# Nawab Dulha v. Union of India through Secretary Home Affairs and others

- **Citation:** (2000) 3 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-04-29
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nawab-dulha-v-union-of-india-through-secretary-home-affairs-and-others-39668
- **Pages:** 7

## Text

3All] Nawab Dulha V. Union of India through Secretary Home Affairs and others 205

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By the Court

1. By means of the present writ
petition, the petitioner has challenged the
detention
order
dated
29.4.2000
as
contained in Annexures-1 and 2 to the
writ petition, said to have been served
upon the petitioner on 30.4.2000. The
impugned order against him was passed
by
respondent
no.3,
the
District
Magistrate, Udham Singh Nagar under
section 3(2) of the National Security Act,
1980.
He
has
also
challenged
his
continued detention under the said order
and has prayed to set at liberty forthwith
by issuing a writ, order or direction in the
nature of Habeas Corpus.

2. Originally, the petitioner had
impleaded
five
respondents
including
Superintendent of Police, Udham Singh
Nagar. However, on oral prayer of
petitioner, respondent no.4 was permitted
to be deleted and respondent no.5 Jail
Superintendent, District Jail, Rampur was
renumbered as respondent no. 4. Counter
affidavits
have been filed by four
respondents. The petitioner's counsel
expressed his desire not to file any
Rejoinder affidavit. We have, therefore,
heard Sri D.S. Mishra, learned counsel for
petitioner, Sri Mahendra Pratap Singh,
learned Additional Government Advocate
appearing for respondents no. 2,3 and 4
and
Sri
Kamlesh
Narain
Pandey
appearing for respondent no. 1.

3. Learned counsel for the petitioner
has challenged the impugned detention
order and continued detention of the
petitioner there under on the grounds- (i)
that there was unexplained inordinate
delay on the part of the State Government
respondent no. 2 in disposal of the
petitioner's
representation
made
on
17.5.2000; (ii) the detention order did not
apprise the petitioner of the right that the
representation by the detenu against the
order can also be made before the District
Magistrate, the Detaining Authority; and
(iii) the representation was not placed
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

206
before the Advisory Board, Sri Mahendra
Pratap Singh has fairly conceded that
there was delay in disposal of the
representation by the respondent no. 2,
which has not been explained in the
counter affidavit.

4. Sri V.B. Saxena, Jailor, District
Jail, Rampur, where the petitioner is
detained, has admitted in his counter
affidavit that the detention order dated
29.4.2000 was received in the jail on
30.4.2000 and was served upon the
petitioner the same day. It is also stated
that
the
petitioner
submitted
his
representation on 17.6.2000 to the District
Magistrate,
Rampur
through
jail
authorities. The representation was
rejected by the State Government and
message was sent through radiogram
dated 10.6.2000 and after the same was
received the jail authorities informed the
petitioner
about
rejection
of
his
representation. It is also stated that the
Central
Government
rejected
the
representation
of
the
petitioner
and
radiogram message dated 26.5.2000 was
received and the petitioner was informed.
It was further stated in his counter
affidavit that the government approved
the detention order and sent the radiogram
message
on
10.5.2000
which
was
conveyed
to
the
petitioner
by
jail
authorities after it was received. The
State
Government
confirmed
the
detention order for a period of 18 months
from the date of detention and sent
message dated 1.6.2000 and the said
message was conveyed to the petitioner
by the jail authorities.

5. Respondent no.3 Sri Narendra
Bhushan, the then District Magistrate,
Udham Singh Nagar, Detaining Authority
has stated that the detention order was
passed by the deponent against the
petitioner on 24.4.2000 and the same was
served upon the petitioner on the same
date through jail authorities; that the
detention order was passed by respondent
no.3 on sufficient grounds as detailed in
the counter affidavit as well as the
detention order. The counter affidavit
filed
by
the
District
Magistrate,
respondent no.3 is, however, silent on the
question as to when the representation of
the petitioner was received by the
respondent no.3 and how it was dealt with
him and where the same was forwarded
by him to the State Government.

6. Sri R.A. Khan, under Secretary to
the
Government
of
Uttar
Pradesh,
respondent no.2, has stated in the counter
affidavit that the petitioner's undated
representation addressed to the Home
Secretary, U.P. Lucknow forwarded by
the Superintendent, District Jail, Rampur
on
17.5.2000
was
received in the
concerned
section
of
the
State
Government on 29.5.2000, much after the
conclusion of hearing of the petitioner's
case on 18.5.2000. Since the Advisory
Board had already concluded the hearing
on 18.5.2000 and it had given its report on
24.5.2000 there was no justification for
sending the copies of the representation to
the
Advisory
Board.

