# Kamlesh Pathak v. D.M., Auraiya and others

- **Citation:** (2009) 2 ILRA 550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-17
- **Case number:** Criminal Misc. Habeas Corpus Writ Petition No. 13411 of 2009
- **Bench:** Vinod Prasad, Y.C. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-pathak-v-d-m-auraiya-and-others-41656
- **Pages:** 11

## Headnote

Smt. Poonam Singh
Sri J.P. Singh
Add. Solicitor General of India
Sri Sudhir Mehrotra
A.G.A.

Constitution of India, Art. 226-Detention
order passed by District Magistrate U/s 3
(3) of National Security Act-challenged
on the ground of delay in deciding
representation-23 days delay remained
unexplained-detention
order
not
sustainable.

Held: Para 26

In view of above averments, it is crystal
clear that there has been a delay of 26
days by the Union of India in considering
the
representation
of
the
detenu.
Explanation offered by the Union of
India for this occasioned delay of 26
days is not at all satisfactory and
acceptable and we, therefore, reject it.
In such a view, we are left with no other
option but to conclude that there has
been an undue and unexplained delay on
the part of the Union of India in
considering
detenu
petitioner's
representation, which nullifies continued
detention of the petitioner.
Case law discussed:
1996 (33) ACC 911, 1990 SCC (Cr) 258; AIR
1990 SC 1196; 1991 SCC(1) 128,

## Text

550 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
9. The appeal stands disposed of
finally in the light of the observations
made here in before.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2009

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE Y.C. GUPTA, J.

Criminal
Misc.
Habeas
Corpus
Writ
Petition No. 13411 of 2009

Kamlesh Pathak

...Petitioner
Versus
District Magistrate, Auraiya and others

 ...Respondents

Counsel for the Petitioner:
Sri Viresh Misra
Sri G.S. Hajela
Sri Amit Misra

Counsel for the Respondents:
Smt. Poonam Singh
Sri J.P. Singh
Add. Solicitor General of India
Sri Sudhir Mehrotra
A.G.A.

Constitution of India, Art. 226-Detention
order passed by District Magistrate U/s 3
(3) of National Security Act-challenged
on the ground of delay in deciding
representation-23 days delay remained
unexplained-detention
order
not
sustainable.

Held: Para 26

In view of above averments, it is crystal
clear that there has been a delay of 26
days by the Union of India in considering
the
representation
of
the
detenu.
Explanation offered by the Union of
India for this occasioned delay of 26
days is not at all satisfactory and
acceptable and we, therefore, reject it.
In such a view, we are left with no other
option but to conclude that there has
been an undue and unexplained delay on
the part of the Union of India in
considering
detenu
petitioner's
representation, which nullifies continued
detention of the petitioner.
Case law discussed:
1996 (33) ACC 911, 1990 SCC (Cr) 258; AIR
1990 SC 1196; 1991 SCC(1) 128,

(Delivered by Hon'ble Vinod Prasad J.)

1.

Kamlesh
Pathak,
the
petitioner/detenu, has questioned the
Constitutional validity of his detention
order dated 28.1.2009 (annexure no.3),
under
National
Security
Act
1980,
(hereinafter referred to as the Act), passed
by
Detaining
Authority,
District
Magistrate, Auraiya, respondent no.1,
wielding his power, under section 3(3) of
the Act.

