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.
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 3 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