Hon'ble S.C. Agarwal,J.
This Habeas Corpus Petition has been filed for setting-aside the order of detention passed against the petitioner Shahjade under Section 3 (2) of the National Security Act dated 1-4-2009 by District Magistrate, Kaushambi.
The detention order was passed on the grounds that the petitioner and his companions were found on 5.2.2009 at 3.30 p.m. slaughtering cows and bulls. Dead bodies of 33 bullocks and 6 cows, 2 bullocks alive along with knives, chhuries weights and measuring scale were also recovered. Hindus and Muslims in large number assembled on the spot. As a result of these activities, a feeling of anger and fear was developed in the public mind, communal tension was created and public order was disturbed. As the petitioner's bail had been rejected by the Magistrate, the District Magistrate apprehended that the bail might be granted by the Sessions 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 Rajendra Jaiswal, learned counsel for the petitioner, Sri Sudhir Mehrotra, learned counsel for the respondent nos. 1, 2 and 3 and Sri Amit Sinha, 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 22.4.2009, 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 2.5.2009, to the State Government after obtaining the comments from the S.P. Kaushambi. It was submitted that the State Government received the representation on 4.5.2009 and even rejected the same on 6.5.2009. 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 6.5.2009. On 2.6.09 the representation was processed at the levels of under Secretary, Consultant and Joint Secretary who placed the same before the Union Home Secretary on the same day. The Home Secretary considered the case of the detenue on 3.6.2009 and the representation of the petitioner was rejected. The decision of the Central Government was sent by a wireless message dated 5.6.2009 to Government of U.P and Superintendent Central Jail, Naini, Allahabad, U.P informing that the representation of the detenue shahjade was considered and rejected by the Central Government on 3.6.2009.
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 this caused some delay in processing and deciding the representation.
The representation of the petitioner was received by the Central Government on 6.5.2009 but nothing was done till 2.6.2009. No explanation for this delay of 27 days has been furnished by the respondent no.4. The ground that during the relevant period, a large number of representation were received from the State of U.P cannot be said to be a sufficient ground for not taking action for a period of 27 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 the inordinate delay in disposal of the representation by the Central Government has not been adequately and reasonably explained by it. The manner in which the representation of the petitioner remained pending before the Central Government 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.
Order Date :- 4.2.2010 GNY