# Kamlesh Pathak v. U.O.I. & Ors

- **Citation:** (2022) 2 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-18
- **Case number:** Habeas Corpus Writ Petition No. 310 of 2021
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-pathak-v-u-o-i-ors-48105
- **Pages:** 10

## Headnote

A. National Security Act, 1980 - Section
3(2) - Preventive detention against person
already in jail - a person can be detained
under the National Security Act even if he
is languishing in jail - conditions - to
record subjective satisfaction that such a
person is to be detained, it is necessary
that the authority passing the detention
order must be aware of the fact that; (1)
the detenu is actually in custody; (2) there
is a real possibility of his being released
on bail, and (b) that on being so released
he would in all probability indulge in
prejudicial
activity
and
it
was
felt
essential to detain such person to prevent
him from so doing - detaining authority
must
disclose
existence
of
such
satisfaction and the materials on the basis
of which it has been drawn - sponsoring
authority is under obligation to provide
complete information to the detaining
authority of all those cases in connection
with which the detenu is already in jail, so
that the detaining authority has all the
material before it to draw the satisfaction
whether an order of preventive detention
is required or not (Para25)

Before Court, the Detaining authority /D.M in its
replySt.d that considering the probability of
release of the petitioner on bail, it was found
necessary to detain the petitioner in order to
restore and maintain peace and normalcy in the
area - Held - sponsoring authorities did not
place any material as to whether any bail
application in three pending cases have been
moved
or
not
by
the
detenue
-
In
recommendation report of the sponsoring
authority there was no mention that the
petitioner was about to be released on bail - no
bail application moved by the petitioner in two
pending cases crime - Held, recording of the
satisfaction
that
there
was
likelihood
or
possibility of the petitioner being released from
jail was not possible as detaining authority was
not aware at all about the status of three
criminal cases while passing the detention order
on 10.1.2021 - Detention order vitiated (Para
27, 29)

B. Preventive Detention - Constitution of
India Article, Article 22 (5) - National
Security Act, 1980, S. 3(2) - Delay - right
of detenu to make a representation and
expeditious consideration of the same -
2 All. Kamlesh Pathak Vs. U.O.I. & Ors.
197
Constitution casts obligation upon the
authority making the detention order to
afford the earliest opportunity of making
representation
against
the
order
of
detention - It is a constitutional obligation
of
the
Government
to
consider
the
representation forwarded by the detenu
without any delay - detenu has a right to
receive a timely communication from the
appropriate government on the status of
his representation-be it an acceptance or
a rejection (Para 32)

Unexplained delay of 6 days in considering the
representation of the petitioner by the Central
Government
i.e.
from
date
28.1.2021
to
3.2.2021, the period between sending the
representation by theSt. Government and receipt
by the Central Government - Only explanation
given by theSt. Government was that the
representation was sent through most reliable
mode i.e. speed post - Held - explanation for the
delay is an eyewash - it was required that the
representation should have been sent through
the special messenger to ensure timely and
speedy delivery of it to the concerned offices -
delay on the part of the concerned Authority in
strictly complying with the provisions of the NSA
rendered the detention illegal - Detention order
vitiated (Para 36)

Allowed. (E-5)

List of Cases cited:

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES
and decree dated 14.02.2017 passed by the
First Appellate Court as well as judgment
and decree dated 20.01.2016 passed by the
Civil Judge (Senior Division), Luckow in
R.S. No. 436 of 2009 is set aside. The
matter be remanded to the Trial Court
before whom the parties shall appear on
07.03.2022 and who shall consider the
issue regarding the valuation of the share of
the appellants in light of the observations
made in this judgment. It is made clear that
in so far as the findings regarding the share
of the respective parties as well as the
house in question being a family dwelling
house is concerned they have not been
disturbed.

