# Javed Siddiqui (In Jail) v. Suptt. Dist. Jail, Jaunpur & Ors

- **Citation:** (2020) 12 ILRA 389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-07
- **Case number:** Habeas Corpus Writ Petition No. 458 of 2020
- **Bench:** Pritinker Diwaker, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/javed-siddiqui-in-jail-v-suptt-dist-jail-jaunpur-ors-45587
- **Pages:** 20

## Headnote

A. Civil Law - Habeas Corpus Writ Petition -
National Security Act: Section 3(2), 3(4), 3(5),
8, 10, 12, 14; Prevention of Damage to Public
Property Act: Section 3; Epidemic Disease Act:
Section 3; Disaster Management Act: Section
51; U.P. Gangster Act: Section 3(1).

Opportunity of hearing before the Advisory
Board through legal representative - Article
22 of the Constitution of India does not
provide any right in favour of detenue to be
representaed through a legal practitioner.
Section 11(4) of NSA clearly incorporates
that the detenue is not entitled to be
represented through a legal practitioner or
advocate before Advisory Board - In this
petition, it has been neither alleged nor shown by
the petitioner that, at any stage, the State was
assisted by any legal practitioner or advocate before
the Advisory Board, therefore the petitioner is not
entitled to be represented through legal practitioner
or advocate. (Para 33, 35, 38)

B. Preventive detention of a person is
possible for 'preventing him from acting in
any manner prejudicial to the security of
the State or from acting in any manner
prejudicial to the maintenance of public
order....' - The grounds of detention disclose
not only "law and order" problem, but also the
problem of "public order" which is likely to be
caused by the activities of the petitioner. It is
trite to mention here that preventive detention
is a device to offer protection to the society and
the executive can always take recourse to it
where it is satisfied that no other method would
succeed in preventing a person from disturbing
the "public order" situation. The subjective
satisfaction of the detaining authority with
regard to the action of preventive detention has
to be taken keeping in mind the danger to
liberties of the people and if the actions or the
activities
of
the
person
have
serious
repercussions not merely on "law and order" but
on "public order", the satisfaction so recorded
cannot be lightly interfered by the Court of Law
unless it is arbitrary or unreasonable.

In the case at hand, the grounds of detention
elaborately narrate the facts leading to the
order of detention and the grounds are precise,
pertinent, proximate and relevant for recording
subjective satisfaction and thus, it cannot be
said that the detaining authority has not applied
its judicious mind in coming to the conclusion
that the activities of the petitioner are
prejudicial in nature to the maintenance of
"public order". (Para 32, 39, 40, 44)

To invoke the provision of Section 3(2) of
NSA,
the
satisfaction
of
the
State
Government so to prevent a person from
acting in a manner prejudicial to the
maintenance of "public order" are two
essential conditions.

C. Distinction between the two concepts
of "public order" and "law and order" - In
the case of "law and order", it affects specific
individuals only, while in the case of "public
order", it has the potentiality of disturbing the
norm

## Text

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12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
389
(2020)12ILR A389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 458 of 2020

Javed Siddiqui ...Petitioner (In Jail)
Versus
Suptt. Dist. Jail, Jaunpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Daya Shankar Mishra

Counsel for the Respondents:
A.G.A., Sri Prem Shanker Prasad, Sri
Santosh Kumar Singh

A. Civil Law - Habeas Corpus Writ Petition -
National Security Act: Section 3(2), 3(4), 3(5),
8, 10, 12, 14; Prevention of Damage to Public
Property Act: Section 3; Epidemic Disease Act:
Section 3; Disaster Management Act: Section
51; U.P. Gangster Act: Section 3(1).

Opportunity of hearing before the Advisory
Board through legal representative - Article
22 of the Constitution of India does not
provide any right in favour of detenue to be
representaed through a legal practitioner.
Section 11(4) of NSA clearly incorporates
that the detenue is not entitled to be
represented through a legal practitioner or
advocate before Advisory Board - In this
petition, it has been neither alleged nor shown by
the petitioner that, at any stage, the State was
assisted by any legal practitioner or advocate before
the Advisory Board, therefore the petitioner is not
entitled to be represented through legal practitioner
or advocate. (Para 33, 35, 38)

B. Preventive detention of a person is
possible for 'preventing him from acting in
any manner prejudicial to the security of
the State or from acting in any manner
prejudicial to the maintenance of public
order....' - The grounds of detention disclose
not only "law and order" problem, but also the
problem of "public order" which is likely to be
caused by the activities of the petitioner. It is
trite to mention here that preventive detention
is a device to offer protection to the society and
the executive can always take recourse to it
where it is satisfied that no other method would
succeed in preventing a person from disturbing
the "public order" situation. The subjective
satisfaction of the detaining authority with
regard to the action of preventive detention has
to be taken keeping in mind the danger to
liberties of the people and if the actions or the
activities
of
the
person
have
serious
repercussions not merely on "law and order" but
on "public order", the satisfaction so recorded
cannot be lightly interfered by the Court of Law
unless it is arbitrary or unreasonable.

