# Kanhaiya Awasthi v. U.O.I. & Ors

- **Citation:** (2021) 8 ILRA 301
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-16
- **Case number:** Habeas Corpus No. 24213 of 2020
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaiya-awasthi-v-u-o-i-ors-47178
- **Pages:** 17

## Headnote

A. National Security Act, 1980 - Section
3(2) - Preventive Detention - Subjective
satisfaction of authority - Judicial Review
- Scope of interference - Generally the
Court cannot sit as an appellate authority
in
such
cases
over
the
subjective
satisfaction of the detaining authority -
However, judicial review of such exercise
of power by the detaining authority on his
subjective satisfaction is available - High
Court
declined
to
interfere
in
the
subjective satisfaction of the detaining
authority
in
passing
the
impugned
detention order. (Para 13 and 14)
B. Constitution of India - Article 21 and
22(5) - National Security Act, 1980 -
Section 3(2) - Preventive Detention -
Representation of the detenue - District
Magistrate took seven days to forward the
representation - No Explanation - Central
Govt.
took
43
days
to
decide
representation - Delay in consideration of
the
representation
-
It's
effect
on
detention process - Highly cherished right
enshrined in Article 21 and 22(5) of the
Constitution castes a legal obligation on
the
Government
to
consider
the
representation as early as possible - Held,
even if some delay in consideration of the
representation may not become fatal to
the detention but non-explanation of the
same
would
certainly
impeach
the
detention order - There is no explanation
on the part of the District Magistrate as to
why he has forwarded the petitioner's
representation after seven days - District
Magistrate has not justified the period
taken for forwarding the petitioner's
representation to the State Government
and the Central Government after seven
days - High Court quashed the impugned
detention
order
holding
the
District
Magistrate and the Central Government at
fault. (Para 29, 32, 33, 37, 44 and 45)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,466 of 58,441. This is a partial read: ask again with offset=39466 for what follows._

8 All. Kanhaiya Awasthi Vs. U.O.I. & Ors.
301
rejected summarily. No judgment on the
issue or provision of law has been shown.
Bail in one case cannot be taken to be bail
in all other criminal cases registered
separately. If bail in one case is to be taken
as bail in all the cases than it could not be
explained as to why petitioner applied for
bail in 50 cases. Release even after the bail
is subject to compliance of formalities of
bail order. The petitioner has been arrested
in other criminal cases or is in custody
pursuant to a remand order in cases
registered separately.

12. It is not shown that petitioner had
completed all the formalities for release on
bail in all the cases where he has been
granted bail. The fact aforesaid is relevant
for the reason that bail was granted to the
petitioner earlier in one case, he could not
be released in absence of completion of the
formalities. It was completed later on but it
has to be in all the cases where petitioner
has been granted bail. It is not on record to
show that required formalities for release
after grant of bail were completed by the
petitioner in all the cases where bail was
granted. The petitioner has been taken into
custody in reference to other cases where
the bail has not yet been granted and not in
pursuance to B-Warrant. The B-Warrant
was issued in reference to five to seven
cases and not for all. Even if the chart
given by the petitioner is taken into
consideration, it shows custody pursuant to
other cases and not in pursuant to the BWarrant in all cases.

13. In the light of aforesaid, the
judgment of Madras High Court in the case
of K.S.Muthuramalingam (supra) would
have no application so as the judgment in
the case of Ram Dass Ram (supra). There
the issue was in regard to custody of the
accused pursuant on P.T.Warrant. The
custody pursuant to P.T.Warrant may not
be proper after acquittal or bail but in the
instant case, the petitioner has not been
taken into custody pursuant to B-Warrant
(P.T.) but pursuant to other pending cases.

14. The judgment of Apex Court in
the case of Ram Dass Ram (supra) would
not apply to the facts of this case. The
custody is not justified pursuant to the P.T.
Warrant when accused has been acquitted
or released on bail. The P.T.Warrants are
issued for the production of the accused
confined in jail in reference to other cases.
It is issued for production of the accused
thus cannot be used to keep the accused in
custody even after the bail or acquittal.
Thus the judgment of the Apex Court
would apply to the cases where accused is
kept in custody pursuant to P.T. Warrant
despite his acquittal or bail. In this case,
petitioner is in custody in reference to the
cases registered against him.

