Back
2002 Supreme(All) 1580
HIGH COURT OF ALLAHABAD
Khem Karan, R.C.Pandey
MOHD YUSUF ALIAS MUNDEY
Versus
UNION OF INDIA
Decided On : 29 October 2002
W. P. No. 392 (H/c) of 2002
The main legal point established in the judgment is that the continued detention of a petitioner can be vitiated due to lack of informing the petitioner of his right to make a representation and unexplained delay in disposing of the representation.
Headnote:
Habeas Corpus - National Security Act - The continued detention of the petitioner was found to be vitiated due to lack of informing him of his right to make a representation to the State Government through the detaining authority and unexplained delay in disposing of the representation.
Fact of the Case:
The petitioner challenged the detention order under the National Security Act, based on the incident of cow slaughter and possession of beef. The petitioner argued that his continued detention was unlawful due to lack of information about his right to make a representation and unexplained delay in disposing of the representation.
Finding of the Court:
The court found that the continued detention of the petitioner was vitiated due to the lack of informing him of his right to make a representation and unexplained delay in disposing of the representation. The court held that the petitioner should be released forthwith if not wanted in any other case.
Issues: The issues involved lack of information about the right to make a representation and unexplained delay in disposing of the representation.
Ratio Decidendi: The court held that the detention was unlawful due to the lack of informing the petitioner of his right to make a representation and unexplained delay in disposing of the representation.
Final Decision: The writ petition was allowed, and the continued detention of the petitioner pursuant to the detention order was held to be unlawful. The petitioner was directed to be released forthwith if not wanted in any other case.
2. This habeas corpus petition is directed against the detention order dated 26-5-2002 passed by District Magistrate Gonda, under Section 3 (2) of National Security Act, 1980 and also against the continued detention on the basis thereof.
3. In the grounds of detention, incident dated 26-3-2002 giving rise to Crime No. 69 of 2002, under Section 420 of IPC and under Sections 3, 5/8 Cow Slaughter Act and under Section 3 (1) of U. P. Gangster Act has been made the sole basis for detaining the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It has been stated that on 26-3-2002 the petitioner was found slaughtering cows and was also found in possession of 10 Kgs. of beef, while his application for bail was pending before the competent Court the sponsoring authority namely, the police mooted the proposed dated 9-5-2002/21-5-2002 to the District Magistrate, for detaining the petitioner under the Act of 1980 as it apprehended that if released on bail, the petitioner would further indulge activities prejudicial to the maintenance of public order. The detention order was approved by the State Government and after the opinion of the Advisory Board the State Government passed an order on 4-7-2002, under Section 12 (1) for detaining the detenu for the period of 12 months.
4. Learned Counsel for the petitioner has contended that the continued detention of the petitioner is bad in law for want of informing him of his right to make a representation to the State Government through the detaining authority namely District Magistrate. He says that in the grounds, it has been said that if the detenu wants to make any representation to the detaining authority, he can do so. His contention is this information is not the sufficient compliance of law in absence of information to him that he has right to make such representation to the detaining authorities. Learned Counsel argues that to tell the detenu that he may make representation to the detaining authority, cannot be said to be information to him that he has such a right to make representation. In support of his contention he has referred to a Division Bench case of this Court to Mohd. Shakeel v. State of U. P. and others, 2002 (2) JIC 412 (All) (LB ). Learned Counsel for the State as well as the learned Counsel for the Union of India have not been able to show any law contrary to the Division Bench decision in the aforesaid case. We have perused the grounds of detention. It is true that the simple information to the detenu was that he could make representation to the detaining authority, before the detention was approved by the State Government. In these grounds, the detenu has not been informed that he has a right to make such representation to the detaining authority before the detention order was approved by the State Government. So, we are of the view that the continued detention of the petitioner is vitiated for the aforesaid reasons.
5. His second contention is that the representation dated 6-6- 2002 given to the State Government against the detention order and against the continued detention was not disposed of with all possible promptitude and there was unexplained delay in disposal of the representation. According to him, the representation dated 6-6-2002 reached the District Magistrate on the same date, but he unnecessarily wasted time upto 10-6-2002 by call upon the report from the sponsoring authority namely, the police. His submission is that calling for the comments or report from the sponsoring authority was not required as all the material was before the detaining authority. He says that time consumed by the District Magistrate in calling for the comments of the sponsoring authority on the representation dated 6-6-2002 canno
