# Kali Prasad @ Pandit Singh v. Union Of India & Ors

- **Citation:** (2021) 9 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Habeas Corpus Writ Petition No. 806 of 2020
- **Bench:** Surya Prakash Kesarwani, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kali-prasad-pandit-singh-v-union-of-india-ors-47400
- **Pages:** 10

## Headnote

(A) Habeas Corpus - National Security Act,
1980 - Section 3(2),3(3) - Order of
detention - "forthwith" - used in Section 3
does not mean instantaneous but without
undue delay and within a reasonable time
which is to be ascertained from the facts
of the case - preventive detention is also
described as "jurisdiction of suspicion" -
Court must be satisfied that the Officers
dealing with the representation were not
indifferent to the urgency of the situation
of the detenu being in jail. (Para - 18,20)

Petitioner was detained for the grounds/reasons
mentioned in the impugned order - passed by
the District Magistrate - Petitioner was informed
about the grounds of detention and his right to
make representation - Petitioner submitted an
objection before the concerned respondents.
(Para - 3 )

HELD:-Both
the
said
respondents
well
explained the time taken in deciding the
representation.
The
time
taken
by
the
respondent no. 1 and the respondent no.2 in
deciding
the
representation
of
the
petitioner/detenu on facts of the present case
can not be said to suffer from undue delay or
inordinate delay.(Para - 19,23 )

Habeas corpus petition dismissed. (E-7)

List of Cases cited:-

## Text

9 All Kali Prasad @ Pandit Singh Vs. Union of India & Ors.
797
been filed before this Court so that he may be
able to succeed in his plan to anyhow get the
custody of petitioner no.1, whereas no
marriage took place as stated by petitioner
no.1 Netrawati Yadav before this Court. The
action of petitioner no.2 is illegal and against
the norms of society in which we are living.
As per the statement of petitioner no.1 and
her father Sri Tejpal, she is married with one
Banti who also accompanied her in the High
Court campus.

9. Accordingly, the writ petition is
dismissed with cost of Rs.50,000/- (rupees
fifty thousand) which shall be paid by
petitioner no.2 Dharmendra to petitioner no.1
Netrawati Yadav by way of bank draft within
one month from today. In case the cost is not
paid by petitioner no.2 to petitioner no.1, the
same shall be recovered as arrears of land
revenue.

10. The copy of the order be sent by the
office to the concerned CJM for necessary
compliance
----------
(2021)09ILR A797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Habeas Corpus Writ Petition No. 806 of 2020

Kali Prasad @ Pandit Singh ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar Singh, Sri Anil Kumar Yadav,
Sri Daya Shankar Mishra, Sri Chandrakesh
Mishra
Counsel for the Respondents:
A.S.G.I., Ajay Singh, G.A.

(A) Habeas Corpus - National Security Act,
1980 - Section 3(2),3(3) - Order of
detention - "forthwith" - used in Section 3
does not mean instantaneous but without
undue delay and within a reasonable time
which is to be ascertained from the facts
of the case - preventive detention is also
described as "jurisdiction of suspicion" -
Court must be satisfied that the Officers
dealing with the representation were not
indifferent to the urgency of the situation
of the detenu being in jail. (Para - 18,20)

Petitioner was detained for the grounds/reasons
mentioned in the impugned order - passed by
the District Magistrate - Petitioner was informed
about the grounds of detention and his right to
make representation - Petitioner submitted an
objection before the concerned respondents.
(Para - 3 )

HELD:-Both
the
said
respondents
well
explained the time taken in deciding the
representation.
The
time
taken
by
the
respondent no. 1 and the respondent no.2 in
deciding
the
representation
of
the
petitioner/detenu on facts of the present case
can not be said to suffer from undue delay or
inordinate delay.(Para - 19,23 )

Habeas corpus petition dismissed. (E-7)