2. Grounds for petitioner's detention,
based on the dossier supplied by the
police authorities, as was served to him
along with annexure no.3, in compliance
with section 8 of the act, are that Manoj
Kumar
Gupta,
Executive
Engineer,
Auraiya was murdered by Shekhar
Tiwari, MLA and his socio criminises,
regarding which a State wise closer strike
was organized by the Samajwadi Party on
25.12.2008. To maintain law and order
during that strike, at Tahsil crossing in
Auraiya city, police picket headed by incharge inspector was posted, when at
11.30 a.m., the petitioner accompanied by
his brothers Santosh Pathak and Ramu
Pathak along with hundred and fifty other
persons started torning off banners and
posters in Homganj market. When the
local police endeavored to forbade them
from
indulging
into
said
lawless
disorderly immoral behavior, the mob
2 All] Kamlesh Pathak V. D.M., Auraiya and others
551
started pelting stones and iron rods.
Warning calls by the police went
unheeded and the lawless conglomeration,
continued it's stone pelting missile war
and marched towards the office of the
Circle
Officer
and
Sub
Divisional
Magistrate, Auraiya. In the office of
Circle Officer furnitures were broken,
office records and a motor cycle of
constable Vinod Kumar, parked outside,
were
torched
with
combustible
inflammable petrol. Office record of the
Sub Divisional Magistrate's office was
also set a blaze and the furnitures were
damaged. To curb such social order
damaging activities, additional police
force, tear gas squad, PAC, fire brigade
and police from neighboring police
stations were requisitioned and were
pressed into action. Use of tear gas by the
law enforcing agencies was protested by
pelting of stones and iron pieces which
caused injuries to the police personals.
Shattering public order, the petitioner and
the lawless mob sprinted towards national
high way. However, the Petitioner along
with his twenty five associates, were
arrested.
Because
of
such
lawless
activities, social order of district Auraiya
was shattered, shutters and doors of the
shops were pulled down, and people
started running hither and thither, loosing
their mobile phones while running, which
were seized by the police force and
recovery memo, thereof, (annexure 1 to
the grounds of detention) was scribed by
SI Pati Ram Nagar at the dictation of Incharge Inspector Auraiya. Against the
petitioner and his associates FIR of crime
number 487 of 2008, for offenses under
sections
147/148/149/307/436/336/332/
353 IPC and 7 Criminal Law Amendment
Act and 3/6 Damage Of Public Property
Act was registered at 2.35 p.m. on
25.12.2008, itself, vide GD no. 28
(annexure no. 2 to the grounds of
detention).

3. Eroding social order by pelting of
iron pieces and stones, the petitioner and
the mob, injured 7 police personals who
were got medically examined (vide
annexures no. 3 to 9 to the grounds of
detention) in Primary Health Centre,
Auraiya. From the perusal of injury
reports District Magistrate concluded that,
if, the petitioner can cause injuries to the
law enforcing agencies while they were
discharging their lawful and legal duties
of maintaining public peace, law and
order, then it was established that a sense
of insecurity must have pervaded in the
minds of general public detrimental to the
public order.

4. Further grounds were that while
advancing towards Subhash crossing and
reaching Khanpur crossing at the national
high way, on 25.12.2008, plying vehicles
were stoned by the petitioner and the
mob, which was endeavored to be stopped
by
the
law
enforcing
agencies,
consequently they were also targeted with
flying stones and iron pieces missiles
injuring three police personals, (vide
annexures no. 12, 13 and 14 to the
grounds of detention). Road ways bus no.
UP 79 B- 0727 was torched by the mob
causing panic amongst driver, conductor
and passengers who sprinted to take
shelter to save their lives, which totally
disarrayed the social and public order.
The bus was totally burnt. Technical
examination of the said bus, by UPSRTC
Foreman, was annexed as annexure no.15.
National high way was jammed and the
police had to use force to arrest the
petitioner and his ten associates, for
which a arrest memo was also penned
down. FIR of crime no. 487A/ 08 for
552 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
offenses
under
sections
147/148/149/307/436/336/332/353/I.P.C.,
7 Criminal Law Amendment Act and 3/6
Damage Of Public Property Act was
registered at the police station Auraiya at
3.30 p.m. vide GD no. 31, on the same
day, which are annexures no. 10 and 11 to
the grounds of detention.

5. Setting a blaze the bus and 161
Cr.P.C. statements of the witnesses in
respect of the incident occurred at the
office of C.O. and SDM, (Vide annexure
nos. 16 to 21), indicated potentiality to
disturb public order and even tempo of
public life and hence those activities were
other grounds of detention mentioned by
the Detaining Authority. Further it was
also recorded, in the grounds, that the
Detaining Authority had perused general
diary no. 33 dated 25.12.2008 of 4.15
p.m. and became convinced that the
activities of the petitioner had aroused
anger and acrimony amongst youths
between 18 and 20 years of age and
therefore they started torning off banners
and posters and started indulging in
hooligan rowdiness. Eight of those boys
were arrested by the police under section
151 Cr.P.C., which further posed public
order problem. All the activities of the
petitioner and his associates eroded public
order of Auraiya city which was recorded
in the general diary vide annexure no. 22.
All the above incidents were also reported
with prominence in the daily news papers
like Dainik Jagran, Aaj, Hindustan, under
various titles, vide annexures 23 to 23N,
which incident reporting affected life of
the citizens in whole of the State. PAC
was pressed into action to quell the
activities of the petitioner vide annexure
no. 24.

