# Afsar v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-29
- **Case number:** Habeas Corpus Writ Petition No. 893 of 2019
- **Bench:** Pankaj Naqvi, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/afsar-v-state-of-u-p-ors-45478
- **Pages:** 6

## Headnote

A. Constitution of India - Article 226-
Habeas Corpus petition - National
Security Act (65 of 1980) - Section 3(2)
- Detention - Detenue involved in cow
slaughter case- Released on bail and
subsequently
detained
-
Unexplained
delay
of
19
days
in
furnishing
independant report by Central Agency -
No reason given as to why report from
Central agency was called for - Detention,
illegal. (Para-7,12,13)

Present matter are that the respondent No. 2
passed the impugned order of detention on the
grounds that the petitioner is involved in cow
slaughter case under Section 3/5/5(A)/8 of
Cow Slaughter (Prevention) Act. (Para-6)

Held:- The right of the petitioner under Article
22 (5) of the Constitution of India was seriously
infringed, rendering his detention as illegal.
(Para-13)

Petition allowed. (E-7)

List of cases cited:-

## Text

2 All. Afsar Vs. State of U.P. & Ors.
1369
offence was established for the reason that
it being the circumstantial evidence case,
the motive for committing the offence
forms central theme and unless and until
the motive is proved specifically, the
prosecution shall not be able to bring
home the charge framed against the
accused. This being the present position
when the case becomes weak on the
central point of motive, then the other
considerations fall on the periphery of the
case and that don't substantially go in
favour of the prosecution. The point under
consideration is very much based on fact
whether on the analogy made by the trial
Judge,
the
conclusion
drawn
was
altogether impossible or perverse on the
face or was based on material on record.
We upon careful perusal find that the
conclusion drawn is supported by the
material on record, as such no interference
is required. May be that another alternate
view is also emanating from the same
material but the view and the alternative,
which favours the accused, is to be
preferred by the Appellate Court.

(20) Consequently, this Government
Appeal lacks merit an the same is liable to be
dismissed. We hereby affirmed judgement and
order of acquittal dated 28.03.2001 passed by
Additional
Sessions
Judge,
court
no.8
Muzaffarnagar in Sessions Trial No.475 of
1996, under Sections 364, 302 read with 34,
201 I.P.C., police station- Bhopa, district-
Muzaffarnagar.

(21) The leave to appeal is hereby
refused.
----------
(2020)02ILR A1369

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2020
BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SAMIT GOPAL, J.

Habeas Corpus Writ Petition No. 893 of 2019

Afsar ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Sri Syed Ali Imam

Counsel for the Opposite Parties:
G.A., A.S.G.I., Sri Jitendra Prasad Mishra

A. Constitution of India - Article 226-
Habeas Corpus petition - National
Security Act (65 of 1980) - Section 3(2)
- Detention - Detenue involved in cow
slaughter case- Released on bail and
subsequently
detained
-
Unexplained
delay
of
19
days
in
furnishing
independant report by Central Agency -
No reason given as to why report from
Central agency was called for - Detention,
illegal. (Para-7,12,13)

Present matter are that the respondent No. 2
passed the impugned order of detention on the
grounds that the petitioner is involved in cow
slaughter case under Section 3/5/5(A)/8 of
Cow Slaughter (Prevention) Act. (Para-6)

Held:- The right of the petitioner under Article
22 (5) of the Constitution of India was seriously
infringed, rendering his detention as illegal.
(Para-13)

Petition allowed. (E-7)

List of cases cited:-

1. Afsar vs. State of U.P. ,Criminal Misc. Bail
Application No. 28863 of 2019

2. Sonu @ Firoz vs. State of U.P. and others,
Habeas Corpus Writ Petition No. 390 of 2019

3. Rajammal vs. State of T.N. and Another,
(1999) 1 SCC 417
4. K.M. Abdulla Kunhi vs. Union of India,
(1991) 1 SCC 476
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Samit Gopal, J.)

1. Additional Affidavit filed by
respondent No. 2 today in Court is taken
on record.

2. Heard Syed Ali Imam, learned
counsel for the petitioner and Sri Jitendra
Prasad Mishra, Advocate for respondent
No. 2 / Union of India and the learned
A.G.A for respondent Nos. 1, 3, 4 and 5.

3. The present petition has been filed
challenging the order of detention dated
26.07.2019 Annexure -1 to the writ
petition passed by respondent No. 3 vide
order No. 1569 / Nyay Sahayak in exercise
of powers under Section (3) of the
National Security Act, 1980 directing the
detention of the petitioner (Afsar) under
Section 3 (2) of the National Security Act
as a simple prisoner under the supervision
of the respondent No. 4. Counter affidavits
of all the respondents have been filed and
the rejoinder affidavits to the same have
also
been
filed.
This
Court
while
entertaining the petition on 03.01.2020
passed the following order:-

"Heard in part.

