# Mohd. Sheebu @ Sheebu Chaudhary v. U.O.I. & Ors

- **Citation:** (2023) 2 ILRA 799
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-13
- **Case number:** Habeas Corpus Writ Petition No. 103 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-sheebu-sheebu-chaudhary-v-u-o-i-ors-49769
- **Pages:** 13

## Headnote

Criminal Law - Constitution of India, 1950
- Article - 22, 22(5) & 226 - National
Security Act, 1980 - Sections 3(2), 3(3) &
8 - Criminal Law Amendment Act, -
Section - 7,- - General Clauses Act, -
Section- 21, - Indian Penal Code, 1860 -
Sections 124-(A), 153-(A), 294, 295-(A),
298, 354-(KA) & 505-(2), - Information
and Technology Act, - Section - 67 - Writ of
Habeas Corpus - against detention order -
representation - rejected - maintainability -
800 INDIAN LAW REPORTS ALLAHABAD SERIES
Violation of provisions of section - he has
emphasized primarily on ground that there has
been
undue
delay
in
disposal
of
the
representation made by detenue against order
of detention by the St. Government inasmuch as
that after receipt of representation the D.M.
failed to furnish the same to St. Government
with due diligence - Held, Detention order
passed by detaining authority, if is approved by
the St. Government, merges with the order of
approval of the St. Government which renders
detaining authority functus officio - court finds
that, if in terms of the provisions of section 21
of General Clauses Act, power to undo or
rescind detention order is extended to detaining
authority even after approval of such detention
order by St. Government, that may give rise to a
very anomalous situation where D.M. in case on
consideration of representation of detenue
allows same and sets aside detention order -
D.M. has St.d that he took some time to decide
representation preferred by petitioner which was
rejected by him - Such an exercise undertaken
by the D.M. was completely uncalled for and
unwarranted and time devoted by him for
undertaking such exercise could have easily
been saved and utilized in furnishing petitioner's
representation to St. Government - hence,
Habeas Corpus petition is allowed.(Para - 40,
41, 43 )

Writ Petition Allowed. (E-11)

List of Cases cited: -

## Text

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2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
799
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

19. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

20. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

21. In view of the above, the
conviction of accused-appellants under
Section 304B is maintained. However, as
far as punishment is concerned, we
substitute the same to 10 years' rigorous
imprisonment as far as accused-appellant
No.1 is concerned. The accused-appellant
No.1 be freed immediately without seeking
any bail. We are dismayed that despite the
fact that 17 years have elapsed, the case of
the accused has not been considered for
remission though it is not a heinous crime.
Rather no case of 304 part B is even made
out from the dying declaration of the
deceased against the mother-in-law and
father-in-law. They are acquitted and as
they are already on bail, they need not
surrender. Their bail bonds are cancelled.

22. Appeal is partly allowed. Record
and proceedings be sent back to the Court
below forthwith. The impugned judgment
and order shall stand modified to the
aforesaid extent.

23. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 2 ILRA 799
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Habeas Corpus Writ Petition No. 103 of 2022

Mohd. Sheebu @ Sheebu Chaudhary
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sarvesh Kumar Pandey, Sushil Kumar
Singh, Trishita Singh

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

Criminal Law - Constitution of India, 1950
- Article - 22, 22(5) & 226 - National
Security Act, 1980 - Sections 3(2), 3(3) &
8 - Criminal Law Amendment Act, -
Section - 7,- - General Clauses Act, -
Section- 21, - Indian Penal Code, 1860 -
Sections 124-(A), 153-(A), 294, 295-(A),
298, 354-(KA) & 505-(2), - Information
and Technology Act, - Section - 67 - Writ of
Habeas Corpus - against detention order -
representation - rejected - maintainability -
800 INDIAN LAW REPORTS ALLAHABAD SERIES
Violation of provisions of section - he has
emphasized primarily on ground that there has
been
undue
delay
in
disposal
of
the
representation made by detenue against order
of detention by the St. Government inasmuch as
that after receipt of representation the D.M.
failed to furnish the same to St. Government
with due diligence - Held, Detention order
passed by detaining authority, if is approved by
the St. Government, merges with the order of
approval of the St. Government which renders
detaining authority functus officio - court finds
that, if in terms of the provisions of section 21
of General Clauses Act, power to undo or
rescind detention order is extended to detaining
authority even after approval of such detention
order by St. Government, that may give rise to a
very anomalous situation where D.M. in case on
consideration of representation of detenue
allows same and sets aside detention order -
D.M. has St.d that he took some time to decide
representation preferred by petitioner which was
rejected by him - Such an exercise undertaken
by the D.M. was completely uncalled for and
unwarranted and time devoted by him for
undertaking such exercise could have easily
been saved and utilized in furnishing petitioner's
representation to St. Government - hence,
Habeas Corpus petition is allowed.(Para - 40,
41, 43 )

