Allahabad High Court
Wasim Alias Dakhani vs Union Of India And 3 Others on 11 July, 2019
Bench: Manoj Misra, Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 321 of 2019 Petitioner :- Wasim Alias Dakhani Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Shashi Prakash Pandey Counsel for Respondent :- A.S.G.I.,G.A.,Jai Shankar Audichya,Jai Shanker Au Hon'ble Manoj Misra,J.
Hon'ble Ali Zamin,J.
On 05.07.2019, following order was passed :-
"From the order dated 14.02.2019, appended as annexure no.3 to the counter-affidavit of the State Government, it appears that the detention was last extended, provisionally, for a period of nine months starting from 28.01.2018 which must have expired on 20.05.2019 and, therefore, it would be appropriate for us to ascertain whether the detenue has already been set free or the detention period has been further extended.
Put up on 11.07.2019 in the additional list. In the meantime, the learned A.G.A. as well as counsel for the petitioner shall ascertain whether the period of detention has been extended or not."
Pursuant to the above order, Sri Dipak Mishra, learned A.G.A., has produced before us the order dated 20th May, 2019, passed by the State Government, whereby the detention of the petitioner has been extended for a further period of three months that is for a total period of 12 months starting from 21.08.2018.
Heard Sri Shashi Prakash Pandey for the petitioner; Sri Jai Shanker Audichya for the Union of India; and the learned A.G.A. for the respondent nos. 2, 3 and 4.
This habeas corpus petition questions the detention of the petitioner under the provisions of the National Security Act, 1980 (for short the Act, 1980) which was initially directed by the District Magistrate, Bulandshahar, vide order dated 21.8.2018, in exercise of power under Section 3(2) read with Section 3(3) of the Act, 1980 and, after approval, under section 3(4), dated 28.08.2018, by the State Government, was confirmed under section 12 (1) of the Act, 1980, provisionally, for a period of three months, starting from 21.08.2018, vide order dated 04.10.2018 passed by the State Government, which was extended, provisionally, for a further period of three months, vide order dated 16.11.2018, and, thereafter, again, provisionally, for a further period of three months, vide order dated 14.02.2019, passed by the State Government, with effect from 21.08.2018, and, lastly, extended on 20th May, 2019 for a further period of three months.
As the parties have exchanged their affidavits, we have heard the matter finally.
Apart from various grounds raised, learned counsel for the petitioner has pressed this petition on the ground that there had been violation of his fundamental right guaranteed under Article 22(5) of the Constitution of India inasmuch as his representation against the order of detention has not been dealt with expeditiously as from the return it appears that there has been an unexplained delay of about six days on the part of the District Magistrate in transmission of his representation to the State Government as well as the Central Government and, therefore, his continued detention has been rendered illegal.
Learned counsel for the petitioner has pointed out that the representation was submitted in nine (09) sets at District Jail, Bulandshahar on 01.09.2018 which was sent by the jail authorities on the same day to the office of the District Magistrate, Bulandshahar on 01.09.2018 for transmission to the authorities concerned, namely, the detaining authority; the advisory board; the state government; and the central government, but the District Magistrate, Bulandshahar did not forward the said representation to the concerned authorities including the State Government till 09.09.2018. It has been submitted that the delay of eight days in transmitting the representation to the State Government has rendered the continued detention of the petitioner illegal.
Attention of the Court has been invited to paragraph 8 of the counter affidavit filed on behalf of the Superintendent of District Jail, Bulandshahar wherein it has been stated that the representation dated 01.09.2018 was submitted by the petitioner at District Jail, Bulandshahar on 01.09.2018 and the same was sent to the office of the District Magistrate, Bulandshahar on the same day i.e. 01.09.2018. Attention of the Court has also been invited to paragraph 24 of the counter affidavit filed by the District Magistrate in which it has been stated that the representation dated 01.09.2018 submitted by the petitioner was received from the jail authorities in the office of the District Magistrate, Bulandshahar on the same day i.e. 01.09.2018 and that the same was forwarded on 09.09.2018 in six (06) sets to the State Government and in one set to the Central Government.
To explain the delay in transmission of the representation, in paragraph 24 of the counter affidavit, the District Magistrate has stated that on receipt of the representation on 01.09.2018 report from the Senior Superintendent of Police, Bulandshahar was called for which was received in his office on 06.09.2018 where after para-wise reply of the representation was prepared on 7/8.09.2018 and, thereafter, the District Magistrate rejected the representation on 09.09.2018 and after rejection of the representation sent the same to the State Government in six sets and to the Central Government in one set on the same day 09.09.2018.
In the counter affidavit filed by the State Government, it is stated in paragraph six that the representation of the petitioner was received in the concerned Section on 12.09.2018 along with letter of the District Magistrate dated 09.09.2018 and the same was examined by the Under Secretary on 14.09.2018; by the Special Secretary on 17.09.2018, as 15.09.2018 (Saturday) and 16.09.2018 (Sunday) were holidays, and, thereafter, was examined by the Secretary, Government of U.P., Lucknow on 18.09.2018 and the matter was placed for final orders before the higher authorities, and was rejected on 20.09.2018.
