Allahabad High Court
Dr. Ashfaq @ Nehal vs Union Of India & 3 Others on 13 April, 2018
Author: Vipin Sinha
Bench: Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 51 Case :- HABEAS CORPUS WRIT PETITION No. - 43664 of 2017 Petitioner :- Dr. Ashfaq @ Nehal Respondent :- Union Of India & 3 Others Counsel for Petitioner :- Umesh Kumar Pal,R.B. Pal Counsel for Respondent :- G.A.,A.S.G.I.,Smt.Rajkumari Devi Hon'ble Vipin Sinha,J.
Hon'ble J.J. Munir,J.
(Delivered by Hon'ble J.J. Munir, J.)
1. The petitioner Dr. Ashfaq @ Nehal has been detained by an order dated 21.05.2017 passed under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the 'Act'). 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. 9 to the petition and is hereinafter referred to as the 'Detention Order'. The Detention Order is supported by grounds of detention annexed as Annexure no. 10 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 a subjective satisfaction required under the statute. The grounds also undertake and inform 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 Act, which entitle the detenue to represent. The grounds of detention in support the Detention Order are also dated 21.05.2017 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 by dint of the Detention Order through the instant habeas corpus writ petition that was filed on 19.09.2017. The writ petition came up for admission on 18.09.2017 when the following order was made:
"Heard learned counsel for the petitioner.
Notice on behalf of respondent no. 1 has been accepted by Smt. Rajkumari Devi whereas Smt. Manju Thakur, State Law Officer has appeared for respondent nos. 2, 3 and 4. They pray for and are allowed three weeks' time to file counter affidavit.
Rejoinder affidavit, if any, may be filed within a week thereafter.
List on 24.10.2017 showing the name of Sri R.B. Pal as counsel for the petitioner. "
3. The order dated 18.09.2017 constitutes issue of a rule nisi to each of the respondents to show cause against the petitioner's detention under authority of the Detention Order. There is on record a office report dated 23.10.2017 saying that no return had been filed and on 24.10.2017 the petition was directed to be listed in the next cause list; once again there was a repeat of the direction on 02.11.2017. On 13.11.2017 the earliest of the returns to come was on behalf of the Detaining Authority that the Court was informed of which had been filed in the Registry on 27.10.2017. This counter affidavit was not on record and it was, therefore, directed to be traced and placed on record. However, a return each on behalf of the respondent nos. 2 and 4 were filed in Court on the same day and were taken on record. A rejoinder was filed in response to the counter affidavit filed on behalf of the Detaining Authority in Court on 13.11.2017 that was accepted on record. A return was filed on behalf of Union of India in Court on 27.11.2017 and a rejoinder too in response to the return on behalf of the Union of India as well as the State also was filed in Court all of which were accepted on record. Thus, effectively respondents have filed return to which the petitioner has submitted his rejoinder separately except in response to the return filed on behalf of the State/respondent no. 2.
4. We have heard Sri R.B. Pal, learned counsel for the petitioner, Smt. Raj Kumari Devi for Union of India and Sri Sanjay Tripathi, learned AGA on behalf of the State.
5. A perusal of the grounds of detention show that the Detaining Authority proceeded to pass the Detention Order on the basis of acts done/offences committed by the petitioner on 04.01.2017 that led to maintenance of public order being vitiated; those acts are detailed in the grounds as mentioned hereinafter.
6. In the morning hours of 04.01.2017 at about 09:45 am the then SHO of P.S. Madanpura, Shobha Singh Solanki received information that the dead body of Rahmatulla, a man reported to be missing had been found at village Kewataliya in the river Rapti. Upon this information the SHO detailed requisite police force to the spot and herself followed suit wherein strong numbers locals had congregated. The public who had collected at site where the body had surfaced, suddenly turned violent attacking the houses of two natives of Village Kewataliya, to wit, Indrasen Yadav and Shiv Shankar Yadav. At the house of Indrasen Yadav at about 10:00 am the violent mob invaded the house and looted jewelry, money etc. besides damaging the house; they battered the owner of the house of Indrasen Yadav, and also damaged his tractor. On the basis of a written information lodged by Indrasen Yadav against Imran and thousands of others Case Crime No.2 of 2017, under Sections 147, 323, 452, 427, 395 IPC, P.S. Madanpura, District Deoria was registered. It was during investigation that the name of the petitioner surfaced. As eye-witness account would have it, the role of the petitioner was one of commanding the aggressive mulltitude exhorting and instigating them. It is said that in commission of the aforesaid crime the petitioner had an important role and that on account of the petitioner's action the maintenance of public order was prejudicially affected. It has also been mentioned that the investigation in crime No.2 of 2017 (supra) is still pending.
