Allahabad High Court
Manohar vs State Of U.P. And 3 Others on 5 August, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 494 of 2019 Petitioner :- Manohar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Yashpal Yadav,Rajesh Yadav Counsel for Respondent :- G.A.,Thakur Azad Singh Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioner; learned A.G.A. for the respondents 1, 2 and 3; and Sri Thakur Azad Singh for the respondent no.5.
The instant petition seeks quashing of the detention order dated 23.08.2018 passed by the District Magistrate, Gorakhpur as also the confirmation order dated 09.10.2018 and the subsequent orders dated 19.11.2018 and 21.02.2019 extending the period of detention under the provisions of the National Security Act, 1980 (for short the Act, 1980) with a prayer that the petitioner be produced before the court and be set at liberty.
At the outset, the learned counsel for the petitioner has invited attention of the Court to the confirmation order dated 09th October 2018, which is appended as Annexure No.5 (at page 81) to the petition. He has submitted that a bare reading of the confirmation order passed in exercise of power under Section 12 (1) of the Act, 1980 would reveal that the same has been passed without applying the mind to the report submitted by the Advisory Board in respect of the petitioner (Manohar) but has been passed after considering report submitted in respect of another person, namely, Tafazzul Hasan.
Attention of the Court has also been invited to paragraph 14 of the writ petition wherein the petitioner has stated as follows:
"That, the order dated 09.10.2018 discloses that the case of one Tafazzul Hasan was referred to State Advisory Board and State Advisory Board, in turn, expressed the opinion about existence of sufficient cause for detention. The case of petitioner was never referred to State Advisory Board u/s 10 N.S.A. Act nor State Advisory Board ever considered the case of petitioner nor submitted any report pertaining to existence of sufficient cause for his detention. The order dated 9.10.2018 confirming the detention order and extending detention period of petitioner is illegal, against mandate of Section 12 (1) of N.S.A. Act and without authority of law. "
Learned counsel for the petitioner has also invited attention of the Court to paragraph 16 of the writ petition in which it has been stated that as the order of confirmation stands vitiated, the subsequent orders extending the period of detention would be inconsequential.
Attention of the Court has also been invited to the counter-affidavit filed on behalf of State to indicate that no para-wise reply has been rendered to the averments made in the petition though the State has disclosed that the case of the petitioner was referred to the Advisory Board.
It has been submitted that mere reference to the Advisory Board and the consequent opinion of the Advisory Board finding sufficient cause for detention is not enough because, before confirming the detention under section 12(1) of the Act, 1980, the State Government has to apply its mind again to the record and thereafter confirm the order of detention. It has thus been submitted that since the confirmation order dated 09.10.2018 reflects complete non-application of mind to the record as the report of some other detenue was taken into consideration, the order of confirmation stands vitiated and, therefore, the extension of the period of detention from time to time is of no consequence. Hence, the continued detention of the petitioner is illegal.
In addition to above, the learned counsel for the petitioner urged that there has been inordinate delay at the level of the District Magistrate, Gorakhpur (detaining authority) in transmission of the representation submitted by the petitioner, against the order of detention, to the State Government, inasmuch as, from the return filed by the District Magistrate, it is clear that the representation of the petitioner was submitted at District Jail, Gorakhpur on 06.09.2018 and was received in the office of the detaining authority on the same day but the detaining authority forwarded the representation to the State Government on 22.09.2018. The only explanation offered for this inordinate delay in transmission of the representation to the State Government is that comments were called from the Senior Superintendent of Police, Gorakhpur on 07.09.2018, which were received in the office of the District Magistrate on 20.09.2018. It has been submitted that there is no explanation offered to disclose whether any reminder was sent to the Senior Superintendent of Police, Gorakhpur to promptly submit his comments. Further, there is no explanation as to why the Senior Superintendent of Police, Gorakhpur took so much time in submitting its comments, particularly, when both the authorities are stationed in the district headquarters.
Learned A.G.A. has submitted that it appears that there is a typographical mistake in the confirmation order dated 09th October, 2018 otherwise, from the return filed on behalf of State Government, it is clear that the case of the petitioner was referred to the Advisory Board and the Advisory Board had found sufficient cause to detain the petitioner. On the question of delay at the level of detaining authority in forwarding the representation he has submitted that as no specific challenge has been laid in the petition as regards the delay in consideration of the representation, the District Magistrate, in his return, has not tendered explanation for the delay in between 07.09.2018 and 20.09.2018 in onward transmission of the representation to the State Government.
We have considered the rival submissions and have perused the record carefully.
As we propose to allow the petition on the first ground, that is with respect to non application of mind at the time of passing the confirmation order, we do not propose to deal with the second issue.
It is well settled legal principle that after referring the matter to the Advisory Board, upon receipt of the report from the Advisory Board that there is sufficient cause for detaining the detenue, the State Government before confirming the order of detention has to apply its mind, afresh, to all the materials on record including the report of the Advisory Board, and, thereafter, take a decision whether to confirm the detention order or not. Such application of mind must be reflected from the record.
In the instant case, the confirmation order dated 09th October, 2018, which has been served upon the petitioner and has been brought on record at page 81 of the paper book clearly reveals that at the time of confirming the detention, the Advisory Board's report in respect of Tafazzul Hasan was considered and not of the petitioner. In the counter affidavit filed by the Under Secretary, Home (Confidential) Department, Government of UP though it is stated that the matter of the petitioner was referred to the Advisory Board and the Advisory Board found sufficient cause for detention and thereafter the State Government took decision to confirm the order of detention, but there is no explanation offered as to how there is mention of the report of Tafazzul Hasan in the confirmation order passed in respect of the petitioner. There is no statement in the counter affidavit on behalf of the State that the mention of incorrect name was due to typographical mistake and that a fresh order of confirmation, or corrigendum of the earlier order, was issued and communicated to the detenue. The counter affidavit only reveals that the above confirmation order, to the extent it disclosed the period of detention as three months, was amended from time to time so as to make the detention continue up to a maximum period of twelve months.
We are not satisfied with the statement in the return that the initial confirmation order 09th October, 2018 was passed after due application of mind to all the documents on record including the report of the Advisory Board submitted in respect of the petitioner because the confirmation order reflects that report of Advisory Board in respect of one Tafazzul Hasan was considered. Further, the contention of the learned A.G.A. that it was a case of mere typographical error is not acceptable, particularly, when no corrigendum was issued nor any such stand is taken in the return. We are therefore satisfied that the order confirming the detention was passed without proper application of mind on the records as is reflected from the confirmation order which indicates that some other person's report submitted by the advisory board was considered. In such a scenario and in absence of issuance of fresh confirmation order or corrigendum of the confirmation order, the subsequent successive orders, passed by way of amendment of the preceding order, to extend the period of detention would not cure the defect. In our view once the confirmation order is found defective for want of application of mind, the subsequent orders of extension of the period of detention, by way of amendment/modification of the previous confirmation/extension order, would not cure the inherent defect. Hence, in our considered view, the continued detention of the petitioner under the Act, 1980 has been rendered illegal.
The petition is allowed. The petitioner shall be set at liberty forthwith, unless wanted in any other case.
Order Date :- 5.8.2019 Sunil Kr Tiwari