# Mohd. Sazid v. Suptt. District Jail, Lucknow & Ors

- **Citation:** (2021) 6 ILRA 511
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-29
- **Case number:** Habeas Corpus Writ Petition No. 16660 of 2020
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-sazid-v-suptt-district-jail-lucknow-ors-47122
- **Pages:** 11

## Headnote

National Security Act, 1980 - Section 3(2)
- Detention order passed - of thechallenged-detention order served in jailfurther extended for three months-six
months from the date of initial detentionfurther extended-Representation moved
for revocation of detention-not decided
with expeition-State failed to decide the
512 INDIAN LAW REPORTS ALLAHABAD SERIES
representation-vitiates
the
detention
order-quashed.

Petition allowed.(E-8)

List of Cases cited:

## Text

6 All. Mohd. Sazid Vs. Suptt. District Jail, Lucknow & Ors.
511
result in miscarriage of justice but a casual
or cavalier approach in the matter of
determination of age would result in
travesty of justice, which according to us,
has happened in this case.

24. In the words of R. Banumathi J.
(as the Hon'ble Judge then was), speaking
for the bench in Mukarrab13, a blind and
mechanical view regarding the age of a
person cannot be adopted solely on the
basis of the medical opinion by the
radiological examination. (Reference Para
26) (Emphasis supplied).

25. We, therefore, have no doubt in
concluding that the proper procedure
upholding the object of the Juvenile Justice
Act has not been followed in the instant
matter of determination of age of the
petitioner.
The
ossification
tests/radiological
examination
of
the
petitioner is not complete. The Juvenile
Justice Board has committed a grave error
of law in treating the radiological report as
ossification test and making determination
of age of the petitioner/applicant solely on
the basis of that.

The decisions of the Apex Court in
Amit Singh2 and the judgment of Punjab
and Haryana High Court in Gurdarshan
Singh3 relied by the learned counsel for the
petitioner have been rendered in the facts
and circumstances of those cases. No
benefit can be derived by the petitioner on
the basis of the same.

26. In view of the above discussions,
three questions posed by us in this matter
are answered in ''Negative'. The writ of
habeas corpus cannot be issued in the
instant case to release the petitioner as his
detention in the District Jail, Agra cannot
be said to be illegal. No other instance of
violation of fundamental rights of the
petitioner (a prisoner in jail) could be
placed
before
us.
The
order
of
determination of age of the petitioner
passed by the Juvenile Justice Board,
Bulandshahr is not sustainable in the eye of
law. The Juvenile Justice Board had
committed a grave error of law in not
following the proper procedure in the
matter of determination of age of the
petitioner keeping in mind the object of the
benevolent legislation namely the Juvenile
Justice Act, in as much as, the appreciation
of evidence was made in a cursory manner.

In view of the above observations, the
habeas corpus petition is dismissed.
----------
(2021)06ILR A511
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.06.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE JASPREET SINGH, J.

Habeas Corpus Writ Petition No. 16660 of 2020

Mohd. Sazid ...Petitioner
Versus
Suptt. District Jail, Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
Manish Kumar Tripathi, Chandrakesh Mishra

Counsel for the Respondents:
G.A., Varun Pandey

National Security Act, 1980 - Section 3(2)
- Detention order passed - of thechallenged-detention order served in jailfurther extended for three months-six
months from the date of initial detentionfurther extended-Representation moved
for revocation of detention-not decided
with expeition-State failed to decide the
512 INDIAN LAW REPORTS ALLAHABAD SERIES
representation-vitiates
the
detention
order-quashed.

Petition allowed.(E-8)

List of Cases cited:

1. Rajammal Vs St.of T.N. & another reported in
1999 (1) SCC page 417

2. Ayya alias Ayub Vs St.of U.P. & another
reported in AIR 1989 SC page 364,

3. Mohinuddin Vs District Magistrate, Beed &
ors. reported in AIR 1987 SC page 1977

4. Satyapriya Sonkar Vs Superintendent, Central
Jail, Naini & ors. reported in 2000 Cr.L.J. (Alld.)
(DB)

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The Court has convened through
video conferencing.