15. In view of the discussion made
above, we do not find it to be a case of
illegal detention and accordingly the writ
petition fails and is dismissed.
----------
(2021)08ILR A301
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2021

BEFORE

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

Habeas Corpus No. 24213 of 2020

Kanhaiya Awasthi ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Nadeem Murtaza, Sudhanshu S. Tripathi
302 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A., Varun Pandey

A. National Security Act, 1980 - Section
3(2) - Preventive Detention - Subjective
satisfaction of authority - Judicial Review
- Scope of interference - Generally the
Court cannot sit as an appellate authority
in
such
cases
over
the
subjective
satisfaction of the detaining authority -
However, judicial review of such exercise
of power by the detaining authority on his
subjective satisfaction is available - High
Court
declined
to
interfere
in
the
subjective satisfaction of the detaining
authority
in
passing
the
impugned
detention order. (Para 13 and 14)
B. Constitution of India - Article 21 and
22(5) - National Security Act, 1980 -
Section 3(2) - Preventive Detention -
Representation of the detenue - District
Magistrate took seven days to forward the
representation - No Explanation - Central
Govt.
took
43
days
to
decide
representation - Delay in consideration of
the
representation
-
It's
effect
on
detention process - Highly cherished right
enshrined in Article 21 and 22(5) of the
Constitution castes a legal obligation on
the
Government
to
consider
the
representation as early as possible - Held,
even if some delay in consideration of the
representation may not become fatal to
the detention but non-explanation of the
same
would
certainly
impeach
the
detention order - There is no explanation
on the part of the District Magistrate as to
why he has forwarded the petitioner's
representation after seven days - District
Magistrate has not justified the period
taken for forwarding the petitioner's
representation to the State Government
and the Central Government after seven
days - High Court quashed the impugned
detention
order
holding
the
District
Magistrate and the Central Government at
fault. (Para 29, 32, 33, 37, 44 and 45)
Writ petition allowed. (E-1)
Cases relied on :-
1. Lahu Shrirang Gatkal Vs St. of Maharashtra
through the Secretary & ors., (2017) 13 SCC
519
2. Senthamilselvi Vs St. of T.N., (2006) SCC 676
3. U.O.I. Vs Dimple Happy, AIR 2019 SC 3428
4. T. Devaki Vs Government of T.N. & ors., 1990
(2) SCC 456
5. Secretary to Government of Tamil Nadu
Public (Law and Ordre) Revenue Department &
ors. Vs Kamala & ors., (2018) 5 SCC 322
6. Commissioner of Police Vs Gurbux Anandram
Bhiryani, 1988 (Supp) SCC 568
7. K.M. Abdulla Kunhi & B.L. Abdul Khader Vs
U.O.I. & ors., (1991) 1 SCC 476
8.
Rama
Dhondu
Borade
Vs
K.
Sarqf,
Commissioner of Police & ors, (1989) 3 SCC 173
9. Rajammal Vs St. of T.N. & anr., 1999 (1) SCC
417
(Delivered by Hon'ble Ramesh Sinha, J.)

1. Questioning the legality and
validity of the order dated 06.09.2020
passed by the District Magistrate, Unnao
(respondent no.3), directing detention of
Kanahaiya
Awasthi
(detenue/petitioner
herein) in exercise of its power under
Section 3 (2) of the National Security Act,
1980 as well as the order dated 14.09.2020
passed by the Under Secretary, Home
(Confidential) Department, Government of
Uttar
Pradesh
(respondent
no.2),
confirming the order of detention dated
06.09.2020, petitioner/detenue Kanahaiya
Awasthi has preferred the instant Habeas
Corpus petition through his next friend and
sister-in-law Shivangi Awasthi.

2. The prejudicial activities of the
petitioner/detenue
impelling
the
third
respondent (District Magistrate, Unnao) to
clamp the impugned detention order against
him are contained in grounds of detention,
according to which, on 19.06.2020 at 3:30
8 All. Kanhaiya Awasthi Vs. U.O.I. & Ors.
303
p.m., one Subham Mani Tripathi, who was a
journalist by profession and the district
correspondent of a news daily ''Kampumali'
published from Unnao, was murdered by the
petitioner and other co-accused persons. In
this regard, brother of deceased, namely,
Rishabh Mani Tripathi, lodged an F.I.R. on
19.06.2020, which was registered as case
crime no. 188 of 2020, under Sections 147,
148, 149, 302/34, 120B I.P.C. and Section 7
of the Criminal Law Amendment Act, 1932,
at Police Station Gangaghat, District Unnao.
Thereafter, the petitioner was arrested and
detained in judicial custody for the aforesaid
incident. While the detenue was in jail w.e.f.
30.06.2020, the Inspector Incharge, Police
Station Gangaghat, District Unnao had
forwarded a dossier to the Superintendent of
Police, Unnao, who, in turn, forwarded the
same to the District Magistrate, Unnao
recommending that the detention of the
detenue may be ordered under the appropriate
provisions of National Security Act, 1980
(hereinafter referred to as "N.S.A."). The
aforesaid
Sponsoring
Authority,
while
recommending to detain the detenue under
N.S.A., has stated the facts that the detenue
has also been involved in six other criminal
cases and the detenue has tried to bail out in
the aforesaid cases and there is liklihood that
if the detenue be released on bail, he may
indulge
in
other
criminal
activities.
Thereafter, the District Magistrate, Unnao, on
considering the recommendation of the
sponsoring authority, invoked the provisions
of Section 3(2) of the N.S.A. and passed the
order of detention dated 06.09.2020, directing
to detain the detenue/petitioner under the
N.S.A., which is impugned in the instant
habeas corpus petition.