Resultantly, the second appeal
stands allowed in the aforesaid terms. Costs
are made easy. Record of the Court below
be remitted to the Court concerned
forthwith.
----------
(2022)02ILR A196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Habeas Corpus Writ Petition No. 310 of 2021

Kamlesh Pathak ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anurag Yadav, Sri Mahendra Pratap

Counsel for the Respondents:
A.S.G.I., G.A., Raj Kumari Devi

A. National Security Act, 1980 - Section
3(2) - Preventive detention against person
already in jail - a person can be detained
under the National Security Act even if he
is languishing in jail - conditions - to
record subjective satisfaction that such a
person is to be detained, it is necessary
that the authority passing the detention
order must be aware of the fact that; (1)
the detenu is actually in custody; (2) there
is a real possibility of his being released
on bail, and (b) that on being so released
he would in all probability indulge in
prejudicial
activity
and
it
was
felt
essential to detain such person to prevent
him from so doing - detaining authority
must
disclose
existence
of
such
satisfaction and the materials on the basis
of which it has been drawn - sponsoring
authority is under obligation to provide
complete information to the detaining
authority of all those cases in connection
with which the detenu is already in jail, so
that the detaining authority has all the
material before it to draw the satisfaction
whether an order of preventive detention
is required or not (Para25)

Before Court, the Detaining authority /D.M in its
replySt.d that considering the probability of
release of the petitioner on bail, it was found
necessary to detain the petitioner in order to
restore and maintain peace and normalcy in the
area - Held - sponsoring authorities did not
place any material as to whether any bail
application in three pending cases have been
moved
or
not
by
the
detenue
-
In
recommendation report of the sponsoring
authority there was no mention that the
petitioner was about to be released on bail - no
bail application moved by the petitioner in two
pending cases crime - Held, recording of the
satisfaction
that
there
was
likelihood
or
possibility of the petitioner being released from
jail was not possible as detaining authority was
not aware at all about the status of three
criminal cases while passing the detention order
on 10.1.2021 - Detention order vitiated (Para
27, 29)

B. Preventive Detention - Constitution of
India Article, Article 22 (5) - National
Security Act, 1980, S. 3(2) - Delay - right
of detenu to make a representation and
expeditious consideration of the same -
2 All. Kamlesh Pathak Vs. U.O.I. & Ors.
197
Constitution casts obligation upon the
authority making the detention order to
afford the earliest opportunity of making
representation
against
the
order
of
detention - It is a constitutional obligation
of
the
Government
to
consider
the
representation forwarded by the detenu
without any delay - detenu has a right to
receive a timely communication from the
appropriate government on the status of
his representation-be it an acceptance or
a rejection (Para 32)

Unexplained delay of 6 days in considering the
representation of the petitioner by the Central
Government
i.e.
from
date
28.1.2021
to
3.2.2021, the period between sending the
representation by theSt. Government and receipt
by the Central Government - Only explanation
given by theSt. Government was that the
representation was sent through most reliable
mode i.e. speed post - Held - explanation for the
delay is an eyewash - it was required that the
representation should have been sent through
the special messenger to ensure timely and
speedy delivery of it to the concerned offices -
delay on the part of the concerned Authority in
strictly complying with the provisions of the NSA
rendered the detention illegal - Detention order
vitiated (Para 36)

Allowed. (E-5)

List of Cases cited:

1. Kumail Vs S. of U.P. & ors. decided on
1.8.2019 in Habeas Corpus Petition No. 437 of
2019

2. Rekha Vs St. of T.N. & anr. (2011) 5 SCC 244

3. Rajammal Vs St. of T.N. & anr., (1999) 1 SCC 417

4. Aslam Ahmad Zahire Ahmad Shaik Vs U.O.I.
& ors. (1989) 3 SCC 277

5. Pebam Ningol Mikoi Devi Vs St. of Manipur,
(2010) 9 SCC 618

6. Mst. L.M.S. Ummu Saleema Vs B.B. Gujaral &
anr, (1981) 3 SCC 317
7. Sarabjeet Singh Mokha Vs The District
Magistrate, Jabalpur & ors., 2021 O Supreme
(SC) 654

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard the learned counsel for the
petitioner, learned A.G.A. for the State and
perused the record.

