# Niyaz Ansari v. Adhikshak Janpad Karagar, Chitrakoot & Ors

- **Citation:** (2024) 2 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-19
- **Case number:** Habeas Corpus Writ Petition No. 622 of 2023
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niyaz-ansari-v-adhikshak-janpad-karagar-chitrakoot-ors-51523
- **Pages:** 10

## Headnote

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 3(5), 8, 9, 10,
11, 12 & 14 - Constitution of India,1950-
Article
22(3)(b)
-
Petitioner
challenged
detention order dated 06.05.2023 under Section
3(2) of NSA, confirmed on 05.06.2023, and
extensions on 21.07.2023 and 27.10.2023.
Court held: (1) Detention violated Article
22(3)(b); petitioner denied legal representation
before Advisory Board on 26.05.2023, while St.
officials (legal advisors) assisted, entitling
petitioner to counsel (A.K. Roy Vs U.O.I., (1982)
1 SCC 271). (2) Confirmation order dated
05.06.2023 limited to three months under
Section
12(1);
extensions
required
fresh
compliance with Sections 3, 5, 8-12 NSA, not
piecemeal renewal (Pesala Nookaraju Vs Govt.
of Andhra Pradesh, 2023 SCC OnLine SC 1003).
(3) Ameena Begum (2023) 9 SCC 587 affirmed
three-month initial limit; Cherukuri Mani (2015)
13 SCC 722 overruled for requiring periodic
review beyond Advisory Board opinion. (4) No
fresh grounds or Advisory Board reference for
extensions; detention unlawful post-05.08.2023
(Ram Bali Rajbhar Vs St. of W.B., (1975) 4 SCC
47).
(5)
Petitioner's
representations
(26.05.2023,
01.06.2023)
not
considered,
violating
Section

## Text

98 INDIAN LAW REPORTS ALLAHABAD SERIES
be issued. In child custody matters, the
power of the High Court in granting the
writ is qualified only in cases where the
detention of a minor by a person who is not
entitled to his legal custody.

24. Thus, this Court is not going into
various allegations and counter allegations
made by both the spouses on each other. I
am clearly of the view that it is in the best
interest of the child to have parental care of
both the parents, if not joint then at least
separate. I have no doubt that the child
needs both parents and he would be equally
happy, if not happier, in the company of the
mother as well, the child would perhaps be
happier if he could have both their parents.
Unfortunately, the parents are unable to
resolve their differences and stay together.
Be that as it may, the child has a right to
access both parents, and get the love and
affection of both parents. Whatever the
differences arose between the spouses, the child
cannot be denied company of both.

25. In view of the observations/discussions
made and judgments referred above, this Court is
of the view that the child Master Malav Dwivedi
shall remain in custody with her father in the
interest of Justice as the welfare love affection
company protection is in the custody of the father/
respondent no. 4. Further, this court issues
following directions:

(i) The custody of child; Master Malav
Dwivedi shall remain with father respondent
No.4-Shwetang Dwivedi.

(ii) Since the mother-Smt. Sudha
Dwivedi lives in Lucknow, she is permitted to
meet the child on every third Sunday of each
Month starting from February, 2024 between
10:30 A.M. to 2:30 P.M. at the current residence of
respondent no. 4 i.e E-3/268, 69 Vinay Khand-3,
Gomti Nagar, Lucknow with the condition of
giving one day prior information to the respondent
No.4-Shwetang Dwivedi (father) regarding
meeting at his residence in Lucknow. It is further
provided that the petitioner is allowed to have
conversation with her child Master Malav
Dwivedi son by mobile phone, whats app call or
video call whenever she wants between 7.00 p.m
to 7.30 p.m. as per Indian Standard Time.

(iii) If the mother of child wants to give
any gifts on account of love and affection or do
anything for well being of child then father/
respondent no. 4 or any of his family members
will not make any objection. However, mother
shall keep in mind that such thing will be given,
which are for use and safe for the child health.

(iv) The petitioner Smt. Sudha
Dwivedi is at liberty to approach the appropriate
forum for claiming the custody of the child under
the Hindu Minority and Guards Act 1956 or under
the Guardians and Wards Act, 1890 as the case
may be in accordance with law.