3. It transpires from the record that
the detention order along with the grounds
of detention dated 06.09.2020 and other
relevant document(s) was served upon the
petitioner/detenu on 06.09.2020 itself. On
14.09.2020,
the
State
Government
approved the order of detention dated
06.09.2020 and the same was also served
upon the petitioner/detenue on 14.09.2020.
Thereafter, the detenue/petitioner had filed
his representation dated 22.09.2020 to the
Uttar
Pradesh
Advisory
Board
(Detention), Lucknow, Secretary (Home),
Union of India, North Block, New Delhi
as well as the Secretary, Department of
Home,
State
of
U.P.
The
said
representation of the petitioner dated
22.09.2020
was
forwarded
by
the
Superintendent, District Jail, Unnao to the
District Magistrate, Unnao vide letter
dated 22.09.2020. Thereafter, the District
Magistrate, Unnao vide
letter dated
29.09.2020, forwarded the representation
of the petitioner to the State Government
(respondent no.2), Central Government
(respondent no.1). The State Government
has received the representation of the
petitioner on 30.09.2020, whereas the
Union of India (respondent no.1) has
received the petitioner's representation
dated 22.09.2020 on 05.10.2020.

4. After due consideration, the State
Government had rejected the representation
of the petitioner dated 22.09.2020 on
06.10.2020 and information in this regard
was also communicated to the petitioner
through District Magistrate, Unnao by the
State Government via radiogram dated
06.10.2020. Thereafter, the U.P. Advisory
Board (Detention), Lucknow, after due
consideration, opined that there is sufficient
cause for the preventive detention of the
petitioner under N.S.A. The said report and
records of the case were received in the
concerned Section of the State Government
on 19.10.2020 through the letter of the
Registrar,
U.P.
Advisory
Board
(Detentions) dated 19.10.2020.
304 INDIAN LAW REPORTS ALLAHABAD SERIES

5. On receipt of the aforesaid report of
the U.P. Advisory Board (Detentions) vide
letter
dated
19.10.2020,
the
State
Government had examined the issue afresh
and confirmed the detention order dated
06.09.2020 and also for keeping the
detenue/ petitioner under detention for a
period of three months tentatively from the
date of actual detention of the petitioner i.e.
since
06.09.2020,
vide
orders
dated
22.10.2020. Thereafter, on the basis of the
report/recommendation dated 21.11.2020
of the District Magistrate, Unnao, the
aforesaid orders dated 22.10.2020 was
amended vide order dated 26.11.2020,
extending
the
period
of
detention
tentatively for six months from the actual
date of detention i.e. since 06.09.2020.

6. Heard Sri Nadeem Murtaza and Sri
Sudhanshu
Shekhar
Tripathi,
learned
Counsel for the detenue/petitioner, Mr. S.B.
Pandey, learned Assistant Solicitor General
of India, assisted by Sri Varun Pandey,
learned Counsel for the Union of India and
Mr.
S.P.
Singh,
learned
Additional
Government Advocate for the State.