7. The grounds go on to say that another native of Village Kewatliya Shiv Shankar Yadav's house was also attacked at 10:00 am by the unruly mob who damaged the house, the owner's two wheeler and gaining entry assaulted women folk indulging in pillage and robbery where valuables like ornaments, clothes, etc. were taken away. In connection with the aforesaid incident the victim Shiv Shankar Yadav filed a written information with the police against Imran and thousands of others giving rise to Case Crime No.4 of 2017, under Sections 143, 323, 452, 395, 427 IPC, P.S. Madanpura, District Deoria. During investigation into the said crime the petitioner's name surfaced. It is said in the grounds further that investigation revealed that in the occurrence under reference the petitioner had a pivotal role to play. The statements of the witnesses go to show that the petitioner was one of the men in command of the unruly mob and one who instigated the violent mob by exhorting them to commit whatever was done by them on this score. It is said in the grounds that the actions of the petitioner led to public order being adversely affected; also, that in this crime too investigation was pending.
8. Next mentioned in the grounds is that the unruly mob targeted police station Madanpura. The premises of the police station Madanpura were attacked and undertaking that dare devil enterprise the unruly mob entered the police station at around 11:00 am on 04.10.2017. The violent mob went on pillage armed with sticks (lathi-danda), farsa, fawada (both agricultural implements), brickbats, kerosene oil etc. They plundered the police station damaging the premises indulging in violence, torching vehicles both Government and private, looting arms and ammunition, and, setting some ablaze besides committing murderous assault on police men. In consequence, of this attack police men sustained injuries and valuable Government properties were destroyed.
9. A First Information was registered in relation to the aforesaid incident by the then SHO, on her own written information giving rise to 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, 120B IPC, Section 3/4 Prevention of Damage to Public Prtoperty Act and Section 7 Criminal Law Amendment Act, P.S. Madanpura, District Deoria against one Fakhre Alam and 43 others nominated accused besides a one thousands unnamed offenders. It is specified that in this First Information Report the name of the petitioner figures at serial no.36 of the 43 nominated accused. The grounds further say that during investigation there is ocular evidence of policemen and men from the public alike which reveal that the petitioner had played a role that was one of commanding the unruly mob, instigating and exhorting them to indulge in the depredations that they committed at the police station.
10. It is said that the aforesaid acts of petitioner that lead to public order being affected, and, that in this crime after investigation a charge sheet has already been filed against the petitioner. The grounds go on to mention that on 04.01.2017 at about 11:00 am the petitioner alongwith a mob indulged in incendrism, setting shops ablaze besides the Ujala Building, material ganiyari indulging in wide spread acts of damage to property in the town Madanpura, pillage and murderous assault besides torching a truck standing at a shop. In this connection a written information was lodged by one Pankaj Pandey son of Subhash Chand Pandey, P.S. Madanpura, District Deoria on the basis of which Case Crime No.3 of 2017, under Sections 147, 148. 149, 435, 307, 452 IPC, P.S. Madanpura, District Deoria was registered against Imran and others named besides thousands of unnamed offenders.
11. During investigation the owner of the Ujala Building material shop/the person aggrieved and an eye-witness, Guddu Singh son of Amrendra Singh made a further application in the case under reference already registered on the basis of which Sections 436, 497, 34, 120B IPC were added and according to the eye-witness account there the petitioner's name came to light. The petitioner's role in the entire crime was found to be prominent. It was said that the petitioner lent command to the unruly mob instigating and exhorting them as eye-witness account would have it. On the basis of these facts it is said that the actions of the petitioner adversely affected maintenance of public order. It is also mentioned that investigation in the case under reference was in progress.
12. The grounds go on to say summing up the impact of the four distinct episodes giving rise to the four 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 the neighbouring districts; for days together and after much effort, by and by normal tempo of life was restored. It was only after great effort that public order could be restored.
13. 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 13.01.2017 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 on 06.05.2017 and remanded further in relation to Case Crime No. 2 of 2017, 3 of 2017 and 4 of 2017 (Supra).
14. 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.
15. The petitioner had already moved this Court for bail. It is said in the grounds that the petitioner was trying to secure bail in all the crimes that he was confined in connection with pending trials/investigation.
16. The learned counsel for the petitioner has urged four grounds to assail the Detention Order:
(i) The Detention Order and grounds in support at best make out violation of 'law and order' and not 'public order' rendering the exercise of power under Section 3(2) of the Act through the Detention Order illegal.
(ii) 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.
(iii) There is an unexplained delay of 30 days by Detaining Authority in disposing of the petitioner's representation that was submitted to the Detaining Authority and was admittedly received in the office of Detaining Authority on 25.05.2017 but came to be rejected by the Detaining Authority on 30.06.2017, that is to say, after 30 days of receipt of the same with an unexplained delay that vitiates the Detention Order.
(iv) There is an unexplained delay of 30 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 31.05.2017 but forwarded to the State Government, the State Advisory Board, Lucknow, and, Central Government on 30.06.2017.
17. In order to canvas his case on the first of the four grounds urged to assail Detention Order, the learned counsel has found a foot hold for the same in his pleadings as carried in paragraph no. 25 of the writ petition that reads to the following effect:-
"That the District Magistrate, Deoria had also rejected the representation of the petitioner on 30.06.2017 and reality is that the present case was of only a case of law and order problem and not case of disturbance of public order."