Writ Petition Allowed. (E-11)

List of Cases cited: -

1. Harish Pawha Vs St. of U.P. & ors., AIR 1981
SC 1126

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

3. K.M. Abdulla Kunhi Vs U.O.I., (1991) 1 SCC
476 : 1991 SCC (Cri) 613

4. Mohd. Faiyyaz Mansuri Vs U.O.I. & ors.,
Habeas Corpus No.23475/2020, decided on
07.09.2021

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. These proceedings under Article
226 of the Constitution of India have been
instituted by the detenue-Mohd. Sheebu @
Sheebu Chaudhary through his brother and
next friend Mubarak Ahmad praying for
issuing a writ of Habeas Corpus setting the
detenue free from detention as directed by
the District Magistrate, Sitapur by means of
an order dated 08.03.2022 after quashing
the same.

2. Heard Shri Sushil Kumar Singh,
learned counsel for the petitioner, learned
Additional
Government
Advocate
representing the State-respondents and Ms.
Pooja Singh, learned counsel representing
the Union of India and perused the records
available before us on this writ petition.

3. As observed above, the order
impugned herein is dated 08.03.2022
passed by the District Magistrate, Sitapur
(hereinafter referred to 'the detention
order') whereby the detenue has been
ordered to be detained in preventive
detention at District Jail, Sitapur in terms of
the provisions contained in section 3(2) and
3(3) of the National Security Act, 1980
(hereinafter referred to as 'NSA').

4.

Though
various
grounds
impeaching the impugned detention order
have been urged by the learned counsel for
the petitioner, however, he has emphasized
primarily on the ground that there has been
undue
delay
in
disposal
of
the
representation made by the detenue against
the order of detention by the State
Government inasmuch as that after receipt
of the representation the District Magistrate
failed to furnish the same to the State
Government with due diligence, which is
fatal and consequently vitiates the detention
of the petitioner. It has, thus, been argued
by the learned counsel for the petitioner
that such delay on the part of the District
Magistrate in furnishing the representation
2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
801
to the State Government has resulted in
denial of the right of the petitioner to be
afforded the earliest opportunity to make
representation against the order to the
appropriate Government as envisaged by
Section 8 of the NSA and as mandated by
Article 22 (5) of the Constitution of India.
His submission, thus, is that the delay at the
end of the District Magistrate in referring
the representation to the State Government
not only infringes right of the petitioner as
available to him under section 8 of the
NSA and Article 22(5) of the Constitution
of India but also that it is fatal to the extent
that the order of detention is not tenable.

5. On the other hand, learned counsel
representing
the
State-respondents
has
submitted that sufficient explanation has been
provided in the supplementary counter affidavit
filed by the District Magistrate for the alleged
delay in furnishing the representation of the
petitioner to the State Government and in view
of the fact that the delay has appropriately been
explained, the question of violation of the
provisions of section 8 of NSA and Article
22(5) of the Constitution of India, in the facts of
the present case, does not arise at all. His
submission is that the arguments made by the
learned counsel for the petitioner are, thus,
highly misconceived and the writ petition
deserves to be dismissed.

6. Learned counsel representing the
Central Government/Union of India has
submitted that so far as the Union of India is
concerned, there has not been any delay in
disposal of the representation made by the
detenue against the detention order; neither is
there any such pleadings in the writ petition.
She has, thus, argued that the writ petition
deserves to be dismissed.

7. We have consciously considered
the competing submissions made by the
learned counsel for the respective parties.
The issue, which, in the facts of the case
and also on the basis of the respective
submissions made by the learned counsel
for
the
parties,
arises
for
our
consideration is as to whether the delay at
the end of the District Magistrate in
furnishing the representation made by the
detenue against the detention order to the
State Government is unexplained and
reflects callousness and indifference on
the part of the District Magistrate which
is fatal to sustain the impugned detention
order.

8. For appropriately deciding the
issue as culled out above, we proceed to
note certain facts, which are not disputed
between the parties.