7. Challenging the impugned order of
detention as well as impugned confirmation
order of detention, it has been argued by
the
learned
Counsel
for
the
detenue/petitioner that the proceedings
recommending invocation of N.S.A. had
been initiated by the sponsoring authority
much belatedly after two and half months
of
the
alleged
solitary
incident
of
19.06.2020, which itself creates doubt on
the veracity of the entire proceeding for
invocation of preventive detention under
N.S.A. as well as same has a broken life
link between the alleged prejudicial activity
and the passage of the impugned detention
order. He further argued that the detaining
authority, without application of mind, had
passed
impugned
detention
order
irrespective of the fact that the criminal
antecedents of the petitioner pertain merely
to offences of petty in nature, which were
neither
life
threatening
nor
heinous.
Moreover, the detaining authority even
failed to appreciate that the alleged
prejudicial activity was also not attributable
to the petitioner as the investigation was
still going on at the time of passing the
impugned detention order and the chargesheet was submitted much belatedly after
invocation of NSA on 20.09.2020 as well
as the alleged offence of the petitioner is
yet to be ascertained by the Court of law.
The detaining authority has also failed to
appreciate that at most, the act may only be
considered as a disturbance of law and
order rather than a social order, affecting
merely the individual deceased and his
family, thereby rendering the impugned
detention order as bad in law.

8.

Learned
Counsel
for
the
detenue/petitioner, while placing reliance
upon Lahu Shrirang Gatkal Vs. State of
Maharashtra through the Secretary and
others : (2017) 13 SCC 519, has argued
that the proviso to Section 3 (2) of the
N.S.A. prescribed that no order passed
under Section 3 (2), shall, in the first
instance, exceed six months and if the State
Government is satisfied that the order is
required to be passed for a further period, it
may extend the period of detention by such
period not exceeding three months at any
one time and in no case, the period of
detention would exceed the period of one
year in total. He argued that in the present
case, perusal of the impugned order of
detention passed by the detaining authority
as well as impugned order of affirmation
passed by the State Government reveals
that it does not specify the period for which
detention has been ordered and, therefore,
8 All. Kanhaiya Awasthi Vs. U.O.I. & Ors.
305
in view of the ratio laid down by the Apex
Court in Lahu Shrirang Gatkal Vs. State
of Maharashtra through the Secretary
and
others
(supra),
the
impugned
detention order and consequential order is
illegal.

9. The next contention of the learned
Counsel for the petitioner is that admittedly
the statutory representation of the detenue
was forwarded by the detaining authority
after a considerably delay of seven days,
which was received by the Ministry of
Home Affairs, Government of India on
05.10.2020. The Union Government in the
most callous and lackadaisical manner
processed the same for consideration much
belatedly after a delay of nine days after
receipt of the statutory representation for
which no explanation at all has been
afforded by the Central Government.
Further, there is a long and inordinate delay
of 43 days in disposing of the statutory
representation of the petitioner. There is
also inordinate and unexplained delay of
four days in communication of its result to
the petitioner, which has been admitted by
the jail authorities. Thus, the impugned
order of detention as well as consequential
orders are liable to be quashed on this
ground alone.

10. Union of India, Ministry of Home
Affairs through Under Secretary, Smt.
Meena Sharma has filed supplementary
counter affidavit and in para 4, there is
explanation for delay, if any, in disposal of
representation, which is reproduced as
under:-

