JUDGMENT
O.P. Jain, J.
1. Petitioner Ali Akhtar has filed this Habeas Corpus Petition against the order of detention (Annexure 1) dated 21st July, 1998 passed by District Magistrate, Azamgarh under Section 3(2) of National Security Act of 1980 (hereinafter called the Act). The grounds of detention supplied to the petitioner are given in Annexure 1A. A perusal of the grounds shows that on 9th May, 1998 one Raj Kumar Singh along with his friend Ram Badan Singh alias Ramai was going on Rajdoot Motor cycle No. URX 7747 from Bilariaganj to his village Bagahi Dand. At about 300 p.m. when the motor cycle reached village Khalitpur Bazar, petitioner Ali Akhtar along with companions Ashfaq Master, Salam, Jafar Pradhan and Sarfuddin armed with unlicensed pistols stopped the motorcycle and fired at Raj Kumar Singh, who died. Ali Akhtar and his companions made a murderous assault on Ram Badan Singh alias Ramai and indiscriminately fired their pistols. Due to daring broad day light murder and the firing of gun-shots there was a commotion at Khalitpur and the pedestrians and persons going on vehicles fled away. The shop-keepers started closing their shops and an atmosphere of fear and terror was created in the locality the public was agitated and the relations between the two communities were affected. People belonging to Hindu community resorted to “Chakka-jam” and the public order was adversely affected.
2. A First Information Report was lodged by Kishum Dev Singh at P.S.Bilariaganj and a case under Sections 147/148/149/307/302, I.P.C. was registered by the police. The accused was arrested and charge – sheet against them was filed on 25th June, 1998.
3. We have heard Sri Sarvesh, learned counsel for the petitioner, Sri A.K.Tripathi, Learned A.G.A.on behalf of the State and Sri Chandra Prakash for Union of India and have gone through the record.
4. The First Information Report lodged by Kishum Dev Singh is Annexure-2 and its persual shows that in the Holi festival preceding the day of the incident there was some communal disturbance between the Hindus and Muslims of the locality because “Abeer” was applied to a person who objected to it. In this communal incident two persons belonging to Muslim community and one person belonging to Hindu community lost their lives. A report of the communal violence was lodged by Raj Kumar Singh, who is the victim of the incident dated 9th May, 1998. It is stated in the F.I.R. that after the incident on the Holi festival the petitioner and his companions were in the lookout of a chance to kill Raj Kumar Singh.
5. Learned counsel for the petitioner has argued that the detention order is based on a solitary incident which may affect the law and order but does not affect public order. It was also argued that present petitioner Ali Akhtar had nothing to do with the earlier incident at the time of Holi festival.
6 In our opinion, this argument is not available to the petitioner because in respect of the same incident dated 9th May, 1998 and on the basis of the same F.I.R. a detention order was passed against one Ashfaq Master, who is named in the present F.I.R. The detention of Ashfaq Master was challenged in Habeas Corpus Petition No. 28574 of 1998, Ashfaq Master v. State of U.P. decided by this Court on 13th January, 1999. Sri Sarvesh, learned counsel for the petitioner has very fairly made a photocopy of the judgment dated 13.1.99 available to us. A persul of the judgment shows that the above contention was repelled with the following observations:
We, however, feel it difficult to accede to the contention advanced on behalf of the petitioner. It is because that the incident indicated in the ground of detention is not to be considered in isolated manner, the background of the indident is also important. It is then only that the impact of present incident on the members of the two communities namely Hindus and Muslims, can be appreciated. It also appears from perusal of the First Information Report that originally the dispute started with the applying of “Abeer” (dry colour) on a member of one community which followed the dispute and resulted in death of three persons two on the side of Muslims and one on the side of Hindus. In this background, it need not be emphasised that after the incident occurred in the area in which members of two communities were involved and one person belonging to Hindus was injured, later on who died, needless to say that it would disturb the communal harmony. The result is that it will be matter relating to public order. We do not find any substance in the submission made by the learned counsel for the petitioner.
