JUDGMENT
R.R.K. Trivedi, J.
1. In both the aforesaid writ petitions, questions of fact and law involved are similar and they can be decided by a common judgment against which learned counsel for the parties have no objection Writ Petition No. 54932 of 1999 shall be the leading case.
2. In both the petitions, petitioners have challenged the orders dated 22nd June, 1999, passed by District Magistrate, Moradabad under Section 3(2) of the National Security Act, 1980, hereinafter referred to as ‘Act,’ under which they have been detained. Petitioners were served the grounds of detention on which basis detaining authority formed his subjective satisfaction for detaining petitioners under the Act.
3. The allegations against petitioners contained in the grounds are that on 1-12-1998, the prominent exporter Sri Inamul Haq s/o late Sri Abdul Latif, r/o 231, Lajpat Nagar, Moradabad was kidnapped by petitioner and his companions in Maruti Car No. D.D.U. 3152 while he was travelling on a Rickshaw and was on way to his firm M/ s. Haq Brothers. A case was registered as Case Crime No. 1217 of 1998, under Sections 364, I.P.C. at Police Station Katghar, district Moradabad. It has been stated that the aforesaid Inamul Haq was kept in confinement for six continuous days by petitioner and his companions. He was terrorised and was released only when his family members paid 20 lacs as ransom. From the aforesaid incident, entire community of exporters and businessmen fell under fear and terror and a sense of insecurity prevailed all over they closed their business establishment and the business in the city was badly affected and lakhs of persons employed in such business establishments were rendered jobless and they faced problem of bread and butter. This incident also adversely affected export of items. Public order in the town was totally disturbed. In ground No. 2, it has been stated that on 6-12-1998 information was received that few miscreants with the amount of 20 lacs realised as ransom for release of Inamul Haq are trying to leave the town. On this information, the Senior Superintendent of Police with the police force was checking the vehicles at Kashipur barrier crossing. At that time, petitioner with his companion Naushad came in a white Maruti car and on seeing the police persons at various points, ran away after hitting the barrier. Police chased petitioner and his companion, who fired at police force with the intention to kill them. The traffic on both sides of the road was stopped and commotion prevailed there police force asked petitioner and his companion to surrender and also fired in reply. On realising that he has been surrounded by police from all sides, petitioner left Maruti car and started running. Petitioner and his companion Naushad were ultimately over powered by the police. On search, an amount of Rs. 50,000/- was recovered from them which was part of Rupees 20 lacs paid as ransom. Police also recovered firearms and cartridges, drugs, one cellular phone and Maruti car which was used for kidnapping Inamul Haq. On the pointing out of petitioner, from dense forest of Tarapur his other companions namely Kadir s/o Kallu, Mohd. Ahmad s/o Mohd. Afzal, Mahendra s/o Satendra Nath, Mohd. Farooq s/o Rais Bux, who were all involved in kidnapping of Inamul Haq, were also arrested. From their possession also illicit fir-arms, cartridges and drugs were recovered. From the house of brother-in-law of Mohd. Ahmad, situated in Mohalla Asalatpura, Police Station Galsaheed, remaining amount of Rs. 19,50,000/- was also recovered at the pointing out of petitioner. On basis of the incident dated 6-12-1998, cases were registered as case Crime No. 1225 of 1998, under Section 307, I.P.C, Case Crime No. 1226 of 1998, under Sections 18/20 N.D.P.S. Act at Police Station Katghar. It is alleged that on account of the activities of petitioner and his companions the traffic on the National Highway going towards Tajpur Road was stopped and it disturbed the public order. In Ground No. 3, it has been stated that on 11th June, 1999, the National body of exporters namely Export Promotion Council for Handicrafts, New Delhi sent a letter to Senior Superintendent of Police, Moradabad by Fax. The body expressed its concern and also informed that the persons accused of kidnapping Inamul Haq are going to be released on bail and if they are allowed to come out, the exporters of Moradabad shall be rendered insecure. A demand was made that adequate security may be provided to exporters of Moradabad. In Ground No. 4, it has been stated that the Sub-Inspector Govind Singh and Constable Devendra Singh of Police Station Katghar gathered information on 11th June, 1999, that petitioners-Abid and Farooq and his companions Kadir, Naushad, Mohd. Ahmad and Mahendra have claimed that they are going to be released on bail soon and after release they will again kidnap Inamul Haq and kill him. On account of this threat a fear has set in among people. This beat information was recorded vide report No. 51 at 10.30 p.m. on 11th June, 1999. The S.O., Police Station, Katghar enquired into this report and found it correct. In Ground No. 5, it has been stated that on 14th June, 1999, the Deputy Superintendent of Police (Intelligence), Moradabad also gave a confidential report to Senior Superintendent of Police, Moradabad that on account of the efforts made by above petitioners and other persons to come out on bail and fear and terror has prevailed and there is a feeling of insecurity. He also recommended that the adequate steps be taken to prevent reoccurrence of such incidents.