"4. That in continuation of para 5
of the affidavit dated 24.12.2020, it is
further submitted that a copy of the
representation dated 22.09.2020 of the
detenue along with parawise comments of
the detaining authority was forwarded by
the District Magistrate, Unnao to the
Central Government in the Ministry of
Home Affairs vide letter dated 29.09.2020.
The same was received in the section
concerned in the Ministry of Home Affairs
on 05.10.2020. It is pertinent to mention
that after relaxation of few COVID norms,
the section received 51 nos. of receipts
including 09 nos. of representations from
various
State
Governments
during
05.10.2020 and 06.10.2020. Due to roaster
system as well as in view of the large nos.
of receipts and representations, the matter
was examined in detail by the dealing hand
and was put up for consideration of Union
Home Secretary on 14.10.2020. During
this, there was an intervening period of two
holidays on 10.10.2020 and 11.10.2020
being Saturday and Sunday. The file
reached the Under Secretary (NSA) on
14.10.2020. The Under Secretary (NSA)
was
on
leave
on
15.10.2020
and
16.10.2020 and there was an intervening
period on 17.10.2020 and 18.10.2020 being
Saturday and Sunday. Thereafter, the
matter was examined in detail as document
provided by the State Government was
voluminous. After satisfying the same viz a
viz representation of the petitioner, it was
considered that an independent report from
the central agency may be sought to
ascertain the detenu's complicity in crime,
his antecedents and the likely impact of his
release on public order. Thereafter, the
Under Secretary with her comments
forwarded the same to the Deputy Legal
Advisor on 20.10.2020. The Deputy Legal
Advisor forwarded the same to the Joint
Secretary (IS-II) on 21.10.2020. The Joint
Secretary
(IS-II)
with
his
comments
forwarded the same to the Union Home
Secretary on 21.10.2020. The Union Home
Secretary approved the same and sent the
file back to the Joint Secretary (IS-II) on
306 INDIAN LAW REPORTS ALLAHABAD SERIES
22.10.2020. The file reached the section
through aforesaid level on 23.10.2020.
Accordingly, the requisite report was
sought from the Central Agency on
23.10.2020. The report from the Central
Agency was received in the section
concerned on 06.11.2020. Thereafter, there
was an intervening period of 2 holidays on
07th and 8th November, 2020 being
Saturday and Sunday. After receiving the
input from the Central Agency, the matter
was examined by the Under Secretary, in
consultation of section level officials, to
ascertain the facts provided by the Central
Agency viz a viz the report and the
representation
of
the
detenue.
After
satisfying the facts, she processed the
representation of the detenue along with
para-wise comments and the report of the
central agency for the consideration and
forwarded the file to Deputy Legal Advisor
on 11.11.2020. The Deputy Legal Advisor
forwarded the file to the Joint Secretary
(IS-II) on 11.11.2020. The Joint Secretary
(IS-II) with his comments forwarded the
file to the Union Home Secretary (IS-II)
with his comments forwarded the file to the
Union Home Secretary on 13.11.2020.
After that there was an intervening period
of two holidays on 14.11.2020 and
15.11.2020 being Saturday and Sunday.
The
Union
Home
Secretary
having
carefully gone through the material on
record, including the order of detention, the
grounds of detention, the representation of
the detenue, the comments of the detaining
authority thereon and the inputs from
central agency concluded that the detenue
had failed to bring 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 16.11.2020 and sent the
file back to the Joint Secretary (IS-II). The
file reached the section concerned through
aforesaid
level
on
17.11.2020.
Accordingly, the authorities concerned and
the detenue were informed vide Wireless
Message
No.
II/15028/150/2020-NSA
dated 17.11.2020. It is further submitted
that despite of unprecedented situation of
COVID-19, the matter was examined and
processed with utmost care and caution
with promptitude. Hence, there was no
bonafide or wilful delay in disposal of the
representation of the Respondent No.01 i.e.
the Union of India."

11. We have heard learned counsel
for parties and perused the material brought
on record.

12. Learned counsel for the petitioner
has attacked the impugned order of
detention on the following grounds :-

"(1) The solitary incident, on the
basis of which, the impugned detention
order has been passed was allegedly
committed on 19.06.2020, whereas the
impugned detention order has been passed
on 06.09.2020 i.e. after two and half
months but the detaining authority, without
applying his mind and without forming any
cogent
satisfaction,
has
passed
the
impugned order of detention on the basis of
past conduct of the detenue.

(2) The detention order does not
specify the period for which detention has
been ordered, hence in view of the law laid
down by the Apex Court in Lahu Shrirang
Gatkal
Vs.
State
of
Maharashtra
through
the
Secretary
and
others
(supra), the detention order is illegal.

(3) There is an inordinate and
unexplained delay in adjudication of the
representation of the detenue by the Central
Government,
hence
constitutional
8 All. Kanhaiya Awasthi Vs. U.O.I. & Ors.
307
safeguard provided to the detenue under
Article 22 (5) of the Constitution of India is
violated.

13. So far as first question with regard
to slapping detention order upon the detenue
on the basis of a solitary case after two and
half months from the date of incident is
concerned, it is trite law that generally the
Court cannot sit as an appellate authority in
such cases over the subjective satisfaction of
the detaining authority. However, judicial
review of such exercise of power by the
detaining
authority
on
his
subjective
satisfaction is available. At this juncture, it is
worthwhile to refer to the decision of the
Apex Court rendered in the case of
Senthamilselvi v. State of T.N. reported in
(2006) SCC 676, which is referred to in the
decisions in the case of Union of India v.
Dimple Happy reported in (AIR 2019 SC
3428). In the said decisions, satisfaction of
the authority in coming to the conclusion that
there is likelihood of the detenue being
released on bail is "subjective satisfaction"
based on the material and normally subjective
satisfaction is not to be interfered with. In the
present case also, the detaining authority has
referred to every material placed before him
and has also considered the retracted
statements of the persons concerned and has
satisfied himself to pass the detention order
against the detenue/ petitioner.

14. Considering the aforesaid, we are
of the view that no interference is required
to
be
exercised
on
the
subjective
satisfaction of the detaining authority in
passing such detention order.

