MUMTAZ KHAN Vs. DISTRICT MAGISTRATE MORADABAD

JUDGEMENT

(1.) By means of this Writ Petition under Article 226 of the Cinstitution, petitioner Mumtaz Khan challenges the validity of his detention authorised by the District Magistrate, Moradabad, vide his or der dated July 6, 1981 passed under the pro visions of Section 3 of the National Security Act. In pursuance of the impugned order the petitioner was arrested cm July 7, 1981. He filed the present writ petition challenging the validity of his detention on a number of grounds. While contesting the petition, the District Magistrate, Moradobad, filed a counter-affidavit in paragraph 8 whereof he mentioned that the grounds for petitioner's detention were served upon him on July 16, 1981. Taking a case from the aforesaid averments made in the counter affidavit of the District Magistrate the learned counsel appearing for the petitioner questioned the validity of his detention also on the ground that there has been a contravention of Sec tion 8 of the National Security Act render ing the petitioner's continued detention in valid. Section 8 (1) of the Act reads thus:- "when a person is detained in pursu ance of 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 ten days from the date of detention, Communicate to him the grounds on whir-h the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. " Section clearly envisaged that the grounds on which a person has been detain ed have to be served upon him within a pe riod of five days and it is only in exception al circumstances and for a reasons to be re corded in writing that the period within which grounds for detention are to be serv ed could be extended upto 10 days. It is clear that when the detaining authority de lays in furnishing grounds of detention of a detenu, it denies him of an opportunity of making the representation against his deten tion at the earliest as contemplated by Arti cle 22 of the Constitution. We find that in this case while filing the counter-affidavit the District Magistrate apart from saying that in the very special circumstances that prevailed in the District, the grounds of de tention could be served on the petitioner only on 9th day after his detention, did not either specify the reasons which prevented him from serving the grounds within a pe riod of five days contemplated by Section 8 of the Act. He also did not clearly state that there exists any order in writing men tioned the reasons why the grounds could not be so served upon the detenu within the period of five days. Although the file of the District Magistrate was available with the learned Additional Government Advocate representing the respondents, he was not able to bring to our notice any order in writing mentioning the reasons why the District Magistrate was prevented from serv ing the grounds of petitioner's detention within a period of five days. Thus there has been a contravention of the provision of Section 8 of National Security Act leading to the violation of the provisions contained in Article 22 (5) of the Constitution. The continued detention of the peti tioner in pursuance of the District Magis trate's order dated July 6, 1981, therefore, cannot be countenanced. In this view of the matter it is not necessary for us to consider the other objections regarding the validity of the petitioner's detention raised in the Writ petition. The Writ petition, therefore, succeeds end is allowed. The continued detention of the petitioner, in pursuance of the District Magistrate's order dated July 6, 1981 is held to be illegal. The respondents are accord ingly directed to set the petitioner at liberty forthwith unless his detention is otherwise required in connection with some other case. .