List of Cases cited:-

1. Rajammal Vs St. of T.N. & anr , AIR 1999 SC
684

2. Hetchin Haokip Vs St. of Manipur, (2018) 9
SCC 562 (Paragraph Nos. 9 to 15)

3.
Keshav
Tilak
Nilkantah
Joglekar
Vs
Commissioner of Police, AIR 1957 SC 28,

4. Vidya dev Verma Vs D.M., Agartala, AIR
1969 SC 323

5. Salim Vs St. of W.B., (1975) 1 SCC 653

6. Kubic Darusz Vs U.O.I., (1990) 1 SCC 568,
798 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Ayya Vs St. of U.P., (1989) 1 SCC 374

8. Union of India Vs Yumnam Anand M. (2007)
10 SCC 190

9. Rajindra Vs Commissioner of Police (1994)
Suppl. (2) SCC 716

10. Union of India & ors. Vs Laishram Lincola
Singh @ Nicolai, (2008) 5 SCC 490

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Daya Shankar Mishra,
learned Senior Advocate, assisted by Sri
Chandrakesh Mishra, learned counsel for
the petitioner, Sri Rishi Chaddha, learned
A.G.A. for the State-respondents and Sri
Ajay Singh, learned Central Government
Counsel for the respondent no.1.

2. This writ petition has been filed
praying for the following relief :

"(i) Issue a writ order or
direction in the nature certiorari quashing
the impugned order of detention dated
2.11.2020 passed by District Magistrate
District Basti/ respondent no.3 in Order
no.5176/J.A.(NSA)/2020 by exercising of
power U/s 3(3) of National Security Act,
1980.

(ii) Issue a Habeas Corpus writ
order or direction in the nature of
mandamus directing the respondents to
release the petitioner forthwith from
detention U/s 3(3) of National Security
Act,1980."

3. Briefly stated facts of the present
case are that by the impugned order dated
02.11.2020, under Section 3(2) of the
National Security Act, 1980 (hereinafter
referred to as "the Act 1980"), passed by
the District Magistrate, Basti, the petitioner
was detained for the grounds/reasons
mentioned in the impugned order. The
petitioner was informed about the grounds
of detention and his right to make
representation. The petitioner submitted an
objection dated 12.11.2020 before the
concerned respondents.

4. As per paragraph No. 4 of the
counter affidavit filed on behalf of the
respondent no.1 i.e. Union of India, dated
18.01.2021 (filed on 03.02.2021), the
representation of the detenu/petitioner was
rejected and he was informed about it vide
wireless message dated 06.01.2020. In
paragraph No. 4 of the supplementary
counter affidavit dated 23.07.2021 (filed on
26.07.2021) respondent no.1 has explained
the time taken in passing the order, as
under :

"That, in continuation of para 4 of
the affidavit dated 18.01 2021, it is submitted
that the representation dated 12.11.2020 of
the detenu along with parawise comments of
the detaining authority was forwarded by the
Under Secretary, Government of Uttar
Pradesh vide letter no. 84/2/77/2020-C.X-5
dated 01.12.2020. The same was received in
the section concerned in the Ministry of
Home Affairs on 10.12.2020. Despite of
unprecedented situation of COVID-19 the
representation along with parawise comments
of the detaining authority was processed for
the consideration of Union Home Secretary
on 17.12.2020. The matter was thoroughly
examined by Under Secretary with Section
Officer and section staff and after satisfying
all the facts, the Under Secretary (NSA) with
her comments forwarded the file to the
Deputy Legal Advisor (DLA) on 23.12.2020.
The Deputy Legal Advisor (DLA) forwarded
the file to the Joint Secretary (IS-II) on
24.12.2020.
Thereafter,
there
was
a
9 All Kali Prasad @ Pandit Singh Vs. Union of India & Ors.
799
intervening period 25h, 26th, 27th December,
2020 due to Saturday, Sunday and Christmas
Eve. On 28th December, 2020, the matter
was discussed with Joint Secretary (IS-II) and
the Deputy Legal Advisor (DLA). Thereafter,
the Joint Secretary (IS-II) with his comments
forwarded the file to the Union Home
Secretary on 02.01.2021. Thereafter, the
Union Home Secretary having carefully gone
through the material on record, including the
order of detention, the grounds for detention,
the representation of the detenu and the
comments of the detaining authority thereon
concluded that the detenu had failed to put
forth any material cause or grounds in his
representation to justify the revocation of the
order by exercise of the powers of the Central
Government under Section 14 of the National
Security Act, 1980. He, therefore, rejected the
representation on 04.01.2021 and sent the file
back to the Joint Secretary (Internal SecurityII). The file reached the section through the
aforesaid levels of officers on 06.01.2021.
Accordingly, the detenu and the authorities
concerned were informed vide Wireless
Message No. II/15028/197/2020-NSA dated
06.01.2020. It is pertinent to mention there
were intervening period of 9 days on 12th,
13th, 19th, 20th, 25th, 26th, 27th December,
2020; and 02nd and 03rd January, 2021 due
to Saturday, Sunday and Christmas Eve. It is
further submitted that the representation was
examined with utmost care and caution with
promptitude."