2. Law was set into motion with
lodging of the first information report on
15.3.2020 by Sri Ashish Kumar, registered
as case crime no. 189 of 2020 under
Section 147, 148, 149, 307, 302, 506 I.P.C.
and Section 7 Criminal Law Amendment
Act, police station Kotwali Auraiya,
District Auraiya.

3. As per the allegations of the first
information report, the petitioner Kamlesh
Pathak along with other co accused persons
armed with licensee and illegal weapons
tried to grab the land of Panchmukhi
Hanuman Mandir. When the local people
resisted, the present petitioner and his aids
started indiscriminate firing due to which
Advocate Manjul Chaubey and his sister
Sudha Chaubey were killed and three other
persons got injured. Earlier also, the
petitioner had illegally grabbed the land of
Kaleshwar Bhole Baba Dev Kali Mandir
and forcibly appointed his younger brother
as Mahant of the said temple. On the same
day, i.e. on 15.3.2020 the petitioner was
arrested and case crime no. 190 of 2020
under section 25 Arms Act and case crime
no. 196 of 2020 under sections 147, 148,
149, 353, 307 I.P.C. and Section 7 Criminal
Law Amendment Act were registered
against him and co-accused. Later on case
crime no. 462 of 2020 under section 3(1) of
U.P. Gangsters and Anti-Social Activities
198 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention) Act, 1986 was also registered
against the petitioner and others.

4. On the recommendation reports of
the Station House Officer, police station
Kotwali Auraiya, Circle Officer police
station Auraiya, Additional Superintendent
of Police and Superintendent of Police
Auraiya all dated 9.1.2021, the detention
order was passed on 10.1.2021 by the
District Magistrate, Auraiya exercising the
power under section 3(2) of the National
Security Act, 1980.

5. The instant Habeas Corpus Petition
has been filed under Article 226 of the
Constitution
of
India
to
quash
the
impugned detention order passed by the
respondent no. 3, the District Magistrate,
Auraiya
vide
no.
10/J.A.-N.S.A./2021
dated 10.1.2021 and orders dated 4.3.2021,
5.4.2021,
5.7.2021
and
1.10.2021
extending detention of the petitioner.

6. It is settled principle that
preventive detention is preventive and not
punitive. To prevent the misuse of this
potentially dangerous power, the law of
preventive detention has to be strictly
construed and meticulous compliance with
the
procedural
safeguards,
however
technical, is mandatory and vital.

7. Certain dates of the proceedings
undertaken against the petitioner are
relevant to be noted at the outset.

8. On the basis of occurrence dated
15.3.2020, the first information report as
case crime no. 189 of 2020 was lodged
against the petitioner and co-accused. Later
on case crime no. 190 of 2020, 196 of 2020
and 462 of 2020 mentioned above were
also registered against the petitioner and
others. After that on the recommendation
reports of the Station House Officer
Kotwali Auraiya, Circle Officer Kotwali
Auraiya, Additional Superintendent of
Police, Auraiya and Superintendent of
Police Auraiya all dated 9.1.2021, the
detention order dated 10.1.2021 was passed
by the Detaining Authority which was
approved on 19.1.2021 by the State
Government. On 21.1.2021, the petitioner
submitted 9 copies of representations
addressing to four authorities. The jail
authority sent those representations to the
District Magistrate Auraiya on the same
day, which were received in the office of
the
District
Magistrate,
Auraiya
on
22.1.2021. After obtaining police reports on
25.1.2021
the
representation
of
the
petitioner was rejected by the District
Magistrate
and
said
order
was
communicated to the petitioner through the
jail authority on 25.1.2021 itself. On
27.1.2021, the State Government received
the representation along with the letter of
the District Magistrate Auraiya dated
25.1.2021.
On
28.1.2021,
the
State
Government sent the representation to the
Central Government and Advisory Board.

9. At the ends of the State Government,
on
29.1.2021,
the
representation
was
examined by the Under Secretary. On
30.1.2021 and 31.1.2021, it was holiday. The
representation was examined before the Joint
Secretary, on 2.2.2021, it was placed before
the Special Secretary. On 3.2.2021 it was
considered by the Secretary Govt. of U.P. and
the Additional Chief Secretary and finally on
4.2.2021, the representation was rejected by
the State Government. This order was
communicated on 5.2.2021 to the petitioner
through
the
District
Magistrate
by
Radiogram.