2. Heard Shri Daya Shankar Mishra,
learned counsel for the petitioner, Shri S. P.
Singh, learned A.G.A. for the Staterespondents no.1, 2 and 3 and learned
A.S.G. Senior Advocate Shri S. B. Pandey
assisted by Shri Varun Pandey learned
counsel for the Union of India.

3. The instant petition for habeas
corpus has been preferred by the petitioner
assailing his detention since 03.07.2020 in
pursuance of the detention order passed by
the respondent no.2 in exercise of powers
conferred under Section 3(2) of the
National Security Act, 1980.

4. The Court had required the State as
well as the Union of India to file their
counter-affidavits and in pursuance thereof
the State as well as the Union of India have
filed their respective counter-affidavits.
The Union of India has also filed a
supplementary counter-affidavit, to which
the petitioner filed his rejoinder-affidavit.

5. From the record, it appears that an
incident had taken place on 20.02.2020 in
pursuance whereof a First Information
Report was also lodged bearing Case Crime
No.74 of 2020 under Sections 302, 394,
216-A, 120-B/34 I.P.C. and Section 7 of
Criminal Law Amendment Act relating to
Police Station Chowk, District Lucknow.

6. The alleged incident as described is
that on 20.02.2020, four men who had
covered their faces with mask and were
wearing helmet at around 1.30 P.M., entered
the shop of a wholesale stockist of
Kamlapasand and Supari situate in the busy
market area of Yayaganj, having fire arms
with them and forcibly took away two
packets, one carrying cash and the other
having keys to a cupboard and when an
employee of the firm Subhash Chandra
Gupta resisted, they fired at him and fled
from the scene on two motorcycles. The said
employee who was shot at, died during his
treatment.

7.

The
State
Government
considering the facts and circumstances
and the material before it approved the
detention order passed by the detaining
authority under Section 3(5) of the
National
Security
Act,
1980.
The
detention order dated 03.07.2020 was
served on the petitioner in jail through
Superintendent District Jail, Lucknowrespondent no.1. Subsequently, after the
detention order was approved from the
Advisory Board Committee, it was
further extended for another period of
three months i.e. six months from the
date of initial detention and later the same
was further extended.
6 All. Mohd. Sazid Vs. Suptt. District Jail, Lucknow & Ors.
513

8. It is in the aforesaid backdrop that
the petitioner has instituted the above
petition for habeas corpus challenging the
detention order to be illegal and seeks his
released forthwith.

9. The submission of the learned
counsel for the petitioner is that the
petitioner had moved a representation dated
13.07.2020 for seeking revocation of his
detention
through
respondent
No.1
Superintendent, District Jail, Lucknow
which was addressed to the District
Magistrate. The said representation was
received by the respondent no.1 on
15.07.2020 and the same was rejected by
the State Government on 28.07.2020. The
petitioner has brought the representation
dated 13.07.2020 on record as annexure
no.12. The rejection order passed by the
State Government dated 28th of July, 2020
has been brought on record as annexure
no.13.

10. The petitioner thereafter preferred
another representation addressed to the
Advisory Board Committee, the Central
Government
as
well
as
the
State
Government dated 21st July, 2020. It is the
specific case of the petitioner as pleaded in
paragraph-40 of the writ petition that
despite the representation dated 21.07.2020
having been served on the Authorities yet
the same has not been decided with
expedition
which
has
rendered
the
detention of the petitioner bad in the eyes
of law, hence the petition be allowed.

11. Learned A.G.A. Shri S. P. Singh
while refuting the aforesaid submissions
has urged that the petitioner is involved in
commission of a heinous crime. It is only
after considering the dossier prepared
relating to the petitioner, a copy of which
has been brought on record as annexure
C.A. No.1 with the counter-affidavit dated
09.11.2020, submits that there is ample
material to form the subjective satisfaction
that in order to prevent the petitioner from
acting in any manner prejudicial to the
maintenance of public order and authority,
it was necessary to detain the said person
and the detention order dated 03.07.2020
was passed.