5. In paragraph Nos. 3, 4, 5, 6, 7, 10
and 11 of the counter affidavit of the
respondent no.2, i.e. the State of U.P., has
stated as under :

"3. That, it is submitted that the
detention order dated 02-11-2020, grounds
for detention and all other connected
documents, forwarded by the District
Magistrate, Basti vide his letter dated
02.11.2020 were received by the State
Government
on
05.11.2020.
After
examining every aspect of the case of
petitioner in detail, the State Government
approved the order of detention on 11-112020. The approval of the detention order
was
communicated
to
the
petitioner
through the district authorities by the State
Government radiogram and letter, both
dated 12-11-2020, that is within 12 days
from the date of the detention order as
required under section 3(4) of the Act.

4. That it is further stated a copy
of detention order, grounds of detention
and
all
other
connected
documents,
received from the District Magistrate, Basti
were also sent to the Central Government
by Speed Post on 13-11-2020 within seven
days from the date of approval by the State
Government as required under section 3(5)
of the Act. Hence, the facts mentioned
above goes to show that the provisions of
section 3(4) and 3(5) of the Act, have been
fully complied with.

5. That, it is submitted that the
petitioner was detained under the Act on
02-11-2020, i.e. on the date of service of
detention order upon the petitioner. The
case of the petitioner was referred to the
U.P.
Advisory
Board
(Detentions),
Lucknow by the State Government by
forwarding the detention order, grounds of
detention and all other connected papers
on 13-11-2020, well within three weeks
from the date of his actual detention as
required under section 10 of the Act.

6. That it is submitted that a copy
of
petitioner's
representation
dated
12.11.2020 alongwith parawise comments
was received in the concerned Section of
State Government on 01.12.2020 alongwith
letter of District Magistrate, Basti dated
800 INDIAN LAW REPORTS ALLAHABAD SERIES
27.11.2020. The State Government sent
copies of the representation and parawise
comments
thereon
to
the
Central
Government, New Delhi and to the U.P.
Advisory Board (Detentions) vide its
separate letters both dated 01.12.2020.
Thereafter, the concerned section, that is
Home (Gopan) Anubhag-5 of the State
Government examined the representation
on 02.12.2020.

7. That it is further stated the
deponent examined the representation on
03.12.2020.
The
Deputy
Secretary
examined
the
representation
on
03.12.2020.
The
Special
Secretary
examined
the
representation
on
04.12.2020. The Secretary, Government of
Uttar Pradesh, Lucknow examined the
same on 04.12.2020. The Additional Chief
Secretary, Government of Uttar Pradesh,
Lucknow, examined the representation on
04.12.2020.
Dates
05.12.2020
and
06.12.2020 were holiday Saturday and
Sunday. Thereafter the file was submitted
to the highter authorities for final orders of
the
State
Government.
After
due
consideration, the said representation was
finally rejected by the State Government on
07.12.2020.

10. That it is further stated that on
receipt thereof, the State Government once
again examined afresh the entire case of the
petitioner alongwith the opinion of the U.P.
Advisory Board and took a decision to
confirm the detention order and also for
keeping the petitioner under detention for a
period of three months tentatively from the
date of actual detention of the petitioner i.e.
since 02.11.2020. Accordingly, orders of
confirmation and for keeping the petitioner
under preventive detention of 3 months
tentatively from the date of his actual
detention under the said Act, were issued by
the State Government through radiogram and
letter, both dated 21.12.2020 (Annexure no.1
of this counter affidavit).

