MOHAMMAD RAFIQ Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Mohd. Rafiq has impugned the order dated 16-10-2002 passed by Mr. Onkar Nath Mishra, District Magistrate, Siddharth Nagar, (opposite party No.2) detaining him under Section 3(2) of the National Security Act. The detention order, along with the grounds of detention, which are also dated 16-10-2002, was served on the petitionerdetenu on 16-10-2002 itself and their true copies have been annexed as Annexures 1 and 2 respectively to the writ petition.

(2.) The prejudicial activities of the petitioner-detenu impelling the second opposite party to issue the impugned detention order against him, are contained in the grounds of detention. Since, in our view, a reference to them is not necessary for the adjudication of the pleadings contained in paragraphs 10 and 11 of the petition and ground 'N' of paragraph No. 17 thereof, on which, alone this petition deserves to succeed, we are not adverting to them.

(3.) We have heard learned Counsel for the parties. The substance of the pleadings contained in paragraphs 10 and 11 of the petition and the ground 'N' of paragraph 17 thereof, is that although the petitioner made a representation before the authorities i.e. the detaining authority, State Government and Central Government on 29-10-2002, but the same was not decided by them till 30-11-2002 resulting in the impugned detention order being rendered violative of Article 22(5) of the Constitution of India. However, during the course of his submission learned Counsel for the petitioner - detenu restricted this challenge to the delay in disposal of the representation by the Central Government. He also highlighted the inordinate delay on its part in communicating to the petitioner detenu the result of the disposal of the representation, namely, rejection. He contended that although no pleading has been made in the petition in respect of the delay in communication of rejection to the petitioner-detenu but since this point is manifest from the return filed on behalf of Central Government by Mr. Ramesh Kumar it is open to him to canvass it, in view of the ratio laid down in para 2 of the AIR 1981 SC 1126 : 1981 Cri LJ 750 (Harish Pahwa v. State of U. P.) wherein it has been held that the principle of strict pleadings does not apply to habeas corpus petitions and if the material for adjudication of a ground is available absence of its being pleaded would be no impediment in the way of the Court in considering it.