Put up in the additional cause
list on 20.1.2020 in order to enable Sri
Jitendra Prasad Mishra, the learned
counsel appearing for Union Of India
to
file
a
supplementary
counter
affidavit along with the alleged report
of the Central Agency, explaining the
delay on a day-to-day basis, from the
receipt of the representation in the
Ministry on 23.8.2019 till its placing
before the Under Secretary (NSA) on
11.9.2019, as averred in the counter
affidavit dated 16.12.2019. Copy of
this order be supplied to Sri Mishra
forthwith."

4. Subsequently, in compliance to
order
dated
03.01.2020
counsel
for
respondent No. 2 placed before us a sealed
envelope and after going through the same
the following order was passed on
20.01.2020:-

"Supplementary counter affidavit
on behalf of respondent no. 2 and a
rejoinder affidavit are taken on record.

Sri Jitendra Prasad Mishra for
respondent no. 2 / Union of India has
placed on record a sealed envelop, which
on our directions, is opened. We have gone
through its contents and do not find the
said document to be either confidential or
of such sensitivity which may put national
security at risk.

We direct the Bench Secretary to
seal the envelop with its contents and hand
over the same to Sri Mishra in the Court
itself.

List on 29.1.2020 on which date
Sri Mishra, learned counsel for respondent
no. 2 shall file an affidavit of a duly
authorized person, bringing the contents of
the envelop on record as also the material
disclosing the satisfaction, if any, by the
officer concerned, forming the basis for
the report."

5. Today an affidavit in compliance
of order dated 20.01.2020 was filed.

6. The facts as emerging in the
present matter are that the respondent No.
2 passed the impugned order of detention
on the grounds that the petitioner is
involved in Case Crime No. 318 of 2018
under
Section
3/5/5(A)/8
of
Cow
Slaughter (Prevention) Act. He was served
with the detention order dated 26.07.2019
on the same date. The State Government
approved
the
detention
order
on
05.08.2019. The petitioner preferred a
2 All. Afsar Vs. State of U.P. & Ors.
1371
representation dated 08.08.2019 which
was submitted on the same day before the
Jail Superintendent, Bulandshahar. The
said representation was then forwarded by
the jail authorities and was received by the
District Magistrate on 09.08.2019 itself.
On 09.08.2019 the District Magistrate
called for comments from the sponsoring
authorities, in compliance of which the
police
submitted
its
comments
on
14.08.2019. The District Magistrate then
rejected the representation on 15.08.2019
on the ground that it was submitted after
the approval of the detention by the State
Government. The representation was then
forwarded on 15.08.2019 to the State
Government which was received therein
on 16.08.2019. The State Government
rejected the same on 28.08.2019. The
Central
Government
received
the
representation
of
the
petitioner
on
23.08.2019 and rejected the same on
12.09.2019. In the meantime, the State
Government
vide
its
order
dated
05.09.2019 confirmed the detention order.

7. Learned counsel for the
petitioner argued that there has been
an inordinate delay by respondent
No. 2 / Union of India in deciding the
representation of the petitioner for
which there is no explanation. He
further stated that the respondent No.
2 received the representation on
23.08.2019 whereas it was rejected
on 12.09.2019 i.e. after about 19 days
of the date of receipt of the same. He
argued that the unexplained delay of
19 days in deciding the representation
of the petitioner by the Union of
India is good enough to allow the
present petition and to set aside the
order of detention and direct the
release of the petitioner forthwith as
there is no justifiable explanation
when liberty of a citizen guaranteed
under Article 21 of the Constitution
of India is violated.

