# Munvar Razai @ Munvwar Ali & Anr v. U.O.I. & Ors

- **Citation:** (2021) 11 ILRA 1320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Habeas Corpus W.P. No. 782 of 2020
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munvar-razai-munvwar-ali-anr-v-u-o-i-ors-46551
- **Pages:** 16

## Headnote

A. Preventive detention - National Security Act,
1980, Sections 3 (3) & 3 (4) - Constitution of
India Art.22 - Preventive Detention order
passed by the detaining authority/ D.M. under
sub-section (3) of Section 3 can remain in force
for twelve days from the date of the order
unless approved by the State Government - S.
10 mandates that the appropriate Government
shall place the detention order, grounds on
which the order has been made and the
representation made by the affected person
alongwith the report of the officer before the
Advisory Board, within three weeks from the
date of detention of a person - In case, the
deadline prescribed under the Act at any stage
of the decision making process has not been
met, it is for the authority concerned to explain
the delay, which in turn resulted in delay in
disposing
of
the
representation
-
delay,
however, short it may be, requires explanation
of the authority concerned - deadlines have to
be strictly obeyed - delay caused on account of
any indifference, slackness or callous attitude
of the authority/Government at any stage of
the decision making process, if remained
unexplained, cannot be condoned (Para 21)

On 3.9.2020, orders for detention of the petitioners
were passed by the District Magistrate - On
14.9.2020,petitioners made representations - D.M.
sent the representations of the petitioners to the
State Government on 24.9.2020 which were received
by the State Government on 28.9.2020 - Order dated
3.9.2020 could have remained in force only for twelve
days i.e. upto 15.9.2020 - delay of nine days caused
by the detaining authority / District Magistrate in
forwarding the representations of the petitioners on
24.9.2020 to the State Government has not been
explained - representations moved by the petitioners
on 14.9.2020 were sent to the State Advisory Board
on 28.9.2020 when the period of three weeks from
the date of detention order (3.9.2020) had already
expired on 24.9.2020 - unexplained delay at the ends
of the District Magistrate has resulted in placing the
matter before the State Advisory Board beyond the
period of three weeks - delay caused in placing the
matter before the Advisory Board cannot be
condoned for the reason that the Advisory Board had
submitted its report within the prescribed period of
seven days - non-compliance of the mandatory
provision of Section 10 of the NSA renders the
detention orders illegal (Para 19, 22)

B. Preventive detention - National Security Act,
1980, S. 3 (2), S. 3 (3) - Detention order - that
there must be a reasonable basis for the
detention order and there must be material to
support the same - subjective satisfaction of
the detaining authority must be based upon
some pertinent/relevant material and any
non-existent or misconceived or irrelevant
consideration, if forms basis of detention order,
the order of detention would be invalid -
though the detaining authority is not obliged to
record
his
subjective
sat

## Text

_Characters 0–39,713 of 59,002. This is a partial read: ask again with offset=39713 for what follows._

1320 INDIAN LAW REPORTS ALLAHABAD SERIES
2.
Future
Prospects
Rs.
2,400/-
(i.e. 40% of
the income)
3.
Deduction
towards
personal
expenditure
Rs.
2,100/-
[i.e. 1/4th of
(6,000
+
2,400)]
4.
Total Income
Rs.
6,300/-
[i.e. 3/4th of
(6,000
+
2,400)]
5.
Multiplier
as
per the age of
the
deceased
i.e. 23 years
18
6.
Loss of future
income
Rs.
13,60,800/-
(Rs. 6,300 x
12 x 18)
7.
Loss of love
and affection
for
entire
family (As per
Rule
220-A
(4) (iii) of the
Rules
of
1998)
Rs. 15,000/-
8.
Funeral
expenses
Rs. 15,000/-
9.
Loss of Estate Rs. 15,000/-
10. Loss
of
Consortium
Rs. 2,00,000/-
[Rs. 40,000 x
5 (wife, son,
daughter,
mother
and
father)
11. Medical
Expenses
Rs. 5,000/-

Total
Compensatio
Rs.
16,10,800/-
n
along
with
interest @ 6%
per
annum
from the date
of
filing
of
claim petition
till payment.

37. It is made clear that this Court has
modified the judgment and award dated
18.12.2018, under appeal, passed by the
Tribunal, in above terms only. The Tribunal in
its judgment and award dated 18.12.2018 has
apportioned the amount awarded by it and this
Court also deems it appropriate that the
enhanced amount awarded by this Court in this
judgment shall also be disbursed in the same
manner by the Tribunal. Ordered accordingly.
The Tribunal while providing the amount in
terms of this judgment shall adjust the amount, if
any, already paid/ provided to the appellants.