15. The next argument of the learned
Counsel for the detenue/petitioner is that
the detention order does not specify the
period for which detention has been
ordered, hence in view of the law laid down
by the Apex Court in Lahu Shrirang
Gatkal
Vs.
State
of
Maharashtra
through
the
Secretary
and
others
(supra), the detention order is illegal, it
transpires from the record that this plea has
been taken by the detenue/petitioner in
paragraph-39 and ground (WW) in the
memo of the writ petition but the same has
not been denied in para-24 of the short
counter affidavit filed on behalf of the
respondent
no.3-District
Magistrate,
Unnao. Thus, the undisputed fact is that no
period of detention has been mentioned in
the impugned detention.

16. Now, the question as to whether in
non-mentioning of the period of detention in
the impugned order of detention, it is illegal
and on this ground, the impugned order of
detention can be quashed.

17. Before analyzing the aforesaid
question, we deem it appropriate to reproduce
Section 3 of the N.S.A., which reads as under
:-

"3. Power to make orders
detaining certain persons.-

(1) The Central Government or the
State Government may,--

(a) if satisfied with respect to any
person that with a view to preventing him
from acting in any manner prejudicial to the
defence of India, the relations of India with
foreign powers, or the security of India, or

(b) if satisfied with respect to any
foreigner that with a view to regulating his
continued presence in India or with a view to
making arrangements for his expulsion from
India, it is necessary so to do, make an order
directing that such person be detained.

(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
308 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

Explanation.--For the purposes of
this sub-section, "acting in any manner
prejudicial to the maintenance of supplies and
services essential to the community" does not
include "acting in any manner prejudicial to
the maintenance of supplies of commodities
essential to the community" as defined in the
Explanation to sub-section (1) of section 3 of
the Prevention of Blackmarketing and
Maintenance
of
Supplies
of
Essential
Commodities Act, 1980 (7 of 1980), and
accordingly, no order of detention shall be
made under this Act on any ground on which
an order of detention may be made under that
Act.

(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.

(4) When any order is made
under this section by an officer mentioned
in sub-section (3), he shall forthwith report
the fact to the State Government to which
he is subordinate together with the grounds
on which the order has been made and such
other particulars as, in his opinion, have a
bearing on the matter, and no such order
shall remain in force for more than twelve
days after the making thereof unless, in the
meantime, it has been approved by the
State Government:

Provided that where under section
8
the
grounds
of
detention
are
communicated by the officer making the
order after five days but not later than 1
[fifteen days] from the date of detention,
this sub-section shall apply subject to the
modification that, for the words "twelve
days", the words 2 "[twenty days]" shall be
substituted.

(5) When any order is made or
approved by the State Government under
this section, the State Government shall,
within seven days, report the fact to the
Central Government together with the
grounds on which the order has been made
and such other particulars as, in the opinion
of the State Government, have a bearing on
the necessity for the order."

18. Section 13 of the N.S.A. deals
with the maximum period of detention,
which reads as under :

"13.
Maximum
period
of
detention. - The maximum period for
which any person may be detained in
pursuance of any detention order which has
been confirmed under Section 12 shall be
twelve months from the date of detention:

Provided that nothing contained
in this section shall affect the power of the
appropriate Government to revoke or
8 All. Kanhaiya Awasthi Vs. U.O.I. & Ors.
309
modify the detention order at any earlier
time"

19. In Lahu Shrirang Gatkal Vs.
State of Maharashtra through the
Secretary and others (supra), upon which
the
learned
Counsel
for
the
detenue/petitioner has placed reliance, the
Two Hon'ble Judges Bench of the Apex
Court has held that any blanket order of
detention passed without specifying the
period of detention is invalid in view of
proviso to sub-section (2) of Section 3 of
the N.S.A.

20. The view of Three Hon'ble Judges
Bench of the Apex Court in T. Devaki Vs.
Government of Tamil Nadu and others :
1990 (2) SCC 456 has been followed by the
Apex Court in State of Maharashtra &
others vs. Balu S/o Waman Patole
(Criminal Appeal No. 1681 of 2019,
decided on 13.11.2019), wherein the Apex
Court,
while
also
considering
the
provisions of Sections 3 and 13 of the
N.S.A., has observed as under :-

"On fair reading of Section 3 of
the Act, more particularly, subsection (2) of
Section 3 of the Act, upon which much
reliance has been placed by the High Court,
sub section (2) of Section 3 relates to the
period for which the order of delegation
issued by the State Government is to
remain in force. It has no relevance to
the period of detention. The Legislature
has entrusted the power of detention to the
State Government. However, those powers
can be delegated to the Jurisdictional
District Magistrate or the Commissioner of
Police, as provided in subsection (2) of
Section 3 of the Act.