12. It is also urged that the State
thereafter complied with the time line as
provided in Section 3(4) and (5) of the Act,
1980 scrupulously and there is no illegality
committed at any stage of proceedings.
Moreover,
the
representation
dated
13.07.2020
was
rejected
hence
the
subsequent representation on similar facts
dated 21.07.2020 was not maintainable.
Accordingly, the writ petition deserves to
be dismissed.

13. Learned A.S.G., Senior Advocate
Shri S. B. Pandey submits that even the
representation which was forwarded to the
Central Government (dated 13.07.2020
which was received by the Authority on
15.07.2020) was rejected on 26.08.2020
and the same was communicated to the
detenue (the petitioner) on 31.08.2020 and
thus on the strength thereof it is urged that
the representation was decided without
much delay, through the delay, if any, has
been explicitly explained, hence there is no
violation of any provision of the Act.
Consequently the writ petition deserves to
be dismissed.

14. Shri Daya Shankar Mishra,
learned counsel for the petitioner while
refuting the submission in rejoinder has
specifically drawn the attention of the
Court to the averments contained in
paragraph 40 of the writ petition and it has
been
submitted
that
the
earlier
514 INDIAN LAW REPORTS ALLAHABAD SERIES
representation dated 13.07.2020 which was
received by the authority on 15.07.2020
was rejected by the State Government on
28.07.2020 and the Central Government
rejected the same on 26.08.2020 which was
communicated
to
the
petitioner
on
31.08.2020. However, it is urged that in so
far as the subsequent representation dated
21.07.2020 is concerned, the same has not
been decided by the Central Government
till date. He further submits that there is no
bar for the petitioner to move a subsequent
representation though the subject matter of
both the representation was different.

15. It is also urged that even the State
Government who was seized of the said
representation did not decide the same and
only as late as on 10.06.2021 the same was
decided by the State Government much
after exchange of the pleadings in the
instant petition and submits that in view of
the decisions of the Apex Court in the case
of (i) Rajammal Vs. State of Tamil Nadu
& another reported in 1999 (1) SCC page
417,(ii) Ayya alias Ayub Vs. State of U.P.
& another reported in AIR 1989 SC page
364,
(iii)
Mohinuddin
Vs.
District
Magistrate, Beed & other reported in AIR
1987 SC page 1977 and (iv) referring to the
case
of
Satyapriya
Sonkar
Vs.
Superintendent, Central Jail, Naini &
other reported in 2000 Cr.L.J. (Alld.)
(DB), the detention order stands vitiated
and the petition deserves to be allowed.

16. The Court has considered the
submissions and also perused the record.

17. As far as the facts are concerned,
the same are not much in dispute. It is not
disputed that the provisions of the National
Security Act, 1980 has been invoked
against the petitioner on the basis of a
solitary case i.e. Case Crime No.74/2020.
The petitioner has been in jail since
06.03.2020 and during this period the
detaining authority has passed the detention
order. It is also not disputed that during this
detention
the
petitioner
had
initially
preferred
the
representation
dated
13.07.2020, a copy of which has been
brought on record as annexure no.12. It is
also not disputed by the petitioner that in so
far as the said representation is concerned,
the same was rejected by the State
Authority on 28th of July, 2020 and it
reveals from the counter-affidavit filed by
Union of India dated 25.03.2021 that the
representation dated 13.07.2020 which was
received by the authority on 15.07.2020
was decided by the Central Government
Authority on 26.08.2020
which
was
communicated to the detenue i.e. the
petitioner on 31.08.2020.

18. From the perusal of the counteraffidavit filed by the Union of India, it
indicates that an attempt has been made by
the Central Government to justify the delay
in deciding the representation. In paragraph
5 (a) to 5 (d) various dates have been
mentioned
which
only
indicates
the
movement of file from one desk to the
other which only further amplifies the
bureaucratic/redtapism in the movement of
the files, without considering that the issue
of detention is a priority and the matter
should have received prompt attention.