7. The next contention of Sri Sarvesh is that there has been undue delay on the part of the Central Government in disposing of the representation filed on behalf of the petitioner Ali Akhtar. Sri Sarvesh admits that there has not been any delay on the part of the State Government. But so far as the Central Government is concerned, there is unexplained delay, according to learned counsel. The representation submitted on behalf of Ali Akhtar was received by the Central Government on 31st August, 1998 and it was processed by the Director in the Ministry of Home Affairs on 4th September, 1998. The Joint Secretary dealt with the file on 7th September, 1998 and on the same day he submitted it to the Home Minister, Government of India. The Home Minister rejected the represenation on 25th September, 1998. It is argued on behalf of the petitioner that is delay of nineteen days in disposing of the representation by the Home Minister and no explanation has been given of this delay which is described as inordinate delay by the learned counsel. It is further argued that in the case of Ashfaq Master ( Habeas Corpus Petition No. 28574 of 1998 ) the detention was set aside on the ground of unexplained delay in disposing of the representation of the detenu. We, however, find that in the ease of Asfaq Master the delay was about one month. The papers relating to Asfaq Master were placed before the Home Minister on 29th August, 1998 and the representation was rejected on 25th September, 1998. Thus, there was a delay of about 26 days.
8. In the instant case the delay is of 19 days and in the counter affidavit filed on behalf of the Central Government by Bina Prasad, Under Secretary it is mentioned that there were Gazetted holidays on 5, 6, 12, 13, 19 and 20th September, 1998. In view of the fact that the papers were placed before the Home Minister on 7th September, 1998, the holidays falling on 5th September and 6th September, 1998 may be excluded. Even so, there were four holidays and the Central Government is required to explain the delay of about 15 days only.
9. It may also be mentioned in this connection that even before the receipt of representation the matter was considered by the Central Government on 10th August, 1998 and it came to the conclusion that there was no necessity to interfere with the order of detention approved by the Government of Uttar Pradesh. This order was passed on the basis of the report received from the State Government. When the representation of the petitioner was received the matter was again considered and thereafter some more information was collected by sending crash wireless message dated 14.8.1998. The information was received on 31st August, 1998 and then it was considered by the Director Ministry of Home Affairs and thereafter by Joint Secretary and Home Minister.
10. Learned A.G.A. has cited Smt. Kamalabai v. Commissioner of Police, Nagpur, 1993 (3) JT (SC) 666 : (1993 AIR SCW 2305), which was also a case under National Security Act. In that case the Government of India sent a wireless message on 19.5.92 asking for certain information and again wireless message was given on 13.7.92 and the matter was decided by the Government of India on 15.7.92. It was argued before the apex Court that no explanation has been given regarding the delay between 18.6.92 to 13.7.92. This contention was not accepted and the Court made the following observations:
The delay by itself is not a ground which proves to be fatal, if there is an explanation. However, the short delay cannot be given undue importance having regard to the administrative actions. We do not think that the delay in this case is so inordinate as to warrant interference.
11. However, we find that a more strict view has been taken in some latest cases. In the case of Rajammal v. State of T.N. and Anr. 1999 S.C.C. ( Criminal ) 93 (AIR 1999 S.C. 684 : 1999 Cri. L.J. 826), it has been observed that it is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concered. In the case of Rajammal the file was submitted before the Minister who received it while he was on tour. The file was submitted to the Minister on 9.2.98 and he passed the order on 14.2.98. It was observed by the Court that there is no explanation whatsoever so far as the delay which occurred between 9.2.98 and 14.2.98. It was further observed that merely stating that the Minister was on tour and hence he could pass orders only on 14.2.98 is not a justifiable explanation when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
12. In the case of Parvez v. State of U.P. 1999 (1) JIC 469 (All) there was a delay of fourteen days in the disposal of the representation. The delay remained unexplained and it was held that intermittent holidays are not to be counted in explaining the delay. It was found that the matter was placed before the Home Minister on 11-9-98 and there was no explanation as to in what circumstances for fourteen days the representation, which was ripe for disposal, remained pending. The further detention of the detenue was held to invalid.
13. In the case before us there is unexplained delay of about fifteen days. In the counter affidavit filed on behalf of the Central Government there is not a word about the reasons which caused the delay and, therefore, in our opinion the order of detention has to be set aside.
14. In view of the above discussion, we hold that there has been unexplained delay in considering and disposing of the representation by the Central Government. The writ petition is, thus, allowed and continued detention of the petitioner is held to be invalid. The petitioner shall be set at liberty forthwith unless wanted in any other case.