Allahabad High Court
Mohd. Sheebu Alias Sheebu Chaudhary ... vs Union Of India Thru. Secy. Mini. Of Home ... on 13 February, 2023
Bench: Devendra Kumar Upadhyaya, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R RESERVED Court No. - 9 Case :- HABEAS CORPUS WRIT PETITION No. - 103 of 2022 Petitioner :- Mohd. Sheebu Alias Sheebu Chaudhary Through Brother Mubarak Ahmad Respondent :- Union Of India Thru. Secy. Mini. Of Home Affairs And Others Counsel for Petitioner :- Sarvesh Kumar Pandey,Sushil Kumar Singh,Trishita Singh Counsel for Respondent :- A.S.G.I.,Dr. Pooja Singh,G.A. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Narendra Kumar Johari,J.
(Per D. K. Upadhyaya, J.)
1. These proceedings under Article 226 of the Constitution of India have been instituted by the detenue-Mohd. Sheebu @ Sheebu Chaudhary through his brother and next friend Mubarak Ahmad praying for issuing a writ of Habeas Corpus setting the detenue free from detention as directed by the District Magistrate, Sitapur by means of an order dated 08.03.2022 after quashing the same.
2. Heard Shri Sushil Kumar Singh, learned counsel for the petitioner, learned Additional Government Advocate representing the State-respondents and Ms. Pooja Singh, learned counsel representing the Union of India and perused the records available before us on this writ petition.
3. As observed above, the order impugned herein is dated 08.03.2022 passed by the District Magistrate, Sitapur (hereinafter referred to 'the detention order') whereby the detenue has been ordered to be detained in preventive detention at District Jail, Sitapur in terms of the provisions contained in section 3(2) and 3(3) of the National Security Act, 1980 (hereinafter referred to as 'NSA').
4. Though various grounds impeaching the impugned detention order have been urged by the learned counsel for the petitioner, however, he has emphasized primarily on the ground that there has been undue delay in disposal of the representation made by the detenue against the order of detention by the State Government inasmuch as that after receipt of the representation the District Magistrate failed to furnish the same to the State Government with due diligence, which is fatal and consequently vitiates the detention of the petitioner. It has, thus, been argued by the learned counsel for the petitioner that such delay on the part of the District Magistrate in furnishing the representation to the State Government has resulted in denial of the right of the petitioner to be afforded the earliest opportunity to make representation against the order to the appropriate Government as envisaged by Section 8 of the NSA and as mandated by Article 22 (5) of the Constitution of India. His submission, thus, is that the delay at the end of the District Magistrate in referring the representation to the State Government not only infringes right of the petitioner as available to him under section 8 of the NSA and Article 22(5) of the Constitution of India but also that it is fatal to the extent that the order of detention is not tenable.
5. On the other hand, learned counsel representing the State-respondents has submitted that sufficient explanation has been provided in the supplementary counter affidavit filed by the District Magistrate for the alleged delay in furnishing the representation of the petitioner to the State Government and in view of the fact that the delay has appropriately been explained, the question of violation of the provisions of section 8 of NSA and Article 22(5) of the Constitution of India, in the facts of the present case, does not arise at all. His submission is that the arguments made by the learned counsel for the petitioner are, thus, highly misconceived and the writ petition deserves to be dismissed.
6. Learned counsel representing the Central Government/Union of India has submitted that so far as the Union of India is concerned, there has not been any delay in disposal of the representation made by the detenue against the detention order; neither is there any such pleadings in the writ petition. She has, thus, argued that the writ petition deserves to be dismissed.
7. We have consciously considered the competing submissions made by the learned counsel for the respective parties. The issue, which, in the facts of the case and also on the basis of the respective submissions made by the learned counsel for the parties, arises for our consideration is as to whether the delay at the end of the District Magistrate in furnishing the representation made by the detenue against the detention order to the State Government is unexplained and reflects callousness and indifference on the part of the District Magistrate which is fatal to sustain the impugned detention order.
