UMA KANT YADAV Vs. STATE OF U P

JUDGEMENT

(1.) PETITIONER , a detenu under the National Security Act, 1980 (hereinafter referred to as the Act), has approached this Court through this criminal misc. writ petition under Art.226 of the Constitution of India for issuance of a writ of mandamus commanding the respondents to release him on short term bail and to quash the order of the State Government dated 15-4-2004 rejecting his application under S.15 of the Act for his temporary release.

(2.) IT appears that the petitioner has been detained under S.3(3) of the Act for the alleged prejudicial activities by the order of the District Magistrate dated 15-3-2004 contained in Annexure - 5 to the writ petition, served on him in the District Jail, Jaunpur on 16-3-2004. He thereafter filed his nomination for contesting Lok Sabha election from the Parliamentary Constituency Machchlishahr in the district of Jaunpur as a Bahujan Samaj Party candidate. He also moved an application / representation under S.15 of the Act on 31-3-2004 before the District Magistrate, Jaunpur for his temporary release to enable him to contest the said election. The said application was rejected vide order dated 1-4-2004 on the ground that the District Magistrate has not been empowered under the Act to grant temporary release. Aggrieved petitioner then preferred Criminal Misc. Writ Petition No. 2328 of 2004 before this Court which was dismissed vide order dated 7-4-2004 with the observation that in the event he moves an application / representation under S.15 of the Act before the State Government for temporary release within three days, the same may be considered and disposed of on merit expeditiously, preferably within a period of one week from the date of filing of such representation. Consequently, the petitioner filed an application before the State Goverment on 9-4-2004 which has been rejected by order dated 14-4-2004 and has been impugned in his petition.

(3.) LEARNED counsel for the petitioner vehemently contended that the order of detention has been passed by the District Magistrate at the behest of the State Government solely with a view to prevent the petitioner from canvassing for his election in his constituency and thus, it would be expedient and in the interest of justice that he may be temporary released till the date of declaration of election result so that he may effectively participate in the ensuing parliamentary election. On the other hand, Sri Ravindra Singh, learned Additional Advocate General, opposed the prayer and submitted that the petitioner has criminal antecedent and is involved in a number of criminal cases and looking to his prejudicial activities his detention was necessary under the law for preventing him from acting in any manner prejudicial to the maintenance of public order. It is submitted that the petitioner instead of challenging the order of detention by Habeas Corpus Writ Petition has filed this criminal misc. writ petition seeking temporary release which cannot be allowed without challenging the order of detention.