9. The impugned detention order
passed by the District Magistrate under
section 3 (2) and 3(3) of the NSA is
founded on a First Information Report
lodged against the petitioner at Case
Crime No.309 of 2021, under sections
153-A, 505(2), 294 of I.P.C. and section
67 of Information Technology Act. The
said F.I.R. was lodged on 21.08.2021 at
Police Station-Mahmoodabad, DistrictSitapur and offences under section 124A, 295-A, 298 and 354(Ka) of I.P.C. and
section 7 of Criminal Law Amendment
Act were subsequently added.

10. In connection with the aforesaid
First Information Report, the petitioner was
arrested and was lodged in jail since
22.08.2021, however, he was ordered to be
enlarged
on
bail
vide
order
dated
02.03.2022 passed by this Court in
Criminal Misc. Bail Application No.1499
of 2022. Before the petitioner could be
released pursuant to the said order dated
02.03.2022 passed by this Court granting
802 INDIAN LAW REPORTS ALLAHABAD SERIES
bail, the District Magistrate passed the
detention order on 08.03.2022.

11. The detention order dated
08.03.2022
passed
by
the
District
Magistrate was approved by the State
Government by means of the order dated
15.03.2022.

12. As admitted by the District
Magistrate in his supplementary counter
affidavit dated 14.10.2022 the petitioner
moved
separate
representations
dated
16.03.2022 to the Secretary, Department of
Home, Government of Uttar Pradesh, to the
U.P. State Advisory Board and also to the
Secretary, Ministry of Home, Government
of India, New Delhi, which were received
in the office of District Magistrate on
16.03.2022 as sent by the Superintendent of
Jail, Sitapur by means of his letter dated
16.03.2022.

13. So far as the representation made
by the petitioner to the Central Government
is concerned, it is on record that the said
representation
dated
16.03.2022
was
examined by the appropriate authority of
the Central Government and the same was
rejected. Such rejection was communicated
by means of the wireless message dated
11.04.2022.

14. The matter was considered by
U.P. Advisory Board on 01.04.2022 where
the petitioner was personally heard and a
report accordingly was sent by the
Advisory Board whereupon the State
Government took a decision to confirm the
detention order and also to keep the
petitioner under detention for a period of
three months on 13.04.2022.

15. The Court while considering this
writ
petition
passed
an
order
on
11.10.2022 directing the learned State
Counsel to file a supplementary counter
affidavit by the District Magistrate in
respect of the delay on his part in
furnishing the representation received
from jail authorities on 16.03.2022 for
furnishing the same onward to the State
Government/Central Government. The
order dated 11.10.2022 passed by this
Court is extracted herein below:-

"As prayed by Sri Tilhari,
learned A.G.A., put up this case on
18.10.2022
to
enable
the
District
Magistrate to file supplementary counter
affidavit in the matter with regard to the
delay on his part in sending the
representation,
received
from
jail
authorities in his office on 16.03.2022,
onward to the State Government /
Central Government as the case may be
as is being argued by learned counsel
for the petitioner."

16. In compliance of the order dated
11.10.2022, the District Magistrate has
filed a supplementary counter affidavit
wherein an attempt has been made by him
to explain the delay which occurred on
his part in furnishing the representation
of the petitioner, which was received in
the office of District Magistrate on
16.03.2022, to the State Government. The
District
Magistrate
in
the
said
supplementary
counter
affidavit
has
narrated and admitted the following facts:

(a) Against the detention order
dated 08.03.2022 the petitioner moved
separate
representations
to
the
State
Government, to the Central Government
and to U.P. State Advisory Board on
16.03.2022 which was received in the
office of District Magistrate on the same
day i.e. 16.03.2022 through a letter of the
2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
803
said date of the Superintendent, District
Jail, Sitapur.

(b)
From
17.03.2022
Holi
vacation commenced which ended on
20.03.2022.

(c)
On
21.03.2022
the
representation
dated
16.03.2022
was
marked
to
the
Additional
District
Magistrate, Sitapur for necessary action.

(d) On 22.03.2022 the District
Magistrate forwarded the representations to
the Superintendent of Police for his
comments.

(e) The Superintendent of Police
vide letter dated 24.03.2022 forwarded his
comments which were received in the
office of District Magistrate, Sitapur on
26.03.2022.

(f) The District Magistrate then
considered the representation himself and
rejected the same by means of the order
dated 26.03.2022.

