SARMISTER Vs. SUPERINTENDENT DISTRICT JAIL MUZAFFARNAGAR

JUDGEMENT

(1.) IN this petition, filed under Art.226 of the Constitution of India, the petitioner Sarmister has prayed, inter alia, for a writ in the nature of habeas corpus directing the respondents to produce him in Court; to declare the order dated 26 8 1997 (Annexure 1 to the petition) passed by the District Magistrate, Muzaffarnagar under S.3(2) of the National Security Act (hereinafter referred to as the Act) as unconstitutional and invalid; and to direct his release forthwith. The Superintendent, District Jail Muzaffarnagar, the District Magistrate Muzaffarnagar, State of Uttar Pradesh represented by Principal Secretary Home Department and Union of India represented by the Secretary Ministry of Home affairs are arrayed as respondents in the writ petition.

(2.) SINCE the detention order is challenged before us mainly on the ground of delay in disposal of the petitioner's representation by the State Government as well as the Central Government, it is not necessary to set out in detail the facts of the case. The gist of the relevant facts necessary for appreciation of the contentions raised by counsel for the parties may be stated thus : The petitioner was taken into custody on 14 8 1997 in connection with an incident which took place on 8 3 1997. The incident relates to kidnapping of a boy Shivang Garg aged 4 5 years, son of Sri Rajesh Garg, resident of Charthawal Mohalla Bazar Kalan, a rich businessman, in broad daylight, while he was going to school along with his sisters. When the petitioner was in custody, the District Magistrate, on being satisfied about the necessity of his detention under S.3(2) of the Act, passed the order dated 26th August, 1997. In the grounds of detention, which accompanied the detention order, it was stated, inter alia, that after the aforementioned incident happened on 8 8 1997 the kidnapped boy Shivang Garg was recovered by the police from the house of the petitioner situated in village Nirottampur Mazra, P. S. Titavi, district Muzaffarnagar on 12 8 1997 and his school bag containing books and copies and school dress were also recovered. Petitioner's mother along with other accused persons were arrested on the spot. The petitioner absconded from the scene and surrendered in Court on 14 8 1997. It is further stated in the grounds of detention that on account of the above incident and daredevil manner in which the boy of a rich businessman was kidnapped in broad daylight, people were scared to send their children to school; markets and schools were closed; residents of the locality were agitated and they surrounded the police station and thereby the public order was disturbed. In the grounds of detention the District Magistrate has stated: "From 14 8 1997 you are lodged in judicial custody in district jail Muzaffarnagar after your surrender in the said case and you are trying to be released on bail and your bail application is pending consideration in the competent court; there is every likelihood of your being enlarged on bail and in that event you are likely to act in such manner again which will be adverse to maintaining the public order; therefore, in order to prevent you from acting in a manner prejudicial to public order it is necessary to detain you under the National Security Act". (translated from Hindi).

(3.) 9 1997. The matter was referred to the Advisory Board on 1 9 1997. The Advisory Board gave its report in favour of the detention order on 4 10 1997 which was received by the State Government on 7 10 1997. On consideration of the report of the Advisory Board the State Government confirmed the detention order by order dated 21 10 1997. 4. The petitioner made representations to the State Government as well as the Central Government through the District Magistrate Muzaffarnagar on 2 9 1997. The District Magistrate sent the representations together with this report to the State Government as well as the Central Government on 5 9 1997. The representation and the report was received by the State Government on 6 9 1997. The State Government rejected the representation on 10 9 1997 and the order was communicated to the petitioner through the district authorities on 12 9 1997.