10. On behalf of the Union
Government, it is brought on record that
2 All. Kamlesh Pathak Vs. U.O.I. & Ors.
199
the representation along with the letter
dated 28.1.2021 of the State Government
was received in the concerned Section of
Ministry of Home Affairs on 3.2.2021 and
after going through the representation along
with para-wise comments thereon of the
Detaining Authority and the report as
envisaged under section 3(5) of the
National Security Act, 1980 were put up to
the Under Secretary (NSA) on 5.2.2021.
On 6.2.2021 and 7.2.2021 there was
Saturday and Sunday. Thereafter, with the
comments of the Under Secretary (NSA),
the file was forwarded to the Deputy Legal
Adviser on 8.2.2021 who sent it to the Joint
Secretary ( Internal Security II) on
8.2.2021. The Joint Secretary ( Internal
Security II) with his comments forwarded
the same to the Union Home Secretary on
9.2.2021 and after due consideration, the
representation was rejected by the Union
Home Secretary on 9.2.2021. The file
reached back to the concerned Section on
11.2.2021 through the aforesaid levels and
a wireless message was sent on 11.2.2021
to the Home Secretary Government of U.P.
at Lucknow, Jail Superintendent, Agra U.P.,
District Magistrate, Auraiya, Uttar Pradesh
and the petitioner informing the said
decision. On 13.2.2021, the jail authority
communicated
the
decision
to
the
petitioner.

11. Further, on 23.2.2021, the
petitioner appeared before the Advisory
Board. The Advisory Board submitted its
report on 3.3.2021 to the State Government
after hearing the petitioner in person stating
that there was sufficient cause for the
preventive detention of the petitioner under
the National Security Act, 1980.

12. On receipt of the said report, the
case was fresh examined by the State
Government and the detention order was
confirmed
on
4.3.2021
keeping
the
petitioner under detention for a period of
three months at the first instance from the
date of actual detention of the petitioner i.e.
since 10.1.2021. On 5.4.2021, 5.7.2021 and
1.10.2021 the detention order was extended
for six months, 9 months and 12 months;
respectively. The total period of one year of
detention of the petitioner had come to an
end, accordingly, on 10.1.2022.

13. The arguments of the learned
counsel for the petitioner are of two fold;
firstly, that the satisfaction recorded by the
District Magistrate was not based on cogent
material and the material facts were
suppressed by the sponsoring authorities;
secondly,
that
the
period
between
28.1.2021,
the
date
of
sending
the
representation by the State Government and
3.2.2021 the date when representation was
received by the Central Government, the
delay of 7 days in considering the
representation of the petitioner by the
Central
Government,
has
not
been
explained, either by the State Government
or the Central Government.

14. The contention is that the delay on
the part of the concerned Authority in
strictly complying with the provisions of
the National Security Act, 1980 has
rendered the detention of the petitioner
illegal. It is submitted that though on the
date of hearing of this petition the total
period of detention was almost about to
expire, but since by the detention of the
petitioner, his right guaranteed under
Article 22 (5) of the Constitution of India
has been seriously infringed, the detention
order dated 10.1.2021 as such is liable to be
quashed.

15. Separate counter affidavits filed
on behalf of the respondent nos. 1 to 4 have
200 INDIAN LAW REPORTS ALLAHABAD SERIES
been placed before us to substantiate the
stand of the respondents, to assert that there
was no irregularity much less illegality in
the entire decision making process and the
detention order having been passed after
recording satisfaction of the competent
authorities may not be interfered with.

16. To deal with the rival contentions
of the parties, it would be apposite to look
into the relevant provisions as under:-

Section 3(2) (3) of the National
Security Act, 1980

(2) The Central Government or
the State Government may, if satisfied with
respect to any person that with a view to
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 or from
acting in any manner prejudicial to the
maintenance of supplies and services
essential to the community it is necessary
so to do, make an order directing that such
person be detained.