Since
the
representation dated nil was addressed
only to the Home Secretary, U.P.
Lucknow
and
not
to
the
Central
Government, the State Government had
not sent the representation to the Central
Government. It was stated that the
concerned file was in submission for
higher orders on the report of the
Advisory Board till 31.5.2000. The file
was received back in the concerned
Section on 1.6.2000 and the concerned
3All] Nawab Dulha V. Union of India through Secretary Home Affairs and others 207

Section
of
the
State
Government
examined
the
representation
and
submitted a detailed note on 2/3.6.2000.
Sunday dated 4.6.2000 was intervening
and
the
deponent
examined
the
representation and the note on 5.6.2000.
The Special Secretary also examined it on
5.6.2000 and thereafter it was submitted
to the Secretary, Home and confidential
Department who examined it on 6.6.2000
and submitted it to higher authorities for
final orders of the State Government.
After
due
consideration,
the
said
representation was finally rejected by the
State Government on 8.6.2000. The
rejection
of
the
representation
was
communicated to the petitioner through
district
authorities
by
the
State
Government radiogram dated 9.6.2000.
The
facts
thus
show
that
the
representation of the petitioner was
decided expeditiously.

7. The respondent no. 1, Union of
India, filed an affidavit of Sri Sushil
Kumar, Under Secretary, Ministry of
Home Affairs, Government of India, New
Delhi, Wherein it was stated that the
relevant authority for disposal of the
representation was State Government.
However, as the detenu addressed the
representation to the Central Government,
it was disposed of on merits. The
representation
from
the
detenu was
received by the Central Government in
the concerned desk of Ministry of Home
Affairs on 24.5.2000. It was immediately
process for consideration and the case of
the detenu was put up before the Deputy
Secretary, Ministry of Home Affairs on
24.5.2000, who carefully considered the
same and with her comments put up the
same before the Joint Secretary, Ministry
of Home Affairs on 25.5.2000 and the
Home Secretary, who has been delegated
with the powers by the Union Home
Minister
to
deal
with
such
cases,
considered the case of the detenu and
rejected the representation on 25.5.2000.
The decision of the Central Government
was communicated to the Government of
Uttar Pradesh and Superintendent, District
Jail, Rampur through crash wireless
message on 26.5.2000 and thus there was
no delay on the part of the Central
Government, who quickly disposed of the
representation.

8. Before we proceed further, it is
significant to point out that the sacred
idea behind Section 8 of the National
Security Act is that the detenu must have
the earliest opportunity of making the
representation against the detention order
to the Appropriate Authorities which also
includes the disposal of the representation
at the earliest possible. The duty is casts
on the authorities concerned to take all
possible steps for consideration of the
representation of the detenu at the earliest
possible without any undue loss of time.
When the question of liberty of citizen is
involved and that too by means of the
preventive detention, it is incumbent upon
the
authority
to
explain
delay
in
consideration of the representation. Every
possible step is required to be taken by
each part of the machinery concerned to
facilitate and ensure earliest decision on
the representation made by the detenu.
Various pronouncements of the Apex
Court as also of various High Courts have
reminded the executive authorities of their
obligation and duty under the Constitution
of India to guard the liberty of the citizen
but it appears that continued message
given by the Courts in this regard is not
percotated Executive authorities and their
methods of acting in most casual manner
have not changed. We may refer to the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

208
observation of the Apex Court in the case
of K.M. Abdulla Kunhi And B.L. Abdul
Khader Vs. Union of India and others,
(191) 1 SCC 476, wherein a Constitution
Bench of the Court held as follows:--

"It
is
a
constitutional
mandate
commanding the concerned authority to
whom
the
detenu
submits
his
representation and dispose of the same as
expeditiously as possible. But the time
imperative
for
consideration
of
representation can never be absclute or
obsessive. There is no period prescribed
either under the Constitution or under the
concerned detention law, within which the
representation should be deal with. It
depends upon the facts and circumstances
of each case, upon the necessities and the
time at which the representation is made.
The requirement 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
of
representation would be a breach of the
constitutional imperative and it would
render
the
continued
detention
impermissible and illegal."

