SHAKIL AKHTAR Vs. STATE OF U.P.

JUDGEMENT

(1.) ON 29.4.90 the District Magistrate, Kanpur Nagar made on order under Sect ion 3 (3) of the National Security Act (hereinafter referred to as the Act) for the preventive detention of the peti­tioner. The said order purports to have been made with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of the public order. The service of the order was effected upon the petitioner in district jail, Kanpur, where he was detained in connection with crime case No. 69 of 1990 registered at Police Station Bazaria, district Kanpur Nagar under Sections 147/148/149/307/436/332/426/323, I.P.C. The present writ petition for habeas corpus was filed by the petitioner challenging the validity of the said detention order and his continued detention in pursuance thereof. Having heard learned counsel for the parties we allowed the petition on 16th April, 1991 and directed the res­pondents to set the petitioner at liberty forthwith unless he was wanted in any other case. We had not recorded reasons for allowing the petition. The reasons" are now being recorded herein as under:

(2.) THE detention order was founded on four grounds based on four separate incidents amounting to criminal offences punishable under the provisions of the Indian Penal Code and in respect of these incidents First Information Reports were lodged at the concerned police stations giving rise to four criminal cases against the petitioner. The first incident is said to have taken place on 25.12.89 at 7.00 a.m. near Sangeet Cinema in Police Station Raipurwa, district Kanpur Nagar. In this incident, it is alleged, that the peti­tioner along with 200 armed persons went to take forcible possession of a piece of land situate by the side of Sangerl Cinema and threatened the Cinema Managrr and the employees of the Cinema to kill them. It is further alleged that the Cinema Manager and the employees of the Cinema were encircled by the petitioner and his associates. All of them demolished the on-going construction of boundary wall on the said piece of land and they themselves started raising construction. The report regarding this incident was lodged at Police Station Raipurwa, district Kanpur Nagar, on the basis of which crime case No. 330 of 1989 was registered against the petitioner under Sections 147/148/504/506, I.P.C. charge sheet was sub­mitted in the said case and the matter was pending in the court of law.