19. Be that as it may, the second
representation dated 21.07.2020, a copy of
which has been brought on record as
annexure no.16 and addressed to the
Advisory Board Committee, the State
Government as well as the Central
Government concerned. The State by filing
its counter-affidavit dated 23.11.2020 in
paragraphs-6 and 7 has clearly stated that
the said representation dated 15.07.2020
6 All. Mohd. Sazid Vs. Suptt. District Jail, Lucknow & Ors.
515
was considered by the authority and
rejected by the State Government on
28.07.2020. However, in so far as the
representation dated 21.07.2020 addressed
to the Central Government is concerned,
there is nothing on record to indicate that
the said representation was decided. A
specific query was put to the learned
A.S.G. in this regard who responded by
saying
that
as
per
his
instructions,
representation dated 21.07.2020 was never
received by the Central Government
Authority.

20. This Court is not inclined to
accept this reply; inasmuch as right from
the inception, a specific averment was
made in paragraph-40 of the writ petition
regarding the fact that the representation
dated 21.07.2020 was sent to the Authority
which has not been decided which has
vitiated the detention order.

21. Yet there has been no reply to the
aforesaid paragraph though the Central
Government filed its counter-affidavit on
18.02.2021. Subsequently another counteraffidavit
was
filed
by
the
Central
Government dated 25.03.2021 and yet
again there is neither any categorical reply
to paragraph-40 of the writ petition nor any
plea was raised by stating on oath in the
counter-affidavit
that
the
Central
Government
did
not
receive
the
representation dated 21.07.2020.

22. Thus what transpires from the
record is that in so far as the first
representation
dated
13.07.2020
is
concerned (received by the Authority on
15.07.2020), the same came to be decided
both by the State Government as well as by
the Central Government though the Central
Government pushed the file in a casual
manner.

23. However, in so far as the
subsequent representation dated 21.07.2020
is concerned, the same came to be decided
by
the
State
Government
only
on
10.06.2021 i.e. almost after 10 months and
there is no explanation forthcoming for this
humongous delay. So also there is nothing
on record to indicate that the same was
decided by the Central Government till
date.

24. Noticing the dictum of the Apex
Court in the case of Mohinuddin (supra),
the relevant portion as contained in para 6
and 7 of the said report is being reproduced
for convenient reference:-

"....6. It is somewhat strange that the
State Government should have acted in
such a cavalier fashion in dealing with the
appellant's representation addressed to the
Chief Minister. We are satisfied that there
was failure on the part of the Government
to discharge its obligations under Art. 22
(5). The affidavit reveals that there were
two representations made by the appellant,
one to the Chief Minister dated September
22, 1986 and the other to the Advisory
Board dated October 6, 1986. While the
Advisory Board acted with com- mendable
despatch in considering the same at its
meeting held on October 8, 1986 and
forwarded its report together with the
materials on October 13, 1986, there was
utter callousness on the part of the State
Government to deal with the other
representation addressed to the Chief
Minister. It was not till November 17, 1986
that the Chief Minister condescended to
have a look at the representation. When the
life and liberty of a citizen is involved, it is
expected that the Government will ensure
that the constitutional safeguards embodied
in Art. 22 (5) are strictly observed. We say
and we think it necessary to repeat that the
516 INDIAN LAW REPORTS ALLAHABAD SERIES
gravity of the evil to the community
resulting from anti-social activi- ties can
never furnish an adequate reason for
invading the personal liberty of a citizen,
except in accordance with the procedure
established by the Constitution and the
laws. The history of personal liberty is
largely the history of in- sistence on
observance of the procedural safeguards.