8. For appropriately deciding the issue as culled out above, we proceed to note certain facts, which are not disputed between the parties.
9. The impugned detention order passed by the District Magistrate under section 3 (2) and 3(3) of the NSA is founded on a First Information Report lodged against the petitioner at Case Crime No.309 of 2021, under sections 153-A, 505(2), 294 of I.P.C. and section 67 of Information Technology Act. The said F.I.R. was lodged on 21.08.2021 at Police Station-Mahmoodabad, District-Sitapur and offences under section 124-A, 295-A, 298 and 354(Ka) of I.P.C. and section 7 of Criminal Law Amendment Act were subsequently added.
10. In connection with the aforesaid First Information Report, the petitioner was arrested and was lodged in jail since 22.08.2021, however, he was ordered to be enlarged on bail vide order dated 02.03.2022 passed by this Court in Criminal Misc. Bail Application No.1499 of 2022. Before the petitioner could be released pursuant to the said order dated 02.03.2022 passed by this Court granting bail, the District Magistrate passed the detention order on 08.03.2022.
11. The detention order dated 08.03.2022 passed by the District Magistrate was approved by the State Government by means of the order dated 15.03.2022.
12. As admitted by the District Magistrate in his supplementary counter affidavit dated 14.10.2022 the petitioner moved separate representations dated 16.03.2022 to the Secretary, Department of Home, Government of Uttar Pradesh, to the U.P. State Advisory Board and also to the Secretary, Ministry of Home, Government of India, New Delhi, which were received in the office of District Magistrate on 16.03.2022 as sent by the Superintendent of Jail, Sitapur by means of his letter dated 16.03.2022.
13. So far as the representation made by the petitioner to the Central Government is concerned, it is on record that the said representation dated 16.03.2022 was examined by the appropriate authority of the Central Government and the same was rejected. Such rejection was communicated by means of the wireless message dated 11.04.2022.
14. The matter was considered by U.P. Advisory Board on 01.04.2022 where the petitioner was personally heard and a report accordingly was sent by the Advisory Board whereupon the State Government took a decision to confirm the detention order and also to keep the petitioner under detention for a period of three months on 13.04.2022.
15. The Court while considering this writ petition passed an order on 11.10.2022 directing the learned State Counsel to file a supplementary counter affidavit by the District Magistrate in respect of the delay on his part in furnishing the representation received from jail authorities on 16.03.2022 for furnishing the same onward to the State Government/Central Government. The order dated 11.10.2022 passed by this Court is extracted herein below:-
"As prayed by Sri Tilhari, learned A.G.A., put up this case on 18.10.2022 to enable the District Magistrate to file supplementary counter affidavit in the matter with regard to the delay on his part in sending the representation, received from jail authorities in his office on 16.03.2022, onward to the State Government / Central Government as the case may be as is being argued by learned counsel for the petitioner."
16. In compliance of the order dated 11.10.2022, the District Magistrate has filed a supplementary counter affidavit wherein an attempt has been made by him to explain the delay which occurred on his part in furnishing the representation of the petitioner, which was received in the office of District Magistrate on 16.03.2022, to the State Government. The District Magistrate in the said supplementary counter affidavit has narrated and admitted the following facts:
(a) Against the detention order dated 08.03.2022 the petitioner moved separate representations to the State Government, to the Central Government and to U.P. State Advisory Board on 16.03.2022 which was received in the office of District Magistrate on the same day i.e. 16.03.2022 through a letter of the said date of the Superintendent, District Jail, Sitapur.
(b) From 17.03.2022 Holi vacation commenced which ended on 20.03.2022.
(c) On 21.03.2022 the representation dated 16.03.2022 was marked to the Additional District Magistrate, Sitapur for necessary action.
(d) On 22.03.2022 the District Magistrate forwarded the representations to the Superintendent of Police for his comments.
(e) The Superintendent of Police vide letter dated 24.03.2022 forwarded his comments which were received in the office of District Magistrate, Sitapur on 26.03.2022.
