are of the view that delay in taking decision on representation and not placing the same before the Advisory Board are important factors to adjudicate upon the legality or illegality of the order of detention. But such delay is not exclusive factor and depends upon the facts and circumstances of each case and availability of cogent and reasonable explanation to explain the delay. What will be a reasonable explanation would always depend upon the factual situation in that particular case. We are of the firm view that an uniform scale or parameter in this respect is not possible nor can be laid down. Therefore, without expressing a final opinion on law point on delay in such cases, on the basis of decision in Rajammal (supra), Virendra Kumar Nayak (supra), Satyapriya Sonkar (supra), Bheem Singh (supra), Smt Gracy (supra), K.M. Abdulla Kunhi & B.L. Abdul (supra) and Mohinuddin (supra), which have been referred on behalf of petitioner and discussed by us here-in-above, in the factual context of this particular writ petition, we find that following observations made in the above referred judgments on the point of delay are relevant which can be taken into consideration for coming to a conclusion in this petition :
1. Where the representation of the detenue was not placed before the Advisory Board, the detention is rendered invalid. Even a supplementary representation ought to be placed before the Advisory Board.
2. Where there is unexplained, unreasonable and improper delay in forwarding the representation of the detenue resulting in rejection of the representation, such detention order shall be vitiated.
3. The representation should not be rejected on technical grounds and the detaining authority must apply his mind.
4. There are two obligations of the Government to refer the case of the detenue and his representation filed under S. 8 of the Act to the Advisory Board and to consider that representation independent of each other. In view of S. 10, the representation of a detenue if filed within stipulated period has to be placed before the Advisory Board within that period and it is not dependent on the decision of the appropriate authority of that representation."
5. Where the representation of detenu was sent to the Advisory Board beyond 3 weeks of the date of detention, the provisions of S.10 of the Act is clearly violated and the detention order is illegal.
6. When only one representation is made and addressed to the detaining authority, he is not relieved of the obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. So long as there is a representation made by the detenue against the order of detention, the dual obligation continues.
7. an unexplained delay in disposal of representation would be a breach of constitutional imperative and would render the detention illegal. Even if the representation might have been received after the case was referred to the Board, even then the same should be placed before the Board provided the proceeding was not concluded before the Board.
48. It needs to be pertinently mentioned that no judgment has been referred by the opposite parties in which any contrary observation has been expressed. Therefore, in view of the aforesaid observations, we find that in this instant case, a breach thereof is evident. The representation was kept pending for more than 3 weeks and was never placed before the Advisory Board. After the recommendation was made by the Advisory Board on 12.08.2020, the representation was rejected by the Authority. In respect of delay in processing the representation, the counter affidavit contains the following explanation in para 26:
"That the contents of paragraph no.28 of the writ petition are false, hence denied. In reply, it is submitted that having received the representation same was sent to Superintendent of Police, Jaunpur for comments and on 24.07.2020 English Record Keeper was found corona positive and office was closed for 25.07.2020 and 26.07.2020 and thereafter, again on 27.07.2020, 5 employees and one official was found corona positive the office was again closed on 28.07.2020, 29.07.2020 Collectrate office was closed and 1st, 2nd and 3rd August, 2020 was government holiday and concerned employee was busy in B.ed examination 2020-22 on 09.08.2020, so could not put up the file and thereafter, on 3 days the file was delayed on the part of Officiating judicial Assistant Kamlesh Kumar Maurya, who was suspended for negligence and file was put up before deponent on 14.08.2020 and on the same day it was rejected and same was communicated to detenue on 15.08.2020 through Jail Authority "
49. In our view, the above explanation itself speaks in volume about the reluctance on the part of opposite parties in delaying and keeping the representation pending and not placing the same before the Advisory Board. The plea of Covid-19, officials suffering from pendemic, intervening holiday or negligence on the part of an official on account of which he was suspended, are no reason, which could be attributed towards any fault or lapse on the part of the petitioner. Even on the date when the case was fixed before Advisory Board, the authorities could have placed the representation of the petitioner before the Board. Thus, we find that no reasonable explanation has been given for delay and not placing the representation before the Board.
50. On the contrary, it is evident from the record that, while extra ordinary haste was shown in taking action against the petitioner, the authorities remained reluctant and there was complete inaction on their part causing unjustified delay in processing the representation of the detenue and in not placing the representation before the Advisory Board. This inaction on the part of the authorities certainly resulted in deprivation on the right of the petitioner of fair opportunity of hearing and it also resulted in denial of the opportunity of fair hearing to the petitioner as provided under law. This is not permissible and is in gross violation of established legal and procedural norms and legal and constitutional protection.
51. Where the law confers extra-ordinary power on the executive to detain a person without recourse to the ordinary law of land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care. The history of personal liberty is largely the history of insistence on observation of the procedural safeguards. The law of preventive detention, though is not punitive, but only preventive, heavily affects the personal liberty of individual enshrined under Article 21 of the Constitution of India and, therefore, the Authority is under obligation to pass detention order according to procedure established by law and will ensure that the constitutional safeguards have been followed.
52. In view of above discussion, we find that the impugned detention order dated 10.07.2020 and its subsequent extension orders passed against the petitioner is arbitrary and illegal and is liable to be quashed.
53. The writ petition is allowed and the impugned detention order of the petitioner Javed Siddiqui is quashed. The petitioner /detenue Javed Siddiqui is directed to be released forthwith, if not required in any other case.
13. Since facts of the present case are covered by the order dated 07.12.2020 passed in the case of Javed Siddiqui (supra), therefore, following the aforesaid decision, the impugned detention order dated 13.07.2020 and the order of Communication by way of radiogram/crash dated 01.09.2020 containing the order of the confirmation by the State Government are hereby quashed. The writ petition is allowed. The petitioner/detenue, Aftab Alam alias Noor Alam alias Hitler is directed to be released forthwith, if not required in any other case.
14. The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
15. The concerned Court/Authority/Official Shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 4.1.2021 T.S.