(g)
The
rejection
of
the
representation by the District Magistrate
was communicated to the petitioner on
26.03.2022 through the Superintendent,
District Jail, Sitapur and thereafter the
District Magistrate sent the representation
of the petitioner vide his letter dated
26.03.2022 to the Home Department,
Government of U.P., which was received in
the office of the Secretary of the Home
Department
on
27.03.2022.
The
representation of the petitioner was also
sent through registered post on 27.03.2022
to the Ministry of Home, Government of
India.

17. In paragraph 6 of the counter
affidavit filed on behalf of the State of Uttar
Pradesh which is sworn in by the Under
Secretary, Home (Confidential) Department,
however, it has been stated that the
representation dated 16.03.2022 along with
comments was received in the concerned
section of the State of U.P. on 28.03.2022
along with the letter of the District
Magistrate, Sitapur, dated 26.03.2022.

18. The State Government in its counter
affidavit
has
further
stated
that
the
representation of the petitioner was examined
by the Under Secretary in the Home
Department, on 29.03.2022 and that it was
examined by the Joint Secretary and the
Special Secretary as well on the same day i.e.
29.03.2022.
According
to
the
State
Government's
counter
affidavit,
the
representation of the petitioner was examined
by the Additional Chief Secretary on
30.03.2022 and the file was submitted for
final orders to the higher authorities and the
representation was rejected on 31.03.2022
and accordingly it was communicated to the
petitioner through the District authorities by
the State Government vide radiogram dated
01.04.2022.

19. In the light of the aforesaid facts, it
has been submitted by the learned Staterespondents that there has been no delay in
disposal of the representation and the delay in
furnishing the representation made by the
petitioner against his detention order passed
by the District Magistrate to the State
Government
has
sufficiently
and
appropriately been explained.

20. The bone of contention in this
case, thus, between the parties is as to
whether the delay which occurred in
sending the representation of the petitioner
to the State Government by the District
Magistrate
has
appropriately
been
explained so as to conclude that such delay
was not fatal to vitiate the detention of the
petitioner.

21. Before giving our conclusion as to
the delay, we may examine the relevant law
804 INDIAN LAW REPORTS ALLAHABAD SERIES
in this regard. Article 22, which falls in
Part III of the Constitution of India
containing fundamental rights, provides
certain
protection
against
arrest
and
detention in certain cases. Clause 5 of
Article 22 is in relation to detention in
pursuance of an order made under any law
providing for preventive detention. It casts
two duties on the authority making
detention order, which are as follows:-

(i)
The
authority
making
detention
order
is
duty
bound
to
communicate the person so detained the
grounds on which the order has been made,
as soon as may be, and

(ii) Detaining Authority shall
afford him the earliest opportunity of
making
a
representation
against
the
detention order.

22. In tune with the provisions of
Article 22(5) of the Constitution of India,
section 8 of the NSA also provides that the
detaining authority as soon as may be, but
ordinarily not later than five days (in
exceptional circumstances and for the
reasons to be recorded in writing, not later
than ten days) from the date of detention
shall communicate to the detenue the
grounds on which the order has been made
and it shall also afford him the earliest
opportunity of making a representation
against the order to the appropriate
Government.
Article
22(5)
of
the
Constitution of India is extracted herein
below:-

"22. Protection against arrest
and detention in certain cases.-(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."

23. Section 8 of the National Security
Act is also quoted hereunder:-

"8.
Grounds
of
order
of
detention to be disclosed to persons
affected by the order.--(1) When a person
is detained in pursuance of a detention
order, the authority making the order
shall, as soon as may be, but ordinarily
not later than five days and in exceptional
circumstances and for reasons to be
recorded in writing, not later than 1
[fifteen days] from the date of detention,
communicate to him the grounds on
which the order has been made and shall
afford him the earliest opportunity of
making a representation against the order
to
the
appropriate
Government.
(2)
Nothing in sub-section (1) shall require
the authority to disclose facts which it
considers to be against the public interest
to disclose."

24. Hon'ble Supreme Court as far
back as in the year 1981 in the case of
Harish Pawha vs. State of U.P. and
others, reported in AIR 1981 SC 1126 has
held that it is the duty of the State to
proceed to determine representation of the
detenue with utmost expedition which
means that the matter must be taken up for
consideration
as
soon
as
such
a
representation is received and dealt with
continuously
unless
it
is
absolutely
necessary to wait for some assistance, until
a final decision is taken and communicated
to the detenue.