6. It was further mentioned, in the
grounds, that respondent no.2, Detaining
Authority also considered FIRs and
charge sheets of various crime numbers
registered against the petitioner (vide
annexure nos. 25 to 30) which indicated
disturbing of election process, looting of a
petrol pump, snatching of a 303 bore rifle
relating to Cr.No. 43/91 (vide annexure
no. 31) assault and wrongful confinement,
(vide annexures nos. 32 and 33), getting
the accused of a murder case freed from
lawful custody, (annexure nos. 34 and 35)
and breaching section 144 Cr.P.C. order,
(annexure nos. 36,and 37). It was further
recorded
that
the
petitioner
had
surrendered on 27.1.2009 in the court of
Chief Judicial Magistrate, Auraiya, and
had filed his bail application, annexure
no. 38, which was rejected by the court
and hence the petitioner had filed bail
application before the Session's Judge,
(annexure no. 39), which was pending and
there were every likelihood of the
petitioner being released on bail. District
Magistrate was of the opinion that if the
petitioner is released on bail then he will
re-indulge into the activities detrimental
to the social order. It was further
mentioned in the grounds that a dossier
containing
above
facts
had
been
submitted by the police of police station
Auraiya
which
had
also
been
recommended
by
Additional
Police
Superintendent,
and
police
Superintendent, Auraiya, (annexure no.
40) for detaining the detenu/petitioner.

7. On the above dossier, Detaining
Authority became subjectively satisfied
that it was necessary to detain the
petitioner under the Act, for stopping him
from acting in any manner prejudicial to
the maintenance of public order and
hence, he ordered for his detention on
2 All] Kamlesh Pathak V. D.M., Auraiya and others
553
28.1.2009,
(annexure
no.
3)
which
detention order is under challenge in this
Habeas Corpus petition.

8. Along with the grounds, petitioner
was also informed regarding his rights to
send a representations to various State and
Central Authorities and Advisory Board,
and the manner and mode in which those
representations had to be made. He was
also informed regarding his rights of
personal hearing, before the Advisory
Board.

9. The detention order along with
the grounds and all connected papers were
dispatched to the State government by the
Detaining Authority on the same day on
which the detention order was passed,
which
was
received
to
the
State
Government on 29.1.2009 and after
carefully examining the record of the
case, the State Government approved the
detention
order
on
3.2.2009,
in
compliance with section 3(4) of the Act.
The approval was communicated to the
respondent no. 1 on 4.2.2009 and to the
Detenu/petitioner on 5.2.2009. Union
Government was also informed by the
State Government on 5.2.2009, through
speed post, under section 3(5) of the Act.

10. After being served with the
detention order and the grounds thereof ,
the petitioner made a representation on
11.2.2009, annexure no. 5, to the writ
petition. The said representation was
received in the office of the District
Magistrate on 12.2.2009, and the same
day the Detaining Authority called for the
comments
from
the
sponsoring
authorities, which was submitted to him
on 13.2.2009. Thereafter para wise
comments were prepared by the Detaining
Authority on 14.2.2009 and, following
day
being
a
Sunday,
the
District
Magistrate/ Detaining Authority rejected
petitioner's representation on 16.2.2009,
which rejection order was served to the
detenu petitioner on 18.2.2009.