(3) If, having regard to the
circumstances prevailing or likely to
prevail in any area within the local limits of
the jurisdiction of a District Magistrate or a
Commissioner
of
Police,
the
State
Government is satisfied that it is necessary
so to do, it may, by order in writing, direct,
that during such period as may be specified
in the order, such District Magistrate or
Commissioner of Police may also, if
satisfied as provided in sub-section (2),
exercise the powers conferred by the said
sub-section: Provided that the period
specified in an order made by the State
Government under this sub-section shall
not, in the first instance, exceed three
months, but the State Government may, if
satisfied as aforesaid that it is necessary so
to do, amend such order to extend such
period from time to time by any period not
exceeding three months at any one time.

17. Authorization notification no.
111/1/1-80-CX-7 T.C.III issued by the
Home Secretary, Government of U.P. dated
15.10.2020 under section 3(3) of National
Security Act conferring powers on the
District Magistrate, Auraiya under section
3(2) of National Security Act is placed on
record.

18. In his reply, the detaining
authority, i.e. the District Magistrate
Auraiya has submitted that taking into
consideration the double murder committed
by the petitioner Kamlesh Pathak, his
attempt to grab the land of Panchmukhi
Hanuman Mandir, his previous act of
grabbing the land of Bhole Baba Dev Kali
Mandir and forcibly appointing his younger
brother as Mahant of the aforesaid temple,
terror and fear were spread in the society
and law and public order was seriously
disturbed. The residents of the locality hid
themselves in their houses on and after the
date of the incident. After getting the
reports of LIU/ police and views of
Advocates association, merchants, local
public and considering the criminal history
of
32
cases
against
the
petitioner,
considering the probability of repetition of
crime and the probability of release of the
petitioner on bail, it was found necessary to
detain the petitioner in order to restore and
maintain peace and normalcy in the area.
On the written recommendations of the
Station House Officer, Kotwali Auraiya,
Circle
Officer
Auraiya,
Additional
Superintendent of Police, Auraiya and
Superintendent of Police Auraiya, the
District
Magistrate,
Auraiya
while
recording
his
subjective
satisfaction
exercising powers under Section 3(2) of the
National Security Act, 1980 passed the
2 All. Kamlesh Pathak Vs. U.O.I. & Ors.
201
detention
order
dated
10.1.2021
in
accordance with law which was also
approved by the State Government on
18.1.2021 and later recommended by the
Advisory
Board
on
3.3.2021.
The
representation of the petitioner was rejected
by the detaining authority, by the State
Government and the Central Government,
on
consideration
of
all
attending
circumstances of the case.

19. It is vehemently argued by the
learned counsel for the petitioner that when
a person is already in jail the detention
order can only be passed if the detaining
authority is aware of all the necessary and
material facts to record his subjective
satisfaction which must be based on the
grounds:

(I) The detenu is in jail, (ii) He is
trying for his release from the jail, (iii)
There is real possibility of his being
released from jail and (iv) After his release
from jail, he will repeat similar activity
disturbing the public order at large.

20. After recording such satisfaction on
the above stated grounds on consideration of
relevant cogent material, the detaining
authority can pass the order detaining a
person under the National Security Act.

21. It is contended that from the
averments made in the detention order it is
evident that the sponsoring authorities did
not place any relevant material as to
whether any bail application in case crime
no. 190 of 2021, case crime no. 196 of
2021 and 462 of 2021 have been moved or
not. In fact, the detaining authority was not
aware at all about the status of the other
three criminal cases while passing the
detention order on 10.1.2021.

22. It is also argued that out of
criminal history of 32 cases in 13 cases the
petitioner has been acquitted whereas three
cases have been withdrawn. In 12 cases,
final report has been submitted by the
police. Thus, 28 cases have been disposed
of and only four cases, namely, case crime
no. 189 of 2020, 190 of 2020, 196 of 2020
and 462 of 2020 are pending against him.
On the date of the detention order, bail
application only in case crime no. 189 of
2020 under section 147, 148. 149, 307. 302
and 506 I.P.C. and 7 Criminal Law
Amendment Act, moved before the High
Court was pending. The bail application in
case crime no. 196 of 2020 was allowed
after the detention order was passed. Till
that date, no bail application was moved in
case crime no. 190 of 2020 and Case crime
no. 462 of 2020. All these four cases have
been slapped upon the petitioner on the
basis of one incident dated 15.3.2020 and
there was no link to connect the incident
dated 15.3.2020 and the detention order
dated 10.1.2021 as it was passed almost
after ten months of the alleged incident.