25. Hon'ble Apex Court in the case of
Rajammal vs. State of Tamil Nadu and
2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
805
another, reported in (1999) 1 SCC 417 has
reiterated the aforesaid legal position in
paragraphs 6, 7 and 8 which are quoted 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. 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
806 INDIAN LAW REPORTS ALLAHABAD SERIES
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. From the judgment in the case of
Rajammal (supra) we gather a cue as to
what delay will amount to adversely
affecting further detention of a detenue
detained under any law of preventive
detention. Hon'ble Apex Court has clearly
held that if delay is caused on account of
any indifference or lapse in considering the
representation, such delay will adversely
affect further detention of the detenue. It
has further been held that it is for the
authority concerned to explain the delay
and also that it is not the duration of delay
which is the test; rather the test is how such
a delay is explained by the authority
concerned. Hon'ble Supreme Court has also
held that there should not be supine
indifference, slackness or callous attitude in
consideration of representation and that any
unexplained delay will be in breach of the
constitutional mandate which will render
the continued detention to be illegal.

27. A Constitutional Bench judgment
of Hon'ble Supreme Court in the case of
K.M. Abdulla Kunhi and another vs.
Union of India and others, reported in
(1991) 1 SCC 476 has outlined two rights
of the detenue under Article 22(5) of the
Constitution of India, which we have
already mentioned above.

28. Para 7 of the judgment in the case
of K.M. Abdulla Kunhi (supra) is
extracted herein below:

"7. The detenu has two rights
under clause (5) of Article 22 of the
Constitution: (i) to be informed, as soon
as may be, of the grounds on which the
order of detention is based, that is, the
grounds which led to the subjective
satisfaction of the detaining authority, and
(ii) to be afforded the earliest opportunity
of making a representation against the
order of detention".

29. It has also been held by Hon'ble
Supreme Court in the said Constitutional
Bench Judgment that right of consideration
of representation of the detenue by the
Government
is
independent
of
consideration of detenue's case and his
representation by the Advisory Board under
Article 22(4) of the Constitution of India.
Para 11 of the judgment in the case of
K.M. Abdulla Kunhi (supra) is relevant at
this juncture to be quoted which runs as
under:-

"11. It is now beyond the pale of
controversy that the constitutional right to
make representation under clause (5) of
Article
22
by
necessary
implication
2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
807
guarantees the constitutional right to a
proper
consideration
of
the
representation. Secondly, the obligation of
the government to afford to the detenu an
opportunity to make representation and to
consider such representation is distinct
from the government's obligation to refer
the case of detenu along with the
representation to the Advisory Board to
enable it to form its opinion and send a
report to the government. It is implicit in
clauses (4) and (5) of Article

22
that the government while discharging its
duty to consider the representation,
cannot depend upon the views of the
Board on such representation. It has to
consider the representation on its own
without being influenced by any such view
of the Board. The obligation of the
government to consider the representation
is different from the obligation of the
Board to consider the representation at
the time of hearing the references. The
government considers the representation
to ascertain essentially whether the order
is in conformity with the power under the
law. The Board, on the other hand,
considers the representation and the case
of the detenu to examine whether there is
sufficient
case
for
detention.
The
consideration
by
the
Board
is
an
additional safeguard and not a substitute
for consideration of the representation by
the government. The right to have the
representation
considered
by
the
government, is safeguarded by clause (5)
of Article 22 and it is independent of the
consideration of the detenu's case and his
representation by the Advisory Board
under clause (4) of Article 22 read with
Section 8(c) of the Act. (See: Sk. Abdul
Karim v. State of W.B. [(1969) 1 SCC 433]
; Pankaj Kumar Chakrabarty v. State of
W.B. [(1969) 3 SCC 400 : (1970) 1 SCR
543]
;
Shayamal
Chakraborty
v.
Commissioner of Police, Calcutta [(1969)
2 SCC 426] ; B. Sundar Rao v. State of
Orissa [(1972) 3 SCC 11] ; John Martin v.
State of W.B. [(1975) 3 SCC 836 : 1975
SCC (Cri) 255 : (1975) 3 SCR 211] ; Sk.
Sekawat v. State of W.B. [(1975) 3 SCC
249 : 1974 SCC (Cri) 867 : (1975) 2 SCR
161] and Haradhan Saha v. State of W.B.
[(1975) 3 SCC 198 : 1974 SCC (Cri) 816 :
(1975) 1 SCR 778] )"

