MOHAMMAD ASLAM BADRUDDIN SHAIKH Vs. S.K. BAPAT

JUDGEMENT

(1.) THE only important point which is to be decided in this criminal writ petition is as to whether failure on the part of respondent No. 2, the State Government, to send the document on the basis of which the grounds of detention were formulated vitiate the order of detention on the ground of non compliance of Section 3(5) of the National Security Act, 1980.

(2.) THE petitioner -detenu was served with the order of detention on November 25, 1992 (which was dated November 5, 1992, passed by the Commissioner of Police respondent No. 1, under Section 3(2) of the National Security Act. 1980). Mr. Tripathi, appearing on behalf of the petitioner -detenu, contended in his petition, more particularly in ground No. 5(J) at page 7 of the petition, that respondent No. 2 after its approval failed to send the documents on the basis of which the grounds of detention were formulated and, therefore, it was not possible for respondent No. 3 Union of India, to exercise its power under Section 14 of the National Security Act, 1980, effectively. It is. therefore, further contended that since respondent No. 2 failed to send the aforesaid documents to respondent No. 3, the right of the petitioner to get an effective order in his favour has been snatched and, therefore, the impugned order of detention has become illegal as the same was in contravention of the mandate under Section 3(5) of the National Security Act, 1980.

(3.) WE have also gone through the affidavit filed by respondent No. 3 which is at page 81 of the petition. The said affidavit is filed by one Ishwar Singh, Desk Officer, Ministry of Home Affairs, Government of India, New Delhi. In paragraph 3 of the affidavit he refers to the averments made by the petitioner in ground No. 5(J) of the petition. However, in the entire affidavit it is not stated that respondent No. 3 received the relevant documents from respondent No. 2 on the basis of which the grounds of detention were formulated against the petitioner -detenu. After going through the aforesaid factual position it is clear that in this particular case after passing the order of detention on November 5, 1992 the State Government sent only the grounds of detention to respondent No. 3 unaccompanied by the documents on the basis of which the grounds of detention were formulated against the petitioner -detenu. On the basis of the aforesaid facts it was argued on behalf of the petitioner -detenu that the failure on the part of respondent No. 2 to send the documents on the basis of which the grounds of detention were formulated, vitiated the order of detention dated November 5, 1992.