23. It may be noted at this juncture,
that in a catena of decisions on the issue, it
has been settled that even if a person is in
custody, detention order can validly be
passed. The legal proposition is that a
person can be detained under the National
Security Act even if he is languishing in
jail. However, to record satisfaction, which
obviously is a subjective one, that such a
person is to be detained it is necessary that
the authority passing the detention order
must be aware of the fact that; (1) the
detenu is actually in custody; (2) there is a
real possibility of his being released on
bail, and (b) that on being so released he
would in all probability indulge in
prejudicial activity, and thus to demonstrate
202 INDIAN LAW REPORTS ALLAHABAD SERIES
that it was felt essential to detain such
person to prevent him from so doing.

24. In Kumail Vs. State of U.P. and
others decided on 1.8.2019 in Habeas
Corpus Petition No. 437 of 2019, a
Division
Bench
of
this
Court
has
summarized the legal position as under'

The reason to believe that there is
likelihood or real possibility of the person
being released on bail must be based on
cogent material and not mere ipse dixit of
the authority. Such satisfaction can be
drawn on the basis of reports of the
sponsoring authority, the nature of the
offences in connection with which the
detenu is in jail as also the facts and
circumstances of that case including grant
of bail to co-accused or general practice of
courts in such matters. But once challenge
is laid with regard to existence of such
satisfaction, then the detaining authority in
its return / affidavit must disclose existence
of such satisfaction and the materials on
the basis of which it has been drawn.
However, if in the return it is demonstrated
that satisfaction was drawn and there
existed material to draw such satisfaction,
the same cannot ordinarily be interfered
with on the ground of insufficiency of
material.

25. Thus it is clear that it is incumbent
on the detaining authority to demonstrate
that it was aware of all those circumstances
which were material and relevant in
connection with which the detenu is to be
detained at the time of passing of the order
of preventive detention. A fortiori, the
sponsoring authority is under obligation to
provide complete information to
the
detaining authority of all those cases in
connection with which the detenu is
already in jail, so that the detaining
authority has all the material before it to
draw the satisfaction whether an order of
preventive detention is required or not.

26. In this connection when we go
through the recommendation reports of the
sponsoring authorities namely the Station
House Officer Kotwali Auraiya, Circle
Officer, police station Auraiya, Additional
Superintendent of Police, Auraiya and
Superintendent of Police, Auraiya which
are appended with the writ petition, in none
of them, it was mentioned that the
petitioner was about to be released on bail
in case crime no. 190 of 2020 and 462 of
2020. On the date of submitting the
recommendation reports dated 9.1.2021,
the bail order in case crime no. 196 of 2020
was also not in existence as it was passed
on 28.1.2021. In all these reports there is
mention of applying bail by the petitioner
only in case crime no. 189 of 2020 under
sections 147, 148, 149, 302, 307 and 506
I.P.C. and Section 7 Criminal Law
Amendment Act only. On the basis of these
reports, the detaining authority has also
mentioned in its order that ''bail application
in case crime no. 189 of 2020 of the
petitioner was pending in the Court vide
bail application no. 46390 of 2020 and
further that it was the talk of the town that
the petitioner was by all means trying to get
himself released on bail; repetition of the
crime and possibility of disturbances of the
public order by the petitioner thus, could
not be ruled out.

27. It is admitted fact that till the date
of the order dated 10.1.2021 no bail
application had been moved by the
petitioner in case crime no. 190 of 2020
under section 25/27 Arms Act, police
station Kotwali Auraiya, District Auraiya
and case crime no. 462 of 2020 and under
Section 3(1) of the Gangster Act, 1986. So
2 All. Kamlesh Pathak Vs. U.O.I. & Ors.
203
recording of the satisfaction that there was
likelihood or possibility of the petitioner
being released from jail was not possible.