18. The aforesaid assertion though not refuted in the counter affidavit in the form of para wise reply, rebuttal of the same is to be found in paragraph 15 of the counter affidavit filed on behalf of the Detaining Authority that reads thus:-
"That, it is submitted that the District Magistrate/deponent considered each and every aspect along with recommendation of the senior officers of the police department and was subjectively satisfied that the incident disturbed even tempo of life and public order. On the basis of materials produced before him, the deponent was subjectively satisfied that the incident disturbed the public order and the deponent was also subjectively satisfied that the petitioner and his family members are making efforts for obtaining bail and if released on bail, the petitioner will indulge in similar criminal activities, which will disturb the public order. The Subjective satisfaction has also been recorded in the grounds of detention."
19. Paragraph 15 of the counter affidavit has been answered in para 14 of the rejoinder affidavit dated 29.10.2017 filed on behalf of the petitioner by one Firoz that reads as follows:-
"That the contents of paragraph no. 15 of the counter affidavit are not admitted, hence denied. In reply, it is submitted that for initiating the proceedings Under Section 3(2) of the National Security Act, the report was forwarded on 21.05.2017 and on same day i.e. 21.05.2017, the District Magistrate, Deoria had passed the detention order which clearly shows that it has been passed in the most mechanical manner without proper application of mind and satisfaction."
20. The question whether an offence that has formed the basis of the Detention Order is a mere violation of 'law and order' or it is something that travels to the next larger concentric ring of 'public order' is dependent upon not only the nature of the offence itself but the impact that it creates on the life of the community in general. It is by far now beyond cavil for a legal proposition that it is not the intrinsic nature and the severity of the act constituting the offence that would be determinative of the fact whether it affects 'public order' or is merely something that does not travel beyond violation of the 'law and order'. The essence of the distinction between the two is the impact that the offence creates in the community. In a particular set of circumstances the same act that constitutes an offence may affect only a few individuals or a small number of them not impinging at all on the even tempo of life of the community at large and in that case it would be no more than a violation of 'law and order' as understood under Section 3(2) of the Act. However, the same act in a different set of circumstances on account of factors extraneous to the act itself may generate ripples of disturbance throwing the even tempo of life of the community out of its normal mode. In the second situation the same act would constitute a violation of the public order as understood under Section 3(2) of the Act.
21. The distinction between violation of 'law and order' and an act that would constitute disturbing the maintenance of 'public order' had fallen for consideration of the Hon'ble Supreme Court in State of U.P. & Anr. V. Sanjay Pratap Gupta @ Pappu and others1 where their Lordships after an extensive survey of authority on the issue brought out the distinction in fine detail thus:-
"12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well-defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State". (See Kuso Sah v. State of Bihar 1974 1 SCC 185, Harpreet Kaur v. State of Maharashtra 1992 2 SCC 177, T.K Gopal Alias Gopi v. State Of Karnataka 2000 6 SCC 168 and State of Maharashtra v. Mohd. Yakub 1980 2 SCR 1158.)
14. The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact."
22. The issue has been dealt with in a decision of this Court in Sant Singh vs. District Magistrate, Varanasi2 where in paragraph 7 of the report dealing with the point it was held thus:-
"7. The two connotations 'law and order' and 'public 'order' are not the words of magic but of reality which embrace within its ambit different situations, motives and impact of the particular criminal acts. As a matter of fact, in a long series of cases, these two expressions have come to be interpreted by the apex Court. It is not necessary to refer all those cases all over again in every decision for one simple reason that they have been quoted and discussed in earlier decision of this Court dated 14-10-1999 in Habeas Corpus Writ Petition No. 33888 of 1999- Udaiveer Singh v. State of U.P. and the decision dated 1-12-1999 in Habeas Corpus Writ Petition No. 38159 of 1999 Rajiv Vashistha v. State of U.P. (Reported in 1999 All Cri R 2777). The gamut of all the above decisions in short is that the true distinction between the areas of 'public order' and 'law and order' lies not in nature and quality of the act, but in the degree and extent of its reach upon society. Sometimes the distinction between the two concepts of law and order' and 'public order' is so fine that it overlaps. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore, touch the problem of 'law and order', while in another it might affect 'public order'. The act by itself, therefore, is not determination of its own gravity. It is the potentiality of the act to disturb the even tempo of the community which makes it prejudicial to them maintenance of 'public order'.