7. Apart from the admitted inordinate
delay, there is a fundamental defect which
renders the continued detention of the
appellant
constitutionally
invalid.
As
observed by one of us (Sen, J.) in Narendra
Purshotam Umrao V. B.B. Gujral & Ors. ,
[1979] 2 SCC 637 there was a duty cast on
the
Govern-
ment
to
consider
the
representation made by the detenu without
waiting for the opinion of the Advisory
Board. The constitution of.an Advisory
Board undern s.9 of the Act does not
relieve the State Government from the legal
obligation to consider the representation of
the detenu as soon as it is received by it. It
goes without saying that the constitu- tional
right to make a representation guaranteed
by Art. 22 (5) must be taken to include by
necessary implication the constitutional
right to a proper consideration of the
repre- sentation by the authority to whom it
is made. The right of representation under
Art. 22 (5) is a valuable constitutional right
and is not a mere formality. The
representation made by the appellant
addressed to the Chief Minister could not
lie unattended to in the portals of the
Secretariat while the Chief Minister was
attending to other political affairs. Nor
could
the
Government
keep
the
representation in the archives of the
Secretariat till the Advisory Board submit-
ted its report. In Narendra'Purshotam
Umrao's case it was observed: "Thus, the
two obligations of the Government to refer
the case of the detenu to the Advisory
Board and to obtain its report on the one
hand, and to give an earliest opportunity to
him to make a representation and consider
the representation on the other, are two
distinct obligations, independent of each
other." After referring to the decisions of
this Court in Abdul Karim V. State of West
Bengal, [1969] 3 SCR 479; Pankaj Kumar
Chakrabarty V. State of West Bengal,
[1970] 1 SCR 543 and Khairul Haque v.
State of West Bengal, W.P. No. 246 of
1969, decided on September 10, 1969 the
nature
and
dual
obligation
of
the
Government and the corresponding dual
right in favour of the detenu under Art. 22
(5) was reiterat- ed. The following
observations of the Court in Khairul
Haque's case were quoted with approval:

"It is implicit in the language of Art.
22 that the appropriate Government, while
dis- charging its duty to consider the
representa- tion, cannot depend upon the
view of the Board on such representation.
It has to consider the representation on its
own without being influ- enced by any such
view of the Board. There was, therefore, no
reason for the Government to wait for
considering the petitioner's representation
until it had received the report of the
Advisory Board. As laid down in Abdul
Karim V. State of West Bengal, the obli-
gation of the appropriate Government
under Art. 22(5) is to consider the
representation made by the detenu as
expeditiously
as
possi-
ble.
The
consideration by the Government of such
representation has to be, as aforesaid,
independent of any opinion which may be
ex- pressed by the Advisory Board.

The fact that Art. 22 (5) enjoins upon
the detaining authority to afford to the
detenu the earliest opportunity to make a
representation must implicitly mean that
such representation must, when made, be
considered and disposed of as expeditiously
6 All. Mohd. Sazid Vs. Suptt. District Jail, Lucknow & Ors.
517
as possible, otherwise, it is obvious that the
obligation
to
furnish
the
earliest
opportunity to make a representation loses
both its purpose and meaning."

In the circumstances, there being a
failure on the part of the State Government
to consider the representation made by the
appellant addressed to the Chief Minister
without wait- ing for the opinion of the
Advisory Board, renders the continued
detention of the appellant invalid and
constitu- tionally impermissible."

25. The Apex Court in the case of
Rajammal (supra) in para 6 to 8 has held
as under:-

"6. Learned counsel also cited an
earlier two-Judge Bench decision of this
Court in Raghavendra Singh v. Supdt.,
District Jail, Kanpur [(1986) 1 SCC 650 :
1986 SCC (Cri) 60] in which similar delay
of
a
few
days
in
considering
the
representation was found to have vitiated
the detention. That is a case where delay
was held to be "wholly unexplained". A
three-Judge Bench of this Court in Rumana
Begum v. State of A.P. [1993 Supp (2) SCC
341 : 1993 SCC (Cri) 551] disapproved the
delay in considering the representation on
the mere ground that the representation
was not addressed to the Chief Secretary.
That was a case where representation was
sent to the Governor. Hence it was found
that
there
was
unexplained
and
unreasonable delay and consequently the
detention was held vitiated. We are
reminded of the following observations
made by this Court in Kundanbhai
Dulabhai Sheikh v. District Magistrate,
Ahmedabad [(1996) 3 SCC 194 : 1996 SCC
(Cri) 470 : JT (1996) 2 SC 532] : (SCC p.
203, para 21)

"21. In spite of law laid down above
by this Court repeatedly over the past three
decades, the Executive, namely, the State
Government and its officers continue to
behave in their old, lethargic fashion and
like all other files rusting in the Secretariat
for various reasons including red-tapism,
the representation made by a person
deprived of his liberty, continue to be dealt
with in the same fashion. The Government
and its officers will not give up their habit
of maintaining a consistent attitude of
lethargy. So also, this Court will not
hesitate in quashing the order of detention
to restore the ''liberty and freedom' to the
person whose detention is allowed to
become bad by the Government itself on
account of his representation not being
disposed of at the earliest."