28. In Rekha Vs. State of Tamil
Nadu and another (2011) 5 SCC 244 the
Apex Court has held that where a detention
order is served on a person already in jail
there should be a real possibility of release
of the said person on bail who is already in
custody provided he has moved a bail
application which is pending. It follows
logically that If no bail application is
pending, then there is no likelihood of the
person in custody being released on bail,
and hence the detention order will be
illegal. However, there can be exception to
this rule that is where a co-accused whose
case stands on the same footing had been
granted bail. In such cases the detaining
authority can reasonably conclude that
there is likelihood of the detenue being
released on bail even though no bail
application of his is pending since most
Courts normally grant bail on this ground.

29. In the instant case, neither in the
recommendation report nor in the detention
order it has been noted that the detenu had
moved bail application in case crime no.
190 of 2020 and 462 of 2020 and
admittedly, the sponsoring authority was
supposed to be aware of the fact that these
two cases were registered against the
detenu, it can not but be concluded that the
sponsoring authority had withheld relevant
material / information from the detaining
authority. The detaining authority at its own
end without making proper inquiry to
record its satisfaction on the facts that since
bail application had not even been moved
in two aforesaid cases, could not have been
recorded satisfaction of likelihood of the
petitioner being released on bail. The order
of detention, on the ground that it is vitiated
on account of suppressing or withholding
of relevant material and information by the
sponsoring authority and as such the
subjective satisfaction of the detaining
authority being recorded on incomplete and
insufficient facts and material deserves to
be quashed.

30. Now the second ground of delay
of 6 days i.e. from date 28.1.2021 to
3.2.2021, the period between sending the
representation by the State Government and
receipt by the Central Government is to be
appreciated. The attention of the Court is
drawn towards Article 22(5) of the
Constitution of India in this regard.

31. The Article 22 (5) of the
Constitution of India reads as under;

" (5):- When any person is
detained in pursuance of an order made
under any law providing for preventive
detention, the authority making the order
shall, as soon as may be, communicate to
such person the grounds on which the order
has been made and shall afford him the
earliest
opportunity
of
making
a
representation against the order.

32. It is argued that Article 22(5) of
the Constitution casts obligation upon the
authority making the detention order to
afford the earliest opportunity of making
representation
against
the
order
of
detention. The preventive detention curtails
personal liberty of a person guaranteed
under the Constitution of India. It is a
constitutional obligation of the Government
to consider the representation forwarded by
the detenu without any delay. The right of
detenu to make a representation and
expeditious consideration of the same
would be an empty formality without a
corollary right of the detenu to receive a
204 INDIAN LAW REPORTS ALLAHABAD SERIES
timely communication from the appropriate
government
on
the
status
of
his
representation-be it an acceptance or a
rejection.

33. It is an admitted fact that the State
Government sent the representation to the
Central Government on 28.1.2021 which is
said to have been received in the concerned
office of the Central Government on
3.2.2021. We sought clarification on this
delay from the State Government at the
time of hearing. The learned Government
Advocate Sri Sayed Ali Murtaza filed a
letter of the Special Secretary Home,
Government of U.P. dated 10.1.2022 before
us after the judgment was reserved. It has
been stated therein that the representation
of the petitioner was sent by Speed Post on
29.1.2021 and was received in the office of
the Union Government on 3.2.2021. It is
also mentioned that Speed Post services of
the
postal
department,
Ministry
of
Communications, Government of India is
the most trusted and fastest medium which
provides express and time bound delivery
of letters in India, having features of
Internet based Track and Trace system,
Delivery information on SMS, receive
SMS etc. It is also submitted that so far as
the
delay
in
delivery
of
the
said
representation is concerned, though no
official record is available but such delay
appears probable due to the date being near
the
Republic
Day,
the
adverse
circumstances due to Covid-19 and the
protest of the farmers at the relevant point
of time.