11. Detenu's representation along
with para wise comments, dispatched by
the Detaining Authority on 16.2.2009, to
the State Authorities and to the Advisory
Board, through special messenger, was
received to the State Government on
17.2.2008 and on the same day it was
dispatched
to
the
Advisory
Board,
through a letter, and to the Central
Government, by speed post. On the next
day (18.2.2008), concerned section of the
State Government prepared detailed notes
on the said representation and, on that day
itself, Under Secretary and Joint Secretary
considered it and placed it before the
higher authorities for their final decision.
The representation was finally rejected by
the State government on 19.2.2009, which
rejection was communicated to the
District Magistrate on 20.2.2009, through
a
radiogram,
which
in
turn
was
communicated to the petitioner, through
jail Superintendent, the same day.

12. State Government referred
petitioner's case along with complete
records including comments from the
District
Magistrate,
petitioner's
representation, to the Advisory Board on
4.2.2009. Advisory Board informed the
State Government, on 19.2.2009, that it
will
consider
petitioner's
case
on
25.2.2009 and therefore detenu petitioner
was accordingly informed on 21.2.2009.
On 25.2.2009, in the presence of the
petitioner, his representation was rejected
by the Advisory Board and the State
government received its communication
on 17.3.2009, vide a letter of the even
554 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
date. Once again the State Government
examined Detenu's case a fresh and
finally confirmed his detention order on
23.3.2009, under section 12 of the Act,
for a period of 12 months from the date of
his actual detention i.e. 28.1.2009. The
same day (23.3.2009) radiogram of
confirmation was sent by the State
Government which was received to the
Detaining Authority on the same day at
9.25 p.m. and, in turn, it was informed to
the petitioner on 25.3.2009.

13. Deputy Jailor, district Jail
Pilibhit, in his counter affidavit has
recorded various dates mentioned above
regarding
the
detention
order,
representation, communication of various
orders, to the petitioner detenu, but for the
sake of brevity, we do not repeat the
same.

14. Respondent no.1, Detaining
Authority had also communicated the
detention order, the grounds thereof,
detenu petitioner's representation and his
comments to the Union Of India,
respondent no.4, on 17.2.2009, (This date
is different in the counter affidavit by
Union Of India as to be 16.2.2009), which
was received to the Union Of India on
19.2.2009. State Government had also
informed it, vide it's letter dated 4.2.2009,
(This date is different in the counter
affidavit of the State Government as to be
5.2.2009), which was received on the
concerned desk, in the Ministry of Home
Affairs, on 11.2.2009. It was placed
before under Secretary on13.3.2009, who,
after carefully considering the same
placed, it before Deputy Secretary (Legal)
on the same day who appended his notes
on 13.3.2009 itself. During that period,
the concerned section had received a
"large number of representations relates to
the detention under NSA, especially from
Uttar Pradesh. Further the concerned had
proceeded on medical leave for 20 days
and consequently the work concerning his
desk got adversely effected and it took
about two weeks to clear backlog on a
chronological order". Joint Secretary
considered the detenu's representation,
after his return from tour, on 16.3.2009
and placed it before the Union Home
Secretary, who could consider it only on
27.3.2009, due to "preoccupation with
various urgent and pressing security
related issues during relevant period".
Examining detenu's case and the nature of
his activities, the Home secretary rejected
Detenu's
representation,
which
was
communicated to the Detenu through
crash wireless message dated 31.3.2009
followed by a letter for the said purpose
dated 2.4.2009.

15. In the back grounds of above
factual scenario, that the petitioner has
challenged his detention order before us.

16. On the above facts, we have
heard Sri G.S. Hajela, Advocate in
support of this Habeas Corpus Writ
Petition, Sri Sudhir Mehrotra, learned
AGA and Sri P.K. Jaiswal holding brief
of Smt. Poonam Singh, learned counsel
for the Union of India.