7. It is a constitutional obligation of
the
Government
to
consider
the
representation forwarded by the detenu
without any delay. Though no period is
prescribed by Article 22 of the Constitution
for the decision to be taken on the
representation, the words "as soon as may
be" in clause (5) of Article 22 convey the
message that the representation should be
considered and disposed of at the earliest.
But that does not mean that the authority is
pre-empted from explaining any delay
which would have occasioned in the
disposal of the representation. The court
can certainly consider whether the delay
was occasioned due to permissible reasons
or unavoidable causes. This position has
been well delineated by a Constitution
Bench of this Court in K.M. Abdulla Kunhi
v. Union of India [(1991) 1 SCC 476 : 1991
SCC
(Cri)
613]
.
The
following
observations of the Bench can profitably be
extracted here: (SCC p. 484, para 12)

"It is a constitutional mandate
commanding the authority concerned to
whom the detenu submits his representation
to consider the representation and dispose
of the same as expeditiously as possible.
518 INDIAN LAW REPORTS ALLAHABAD SERIES
The words ''as soon as may be' occurring in
clause (5) of Article 22 reflects the concern
of the Framers that the representation
should be expeditiously considered and
disposed of with a sense of urgency without
an avoidable delay. However, there can be
no hard and fast rule in this regard. It
depends upon the facts and circumstances
of each case. There is no period prescribed
either under the Constitution or under the
detention law concerned, within which the
representation should be dealt with. The
requirement, however, is that there should
not be supine indifference, slackness or
callous
attitude
in
considering
the
representation. Any unexplained delay in
the disposal of representation would be a
breach of the constitutional imperative and
it would render the continued detention
impermissible and illegal."

8. The position, therefore, now is that
if delay was caused on account of any
indifference or lapse in considering the
representation, such delay will adversely
affect further detention of the prisoner. In
other words, it is for the authority
concerned to explain the delay, if any, in
disposing of the representation. It is not
enough to say that the delay was very short.
Even longer delay can as well be explained.
So the test is not the duration or range of
delay, but how it is explained by the
authority concerned.

26. A Co-ordinate Bench of this Court
in the case of Satyapriya Sonkar (supra)
in para 16 to 18 has noticed as under:-

"16. Questions No. 2, 3 and 4 are
related to each other and can be
conveniently
consideral
and
decided
together. There is no doubt about the legal
position that the right of representation
against
preventive
detention
is
constitutional and safeguard provided
under Article 22(5) of the Constitution in
Section 8 of the Act is only extention of the
same right. The detaining authority is
required to afford the detenu earliest
opportunity
of
making
representation
against the order to the appropriate
government. The representation so made
has to be forwarded to the Advisory Board
while making the reference under Section
10 of the Act. It is also to be considered by
the
State
Government
(appropriate
government) at the earliest. In addition to
the aforesaid right petitioner has also a
remedy under Section 14 of the Act under
which Central Government and the State
Government may revoke the order of
detention. The relief under Section 14 of
the Act may be claimed at any namely
before the order of detaining authority is
confirmed by the State Government under
Section 12 of the Act or subsequent there
to. Thus from the provisions of Act, it is
clear that the right to make representation
by the detenu is not confined under Section
8 only. The detenu may make a second
representation to the State Government and
the Central Government under Section 14
of Act for invoking the power of revocation.
Thus the detenu can make representation
more than once during the period he is
under detention. Whether the successive or
frequent representations amount to abuse
of the right conferred under the provisions
of the Act, can be dealt with by the State
Government and the Central Government
and not by any other authority. The
submission of the learned A.G.A. was that
the subsequent representations can be
permitted only on the basis of fresh ground
which were not available at the time the
first representation was made. The analogy
behind this submission appears to be based
on the doctrine of constructive res judicata.
A Division Bench of this Court in case of
Sushil Kumar V. Adhiskshak, Kendriya
6 All. Mohd. Sazid Vs. Suptt. District Jail, Lucknow & Ors.
519
Karagar, Naini Allahabad, 1983 Cri LJ
744 held that the application of the
doctrine of constructive res judicata is
confined only to civil action and is entirely
inapplicable to any illegal detention and do
not bar a subsequent petition for a writ of
habeas corpus. The Court also observed
that Section of the Act providing for
revocation or modification, has a very wide
scope which is not the position in the
matter of habeas Corpus before the Court..
The relevant extract from judgment is being
reproduced below :-