In the case at hand, the grounds of detention
elaborately narrate the facts leading to the
order of detention and the grounds are precise,
pertinent, proximate and relevant for recording
subjective satisfaction and thus, it cannot be
said that the detaining authority has not applied
its judicious mind in coming to the conclusion
that the activities of the petitioner are
prejudicial in nature to the maintenance of
"public order". (Para 32, 39, 40, 44)

To invoke the provision of Section 3(2) of
NSA,
the
satisfaction
of
the
State
Government so to prevent a person from
acting in a manner prejudicial to the
maintenance of "public order" are two
essential conditions.

C. Distinction between the two concepts
of "public order" and "law and order" - In
the case of "law and order", it affects specific
individuals only, while in the case of "public
order", it has the potentiality of disturbing the
normal tempo of the life of the community. The
true distinction between the areas of 'public
order' and 'law and order' lies not in the nature
or quality of the act, but in the degree and
extent of its reach upon society. The distinction
between the two concepts of 'law and order'
and 'public order' is a fine one but this does not
mean that there can be no overlapping. Acts
390 INDIAN LAW REPORTS ALLAHABAD SERIES
similar in nature but committed in different
contexts
and
circumstances
might
cause
different reactions. (Para 41, 42, 43)

D. Delay in forwarding representation -
Fair opportunity of hearing - Admitted fact is
that
the
detaining
authority
passed
the
detention order on 10.07.2020 against the
petitioner
and
the
petitioner
gave
his
representation 20.07.2020 as stated in the
counter affidavit of the State. The detention
order was approved on 21.07.2020. It is evident
that the representation so given by the
petitioner was well within the prescribed period
of 12 days. On 14.08.2020, his representation
was rejected. Prior to that, the Advisory Board
had already made recommendation for approval
of the detention order on 12.08.2020. The
record shows that the representation of the
petitioner was not placed before the Advisory
Board till 12.08.2020 even though the same was
filed on 20.07.2020. It remained pending with
the State Government and after 2 days from the
date
the
Advisory
Board
sent
the
recommendation, the same was rejected.
Representation of the petitioner was not
processed expeditiously without any reasonable
explanation, and was not even placed before
the Advisory Board for consideration.

Delay in taking decision on representation
and not placing the same before the
Advisory Board are important factors to
adjudicate upon the legality or illegality of
the order of detention. But such delay is not
exclusive factor and depends upon the facts and
circumstances of each case and availability of
cogent and reasonable explanation to explain
the delay. What will be a reasonable explanation
would always depend upon the factual situation
in that particular case. (Para 46 to 51)

The representation was kept pending for more
than 3 weeks and was never placed before the
Advisory Board. After the recommendation was
made by the Advisory Board on 12.08.2020, the
representation was rejected by the Authority
with explanation which speaks in volume about
the reluctance on the part of opposite parties in
delaying
and
keeping
the
representation
pending and not placing the same before the
Advisory Board. Even on the date when the case
was fixed before Advisory Board, the authorities
could have placed the representation of the
petitioner before the Board. Thus, the Court
concluded that no reasonable explanation has
been given for delay and not placing the
representation before the Board.

E. Constitution of India: Article 21 - Where
the law confers extra-ordinary power on
the executive to detain a person without
recourse to the ordinary law of land and to
trial by courts, such a law has to be
strictly construed and the executive must
exercise the power with extreme care. The
law of preventive detention, though is not
punitive, but only preventive, heavily affects the
personal liberty of individual enshrined under
Article 21 of the Constitution of India and,
therefore, the Authority is under obligation to
pass detention order according to procedure
established by law and will ensure that the
constitutional safeguards have been followed.

The inaction on the part of the authorities
certainly resulted in deprivation on the right of
the petitioner of fair opportunity of hearing and
it also resulted in denial of the opportunity of
fair hearing to the petitioner as provided under
law. This is not permissible and is in gross
violation of established legal and procedural
norms and legal and constitutional protection.