30. Emphasizing that representation
under Article 22(5) of the Constitution of
India relates to liberty of an individual
which is a highly cherished right enshrined
in Article 21 of the Constitution of India, it
has been held by Hon'ble Supreme Court in
the case of K.M. Abdulla Kunhi (supra)
that Article 22(5) thus provides a legal
mandate to the Government to consider the
representation as early as possible. It has
further been held that the phrase "as soon
as may be" occurring in Article 22(5)
reflects the concern of the Framers of the
Constitution that the representation should
be expeditiously considered and disposed
of with a sense of urgency without an
unavoidable delay. It has been held that
though there is no period prescribed under
the Constitution or under the concerned
detention
law
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.

31. Para 12 of the case in K.M.
Abdulla Kunhi (supra) is extracted herein
below:-

"12. The representation relates
to the liberty of the individual, the highly
cherished right enshrined in Article 21 of
our Constitution. Clause (5) of Article 22
808 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, casts a legal obligation on the
government to consider the representation
as early as possible. It is a constitutional
mandate commanding the concerned
authority to whom the detenu submits his
representation
to
consider
the
representation and dispose of the same as
expeditiously as possible. 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 concerned detention law,
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. This has been
emphasised and re-emphasised by a series
of
decisions
of
this
Court.
(See:
Jayanarayan Sukul v. State of W.M.
[(1970) 1 SCC 219] ; Frances Coralie
Mullin v. W.C. Khambra [(1980) 2 SCC
275 : 1980 SCC (Cri) 419] ; Rama
Dhondu
Borade
v.
V.K.
Saraf,
Commissioner of Police [(1989) 3 SCC
173 : 1989 SCC (Cri) 520] and Aslam
Ahmed Zahire Ahmed Shaik v. Union of
India [(1989) 3 SCC 277 : 1989 SCC (Cri)
554] .)"

32. Similar view has been expressed
by a Division Bench of this Court in the
case of Mohd. Faiyyaz Mansuri vs.
Union of India and others, decided on
07.09.2021 (Habeas Corpus No.23475 of
2020) wherein plea of the petitioner that
there
was
delay
in
forwarding
his
representation has been found to carry
substance and on the said ground alone, the
impugned detention order was quashed.

33. In the light of the afore-referred
legal position, what is unambiguous in our
mind is that the detaining authority is under
obligation to afford the detenue the earliest
opportunity
of
making
representation
against the detention order. The relevant
clause occurring in sub clause 5 of Article
22 is "shall afford him the earliest
opportunity of making a representation
against the order". The provisions of
section 8 of the NSA are in complete sync
with Article 22 (5) of the Constitution of
India and the relevant phrase occurring
therein is "shall afford him the earliest
opportunity of making a representation
against the order to the appropriate
Government". In our considered opinion
affording
the
detenue
the
earliest
opportunity of making a representation
against the detention order will not mean
and meaning of the said phrase cannot be
confined to making aware the detenue of
his right to make representation against the
detention order at the earliest, rather it
would extend to a duty of the detaining
authority to forward and furnish the
representation which may be made by the
detenue against the detention order to the
authorities concerned, namely, the State
Government, the Central Government and
the Advisory Board at the earliest as per the
scheme of the National Security Act.

34. The fact situation where after
passing of the detention order the detaining
authority though apprises the detenue of his
right to make representation without loss of
2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
809
any time but, however, fails to forward
such representation at the earliest to the
State Government or to the Central
Government or to the Advisory Board, in
our opinion will not suffice to fulfill the
requirement of Article 22(5) of the
Constitution of India as also section 8 of
the National Security Act.

35. When we examine the admitted
facts in the light of the aforementioned
legal position, what we find is that the
representation against the detention by the
petitioner was made on 16.03.2022 which
was received in the office of the District
Magistrate on the same day along with
letter of the Superintendent, District Jail,
Sitapur, dated 16.03.2022, however, it was
sent to the State Government only on
26.03.2022. In other words, the District
Magistrate
took
ten
long
days
in
forwarding
the
representation
dated
16.03.2022 submitted by the detenue
against his detention order.

