# Abbas Ansari v. Adhikshak Janpad Karagar, Kasganj & Ors

- **Citation:** (2024) 2 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Habeas Corpus Writ Petition No. 1002 of 2023
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abbas-ansari-v-adhikshak-janpad-karagar-kasganj-ors-51322
- **Pages:** 6

## Headnote

G.A.,
A.S.G.I.,
Ms.
Annapurna
Singh
Chandel

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 10, 11, 12(1) &
13 - Petitioner challenged detention order dated
18.09.2023 under Section 3(2), confirmed on
02.11.2023 for three months, and extended on
11.12.2023 for six months. Court held: (1)
Confirmatory order under Section 12(1) is final;
St. Government lacks authority to review or
extend it (Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003; Ameena
Begum Vs St. of Telangana, (2023) 9 SCC 587).
(2) If a specific period is prescribed in the
confirmatory order, detention is valid only for
that period; if no period is specified, detention
may extend up to 12 months per Section 13. (3)
Confirmatory order of 02.11.2023 specified
three months; extension order of 11.12.2023
was illegal. (4) Detention beyond three months
from 18.09.2023 was unlawful. Extension order
set aside; petitioner to be released forthwith
unless required in another case. (Paras 7-9)

Writ Petition Allowed.

Case Law Cited:

## Text

2 All. Abbas Ansari Vs. Adhikshak Janpad Karagar, Kasganj & Ors.
117
jurisdiction and may direct the parties to
approach the appropriate legal forum.

26. The legal position in this regard
has been considered by this Court in a
recent judgment in Ujaif @ Noor Alam and
others Vs. State of UP and others3.

27. In the present case, the custody of
the petitioner No. 1, corpus (a minor of
aged about seven years), is presently with
his mother. The material facts do not, in
any manner, suggest that it is a case of
illegal detention, and in view thereof, the
present petition seeking a writ of habeas
corpus would not be entertainable.

28. As regards the claim for custodial
rights, it is always open to the parties to
avail the appropriate remedy for the
purpose before the proper forum.

29.

The
observations
made
hereinabove are prima facie in nature and
the same would be without prejudice to the
rights and contentions of the parties, which
may be agitated in appropriate proceedings.

30. The rule nisi issued earlier is
discharged.

31. The petitioner No. 1 (corpus),
would go alongwith the respondent No. 8,
to the place from where he has been
brought.

32. The habeas corpus petition stands
dismissed.
----------
(2024) 2 ILRA 117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2024

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 1002 of 2023

Abbas Ansari ...Petitioner
Versus
Adhikshak Janpad Karagar, Kasganj & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Abhishek
Kumar Mishra, Sri Dayashankar Mishra (Sr.
Advocate)

Counsel for the Respondents:
G.A.,
A.S.G.I.,
Ms.
Annapurna
Singh
Chandel

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 10, 11, 12(1) &
13 - Petitioner challenged detention order dated
18.09.2023 under Section 3(2), confirmed on
02.11.2023 for three months, and extended on
11.12.2023 for six months. Court held: (1)
Confirmatory order under Section 12(1) is final;
St. Government lacks authority to review or
extend it (Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003; Ameena
Begum Vs St. of Telangana, (2023) 9 SCC 587).
(2) If a specific period is prescribed in the
confirmatory order, detention is valid only for
that period; if no period is specified, detention
may extend up to 12 months per Section 13. (3)
Confirmatory order of 02.11.2023 specified
three months; extension order of 11.12.2023
was illegal. (4) Detention beyond three months
from 18.09.2023 was unlawful. Extension order
set aside; petitioner to be released forthwith
unless required in another case. (Paras 7-9)

Writ Petition Allowed.

Case Law Cited:

1. Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003 (Paras 4, 7,
8)

2. Ameena Begum Vs St. of Telangana, (2023) 9
SCC 587 (Paras 4, 8)
118 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Cherukuri Mani Vs St. of A.P., (2015) 13 SCC
722 (Paras 5, 7)

4. Abdul Razak Vs St. of Karn., ILR 2017 Kar
4608 (FB) (Para 7)

5. Sunil Chachuda Vs St. of U.P., Habeas Corpus
Writ Petition No. 1046 of 2023 (Para 8)

(Delivered by Hon'ble Anish
Kumar Gupta, J.)

1. Heard Sri Dayashankar Mishra,
learned Senior Counsel assisted by Sri
Abhishek Mishra and Sri Chandrakesh
Mishra
for
the
petitioner,
learned
Additional Advocate General, Sri P.C.
Srivastava, assisted by Sri J.K. Upadhyaya
and Shri Vikas Sahai for the State and Ms.
Annapurna Singh Chandel, learned counsel
on behalf of the Union of India.

