1 Court no.32. Case :- HABEAS CORPUS WRIT PETITION No. - 32437 of 2009 Petitioner:- Rajvir @ Bhola Respondent :- State Of U.P. & Others Petitioner Counsel :- Anil Srivastava Respondent Counsel :- Govt. Advocate,A.S.G.I./2009/1381,Mansoor Ahamad,Sudhir Mehrotra Hon. R.K.Agarwal, J.
Hon. Subhash Chandra Agarwal, J.
This Habeas Corpus Petition has been filed for setting-aside
the order of detention passed against the petitioner Rajvir @
Bhola under Section 3 (2) of the National Security Act dated 20-1-
2009 by District Magistrate, Baghpat.
The detention order was passed on the grounds that on
10.12.2008, at about 6.30 p.m. at Agarwal Mandi, Tatiri Bazar,
Rajvir @ Bhola and his companions, in order to extort money,
opened fire at Kishan Chand, Sanjay, Raj Kumar, Sumant Prasad,
Nitin, Brajmohan Gupta and Pramod Gupta resulting in the death
of Kishan Chand, Sumant Prasad, Sanjay and Brajmohan Gupta
and injuries to other three persons. As a result of such daring act,
the feeling of fear and panic was developed in the public mind and
public order was distrubed. The District Magistrate apprehended
that the bail would be granted to the petitioner by the Court and
there was apprehension that the petitioner would again involve
himself in the aforesaid criminal activities affecting public orders,
hence it was thought necessary to preventively detain the
petitioner.
We have heard Sri Anil Srivastava, learned counsel for the
petitioner, Sri Sudhir Mehrotra, learned counsel for the respondent
nos. 1, 2 and 3 and Sri Mansoor Ahmad, learned counsel for
respondent no.4.
The learned counsel for the petitioner has confined himself
to one submission that the representation of the petitioner dated 6-
2-2009 which was submitted to various authorities including the
Central Government through jailor, was considered with inordinate
delay by the Central Government.
It was pointed out that the District Magistrate forwarded the
petitioner’s representation with his comments on 26.2.2009, to the
State Government after obtaining the comments from the S.P.
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Baghpat. It was submitted that the State Government received the
representation on 2.3.2009 and even rejected the same on
5.3.2009. This shows that the State Government disposed of the
representation of the petitioner with utter promptness.
In the counter affidavit filed on behalf of Union of India by
the under Secretary, Ministry of Home and Affairs, Government of
India, it was submitted that the representation of the petitioner was
received by the Ministry of Home Affairs on 6.2.2009. After being
processed at the levels of under Secretary and Joint Secretary, the
representation was submitted to the Union Home Secretary, who
considered the same and rejected it. The decision of the Home
Secretary was communicated to the detenue through wireless
message dated 17.4.2009.
In the counter affidavit filed on behalf of the respondent
no.4, it has not been disclosed as to on which date, the
representation of the petitioner was rejected by the Home
Secretary. Only the date of communication of the decision has
been given as 17.4.2009. It can, thus, be inferred that the
representation of the petitioner was rejected by the Central
Government on 17.4.2009. The representation was received by the
Central Government on 6.2.2009. It took Central Government 2
months and 11 days to consider and reject the representation of
the petitioner. No explanation for this inordinate delay has been
given in the counter affidavit.
In Rajammal V. State of Tamil Nadu, AIR 1999 SC 684
where consideration of the representation had been delayed
merely because the Minister was on tour, it was held to be an
unjustified ground for permitting violation of the fundamental rights
of liberty of a citizen guaranteed under Article 21 of the
Constitution, as the said file could easily have been forwarded to
the Minister. The said decision mentions that “absence of Minister
at the Headquarters is not sufficient to justify the delay, since the
file could be reached to the Minister with utmost promptitude in a
case involving the vital fundamental right of the citizen.”
The absence of dealing clerk of NSA Desk in February, 2009
due to long leave and delay in consideration of NSA matters was very
seriously viewed by another Bench of this Court in Pranshu Dutt
Dwivedi Vs. Superintendent District Jail, Fatehgarh, Farrukhabad
and others, 2009 (67) ACC 83.
We find that this inordinate delay of 2 months and 11 days in
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disposal of the representation of the petitioner by the Central
Government has not been adequately and reasonably explained by
the Central Government. We are conscious of the fact that the
allegations against the petitioner are of a very serious nature but
when it is decided to preventively detain a person by depriving him
of his right of personal freedom, the due process of law has to be
observed. The manner in which the representation of the petitioner
remained pending before the Central Government for a very long
period, is shocking to the conscience of the Court. In these
circumstances, we have no option but to quash the continued
detention of the petitioner.
The writ petition is allowed. The petitioner shall be released
forthwith unless wanted in connection with any other case.
12.01.2010
Gaurav