Writ Petitions allowed. (E-4)

Precedent cited:-

1. Habeas Corpus Writ Petition No. 3293 of
2018 decided on 19.09.2018 (Para 20)

2. Habeas Corpus Writ Petition No. 3652 of
2018 decided on 01.02.2019 (Para 21)

3. Habeas Corpus Writ Petition No. 3653 of
2018 decided on 19.12.2018 (Para 21)

4. Habeas Corpus Writ Petition No. 58274 of
2017 decided on 30.03.2018 (Para 22)

5. Habeas Corpus Writ Petition No. 55243 of
2017 decided on 30.03.2018 (Para 23)

6. Lallan Goswami @ Ajaynath Goswami Vs
Superintendent, Central Jail,Naini, Allahabad,
2002 (45) ACC 1089 (Para 25)
12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
391
7.
Inamul
Haq
Engineer
Vs
Superintendent
Division/Sistrict Jail, Azamgarh, 2001 CBC 411 (Para 26)

8. Irfan alias Gama Vs St. of U.P., 1985 (Suppl)
195 (All) (Para 27)

9. Devendra Kumar Vs St., 1985 All. LJ 518 (Para 27)

10. Bundu Vs St. of U.P., 1985 All. LJ 515 (Para 28)

Precedent followed: -

1. Ashok Kumar Vs Delhi Administration, AIR
1982 SC 1143 (Para 41)

2. Smt. Angoori Devi for Ram Ratan Vs U.O.I.,
AIR 1989 SC 371 (Para 42)

3. Ayya alias Ayub Vs St. of U.P., AIR 1989 SC
364 (Para 43)

4. Abhay Shridhar Ambulkar Vs S.V. Bhave,
(1991) 1 SCC 500 (Para 44)

5. Magan Gope Vs St. of W.B., (1975) 1 SCC
415 (Para 44)

6. Rajammalvs Vs St. of T.N., (1999) 1 SCC 417
(Para 24, 47)

7. Virendrs Kumar Nayak Vs The Superintendent
of Naini Central Jail, Allahabad, 1982 Cri. L.J. 1
(Para 24, 47)

8. Satyapriya Sonkar Vs Superintendent Central Jail
Naini, LAWS (ALL)- 1999-10-11 (Para 27, 47)

9. Bheem Singh Vs U.O.I., 1985 ALL. LJ 1404
(Para 28, 47)

10. Smt. Gracy Vs St. of Kerala, AIR 1991 SC
1090 (Para 28, 47)

11. K.M. Abdulla Kunhi & B.L. Abdul Vs U.O.I.,
AIR 1991 SC 574 (Para 29, 47)

12. Mohinuddin Vs District Magistrate, AIR 1987
SC 1977 (Para 30, 47)

Precedent distinguished: -

1. A.K. Roy Vs Union of India (1982) 1 SCC 271
(Para 20, 35, 36)
2. Choith Nankiram Harchandani Vs State of
Maharashtra, (2015) 17 SCC 688 (Para 20, 35, 37)

3. Bittu Choith Harchandani Vs St. of Mah.,
(2018) 2 SCC (Cri) 403 (Para 20)

Present
habeas
corpus
writ
petition
against the detention order passed on
10.07.2020, u/s 3(2) of the National
Security Act.

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

1. Heard Sri Daya Shankar Mishra,
learned Senior Advocate, assisted by Sri
Chandrakesh Mishra, learned counsel for
the petitioner, Sri Prem Shanker Prasad,
learned counsel for Union of India and Sri
Amit Sinha, learned A.G.A. for the State.

2. Petitioner, Javed Siddiqui has filed
this habeas corpus writ petition against the
detention order passed on 10.07.2020,
under Section 3(2) of the National Security
Act and requested to issue direction for
producing the corpus in the Court and also
for setting aside the impugned detention
order.

3. The facts of the case are that the
petitioner, along with 56 known and 25
other unknown persons, on 09.06.2020 at
about 06:00 PM, came to the slum locality
of
Village
Bhadethi,
Police
Station
Saraikhwaza,
District
Jaunpur
and
committed rioting, arson, used castist
words against the inhabitants of the slum
locality, abused them and caused injuries
by doing maar-peet by lathi and danda due
to which many of the persons sustained
injuries. The petitioner and other persons
entered into the houses of inhabitants of
slum
locality,
chased
and
assaulted
themselves, caused damages to their
households. Their houses were burnt and
the cattle which were tied inside their
392 INDIAN LAW REPORTS ALLAHABAD SERIES
houses were also burnt and died. A serious
law and order situation accrued at the place
of occurrence and the inhabitants of slum
locality out of terror and fear, in order to
hide them, went to other villages.

4. Regarding incident complainant
Rajesh, gave a written report in the
concerned police station on the basis of
which Crime No. 154 of 2020, under
Sections 147, 148, 149, 307, 452, 323, 504,
506, 436, 427, 429/34, 188, 269 I.P.C. and
7 Criminal Law Amendment Act along
with Section 3(2)(5) SC/ST Act, Section 3
of the Prevention of Damage to Public
Property Act, Section 3 of the Epidemic
Disease Act and Section 51 of the Disaster
Management Act was registered against the
petitioner and others.