38. The appeal is allowed in above terms.

39. Let records, if any, be returned to the
Court concerned along with the copy of this
judgment for necessary compliance.
----------
(2021)12ILR A1320
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

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

Habeas Corpus W.P. No. 782 of 2020
along with
Habeas Corpus W.P. Nos. 785 of 2020, 786 of 2020,
787 of 2020, 817 of 2020 & 40 of 2021

Munvar Razai @ Munvwar Ali & Anr.
 ...Petitioners
Versus
U.O.I. & Ors. ...Respondents
11 All. Munvar Razai @ Munvwar Ali & Anr. Vs. U.O.I. & Ors.
1321
Counsel for the Petitioners:
Sri Ajay Srivastava, Sri Sadaful Islam Jafri, Sri Shiv
Bahadur Singh, Sri Sharique Ahmed, Sri Ali Zamal
Khan, Sri Nazrul Islam Jafri

Counsel for the Respondents:
A.S.G.I., G.A., Sri Kuldeep Singh Chauhan

A. Preventive detention - National Security Act,
1980, Sections 3 (3) & 3 (4) - Constitution of
India Art.22 - Preventive Detention order
passed by the detaining authority/ D.M. under
sub-section (3) of Section 3 can remain in force
for twelve days from the date of the order
unless approved by the State Government - S.
10 mandates that the appropriate Government
shall place the detention order, grounds on
which the order has been made and the
representation made by the affected person
alongwith the report of the officer before the
Advisory Board, within three weeks from the
date of detention of a person - In case, the
deadline prescribed under the Act at any stage
of the decision making process has not been
met, it is for the authority concerned to explain
the delay, which in turn resulted in delay in
disposing
of
the
representation
-
delay,
however, short it may be, requires explanation
of the authority concerned - deadlines have to
be strictly obeyed - delay caused on account of
any indifference, slackness or callous attitude
of the authority/Government at any stage of
the decision making process, if remained
unexplained, cannot be condoned (Para 21)

On 3.9.2020, orders for detention of the petitioners
were passed by the District Magistrate - On
14.9.2020,petitioners made representations - D.M.
sent the representations of the petitioners to the
State Government on 24.9.2020 which were received
by the State Government on 28.9.2020 - Order dated
3.9.2020 could have remained in force only for twelve
days i.e. upto 15.9.2020 - delay of nine days caused
by the detaining authority / District Magistrate in
forwarding the representations of the petitioners on
24.9.2020 to the State Government has not been
explained - representations moved by the petitioners
on 14.9.2020 were sent to the State Advisory Board
on 28.9.2020 when the period of three weeks from
the date of detention order (3.9.2020) had already
expired on 24.9.2020 - unexplained delay at the ends
of the District Magistrate has resulted in placing the
matter before the State Advisory Board beyond the
period of three weeks - delay caused in placing the
matter before the Advisory Board cannot be
condoned for the reason that the Advisory Board had
submitted its report within the prescribed period of
seven days - non-compliance of the mandatory
provision of Section 10 of the NSA renders the
detention orders illegal (Para 19, 22)

B. Preventive detention - National Security Act,
1980, S. 3 (2), S. 3 (3) - Detention order - that
there must be a reasonable basis for the
detention order and there must be material to
support the same - subjective satisfaction of
the detaining authority must be based upon
some pertinent/relevant material and any
non-existent or misconceived or irrelevant
consideration, if forms basis of detention order,
the order of detention would be invalid -
though the detaining authority is not obliged to
record
his
subjective
satisfaction
in
the
detention order but it cannot record its
subjective
satisfaction
on
the
irrelevant
grounds - it is the duty of the sponsoring
authority to collect all the relevant material
and place it before the detaining authority
upon which the detaining authority has to
apply its independent mind to arrive at its
subjective satisfaction on the material before it
- Court is entitled to scrutinize the material
relied upon by the authority in coming to its
conclusion, and accordingly determine, if there
was an objective basis for the subjective
satisfaction - relevancy or irrelevancy of the
material before the detaining authority can be
seen so as to ascertain as to whether the
subjective satisfaction has been recorded on
relevant grounds or irrelevant material formed
the basis of such a decision (Para 23, 28)

