Kadeer vs State Of U.P. & 3 Others
2017 Latest Caselaw 1312 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Court No. - 40
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 50609 of 2016
 

 
Petitioner :- Kadeer
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Anil Kumar Srivastava,Narayan Singh(Kushwaha)
 
Counsel for Respondent :- G.A.,A.S.G.I.,Smt Raj Kumari Rani
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

The Order of the Court was delivered by

Bala Krishna Narayana,J.- The argument of this case concluded on 17.05.2017. We then made the following order :-

"Heard Sri Anil Srivastava, learned counsel for the petitioner, Smt. Raj Kumar Devi, learned counsel for the Union of India and learned.

We will give reasons later. But we make the operative order here and now.

This habeas corpus writ petition is allowed. The impugned orders dated 29.06.2016, 10.08.2016 and 20.9.2016 passed by respondent no. 1 and 2 are hereby quashed.

The petitioner shall be released forthwith, unless he is wanted in any other criminal case.

There shall however be no order as to costs."

Here are the reasons :- In this writ petition, the validity of the detention of petitioner Kadeer has been challenged and a prayer has been made to issue a writ order direction in the nature of certiorari quashing the impugned orders dated 29.06.2016, 10.08.2016 and 20.09.2016 passed by respondent nos. 1 and 2 (Annexure Nos. 1, 2 and 3 to the writ petition) respectively.

Briefly stated the facts of this case as emerging out from the pleadings of the parties are that on 08.06.2016 Chhotey Lal, S.H.O., P.S. Jawa received information on telephone that cows were being slaughtered in the field of Naubat Singh Engineer in village Amrauli on which SHO Chhotey Lal along with his force immediately proceeded to village Amrauli and on reaching the field of Naubat Singh Engineer he found mutilated body parts of cows, beef and blood spread all over area, a huge crowd of about 400-450 persons had gathered at the place of incident and a feeling of insecurity and hatred had engulfed the members of the two communities of communally sensitive city of Aligarh. The aforesaid gruesome act had totally shattered the public order in the area. On the basis of the written report given by SHO Chhotey Lal with regard to the aforesaid incident at P.S. Jawa, case crime no. 149 of 2016, under Section 3/5/8 Prevention of Cow Slaughter Act was registered against the accused. Additional police force had to be deployed for maintaining law and order in the area. After being arrested on account of his being accused in the aforesaid case, the petitioner was lodged in District Jail, Aligarh. While the petitioner was in District Jail Aligarh he was served with the impugned detention order along with the grounds of detention dated 29.06.2016 (Annexure-1 to the writ petition). U.P. Advisory Board Lucknow approved the detention order on 26.07.2016. The detention order at the first instance was passed for the period of three months which was further extended for a period of 9 months from the actual date of of the petitioner's detention by the State Govt. vide its order dated 21.12.2016 on the recommendation of the District Magistrate, Aligarh dated 20.12.2016. Thereafter on the basis of the recommendation of District Magistrate, Aligarh dated 15.03.2017 the State Govt. by its order dated 31.03.2017 again extended the period of detention for three months.

Upon being served with the detention order the petitioner filed representation against the same before the respondent nos. 1, 2 and 4, true copy of the representation filed by the petitioner has been brought on record as Annexure-13 to the writ petition.

The only ground on which the petitioner has challenged his detention is that the representation made by him before the respondent nos. 1, 2 and 4 has not been disposed of. Specific averment in this regard has been made by the petitioner in paragraph 25 of the writ petition.

In the counter affidavits filed by the respondent no. 1-State of Uttar Pradesh, through Chief Secretary, Government of Uttar Pradesh, Lucknow and respondent no.-2 District Magistrate, Aligarh, it has been categorically stated that the representation made by the petitioner before the District Magistrate respondent no.2 was rejected by him on 21.07.2016 whereas the State Government also considered and rejected the petitioner's representation information whereof was communicated to the petitioner by the State Government through District Authorities by radiogram dated 03.08.2016.

The petitioner's counsel has not disputed that the representation made by the petitioner before the respondent nos. 1, 2 and 3 was duly considered and rejected by them.

We now proceed to examine whether the representation made by the petitioner before the respondent no.4 Union of India has been decided or not.

In paragraph 4 of the counter affidavit filed on behalf of the Union of India respondent no.4, which has been sworn by one Sri Balraj professing himself to be Under Secretary, Ministry of Home Affairs, Govt. of India, New Delhi, it has been stated that a copy of the petitioner's representation along with parawise comments of the detaining authority was forwarded to the Central Govt., Ministry of Home Affairs by the Govt. of U.P.. It has further been admitted in the same paragraph that the petitioner's reprsentation could not be decided by Union of India as the State Govt. failed to submit its report to the Central Govt.

The explanation given on behalf of the Union of India for not deciding the petitioner's representation does not merit any allowances. It is apparent that the present case is a glaring example of lethargic indifference on the part of the Central Govt., it has been observed by the Apex Court in Frances Coralie Mullin Vs. W.C.Khambra, 1980 AIR (SC) 849 that the burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority, which in the present case in our opinion Central Govt. has failed to discharge.

The Apex Court in the case of Jayanarayan Sukul, 1970 AIR (SC) 675, Hon'ble A.N.Ray as his Lordship then was speaking for the Constitution Bench has laid down following four consequences:-

"First, the appropriate authority is bound to give detenu to make a representation and to consider early as possible. Secondly, the consideration of the representation of thedetenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly. there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation 226 considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet will and convenience. Fourthly the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will, send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will ,express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu."

Thus the failure of the Central Govt. to decide the petitioner's representation preferred by the petitioner against the impugned detention order as well as its failure to furnish any satisfactory explanation for the aforesaid inaction on its part, the impugned detention order cannot be sustained and is liable to be set aside.

These are the reasons upon which we quashed the order of detention.

Order Date :- 29.5.2017

Abhishek Sri.