5. According to the first information
report, on 09.06.2010 at about 05:00 PM,
when Ravi Kumar, Pawan and Atul were
grazing their buffalos, one Tabiz and his
three friends came there with their goats for
grazing their cattle and asked them to look
after the goats, so that they could not
escape away and in case they do escape,
they shall bring them back. This was
refused by Ravi, Pawan and Atul at which
Tabiz and his friends used castist words
saying "Sala Chamar Tum Logo Ka Dimag
Kharab Ho Gaya Hai". This was refused
by Ravi, Pawan and Atul, upon which
Tabiz and his friends started beating them.
They came back to their houses and
complained about it. Soorsati, mother of
Ravi, mother of Pawan, namely Satti Devi
and brother of Atul, namely Virendra went
and inquired about the incident from Tabiz
and his friends and complained why did
they beat their children. Tabiz and his
friends became very angry and started
abusing them and threatened them, hence,
they came back to slum locality. At about
06:00 PM, petitioner and about 75 to 80
companions came in group with lathi,
danda and weapons and attacked on the
slum locality and used castiest words
against everybody who came in the way
and abused them. They chased the
inhabitants of the slum locality, committed
maar-peet after entering into their houses,
damaged the household goods and lit fire in
the houses. Consequently, many houses
were burnt and certain cattle were also
burnt. The accused persons were firing in
order to kill the inhabitants of slum
locality. The inhabitants of slum locality,
due to apprehension from the accused,
saved their lives by hiding themselves in
neighboring villages. Thereafter also, the
accused persons continued their lawless
activities. In the incident, household goods
of ten houses were burnt to ashes and goats
and buffaloes were also burnt and died.
Several persons, including Vinod Kumar,
Kamlesh, Ratan Lal, Nand Lal, Firtu,
Foolchand, Ravi, Kundan, Rajesh and other
saw the incident. The incident created
serious problem to law and order and peace
and tranquility in the period of pandemic
and several persons sustained injuries.

6. On the basis of written report given
by Rajesh, the Investigating Officer entered
into
investigation
and
recorded
the
statements
of
the
complainant
and
witnesses under Section 161 Cr.P.C. They
specifically stated that the petitioner came
with his associates along with lathi and
danda and other weapons and created
fearful situation in the inhabitants of slum
locality by committing the aforesaid illegal
and criminal acts. The witnesses stated that
the whole offence was committed by
accused Javed Siddiqui and his associates.
They also stated that the petitioner Javed
Siddiqui instigated his associates using
castiest words to kill the inhabitants of
12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
393
slum locality and to lit fire in their houses
upon which the whole incident took place
in which several persons sustained injuries,
houses were burnt and cattle were also
burnt and there became a completely
lawless situation.

7. After the incident, the local police
and senior police personnel, including SP,
Jaunpur, DM, Jaunpur, IG Police, Lucknow
Region
and
Commissioner,
Varanasi
inspected the place of occurrence and gave
instruction in order to maintain peace and
harmony. Huge number of police and
P.A.C. personnel were deployed in the
slum locality and efforts were made for
restoration of law, order and peace and also
to restore the confidence of inhabitants of
slum locality, so that they could come back.
After completion of the investigation,
charge sheet was filed for the offences
under the aforesaid sections.

8. The petitioner was released on bail
in the aforesaid case on 20.06.2020 by the
Special Judge, but he remained in jail under
Crime No. 156 of 2020, under Section 3(1)
U.P. Gangster Act. The District Magistrate
found that the petitioner is making all
efforts to obtain bail and it was felt by the
DM that after coming out from jail, the
petitioner will again start similar kind of
lawless activities and it will not be possible
to maintain law and order and communal
harmony
and,
therefore,
after
being
satisfied, it was decided to initiate action
for preventive detention under Section 3(2)
of the National Security Act.

9. By order dated 10.07.2020, the
District Magistrate passed the detention
order and directed the petitioner to be
detained in district jail under Section 3(2)
of the National Security Act. The petitioner
was intimated by the preventive detention
order that he has a right to give
representation to the State Government
against the detention order and also
expected him to make such representation
to the District Magistrate through the Jail
Superintendent as early as possible and it
was made clear that such representation, if
received after expiry of 12 days from the
date of order of detention or after approval
by the State Government, the same shall
not be considered. It was also made clear
that if the petitioner wants to give a
representation
before
State
Advisory
Board,
Lucknow, he
may
give
the
representation as early as possible, through
the Jail Superintendent. It was also made
clear that under Section 10 of the National
Security Act, the matter shall be referred to
the Advisory Board within three weeks
from the date of detention order and if the
representation of the petitioner will not be
given in time, the same shall not be
considered. He was also informed about his
right of personal hearing before the
Advisory Board and for that he was
expected to specifically mention this fact in
the representation. He was also informed
that he has right to give representation to
the Central Government also through
Secretary, Government of India, Home
Ministry (National Security Department),
North Block, New Delhi. This detention
order was subsequently approved by the
Central Government on the basis of
recommendation made by the Advisory
Board.