(3.) With regard to the first contention raised by the learned counsel for the peti­tioner there is no gain saying the fact that unexplained delay in disposal of the representation made on behalf of a detenu under the provisions of the Act vitiates his continued detention, as it results in violation of fundamental rights guaranteed by Articles 21 and 22 (5) of the Constitution. The preventive detention, if any, not made in strict compliance of the provisions of law authorising such a detention would certainly result in de­privation of the personal liberty guaranteed by Article 21 of the Constitution. The expression "authority making the order shall, as soon as may be, communicated to such person grounds on which the order has been made and shall afford him the earliest opportunity of making a represen­tation against the order "occurring in clause (5) of Article 22 of the Constitu­tion enjoins a duty upon the concerned authority to act with a sense of urgency and promptness of the highest degree in disposal of the representation made on behalf of detenu detained under the provisions of any Act authorising preven­tive detention. There are numerous au­thorities on this point and the point is too well settled that no authority need be mentioned here. But we are not satis­fied with the contentions raised by the learned counsel for the petitioner that the delay, if any, in the disposal of the representation was not duly" explained. In paragraph 10 of the counter affidavit filed by the District Magistrate Sri K.X. Singh it is averred that the typed copy of the representation dated 18.5.90 signed by the detenu on 19.5.90 given to the Superintendent District Jail, Kanpur on 19.5.90, was received in his (District Magistrate) office on 20.5.90 and on 21.5.90 it was sent to the Senior Superintendent of Police, Kanpur Nagar for his comments, from where it was received back on 28.5.90 and on the same day it was sent to the State Government along with his comments. The contention made by the learned counsel for the petitioner that the comments were not necessary and therefore, the time taken in obtaining the comments could be ignored and treated as unauthorised delay in disposal of the representation. This contention of Sri Dilip Kumar has no merit inasmuch as the primary respon­sibility for the maintenance of the public order rests on the district administration, i particularly the Magistracy and the Police and it is they who alone are in a position to make comments on the truth or other­wise of the allegations made in the re­presentation of a detenu. These comments enable the State Government to decide the representation made by a detenu in correct perspective upon the assess­ment of relevant facts which may be wanting in absence of the comments by the Police and the District Magistrate. It is true that there is no express provision in the Act which may necessitate calling for comments from the district adminis­tration but the necessity of inviting com­ments on the representation is implicit in the task of deciding the representation made by a detenu against his detention under the provisions contained in Section 3 of the Act. The wordings of Section 11 of the Act, particularly the expression "Advisory Board shall alter considering the material placed before it and, after calling for such further information as it may deem necessary from the appropriate government or from any person called for the purposes through the appropriate government or from the person concerned," occuring therein does indicate that the comments may be had from the district administration for the purpose of enabling the Advisory Board and the State Govern­ment to form correct opinion as to the validity/desirability or otherwise of the detention order. In view of this we are not impressed with the contention of the learned counsel for the petitioner that the comments from the district administration were wholly uncalled for and that the delay in the submissions of the comments should be treated as unexplained delay in disposal of the re­presentation. So far as the contention of the learned counsel for the petitioner regarding the delay at the Government level is concerned, we find that in para­graphs 2 and 3 of the affidevit filed by Sri Rameshwar, Anubhag Adhikari in the Gopan Anubhag - VI of U.P. Secretariat, Lucknow, it is well explained that the representation was received by the Govern­ment on 29.5.90 and on the same day it was remitted to the Advisory Board, where it was examined on 30.5.90 and again on 31.5.90, on which date the State Government rejected the representation. The detenu was heard personally on 29.5.90 by the Advisory Board. From the averments made in the counter affidavit filed by Sri K.K. Singh, District Magistrate and Sri Rameshwar, Anubhag Adhikari in the Secretariat, we are satisfied that there is no delay in disposal of the represen­tation, as such first contention raised by the learned counsel for the petitioner has no merit. 10. Coming to the second contention, we find that the fresh and ligible set of the grounds of detention together with all enclosures thereto were supplied to the petitioner in jail as averred in para­graph 9 of the counter affidavit filed by the District Magistrate Sri K.K. Singh. In view of this we find no merit in the second contention of the learned counsel for the petitioner. 11. With regard to the third contention raised by the learned counsel for the peti­tioner, the learned Additional Government Advocate has contended that the documents in so far as they were relied upon by the Detaining Authority, were supplied to the detenu and he cannot make any com­plaint for non-suoply of papers, reports and copies or any part thereof which were not relied upon by the Detaining Authority. We find force in this contention raised by Sri Mahendra Pratap Yadav, Learned Additional Government Advocate appearing for the respondents. 12. So far as the fourth contention raised by the learned counsel for the peti­tioner is concerned, suffice to say that in view of the National Security (Second Amendment) Act, 1984, whereby Section 5-A was inserted in the Principal Act w.e.f. 21.6.84, it would make no difference even if one of the grounds of detention was not relevant. 13. We, however, find merits and force in the last and fifth contention made by Sri Dilip Kumar, learned counsel for the petitioner. Admittedly the petitioner was in jail in connection with crime case No. 69 of 1990 under Sections 147/148/149/307/436/332/336/426/323, I.P.C. registered at Police Station Bazaria, district Kanpur Nagar. The order of deten­tion was served upon him in district jail. The bail application moved on behalf of the petitioner in crime case No. 69 of 1990 (supra) on 21.4.90 was rejected by the Additional Chief Metropolitan Magistrate, Kanpur Nagar on 24.4.90. On the direction of the Court learned Additional Government Advocate requisi­tioned the original record and upon a perusal thereof very fairly stated at the bar that the order of the Additional Chief Metropolitan Magistrate was not brought to the notice of the Detaining Authority, nor was it brought to its notice that an application for bail was moved by the petitioner in Sessions Court on 25.4.90 as stated in paragraph 8 of the writ peti­tion. It is true that the Learned Sessions Judge rejected the bail application on 14.5.90 subsequent to the making of deten­tion order, but the detenu being already in jail, the Detaining Authority ought to have applied its mind to the fact as to whether there was any possibility of the detenu being released on bail in the aforesaid crime case, in respect of which his bail application was rejected by the Add). Chief Metropolitan Magistrate, Kanpur Nagar on 24.4.90. It is only if there was possibility of the detenu being released 'on bail in the said case, the Detaining Authority could have formed the opinion, though subjectively, that upon being released from jail detenu might act in any manner prejudicial to the maintenance of the public order within the meaning of Section 3 (2) of the Act. The bail application was rejected by the Additional Chief Metropolitan Magistrate, Kanpur Nagar on 24.4.90 i.e. to say 5 days before making of the detention order and there being no material on the record that any applica­tion for bail was moved before the Sessions Court, the Detaining Authority would not have legitimately formed an opinion that the petitioner was likely to be released from jail and that upon being so released He would indulge in acts of communal riots etc. resulting in public disorder. In the detention order dated 29.4.1990, the Detaining Authority has placed reliance upon the bail application dated 21.4.1990, a copy of which was supplied to the detenu as enclosure no. 12 along with the grounds of dentention. But this application as stated hereinbefore was rejected on 24.4.1990, whereas the detention order was made on 29.4.1990. The application for bail moved before the Additional Chief Metropolitan Magistrate was thus wholly irrelevant for the purpose of making detention order on 29.4.1990. What might be relevant, is the application dated 25.4. 1990 moved for bail before the Sessions Court, but it was admittedly not placed before the Detaining Authority. In view of this the subjective satisfaction arrived at by the Detaining Authority for the purposes of making detention order under Sub-Section (3) read with Sub-Section (2) of Section 3 of the Act cannot be said to be a genuine and bonafide satisfaction at all. The detention order and the continued detention of the petitioner pursuent to the said detention order are- illegal and unauthorised in law. 14. In N. Meera Rani y. Governmeni of Tamilnadu, Supreme Court has held:-