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Raees Alam Alias Kalia v. Union Of India And Others - HABEAS CORPUS WRIT PETITION No. 30152 of 2004  RD-AH 1691 (13 December 2004)
Habeas Corpus Writ Petition No.30152 of 2004
Raees Alam @ Kalia vs. Union of India & others
Hon'ble S. Rafat Alam, J.
Hon'ble O.N. Khandelwal, J.
In the instant petition the sole petitioner has questioned the validity of the order of the District Magistrate, Moradabad dated 26.4.2004 detaining him under the provisions of the National Security Act, 1980 (hereinafter referred to as 'the Act').
Counter and Rejoinder affidavits have been exchanged between the parties and are on record.
We have heard Shri Raj Kumar Khanna, learned counsel for the petitioner, Shri J. Lal, learned Additional Standing Counsel appearing for the Union of India, respondent no.1 and Shri Arvind Tripathi, learned AGA appearing for the State-respondents.
It appears that the petitioner on account of his involvement in case crime no.31 of 2004, under Section 302 IPC, Police Station Mugalpura, District Moradabad and case crime no.30 of 2004, under Sections 307, 452, 504 & 506 IPC, Police Station Mugalpura, District Moradabad is detained under Section 3(2) of the Act. The prejudicial activities of the petitioner is mentioned in detail in the grounds of detention. Briefly stated, the allegation is that on 8.2.2004 the petitioner committed murder of Shri Jitendra Mohan Mishra, a PCO owner, in his shop and on the same day at about 8 pm he along with his associates came to the firm U.S. Overseas situated at Prince Road and inquired about Saleem Mansoori, owner of that firm with the intention to kill him. However, when he could not find the said Saleem Mansoori, he assaulted with fire arms causing several injuries to the security guard, Pooran Nath Bhedi and left the place. The incident was reported to the police station, which was registered as case crime no.30 of 2004.
Learned counsel for the petitioner argued that in case crime no.31 of 2004 in respect of murder of the PCO owner, Jitendra Mohan Mishra, the petitioner has not been named in the FIR and his complicity in the offence is based only on suspicion. In respect of case crime no.30 of 2004 it is contended that the injuries found on the guard, Pooran Nath Bhedi, are simple in nature and was manufactured by the owner of the firm just to rope the petitioner in the alleged offence on account of previous enmity. It is also submitted that a civil litigation in respect of a piece of land is pending before the competent court between the petitioner and the owner of the firm and for that reason he has lodged a false case implicating the petitioner. It is also submitted that the owner of the firm is a hardened criminal and is accused in 22 criminal cases, which are mentioned in his representation, copy whereof is enclosed as Annexure 10 to the writ petition. Learned counsel for the petitioner urged that the impugned order of detention deserves to be set aside on two grounds; firstly, that detaining authority did not communicate the detenu his right to make representation to the State Government and the Central Government; secondly, the detaining authority was aware of the fact that the petitioner is already in jail in connection with the aforesaid criminal cases, despite that he did not record his satisfaction about the imminent possibility of his being released on bail. Learned counsel also argued that the period from 27.5.2004 to 3.6.2004 taken in the disposal of representation by the Central Government has not been explained in its counter affidavit.
On the other hand, Shri Arvind Tripathi, learned AGA opposed the writ petition and sought to argue that the petitioner committed two offences on the same day within a short interval of half an hour and, therefore, such act is bound to disturb the public order. It is also argued that in the order of detention he has been informed about his right to make representation, and his representation by the Central Government is disposed with utmost sincerity inasmuch as only eight days' time has been taken in its disposal, which could not be said to be an abnormal delay.
We have considered the rival submissions made on both sides.
It is settled legal position that in the matter of detention the detenu has a right to make representation not only to the detaining authority but also to the State Government as well as to the Central Government and such right has to be conveyed to the petitioner while passing the order of detention or incorporated in the grounds of detention. In the case of Amir Shad Khan vs. L. Hmingliana, reported in (1991) SCC (Crl.) 946, the Apex Court while considering the provisions of Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, observed as under:
"This clause casts a dual obligation on the Detaining Authority, namely, (1) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently, the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guaranted afforded to the detenu by clause (5) of Article 22 of the Constitution. It is by virtue of this right conferred on the detenu that the detaining authority considers it a duty to inform the appellant detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22 (5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires."