10. The submission of the learned
counsel for the petitioner is that on
13.07.2020,
the
petitioner
made
a
representation with a request to set aside
the detention order and in the alternative,
also made request to make available the
relevant documents to him as early as
possible. The submission of the learned
394 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the petitioner is that despite he
made representation against the detention
order, the same was not forwarded in time
and the same was rejected on the basis that
it was not received in time. He was not
supplied with relevant documents for which
he
made
specific
mention
in
his
representation and therefore he could not
make effective representation against the
detention order. The offence on the basis of
which, the National Security Act was
imposed, he was released on bail by the
Special Judge at district level. When the
detention order was passed, it was not
possible that soon the petitioner shall be
released on bail as he was also detained
under the UP Gangster Act.

11. It has been further submitted that
the hearing before the Advisory Board was
not fair and was in violation of the right of
equality. He was not given opportunity to
put his case before the Advisory Board
through his legal adviser. The detention
order is in complete violation of Articles
22(5), 14 and 21 of the Constitution of
India and Section 3(2), 3(4), 3(5), 8, 10, 12
and 14 of the National Security Act and he
is entitled for immediate release from jail.
His representation was not disposed of in
legal manner by the District Magistrate.
The Central Government also disposed of
his representation dated 27.07.2020 after
much delay on 01.09.2020.

12. In the counter affidavit filed by
the State, it has been mentioned that the
detention order dated 10.07.2020 along
with grounds of detention with other
connected documents was forwarded by
DM on the same day which was received
by the State Government on 16.07.2020
and the detention order was approved on
20.07.2020
and
the
same
was
communicated
to
the
petitioner
on
21.07.2020 within 12 days from the date of
detention as required under section 3(4) of
the Act. Further, the detention order dated
10.07.2020 along with grounds of detention
with other connected documents were also
sent to the Central Government within
seven days from the date of approval as
required under section 3(5) of the Act. The
copy of the petitioner's representation dated
27.07.2020 along with para wise comments
was received in the concerned Section of
State Government on 17.08.2020 along
with letter of District Magistrate, Jaunpur
dated 13.08.2020. The State Government
sent the copy of representation and para
wise comments thereon to the Central
Government, New Delhi on 18.08.2020.
The representation and para wise comments
were not sent to the U.P. Advisory Board
because hearing had already taken place on
12.08.2020.
Thereafter
the
concerned
Section of the State Government examined
the representation on 19.08.2020. The Joint
Secretary has examined the representation
on 20.08.2020, the Special Secretary on
21.08.2020; 22.08.2020 and 23.08.2020
being holiday; the Secretary Government of
U.P. examined the said representation on
24.08.2020 and thereafter the file was
submitted to the higher authorities for final
order and was finally rejected by the State
Government
on
25.08.2020.
The
information
of
rejection
order
was
communicated to the petitioner through
district authorities by the State Government
Radiogram dated 26.08.2020. Thus, the
representation of the petitioner was dealt
with expeditiously at several stages of the
State Government.

13. The U.P. Advisory Board,
Lucknow, vide its letter dated 06.08.2020
informed the State Government that the
case of the petitioner would be taken up for
hearing on 12.08.2020 and directed that the
12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
395
petitioner to be informed that, if he desires
to attend the hearing before the U.P.
Advisory Board along with his next friend
(non-advocate), he could do so and he be
allowed to take his next friend along with
him. This was accordingly, communicated
to the petitioner through the district
authorities by radiogram dated 07.08.2020.
The petitioner appeared for personal
hearing before the U.P. Advisory Board on
the date fixed for hearing on 12.08.2020.
The Advisory Board heard the petitioner in
person and submitted its report to the State
Government that there is sufficient cause
for
the
preventive detention of
the
petitioner under, the National Security Act.
This report was received in the concerned
Section on 20.08.2020 through the letter of
Registrar, U.P. Advisory Board letter dated
19.08.2020 well within seven weeks from
the date of detention of the petitioner as
provided under Section 11(1) of the Act.

14. The State Government once again
examined afresh the entire case of the
petitioner along with the opinion of the
U.P. Advisory Board and took decision to
confirm the detention order for a period of
three months at first instance from the date
of actual detention of the petitioner i.e.
since 10.07.2020. Accordingly, the orders
of confirmation for petitioner's preventive
detention for three months were issued by
the State Government through radio-gram
dated 01.09.2020.

15. On the report/recommendation
dated 01.10.2020, received from the
District Magistrate, Jaunpur, after taking
into
consideration
the
facts
and
circumstances of the case, the State
Government was satisfied that it is
necessary to extend the above detention
period for further three months. Therefore,
the State Government amended the above
order and extended the detention for six
months since 10.07.2020. Accordingly, the
detention order dated 01.09.2020 was
granted and the order was issued on
08.10.2020. The information of extension
of detention period was communicated to
the petitioner through district authorities by
radiogram and letter dated 08.10.2020.