2. The instant writ petition has been
filed seeking quashing of the impugned
detention order dated 18.9.2023 passed by
the respondent no. 2-District Magistrate,
Chitrakoot under section 3(2) of the
National Security Act, 1980 (hereinafter
referred as 'the Act, 1980'), which was
subsequently confirmed by the State
Government vide order dated 2.11.2023 for
a period of three months from the date of
the detention of the petitioner i.e. from
18.9.2023. Thereafter, the said detention
order was again extended on 11.12.2023 by
the State Government for a period of six
months with effect from 18.9.2023.

3. The facts, in brief, are that the
petitioner herein was detained vide order
dated 18.9.2023 passed by the District
Magistrate- Chitrakoot, under Section 3(2)
of the Act, 1980 having been authorised
under Section 3(3) of the Act, 1980. The
said order was approved by the State
Government under Section 3(4) of the Act,
1980 on 25.9.2023 and the matter was
referred to Advisory Board. After receiving
the report from the Advisory Board, the
said detention order was confirmed in
terms of Section 12 (1) of the Act, 1980 by
the
State
Government
on
2.11.2023
whereby the petitioner was detained for a
period of three months from the date of
initial detention order i.e. 18.9.2023. The
detention of the petitioner herein was again
extended vide order dated 11.12.2023 for a
period of six months from the date of initial
detention.

4. Learned counsel for the petitioner
contends that since the order dated
2.11.2023 passed under Section 12(1) of
the Act, 1980 is a final order, the State has
no right to review the said order in terms of
provisions of Section 12 of the Act, 1980,
therefore, the order extending detention of
the petitioner is without any authority of
law and could not be sustained. Therefore,
the detention of the petitioner herein in
terms of order dated 11.12.2023 after the
expiry of three months from the date of
initial detention is illegal and therefore, the
petitioner is liable to be released forthwith.
In support of his contentions, learned
counsel for the petitioner relied upon the
judgement of the Apex Court in Pesala
Nookaraju vs. The Government of Andhra
Pradesh & others reported in 2023 SCC
OnLine SC 1003 and Ameena Begum vs.
The State of Telangana and others
reported in (2023) 9 SCC 587.

5. Per contra, learned A.G.A. submits
that in view of the judgement of the Apex
Court in Cherukuri Mani v. State of A.P.,
reported in (2015) 13 SCC 722, the State
Government could not have passed an
order of detention at a time for more than a
period of three months, therefore, initially
the order dated 2.11.2023 was passed for
2 All. Abbas Ansari Vs. Adhikshak Janpad Karagar, Kasganj & Ors.
119
detention of the petitioner herein for a
period of three months and subsequently,
the same was extended vide order dated
11.12.2023. Therefore, there is no illegality
either in the initial detention order dated
18.9.2023 and the confirmatory order dated
2.11.2023 and the subsequent extension
order dated 11.12.2023 by which the
detention of the petitioner herein was again
extended for a period of six months from
the date of the initial detention i.e.
18.9.2023.

6. To appreciate the submissions
made by learned counsel for the parties, it
will be relevant to go through the scheme
of the Act with regard to the detention of a
person under the National Security Act,
1980. It will be relevant to note that as per
the provisions of Section 3(2) of the
Act,1980 if the Central Government or the
State Government, as the case may be, if is
satisfied in respect of any person with a
view to prevent him from acting in any
manner prejudicial to the maintenance of
public order and it records its satisfaction
that it is necessary so to make an order,
then, it can pass an order directing that such
a person be detained. As per Section 3(3) of
the Act,1980 the State Government may
delegate such powers of detention to the
District Magistrate or the Commissioner of
Police. In view of such delegation of the
powers, the District Magistrate or the
Commissioner of Police, as the case may
be, is empowered to pass an order under
Section 3(2) of the Act,1980. Such
delegation of powers to the District
Magistrate or the Commissioner of Police
shall not be made at a given point of time
for a period exceeding three months. As per
Section 3(4) of the Act,1980 the officer
who is delegated power of detention under
Section 3(3) of the Act,1980 is directed to
forthwith report the fact of such detention
to
the
State
Government
concerned
alongwith grounds of such detentions and
no such order shall remain in force for
more than 12 days, unless it is approved by
the concerned State Government. When the
order of approval by the State Government
is passed within the aforesaid period of 12
days, the State Government shall report the
fact of such detention within 7 days from
the date of approval of detention to the
Central Government together with the
grounds of detention and other relevant
particulars. As per Section 10 of the
Act,1980 the concerned Government is
mandated to place the matter within a
period of three weeks before the Advisory
Board constituted by it in terms of Section
9 of the Act, 1980 alongwith grounds of
detention and other relevant documents. As
per Section 11 of the Act, 1980 the
Advisory Board, after considering the
material placed before it and after calling
for such other information as it may deem
necessary and also after hearing the
detenue, if he denies to be heard, shall
submit
its
report
to
the
concerned
Government within 7 weeks from the date
of detention of the person concerned. The
Advisory Board shall also record its
satisfaction whether there is or not any
sufficient cause for the detention of the
concerned person. After receipt of the
report of the Advisory Board the concerned
Government may pass an order confirming
the detention order and may continue the
detention of the persons concerned for such
period as it thinks fit. In terms of Section
13 of the Act, 1980, maximum period of
detention under the provisions of the Act,
1980 shall be 12 months from the date of
detention.