17. Learned counsel for the
petitioner submitted that the detention
order of the petitioner is bad in law and
has been passed without any application
of mind. He further contended that at the
worst, the activities of the detenu
petitioner can be considered to be
reletable to law and order and not public
order and, therefore, there was no reason
for the District Magistrate to detain the
petitioner. It was further submitted that
2 All] Kamlesh Pathak V. D.M., Auraiya and others
555
the District Magistrate had considered
stale and non-existent grounds, which had
affected his subjective satisfaction and,
therefore, the detention order cannot be
sustained and deserves to be set aside. It
was further argued that the Detaining
Authority had also looked into extraneous
materials
and,
therefore,
also
the
detention order cannot be sustained. It
was next submitted that the detention
order is politically motivated and was
implanted malafidely because of political
rivalry. It was also submitted that the
detention
order
is
based
on
nonconsideration of material aspects, which
could
have
affected
the
subjective
satisfaction of the Detaining Authority. It
was also argued that the Sponsoring
Authority, while submitting dossier to the
Detaining Authority, had not supplied
relevant materials to him, which could
have affected his subjective satisfaction
and, therefore, also the detention order
cannot be sustained. It was further argued
that the bail application in respect of one
of the crime was not supplied to the
Detaining Authority and, therefore, also
the detention order cannot be sustained. It
was further submitted that the Detaining
Authority has not recorded any subjective
satisfaction regarding likelihood of the
petitioner being released on bail in near
future and, therefore, also the detention
order cannot be sustained. In support of
this last submission, learned counsel for
the petitioner relied upon the decision of
Ajay Kumar @ Ajay Vs. State of U.P.
and others 1996 (33) ACC 911. In
support of the argument that the bail
application of the petitioner was not
placed before the Detaining Authority,
learned counsel for the petitioner relied
upon the judgments of the Apex Court in
M. Ahmad Kutti Vs. Union of India:
1990 SCC ( Cr) 258; D.S. Chilawat Vs.
Union of India: AIR 1990 SC 1196;
Kamrunnisa Vs. Union of India 1991
SCC(1) 128 and Ahmad Hussain Vs.
Union of India. It was argued that the
copy of bail application relating to one of
the crime (crime no. 487-A of 2008) was
supplied to the petitioner along with the
grounds but, in relation to crime no. 487
of 2008, it was not at all supplied and,
therefore, for the reason that the complete
material
was
not
supplied
to
the
petitioner, the detention order cannot be
sustained. It was also submitted that the
detention order of the petitioner, which
was passed in undue waste within two
days, was based on politically motivated
exercise
and
being
based
on
non
application of mind, vague and stale
grounds on extraneous consideration,
deserves to be set aside. It was further
submitted that there has been an undue
and unexplained delay on the part of the
Union of India in considering the
representation
filed
by
the
detenu
petitioner
and,
therefore,
also
the
detention order of the petitioner cannot be
sustained. Concluding the argument, it
was submitted that Habeas Corpus Writ
Petition be allowed and the detention
order of the petitioner (annexure no. 3),
dated 28.1.2009, be set aside and the
petitioner be set at liberty.

18. Learned AGA as well as learned
counsel for Union of India on the contrary
contended that the activity of the detenu
petitioner, as was contained in the dossier,
supplied to the Detaining Authority
clearly indicated that the activities of the
detenu petitioner related with breach of
public order and, therefore, the District
Magistrate, Auraiya was fully justified in
passing the detention order. It was
submitted
that
blocking
of
public
highway, entering into the office of public
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
servants, destroying furnitures and the
public records were such activities, which
definitely affected the public order and,
therefore, it cannot be said that the
activity of the detenu petitioner related
only with law and order and not public
order. It was further submitted that no
extraneous material was considered by the
Detaining Authority while passing the
detention order and if the criminal
background of the petitioner was taken
into consideration by respondent no. 1,
then no exception can be taken of that
fact. Learned Standing Counsel for the
Union of India also argued that there has
been no delay on the part of the Union of
India in disposing of the representation of
the detenu petitioner. It is submitted that
if the Home Secretary was pre-copied
with
certain
other
measures,
the
explanation offered by the Union of India
in disposing of detenu's representation
remains fully explained and, therefore, it
cannot be said that Union of India was at
fault at any point of time in deciding the
petitioner's representation. Drawing the
curtain of their arguments, it was
submitted that the Habeas Corpus Writ
Petition is bereft of merits and deserves to
be dismissed.

19. We have considered the
arguments raised by both the sides and
have gone through the record of the
Habeas Corpus Writ Petition along with
various supplementary affidavits, counter
affidavits and rejoinder affidavits. We
take the arguments of learned counsel for
the petitioner in seriatum.