11. That, it is further stated that on
the report/recommendation dated 25.01.2021
received from the District Magistrate, Basti
and after consideration of the facts and
circumstances
of
the
case
the
State
Government satisfied that it is necessary to
extend the above detained period 3 months.
So the State Government amended the above
order and extended it for 6 month from the
actual date of detention order that is, since
02.11.2020. Accordingly the above detention
order dated 21.12.2020 was amended and the
order was issued on date 29.01.2021
tentatively for 6 months from the actual date
of detention that is, since 02.11.2020
(Annexure No.2)."

6. The contents of the aforequoted
paragraph Nos. 3, 4, 5, 6, 7 have been
replied by the petitioner in paragraph No. 4
of the rejoinder affidavit and contents of
aforequoted paragraph Nos. 10 & 11 of the
counter affidavit have been replied by the
petitioners in paragraph No. 6 of the
rejoinder affidavit. Paragraph Nos. 4 & 6 of
the rejoinder affidavit are reproduced
below :

"4.
That
the
contents
of
paragraphs no.3, 4, 5, 6, 7 of the counteraffidavit are matter of records same can be
verify from the records.

6. That the content of paragraphs'
no. 10, 11 of the counter affidavit are
matter of records same can be verify from
the records."

7. Thus, from perusal of the
aforequoted paragraph Nos. 3, 4, 5, 6, 7, 10
& 11 of the counter affidavit clearly reveals
9 All Kali Prasad @ Pandit Singh Vs. Union of India & Ors.
801
sufficient explanation for time taken in
passing the order by the respondent No.2,
which has not been disputed by the
petitioner in paragraphs Nos. 4 & 6 of the
rejoinder affidavit. Thus, the only ground
of attack of non explanation of time taken
in passing the order, by the respondent
No.2, has no substance on the admitted
facts stated in paragraph Nos.3, 4, 5, 6, 7,
10 & 11 of the counter affidavit of the
respondent No.2 and its reply in paragraph
Nos. 4 & 6 of the rejoinder affidavit filed
on behalf of the petitioner.

8. A detailed counter affidavit by the
respondent No.3, i.e. District Magistrate, Basti,
and a counter affidavits on behalf of the
respondent no.5, i.e. Superintendent of District
Jail, Basti, have been filed and the petitioner
has filed rejoinder affidavit to the aforesaid
counter affidavits which all are on record.

9. The only submission made by learned
counsel for the petitioner before this Court, as
has also been noted in the order dated
27.07.2021; is that the delay of 57 days in
deciding the representation by the respondent
no.1 is unexplained and, therefore, further
detention of petitioner is wholly illegal and
unwarranted and consequently the writ
petition should be allowed.

10. In support of his contention learned
counsel for the petitioner has relied upon a
judgment of Hon'ble Supreme Court in the
case of Rajammal Vs. State of Tamil Nadu
and another, AIR 1999 SC 684, with specific
reliance, the relevant portion of which has
been quoted in the order dated 27.07.2021, and
the same is reproduced below :-

"It is for the authority concerned
to explain the delay, if 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. It
was
further
held
that
delay
from
09.02.1998
to
14.02.1998
remains
unexplained and such unexplained delay
has vitiated the further detention of the
detenue. The corollary thereof is that
further detention must necessarily be
disallowed".

11. There is no quarrel on the
aforequoted principle of law stated by
Hon'ble Supreme Court in the case of
Rajammal (supra) that the test is not the
duration or range of delay, but how it is
explained by the authority concerned.

12. The only thing that needs to be tested
in the present writ petition is as to whether the
time taken in deciding the representation has
been properly explained by the respondent
No.1. For this purpose, we have to look at the
explanation offered by the respondent no.1.
The order of detention dated 02.11.2020,
under Section 3(3) of the National Security
Act, 1980 was passed by the District
Magistrate, Basti, against the petitioner. The
petitioner
submitted
an
objection/representation
to
it
dated
12.11.2020. As per paragraph No.6 of the
counter affidavit of the respondent no.2, a
copy of the representation dated 12.11.2020
alongwith parawise comment was received in
the concerned section of the State Government
on 01.12.2020 alongwith letter of the District
Magistrate dated 27.11.2020 and thereupon
the State Government sent copies of the
representation and parawise comments to the
Central Government i.e. the respondent no.1
and to the U.P. Advisory Board (detention)
vide separate letters both dated 01.12.2020.