7. In Cherukuri Mani (supra), relied
upon by the learned A.G.A. , the Apex
Court relying upon the proviso to Section
120 INDIAN LAW REPORTS ALLAHABAD SERIES
3(3) had held that the State Government
cannot pass the confirmatory order under
section 12(1) beyond the period of three
months at a time. The said judgement in
Cherukuri Mani (Supra), has been
overruled by the Apex Court in a recent
judgement of the Apex Court in Pesala
Nookaraju (supra), and has held as under :

"42. Hence, Article 22(4)(a) in
substance deals with the order of detention
and has nothing to do with the delegation
of the power of detention by the State
Government to an Officer as stipulated
under Section 3(2) of the Act. In fact, under
Section 9 of the Act, the State Government
has to refer the matter to the Advisory
Board within three weeks from the date of
detention, irrespective of whether the
detention order is passed under Section
3(1) or Section 3(2) of the Act and the
Advisory Board has to give its opinion
within seven weeks from the date of
detention. That would totally make it ten
weeks. As stipulated in Article 22(4)(a) of
the Constitution, if in a given case, once the
Advisory Board gives its opinion within the
stipulated period of three months, then in
our view, Article 22(4)(a) would no longer
be applicable. Thus, Article 22(4)(a)
applies at the initial stage of passing of the
order of detention by the State Government
or by an officer who has been delegated by
the State Government and whose order has
been approved by the State Government
within a period of twelve days from the date
of detention and not at the stage subsequent
to the report of the Advisory Board.
Depending upon the opinion of the
Advisory Board, under Section 12 of the
Act, the State Government can revoke the
order of detention and release the detenu
forthwith or may confirm the detention
order and continue the detention of the
person concerned for any period not
exceeding the maximum period of twelve
months, which is stipulated in Section 13 of
the Act. Therefore, when the State
Government passes a confirmatory order
under Section 12 of the Act after receipt of
the report from the Advisory Board then,
such a confirmatory order need not be
restricted to a period of three months only.
It can be beyond a period of three months
from the date of initial order of detention,
but up to a maximum period of twelve
months from the date of detention.

43. We reiterate that the period of
three months stipulated in Article 22(4)(a)
of the Constitution is relatable to the initial
period of detention up to the stage of
receipt of report of the Advisory Board and
does not have any bearing on the period of
detention, which is continued subsequent to
the confirmatory order being passed by the
State Government on receipt of the report
of the Advisory Board. The continuation of
the detention pursuant to the confirmatory
order passed by the State Government
need not also specify the period of
detention; neither is it restricted to a
period of three months only. If any period
is specified in the confirmatory order, then
the period of detention would be upto such
period, if no period is specified, then it
would be for a maximum period of twelve
months from the date of detention. The
State Government, in our view, need not
review the orders of detention every three
months
after
it
has
passed
the
confirmatory order.

44. Thus, in our view, the period
of three months specified in Article
22(4)(a) of Constitution of India is
relatable to the period of detention prior to
the report of the Advisory Board and not
to the period of detention subsequent
thereto. Further, the period of detention in
terms of Article 22(4)(a) cannot be in force
for a period beyond three months, if by
2 All. Abbas Ansari Vs. Adhikshak Janpad Karagar, Kasganj & Ors.
121
then, the Advisory Board has not given its
opinion holding that there is sufficient
cause for such detention. Therefore, under
Article 22(4)(a), the Advisory Board would
have to give its opinion within a period of
three months from the date of detention and
depending upon the opinion expressed by
the Advisory Board, the State Government
can under Section 12 of the Act, either
confirm the order of detention or continue
the detention of the person concerned for a
maximum period of twelve months as
specified in Section 13 of the Act or release
the detenu forthwith, as the case may be. If
the order of detention is confirmed, then the
period of detention can be extended up to
the maximum period of twelve months from
the date of detention. With respect, we
observe that it is not necessary that before
the expiration of three months, it is
necessary for the State Government to
review the order of detention as has been
expressed by this Court in Cherukuri
Mani
(supra).
The
Act
does
not
contemplate a review of the detention
order once the Advisory Board has opined
that there is sufficient cause for detention
of the person concerned and on that basis,
a confirmatory order is passed by the State
Government to detain a person for the
maximum period of twelve months from
the date of detention. On the other hand,
when under Section 3(3) of the Act, the
State Government delegates its power to
the District Magistrate or a Commissioner
of Police to exercise its power and pass an
order of detention, the delegation in the
first instance cannot exceed three months
and the extension of the period of
delegation cannot also be for a period
exceeding three months at any one time.
[See: Abdul Razak v. State of Karnataka,
ILR 2017 Kar 4608 (FB)]"
(Emphasis Supplied)

8. Following the judgement in Pesala
Nookaraju (supra), in Ameena Begum
(supra), the Apex Court has held that the
State Government need not review the
orders of detention every three months after
it has passed the confirmatory order.