(f) The District Magistrate then considered the representation himself and rejected the same by means of the order dated 26.03.2022.
(g) The rejection of the representation by the District Magistrate was communicated to the petitioner on 26.03.2022 through the Superintendent, District Jail, Sitapur and thereafter the District Magistrate sent the representation of the petitioner vide his letter dated 26.03.2022 to the Home Department, Government of U.P., which was received in the office of the Secretary of the Home Department on 27.03.2022. The representation of the petitioner was also sent through registered post on 27.03.2022 to the Ministry of Home, Government of India.
17. In paragraph 6 of the counter affidavit filed on behalf of the State of Uttar Pradesh which is sworn in by the Under Secretary, Home (Confidential) Department, however, it has been stated that the representation dated 16.03.2022 along with comments was received in the concerned section of the State of U.P. on 28.03.2022 along with the letter of the District Magistrate, Sitapur, dated 26.03.2022.
18. The State Government in its counter affidavit has further stated that the representation of the petitioner was examined by the Under Secretary in the Home Department, on 29.03.2022 and that it was examined by the Joint Secretary and the Special Secretary as well on the same day i.e. 29.03.2022. According to the State Government's counter affidavit, the representation of the petitioner was examined by the Additional Chief Secretary on 30.03.2022 and the file was submitted for final orders to the higher authorities and the representation was rejected on 31.03.2022 and accordingly it was communicated to the petitioner through the District authorities by the State Government vide radiogram dated 01.04.2022.
19. In the light of the aforesaid facts, it has been submitted by the learned State-respondents that there has been no delay in disposal of the representation and the delay in furnishing the representation made by the petitioner against his detention order passed by the District Magistrate to the State Government has sufficiently and appropriately been explained.
20. The bone of contention in this case, thus, between the parties is as to whether the delay which occurred in sending the representation of the petitioner to the State Government by the District Magistrate has appropriately been explained so as to conclude that such delay was not fatal to vitiate the detention of the petitioner.
21. Before giving our conclusion as to the delay, we may examine the relevant law in this regard. Article 22, which falls in Part III of the Constitution of India containing fundamental rights, provides certain protection against arrest and detention in certain cases. Clause 5 of Article 22 is in relation to detention in pursuance of an order made under any law providing for preventive detention. It casts two duties on the authority making detention order, which are as follows:-
(i) The authority making detention order is duty bound to communicate the person so detained the grounds on which the order has been made, as soon as may be, and
(ii) Detaining Authority shall afford him the earliest opportunity of making a representation against the detention order.
22. In tune with the provisions of Article 22(5) of the Constitution of India, section 8 of the NSA also provides that the detaining authority as soon as may be, but ordinarily not later than five days (in exceptional circumstances and for the reasons to be recorded in writing, not later than ten days) from the date of detention shall communicate to the detenue the grounds on which the order has been made and it shall also afford him the earliest opportunity of making a representation against the order to the appropriate Government. Article 22(5) of the Constitution of India is extracted herein below:-
"22. Protection against arrest and detention in certain cases.-(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
23. Section 8 of the National Security Act is also quoted hereunder:-
"8. Grounds of order of detention to be disclosed to persons affected by the order.--(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 1 [fifteen days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."
24. Hon'ble Supreme Court as far back as in the year 1981 in the case of Harish Pawha vs. State of U.P. and others, reported in AIR 1981 SC 1126 has held that it is the duty of the State to proceed to determine representation of the detenue with utmost expedition which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously unless it is absolutely necessary to wait for some assistance, until a final decision is taken and communicated to the detenue.