13. The aforesaid representation of
the petitioner sent by the respondent no.2 to
802 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent no.1 was received in the
concerned section of the Ministry of Home
Affairs
on
10.12.2020.
Despite
unprecedented situation due to COVID
19, the representation of the petitioner
alongwith parawise comments of the
detaining authority was processed for
consideration of the Union Home Secretary
on 17.12.2020, as has been stated in
paragraph no.4 of the supplementary
counter affidavit of the respondent No.1
which portion has not been disputed or
denied by the petitioner in paragraph no.3
of the rejoinder affidavit.

14. The fact of unprecedented
situation due to Pandemic COVID 19 is
also reflected from the averments made by
the petitioner in paragraph No. 3 of the writ
petition sworn on personal knowledge,
wherein the counsel for the petitioner has
himself declared that due to Pandemic
COVID 19, it is impossible for the
deponent to come at Allahabad High Court
to swear the affidavit, in view of the order
dated 11.04.2020, passed by the High
Court.

15. The deponent of the affidavit
accompanying the writ petition is Krishna
Kumar Singh who is elder brother of the
petitioner, has stated in paragraph No. 4 of
the writ petition that he is filing this habeas
corpus writ petition on behalf of the
petitioner. In the declaration accompanying
the writ petition filed by the Sri Raj Kumar
Singh,
Advocate
(counsel
for
the
petitioner/applicant), it has been stated that
"due to Corona Virus (COVID -19)
Pandemic and Nation Wide lock-down and
due to close of Photo I.D. center, the
deponent unable to swear the Affidavit filed
in support of the present Habeas Corpus
Writ
Petition."
Thus,
the
petitioner/deponent
of
the
affidavit
accompanying the writ petition as well as
the petitioner's counsel have admitted on
record the unprecedented situation created
due to Pandemic COVID 19. Therefore, the
explanation offered with reference to the
unprecedented situation created due to
Pandemic COVID 19, is well acceptable.

16. The petitioner has also not denied
the averments of paragraph No.4 of the
supplementary counter affidavit that the
matter was thoroughly examined by the
under Secretary with Section Officer and
Section Staff and after satisfying all the
facts, the National Security Advisor (NSA)
with her comments forwarded the file to the
Deputy
Legal
Advisor
(DLA)
on
23.12.2020, who forwarded the file to the
Joint Secretary on the very next day i.e.
24.12.2020. The petitioner in his rejoinder
affidavit
has
also
not
disputed
the
averments of paragraph No. 4 of the
supplementary counter affidavit of the
respondent no.1 to the effect that the
intervening period 25th , 26th and 27th
December 2020 were Saturday, Sunday and
Christmas Eve and on 28th December
2020, the matter was discussed with the
Joint Secretary (I.S. -II) and the Deputy
Legal Advisor (DLA) and immediately
thereafter the Joint Secretary (IS-II) with
his comment forwarded the file to the
Union Home Secretary on 02.01.2021 who
rejected the representation of the detenu on
04.01.2021 and sent the file back to the
Joint Secretary (Internal Security - II). The
file reached to the Section through the
aforesaid levels of Officer on 06.01.2021
and accordingly the detenu and the
authorities concerned were informed vide
wireless message dated 06.01.2021. It has
also been stated in paragraph No. 4 of the
supplementary counter affidavit by the
respondent No.1 that 12th , 13th , 19th ,
20th , 25th , 26th and 27th December 2020
9 All Kali Prasad @ Pandit Singh Vs. Union of India & Ors.
803
and 2nd and 3rd January 2021 of the
intervening period were Saturday, Sunday
and Christmas Eve. The specific averments
as stated in paragraph No. 4 of the
supplementary counter affidavit by the
respondent no.1 and briefly noted above
have not been specifically disputed by the
petitioner in paragraph No. 3 of the
rejoinder
affidavit.
Thus,
the
only
submission of learned counsel for the
petitioner
that
there
occurred
an
unexplained delay of 57 days is wholly
without
substance.
The
judgment
of
Hon'ble Supreme Court in the case of
Rajammal (supra) is of no help to the
petitioner on the facts of the present case,
inasmuch as in the case of Rajammal
(supra) Hon'ble Supreme Court has laid
down the law that the test is not the
duration or range of delay but how it is
explained by the authority concerned.
Therefore, the delay as alleged by the
petitioner in paragraph No. 3 of the
rejoinder affidavit, is wholly without
substance.