16.

Respondent
no.1,
the
Superintendent Jail, Jaunpur has submitted
in his counter affidavit, that while the
petitioner was in judicial custody vide
order
dated
10.06.2020/23.6.2020/06.07.2020 in Crime
No. 154 of 2020, under Sections 147, 148,
149, 307, 452, 323, 504, 506, 436, 427,
429/34, 188, 269 I.P.C. and 7 Criminal
Law Amendment Act along with Section
3(2)(5) SC/ST Act, Section 3 of the
Prevention of Damage to Public Property
Act, Section 3 of the Epidemic Disease Act
and Section 51 of the Disaster Management
Act,
vide
order
dated
19.06.2020/18.08.2020, he was further sent
to judicial custody in jail in crime no. 156
of 2020 under section 3(1) of UP Gangster
Act. He was in jail, detention order dated
10.07.2020 was received on the same day
which was served on the petitioner on the
same day and was informed about the
grounds of preventive detention and his
right of representation to the different
authorities and if he desires to give
representation to DM, he should submit
within 12 days or before approval of the
detention order, whichever is earlier. On
20.07.2020, he submitted his representation
of same date and on the same day, the
representation was sent to DM. The
detention order was approved by the State
Government on 21.07.2020. Petitioner
again submitted his representation on
27.07.2020 addressed to the Principal
Secretary (Home), UP Government, Home
396 INDIAN LAW REPORTS ALLAHABAD SERIES
Government, New Delhi and Advisory
Board, New Delhi which was sent to the
above
authorities
through
DM
on
28.07.2020.
Representation
dated
20.07.2020 was rejected by DM on
15.08.2020
which
was
received
and
communicated by the Jail authority on the
same day to the petitioner. The State
Government rejected the representation on
26.08.2020
and
the
same
was
communicated
to
the
petitioner
on
27.08.2020.
The
Central
Government
rejected the representation on 01.09.2020
which was received and communicated on
03.09.2020 to the petitioner. The petitioner
was informed about the date, time and
place of hearing on 07.08.2020, which was
12.08.2020. No request for hearing was
made through non advocate next friend. He
was produced before the Advisory Board
through video-conferencing. It has been
further mentioned in the counter affidavit
that in crime no. 154 of 2020, vide order
dated 23.06.2020 and in crime no. 156 of
2020, vide order dated 26.08.2020, the
petitioner has been released on bail.

17. Union of India/Respondent no.4 has
filed counter affidavit stating that the report
under Section 3(5) of Act and representation
dated 27.07.2020 of the detenu with para-wise
comments was forwarded on 13/14.08.2020,
which was received on 21.08.2020 in the
Ministry of Home Affairs and on 24.08.2020,
the same was processed for consideration and
on careful consideration, finding no justifiable
ground for revocation of the detention order and
22nd, 23rd, 29th and 30th August, 2020 being
holiday, with all promptitude, rejected the same
on 01.09.2020 and communicated to the
petitioner.

18. In the two rejoinder affidavits, the
petitioner hss submitted that the State has
extended the detention period for six
months from 10.07.2020 vide order dated
08.10.2020. No hearing was given before
extending and it was illegal to extend the
period of detention for 6 months at a time
on same ground on the basis of which, the
original order was passed. The petitioner
has denied the contents of counter affidavit
filed by the Union of India and State and
has stated that the mandatory requirement
of Section 3(5) of the Act was not
complied, nor relevant documents were not
provided
nor
his
representation
was
promptly disposed nor communicated to
him. The detention order is in complete
violation of Articles 21and 22(5) of the
Constitution.

19. Arguments have been advanced
by the learned counsel for the petitioner.
The first one is that the representation of
the petitioner was not forwarded in time,
even
though
he
had
made
the
representation at an early date. It has
further
been
submitted
that
the
representation was dealt with by the State
Government and Central Government in
such a way that it would reach only after
the recommendation of the Advisory Board
and it gave rise to the preliminary rejection
of the representation. Another submission
is that the petitioner was not given adequate
opportunity of hearing before the Advisory
Board and his representation was not
referred to the Advisory Board. He was
also not given opportunity to put his case
through a counsel or through a legal expert.
Further submission is that, in the case on
the basis of which the National Security
Act has been imposed on the petitioner, the
petitioner was granted bail by the Special
Judge, District Jaunpur.