This view was again reiterated by the Apex Court in the case of Kundanbhai Dulabhai Shaikh Vs. District Magistrate, Ahmadabad & others, reported in 1996 SCC (Crl.) 470, where the detenu was detained under Section 3(2) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980, and having considered the provisions contained in Section 8 of that Act which is para materia of Section 8 of the Act, held as under:
"It will be seen that right to represent has been given not only by Article 22 (5) of the Constitution but also by Section 8 of the Act. The right provided under the Act has, therefore, to be treated as an extension of the constitutional right already available to a detenu under Article 22(5). The Legislature has, in fact, given effect to the constitutional right by providing in Section 8 of the Act that the detenu shall have the right of making a representation to the appropriate Government."
Thus, it is settled legal position that the right to make representation against the order of detention flows from Article 22 (5) of the Constitution which confers a valuable right upon the detenu and, therefore, such representation is to be made to the authority who has power to approve, rescind or revoke it under the provisions of the Act. Under Section 14 of the Act, the Central Government has power to revoke or modify the order of detention and, therefore, this being the position, the detaining authority has to communicate this valuable right of the detenu while passing the order of detention and the absence of communication of such rights, amounts to denial of the detenu's guaranteed right which vitiates the detention.
From a close reading of the order of detention and the grounds of detention it is apparent that the detaining authority did not convey the detenu/petitioner that he has a right to make representation to the State Government and the Central Government, which is the mandate of the Constitution. In the grounds of detention it has been stated that the detenu has a right to make representation before the detaining authority/the District Magistrate within twelve days and only thereafter he could make representation to the State Government, Advisory Board and the Central Government, which is not the compliance of the prescription of law. Right to make representation to the State Government or the Central Government does not accrue only after making representation to the detaining authority or after its disposal but the detenu has a right to make representation against the order of his preventive detention directly to the State Government or the Central Government without making representation to the detaining authority i.e. the District Magistrate. Section 8 of the Act provides as under: -
"8. Grounds of order of detention to be disclosed to persons affected by the order - (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as maybe, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."
The word appropriate Government is defined in Section 2 of the Act, which provides that if the order of detention is made by the State Government or by an officer subordinate to it, the appropriate Government would be the State Government and where the order of detention is by the Central Government or by its officers the appropriate Government would be the Central Government.
In the case in hand the order of detention was passed by the officer authorised by the State Government i.e. the District Magistrate and, therefore, the State Government would be the appropriate authority. Therefore, in view of the provisions contained in Section 8 of the Act and also in view of the constitutional safeguard under Article 22 (5) of the Constitution it was obligatory on the part of the detaining authority to communicate the detenu about his such valuable right, failure of which vitiates the order of detention.
The second point urged on behalf of the petitioner is that the Detaining Authority has not recorded his satisfaction in the grounds of detention that there was every possibility of the petitioner/detenu being enlarged on bail is no more res integra and is concluded by a catena of judgments of the Apex Court wherein it has been held that where a detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani Vs. Government of Tamil Nadu, AIR 1989 SC 2027, Dharmendra Suganchand Chelawat and another vs. Union of India and others, AIR 1990 SC 1196 and Union of India vs. Paul Manickan and another, (2003) 8 SCC 342.)
In the case in hand, it is apparent from a perusal of the grounds of detention and the order of detention that the detaining authority failed to record his satisfaction that there is imminent possibility of the petitioner being enlarged on bail and thus, in the absence of such satisfaction the impugned order of detention is vitiated.
The third contention regarding delay in the disposal of the representation by the Central Government has also force. In para 5 of the counter affidavit filed on behalf of the Central Government it has been admitted that the representation of the petitioner dated 22.5.2004 was received by respondent no.1 on 27.5.2004 and was rejected on 1.6.2004. However, the counter affidavit is silent as to what steps were taken in between 27.5.2004 to 1.6.2004, which ought to have been explained. It is no matter as to how many days have been taken and whether the representation was disposed of within the short span of time or took a longer time, but it is to be seen as to whether the period taken in the disposal has been explained in the counter affidavit or not. Even the longer time consumed in the disposal of the representation can be explained in the counter affidavit and if found satisfactory, it would have no impact on the continued detention. Even shorter delay in the absence of any explanation in the counter affidavit as to how it has been caused, would be fatal, and would vitiate the order of detention.
The Apex Court in the case of Rajammal Vs. State of Tamil Nadu & others, reported in 1999 SCC (Crl) 93, observed as under:
"The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So that test is not the duration or range of delay, but how it is explained by the authority concerned."
As noticed above, in the instant case no explanation has been furnished, which is fatal and vitiates the continued detention of the detenu.
In view of the aforesaid discussions the writ petition deserves to be allowed.
In the result, the writ petition succeeds and is hereby allowed. Respondents are directed to set the petitioner at liberty forthwith, if he is not required to be detained in any other matter. There shall be no order as to costs.
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