26. With the above observations/directions,
this habeas corpus petition is finally
disposed of.
----------

(2024) 2 ILRA 98
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 622 of 2023

Niyaz Ansari ...Petitioner
Versus
Adhikshak Janpad Karagar, Chitrakoot &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Abhishek
Kumar Mishra, Sri Dayashankar Mishra (Sr.
Advocate)
2 All. Niyaz Ansari Vs. Adhikshak Janpad Karagar, Chitrakoot & Ors.
99
Counsel for the Respondents:
A.S.G.I., G.A., Manjari Singh

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 3(5), 8, 9, 10,
11, 12 & 14 - Constitution of India,1950-
Article
22(3)(b)
-
Petitioner
challenged
detention order dated 06.05.2023 under Section
3(2) of NSA, confirmed on 05.06.2023, and
extensions on 21.07.2023 and 27.10.2023.
Court held: (1) Detention violated Article
22(3)(b); petitioner denied legal representation
before Advisory Board on 26.05.2023, while St.
officials (legal advisors) assisted, entitling
petitioner to counsel (A.K. Roy Vs U.O.I., (1982)
1 SCC 271). (2) Confirmation order dated
05.06.2023 limited to three months under
Section
12(1);
extensions
required
fresh
compliance with Sections 3, 5, 8-12 NSA, not
piecemeal renewal (Pesala Nookaraju Vs Govt.
of Andhra Pradesh, 2023 SCC OnLine SC 1003).
(3) Ameena Begum (2023) 9 SCC 587 affirmed
three-month initial limit; Cherukuri Mani (2015)
13 SCC 722 overruled for requiring periodic
review beyond Advisory Board opinion. (4) No
fresh grounds or Advisory Board reference for
extensions; detention unlawful post-05.08.2023
(Ram Bali Rajbhar Vs St. of W.B., (1975) 4 SCC
47).
(5)
Petitioner's
representations
(26.05.2023,
01.06.2023)
not
considered,
violating
Section
8.
Detention
order,
confirmation, and extensions quashed; petitioner
released unless required in other cases. (Paras 1-10)

Writ Petition Allowed.

Case Law Cited:

1. A.K. Roy Vs U.O.I., (1982) 1 SCC 271 (Para 6)

2. Choith Nanikram Harchandani Vs St. of Mah., (2018)
2 SCC (Cri) 403 (Para 6)

3. Najar Quraishi Vs Superintendent, 2018 SCC OnLine
All 1822 (Para 6)

4. Pesala Nookaraju Vs Govt. of Andhra Pradesh, 2023
SCC OnLine SC 1003 (Para 2)

5. Ameena Begum Vs St. of Telangana, (2023) 9 SCC
587 (Para 2)
6. Cherukuri Mani Vs Chief Secretary, Govt. of Andhra
Pradesh, (2015) 13 SCC 722 (Para 2)

7. Ram Bali Rajbhar Vs St. of W.B., (1975) 4 SCC 47
(Para 2)

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. A First Information Report was lodged
on 11.02.2023, alleging that quiet a number of
persons were illegally meeting the already
incarcerated person, namely Abbas Ansari in the
Jail premises and were trying his escape from
lawful custody. The petitioner herein was
arrested and was in judicial custody. When the
petitioner herein moved an application for his
release on bail, the District Magistrate who was
delegated powers under Section 3(3) of the
National Security Act, 1980 (hereinafter called
'the Act'), apprehending the disturbance of public
order by the petitioner herein passed an order
dated 06.05.2023 under Section 3(2) of the Act,
directing detention of the petitioner.

2. Under Section 3(4) of the National
Security Act, the State Government on
10.05.2023 approved the detention order.
Thereafter, as per Section 3 (5) of National
Security Act, the detention order, grounds of
detention and all other relevant documents, as
were in the possession of the State Government,
were sent to the Central Government by a
communication dated 11.05.2023. Also, under
Section 10 of the National Security Act,
1980, on the same date i.e. on 11.05.2023,
the matter was referred by the State
Government to the U.P. Advisory Board
(Detention),
Lucknow.
The
Advisory
Board, after allegedly complying with all
the provisions under Section 11 of the
National Security Act, sent its report (the
date of which is not given). However, it
was received by the State Government on
31.05.2023. Thereafter, upon considering
the report of the Advisory Board on
100 INDIAN LAW REPORTS ALLAHABAD SERIES
05.06.2023, an order was passed by the
State of U.P. under Section 12 (1) of the
National Security Act, as per the affidavit
filed by the Deputy Secretary, by which the
petitioner was to be detained provisionally
for a period of three months. This order
again, as per the affidavit filed by the
Deputy Secretary, Sri Pramendra Kumar
Gupta, was extended on 21.07.2023 and the
petitioner was to be detained provisionally
for a period of six months from the initial
date of detention. Aggrieved by the initial
order of detention, dated 06.05.2023 and
the consequential illegal detention, the
petitioner has approached this Court.
Essentially, the petitioner's counsel, Sri
Dayashankar
Mishra,
learned
Senior
Counsel assisted by Sri Chandrakesh
Mishra and Abhishek Kumar Mishra have
made the following submissions:

i) The petitioner had tried to
submit his representation through the jailer
and when the same was not taken by the
Authorities, he submitted the representation
by registered post on 26.05.2023. This
representation was addressed to the District
Magistrate. However, he submits that the
hearing was conducted on 26.05.2023 itself
by Advisory Board, and therefore, the
representation as was required to be placed
before the Advisory Board under Section
10 of the National Security Act, was never
there before the Advisory Board.

ii) Learned counsel for the
petitioner has further submitted that when
the petitioner represented through his
counsel on 01.06.2023 to the State
Government and the Central Government,
this representation was never considered.

iii) Learned counsel for the
petitioner has further submitted that if the
counter affidavit of Sri Premendra Kumar
Gupta, is perused, then, as per paragraph '9'
it is evident that Government officials were
present and were heard before the U.P.
Advisory Board. Learned counsel for the
petitioner since has relied upon para '9' of
the affidavit of Sri P.K. Gupta, the same is
reproduced as under:

"That, it is submitted that the U.P.
Advisory Board, Lucknow vide its letter
dated 22-05-2023, informed the State
Government that the case of the petitioner
would be taken up for hearing on 26-052023 and directed that the petitioner be
informed that if he desired to attend the
hearing before the U.P.Advisory Board
alongwith his next friend (non-advocate),
he could do so and be allowed to take his
next friend (non-advocate) alongwith him if
he had so requested. This fact was
accordingly communicated to the petitioner
through district authorities by the State
Government letter dated 23- 05-2023. The
petitioner appeared for hearing before the
U.P.Advisory Board on the date fixed. The
U.P.Advisory Board heard the petitioner in
person and government officials and sent
its report alongwith the opinion that there
is sufficient cause for the preventive
detention of the petitioner under the
National Security Act, 1980. This report
and the records of the case were received in
the
concerned
section
of
the
State
Government on 31-05- 2023 through the
letter of Registrar, U.P. Advisory Board
(Detentions) dated 31-05-2023 well within
seven weeks from the date of detention of
the petitioner, as provided in Section 11(1)
of the Act."

iv) Learned counsel for the
petitioner relying upon the judgement of
Najar Quraishi vs. Superintendent and
three others, passed on 19.09.2018 in
Habeas Corpus Writ Petition No. 3293 of
2018, has submitted that if the State was
being assisted by Legal Advisors in the
form of Government officials then as per
the law which had been laid down in the
2 All. Niyaz Ansari Vs. Adhikshak Janpad Karagar, Chitrakoot & Ors.
101
judgement of A.K. Roy vs. Union of India
and Another reported in (1982) 1 SCC 271
and also as per judgement of Choith
Nanikram Harchandani vs. State of
Maharashtra and Others reported in
(2018) 2 SCC (Cri) 403, the petitioner
ought to have also been given assistance of
legal practitioners. Since, learned counsel
for the petitioner relied heavily upon the
judgement of A.K Roy (supra), the para '93'
of that judgement is being reproduced
herein as under:

"93. We must therefore hold,
regretfully though, that the detenu has no
right to appear through a legal practitioner
in the proceedings before the Advisory
Board. It is, however, necessary to add an
important caveat. The reason behind the
provisions contained in Article 22 (3) (b) of
the Constitution clearly is that a legal
practitioner should not be permitted to
appear before the Advisory Board for any
party.
The
Constitution
does
not
contemplate that the detaining authority
or the Government should have the
facility of appearing before the Advisory
Board with the aid of a legal practitioner
but that the said facility should be denied
to the detenu. In any case, that is not what
the Constitution says and it would be
wholly inappropriate to read any such
meaning into the provisions of Article 22.
Permitting the detaining authority or the
Government
to
appear
before
the
Advisory Board with the aid of a legal
practitioner or a legal adviser would be
in breach of Article 14, if a similar
facility is denied to the detenu. We must
therefore make it clear that if the
detaining authority or the Government
takes the aid of a legal practitioner or a
legal adviser before the Advisory Board,
the detenu must be allowed the facility of
appearing before the Board through a
legal practitioner. We are informed that
officers
of
the
Government
in
the
departments concerned often appear before
the Board and assist it with a view to
justifying the detention orders. If that be so,
we must clarify that the Boards should not
permit the authorities to do indirectly what
they cannot do directly; and no one should
be enabled to take shelter behind the
excuse that such officers are not 'legal
practitioners' or legal advisers. Regard
must be had to the substance and not the
form since, especially, in matters like the
proceedings
of
Advisory
Boards,
whosoever assists or advises on facts or
law must be deemed to be in the position
of a legal adviser. We do hope that
Advisory Boards will take care to ensure
that the provisions of Article 14 are not
violated
in
any
manner
in
the
proceedings before them. Serving or
retired Judges of the High Court will have
no difficulty in understanding this position.
Those who are merely 'qualified to be
appointed' as High Court Judges may have
to do a little homework in order to
appreciate it."
(Emphasis Supplied)

Also since the judgement of
Choith Nanikram Harchandani vs. State
of Maharashtra and Others reported in
(2018) 2 SCC (Cri) 403 was relied upon
and and specifically the paragraph '15' was
relied upon and the same is reproduced as
under:

"15. In our considered view, if the
petitioner is a habitual offender and has
past criminal record, as alleged by the
respondents, it was all the more necessary
for the respondents to have followed in
letter and spirit the procedure laid down in
A.K Roy's case (supra) before passing the
impugned order of detention. It was,
however, not done."
102 INDIAN LAW REPORTS ALLAHABAD SERIES

v) Learned counsel for the
petitioner further states that the order which
was passed by the State of U.P., initially on
05.06.2023, was an order which was passed
under section 12(1) of the National
Security Act after considering the report of
the Advisory Board and this order could not
thereafter be reviewed or extended by
subsequent orders. He submits that the law
as had been laid down in Cherukuri Mani
vs. Chief Secretary, Government of
Andhra Pradesh and others reported in
(2015) 13 SCC 722, which had stated that
the detention order had to be initially
passed for three months and thereafter
could be extended after every three months
under section 3(3) of the National Security
Act was not a good law. Learned counsel
for the petitioner relying upon Pesala
Nookaraju vs. The Government of Andhra
Pradesh & others reported in 2023 SCC
OnLine SC 1003 and on Ameena Begum
vs. The State of Telangana and others
reported in (2023) 9 SCC 587 made the
above submission. Since, learned counsel
for the petitioner heavily relied upon the
paragraphs '42', '43' and '44' of the
judgement in Pesala Nookaraju (supra),
the same are being reproduced herein as
under:

"42. Hence, Article 22(4)(a) in
substance deals with the order of detention
and has nothing to do with the delegation
of the power of detention by the State
Government to an Officer as stipulated
under Section 3(2) of the Act. In fact, under
Section 9 of the Act, the State Government
has to refer the matter to the Advisory
Board within three weeks from the date of
detention, irrespective of whether the
detention order is passed under Section
3(1) or Section 3(2) of the Act and the
Advisory Board has to give its opinion
within seven weeks from the date of
detention. That would totally make it ten
weeks. As stipulated in Article 22(4)(a) of
the Constitution, if in a given case, once the
Advisory Board gives its opinion within the
stipulated period of three months, then in
our view, Article 22(4)(a) would no longer
be applicable. Thus, Article 22(4)(a)
applies at the initial stage of passing of the
order of detention by the State Government
or by an officer who has been delegated by
the State Government and whose order has
been approved by the State Government
within a period of twelve days from the
date of detention and not at the stage
subsequent to the report of the Advisory
Board. Depending upon the opinion of the
Advisory Board, under Section 12 of the
Act, the State Government can revoke the
order of detention and release the detenu
forthwith or may confirm the detention
order and continue the detention of the
person concerned for any period not
exceeding the maximum period of twelve
months, which is stipulated in Section 13 of
the Act. Therefore, when the State
Government passes a confirmatory order
under Section 12 of the Act after receipt of
the report from the Advisory Board then,
such a confirmatory order need not be
restricted to a period of three months only.
It can be beyond a period of three months
from the date of initial order of detention,
but up to a maximum period of twelve
months from the date of detention.