36. The explanation offered in the
supplementary counter affidavit filed by the
District Magistrate dated 14.10.2022, in our
considered opinion cannot be said to be
sufficient
or
appropriate.
The
representation dated 16.03.2022 of the
petitioner is said to have been marked to
the Additional District Magistrate on 4th
day i.e. on 21.03.2022, though it has been
stated that there was Holi vacation between
17.03.2022
and
20.03.2022.
The
representation is thereafter said to be
marked to the Superintendent of Police on
22.03.2022 asking for his comments, which
in our opinion could have been marked to
the Superintendent of Police on 21.03.2022
itself if not before that. If the representation
could be marked to the Additional District
Magistrate on 21.03.2022 why could it not
be marked to the Superintendent of Police
on the same day i.e. 21.03.2022 remains
unexplained. Once the representation was
marked to the Superintendent of Police on
22.03.2022 he is said to have reverted with
his comments to the District Magistrate
vide his letter dated 24.03.2022 which was
received in the office of District Magistrate
on 26.03.2022. At the District Headquarters
the office of District Magistrate and
Superintendent of Police cannot be located
at
such
a
far
place
so
that
the
comments/letter dated 24.03.2022 from the
Superintendent of Police would take so
much of time to reach the office of the
District Magistrate on 26.03.2022.

37. It is also to be noticed that it is on
26.03.2022 when the District Magistrate
rejected the representation of the detenue
and forwarded the representation of the
petitioner to the State Government which
as per the supplementary counter affidavit
filed by the District Magistrate was
received in the office of the State
Government on 27.03.2022, however, as
per the counter affidavit filed by the State
Government it was received on 20.03.2022.

38.

The
undisputed
facts
as
chronologically narrated above, in our
considered opinion, lead to the conclusion
that delay in forwarding the representation
of the petitioner against the detention order
by the District Magistrate to the State
Government was, in this case, precipitated
on account of callous and indifferent
attitude on the part of the District
Magistrate to the fundamental rights of the
petitioner under Article 22(5) of the
Constitution of India as also to his right
under section 8 of the NSA.

39. There is yet another aspect which
we would like to reflect upon. In the short
counter affidavit dated 14.10.2022 filed by
810 INDIAN LAW REPORTS ALLAHABAD SERIES
the District Magistrate he has stated that the
representation dated 16.03.2022 of the
petitioner was sent to the Additional
District
Magistrate
and
to
the
Superintendent of Police and thereafter on
receipt of the report/comment of the
Superintendent of Police vide his letter
dated 24.03.2022 the District Magistrate
considered
the
representation
of
the
petitioner and rejected the same by passing
an order on 26.03.2022. A copy of the said
order dated 26.03.2022 has been enclosed
as
annexure-SCA
4
to
the
said
supplementary
counter
affidavit.
The
question, which arises here is as to whether
the exercise undertaken by the District
Magistrate in considering and rejecting the
representation by the petitioner, was under
the scheme of NSA, warranted at all
keeping in view the fact that the detention
order
dated
08.03.2022
was
already
approved by the State Government by
means of the order dated 15.03.2022.We
are conscious of the provisions of section
21 of the General Clauses Act which is
quoted hereunder:

"21. Power to issue, to include
power to add to, amend, vary or rescind
notifications, orders, rules or bye-lawsWhere, by any Central Act or Regulations a
power to issue notifications, orders, rules
or bye-laws is conferred, then that power
includes a power, exercisable in the like
manner and subject to like sanction and
conditions, if any, to add, to amend, vary or
rescind any notifications, orders, rules or
bye-laws so issued."

40. Thus, no doubt, by virtue of
section 21 of the General Clauses Act the
detaining authority may have the power to
rescind
the
detention
order
on
the
representation of the detenue, however, this
power can be exercised only before the
order of detention passed by the detaining
authority under section 3(3) is approved by
the State Government in terms of the
requirement of section 3(4). In fact, once
the detaining authority passes detention
order under section 3(3), it is to operate for
not more than 12 days or 15 days as the
case may be, unless in the meantime it is
approved by the State Government. Such
detention order passed by the detaining
authority, if is approved by the State
Government, merges with the order of the
approval of the State Government which
renders the detaining authority functus
officio. If in terms of the provisions of
section 21 of the General Clauses Act,
power to undo or rescind the detention
order is extended to the detaining authority
even after approval of such detention order
by the State Government, that may give
rise to a very anomalous situation where
the
District
Magistrate
in
case
on
consideration of the representation of the
detenue allows the same and sets aside the
detention order. The anomaly in such a
situation would be that despite the District
Magistrate having set aside the detention
order the order of approval of detention
order accorded by the State Government
will still be in existence.