25. Hon'ble Apex Court in the case of Rajammal vs. State of Tamil Nadu and another, reported in (1999) 1 SCC 417 has reiterated the aforesaid legal position in paragraphs 6, 7 and 8 which are quoted as under:-
"6. Learned counsel also cited an earlier two-Judge Bench decision of this Court in Raghavendra Singh v. Supdt., District Jail, Kanpur [(1986) 1 SCC 650 : 1986 SCC (Cri) 60] in which similar delay of a few days in considering the representation was found to have vitiated the detention. That is a case where delay was held to be "wholly unexplained". A three-Judge Bench of this Court in Rumana Begum v. State of A.P. [1993 Supp (2) SCC 341 : 1993 SCC (Cri) 551] disapproved the delay in considering the representation on the mere ground that the representation was not addressed to the Chief Secretary. That was a case where representation was sent to the Governor. Hence it was found that there was unexplained and unreasonable delay and consequently the detention was held vitiated. We are reminded of the following observations made by this Court in Kundanbhai Dulabhai Sheikh v. District Magistrate, Ahmedabad [(1996) 3 SCC 194 : 1996 SCC (Cri) 470 : JT (1996) 2 SC 532] : (SCC p. 203, para 21) "21. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the ''liberty and freedom' to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest."
7. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi v. Union of India [(1991) 1 SCC 476 : 1991 SCC (Cri) 613] . The following observations of the Bench can profitably be extracted here: (SCC p. 484, para 12) "It is a constitutional mandate commanding the authority concerned to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words ''as soon as may be' occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the detention law concerned, within which the representation should be dealt with. The requirement, however, is that there should not be 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."
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."
26. From the judgment in the case of Rajammal (supra) we gather a cue as to what delay will amount to adversely affecting further detention of a detenue detained under any law of preventive detention. Hon'ble Apex Court has clearly held that if delay is caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the detenue. It has further been held that it is for the authority concerned to explain the delay and also that it is not the duration of delay which is the test; rather the test is how such a delay is explained by the authority concerned. Hon'ble Supreme Court has also held that there should not be supine indifference, slackness or callous attitude in consideration of representation and that any unexplained delay will be in breach of the constitutional mandate which will render the continued detention to be illegal.
27. A Constitutional Bench judgment of Hon'ble Supreme Court in the case of K.M. Abdulla Kunhi and another vs. Union of India and others, reported in (1991) 1 SCC 476 has outlined two rights of the detenue under Article 22(5) of the Constitution of India, which we have already mentioned above.
28. Para 7 of the judgment in the case of K.M. Abdulla Kunhi (supra) is extracted herein below:
"7. The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention".
29. It has also been held by Hon'ble Supreme Court in the said Constitutional Bench Judgment that right of consideration of representation of the detenue by the Government is independent of consideration of detenue's case and his representation by the Advisory Board under Article 22(4) of the Constitution of India. Para 11 of the judgment in the case of K.M. Abdulla Kunhi (supra) is relevant at this juncture to be quoted which runs as under:-
"11. It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the government. It is implicit in clauses (4) and (5) of Article 22 that the government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the government. The right to have the representation considered by the government, is safeguarded by clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under clause (4) of Article 22 read with Section 8(c) of the Act. (See: Sk. Abdul Karim v. State of W.B. [(1969) 1 SCC 433] ; Pankaj Kumar Chakrabarty v. State of W.B. [(1969) 3 SCC 400 : (1970) 1 SCR 543] ; Shayamal Chakraborty v. Commissioner of Police, Calcutta [(1969) 2 SCC 426] ; B. Sundar Rao v. State of Orissa [(1972) 3 SCC 11] ; John Martin v. State of W.B. [(1975) 3 SCC 836 : 1975 SCC (Cri) 255 : (1975) 3 SCR 211] ; Sk. Sekawat v. State of W.B. [(1975) 3 SCC 249 : 1974 SCC (Cri) 867 : (1975) 2 SCR 161] and Haradhan Saha v. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] )"
30. Emphasizing that representation under Article 22(5) of the Constitution of India relates to liberty of an individual which is a highly cherished right enshrined in Article 21 of the Constitution of India, it has been held by Hon'ble Supreme Court in the case of K.M. Abdulla Kunhi (supra) that Article 22(5) thus provides a legal mandate to the Government to consider the representation as early as possible. It has further been held that the phrase "as soon as may be" occurring in Article 22(5) reflects the concern of the Framers of the Constitution that the representation should be expeditiously considered and disposed of with a sense of urgency without an unavoidable delay. It has been held that though there is no period prescribed under the Constitution or under the concerned detention law within which the representation should be dealt with, the requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation.