As per Section 13 of the Act, a
person can be detained under the Act for
such period not exceeding the maximum
period of 12 months from the date of
detention. The order of detention passed
by the authorities mentioned in subsection
(2) of Section 3 of the Act is required to be
confirmed by the State Government. As per
Section 13 of the Act, once the order of
detention is confirmed by the State
Government, the maximum period for
which the detenu shall be detained cannot
exceed 12 months from the date of
detention. The Act nowhere requires the
detaining authority to specify the period
for which the detenu is required to be
detained.

5.2 An identical question came to
be considered by this Court in the case of
T. Devaki (supra). In paragraph 10, this
Court has observed and held as under:

"10. Provisions of the aforesaid
sections are inbuilt safeguards against the
delays that may be caused in considering
the representation. If the time frame, as
prescribed in the aforesaid provisions is
not adhered to, the detention order is liable
to be struck down and the detenu is entitled
to freedom. Once the order of detention is
confirmed
by
the State
Government,
maximum period for which a detenu shall
be detained cannot exceed 12 months from
the date of detention. The Act nowhere
requires the detaining authority to specify
the period for which the detenu is required
to be detained.

The
expression
"the
State
Government
are
satisfied
that
it
is
necessary so to do, they may, by order in
writing direct that during such period as
may be specified in the order" occurring in
subsection (2) of Section 3 relates to the
period for which the order of delegation
issued by the State Government is to
remain in force and it has no relevance to
the period of detention. The legislature has
taken care to entrust the power of detention
to the State Government; as the detention
310 INDIAN LAW REPORTS ALLAHABAD SERIES
without trial is a serious encroachment on
the fundamental right of a citizen, it has
taken further care to avoid a blanket
delegation
of
power,
to
subordinate
authorities for an indefinite period by
providing that the delegation in the initial
instance will not exceed a period of three
months and it shall be specified in the
order of delegation. But if the State
Government on consideration of the
situation finds it necessary, it may again
delegate the power of detention to the
aforesaid authorities from time to time but
at no time the delegation shall be for a
period of more than three months.

The period as mentioned in
Section 3(2) of the Act refers to the period
of delegation and it has no relevance at all
to the period for which a person may be
detained. Since the Act does not require
the detaining authority to specify the
period for which a detenu is required to be
detained, order of detention is not
rendered invalid or illegal in the absence
of such specification."

5.3 Applying the law laid down
by this Court in the aforesaid decision and,
even otherwise, considering the provisions
of Section 3 read with Section 13 of the
Act, the High Court has committed a grave
error in holding that as the period of
detention of 12 months was mentioned in
the order of detention, the same is contrary
to Section 3 of the Act and, therefore, the
same is liable to be quashed and set aside.

5.4 The High Court has wrongly
relied upon and misinterpreted Section 3
(2) of the Act with respect to the period of
detention.
As
observed
hereinabove,
subsection (2) of Section 3 of the Act
relates to the period for which the order of
delegation issued by the State Government
is to remain in force and does not relate to
the
period
of
detention."(emphasis
supplied)

21. The view taken by the Two
Hon'ble Judges Bench of the Apex Court in
Lahu Shrirang Gatkal Vs. State of
Maharashtra through the Secretary and
others (supra) came up for consideration
before the Three Hon'ble Judges Bench of
the Apex Court in the case of Secretary to
Government of Tamil Nadu Public (Law
and Ordre) Revenue Department and
others Vs. Kamala and others : (2018) 5
SCC 322, wherein the Apex Court, on
considering the law laid down by the Apex
Court in T. Devaki Vs. Government of
Tamil Nadu (Supra) and Commissioner
of
Police
Vs.
Gurbux
Anandram
Bhiryani : 1988 (Supp) SCC 568, has
overruled the decision rendered by the
Apex Court in Commissioner of Police
Vs. Gurbux Anandram Bhiryani (supra)
and has observed as under :-

"5 In the circumstances, the High
Court was not justified in quashing the
order of detention on the basis that no
period of detention was provided in the
order. The High Court has proceeded on
the basis of the decision of this Court in
Bhiryani which is no longer good law in
view of the subsequent decision of a larger
Bench in Devaki. The decision of the High
Court in Santhi, to the extent that it adopts
the same position as in Bhiryani, will not
reflect the correct legal position."(emphasis
supplied)

22.