20. First of all, it was argued by
learned counsel for the petitioner that the
activity of the petitioner related with law
and order and not public order. The
perusal of the grounds of the detention
clearly indicates that the petitioner was
protesting against the murder of Manoj
Kumar Gupta, an engineer. The protest
was for maintaining law and order and not
breaching the same. Grounds clearly
indicates that what was really intended by
the petitioner was maintenance of law and
order and not disturbance of public order.
However, we could not loose site of the
fact that the motive may be lawful but the
manner in which the said motive was
executed by the petitioner and his
associates disturbed the public order.
Blocking of public highway, entering into
the office of public servants, destroying
the furnitures and the public records were
such activities, which definitely affected
the public order. Even tempo of public
life certainly was got affected by the
activities of the petitioner and his
associates and, therefore, it cannot be said
that the activity of the petitioner was
reletable only to law and order and not
public order. In such a view, the first
contention raised by counsel for the
petitioner is not acceptable and we hereby
hold that the detenu's activities related to
the disturbance of public order and it
definitely eroded even tempo of public
life.

21. Coming to the another aspect of
the arguments that the District Magistrate,
while
detaining
the
petitioner
had
considered those aspects also which were
not relevant and germane to the detention
order and that he had also considered
extraneous materials, we find that the said
argument is well founded. The grounds
for detaining the petitioner emerged on
25th January, 2009, on which date, it was
alleged
that
the
petitioner
started
protesting against the murder of Manoj
Kumar Gupta, an engineer, which had
occurred
on
23/24.12.2008.
While
2 All] Kamlesh Pathak V. D.M., Auraiya and others
557
detaining the petitioner, on the said
ground, before consideration of his past
history and criminal cases pending against
him for more than two decades ago were
totally irrelevant. From the counter
affidavit filed by the District Magistrate,
the criminal history of the petitioner has
been filed. In the said criminal history,
three crime numbers are of the year 1984
and one each are of 1985, 1991 and 2004.
The District Magistrate looked into those
criminal histories while detaining the
petitioner, which had definitely affected
his subjective satisfaction, which fact is
well perceptible from the perusal of the
grounds of detention. The Detaining
Authority had recorded in detail those
criminal histories. The crimes, which
were committed in 1984 could not have
been repeated after 25 years and the
grounds of the detention does not indicate
that those crimes were repeated in future.
It is very clear that three of the crime
numbers 479 of 1984, 484 of 1984 and
481 of 1984 related to one and the same
incident which were never repeated again
during the course of the 25 years. In such
a view, we are clear in our opinion that
the District Magistrate had taken into
consideration non existent stale materials
while detaining the petitioner and this
consideration makes impugned detention
order
vulnerable
not
liable
to
be
sustained.

22. Ground that the petitioner was
having a criminal history and was
involved in many cases was a non existent
ground. The date on which state wise
protest was organized by samajwadi party
i.e. 25.1.2008, all those incidents which
occurred prior to one and half years had
already lost their efficacy. It is recalled
here that under the preventive detention
law, a person can be detained only for a
period of 12 months. In such a view,
passing of detention order for an incident
which occurred more than 12 months ago,
in our opinion, is not a justifiable legal
exercise. If a person cannot be detained
for a period of more than 12 months it
indicates that the legislature itself was of
the opinion that the effect of a prejudicial
activity can remain only for such a period
of 12 months. Preventive detention is not
punitive in nature. By detaining a person,
he is neither convicted nor punished. The
law of preventive detention has got a
salutary purpose of forbidding recurrence
of activities detrimental to the public
order. If the legislature thought that the
recurrence of the activity cannot take
place after 12 months, passing of a
detention order on such an activity which
occurred prior to 12 months, is not
sanctified by law. Consequently, we are
also of the view that the grounds on which
the petitioner was detained was based on
non existent ground.