31. Para 12 of the case in K.M. Abdulla Kunhi (supra) is extracted herein below:-
"12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be 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. This has been emphasised and re-emphasised by a series of decisions of this Court. (See: Jayanarayan Sukul v. State of W.M. [(1970) 1 SCC 219] ; Frances Coralie Mullin v. W.C. Khambra [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] ; Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police [(1989) 3 SCC 173 : 1989 SCC (Cri) 520] and Aslam Ahmed Zahire Ahmed Shaik v. Union of India [(1989) 3 SCC 277 : 1989 SCC (Cri) 554] .)"
32. Similar view has been expressed by a Division Bench of this Court in the case of Mohd. Faiyyaz Mansuri vs. Union of India and others, decided on 07.09.2021 (Habeas Corpus No.23475 of 2020) wherein plea of the petitioner that there was delay in forwarding his representation has been found to carry substance and on the said ground alone, the impugned detention order was quashed.
33. In the light of the afore-referred legal position, what is unambiguous in our mind is that the detaining authority is under obligation to afford the detenue the earliest opportunity of making representation against the detention order. The relevant clause occurring in sub clause 5 of Article 22 is "shall afford him the earliest opportunity of making a representation against the order". The provisions of section 8 of the NSA are in complete sync with Article 22 (5) of the Constitution of India and the relevant phrase occurring therein is "shall afford him the earliest opportunity of making a representation against the order to the appropriate Government". In our considered opinion affording the detenue the earliest opportunity of making a representation against the detention order will not mean and meaning of the said phrase cannot be confined to making aware the detenue of his right to make representation against the detention order at the earliest, rather it would extend to a duty of the detaining authority to forward and furnish the representation which may be made by the detenue against the detention order to the authorities concerned, namely, the State Government, the Central Government and the Advisory Board at the earliest as per the scheme of the National Security Act.
34. The fact situation where after passing of the detention order the detaining authority though apprises the detenue of his right to make representation without loss of any time but, however, fails to forward such representation at the earliest to the State Government or to the Central Government or to the Advisory Board, in our opinion will not suffice to fulfill the requirement of Article 22(5) of the Constitution of India as also section 8 of the National Security Act.
35. When we examine the admitted facts in the light of the aforementioned legal position, what we find is that the representation against the detention by the petitioner was made on 16.03.2022 which was received in the office of the District Magistrate on the same day along with letter of the Superintendent, District Jail, Sitapur, dated 16.03.2022, however, it was sent to the State Government only on 26.03.2022. In other words, the District Magistrate took ten long days in forwarding the representation dated 16.03.2022 submitted by the detenue against his detention order.
36. The explanation offered in the supplementary counter affidavit filed by the District Magistrate dated 14.10.2022, in our considered opinion cannot be said to be sufficient or appropriate. The representation dated 16.03.2022 of the petitioner is said to have been marked to the Additional District Magistrate on 4th day i.e. on 21.03.2022, though it has been stated that there was Holi vacation between 17.03.2022 and 20.03.2022. The representation is thereafter said to be marked to the Superintendent of Police on 22.03.2022 asking for his comments, which in our opinion could have been marked to the Superintendent of Police on 21.03.2022 itself if not before that. If the representation could be marked to the Additional District Magistrate on 21.03.2022 why could it not be marked to the Superintendent of Police on the same day i.e. 21.03.2022 remains unexplained. Once the representation was marked to the Superintendent of Police on 22.03.2022 he is said to have reverted with his comments to the District Magistrate vide his letter dated 24.03.2022 which was received in the office of District Magistrate on 26.03.2022. At the District Headquarters the office of District Magistrate and Superintendent of Police cannot be located at such a far place so that the comments/letter dated 24.03.2022 from the Superintendent of Police would take so much of time to reach the office of the District Magistrate on 26.03.2022.