34. Learned counsel for the petitioner
placed reliance over the judgment of the
Apex Court in Rajammal Vs. State of
Tamil Nadu and another, (1999) 1 SCC
417 wherein it is held that explanation for
the delay and not the duration or range of
delay is material. In Aslam Ahmad Zahire
Ahmad Shaik Vs. Union of India and
others (1989) 3 SCC 277, it was opined by
the Apex Court that the unexplained delay
of 7 days on the part of Jail Superintendent
in transmitting the representation to the
Central Government as a result of which
the representation reached the Government
11 days after it was handed over to the Jail
Superintendent had vitiated the detention.
In case of Pebam Ningol Mikoi Devi Vs.
State of Manipur, (2010) 9 SCC 618, the
unexplained delay of 7 days in forwarding
the
representation
to
the
Central
Government was held to be fatal. In case of
Mst. L.M.S. Ummu Saleema vs B.B.
Gujaral & Anr, (1981) 3 SCC 317, it has
been observed by the Apex Court that the
time imperative can never be absolute or
obsessive
and
that
the
occasional
observations made by this Court that each
day's
delay
in
dealing
with
the
representation
must
be
adequately
explained are meant to emphasis the
expedition with which the representation
must be considered and not that it is a
magical formula, the slightest breach of
trust must result in release of the detenu. In
case of Sarabjeet Singh Mokha Vs. The
District Magistrate, Jabalpur and others,
2021 O Supreme (SC) 654, the Apex
Court
held
that
failure
in
timely
communication of the order of rejection of
the representation is a relevant factor for
determining the delay as the detenu is
protected against under Article 22 (5). It
was held that failure of the Central
Government and State Government to
communicate
the
rejection
of
the
representation of the appellant in a time
bound manner is sufficient to vitiate the
order of detention.

35. In the present case, admittedly 9
copies of the representations addressed to
2 All. Mohit Sharma Vs. State of U.P. & Ors.
205
the concerned authorities were submitted
by the petitioner to the jail authority on
21.1.2021. These representations were
forwarded by the jail authority to the
District
Magistrate
where
they
were
received on 22.1.2021 and since then
through the District Magistrate via the State
Government, the representation could reach
the Central Government only on 3.2.2021.
This delay is explained by the State
Government with the assertion that it was
sent through the most reliable mode, i.e.
speed post and, on the other hand, the delay
was probable because of intervening
Republic Day, the adverse circumstance
due to Covid-19 and the protest of the
farmers at the relevant point of time.

36. The explanation for the delay is an
eyewash. Considering the constitutional
obligation of the decision making authority
to consider the representation of the detenu
without any delay it was required that the
representation should have been sent
through the special messenger to ensure
timely and speedy delivery of it to the
concerned offices. The casual attitude of
the
concerned
office
in
sending
representation through speed post shows
complete
lack
of
understanding
or
ignorance of the legal provisions and the
constitutional obligation of the government,
be it the State or Central Government. The
explanation
offered
by
the
State
Government for the delay occurred in
receipt of the representation in the office of
the
Central
Government
cannot
be
comprehended.

37. Another aspect that during
28.1.2021 to 3.2.2021, the Covid-19 graph
was very low and all emergency services
were opened up. In what manner the protest
of the farmers had affected the speedy
delivery in sending the representation has
not been explained. Thus, the clarification
of the State Government is far from
convincing.

38. For the reasons as aforesaid, the
detention order is found to be vitiated, the
decision making process being against the
settled legal principles. As the detention
order is vitiated itself, the extension orders
are liable to be set aside.

39. Since the detention order has
outlived its life for the fact that the writ
petition could not be heard and decided
within the period of 12 months, maximum
period prescribed in Section 13 of National
Security Act, 1980, no other direction has
to be issued. However, it is held that the
petitioner can not be kept under detention
pursuant to the detention order passed
under Section 3(2) of the National Security
Act, 1980 by the District Magistrate,
Auraiya.

40. The writ petition is accordingly,
allowed. No order as to costs.
----------
(2022)02ILR A205
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Application U/S 482 No. 1482 of 2022

Mohit Sharma ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Yadvendra Mani Mishra

Counsel for the Opposite Parties:
A.G.A.