4. It has been further stated that the petitioner is a man of criminal nature and is a desperado and on account of his criminal activities, exporters of Moradabad are under fear and terror and feel themselves insecure. A problem of bread and butter has arisen before lacks of persons connected with the business of export which has been adversely affected. The petitioners are in jail in connection with Case Crime No. 1217 of 1998, under Section 364, I.P.C. They are trying to obtain bail and for this purpose have made applications. There is every possibility that the petitioners shall again indulge in similar activities which shall be prejudicial to the maintenance of the public order and in order to prevent petitioner from acting in any manner prejudicial to the maintenance of public order, it has become necessary to pass an order that the petitioners be detained.
5. Petitioners were also informed that under Section 8 of the Act, they have right to make representation against their detention before the State Government, Advisory Board and the Central Government, Representation may be submitted through jail authorities. Petitioners were also informed that they are entitled for personal hearing before the Advisory Board and if they so desire, this fact may also be communicated through jail authorities. The order of detention was approved by State Government on 30th June, 1999, under Section 3(4) of the Act. Approval was communicated to the petitioner on 2nd July, 1999. On same day, the detention order, ground of detention and all other connected papers received from the detaining authority were forwarded to the Central Government which were received on 4-7-1999. Thus the provisions of Section 3(5) of the Act were complied with.
6. Case relating to petitioners was referred to Advisory Board on 2-7-1999. Advisory Board heard the case on 27-7-1999 on which date petitioners personally appeared. Advisory Board gave its opinion on 4-8-1999 that there was sufficient cause to detain petitioners. The State Government then re-examined the matter and confirmed the orders of detention for period of 12 months.
7. Petitioners made representations on 9th July, 1999 which were forwarded to the Central Government as well as to the State Government by District Magistrate with his comments on 16th July, 1999. The representations were received by State Government on 17th July, 1999. Concerned section of the State Government examined the representations on 19th July, 1999. Joint Secretary examined on 20th July, 1999 and on the same day were placed before Special Secretary, Home and Confidential who with his comments submitted to the higher authority for final orders. The representations were ultimately considered and rejected on 21st July, 1999.
8. So far as the Central Governments is concerned, counter-affidavit has been filed by Smt. Bina Prasad, Deputy Secretary, Ministry of Home Affairs, Government of India in paragraph No. 7 where of it has been stated that no representation from or on behalf of the detenu Abid has been received in the concerned desk of the Ministry till date. Hence the question of consideration of the representation does not arise. The counter-affidavit is of 1st February, 2000 which was filed in Court on 18th April, 2000.
9. In respect of petitioner-Mohd. Farooq, in the counter-affidavit filed by Smt. Bina Prasad, Deputy Secretary, Ministry of Home Affairs, Government of India, it has been stated that the representation dated 12th July, 1999 from the detenu along with parawise comments of the detaining authority was received in the Ministry of Home Affairs on 23rd July, 1999 along with letter of the District Magistrate, Moradabad dated 17th July, 1999. The representation, however, could not be taken for consideration up to 19th January, 2000 as it was misplaced in another file. On mistake being detected, the representation was considered and rejected by the Home Secretary on 20th January, 2000.
10. We have heard Sri Arbind Vashistha holding brief of Sri K. K. Arora, learned counsel for petitioner, Sri A. K. Tripathi, learned A.G.A. for respondents No. 2 to 4 and Sri S. M. Mishra for respondents No. 1, Union of India.
11. Learned counsel for petitioners has challenged the continued detention of petitioners on two grounds. The first submission is that in case of petitioner-Abid, the representation was admittedly forwarded by the detaining authority to the Central Government but it has not been decided till date. In the counter-affidavit filed by Central Government it has been stated that the representation has not at all been received. In respect of petitioner-Mohd. Farooq, it has been submitted that the representation though was admittedly received by the Central Government on 23rd July, 1999, it was rejected by Home Secretary on 20th January, 2000 i.e. after about six months. Learned counsel has submitted that the explanation given for the delay is wholly unconvincing and it appears that the matter was taken very casually and unexplained delay rendered the continued detention of petitioners illegal. It has also been submitted that the petitioners have been acquitted in the case on 25th November, 1999 and petitioners are entitled to be released as the very basis for passing the order of detention has become non-existent. Reliance has been placed on Full Bench judgment of this Court in case of Ram Prasad Chaudhary v. State of U.P. 1986 All Cri C 186 : 1986 All LJ 916 (FB). Learned counsel has lastly submitted that the incident took place on 1st December, 1998 whereas the impugned order of detention was passed on 22nd June, 1999 i.e. more than six months and on account of delay live link and nexuses with incident for passing the order with regard to maintenance of public order was lost and the impugned order cannot be legally sustained and is liable to be quashed on this ground also.