20. Several reference have been taken
from the side of the petitioner in support of
the the above arguments. The first
12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
397
reference is Habeas Corpus Writ Petition
No. 3293 of 2018 decided by a coordinate
Bench of this Court vide order dated
19.09.2018 in which on the basis of
judgments of A.K. Roy v Union of India
(1982) 1 SCC 271 and Choith Nanikram
Harchandani v State of Maharashtra,
2015, volume 17 SCC 688 with Bittu
Choith
Harchandani
vs.
State
of
Maharashtra (2018) 2 Supreme Court
Cases (Cri) 403, learned counsel for the
petitioner has submitted that it is settled
view of the Apex Court that the detenue
has
right
to
appear
through
legal
practitioner in the proceedings before the
Advisory Board, if so claimed by him and
if the petitioner has not been allowed to be
represented
through
legal
practitioner
despite request made by him before the
Board, it is denial of the opportunity of fair
hearing before the Advisory Board and is in
violation of Article 14 of the Constitution
of India and such detention order is not
sustainable.

21. On the same point, another
reference has also been taken which is
Habeas Corpus Writ Petition No. 3652 of
2018 decided by the coordinate Bench of
this Court, vide its order dated 01.02.2019.
In addition to above, this judgment has also
been taken in support of the contention that
despite the demand, the petitioner was not
supplied with the documents, which have
been required in his representation. Similar
view has been taken in the Habeas Corpus
Writ Petition No. 3653 of 2018 decided by
the coordinate Bench of this Court vide its
order dated 19.12.2018.

22. The judgment of the Supreme
Court in Choith Nanikram Harchandani
vs. State of Maharashtra with Bittu
Choith
Harchandani
vs.
State
of
Maharashtra (2018) 2 Supreme Court
Cases (Cri) 403 and (2015) 17 Supreme
Court Cases 688 has also been referred on
the point, submitting that if opportunity of
fair hearing by not giving opportunity to
the detenue to put his case through a
counsel, is not given, the same shall be the
violation of opportunity of fair hearing and
such
detention
order
shall
not
be
sustainable. It is pertinent to mention that
these judgments have been referred to in all
the three cases decided by the coordinate
Benches as referred above. The judgment
of the coordinate Bench in Habeas Corpus
Writ Petition No. 58274 of 2017 decided
on 30.03.2018 has also been referred in
which, it has been held as under :-

"An order of detention passed in
respect of a person under judicial custody
must satisfy the three conditions spelt out
by the Apex Court in the case of
Kamarunnissa vs. Union of India and
another, 1990 SCR Suppl (1) 457 and one
of such conditions is that the authority
passing the order of detention in respect of
a person in custody should have the reason
to believe that there was real possibility of
his release on bail and further on being
released, he would probably indulge in
activities which are prejudicial to public
order. The satisfaction that it is necessary
to detain a person for the purpose of
preventing him from acting in a prejudicial
manner is thus, the basis of the order under
Section 3(2) of the National Security Act
and tis basis is clearly absent in the present
case."

23. Learned counsel for the petitioner
has submitted that there is nothing on
record to show that the above three
conditions were objectively assessed by the
District Magistrate before passing the
detention order. Similar view has been
taken by a subsequent judgment passed by
398 INDIAN LAW REPORTS ALLAHABAD SERIES
the coordinate Bench of this Court in
Habeas Corpus Writ Petition No. 55243
of 2017 decided on 30.03.2018.

24. In regard to the contention that
where there is unexplained, unreasonable
and improper delay in forwarding the
representation of the detenue resulting in its
rejection, such detention order shall be
vitiated, the references of the judgment of
Supreme Court in Rajammalvs v State of
Tamil Nadu (1999) 1 SCC 417 and
Virendrs
Kumar
Nayak
v
The
Superintendent of Naini Central Jail,
Allahabad, 1982 Cri. L.J. 1 have been
taken.

25. Learned counsel for the petitioner
has submitted that the representation of
petitioner was rejected on a technical
ground which is not permissible in law as
opined in Lallan Goswami @ Ajaynath
Goswami vs. Superintendent, Central
Jail, Naini, Allahabad, 2002 (45) ACC
1089. The District Magistrate must apply
his mind and decide the representation.

26. With reference to Inamul Haq
Engineer
vs.
Superintendent,
Division/Sistrict Jail, Azamgarh, 2001
CBC 411, it has been argued that if counter
version of the case and bail order has not
been placed before the detaining authority
when the detention order was passed and in
absence of such document the detention
order has been passed, the same shall not
be sustainable and shall be liable to be
quashed.

27. The learned Senior Advocate has
also submitted that in Satyapriya Sonkar
v Superintendent Central Jail Nani,
LAWS (ALL) -1999-10-11, it has been
held that where the representation of the
detenu was not placed before the Advisory
Board, the detention is rendered invalid.
Even a supplementary representation ought
to be placed before the Advisory Board.
This view has been further reiterated in
Irfan alias Gama v State of UP, 1985
(Suppl) 195 (All). In Devendra Kumar v
State, 1985 All. LJ 518, this Court
observed as below:

"After examining the various
provisions of the National Security Act,
there is no doubt that the two obligations of
the Government to refer the case of the
detenu and his representation filed under S.
8 of the Act to the Advisory Board and to
consider that representation on the other
are two distinct obligations independent of
each other. In view of S. 10, the
representation of a detenu if filed within
this stipulated period has to be placed
before the Advisory Board within that
period and it is not dependent on the
decision of the appropriate authority of
that representation."