7A. We have been taken through the decisions of the apex Court in Smt. Angoori Devi for Ram Ratan v. Union of India, AIR 1989.SC 371 : 1989 Cri LJ 950 T. Deoki v. Government of Tamil Nadu, AIR 1990 SC 1086, Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra, 1992 AIR SCW 835 AIR 1992 SC 979, Tarannum (Smt.) v. Union of India, 1998 SCC (Cri) 1037 : AIR 1998 SC 1013 and the Full Bench'decision of this Court in Shesh Dhar Misra v. Superintendent Central Jail Naini, 1985 All LJ 1222, Arvind Kumar Shukla v. State of U.P., 1985 ALJ 1259, as well as Division Bench decision of this Court in Harish Kasana v. State of U.P., 1998 (37) ACC 724 1999 All LJ 598 and Atiq Ahmad v. Chief Minister State of U.P. decided by this Court on 5-10-1998 to support the contention that present is the case in which there was merely a breach of 'law and order' and the acts of the petitioner, if at all, were not prejudicial to the maintenance of 'public order'. At the outset, we would do better to explode the myth that no single act can give rise to 'public disorder'. Dealing with this question as to whether one solitary instance can be the basis of an order of detention, their Lord-ships of the apex Court in Smt. Bimla Rani v. Union of India, 1989 (26) ACC 589 SC observed that the question is whether the incident had prejudicially affected the 'public order'. In other words, whether it affected the even tempo of the life of the community. In Alijan Mian v. District Magistrate Dhanbad, 1983 (3) SCR 930 AIR 1983 SC 1130 it was held that even one incident may be sufficient to satisfy the detaining authority in this regard, depending upon the nature of the incident. Similar view has been expressed in the host of other decisions. The question was answered more appropriately and with all clarity in the case of Attorney General of India v. Amratlal Prajivandas, AIR 1994 SC 2179, wherein the apex Court ruled that it is beyond dispute that the order of detention can be passed on the basis of a single act. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudical activities. It cannot be said as a principle that one single act cannot be constituted the basis for detention. Thus, the argument of learned counsel for the petitioner that since it is solitary incident of the petitioner, he deserves sympathy, is rejected. Now the law, as it stands, is that even one solitary incident may give rise to the disturbance of 'public order'. It is not the multiplicity but the fall out of various criminal acts. Though there is consistency in the various decisions of the apex Court about the interpretation of the expressions of 'law and order' and 'public order' undue insistence on the case law is not going to pay any dividend as each case revolves round its own peculiar facts and has to be viewed in the light of the various attending factors. It is difficult to find a case on all fours with the case in hand."
23. Bearing in mind the principle of law that has withstood the rough waters of challenge in myriad facts and varying statutory context wherever this distinction has come up for consideration pari materia is that each case turns on its peculiar facts whenever the issue comes up: whether a given act constitute a violation of public order or merely a transgression of law and order.
24. It is, therefore, once again for us to determine here whether on the facts in hand appearing from the Detention Order, grounds in support, the material on which the grounds are based make out a case of a mere infraction of law and order or takes it beyond that realm to constitute a violation of the maintenance of public order. The facts in hand much to our gratification are not of a kind that would engender a divided opinion. The facts as they emerge from the Detention Order, the grounds and materials do not brook any manner of doubt that they have certainly the most nefarious impact and potential to disturb the even tempo of life of the community.
25. We may pause here to notice that the facts narrated in the grounds and the materials on which the grounds are found have been sought to be impeached by the petitioner on the basis of facts that would elsewhere have received keen attention but it is not our province while judging the validity of the Detention Order passed under the Act to go behind the truthfulness or otherwise of whatever facts, materials and evidence have been taken into consideration by the Detaining Authority while forming his subjective satisfaction. Here, thus we are charged with the task on this score to find out whether those facts, materials as they appear on record, constitute a violation of the public order or have the potential to disturb the same or they are some infractions of the law and order. Without a recapitulation of each of the four offences that form the substratum for the grounds of detention, the solitary instance of attack, ransack, loot and pillage of the police station by the unruly mob that is said to be done under the stewardship of the petitioner, amongst others, is enough in itself to shake the very foundations of the State Authority in the community let alone alone the even tempo of life. Police stations are ground level units of the State's Executive authority. The police authorities are are looked up to by the citizenry for protection and with awe. The facts of case crime No.1 of 2017 where the applicant is one of the 43 nominated accused with his name figuring at serious no.36 is a case where the unruly mob led by the petitioner, amongst others, attacked police station Madanpura at 11 in the morning of 04.01.2017 armed with lathi-danda, farsa, fawada etc. The mob subjected the premises of the police station to extensive damage, indulging in violence, torching vehicles both Government and private, looting the armory of arms and ammunition, some of which were consigned to flames, all leading to destruction of Government property. In addition, police personnel on duty at the station were subjected to murderous assault by the unruly mob that led to many men in the force sustaining injuries.
26. An attack on the police station by itself strikes at the root of the State's authority, if not actually waging war against the State. It is, therefore, no matter of surprise that in the town and the entire area of Madapura and adjoining areas an atmosphere of terror prevailed where the common populous went into a state of commotion, movement of the public in the area came to a halt, schools, shops, banks and other commercial establishments were closed and even social engagements became difficult to keep. The grounds mention as already extracted in an earlier part of this judgment that patients and their relatives had to encounter immense difficulty, all of which led to the even tempo of life being thrown proverbially out of gear.
27. In the vantage of these facts we do not have the slightest hesitation to hold that the acts of the petitioner mentioned in the grounds of the detention with reference to objective material on record in the form of police reports, FIR etc. clearly constitute a case of violation of the maintenance of public order under Section 3(2) of the Act.
28. We, therefore, reject the first ground of challenge urged by the petitioner.
29. We now proceed to address the second ground of challenge canvased by the petitioner. It is urged under this head of challenge that the Detaining Authority while writing the detention order failed to consider that there was a real possibility or likelihood of the petitioner's release from jail on the date when the detention order was made and the said order was passed ignoring from consideration relevant material necessary to formation of a valid subjective satisfaction.