Material which formed basis of passing the detention
orders by the District Magistrate, Mau, i.e. for
recording his satisfaction is the report of the Incharge
Inspector - said report in each case is dated
27/28.8.2020 and verbatim the same - a Beat
information dated 27/28.8.2020 in each case had
been noted to state that it was reported that the
detenues who were lodged in jail had been telling
their friends and relatives, who went to meet them in
jail that after release from jail, they would repeat the
same crime again and the incident this time would be
bigger than the last one - Held - there is no denial to
the fact that the petitioner therein did not meet any
of his friends or relatives or talk to them during
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
COVID period - detaining authority had proceeded to
record his satisfaction without verification of the
statement made in the reports of the Incharge
Inspector - satisfaction recorded by the detaining
authority was not based on the objective criteria by
application of its independent mind - Detention order
invalid (Para 35)

Allowed. (E-5)

List of Cases cited:

1. Rajammal Vs St.of T.N. (1999) 1 SCC 417

2. Devendra Kumar Goel @ Babua Vs St. of U.P. 1985
Supreme (All) 27

3. Surya Prakash Sharma Vs St.of U.P. & ors. 1994
Supp (3) SCC 195

4. Pebam Ningol Mikoi Devi & St. of Manipur & ors.
(2010) 9 SCC 618

5. Afsar Vs St. of U.P. & ors. Habeas Corpus Writ
Petition No. 893 of 2019

6. Aftab Alam @ Noor Alam @Hitler Vs U.O.I. Habeas
Corpus Writ Petition No. 468 of 2020

7. K.M. Abdulla Kunhi & B.L. Abdul Khader Vs U.O.I. &
ors. St. of Karn. & ors. 7 (1991) 1 SCC 476

8. St. of Raj. Vs Talib Khan (1996) 11 SCC 393

9. U.O.I. Vs Laishram Lincola Singh (2008) 5 SCC 490

10. Rameshwar Shaw Vs D.M., Burdwan & anr. 1964
(4) SCR 921

11. Dharmendra Suganchand Chelawat & anr. Vs
U.O.I. & ors. AIR 1990 SC 1196

12. Fazal Ghosi Vs St. of U.P. (1987) 3 SCC 502

13. Shafiq Ahmed Vs D.M., Meerut (1989) 4 SCC 556

14. St. of Pun. Vs Sukhpal Singh (1990) 1 SCC 35

15. Ramesh Yadav Vs D.M., Etah AIR 1986 SC 315

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

1. Since the issues raised in all the
connected Habeas Corpus petitions are one and
the same and hence they have been heard
together and are being decided by this common
judgment.

Heard Sri Nazrul Islam Jafri learned Senior
Advocate assisted by Sri Sharique Ahmed, Sri
Ali Zamal Khan and Sri Sadaful Islam Jafri
learned Advocates for the petitioners, Ms. Nand
Prabha Shukla learned A.G.A. for the Staterespondents and Sri Shashi Dhar Sahai learned
Standing Counsel for the Union of India.

2. The petitioners herein have been
detained under Section 3(2) of the National
Security Act, 1980 (herein after referred to as
"NSA").

The prayer in the writ petitions is to quash
the order dated 3.9.2020 passed by the District
Magistrate, Mau invoking powers under Section
3(2) of the NSA as also the order dated
23.10.2020 passed by the State Government
extending the period of detention for three
months under Section 12(1) of the NSA.

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

3. In an incident occurred on 16.12.2019 at
about 6:30 PM, a first information report was
lodged against 85 named persons and 600
unnamed on 17.12.2019, by the informant
namely S.H.O. Nihar Nandan Kumar at the
Police Station Dakshin Tola, District Mau. The
report of the sponsoring authority namely
S.H.O., Police Station Dakshin Tola, District
Mau addressed to the Superintendent of Police,
District Mau was submitted on 27/28.8.2020.
Pursuant thereto, by the letter dated 31.8.2020,
the Superintendent of Police, District Mau had
requested the District Magistrate, Mau to detain
the petitioners by invoking powers under
11 All. Munvar Razai @ Munvwar Ali & Anr. Vs. U.O.I. & Ors.
1323
Section 3(2) of the NSA. On 3.9.2020, separate
orders for detention of the petitioners were
passed by the District Magistrate, Mau recording
his satisfaction that the detention of the
petitioner(s) was necessary in order to prevent
them from acting in any manner prejudicial to
the maintenance of the public order. At the time
of the passing of the detention order, the
petitioners herein were already in custody in the
District Jail, Mau.