17. Thus, the only point argued and
pressed before us by the learned counsel for
the petitioner to challenge the impugned
detention order, has no substance. No other
point has been argued before us by learned
counsel for the petitioner.

18. In Hetchin Haokip Vs. State of
Manipur, (2018) 9 SCC 562 (Paragraph
Nos. 9 to 15), Hon'ble Supreme Court
explained the meaning of the word
"forthwith" used in Section 3(4) of the
National Security Act, 1980, in the context
of
statute
providing
for
preventive
detention and after referring to the
Constitution Bench judgment in Keshav
Tilak
Nilkantah
Joglekar
Vs.
Commissioner of Police, AIR 1957 SC
28, Vidya dev Verma Vs. District
Magistrate, Agartala, AIR 1969 SC 323
and the Division Bench judgment in Salim
Vs. State of West Bengal (1975) 1 SCC
653, held that the word "forthwith" used
in Section 3 does not mean instantaneous
but without undue delay and within a
reasonable
time
which
is
to
be
ascertained from the facts of the case.

19. The facts of the present case as
briefly discussed above would reveal that
the respondent Nos. 1 & 2 have not caused
undue delay in deciding the representation
of the petitioner. Both the said respondents
well explained the time taken in deciding
the representation.

20. In case of preventive detention no
offence is proved nor any charge is
formulated and the justification of such
detention is the suspicion or reasonability.
There is no criminal conviction in matters
of preventive detention which can only be
warranted by legal evidence. Therefore,
preventive justice requires an action to be
taken to prevent apprehended objectionable
activity, but at the same time the greatest
human freedoms i.e. personal liberty of a
person is deprived. Therefore, the law of
preventive detention are construed strictly
and
a
meticulous
compliance
with
procedural safeguard, however, technical,
is
mandatory.
Therefore,
preventive
detention is also described as "jurisdiction
of suspicion". These principles have been
discussed by Hon'ble Supreme Court in
Kubic Darusz Vs. Union of India (1990)
1 SCC 568, Ayya Vs. State of U.P. (1989)
1 SCC 374 and Union of India Vs.
Yumnam Anand M. (2007) 10 SCC 190.

21. In Rajindra Vs. Commissioner of
Police (1994) Suppl. (2) SCC 716, Hon'ble
Supreme Court held that once a representation
is made, the detenu is entitled to the
804 INDIAN LAW REPORTS ALLAHABAD SERIES
representation being dealt with expeditiously
and if there is some ex facie delay, the
obligation is on the State to explain that delay
by filing a proper counter affidavit and the
Court should insist that each day's delay must
be explained. It is obligatory on the part of the
Government to show by filing a counter
affidavit that it had acted promptly in dealing
with the representation. Thus, what is essential
is that the Court must be satisfied that the
Officers dealing with the representation
were not indifferent to the urgency of the
situation of the detenu being in jail. On the
facts of the present case, as discussed above, we
find that the Government has acted promptly in
the prevailing situation and also looking into the
urgency of the situation of the detenu being
detained in jail.