8. Paragraph 5 and 6 of the counter
affidavit dated 16.12.2019 on behalf of
respondent No. 2 attempts to give some
details about the delay in deciding the
representation but one fact which emerges
from the same is that the representation of
the petitioner was received on 23.08.2019,
some enquiry / report was called for by the
said officer from a Central Agency which
was subsequently received and then the
file was placed before the Under Secretary,
N.S.A on 11.09.2019 and later on the said
representation was rejected on 12.09.2019.
Since
the
delay
in
deciding
the
representation was not explained on day to
day
basis
another
affidavit
dated
20.01.2020
titled
as
supplementary
affidavit on behalf of respondent No. 2
was filed in which in paragraph 4 it was
mentioned that the file reached the table of
the
Joint
Secretary
concerned
on
23.08.2019, the Union Home Secretary
then directed to seek an independent report
from the Central Agency on 24.08.2019,
25.08.2019 was a holiday being Sunday,
then on 28.08.2019 a letter followed by a
reminder letter was sent which was again
forwarded on 09.09.2019 to the Central
Agency for seeking the requisite report.
The report of the Central Agency was
received on 11.09.2019 and subsequently
on 12.09.2019 the said representation was
rejected. On the question as to what was
the reason for the officer concerned to
seek a report from the Central Agency, an
additional affidavit dated 28.01.2020 is
filed today disclosing in paragraph 3 the
contents of the report obtained from the
Central Agency. The said report as
obtained has been quoted in paragraph 3 of
the additional affidavit. Even in the
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
present affidavit the officer concerned has
not explained the reason as to why the
report from the said independent agency
was called for as there was no reference of
the petitioner being involved in any
serious or any anti national activity. Even
in the report of the sponsoring officer,
dated 24.07.2019 / Annexure -5 to the writ
petition, the recommendation of the Senior
Superintendent of Police, Bulandshahar
dated 25.07.2019 / Annexure- 3 to the writ
petition and even the grounds of detention
Annexure- 2 to the writ petition, the
perusal of the report of the independent
agency as quoted in paragraph- 3 of the
additional affidavit nowhere gives any
detail of the petitioner being involved in
any serious anti national activity. The
petitioner was granted bail in the case on
which his detention was sought for by the
sponsoring
officer
vide
order
dated
19.07.2019 passed in Criminal Misc. Bail
Application No. 28863 of 2019 (Afsar vs.
State of U.P.) by the High Court. The said
order is Annexure- 12 to the writ petition.
The petitioner could not come out of jail in
the said case after the order granting him
bail and has been detained in the National
Security Act, 1980 on the basis of the
impugned
detention
order
dated
26.07.2019. The delay as is being tried to
be explained by respondent No. 2 in
deciding the representation is wholly
unsatisfactory which vitiates his detention.

9. The Apex Court in Rajammal vs.
State of T.N. and Another (1999) 1 SCC
417 relying upon the decision in K.M.
Abdulla Kunhi vs. Union of India (1991)
1 SCC 476 held as follows:-

"6. Learned counsel also cited
an earlier two Judge Bench decision of
this Court in Raghavendra Singh vs.
Superintendent, District Jail, Kanpur
(1986 1 SCC 650) in which similar delay
of a few days in considering the
representation was found to have vitiated
the detention. That is a case where delay
was held be "wholly unexplained". A three
Judge Bench of this Court in Rumana
Begum vs. State of Andhra Pradesh (1993
Supp. 2 SCC 341) disapproved the delay in
considering the representation on the mere
ground that the representation on the mere
ground that the representation was not
addressed to the Chief Secretary. That was
a case where representation was sent to
the Governor. Hence it was found that
there was unexplained and unreasonable
delay and consequently the detention was
held vitiated. We are reminded of the
following observations made by this Court
in Kundanbhai Dulabhai Sheikh vs.
District Magistrate, Ahmedabad: (SCC p.
203, para 21)

"21. In spite of law laid down
above by this Court repeatedly over the
past three decades, the Executive, namely,
the State Government and its officers
continue to behave in their old, lethargic
fashion and like all other files rusting in
the
secretariat
for
various
reasons
including red tapism, the representation
made by a person deprived of his liberty,
continue to be dealt with in the same
fashion. The government and its officers
will not give up their habit of maintaining
a consistent attitude of lethargy. So also,
this Court will not hesitate in quashing the
order of detention to restore the 'liberty
and freedom' to the person whose
detention is allowed to become bad by the
government itself on account of his
representation not being disposed of at the
earliest."

7.
It
is
a
constitutional
obligation of the Government to consider
the representation forwarded by the detenu
without any delay. Though no period is
2 All. Afsar Vs. State of U.P. & Ors.
1373
prescribed
by
Article
22
of
the
Constitution for the decision to be taken
on the representation the words "as soon
as may be" in clause (5) of Article 22
convey the message that the representation
should be considered and disposed of at
the earliest. But that does not mean that
the
authority
is
pre-empted
from
explaining any delay which would have
occasioned
in
the
disposal
of
the
representation. The Court can certainly
consider
whether
the
delay
was
occasioned due to permissible reasons or
unavoidable causes. This position has
been well delineated by a constitution
Bench of this Court in K.M. Abdulla Kunhi
and B.L. Abdul Khader vs. Union of India
and others (1991 (1) SC 476). The
following observations of the Bench
canprofitable be extracted here:(SCC p.
484, para 12)

"It is a constitutional mandate
commanding the concerned authority to
whom
the
detenu
submits
his
representation
to
consider
the
representation and dispose of the same as
expeditiously as possible. The words "as
soon as may be" occurring in clause (5) of
Article 22 reflects the concern of the
Framers that the representation should be
expeditiously considered and disposed of
with a sense of urgency without an
avoidable delay. However, there can be no
hard and fast rule in this regard. It
depends upon the facts and circumstances
of each case. There is no period prescribed
either under the Constitution or under the
concerned detention law, within which the
representation should be dealt with. The
requirement however, is that there should
not be supine indifference, slackness or
callous
attitude
in
considering
the
representation. Any unexplained delay in
the disposal of representation would be a
breach of the constitutional imperative and
it would render the continued detention
impermissible and illegal."