4. The grounds of detention were
communicated to the petitioners on 3.9.2020
itself. On 14.9.2020, the petitioners made
representations (separately) for presentation of
the same before the State Advisory Board. The
said representations were forwarded by the
Superintendent, District Jail, Mau to the office
of the District Magistrate, Mau on 15.9.2020.
The District Magistrate, Mau had sent the
representations of the petitioners to the State
Government on 24.9.2020. On 11.9.2020, the
detention
orders
passed
by
the
District
Magistrate, Mau were approved by the State
Government exercising powers under Section
3(4) of the National Security Act.

Soon
after
the
receipt
of
the
representations, the District Magistrate had
rejected them on the ground that the detention
orders were already approved by the State
Government before the representations were
received in his office. On 6.10.2020, the
representations of the petitioners were rejected
by the State Government and the orders were
communicated on 7.10.2020. On 13.10.2020,
the petitioners were produced before the State
Advisory Board through Video Conferencing.
The State Advisory Board had submitted its
report on 19.10.2020 in accordance with
Section 11(1) of the NSA through the
Registrar, State Advisory Board. On the basis
of the said report, the State Government had
confirmed the order of detention under Section
12(1) of the National Security Act on
23.10.2020 and extended the period of
detention for further three months.

In the meantime, the Union of India had
also rejected the representations of the
petitioners and information was given to the
petitioners
by
wireless
messages.
On
24.11.2020 and 24.2.2021 and lastly on
31.5.2021, the detention orders were extended
for three months (each time), making total
period of detention being 12 months from
3.9.2020, the date of detention.

5. In the counter affidavit filed on behalf
of the State/respondent no. 2, it is stated that
the copy of the representations of the
petitioners alongwith parawise comments were
received in the concerned section of the
department of the State Government on
28.9.2020 alongwith the letter of the District
Magistrate, Mau dated 24.9.2020. The State
Government,
thereafter,
sent
the
representations
and
parawise
comments
thereon to the Central Government, New Delhi
and to the Advisory Board (Detentions) vide
separate letters dated 28.9.2020.

6. The argument of learned Senior Advocate
appearing for the petitioners are two folds:- firstly
the delay of nine days caused by the District
Magistrate in forwarding the representations of the
petitioners to the State Government has not been
explained and secondly that the satisfaction
recorded by the District Magistrate, the detaining
authority was not based on any cogent material. It
is contended that as per Section 10 of the NSA, the
grounds of detention in every case where the
detention order has been made under the Act as
also the representations, made by the affected
person alongwith the report of the officer
concerned under Section 3(3) and (4), have to be
placed before the State Advisory Board with three
weeks from the date of detention of the said
person.
As
per
own
admission
of
the
State/respondent no. 2, the representations moved
by the petitioners on 14.9.2020 were sent to the
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
State Advisory Board on 28.9.2020. The period of
three weeks from the date of detention order
(3.9.2020) had expired on 24.9.2020. The delay in
sending the representations of the petitioners to the
State Advisory Board had occurred at the ends of
the detaining authority, i.e. the District Magistrate
who admittedly had forwarded the representations
only on 24.9.2020, the date when the period of
three weeks prescribed under Section 10 of the Act
was expiring. No explanation is forthcoming as to
why the delay of nine days had occurred in
forwarding the representations to the State
Government. As per the requirement of the Act,
the representations submitted by the detenues were
to be forwarded to the State Government in such a
manner that the entire report submitted by the
District Magistrate under sub-sections (3) and (4)
of Section 3 of the NSA alongwith the
representations of the detenue, if made, are placed
before the State Advisory Board by the State
Government within the prescribed period under
Section 10 of the Act. The unexplained delay at the
ends of the District Magistrate has resulted in
placing the matter before the State Advisory Board
beyond the period of three weeks.

The contention is that the failure on the part
of the detaining authority to strictly comply with
the provisions of the National Security Act (NSA)
has rendered the detention of the petitioners illegal.
However, during the pendency of the present
petition, the total period of detention (of twelve
months) has expired and hence no effective relief
can be granted to the petitioners herein. However,
as the right of the petitioners guaranteed under
Article 22(5) of the Constitution of India has been
seriously infringed for the action of the detaining
authority, the detention order dated 3.9.2020 is
liable to be quashed noticing that the detaining
authority has acted in an irresponsible and
negligent manner.

7. Reliance is placed on the decisions of the
Apex Court in Rajammal vs. State of Tamil
Nadu1, Devendra Kumar Goel alias Babua vs.
State of U.P.2, Surya Prakash Sharma vs. State
of U.P. and others3, Pebam Ningol Mikoi Devi
and State of Manipur and others4 and of this
Court in Afsar vs. State of U.P. and 4 others5
and Aftab Alam alias Noor Alam alias Hitler vs.
Union of India6 on various points dealing with the
validity of the detention order. The detail
discussion with regard to the decisions placed by
the learned Senior Counsel for the petitioners
would be made at the appropriate stage in the
judgment.

