Hon. Subhash Chandra Agarwal, J.
This Habeas Corpus Petition has been filed for setting-aside the order of detention passed against the petitioner Ainul Hada under Section 3 (2) of the National Security Act dated 3.3.2009 by District Magistrate, Varanasi.
The detention order was passed on the grounds that on 22.12.2008 at about noon, Akhtar Jamal aged 7 years was kidnapped for ransom while returning from school by the petitioner. The kidnapee was confined in a room at Nakhkhi Ghat. When ransom money was not received, Akhtar Jamal was murdered and naked dead-body was put in a plastic sack and thrown in the pond situated at Dhobi Ghat, Mohalla Kosiya, Police Station Adampur, district Varanasi. The dead-body was recovered by the police at the instance of the petitioner. Case crime no.324 of 2008 was initially registered under Section 364 IPC but subsequently Section 302 and 201 IPC were also added. The eye-witnesses had also seen the petitioner taking Akhtar Jamal with him on a bicycle. Cloths and shoes of the deceased were also recovered at the pointing out of the petitioner. This incident caused great anger and anguish amongst the members of the public and public order was disturbed. 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 order, hence it was thought necessary to preventively detain the petitioner.
We have heard Sri A.K.Singh, learned counsel for the petitioner, Sri Sudhir Mehrotra, learned counsel for the respondent nos. 1 to 3 and Sri Jitendra Nayak, learned counsel for respondent no.4 Union of India.
The learned counsel for the petitioner has confined himself to one submission that the representation of the petitioner dated 16.3.2009 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 2.4.2009, to the State Government after obtaining the comments from the S.S.P. Varanasi. It was submitted that the State Government received the representation on 6.4.2009 and even rejected the same on 11.4.2009. 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 20.4.2009. The representation of detenue was processed 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 14.5.2009 and the representation of the petitioner was rejected. The decision of the Central Government was sent by a wireless message dated 18.5.2009 to Government of U.P and Superintendent District Jail, Varanasi, U.P informing that the representation of the petitioner was considered and rejected by the Central Government on 14.5.2009.
It was further submitted by the learned counsel for the respondent no.4 that there was delay in processing the representation of the petitioner but there was no deliberate casualness in the matter. During the relevant period, a large number of representation were received, especially from the State Government of U.P and the dealing clerk was on medical leave resulting in accumulation of huge backlog of representations and this caused some delay in processing and deciding the representation of the petitioner.
The representation of the petitioner was received by the Central Government on 20.4.2009 and after processing, was put up before Home Secretary on 14.5.2009. No satisfactory explanation for this delay of 24 days has been furnished by the respondent no.4. The grounds that during the relevant period, a 3 large number of representation were received from the State of U.P and the dealing clerk was on medical leave, cannot be said to be a sufficient ground for not taking action for a period of 24 days.
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 24 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 for a 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. 28.1.2010 Gaurav