8. The position, therefore, now is
that if delay was caused on account of any
indifference or lapse in considering the
representation such delay will adversely
affect further detention of the prisoner. In
other words, it is for the authority
concerned to explain the delay, it any, in
disposing the representation. It is not
enough to say that the delay was very
short. Even longer delay can as well be
explained. So the test is not the duration or
range of delay, but how it is explained by
the authority concerned."

10. In the judgment of Rajammal
(Supra) the Supreme Court held that an
unexplained delay of 05 days from
09.02.1998 to 14.02.1998 in deciding the
representation of detenue vitiated his
continued detention. The relevant part of
the said judgment is extracted herein
below:-

"9. What happened in this case
was that the Government which received
remarks
from
different
authorities
submitted the relevant files before the
Under Secretary for processing it on the
next day. The Under Secretary forwarded
it to the Deputy Secretary on the next
working
day.
Thus
there
is
some
explanation for the delay till 9.2.1998.
Thereafter the file was submitted before
the Minister who received it while he was
on tour. The Minister passed the order
only on 14.2.1998. Though there is
explanation for the delay till 9.2.1998, we
are unable to find out any explanation
whatsoever as for the delay which
occurred thereafter. Merely stating that the
Minister was on tour and hence he could
pass orders only on 14.2.1998 is not a
justifiable explanation, when the liberty of
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
a citizen guaranteed under Article 21 of
the Constitution is involved. Absence of
the Minister at the Headquarters is not
sufficient to justify the delay, since the file
could be reached the Minister with utmost
promptitude in cases involving the vitally
important fundamental right of a citizen.

11. We are, therefore, of the
opinion that the delay from 9.2.1998 to
14.2.1998 remains unexplained and such
unexplained delay has vitiated further
detention of the detenu. The corollary
thereof is that further detention must
necessarily be disallowed. We therefore
allow this appeal and set aside the
impugned
judgment.
We
direct
the
appellant-detenu to be set at large
forthwith."

11. From the above judgment of the
three Judge Bench of the Hon'ble Supreme
Court the legal principle which comes out
is that if there is a delay in deciding the
representation of a detenue the same is to
be explained by the concerned authority. It
is not the duration of delay, rather cause
for delay is relevant. The authority is duty
bound to explain delay, if any, in deciding
the representation by demonstrating that it
was actually necessary for the authorities
to work on the same during the intervening
period without which they could not have
effectively dealt with the representation. A
Division Bench of this Court in Habeas
Corpus Writ Petition No. 390 of 2019
(Sonu @ Firoz vs. State of U.P. and
others) quashed the detention order due to
unexplained delay from 22.12.2018 to
27.12.2018 i.e. of 05 days in not
submitting the comments / report called
for from the sponsoring authority. In the
present case from the supplementary
affidavit dated 20.01.2020 it is not evident
that what was the reason that compelled
the officer concerned to call for an
independent report from the Central
Agency. The delay in deciding the
representation for the period 23.08.2019 to
12.09.2019 (19 days) clearly shows that it
was without any explanation.

12. Thus we hold that the delay of 19
days in furnishing the independent report
by
the
Central
Agency
remained
unexplained. The officer dealing with the
representation of the petitioner acted in a
most irresponsible and negligent manner
and has failed to account for the reason as
to why did he call for the report from the
Central Agency.

13. We in view of above discussion
are of the considered opinion that the right
of the petitioner under Article 22 (5) of the
Constitution
of
India
was
seriously
infringed, rendering his detention as
illegal. The petition is allowed. The order
of detention dated 26.07.2019 is quashed.
The petitioner shall be set at liberty
forthwith unless wanted in any other case.
No order as to costs.
----------
(2020)02ILR A1374

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2018

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVINDRA NATH KAKKAR, J.

Habeas Corpus Writ Petition No. 3353 of 2018

Yogesh Verma ...Petitioner(In Custody)
Versus
Superintendent, Meerut & Ors.
 ...Opposite Parties

Counsel for the Petitioner:
Sri Daya Shankar Mishra, Sri Chandrakesh
Mishra, Sri Mohd. Farooq