8. Ms. Nand Prabha Shukla learned A.G.A.
for the State-respondents and Sri Shashi Dhar
Sahai learned Standing Counsel appearing for the
Union of India have defended the action of the
sponsoring authority, detaining authority, the State
and the Central Government.

The counter affidavits on behalf of the
respondent nos. 1, 2 and 3 have been placed before
the Court to substantiate the stand of the
respondents to assert that there was no irregularity
much less illegality in the entire decision making
process and the detention order having been passed
after recording satisfaction of the detaining
authority may not be interfered with.

9. Having heard learned counsels for the
parties and perused the record, we may, at the
outset, note the stand of the respondents in the
affidavits filed on their behalf.

The respondent no. 3 namely the District
Magistrate, Mau in his affidavit dated 5.2.2021
has submitted that the petitioners/detenues
alongwith
other
accused
persons
have
participated in the violent demonstration against
the N.R.C./C.A.A., which was imposed by the
Government and in order to restore the peace
and to maintain public order, the provisions of
the National Security Act (NSA) were imposed.

The Circle Officer, City, Mau, after perusal
of the report of the Incharge Inspector, Police
11 All. Munvar Razai @ Munvwar Ali & Anr. Vs. U.O.I. & Ors.
1325
Station Dakshin Tola, District Mau where the
first information report of the incident dated
16.12.2019 was lodged, recommended for
forwarding the said report to the Higher
Authority
by
the
communication
dated
29.8.2020
addressed
to
the
Additional
Superintendent of Police, Mau. The said report
was, then forwarded to the District Magistrate,
Mau by the Superintendent of Police with his
recommendation for taking action under the
NSA. The District Magistrate, Mau after
considering the entire material and recording his
subjective satisfaction had passed the detention
orders dated 3.9.2020 invoking power under
Section 3(2) of the National Security Act. The
grounds of detention alongwith other relevant
material
were
served
upon
the
petitioners/detenues on 3.9.2020 through the
Superintendent,
District
Jail,
Mau.
The
representations of the petitioners/detenues dated
14.9.2020 was received in the office of the
District Magistrate on 15.9.2020 and the
parawise
comments
in
respect
of
the
representations alongwith the representations
were sent to the concerned authority on
24.9.2020.

The contention, thus, is that at the time of
hearing, complete record including the parawise
comments in respect of the representations of the
petitioners were before the State Advisory Board
which had granted personal hearing to the
petitioners/detenues on 13.10.2020 through
Video Conferencing.

It is contended that the petitioners/detenues
were making efforts to get bail in the criminal
cases lodged against them under the Gangster
Act by moving bail applications in the High
Court at Allahabad and noticing the material on
record and the reports, it was found that the
petitioners/detenues had incited the mob to
create violence and their action had led to
violent demonstration against N.R.C./C.A.A.
The act of the detenues was found prejudicial to
maintenance of the public order. The provisions
of the National Security Act were invoked on
being satisfied on the relevant material before
the District Magistrate, Mau. In addition to the
first information report, the reports of the
sponsoring authority also referred to the L.I.U.
report wherein serious apprehension were raised
regarding possibility of repetition of such type of
activity by the detenues, in case, they were
released on bail. The detention orders, therefore,
cannot be said to be illegal.

10. In the counter affidavit filed on behalf
of the State, it is submitted that the State
Government had approved the detention orders
on 11.9.2020 and the approval order was
communicated to the detenues/petitioners within
the period of twelve days specified in Section
3(4) of the NSA. The copy of the detention
orders, grounds of detention and all other
relevant documents received from the District
Magistrate, Mau were sent to the Central
Government within the period of seven days
from the date of approval, i.e. 11.9.2020, as
required under Section 3(5) of the NSA. The
copy of the representations dated 14.9.2020
alongwith parawise comments of the detaining
authority were received in the concerned section
of the department of the State Government on
28.9.2020 alongwith the letter of the District
Magistrate, Mau dated 24.9.2020. It was then
forwarded to the Central Government and the
State Advisory Board vide separate letters dated
28.9.2020 itself.

