1 Court no.32 Case :- HABEAS CORPUS WRIT PETITION No. - 36231 of 2009 Petitioner : Sonu Respondent : Union Of India Thru' Principal Secy. & Others Petitioner Counsel : Dr. Arun Srivastava Respondent Counsel : Govt. Advocate,A.S.G.I.,D.K.Tiwari Hon. R.K.Agrawal, J.
Hon. Subhash Chandra Agarwal, J.
This Habeas Corpus Petition has been filed for setting-aside
the order of detention passed against the petitioner Sonu under
Section 3 (2) of the National Security Act dated 21.2.2009 by
District Magistrate, Bareilly.
The detention order was passed on the grounds that on
8.1.2009 at 8 a.m., in pursuance of a secret information, the Police
of P.S. Prem Nagar, district Bareilly, arrested six persons including
the writ petitioner standing in-front of Kudeshiya Phatak, Nainital
Road, Bareilly. 44 currency notes of Rs.100/- denomination were
recovered from the possession of the petitioner. Similarly, fake
currency notes were also recovered from other 5 persons arrested
on the spot. On interrogation, it was revealed that fake currency
notes were being printed at the house of Mahendra Pal Gangwar in
village Simra Keshavpur, Police Station Faridpur, district Bareilly
with the help of computer, scanner etc. Police raided the house of
Mahendra Pal Gangwar, arrested him and on search, computer
monitor and other articles including half printed notes were also
recovered. As a result of these activities, a feeling of doubt and
insecurity was developed in the public mind in respect of genuine
currency notes and country’s economy was also prejudicially
affected. District Magistrate apprehended that the bail might 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 servies and economy of the
Nation, hence it was thought necessary to preventively detain the
petitioner.
We have heard Dr. Arun Srivastava, learned counsel for the
petitioner, Sri Sudhir Mehrotra, learned counsel for the respondent
nos. 2 to 4 and Sri D.K.Tiwari, learned counsel for respondent no.1
2
Union of India.
The learned counsel for the petitioner has confined himself
to one submission that the representation of the petitioner dated
6.3.2009 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 22.3.2009, to the
State Government after obtaining the comments from the D.I.G.
Police, Bareilly. It was submitted that the State Government
received the representation on 23.3.2009 and even rejected the
same on 25.3.2009. 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 30.3.2009. The
representation of detenue was processed on 9.4.2009 at the levels
of under Secretary, Consultant and Joint Secretary and was placed
before the Union Home Secretary who considered the case of the
detenue on 16.4.2009 and the representation of the petitioner was
rejected. The decision of the Central Government was sent by a
wireless message dated 17.4.2009 to Government of U.P and
Superintendent District Jail, Bareilly, U.P informing that the
representation of the petitioner was considered and rejected by the
Central Government on 16.4.2009.
It was further submitted by the learned counsel for the
respondent no.4 that there was no delay in processing the
representation of the petitioner.
The representation of the petitioner was received by the
Central Government on 30.3.2009 and after processing, was put
up before Home Secretary on 15.4.2009. No satisfactory
explanation for this delay of 15 days has been furnished by the
respondent no.4. Counter affidavit filed by Union of India reveals
that despite representation of the petitioner having been received
on 30.3.2009, nothing was done till 9.4.2009. The processing of the
representation started on 9.4.2009. There is no explanation on
record to explain the delay from 30.3.2009 to 9.4.2009.
3
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 15 days in 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 cannot be
justified. 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.
27.1.2010
Gaurav