23. Further it is to be noted that
since the purpose of preventive detention
is not punitive , exercise of power under
the Act , therefore, can not be with such
ulterior motives. History sheet of a person
is
relevant
only
for
determining
reasonable prognosis of his future conduct
as to whether detenu had the tendency to
repeat the crime or not . But this does not
authorise the State to count even on those
incidents, where no live link between the
activity and the preventive detention order
existed. In the present case, gap of two
decades had completely snapped the live
link between the detention order and the
grounds relied upon by the Detaining
Authority, which grounds had definitely
affected his subjective satisfaction. The
purpose for which detenu was detained
had no nexus with the disturbance of
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
elections way back in the year 1984. Stale
and non existent grounds relied upon to
detain the petitioner, are by itself
sufficient to nullify the detention order. A
balance has to be struck between personal
liberty of a citizen on the one had and
preservation of social order with safety
and security of the country on the other.
Tilting the said balance in favor of State,
with out valid and legally sustainable
reasons, against the mandate of Statue,
will render detention order vulnerable
which could not be justified judicially.

24. The grounds of detention further
indicates that some of the relevant
materials have not been considered by the
Detaining Authority at the time when he
had passed the detention order. In this
respect, we record that while considering
the criminal history of the detenu
petitioner, Detaining Authority had not
considered the out come of those crimes.
Further, if the Detaining Authority took
into consideration criminal history of the
petitioner, it should have considered the
defense of the petitioner as well in those
offenses. Three of the crime numbers, as
has been pointed out above, related with a
single
incident
and,
therefore,
the
Detaining
Authority
should
have
considered the fact whether there was any
specific allegations against the petitioner
in those crimes or not. Moreover, in crime
number 43 of 1991 which related with
loot and dacoity, final report had already
been submitted exonerating the petitioner
of the swelled charge. The factum of
submission of final report was not brought
to the knowledge of the Detaining
Authority, which certainly would have
affected his subjective satisfaction while
forming an opinion against the petitioner
and, therefore, such a non consideration
renders the impugned detention order
illegal, which is also based on stale
ground for the reasons mentioned above.

25. Coming to the another argument
raised by the counsel for the petitioner
that
there
has
been
an
inordinate
unexplained delay in disposing of the
detenu's representation by the Union of
India, we find, from the counter affidavit
filed by Union of India, that the detention
order along with the grounds dispatched
by the District Magistrate was received to
the Union of India on 19.2.2009. State
Government had also dispatched the
grounds of detention along with Detaining
Authority's comments and representation
of the detenu petitioner, on 4.2.2009,
which was received to the Union of India
on
11.2.2009.
From
11.2.2009
till
13.3.2009, no acceptable or cogent
explanation at all has been offered by the
Union of India for not considering
detenu's representation. In this respect, the
only relevant paragraphs of the counter
affidavit by the Union of India are
paragraphs 4 and 6 which we reproduced
below:-

"4. That a report as envisaged under
Section 3(5) of the National Security Act,
1980 about the detention of the petitioner
was made by the Government of Uttar
Pradesh
vide
their
letter
No.
111/2/234/2009-CX-6 dated 04.02.2009
to the Central Government in the Ministry
of Home Affairs. The said report was
received by the Central Government in
the concerned desk in the Ministry of
Home Affairs on 11.02.2009 and was put
up
to
Under
Secretary
(NSA)
on
13.03.2009 who carefully considered the
case and submitted to Deputy Secretary
(Legal) (who has been delegated powers
by the Central Government to take note of
such cases). Deputy Secretary (Legal)
2 All] Kamlesh Pathak V. D.M., Auraiya and others
559
duly examined and took note of the report
in the Ministry of Home Affairs on
13.03.2009...................
6. That during the relevant period
the Section had received a large number
of representation relates to detention
under
NSA,
especially
from
Uttar
Pradesh. Further the concerned Dealing
hand proceeded on medical leave for 20
days
and
consequently
the
work
concerning his desk got adversely effected
and it took about two weeks to clear
backlog on a chronological order. The
representation
of
the
detenue
was
processed in the Section for consideration
at various levels in the Section, Under
Secretary, Deputy Secretary (Legal) and
submitted to Joint Secretary (IS), on
13.3.2009. The Joint Secretary considered
the case on his return from tour and
forwarded the same before the Union
Home
Secretary
on
16.03.2009.
It
appears that due to preoccupation with
various urgent and pressing security
related issues during relevant period the
Home Secretary (who has been delegated
powers by the Central Government to
decide such cases) could consider the
case of the detenue only on 27.03.2009.
After consideration of the representation
and the material on record show up that
detenue has indulged in large scale
lawlessness,
attack
on
Police
and
destruction
of
public
property
has
criminal history and poses threat to
public order, the representation was
rejected by the Union Home Secretary
and the file was returned to Section
through aforesaid levels. It is further
humbly submitted that there has not been
any deliberate delay or casualness in the
matter."