By relying upon the averments made in the affidavits of the respondents, learned counsel for the petitioner has submitted that there is no explanation as to why there was inordinate delay of five days in submitting report/comments by the Senior Superintendent of Police as also as to why the representation was not transmitted to the State Government on 6.09.2018 itself when the report had been received from the Senior Superintendent of Police Bulandshahr on 06.09.2018. It has been submitted that unexplained delay of five days has rendered the continued detention illegal.
The learned counsel for the petitioner has placed reliance on decision of the Apex Court in the case of Rajammal vs. State of Tamil Nadu and another reported in (1999) 1 SCC 417 wherein the continued detention was declared illegal in absence of explanation for delay of five days in dealing with the representation. Learned counsel for the petitioner has also placed reliance on an unreported decision of a co-ordinate Bench of this Court dated 22.04.2019 in the Habeas Corpus Petition No. 3814 of 2018 (Mannan @ Nawab vs. State of U.P. and 3 others) in which, by placing reliance on apex court's decision in Rajammal's case (supra), unexplained delay of seven days in transmitting the representation was held sufficient to render the continued detention illegal.
The learned A.G.A. has submitted that the representation was addressed promptly and as comments are ordinarily required from the police authorities, report was called from the Senior Superintendent of Police, Bulandshahar which was received on 06.09.2018. As soon as the report was received, after preparing para-wise comments, the representation was considered and rejected on 09.09.2018 and, thereafter it was transmitted to the State Govt. as well as Central Govt. in requisite number of copies on 09.09.2018, hence, it cannot be said that there was inordinate delay in dealing with the representation.
We have considered the rival submissions. It is well settled by a catena of decisions that an unexplained delay in transmission of representation against a preventive detention order violates the fundamental right of a detenue guaranteed under Article 22(5) of the Constitution of India thereby rendering the continued detention illegal (vide Pebam Ningol Mikoi Devi v. State of Manipur: (2010) 9 SCC 618, paras 33 to 37; Abdul Nasar Adam Ismail v. State of Maharashtra, (2013) 4 SCC 435, para 19). In Abdul Nasar's case supra, in paragraph 19 of the judgment it was held as follows:
"19. In Pebam Ningol Mikoi Devi, seven days' unexplained delay in forwarding the representation to the Central Government was held to be fatal. In Aslam Ahmed Zahire Ahmed Shaik, the detenu had handed over his representation to the Superintendent of Jail on 16-6-1998 for onward transmission to the Central Government. It was kept unattended for a period of seven days and, as a result, it reached the Government 11 days' after it was handed over to the Superintendent of Jail. The Superintendent of Jail had not explained the delay. Relying on Vijay Kumar v. State of J&K, the continued detention of the detenu was set aside. At the cost of repetition, we must note that in this case, the Superintendent of Jail has not filed any affidavit explaining the delay. Therefore, this delay, in our opinion renders continued detention of the detenu, illegal."
The explanation that has been offered by the District Magistrate for the delay in transmission of the representation in paragraph 24 of the counter affidavit does not offer explanation for the delay at the end of Senior Superintendent of Police, Bulandshahar in not submitting report prior to 06.09.2018. There is no explanation as to why the Senior Superintendent of Police took five days in submitting report to the representation as called for by the District Magistrate. There is also no explanation in the affidavit whether any reminder was sent by the District Magistrate to the office of the Senior Superintendent of Police, Bulandshahar for promptly providing comments as were sought for by him on 01.09.2018.
In Rajammal's case (supra), the apex court had found that the representation of the detenue was left unattended for five days in between 9.2.1988 and 14.2.1988. The only explanation that was provided was that the Minister was on tour and, therefore, could not pass order earlier. This explanation was not found justified.
It has consistently been the view of the Apex Court that in a return to the habeas corpus petition the detaining authorities have to explain as to how the representation has been dealt with since the time of its presentation till its decision. The burden is on the state authorities to explain the delay, if any, in addressing the representation.
In the instant case, we find that there is no explanation for the delay in obtaining comments from the Senior Superintendent of Police. As to why the Senior Superintendent of Police took five days to submit his comments on the representation is not explained. Moreover, there is nothing to indicate that any reminder was sent to the Senior Superintendent of Police to promptly provide the comments. This supine indifference has certainly resulted in delay in onward transmission of the representation and its consideration thereby rendering the continued detention illegal.
Under the circumstances, keeping in mind the law laid down by the Apex Court in cases noticed above including the view taken in Rajammal's case (supra) where five days delay in attending the representation was found fatal, we are of the considered view that the continued detention of the petitioner has been rendered illegal.
The petition is, therefore, allowed. The petitioner shall be at liberty forthwith unless wanted in any other case.
There is no order as to costs.
Order Date :- 11.7.2019 m.a.