"........ When a detention is challenged
before a Court, the Court considers
whether legal imperatives have been
observed and the right procedure has been
followed and the proper opportunity, as
envisaged in Article 22 (4) of the
Constitution
as
well
as
under
the
provisions of the Act in question, has been
afforded. The Court does not examine the
desirability of the detention of the detenu,
which depends on so many other factors
including conditions prevailing in any
particular region and the need of the
detention, the matter comes within the
ambit of subjective satisfaction of the
detaining authority. Besides, while the
Court cannot modify the order as to reduce
the period of detention etc. even that scope
is open to the appropriate authority under
Section 14 of the Act.

17. Hon'ble Supreme Court in case of
Sabir Ahmed V. Union of India, 1980 (3)
SCC 295 in paragraph No. 12 while
repelling the contention of the Central
Government that it is not under duty to
consider a representation made to it by the
detenu for revoking his detention, if it
simply repeats the same allegations,
statement of facts and arguments which
may be contained in the representation
made to the detaining authority, held as
under :-

It is true that Section 3(2) of
COFEPOSA
mandates
the
State
Government to send a report to the Central
Government. But it does not mean that the
representation made by the detenu, if any,
should also be sent along with that report.
There appears to be no substance in the
contention that the Central Government is
under no duty to consider a representation
made to it by the detenu for revoking his
detention, if it simply repeats the same
allegations,
statement
of
facts,
and
arguments which were contained in the
representation made to the detaining
authority. It is common experience that an
argument or submission based on certain
facts, which does not appeal to a tribunal
or authority of first instance, may find
acceptance with a higher tribunal or
supervisory authority. Whether or not the
detenu has under Section 11 a legal right to
make a representation to the Central
Government is not the real question. The
nub of the matter is whether the power
conferred by Section 11 on the Central
Government, carries with it a duty to
consider any representation made by the
detenu, expeditiously. The power under
Section 11 may either be exercised on
information
received
by
the
Central
Government from its own sources in
eluding that supplied under Section 3 by
the State Government, or, from the detenu
in the form of a petition or representation.
Whether or not the Central Government on
such petition/representation revokes the
detention is a matter of discretion. But this
discretion is coupled with a duty. That duty
is inherent in the very nature of the
jurisdiction. The power under Section 11 is
a supervisory power. It is intended to be an
additional check or safeguard against the
improper exercise of its power of detention
by the detaining authority or the State
Government. If this statutory safeguard is
520 INDIAN LAW REPORTS ALLAHABAD SERIES
to retain its meaning and efficacy, the
Central Government must discharge its
supervisory responsibility with constant
vigilance and watchful care. The report
received
under
Section
3
or
any
communication or petition received from
the detenu must be considered with
reasonable expedition. What is 'reasonable
expedition' is a question depending on the
circumstances of the particular case. No
hard and fast rule as to the measure of
reasonable time can be laid down. But it
certainly does not cover the delay due to
negligence, callous inaction, avoidable
redtapism
and
unduly
protracted
procrastination.