26. In view of above averments, it is
crystal clear that there has been a delay of
26 days by the Union of India in
considering the representation of the
detenu. Explanation offered by the Union
of India for this occasioned delay of 26
days is not at all satisfactory and
acceptable and we, therefore, reject it. In
such a view, we are left with no other
option but to conclude that there has been
an undue and unexplained delay on the
part of the Union of India in considering
detenu petitioner's representation, which
nullifies continued detention of the
petitioner.

27. Since, we are of the opinion that
the detention order (annexure no. 3)
passed
by
the
District
Magistrate,
Auraiya, detaining the petitioner under
Section 3(3) of the National Security Act
cannot be sustained for the reasons
mentioned above., we do not deal with
other aspects of the matter and the case
laws cited before us.

28. For the reason mentioned above,
we allow this Habeas Corpus Writ
Petition, set aside the detention order of
the petitioner, under Section 3(3) of the
National Security Act 1980, passed by
District
Magistrate,
Auraiya,
on
28.1.2009, vide annexure no. 3, and direct
the petitioner to be set at liberty forthwith
unless he is under custody in connection
with any other offense under legal orders.

There shall be no order as to cost.
---------
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2009

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Civil Misc. Writ Petition No.25322 of 1997

Anurag and others
...Petitioners
Versus
Judge Small Cause Court/Civil Judge (Senior
Division), Bijnor and others ...Respondents

Counsel for the Petitioners:
Sri K.M. Garg

Counsel for the Respondents:
Sri P.N. Khare
Sri D.C. Mathur
Sri Prashant Khare
S.C.

Arbitration
Act-1940-Section
14
(2)-
readwith Section 34-Suit for specific
performance-award given by Arbitrator
on same controversy-Application to stay
the proceeding-rejection on ground the
plaint
claiming
absolute
ownerincorrect-award
can
not
be
treated
waste paper.

Held: Para 14

In the present case, only because the
respondent No.3 is alleged to be to the
owner of the property, shall not make
out a case to render the award as waste
paper. Once the agreement is duly
signed and registered and the arbitrator
renders award, then the proceedings of
the regular suit ordinarily should be
stayed by the court.
Case law discussed;
AIR 2008 SC page 48

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri K.M Garg, learned
counsel for the petitioner and Sri P.N.
Khare learned counsel for the respondents
at length and perused the record.

2. The short matrix of the present
controversy relates between the members
of same family who are the petitioners
and respondents. In the present writ
petition, the respondent No. 3 had filed a
suit for ejectment for arrears of rent with
regard to property in question before
Small Causes Court registered as Suit No.
7/94, the petitioner No. 1 and 2 including
father Krishna Kumar were defendants in
the said suit. During the pendency of said
suit the parties including Sri Krishna
Kumar entered into arbitration agreement
deciding right title and shares of the
members of the family on 31st July, 1994.
Arbitration agreement was admittedly
registered on 12.8.1994, before the SubRegistrar, Chandpur District Bijnore. It
has not been disputed that the arbitrator
had given award on 24th August, 1994 and
the award includes property in question.
The share of Krishna Kumar was also
adjudicated by the arbitrator. It is also
mentioned in the award that the pending
litigation before the Small Cause Court in
District Bijnore, shall be withdrawn by
parties on or before 21.12.1994. It is
alleged that the arbitration award was
given to Sri Suresh Chandra, so that he
may file the award in the Court. However,
it appears that the award was not filed by
Sri Suresh Chandra in the Court.

3. In view of the above, on
11.5.1995
Sri
Krishna
Kumar
had
initiated the proceeding in the Court of
Civil Judge Bijnore by registering a case
No. 127 of 1995 to make the award the
rules of Court under sub-section (2) of
Section 14 of the Arbitration, 1940 (in
short the Act). It has not been disputed
that the delay in filing the application