30. In this connection learned counsel for the petitioner has invited the attention of the Court to that part of the grounds, specifically to page 107 of the paper-book, where the material part that has bearing on the issue finds place. He submits that a perusal of the last paragraph at page 107 of the paper-book goes to show that the Detaining Authority was aware that the applicant was in jail in connection with Case Crime No.1 of 2017 (supra) since 13.01.2017 and that he has been remanded to judicial custody also in relation to Case Crime No.2 of 2017, 3 of 2017 and 4 of 2017 (supra) on 06.05.2017. It is pointed out that with this awareness the Detaining Authority has proceeded to record that the petitioner is in jail in connection with each of the four offences and is making efforts to secure bail. It is further said in the grounds of detention that there is confidential information in the cognizance of the Detaining Authority that upon release on bail the criminal acts the petitioner would strike such fear and terror in the locale that there is a strong likelihood of life coming to a stand still and public order likewise being disturbed. It is recorded further on, that bearing in mind the impact of the petitioner's dare devil and brazen acts and their adverse impact on the public order in the past there is iminent likelihood that once released on bail the petitioner would again indulge in such acts that public order would be disturbed and even tempo of life adversely affected. The learned counsel for the petitioner has pointed out that the relevant part of the grounds under reference spill over by a sentence to the next page of the paper-book, which too we have carefully peruse.
31. Learned counsel for the petitioner has pointed out that a reading of the relevant part of the grounds under reference shows that for the purpose of forming his subjective satisfaction that the petitioner is making efforts to secure his release on bail, the Detaining Authority has not taken into consideration relevant material-that material that would have bearing on the issue whether there was a real possibility of the petitioner being enlarged on bail. It has been urged dilating on this strain of argument that the grounds of detention above referred do not specifically say that there was a real possibility of the petitioner being released on bail. It is submitted that in the absence of the aforesaid specific satisfaction being recorded in the grounds with reference to the relevant material, the exercise of power by the Detaining Authority is bad in law.
32. In the connection, learned counsel for the petitioner has relied upon paragraph nos. 26 and 29 of the writ petition which are extracted below:
"26. That in present case, in ground of detention, it has been mentioned by D.M., Deoria that the petitioner is making effort to get himself released on bail and it has not been specially mentioned that there was real possibility of releasing the petitioner on bail. Therefore, it may not be a ground for passing the detention under N.S.A. And thus, the detention order is illegal and liable to be set-aside.
29. That in the present case from the perusal of the ground of detention order, it appears that the petitioner who 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 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 21.05.2017 passed by the District Magistrate, Deoria is illegal and is liable to be quashed by this Hon'ble Court under Article 226 of the constitution of India."
33. The aforesaid assertions of the petitioner have been substantially met by the Detaining Authority in paragraph no. 23 of his counter affidavit. The relevant part of it is quoted below:
"23...............................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 applications moved by the petitioner 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 present habeas corpsus 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 09.08.2017 in Case Crime No. 2 of 2017, under Sections 147, 323, 452, 427 and 395 IPC. 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 26.05.2017 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 to the petitioner on 09.08.2017 by this Hon'ble Court and in Case Crime No. 4 of 2017, under Section 147, 323, 452, 395 and 427 of IPC bail has been granted to the petitioner by this Hon'ble Court on 09.08.2017."
34. The learned counsel for the petitioner has pointed out on the strength of the assertions made in paragraph no. 29 of the writ petition and the grounds that the Detaining Authority on the date when he passed the Detaining Order was aware about the petitioner having moved a bail application before this Court in Case Crime No. 1 of 2017 but not in Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017, a fact not specifically said either in the grounds or in paragraph no. 23 of the counter affidavit.
35. In the submission of learned counsel for the petitioner the lack of awareness on the part of the Detaining Authority as to whether bail applications in Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017, in all of which the applicant was remanded to judicial custody, were pending on the date he passed the Detention Order would vitiate his subjective satisfaction inasmuch as in the absence of awareness of the fact that in all the case crimes where the applicant stood remanded to judicial custody he had filed applications for bail that were pending his mind would not at all then have been applied to that relevant material on the basis of which he could conclude that there is a real likelihood of the petitioner being released on bail.
36. The submission of learned counsel for the applicant as aforesaid is based on an extension of the principle laid down by the Hon'ble Supreme Court in Rekha vs. State of Tamilnadu through Secretary to Government and another3 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. It 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."
37. The aforesaid decision was followed by us in relation to an order of preventive order passed by the Detaining Authority here founded on the same case crime Nos. 1 of 2017, 2 of 2017, 3 of 2017 and 4 of 2017 and concerning the same incident on the basis of which the Detention Order is founded. In the case where we relied on the ration in re Rekha (supra) was Habeas Corpus Writ Petition No. 36372 of 2017 Imran vs Union of India & 3 others decided on 19.02.2018 where we held as under:
"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."