9. Having given our anxious
consideration to the material before us,
we find that there is no denying of the fact
that a representation was made by the
petitioner
which
was
forwarded
by
respondent no.4 on 17.5.2000 to the to the
District Magistrate Rampur, as stated by
the respondent no. 4 in paragraph no.4 of
his counter affidavit. There is no
averment in the counter affidavit filed by
respondent no. 4 that the representation
made by the petitioner addressed to the
State
Government
and
Central
Government were also forwarded to the
District Magistrate, Rampur or to the
respondent no. 3 District Magistrate,
Udham Singh Nagar, who was the
detaining authority in the instant case.
How and when the district Magistrate,
Rampur
sent
the
representation
the
detaining authority, respondent no. 3 or
the State Government is not at all
explained in the counter affidavit filed by
respondent no.3, the District Magistrate,
Udham Singh Nagar or the counter
affidavit filed by Sri R.A. Khan on behalf
of State of Uttar Pradesh, respondent
no.2. In paragraph no,.4 of the counter
affidavit filed on behalf of respondent
no.2, only this much is stated that the
copy of the representation addressed to
the Home Secretary, Uttar Pradesh,
Lucknow
was
forwarded
by
Superintendent, District Jail, Rampur on
17.5.2000 which was received in the
concerned
Section
of
the
State
Government U.P. on 29.5.2000 whereas
the counter affidavit filed by respondent
no.4 states that the representation was
forwarded to the District Magistrate,
Rampur and there is no averment that any
representation
or
copy
thereof
was
forwarded by the respondent no.4 to the
State Government directly. Thus it is
mystery as to what happened to the
representation
which,
according
to
respondent no.4 he had forwarded to the
District Magistrate, Rampur. How and
through whom the representation to the
State Government was rotted is also
shrouded in mystery. Neither respondent
no.4 nor respondent no.3 and even
respondent no.2 have not explained as to
when the representation was received by
the State Government in the receipt
section. The counter affidavit filed by
respondent no. 2 speaks only of its receipt
in the concerned section of the State
Government on 29.5.2000. It the
3All] Nawab Dulha V. Union of India through Secretary Home Affairs and others 209

representation
was
sent
by
special
messenger, it ought to have been received
in the receipt section of the State
Government latest by 19th May,2000 and
if it was sent by post, it ought to have
been reached the receipt section of the
State Government or the concerned
department within three four days of its
dispatch. The representation was taken
up
by
the
State
Government
for
examination through concerned section of
the State Government on 2/3.6.2000 and it
was disposed of on 8.6.2000. The period
between the date of receipt of the
representation (which has been concealed
in the counter affidavit) till 2/3.6.2000
which is unexplained. The facts stated
above clearly disclose that the authorities,
respondent nos.4,3 and 2 have taken a
very casual and callous approach towards
the
representation
of
the
petitioner.
Respondents no.3 and 4 have specially
failed to state as to how the various
representations made by the petitioner
were dealt with by them. Respondent no.
4 has stated that the representation was
given to the District Magistrate, Rampur
whereas the respondent no. 2 in his
counter affidavit filed through Sri R.A.
Khan had stated that the representation of
the petitioner was received by concerned
section of the State Government directly
from the Superintendent, District Jail,
Rampur. On the other hand, the counter
affidavit filed by the respondent no. 3 is
absolutely silent with regard to the
representation made by the petitioner.
We may also observe that on going
through
counter
affidavit
filed
by
respondent
no.3,
we
feel
that
the
respondent no. 3 has signed it without
going through the counter affidavit which
has been prepared in the most casual
manner. The detention order was
admittedly passed on 29.4.2000 and was
served upon the petitioner on 30.4.2000
whereas paragraph no. 4 of the counter
affidavit filed by respondent no. 3 states
that the order was passed on 24.4.2000
and was served upon the petitioner the
same
day.

There
are
so
many
grammatical and spelling mistakes in the
counter affidavit which lead to no other
inference
except
that
Sri
Narendra
Bhushan, the then District Magistrate,
Udham Singh Nagar/detaining authority
has signed the counter affidavit without
going through it.

10. In view of the facts stated above,
we find that in the present case, the
requisite care has not been taken by the
respondents no. 2 to 4 to strictly observe a
mandate enshrined in Clause 5 of Article
22 of the Constitution of India as declared
by the Apex Court and various High
Courts
through
its
judicial
pronouncements. This alone, in our view,
renders the continued detention of the
petitioner to be illegal and the petitioner is
entitled to the relieves claimed.

