# Aslam Khan v. Superintendent, District Jail, Moradabad and others

- **Citation:** High Court of Judicature at Allahabad #39478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aslam-khan-v-superintendent-district-jail-moradabad-and-others-39478
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
16
(Level-1). In our opinion, the petitioners have
an efficacious and alternative remedy of filing
an objection to the assessment bill and also
filing an appeal against the final bill. In these
circumstances, it is not a fit case for exercise
of our discretionary jurisdiction under Article
226 of the Constitution at this stage.

8. In view of the discussions made above,
the writ petition is dismissed on the ground of
alternative remedy. It is however directed that
if the petitioners file an objection to the
assessment bill within 15 days from today, the
Executive Engineer concerned shall entertain
the same and finalise the assessment case after
giving an opportunity to the petitioners to
state their point of view and in accordance
with law.

9. Office is directed to issue a certified
copy of this order on payment of usual
charges within three days.

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By the Court

1. By means of this writ petition, the
petitioner has challenged detention order
dated
22.7.99
passed
against
him
by
respondent no . 2-District Magistrate,
Jyotibba Phuley Nagar, under section 3 (2) of
the National Security Act and his continued
detention thereunder.

2.
Counter-affidavit
and
rejoinder
affidavit have been exchanged between the
parties. We have heard Mr. D.S. Misra,
learned counsel for the petitioner, Mr.
Mahendra Pratap, learned A.G.A. appearing
of behalf of respondent no. 1,2 & 3 and Mr.
Shesh Mani Misra representing respondent
no. 4-Union of India.

3. Learned counsel for the petitioner has
challenged the impugned detention order only
on the ground that there was inordinate delay
in sending the petitioner's representation
dated 7.8.99 to the Central Government which
was received there on 24.8.99.

4. We have considered the respective
submissions made by learned counsel for the
parties on this point.
1ALL] Aslam Khan V. Superintendent, District Jail, Moradabad and others
17
5. Mr. Mahesh Kumar Gupta, Jailor,
district Jail, Moradabad in his counteraffidavit in paragraph 5, has admitted that
representation of the petitioner was received
on 7.8.1999 and the said representation was
sent to the District Magistrate, Jyotiba Phuley
Nagar on the same day through Special
messenger.

6. In paragraph 11 of his counter-affidavit,
Mr. Ram Saran Singh, District Magistrate,
Jyotiba Phuley Nagar, has submitted that the
representation of the petitioner was received
in his office and the deponent called for police
report. After receiving the police report, the
deponent prepared his parawise comments
and sent it to the State Government without
any fail.

7. Mr. R.A. Khan, Under Secretary, Home
&
Confidential
Department,
U.P.
Civil
Secretariat, Lucknow in paragraph 4 of his
counter-affidavit,
has
stated
that
the
petitioner's undated representation alongwith
parawise comments was forwarded by the
District Magistrate, Jyotiba Phuley Nagar vide
his letter dated 15.8.99 which was received by
the State Government on 16.8.99. The
District Magistrate, Jyotiba Phuley Nagar
directly sent the representation and parawise
comments to the Advisory Board as well as to
the Secretary, Ministry of Home Affairs, New
Delhi vide his letter dated 15.8.99.

8. On behalf of the Union Of India, a
counter-affidavit has been filed by Mr. Sushil
Kumar, under Secretary, Ministry of Home
Affairs, Government of India, New Delhi ,
and in paragraph 7 thereof he has stated that a
representation dated Nil from the detenu
alongwith

parawise comments of the
detaining authority was received by the
Central Government in the concerned desk of
Ministry of Home Affairs on 24.8.99 through
District Magistrate, Jyotiba Phuley Nagar on
behalf of State of Uttar Pradesh vide letter no.
1451(2) /JA/99 dated 15.8.99 and the Union
Home Ministry rejected the representation of
the detenu on 25.8.99.

9. On the basis of the averments made in
the counter-affidavit as indicated above,
learned counsel for the petitioner submitted
that there is no explanation of delay with
affect from 7.8.99 to 15.8.99 and from 15.8.99
to 24.8.99.

10. It is significant to point out here that
the idea behind section 8 of the National
Security Act is that the detenu should have the
earliest opportunity of making representation
against the detention order to the appropriate
authorities and indeed a duty is cast on the
authorities concerned also to take all possible
steps for consideration of the representation of
the detenu at the earliest without any loss of
time.

11. In the present case, the District
Magistrate, Jyotiba Phuley Nagar ought to
have stated in his counter-affidavit that on
what date the representation has been received
and on what date he has forwarded it to the
State Government or Central Government.
But his counter-affidavit is silent on the point
and even the mode of delivery has also not
been disclosed in his counter-affidavit. While
the Jailor in his counter-affidavit has admitted
that the representation of the petitioner has
been received on 7.8.99 and on the same day
he forwarded the same to the District
Magistrate. But the District Magistrate,
Jyotiba Phuley Nagar has not explained the
delay in forwarding the representation of the
petitioner
dated
7.8.99
to
the
Central
Government and thus the delay in forwarding
the petitioner's representation with effect
from 7.8.99 to 24.8.99 remains unexplained,
Though there is no delay on the part of the
Central
Government
in
deciding
the
representation because the representation was
receive in the Ministry of Home Affairs
(Central Government) on 24.8.99 and the
same was rejected on 25.8.99.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
18
12. At this juncture, observations made by
the Constitution Bench of the Apex Court in
K. M.Abdullah Kunhi Versus Union of India
and others (1991 (1) S.C.C.-476, are relevant
which read as under:

"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 word
" as soon as may be" occurring in clause (5)
of Art. 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 breach of
the constitution imperative and it would
render the continued detention impermissible
and illegal".

13. When question of liberty is involved
and that too by means of preventive detention,
it is incumbent of all the authorities to explain
delay in consideration of the representation.
They all have to act as one unit to ensure
earlier decision of the representation of the
detenu. Every step is required to be taken by
each part of the machinery concerned to
facilitate and ensure earliest decision on the
representation of the detenu. In the present
case, the requisite care has not been taken by
respondent no. 2 in sending the representation
of the petitioner to the Central Government
and there is no valid and justified explanation
of delay with effect from 7.8.99 to 24.8.99.
In our opinion, it renders the continued
detention of the petitioner to be illegal and the
petitioner is entitled to relief.

14. For the reasons stated above, this
Habeas Corpus Petition is allowed and the
continued detention of the petitioner is found
to be illegal. The respondents are directed to
set the petitioner at liberty forthwith if his
detention is not required in any other case.

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