38. A reading of our decision in re Imran (supra) shows that in that case there was no dispute on facts that on the date when the detention order under challenge was made by the Detaining Authority, the detenue of that case had not moved any bail application in relation to the Case Crime Nos. 2 of 2017, 3 of 2017 and 4 of 2017 (supra) but had sought bail in Case Crime No. 1 of 2017 alone. It was in the context of those facts that we encountered no difficulty in applying the ratio of their Lordships dicta in re Rekha (supra) that applies on principle to a situation where no bail application by the detenu who is already in custody has been made and is pending because the reasoning of their Lordships proceeds on the foundation that where no bail application by the detenu already in jail is pending, there cannot be a real likelihood of such a person being released on bail. In this case, however, the learned counsel for the petitioner, as already said, asks for an extension of the principle in re Rekha (supra) to all those cases where a bail application in one or more criminal cases where the detenu is already in judicial custody may be pending but the Detaining Authority is not aware of the pendency of those applications. Learned counsel for the petitioner submits that notwithstanding the pendency of a bail application unless the Detaining Authority is aware that such an application on behalf of the detenu who is otherwise in judicial custody is pending, his subjective satisfaction would be vitiated on a logical extension of principle in Rekha (supra). We cannot agree.
39. The principle in Rekha (supra) is based on "real unlikelihood" of the detenu being released on bail on account of the real and tangible fact that in relation to his detention in judicial custody under the ordinary law no bail application is pending. The principle in Rekha (supra) is not based on the fact of the awareness of the Detaining Authority about the pendency or otherwise of a bail application on behalf of the accused that could lead to the likelihood of his freedom but to the physical, real and tangible fact of such an application seeking bail in the crime or crimes where he is detained being pending that would in turn afford the Detaining Authority the requisite legal substratum to form a valid subjective satisfaction under the Act about the detenu's real likelihood of release on bail.
40. The aforesaid proposition has cropped up in this case, and, possibly canvassed by the learned counsel for the petitioner encouraged by our findings in Imran (supra) as the said case arose from the same incident and case crimes. However, learned counsel for the petitioner pressed for an extension of the principle as we have detailed above and refused to accept on account of the fact that in the present case when the detention order was made, that is to say, on 28.5.2017 bail applications in relation to the case crime numbers 1/2017, 2/2017, 3/2017 and 4/2017 (supra) each were pending on behalf of the petitioner filed before this Court or Court of Sessions as per particulars furnished below:
Sl.No. Dates of filing the bail application.
Particulars of the bail applications, Crime No. and the court which made its final determination.
1.
25/4/2017 The bail application was filed by the petitioner before this Court in Case Crime No. 1/2017 under Sections 147, 148, 149, 307, 435, 436, 395, 397, 323, 504, 506, 332, 353, 427, 186, 336, 34, 452, 120B IPC and Section ¾ of the Public Property Damages Act and Section 7 of the Criminal Law Amendment Act, Police Station Madanpur, District Deoria (Annexure No.8 to the petition, Page 98) (in this case, the bail application was granted by this Court on 26.5.2017).
210/05/17 The bail application was filed by the petitioner before Session Court Deoria in Case Crime No. 2 of 2017, under Sections 147, 323, 427, 452, 395 IPC P.S. Madanpur, District Deoria (Annexure No.8 to the petition, Page 98) (in this case, bail application no. 26857 of 2017 was granted by this Court on 9.8.2017) 3 10/05/17 The bail application was filed by the petitioner before Session Court Deoria in Case Crime No. 3 of 2017, under Sections 147, 148, 149, 435, 307, 352 IPC P.S. Madanpur, District Deoria (Annexure No.8 to the petition, Page 98) (in this case, bail application no. 26858 of 2017 was granted by this Court on 9.8.2017) 4 10/05/17 The bail application was filed by the petitioner before Session Court Deoria in Case Crime No. 4 of 2017, under Sections 147, 323, 452, 395, 427 IPC P.S. Madanpur, District Deoria (Annexure No.8 to the petition, Page 98) (in this case, bail application no. 26856 of 2017 was granted by this Court on 9.8.2017)
41. It is in view of the facts of the present case that on the date when the detention order was passed a bail application each in the four case crime numbers under reference was pending on behalf of the petitioner that the learned counsel urged for an ingenious extension of the principle in Rekha (supra) which as already indicated by us is not tenable to our mind.
42. We may add here that contrary to an extension of the principle in Rekha (supra) on lines for which there appears to be no sound basis in law, the principle enunciated by their Lordships of the Hon'ble Supreme Court in case of Ahmad Nassar vs. State of Tamilnadu and others4 which was pressed into service by the State to defend the Detention Order in Imran (supra) unsuccessfully before us would squarely apply in principle to the facts of the present case unaffected by the principle in Rekha (supra). It was held thus by their Lordships of the Supreme Court in pragraphs Nos. 44A to 46 of the report:
" 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- 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 application 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, isdecided. 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."