12. This Court has also recently
dealt with elaborately this issue in Habeas
Corpus Writ Petition No. 1046 of 2023
(Sunil chachuda Vs. State of U.P. and
others) and has following the judgement of
the Supreme Court in Pesala Nookaraju
(supra) vide judgement dated 29.1.2024
held that once the confirmatory order of
detention passed under Section 12 (1) of
the Act is a final order, the State
Government has no authority to review its
order. If in the confirmatory order any
particular period of detention is prescribed
by the State Government such detention
order is valid only for that period. If no
period of detention is prescribed in an order
passed under Section 12 (1) of the Act,
then, such detention will be for a maximum
period of 12 months as prescribed under
Section 13 of the Act. However, once an
order under Section 12 (1) is passed by the
State Government prescribing a period of
detention, the said order cannot be
reviewed or extended
by the
State
Government. Such detention will be over
after the expiry of the period prescribed in
the confirmatory order passed under
Section 12(1) of the Act. The said order
cannot be reviewed or extended any further.
However, the Detaining authority i.e., the
State
Government
or
the
District
Magistrate, may pass a fresh order in terms
of Section 3(2) of the Act, if the
circumstances so demand. Such detention
order has to be confirmed again following
the procedure prescribed under Sections 3,
10, 11 and 12 of the Act.
122 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In the instant case, the confirmatory
order has been passed on 2.11.2023,
whereby the petitioner herein was directed
to be detained for a period of three months
from the initial detention order i.e.,
18.9.2023. Therefore, after the expiry of
three months the petitioner's detention
becomes illegal and he is liable to be
released forthwith. For the reasons stated
above, the writ petition is allowed. It is
declared that the detention of the petitioner
herein subsequent to the expiry of three
months
from
18.9.2023
as
per
the
confirmatory order passed under section
12(1) of the Act, 1980 is illegal and the
subsequent orders extending the detention
of the petitioner herein is also illegal and
not in accordance with law. Therefore, the
order dated 11.12.2023 extending the period
of detention of the petitioner herein is hereby
set-aside.

10. We, therefore, direct the petitioner,
Abbas Ansari (the detenue) to be set at liberty
forthwith unless he is required in any other case.
----------
(2024) 2 ILRA 122
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 1041 of 2023

Jaishree & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Monis, Sri Bhanu Kumar Ratnakar

Counsel for the Respondents:
G.A.
Criminal Law - Habeas Corpus - Hindu
Marriage Act, 1955 - Section 9 - Code of
Criminal Procedure, 1973 - Sections 97 & 98 -
Petitioners sought writ of habeas corpus alleging
illegal detention of petitioner no.1 (wife) by her
maternal uncle, respondent no.4. Court held: (1) Writ
of habeas corpus is an extraordinary remedy, not a
matter of course, requiring a clear prima facie case of
unlawful
detention.
(2)
Petitioner
no.1
left
matrimonial home voluntarily; no material established
illegal detention. (3) Alternative remedies exist under
Section 97 (search for wrongfully confined persons)
and Section 98 (restoration of abducted females) of
CrPC, or Section 9 (restitution of conjugal rights) of
Hindu Marriage Act, 1955. (4) Writ of habeas corpus
not maintainable where facts are disputed or unclear
(Soniya Vs St. of U.P., followed). Petition dismissed;
petitioner no.2 at liberty to pursue other legal
remedies. (Paras 7-14)

Petition Dismissed.

Case Law Cited:

1. Soniya Vs St. of U.P. (Para 6, 12)

2. Manjita Devi Vs St. of U.P. (Para 12)

3. Mohd. Ahmad Vs St. of U.P. (Para 12)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Mohd. Monis, learned
counsel for the petitioners and Sri Pankaj
Saxena, learned AGA-I appearing for the Staterespondents.

2. The present petition has been filed for a
writ of habeas corpus alleging that the petitioner
no.1, wife of the petitioner no.2, is under
illegal detention of the respondent no.4,
who is stated to be the maternal uncle of
petitioner no.1.

3. The case as set up in the petition
indicates that, on 24.07.2023, the petitioner
no.1 left the house of petitioner no.2
alongwith some cash and jewellery. It is