22. In Union of India and others Vs.
Laishram Lincola Singh @ Nicolai
(2008) 5 SCC 490 (paragraph Nos. 7 & 8)
Hon'ble Supreme Court held as under :-

"7. In Vinod K.Chawla v. Union
of India and Ors. (2006)7 SCC 337, it was
observed as under:

"13. The contention raised cannot
be judged by any straitjacket formula
divorced from facts. This has to be
examined with reference to the facts of
each case having regard to the volume and
contents of the grounds of detention, the
documents
supplied
along
with
the
grounds, the inquiry to be made by the
officers of different departments, the nature
of the inquiry, the time required for
examining the various pleas raised, the
time required in recording the comments by
the
authorities
of
the
department
concerned, and so on.

14. In L.M.S. Ummu Saleema v.
B.B. Gujaral (1981) 3SCC 317 it was held
that there can be no doubt that the
representation made by the detenu has to
be considered by the detaining authority
with the utmost expedition but as observed
in Frances Coralie Mullin v. W.C.
Khambra(1980) 2 SCC 275 (SCC p. 279,
para 5, "the time-imperative can never be
absolute or obsessive". In Madan Lal
Anand v. Union of India(1990) 1 SCC 81
the representation dated 17-1-1989 of the
detenu
who
was
detained
under
COFEPOSA was rejected after more than a
month on 20-2-1989. After referring to
L.M.S. Ummu Saleema it was held that the
detaining authority had explained the delay
in disposal of the representation and
accordingly the order of detention cannot
be faulted on that ground. In Kamarunnissa
v. Union of India (1991) 1 SCC 128 the
representation made by the detenu on 1812-1989 was rejected on 30-1-1990 and it
was contended that there was inordinate
delay
in
consideration
of
the
representation. In the explanation given in
the counter-affidavit filed in reply, it was
submitted that considerable period of time
was taken by the sponsoring authority in
forwarding its comments. It was contended
on behalf of the detenu that the views of the
sponsoring
authority
were
totally
unnecessary and the time taken by that
authority
could
not
be
taken
into
consideration. The contention was repelled
by this Court and it was observed that
consulting the authority which initiated the
proposal can never be said to be an
unwarranted exercise. It was further
emphasised that whether the delay in
considering the representation has been
properly explained or not would depend
upon the facts of each case and cannot be
judged in vacuum. Similarly, in Birendra
Kumar Rai v. Union of India (1993) 1 SCC
272 the petitioner made a representation
against his detention on 22-12-1990 which
9 All Kali Prasad @ Pandit Singh Vs. Union of India & Ors.
805
was rejected by the Central Government
after a month on 25-1-1991. It was
observed that the explanation offered for
the
delay
in
consideration
of
the
representation was not such from which an
inference of inaction or callousness on the
part of the authorities could be inferred
and accordingly the challenge on the
ground of delay
was
rejected.
The
subsequent decisions of this Court are also
on the same lines and we do not consider it
necessary to refer to them as the principle
is well settled that there should be no
inaction or lethargy in consideration of the
representation and where there is a proper
explanation for the time taken in disposal
of representation, even though it may be
long, the continued detention of the detenu
would not be rendered illegal in any
manner.

15. The grounds of detention in
the present case are a long one running
into
35
paragraphs
which
were
accompanied by 82 documents running
into 447 pages. The representation made
by the appellant was also a fairly long
one. The representation made by the
appellant on 24-3-1998 was received by
the Ministry on 27-3-1998. The comments
of the sponsoring authority were called
on 30-3- 1998 which were received on
17-4-1998. The comments were placed
before the Secretary (R) through the ADG
on 22-4-1998 (18th and 19th being
holidays). The decision of the Central
Government
was
taken
and
communicated on 29-4-1998 (25th and
26th being holidays). The representation
was also considered by the detaining
authority in the meantime and was
rejected on 21-4-1998. In the additional
affidavit filed on behalf of the sponsoring
authority before the High Court, it was
stated
that
the
representation
was
received by them on 2-4-1998 and the
comments were dispatched on 17-4-1998.
During this period, there were holidays
on 4th, 5th, 8th to 12th April, and only
seven working days were available.
Again there were holidays on 18th, 19th,
25th and 26th April. Having regard to the
facts and circumstances of the case, we
are clearly of the opinion that the entire
time taken in consideration and disposal
of the representation made by the
appellant has been fully explained and it
cannot be said by any stretch of
imagination
that
there
was
any
inordinate delay or unexplained delay in
considering the representation made by
the appellant. The challenge to the
detention order made on the ground of
delay
in
consideration
of
the
representation made by the appellant has
no
substance
and
deserves
to
be
rejected."