43. A reading of the principle in re Ahmad Nassar (supra) shows that the Detaining Authority in arriving at a subjective satisfaction that there is likelihood of the petitioner being released on bail has to take into account the contents of a pending bail application on the day when the detention order is made and to arrive on the basis of the contents of the bail application already pending before the Court whether there is a likelihood of the detenu being released on bail. The decision in Ahmad Nassar (supra) support the view of this Court has taken to the above extent, and, it is only where there is no bail application pending on the date when the detention order is made that the higher and subsequent authority of their Lordships in Rekha (supra) would vitiate the Detaining Authority's subjective satisfaction. In the present case, the principle in Ahmad Nassar (supra) would apply with all force inasmuch as on the date when the detention order was made, bail applications on behalf of the petitioner were pending before the Courts in relation to the each four crimes where the applicant was remanded to judicial custody.
44. We think that we would be failing in our duty if we do not carefully scrutinize the precise contours of the Detaining Authority's subjective satisfaction on the score whether the Detaining Authority was aware on the date that the Detention Order was passed that bail applications on behalf of the petitioner in all the four case crimes were pending on the basis of which he could form a valid opinion that there was a real likelihood of the petitioner being released on bail. In this connection, we may reproduce the following part of the grounds of the detention that relate to the present issue. The relevant part is quoted below (in Hindi Vernacular):
"bl ?kVuk ds ckn vki Qjkj gks x;s fdUrq rRdkyhu Fkkuk/;{k enuiqj us vuojr iz;kl djds vki dks fnukad 13@01@17 dks eq0v0la0&1@17 /kkjk 147] 148] 149] 307] 435] 436] 395] 397] 323] 504] 506] 332] 353] 427] 186] 336] 34] 452] 120ch vkbZ0 ih0 lh0 o 3@4 lkoZtfud lEifr {kfr fuokj.k vf/kfu;e o 7 vkijkf/kd dkuwu la'kks/ku vf/kfu;e Fkkuk enuiqj tuin nsofj;k ds izdj.k esa fxj¶rkj dj fy;kA iqfyl }kjk fxj¶rkj fd;s tkus ds i'pkr vkidks U;kf;d vfHkj{kk es ftyk dkjkxkj nsofj;k esa fu:} fd;k x;kA rRi'pkr vkidks eq0v0la0& 2@17 /kkjk 147] 323] 427] 452] 395 vkbZ0 ih0 lh0 Fkkuk enuiqj eq0v0la0& 3@17 /kkjk 147] 148] 149] 435] 307] 352] 436] 397] 34] 120ch vkbZ0 ih0 lh0 Fkkuk enuiqj eq0v0la0& 4@17 /kkjk 147] 323] 452] 395] 427 vkbZ0 ih0 lh0 Fkkuk enuiqj ds izdj.kksa es ftyk dkjkxkj nsofj;k ls U;k;ky; }kjk ryc djkdj fnukad 06@05@17 dks U;kf;d vfHkj{kk esa izsf"kr fd;k x;kA mijksDr lHkh izdj.kksa esa vki U;kf;d vfHkj{kk esa ftyk dkjkxkj nsofj;k esa fu:} gS ,oa viuh tekur ds fy, fujUrj Ikz;Ru'khy gSA vkids fo:} ;g xksiuh; vfHklwpuk izkIr gqbZ gS fd vkids tekur ij NwVus dh n'kk esa vkids vkijkf/kd d`R;ksa ds Hk; ,oa vkrad ls {ks= esa lkekU; xfrfof/k;ka Bi gksus dh izcy vk'kadk gS rFkk yksd O;oLFkk ds iw.kZ :i ls fNUu&fHkUu gksus dh izcy lEHkkouk gSA..................." (Emphasis by us)
45. A reading of the grounds of the detention that relate to the subjective satisfaction of the Detaining Authority about the real likelihood of the petitioner being released on bail do not spare room for doubt that the Detaining Authority was well aware that in each of the four case crimes bail applications on behalf of the applicant were pending on the date when the Detention Order was made; and, on the basis of the material that was available to the Detaining Authority in the form of pending applications for bail on behalf of the petitioner, he could validly form a subjective satisfaction that there was a real likelihood of the petitioner being released on bail. He would decidedly have the imprimatur of the law to pass the Detention Order. We, therefore, find that the second ground urged by the petitioner to assail the Detention Order holds no substance.
46. Out of the remainder of the grounds, the one itemed at serial no. 4 would be considered next skipping over the third for reasons that are in keeping with the salutary principle that the Court must not venture to decide all points raised if on one or some of them the cause can be effectively and completely decided.
47. The fourth ground of challenge speaks about an unexplained delay of thirty days by the Detaining Authority in forwarding the petitioner's representation to the State Government, the State Advisory Board and the Central Government. A moreful statement of this ground of challenge has been set out in paragraph no. 15 of this judgment (supra). The facts on which this ground is founded is in terms made out in paragraph no. 14 of the writ petition, which is extracted below:
"That the petitioner moved a representation to the respondent no. 1, 2 and 3 thereby he stated that the present case is of law and order and not a case of disturbance of any public order and present case is not a such case in which the detention order should be passed against the petitioner under section 3(2) of the National Security Act and had prayed for canceling the detention order dated 21.05.2017. It was also stated in representation that in case crime no. 2/2017, 3/2017 and 4/2017, the petitioner is not named and he has not committed any offences and the present Sub Inspector namely Samiullah was posted at Police Station Madanpur in 2001 as constable and on the application of the petitioner to the S.P., he was transferred to other district/placed and, therefore, due to malicious intention, the petitioner was falsely nominated in these cases and further stated that some complainants had also filed the affidavit to police that the petitioner was not involved in this case and in spite of all these facts which are on record was not considered by the respondent no. 1, 2 and 3. A photo copy of the representation dated 31.05.2017 is being filed herewith and marked as ANNEXURE No. 15 to this writ petition. "
48. The present case being one of preventive detention, even a slight insistence on the strictness about pleading is not the rule and it is the State's burden to explain, once a rule nisi is issued that the Detention Order is squarely and completely within the four corners of the law under which it has been made.
