FAISHAL MALIK Vs. STATE OF U P

JUDGEMENT

(1.) By this petition for a writ of Habeas Corpus under Article 226 of the Constitution, petitioner Faishal Malik questions the validity of his detention under Section 3 of the National Security Act authorised by the District Magistrate, Moradabad vide his order dated 9.8.1983 inter alia on the ground that petitioner's detention has been rendered illegal for non-compliance of the provisions contained in Section 10 of the National Security Act.

(2.) Undisputed acts giving rise to this petition are that the order for petitioners detention was, after being passed on 9.8.1983, served upon him on the same date when he was still in jail custody in connection with the cases under Sections 395/397 Indian Penal Code. The petitioner submitted his representation to the State Government through the Superintendent of Jail on 19th August, 1983. The representation was eventually received by the State Government alongwith the District Magistrate's report dated 1st September, 1983. In the mean time the State Government had already referred the case of the petitioner for consideration by the Advisory Board on 25th August, 1983. However, after receiving the representation of the petitioner on 2nd September, 1983 it placed that representation before the Advisory Board on 3rd September, 1983. Eventually the Advisory Board approved the detention of the petitioner and the State Government also after rejecting the petitioners representation affirmed his detention vide order dated 3-10-1983.

(3.) Section 10 of the National Security Act obliges the appropriate Government to within three weeks from the date of detention of a person, place before the Advisory Board, constituted under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order. It has been the consistent view in this Court that the provisions contained in Section 10 of the National Security Act are mandatory and any non-compliance thereof renders the detention of a person detained under the National Security Act illegal. Facts mentioned by us above clearly indicate that the petitioner was detained on 9th August, 1983. His representation which is dated 19th August, 1983 was placed before the Advisory Board only on 3rd September, 1983 beyond the period of three weeks stipulated by Section 10 of the Act and as such the respondents have violated the provisions of Section 10 of the National Security Act, rendering petitioners detention illegal.