11. We have gone through the
impugned order of detention as contained
in Annuxures-1 and 2. We find that the
petitioner has been informed of his
constitutional
right
to
make
a
representation to the State Government, to
the Advisory Board and to the Central
Government. However, he has not been
informed
of
his
right
to make a
representation to the detaining authority
which
is
also
violation
of
the
constitutional mandate. In the case of
State of Maharashtra & ors. Vs. Santosh
Shankar Acharya, JT 2000 (8) SC 374,
the detention order was passed not by the
State Government but by the concerned
officer
empowered
by
the
State
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

210
Government under sub-section (2) of
Section 3 of the Act.

12. It is also not disputed that while
communicating the detenue the grounds
of detention it has not been indicated
therein that the detenue has right to make
a
representation
before
Detaining
Authority,
though
in
the
said
communication it was mentioned that the
detenu can make a representation to the
State Government as provided under
Section 8(1) of the Maharashtra Act.
Bombay High Court dealing with Habeas
Corpus writ petition, held that failure on
the part of the Detaining Authority in a
case where order of detention is issued
under sub-section (2) of section 3 to the
detenue that he has a right to make a
representation constitutes an infraction of
the rights guaranteed under Article 22(5)
of the Constitution and as such, the
detention becomes invalid on that score.
Hon'ble Supreme Court after considering
the various provisions of the Maharashtra
Prevention of Dangerous Activities of
Slumlords, Bootlegers, Durg Offenders
and Dangerous Persons Act, 1981 read
with Section 3(2) , (3) ,Section 14 and 8
Article 22(1) of the Constitution of India
held as follows:--

"The
only
logical
and
harmonious
construction of the provisions would be
that in a case where an order of detention
is issued by an officer under Sub-section
(2)
of
Section
3
of
the
Act,
notwithstanding the fact that he is
required to forthwith deport the factum of
detention together with the grounds and
materials to the State Government and
notwithstanding the fact that the Act itself
specifically
provides
for
making
a
representation to the State Government
under Section 8 (1), the said Detaining
Authority continues to be the Detaining
Authority until the order of detention
issued by him is approved by the State
Government within a period of 12 days
from the date of issuance of detention
order.
Consequently,
until
the
said
detention order is approved by the State
Government the Detaining Authority can
entertain a representation from a detenue
and in exercise of his power under the
provisions of Section 21 of Bombay
General Clauses Act could amend, vary or
rescind the order, as is provided under
Section 14 of the Maharashtra Act. Such a
construction of powers would give a full
play to the provisions of Section 8 (1) as
well as Section 14 and also Section 3 of
the Maharashtra Act. This being the
position, non-communication of the fact
to the detenue that he could make a
representation to the Detaining Authority
so long as the order of detention has not
been approved by the State Government
in a case where an order of detention is
issued by an officer other than the State
Government under Sub-section (2) of
Section 3 of the Maharashtra Act would
constitute an infraction of a valuable right
of the detenue under Article 22 (5) of the
Constitution
and
the
ratio
of
the
Constitution Bench decision of this Court
in Kamlesh Kumar's case (supra) would
apply notwithstanding the fact that in
Kamlesh Kumar's case (supra) the Court
was dealing with an order of detention
issued
under
the
provisions
of
COFEPOSA."

13. In the instant case, the
undisputed fact is that the impugned
detention order was approved by the State
Government on 8.5.2000 and the order of
approval
was
communicated
to
the
petitioner through radiogram on 9.5.2000.
Till that date the petitioner had a right to
3All] Kailash Nath Bajpai & others V. Hind Housing and Construction Ltd. and others 211

make
a
representation
to
the
Detaining Authority also. Therefore, it
was incumbent upon the respondent no.3
to have communicated to petitioner of his
right to make a representation to the
detaining authority also while serving the
detention
order
as
contained
in
Annexures-1 and 2 upon the petitioner.
The respondent no.3 having failed in
observing constitutional mandate, the
order of detention passed by the said
authority as approved by the State
Government cannot be sustained and the
continued detention of the petitioner
under such order would be rendered to be
illegal.

14. We do not feel it necessary to
deal with the other submissions made on
behalf of the petitioner.

15. For the foregoing reasons, this
writ petition is allowed and the continued
detention of the petitioner is found to be
illegal. Respondents are directed to set
petitioner at liberty forthwith, if he is not
required to be detained in connection with
any other case.

16. No order as to costs.
Petition Allowed.

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By the Court

1.
M/S
Hind
Housing
and
Construction Ltd. (hereinafter referred as
the Company in liquidation) was ordered
to be wound up by this Court by order
dated 16.4.1970 passed in Company
Petition No. 18 of 1967. The Official