28. The learned Senior Advocate has
also referred to the judgment in Bundu v
State of UP, 1985 All.LJ 514 in which
also similar observation has been made by
this Court. In Bheem Singh v Union of
India,1985
All.LJ
1404,
where
the
representation of detenu was sent to the
Advisory Board beyond 3 weeks of the date
of detention, the provisions of Section 10
of the Act is clearly violated and the
detention order is illegal. In Smt Gracy v
State of Kerala, AIR 1991 SC 1090, the
Supreme Court held:

"It being settled that this dual
obligation flows from Art. 22(5) when only
one representation is made and addressed
to the detaining authority, there is no
reason to hold that the detaining authority
is relieved of this obligation merely
12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
399
because the representation is addressed to
the Advisory Board instead of the detaining
authority and submitted to the Advisory
Board during pendency of the reference
before
it.
So
long as
there
is
a
representation made by the detenu against
the order of detention, the dual obligation
under Article 22(5) arises irrespective of
the fact whether the representation is
addressed to the detaining authority or to
the Advisory Board or to both."

29. Reiterating the same view, the
Supreme Court laid down in K.M. Abdulla
Kunhi & B.L. Abdul v Union of India,
AIR 1991 SC 574 that an unexplained
delay in disposal of representation would
be a breach of constitutional imperative and
would render the detention illegal. It was
also remarked that the representation might
have been received after the case was
referred to the Board, even then the same
should be placed before the Board provided
the proceeding was not concluded before
the Board.

30. In Mohinuddin v District
Magistrate,
AIR
1987
SC
1977,
reiterating that unexplained delay in
disposal of representation would render the
detention illegal, the Court said:

"When the life and liberty of a
citizen is involved, it is expected that the
Government
will
ensure
that
the
constitutional safeguards embodied in Art.
22(5) are strictly observed. We say and we
think it necessary to repeat that the gravity
of the evil to the community resulting from
anti-social activities can never furnish an
adequate reason for invading the personal
liberty of a citizen, except in accordance
with the procedure established by the
Constitution and the laws. The history of
personal liberty is largely the history of
insistence on observation of the procedural
safeguards."

31. Now, in the background of the
arguments advanced and case laws relied
upon by the learned Senior Advocate, we
roughly find certain issues which emerge in
this case on the basis of which, this writ
petition is required to be decided. The first
issue is with regard to the plea of petitioner
regarding
non-supply
of
relevant
documents even though he demanded the
same. The counter affidavits filed on behalf
of the respondents deny it and they have
stated that the detention order was served
on the petitioner along with all relevant
papers. Neither in the petition nor in the
rejoinder affidavits, the petitioner has made
specific mention about those documents
which were not given to him. The affidavits
of the respondents, who are public officers
cannot be easily disbelieved merely on the
saying of the petitioner. We find no force in
this argument advanced from the side of
petitioner.

32.

The
second
issue
for
determination is that the detaining authority
did not consider the fact that the case on the
basis of which NSA was imposed, in that
case, the petitioner was already granted bail
and even then there was no possibility of
his early release as the offence under the
UP Gangster Act was imposed on him and
he was sent to judicial custody and was in
jail when NSA was imposed on him. The
detaining authority has mentioned in the
detention order that in Crime no. 154 of
2020, the petitioner obtained bail from the
court of Special Judge and there is every
possibility that he will soon obtain bail in
the case under the UP Gangster Act.
Needless to mention that the petitioner was
granted bail in crime no. 156 of 2020,
under the UP Gangster Act vide order dated
400 INDIAN LAW REPORTS ALLAHABAD SERIES
26.08.2020. Therefore, the opinion of the
detaining authority that there is every
possibility that the petitioner will obtain
bail very soon was based on sound
apprehension. Taking into consideration all
the facts and attending circumstances, the
detaining authority was of the view that in
order to prevent the petitioner from
indulging in similar type of activities, his
preventing
detention
was
necessary.
Therefore, this issue, in our view, is liable
to be disposed against the petitioner.

33. The next issue is with regard to
the opportunity of hearing before the
Advisory
Board
through
legal
representative. It has been submitted that
despite his request, he was denied this
opportunity and it renders the detention
illegal. The learned counsel for the
respondents have referred to Article 22 of
the Constitution which is as follows:

"22. Protection against arrest
and detention in certain cases