Considering
the
aforesaid,
particularly the decisions of T. Devaki Vs.
Government of Tamil Nadu (Supra) and
Secretary to Government of Tamil Nadu
Public
(Law
and
Order)
Revenue
Department and others Vs. Kamala and
others (Supra) were rendered by three
Hon'ble Judges Bench, larger than the
Bench which decided the case of Lahu
Shrirang
Gatkal
Vs.
State
of
8 All. Kanhaiya Awasthi Vs. U.O.I. & Ors.
311
Maharashtra through the Secretary and
others (supra), we are of the considered
view that there is no substance in the plea
of the detenue/petitioner that the impugned
detention order and the impugned order
confirming the detention order, both are
bad in law as they do not mention the
period of detention at the first instance.

23. The next submission of the
learned Counsel for the detenue/ petitioner
is that the delay and latches committed by
the respondent no.1-Union of India in
considering the representation has infringed
fundamental rights of the detenue enshrined
under Article 21 and 22 (5) of the
Constitution of India. To justify inordinate
delay
in
considering
the
petitioner's
representation, the learned Counsel for the
petitioner has drawn our attention to certain
relevant dates and correspondences that
took place between different authorities.

24. From the record, it transpires that
the petitioner was detained under N.S.A. on
06.09.2020 and the detention order as well
as grounds of such detention was also
supplied to the detenue on the same day i.e.
on 06.09.2020. Thereafter, the petitioner
has submitted his representation to the U.P.
Advisory Board (Detention), Lucknow,
Secretary (Home), Department of Home
(Internal Security), Government of India,
New Delhi and the Secretary (Home),
Government of Uttar Pradesh, Lucknow
through
Superintendent,
District
Jail,
Unnao
on
22.09.2020.
The
said
representation of the petitioner dated
22.09.2020 has been forwarded to the
District
Magistrate,
Unnao
by
the
Superintendent, District Jail, Unnao on
22.09.2020 itself.

25. According to the learned Counsel
for the petitioner, the delay was committed
in forwarding the representation of the
petitioner to the State Government as well
as to the Central Government and thereafter
the
Central
Government
committed
inordinate delay in disposing of the same.
According
to
him,
the
detenu's
representation
dated
22.09.2020
was
forwarded by the District Magistrate,
Unnao after a considerable delay of seven
days as the District Magistrate, Unnao has
sent the petitioner's representation vide
letter dated 29.09.2020 to the State
Government
as
well
as
Central
Government, which was received by the
Ministry of Home Affairs, Union of India
(respondent no.1) on 05.10.2020, whereas
the State Government (respondent no.2)
has received the same on 30.09.2020. The
State
Government
has
rejected
the
petitioner's representation on 06.10.2020
but the Central Government took nine days
in processing the petitioner's representation
after receipt of the statutory representation
of
the
petitioner.
Ultimately,
the
representation of the petitioner was rejected
by the Central Government only on
16.11.2020 and the order of rejection was
communicated
to
the
petitioner
on
17.11.2020 via wireless message. Thus,
there is a long and inordinate delay of 43
days
in
disposing
of
the
statutory
representation of the petitioner.

26. The Under Secretary, Home
(Confidential), State of U.P., Lucknow,
District
Magistrate,
Unnao,
District
Magistrate, Unnao and Deputy Jailor,
District Jail, Unnao have filed their short
counter affidavits. However, the District
Magistrate, Unnao as well as Deputy Jailor,
District Jail, Unnao are conspicuously
silent about the date on which date
petitioner's representation was forwarded to
the Central Government. According to
Deputy Jailor, District Jail, Unnao, no
312 INDIAN LAW REPORTS ALLAHABAD SERIES
representation addressed to the District
Magistrate, Unnao was at all submitted by the
detenue/petitioner.
However,
the Under
Secretary, Home (Confidential), State of
U.P., has stated in its short counter affidavit
that a copy of the petitioner's representation
dated 22.09.2020 along with parawise
comments was received in the concerned
section
of
the State
Government
on
30.09.2020 along with the letter of District
Magistrate, Unnao dated 29.09.2020. Smt.
Meena Sharma, Under Secretary, Ministry of
Home Affairs, Government of India, New
Delhi, has stated in its supplementary counter
affidavit that a copy of the petitioner's
representation
dated
21.09.2020
with
parawise comments of the detaining authority
was forwarded by the District Magistrate,
Unnao to the Central Government in the
Ministry of Home Affairs, vide letter dated
29.09.2020 and the same was received in the
section concerned in the Ministry of Home
Affairs on 05.10.2020.

27. The petitioner has admitted the
fact of not submitting any separate
representation
to
be
examined
and
considered by the District Magistrate,
Unnao.