12. The learned A.G.A., on the other hand, has submitted that there was no delay in passing the order of detention in view of the subsequent development as clear from the grounds Nos. 3, 4 and 5. It has also been submitted that if grounds existed on the date of order, subsequent acquittal of the detenu in the case will not affect the order of detention. Provisions of Section 5-A of the Act have been relied on for submission that the order of detention can be justified on other grounds. However, learned counsel appearing for respondents could not, in any manner, explain the delay in deciding the representation of petitioners by Central Government.
13. We have carefully considered the submissions of the learned counsel for the parties and we are of the opinion that in view of the fact that the representation of the petitioner-Abid addressed to the Central Government has not, at all, been considered and decided by the Central Government though admittedly it was forwarded to the Central Government, his continued detention has been rendered illegal. In this connection, it may be submitted that on behalf of respondent No. 5, Superintendent, District Jail, Moradabad, Sri A. K. Awasthi, Deputy Jailer, has filed counter-affidavit. In paragraph No. 5, he has stated that the petitioner submitted his representation on 12th July, 1999 and on the same date, it was sent to District Magistrate, Moradabad for further action. In paragraph No. 10 of the writ petition, it has been stated that petitioners submitted sufficient number of copies of representation to respondent No. 5 for being sent to all the authorities mentioned in the grounds of detention, which has not been denied. A true copy of the representation has been filed as Annexure-5 and from perusal of which it appears that it was addressed to Principal Secretary, State Government and Chairman, Advisory Board. The District Magistrate in paragraph No. 7 of his counter-affidavit, has stated that as representation was not addressed to the Central Government, hence he did not send the same to the Central Government. However, in the counter-affidavit filed by Sri R. A. Khan, Under Secretary, Home and Confidential Department, in paragraph No. 3 it has been stated that the petitioner’s representation dated 9th July, 1999 along with parawise comments thereon, was forwarded to the Central Government as well as to the State Government by the District Magistrate vide letter dated 17th July, 1999. The petitioner has claimed that he submitted sufficient copies of the representation for being forwarded to all the authorities mentioned in the grounds which has not been denied. The averments in paragraph No. 3 of the counter-affidavit filed by R. A. Khan and averments in paragraph No. 7 of the counter-affidavit filed by S. K. Gupta, the then District Magistrate, Moradabad are contradictory. The receipt of the representation has not been denied. In the circumstances, we do not find any cogent explanation on the part of the respondents as to how and in what circumstances representation did not reach to Central Government and could not be decided. In our opinion, petitioner is entitled for relief.
14. In case of Mohd. Farooq, however, it is not denied that the representation of the petitioner addressed to the Central Government was received on 23rd July, 1999. However, it could not be considered and decided till 20th January, 2000 i.e. for about six months. The explanation has been given in paragraph No. 8 of the counter-affidavit of Smt. Bina Prasad which reads as under :
15. “That a very large number of detention orders and representations from detenus (about 100 per working day) were received in the concerned desk during the period just prior to the Central Elections in the country. This representation was wrongly filed in another file by mistake. This mistake was detected on 19-1-1999 when a writ petition was received in the matter and the case was put up immediately to Union Home Secretary (who has been delegated powers by the Union Home Secretary to decide such cases). The Union Home Secretary considered the case of the detenu and rejected the representation of the detenu on 20-1-2000.
16. In our opinion, the explanation tendered is wholly unsatisfactory. The circumstances have not been explained in which the representation of petitioner Mohd. Farooq was placed in wrong file. We are also not satisfied that the representation of petitioner could not be taken up on account of large number of representations received from detenus. In this connection also, necessary particulars have not been mentioned. In our opinion, six months delay in deciding the representation rendered the continued detention of petitioner illegal and he is also entitled for relief.
17. As both petitions can be allowed on the above ground of delay in deciding representations, it does not appear necessary for us to enter into consideration of other questions raised before us.
18. For the reasons stated above, both petitions are allowed. As continued detention of petitioners have been found illegal, the respondents are directed to set petitioners-Abid and Mohd. Farooq at liberty forthwith, if their detention is not required in any other case.