Thereafter, the representations of the
petitioners were considered at the ends of the
State Government and final order rejecting the
same was passed on 6.10.2020. It was
immediately communicated to the petitioners on
7.10.2020 thorough radiogram. The State
Advisory Board vide letter dated 6.10.2020 had
informed the State Government that the case of
the petitioners would be taken up for hearing on
13.10.2020 and directed that the petitioners be
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
informed that if they desired, they can appear
personally through their next friend. The said
information was given to the petitioners on
9.10.2020. Personal hearing was accorded to the
petitioners and the State Advisory Board having
found
sufficient
grounds
for
preventive
detention of the petitioners under the NSA had
submitted its report on 19.10.2020, which was
received in the office of the State Government
on 20.10.2020. The report of the State Advisory
Board was, thus, submitted within the prescribed
period of seven weeks from the date of the
detention of the petitioners, as per Section 11(1)
of the NSA. Accordingly, the decision was taken
by the State Government to confirm the
detention orders as per the report of the State
Advisory Board on 23.10.2020 in accordance
with Section 12(1) of the NSA. It is then
contended
that
in
view
of
the
report/recommendation
received
from
the
District Magistrate, Mau and after consideration
of the facts and circumstances of the case, the
State Government, was satisfied that there was
requirement of extension of the detention order
and hence the extension orders were passed from
time to time.

11. The respondent no. 1/Union of India in
its affidavit in reply to the averments in the writ
petition stated that the representations dated
14.9.2020 of the detenues were forwarded by the
Under Secretary, Government of U.P. to the
Central Government through the Ministry of
Home Affairs on 28.9.2020 and was received in
the concerned section in the Ministry of Home
Affairs on 7.10.2020. The same was processed
on 8.12.2010 and after consideration of the
material on record, the representations of the
detenues
was
rejected
by
the
Central
Government and information in this regard was
forwarded through wireless message dated
19.10.2020.

12. Having perused the stand of the
respondents in the affidavits filed by them, it
would be pertinent, at this stage, to go through
the relevant provisions of the Act namely the
National Security Act and the Constitution of
India.

Article 22(5) provides that 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.

Article
22(5)
has
two
facets:-
(i)
communication of the grounds on which the
order of detention has been made; (ii)
opportunity of making a representation against
the order of detention.

Section 3(2) of the NSA confers power on
the District Magistrate to pass detention order
under sub-section (2), under authorization of the
State Government by an order in writing. Subsection (4) of Section 3 states that when an order
is made under sub-section (3), the officer
concerned shall forthwith report the fact to the
State Government alongwith the grounds on
which the detention order has been made and
such other particulars which have a bearing on
the matter. The order passed by the officer under
sub-section (3) of Section 3 can remain in force
for twelve days from the date of the order unless
approved by the State Government. The period
of 12 days, however, can be extended upto
fifteen days if the circumstance as per proviso to
sub-section (4) of Section 3 exist. A reading of
sub-section (2) of Section 3 shows that the
detention order can be passed on satisfaction to
be recorded in writing that it is necessary to
detain a person with a view to prevent him from
acting in any manner prejudicial to the
maintenance of the public order.

The requirement of Section 3, thus, is that:-
11 All. Munvar Razai @ Munvwar Ali & Anr. Vs. U.O.I. & Ors.
1327

(i) The detaining authority shall record its
satisfaction to pass preventive detention order;
(ii) the detaining authority, if is an officer
mentioned in sub-section (3) of Section 4, i.e.
the District Magistrate or the Commissioner of
Police authorized by the State Government, the
detention order would not remain in existence
beyond the period of twelve days [fifteen days
as per the proviso to sub-section (4)], unless it
has been approved by the State Government.
(iii) Sub-section (5) of Section 3 states that the
order approved by the State Government shall be
reported to the Central Government within a
period of seven days from the date of approval.

The grounds of order of detention are
required to be disclosed to the affected person,
as soon as possible, but not later that five days
ordinarily and not later than ten days from the
date of detention, in exceptional circumstances.
On receipt of the communication of the order of
detention, the affected person is at liberty to
make representation against the detention order
to the appropriate Government. The Advisory
Board constituted under Section 9 of the NSA is
empowered to make a scrutiny of the detention
order made under the NSA as also the
representation of the affected person.

Section 10 mandates the appropriate
Government to place detention order alongwith
the representation of the affected person as also
the grounds on which the detention order has
been made and the comments of the detaining
authority to the Advisory Board constituted
under Section 9 of the Act within three weeks
from the date of detention of the person
concerned.

Sections 11 and 12 relates to the report of
the Advisory Board and the action taken by the
State Government on the said report.