49. Though, it is not specifically averred by the petitioner in the paragraph extracted above but elsewhere in the writ petition it was brought to our notice that there was no delay at any step in the disposal of the petitioner's representation preferred to the State Government, the State Advisory Board or the Central Government. The State in keeping with its obligation that we have spoken about hereinbefore to justify that the Detention Order is absolutely within the four corners of the Act have in the return filed on behalf of the Detaining Authority dealt with the issue of delay disclosing, amongst others, vide paragraph no. 17 of the counter affidavit that would suffice to answer the fourth ground of the petitioner's challenge. Paragraph no. 17 of the return filed on behalf of the Detaining Authority is quoted below:
"That the petitioner gave representation on 31.05.2017, which was received by the office of the deponent on 31.05.2017 itself. Since the order of detention was already approved by the State Government on 30.05.2017, therefore, the District Magistrate rejected the representation of the petitioner on 30.06.2017. 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 30.06.2017, with the parawise narrative." (emphasis by us)
50. A reading of the paragraph no. 17 of the counter affidavit filed on behalf of the Detaining Authority shows that the petitioner's representation was received in the office of the Detaining Authority on 31.05.2017. The paragraph discloses when and for what reason the Detaining Authority rejected the petitioner's representation, the one that was addressed to him but, that is not relevant to the present ground of challenge. The paragraph under reference, however, shows that the representation received by the Detaining Authority for its onward transmission to the State Government, the State Advisory Board and the Central Government was forwarded on 30.06.2017. Thus two dates figure bold in paragraph no. 17 of the counter affidavit on behalf of the Detaining Authority, that is to say, the first being the date on which the representation by the detenu was received in the office of the Detaining Authority, that is to say, 31.05.2017, and, the date it was forwarded to the Statement Government, the State Advisory Board and the Central Government which is 30.06.2017. There is between the two terminal dates a stretch of thirty days, construed howsoever strictly in favour of the State.
51. Not only a perusal of the paragraph no. 17 of the counter affidavit filed on behalf of the Detaining Authority but other parts of the return on his behalf there is absolutely no explanation for this period of thirty days showing any reason whatsoever much less good reason as to why the Detaining Authority kept the petitioner's representation with him from 31.05.2017 to 30.06.2017 instead of immediately forwarding the same on receipt to the Statement Government, the State Advisory Board and the Central Government.
52. Learned counsel for the petitioner submits that the law on the question of delay in the disposal of the detenu's representation is that any delay short or long in disposal of a representation against the detention order at any step, be it transmission or disposal by the authority concerned post receipt, vitiates the detention. Any unexplained delay in the matter of disposal of a detenu's representation has been consistently held to be violative of the constitutional obligation of the State enshrined under Article 22 (5) of the Constitution. Learned counsel has fallen back to support his submission on the law laid down by the Hon'ble Supreme Court in Rajammal vs. State of Tamilnadu and another5 where in paragraph no. 8 of the report, it has been held:
"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."
53. Learned counsel for the petitioner further seeks to buttress his contention by a more recent decision of the Hon'ble Supreme Court in Ummu Sabeena vs. State of Kerala and others6 where expounding the law on delay in the disposal of a detenu's representation it was held by their Lordships 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"
54. Reverting to the facts in hand we have found that there is no explanation forthcoming on the part of the Detaining Authority, not even a semblance of an explanation, as to why the petitioner's representation admittedly received by the office of the Detaining Authority on 31.05.2017 was forwarded to the State Government, the State Advisory Board and the Central Government on 30.06.2017, that is to say, after a delay of 30 days. The delay is one that is not even attempted to be explained let alone remaining unexplained for the explanation offered being founded unworthy. As such, we have no manner of doubt that same brings this case in the teeth of the principle of law laid down by the Hon'ble Supreme Court in Rajammal (supra) besides the principle laid down by the constitution Bench in K.N. Abdulla Kunhi vs. Union of India7 all of which go to lay down in explicit terms that any unexplained delay vitiates further detention.
55. In the present case, we find and hold that the delay of 30 days between 31.05.2017 to 30.06.2017 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.
56. In the result, this habeas corpus writ petition succeeds and is allowed. Rule is made absolute. The continued detention of the petitioner by dint of the detention order dated 21.05.2017 is hereby declared illegal.
57. The petitioner is directed to be set at liberty forthwith unless wanted in any other case.
Order Date :- 13.04.2018/Deepak