8. The order of the High Court is
clearly unsustainable and is set aside. The
period of detention fixed by the order of
detention being over, it is open to the
detaining authority to consider whether
there is any need for detaining the
respondent as the situation stands now."

23. Thus, for all the reasons stated
above the time taken by the respondent no.
1 and the respondent no.2 in deciding the
representation of the petitioner/detenu on
facts of the present case can not be said to
suffer from undue delay or inordinate
delay.

24. Thus, for all the reasons
aforestated, we do not find any merit in the
present writ petition. Therefore, the writ
petition is dismissed. However, there shall
be no order as to costs.
----------
806 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)09ILR A806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Habeas Corpus No. 23475 of 2020

Mohd. Faiyyaz Mansuri ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Kumar Dwivedi, Harish Pandey,
Sushil Kumar Singh

Counsel for the Respondents:
G.A., A.S.G.,Pooja Singh

(A) Habeas Corpus - National Security Act,
1980 - Section 3 (2) - Order of detention ,
Section 3(4) - Order of approval , Section
8 - Grounds of order of detention to be
disclosed to persons affected by the order
- Section 10 - Reference to Advisory board
, Section 11 - Procedure of Advisory Board
, Section 12(1) - Order of confirmation -
Indian Penal Code, 1860 - Sections 153A,
292, 505 (2), 506, 509, 295-A - The
Information
Technology
(Amendment)
Act, 2008 - Section 67 , Indian Evidence
Act, 1872 - Section 65-B - Constitution of
India
-
Article
21,22
-
preventive
detention is not punitive but preventive -
resorted to with a view to prevent a
person
from
committing
activities
regarded as prejudicial to certain objects
that the law of preventive detention seeks
to prescribe - Preventive detention is,
thus, based on suspicion or anticipation
and not on proof - Court not a proper
forum
to
scrutinize
the
merits
of
administrative decision to detain a person.
(Para -25 )

Posting of derogatory message on the Facebook
wall by Petitioner/detenue - indecent comment
on God and Goddess - hurt sentiments of Hindu
Community - tried to increase religious fervor
and threatened to kill - disturb the peace in the
area - detenue/petitioner arrested - Petition
filed by detenue/petitioner through his next
friend/brother - challenging the order of
detention passed by the District Magistrate ,
order of approval and confirmation passed by
Government of Uttar Pradesh under provision of
the N.S.A. - State Government extended
detention of the detenue/ petitioner - further
period of six months from the date of detention
by means of amendment.(Para - 1,9)

HELD:-
Activities
relied
upon
by
the
Detaining Authority to come to the conclusion
that in order to prevent the petitioner from
acting in any manner prejudicial to the
maintenance of public order, it became
necessary to pass order for detention of the
detenue/petitioner, cannot be said to be mere
disturbance of law and order. Plea of the
detenue/petitioner that there is delay in
forwarding the petitioner's representation on
the part of the respondent no.1 (Union of
India), has substance and on this count alone,
the impugned detention order is liable to be
quashed. (Para - 27,34)

Habeas corpus petition allowed.(E-7)

List of Cases cited:-

1. Lahu Shrirang Gatkal Vs St. of Mah. through
the Secretary & ors. , (2017) 13 SCC 519

2. Rajammal Vs St. of T.N. & anr. , (1991) 1
SCC 417

3. Mohinuddin @ Moin Master Vs D.M., Beed ,
AIR 1987 SC 1977

4. Satyapriya Sonkar Vs Superintendent,
Central Jail ,2000 Cr.L.J. Allahabad (D.B)

5. Kundanbhai Dulabhai Shaikh Vs D.M.,
Ahmedabad , 1996 (3) SCC 194

6. K.M. Abdulla Kunhi Vs U.O.I. , (1991) 1 SCC
476

7. Harish Pahwa Vs St. of U.P. & ors. , A.I.R.
1981 SC 1126