13. Under the scheme of the National
Security Act, a deadline has been provided for
each stage of the action. The Act mandates that
the decision taken at each stage shall be
communicated to the higher authority within the
time bound period so that there is no delay in the
final decision taken by the State Government on
the report of the State Advisory Board under
Section 12 of the Act. Section 12(2) provides
that the appropriate Government shall revoke the
detention
order
and
release
the
person
concerned, in case, where the Advisory Board
has reported that there is, in its opinion, no
sufficient cause for the detention of a person.
The appropriate Government, thus, is bound by
the report of the Advisory Board constituted
under Section 9 of the Act. The reference to the
Advisory Board after every decision of the
appropriate
Government
for
preventive
detention of a person, in each case, within the
time prescribed under Section 10 of the NSA, is
mandatory. Further the mandatory period within
which the detention order alongwith the
representation of the affected person has to be
placed before the Advisory Board is three weeks
from the date of detention of a person.

14. In the instant case, though it could be
demonstrated by the appropriate Government
(State Government) that the report of the
Advisory Board was submitted to the State
Government within seven weeks form the date
of the detention of the petitioners and action on
the said report under Section 12(1) had been
taken within the shortest possible time, i.e. three
days of the receipt of the report, but the delay in
sending the matter to the Advisory Board, i.e.
beyond three weeks as against the mandate of
Section 10 of the Act has not been explained.

15. From the analysis of the pleadings of the
parties, it is evident that the representations of the
petitioners/detenues were forwarded by the
District Magistrate, Mau alongwith his parawise
comments thereon to the State Government on
24.9.2020 and it was then forwarded to the
Advisory Board by the State Government on
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
28.9.2020. By 24.9.2020, three weeks from the
date of detention under the orders of the District
Magistrate, Mau had expired. Section 10
mandates that the appropriate Government shall
place the detention order, the grounds on which
the order has been made and the representation, if
any, made by the affected person alongwith the
report of the officer under sub-section (4) of
Section 3 before the Advisory Board, within three
weeks from the date of detention of a person.
Article 22(5) of the Constitution cast obligation
upon the authority making the detention order to
afford the earliest opportunity of making
representation against the order of detention. The
authority under the NSA to consider the
representation of the affected person is the
Advisory Board constituted under Section 9 of
the Act. The preventive detention curtails
personal liberty of a person guaranteed under the
Constitution of India. It is a constitutional
obligation of the Government to consider the
representation forwarded by the detenue without
any delay.

16. The constitution Bench of the Apex
Court in K.M. Abdulla Kunhi and B.L. Abdul
Khader vs. Union of India and others State of
Karnataka and others7 has held that it is a
constitutional
mandate
commanding
the
concerned authority to whom the detenue
submits his representation to consider the
representation and dispose of the same as
expeditiously as possible. Though no period is
prescribed by Article 22 of the Constitution for
the decision to be taken on the representation but
the words "as soon as may be" occurring in
Clause 5 of Article 22 convey the message that
the representation should be considered and
disposed of at the earliest.

The observations of the Constitution Bench
are to be noted as under:-

"12. xxxxxxxxxxxxxx The words "as soon as
may be" occuring 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 xxxxxxx."

Relying upon the aforesaid decision, the
Apex Court in Rajammal1 has held that the
legal position 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 person.
It is observed in paragraph '9' of the said
decision that it is for the authority concerned to
explain the delay in disposing 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.

17. It has been argued before us by the
learned Senior Counsel for the petitioners that
taking consideration of the above decisions, in
similar situation, the Division Bench of this
Court in the above noted decision had held the
detention order illegal.

In Afsar5, the delay of nineteen days in
deciding the representation was found without
explanation. Whereas in Aftab Alam6, the
detention order was held illegal on the ground
that the representation of the petitioners therein
11 All. Munvar Razai @ Munvwar Ali & Anr. Vs. U.O.I. & Ors.
1329
was not placed before the Advisory Board
within three weeks as required under Section 10
of the NSA.

In Devendra Kumar Goel alias Babua2,
the detention order was held illegal as the
representation
was
placed
by
the
State
Government before the Advisory Board after
expiry of the period stipulated under Section 10
of the NSA.