18. From the aforesaid legal position
expressed by Hon'ble Supreme Court about
the representation, it is clear that the second
or successive representation may be made by
the detenu during the period of his detention
and
such
representations
are
to
be
considered and decided expeditiously. The
provisions of COFEPOSA in this regard are
similar to Act. The contention of the learned
A.G.A. was that the representation dated 12th
June, 1999 contained similar allegations, as
were made in the representation dated 18th
June, 1999 by the petitioner and hence no
prejudice has been caused to petitioner as
earlier the representation was already
rejected by the Central Government. But this
submission can not be accepted in view of the
legal position expressed by Hon'ble Supreme
Court in Sabir Ahmed's case, (1980 (3) SCC
295) wherein it has been held that it is
common experience that an argument or
submission based on certain facts, which
does not appeal to a tribunal or authority of
first instance, may find acceptance with a
higher tribunal or supervisory authority. This
analogy may be applicable to the same
authority as well. It is well known that an
authority or Court which at first instance
does not accept the submission, on rehammer accepts the same on subsequent
occasion. From the aforesaid observations, it
is clear that the representation submitted to
the Central Government or the State
Government even if it is based on same
ground, it cannot be ignored and has to be
considered by the appropriate authority. The
observations of the Division Bench in case of
Sushil Kumar, (1983 Cri LJ 744) (supra) are
also very material. The power under Section
14 of the Act, conferred on State Government
and Central Government is very wide and
they can revoke order of detention for various
considerations. They may come to conclusion
that the preventive detention is no longer
necessary, looking to the incident of the
present case on which basis the impugned
order of detention was passed, was related to
the use of unfair means during examination.
Admittedly, examinations were over long
back. This could, by lapse of time, be one of
the important consideration for the State
Government and Central Government to
revoke the order of detention on the ground
that its purpose has already been served. But
if the representations are allowed to be
ignored in the manner it has been done in the
present case it shall defeat the very purpose
for which the right of representation has been
conferred on the detenu. We have already
found that the representations sent by father
of the petitioner on 27th June, 1999 were
served on the State Government as well as on
the Central Government but they have not
been considered and decided though more
than three months have passed. In our
opinion, for this lapse on the part of the
respondents No. 3 and 4, the continued
detention of petitioner has been rendered
illegal."

27. In view of the settled position of
law as noticed above and its application to
the facts of the instant case, there is no
doubt that the State failed to discharge its
6 All. Vishwa Gaurav Pandey Vs. Dr. Smt. Sangeeta Agarwal & Anr.
521
obligation in deciding the representation
expeditiously and moreover the Central
Government
has
not
decided
the
representation dated 21.07.2020 till date
which is fatal and vitiates the detention
order.

28. In view of the aforesaid facts and
the law noticed above, the writ petition
succeeds and the detention order is
quashed. The petitioner shall be released
forthwith by the respondents unless he is
required in any other case.

29. In the facts and circumstances,
there shall be no order as to costs.

30. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self-attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

31.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)06ILR A521
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

S.C.C. Revision No. 29 of 2020

Vishwa Gaurav Pandey ...Revisionist
Versus
Dr. Smt. Sangeeta Agarwal & Anr.
 ...Opp. Parties

Counsel for the Revisionist:
Apoorva Tewari, Akash Singh

Counsel for the Opp. Parties:
Prashant Singh Gaur

Suit decreed in landlord's favour-original
tennant shifted and inducted her relatives
- without informing plaintiff landlordtenant disputed the amount of rent and
extent of accomodation-but failed to lead
any evidence-impugned order does not
suffers from any error.

Held, The power under Section 25 of the
Provincial Small Cause Court Act empowers the
Court to examine whether in the impugned
judgment there has been any violation of any
statutory provision or the judgment suffers from
misreading of any evidence or omission to
consider any relevant and clinching evidence or
where the inference drawn from the facts
proved is such that no reasonable person can
arrive at such findings. (para 26)

Revision dismissed.(E-8)

List of Cases cited:

1. M/s Technician Studio Pvt. Ltd. Vs Smt. Lila
Ghosh & anr., 1978 Allahabad Rent Cases, 220

2. Sanvarmal Kejriwal Vs Vishwa Cooperative
Housing Society Ltd. & ors. reported in 1990 (2)
SCC 288

3. Mani Nariman Daruwala @ Bharucha Vs
Phiroj N. Bhatena & ors. reported in 1991 (3)
SCC 141

4.Harshwardhan Chokkani Vs Bhupendra N.
Patel & ors. reported in 2002 (3) SCC 626

5. Park Street Properties Private Ltd. Vs Deepak
Kumar Singh & anr. reported in 2016 (9) SCC 268

6. Jhabbu Lal Vs District Judge, Dehradun & ors.
reported in 1998 (2) ARC 558