37. It is also to be noticed that it is on 26.03.2022 when the District Magistrate rejected the representation of the detenue and forwarded the representation of the petitioner to the State Government which as per the supplementary counter affidavit filed by the District Magistrate was received in the office of the State Government on 27.03.2022, however, as per the counter affidavit filed by the State Government it was received on 20.03.2022.
38. The undisputed facts as chronologically narrated above, in our considered opinion, lead to the conclusion that delay in forwarding the representation of the petitioner against the detention order by the District Magistrate to the State Government was, in this case, precipitated on account of callous and indifferent attitude on the part of the District Magistrate to the fundamental rights of the petitioner under Article 22(5) of the Constitution of India as also to his right under section 8 of the NSA.
39. There is yet another aspect which we would like to reflect upon. In the short counter affidavit dated 14.10.2022 filed by the District Magistrate he has stated that the representation dated 16.03.2022 of the petitioner was sent to the Additional District Magistrate and to the Superintendent of Police and thereafter on receipt of the report/comment of the Superintendent of Police vide his letter dated 24.03.2022 the District Magistrate considered the representation of the petitioner and rejected the same by passing an order on 26.03.2022. A copy of the said order dated 26.03.2022 has been enclosed as annexure-SCA 4 to the said supplementary counter affidavit. The question, which arises here is as to whether the exercise undertaken by the District Magistrate in considering and rejecting the representation by the petitioner, was under the scheme of NSA, warranted at all keeping in view the fact that the detention order dated 08.03.2022 was already approved by the State Government by means of the order dated 15.03.2022.We are conscious of the provisions of section 21 of the General Clauses Act which is quoted hereunder:
"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws-Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions, if any, to add, to amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
40. Thus, no doubt, by virtue of section 21 of the General Clauses Act the detaining authority may have the power to rescind the detention order on the representation of the detenue, however, this power can be exercised only before the order of detention passed by the detaining authority under section 3(3) is approved by the State Government in terms of the requirement of section 3(4). In fact, once the detaining authority passes detention order under section 3(3), it is to operate for not more than 12 days or 15 days as the case may be, unless in the meantime it is approved by the State Government. Such detention order passed by the detaining authority, if is approved by the State Government, merges with the order of the approval of the State Government which renders the detaining authority functus officio. If in terms of the provisions of section 21 of the General Clauses Act, power to undo or rescind the detention order is extended to the detaining authority even after approval of such detention order by the State Government, that may give rise to a very anomalous situation where the District Magistrate in case on consideration of the representation of the detenue allows the same and sets aside the detention order. The anomaly in such a situation would be that despite the District Magistrate having set aside the detention order the order of approval of detention order accorded by the State Government will still be in existence. Accordingly, in our opinion the provisions of section 21 of the General Clauses Act cannot be taken aid of by the detaining authority to consider and decide the representation which may be made by the detenue against his detention order after the detention order is approved by the State Government.
41. In this case while attempting to give an explanation for delay in forwarding the representation of the petitioner to the State Government, the District Magistrate has stated that he took some time to decide the representation preferred by the petitioner which was rejected by him. Such an exercise undertaken by the District Magistrate was completely uncalled for and unwarranted and time devoted by him for undertaking such exercise could have easily been saved and utilized in furnishing the petitioner's representation to the State Government.
42. For the discussion made and reasons given above, we are of the opinion that the detention of the petitioner is liable to be quashed.
43. Resultantly, the instant Habeas Corpus petition is allowed. The impugned order of detention dated 08.03.2022 passed by the District Magistrate, Sitapur and all subsequent consequential orders are hereby quashed.
44. The detenue-petitioner is ordered to set at liberty by the respondents forthwith unless he is required to be detained in connection with any other case.
45. There will be no order as to costs.
Order Date :- 13.2.2023 akhilesh/