18. Further, in State of Rajasthan vs.
Talib Khan8, the Apex Court observed that:

"8. ....what is material and mandatory is the
communication of the grounds of detention to
the detenu together with documents in support of
subjective satisfaction reached by the detaining
authority."
(emphasis supplied)

In a recent decision in Pebam Ningol
Mikoi Devi and State of Manipur and
others4, it was considered that Article 22(5) of
the Constitution of India mandates in preventive
detention matters that the detenue should be
afforded the earliest possible opportunity to
make a representation against the order. With
regard to the importance of delay in preventive
detention matters under the National Security
Act, the decision of the Apex Court in Union of
India vs. Laishram Lincola Singh9 has been
noted, wherein following observations had been
made:-

"34.....xxxxxxx.... 6. There can be no hard and
fast rule as to the measure of reasonable time and
each case has to be considered from the facts of
the case and if there is no negligence or callous
inaction or avoidable red-tapism on the facts of a
case, the Court would not interfere. It needs no
reiteration that it is the duty of the Court to see
that the efficacy of the limited, yet crucial,
safeguards provided in the law of preventive
detention is not lost in mechanical routine, dull
casualness and chill indifference, on the part of the
authorities entrusted with their application. When
there is remissness, indifference or avoidable delay
on the part of the authority, the detention becomes
vulnerable.
(emphasis supplied)"

In paragraph '35' of the said judgment, it was
noted that:-

"35. On the specific ground of delay in
forwarding the representation under the National
Security Act, it has been observed by this Court in
Haji Mohammad Akhlaq vs. District Magistrate,
Meerut, 1988 Supp (1) SCC 538, that:

"3. ...There can be no doubt whatever that
there was unexplained delay on the part of the
State Government in forwarding the representation
to the Central Government with the result that the
said representation was not considered by the
Central Government till October 16, 1987 i.e. for a
period of more than two months. Section 14(1) of
the Act confers upon the Central Government the
power to revoke an order of detention even if it is
made by the State Government or its officer. That
power, in order to be real and effective, must imply
a right in a detenu to make representation to the
Central Government against the order of
detention. Thus, the failure of the State
Government to comply with the request of the
detenu for the onward transmission of the
representation to the Central Government has
deprived the detenu of his valuable right to have
his detention revoked by that Government."
 (emphasis supplied)".

In the said case, unexplained delay of seven
days in forwarding of the representation had
been found fatal.

19. From the above decisions, it is settled
that under Article 22(5), the detenue has two
rights; (i) to be informed, as soon as may be, of
the grounds on which his detention is based; and
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
(ii) to be afforded the earliest opportunity of
making representation against his detention.

Having considered the mandate of Article
22(5) readwith Section 10 of the National
Security Act, we find in the facts of the instant
case that the deadline for placing all papers, i.e.
the ground of detention, the representation and
the report of the detaining authority before the
Advisory Board had not been adhered to by the
State Government. The non-compliance of the
mandatory provision of Section 10 of the NSA
renders the detention orders illegal.

20. It is evident that the detaining authority
could not explain the delay in forwarding the
representations
of
the
petitioners/detenues
before the State Government. The explanation of
the State Government that report was submitted
by the Advisory Board within the prescribed
period of seven weeks from the date of detention
of the petitioners and thus, Section 11(1) of the
Act has been complied with, cannot be treated
sufficient explanation to the delay in placing
representations before the Advisory Board, after
expiry of the period stipulated in Section 10. The
maximum period prescribed under Section 11(1)
to submit the report by the Advisory Board to
the appropriate Government cannot be taken to
condone the delay on the part of the State
Government, in placing the matter before the
Board which in turn had occurred on account of
the delay caused at the ends of the District
Magistrate, Mau/the detaining authority. The
deadline for the action of every authority at
every stage of the decision making process has
been fixed under the Act in order to meet the
constitutional obligation under Article 22(5) of
the concerned authority/Government.

21. The stringent provisions of the
National Security Act resulting in curtailment of
personal liberty of a person guaranteed under
Article 21 of the Constitution of India have to be
strictly complied with. The deadlines have to be
strictly obeyed. The delay caused on account of
any indifference, slackness or callous attitude of
the authority/Government at any stage of the
decision
making
process,
if
remained
unexplained,
cannot
be
condoned.
The
representation of the detenues in any case, has to
be considered at the earliest, as soon as may be,
without any delay. In case, the deadline
prescribed under the Act at any stage of the
decision making process has not been met, it is
for the authority concerned to explain the delay,
which in turn resulted in delay in disposing of
the representation. The delay, however, short it
may be requires explanation of the authority
concerned. Mere explanation of the State
Government, as in this case, that final decision
was taken within the time prescribed under the
Act is not a justifiable explanation when the
liberty of a person guaranteed under Article 22
of the Constitution is involved. The outer limit
of seven weeks from the date of detention to
submit its report prescribed under Section 11(1)
of the Act is for the Advisory Board.