43. We reiterate that the period of
three months stipulated in Article 22(4)(a)
of the Constitution is relatable to the initial
period of detention up to the stage of
receipt of report of the Advisory Board and
does not have any bearing on the period of
detention, which is continued subsequent to
the confirmatory order being passed by the
State Government on receipt of the report
of the Advisory Board. The continuation
of
the
detention
pursuant
to
the
2 All. Niyaz Ansari Vs. Adhikshak Janpad Karagar, Chitrakoot & Ors.
103
confirmatory order passed by the State
Government need not also specify the
period
of
detention;
neither
is
it
restricted to a period of three months
only. If any period is specified in the
confirmatory order, then the period of
detention would be upto such period, if
no period is specified, then it would be
for a maximum period of twelve months
from the date of detention. The State
Government, in our view, need not
review the orders of detention every
three months after it has passed the
confirmatory order

44. Thus, in our view, the period
of three months specified in Article
22(4)(a) of Constitution of India is relatable
to the period of detention prior to the report
of the Advisory Board and not to the period
of detention subsequent thereto. Further,
the period of detention in terms of Article
22(4)(a) cannot be in force for a period
beyond three months, if by then, the
Advisory Board has not given its opinion
holding that there is sufficient cause for
such detention. Therefore, under Article
22(4)(a), the Advisory Board would have to
give its opinion within a period of three
months from the date of detention and
depending upon the opinion expressed by
the Advisory Board, the State Government
can under Section 12 of the Act, either
confirm the order of detention or continue
the detention of the person concerned for a
maximum period of twelve months as
specified in Section 13 of the Act or release
the detenu forthwith, as the case may be. If
the order of detention is confirmed, then
the period of detention can be extended up
to the maximum period of twelve months
from the date of detention. With respect, we
observe that it is not necessary that before
the expiration of three months, it is
necessary for the State Government to
review the order of detention as has been
expressed by this Court in Cherukuri
Mani
(supra).
The
Act
does
not
contemplate a review of the detention
order once the Advisory Board has
opined that there is sufficient cause for
detention of the person concerned and
on that basis, a confirmatory order is
passed by the State Government to
detain a person for the maximum period
of twelve months from the date of
detention. On the other hand, when under
Section 3(2) of the Act, the State
Government delegates its power to the
District Magistrate or a Commissioner of
Police to exercise its power and pass an
order of detention, the delegation in the
first instance cannot exceed three months
and the extension of the period of
delegation cannot also be for a period
exceeding three months at any one time.
[See: Abdul Razak v. State of Karnataka,
ILR 2017 Kar 4608 (FB)]"
(Emphasis Supplied)

Also, since learned counsel for
the petitioner heavily relied upon the
paragraphs '71', '72', '73', '76' and '78' of
Ameena Begum (supra), the same are
being reproduced herein as under :

"71. Both Mr. Luthra and Mr.
Dave have referred us the recent decision
of a 3-Judges Bench of this Court in the
case
of
Pesala
Nookaraju
vs.
The
Government of Andhra Pradesh [Crl.
Appeal No. 2304 of 2023, decided on 16th
August, 2023 where an order of detention
passed in exercise of power conferred by
the Andhra Pradesh Prevention of Dangero
Activities of Boot-leggers, Dacoits, Drug
Offenders,
Goondas,
Immoral
Traffic
Offenders and Land Grabbers Act, 1986
("1986 Act" hereafter) was upheld despite
the detenu having obtained orders of bail
upon arrest in connection with investigation
of 4 (four) F.I.R. under sections 7B and 8B
104 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Andhra Pradesh Prohibition Act,
1995.

72. Mr. Luthra intended to rely on
the decision in Cherukari Mani vs. Chief
Secretary, Government of Andhra Pradesh,
(2015) 13 SCC 722. According to the
appellant, the detention could only be in
force for a period of three months in the fir
instance and that such order on a periodic
assessment was required to be reviewed for
continuous detention till the maximum
period permissible. The contention was
accepted by this Court.

73. While hearing of the appeal
was in progress, came the decision in
Pesala
Nookaraju
(supra)
overruling
Cherukari Mani (supra). It was held that the
"State Government need not review the
orders of detention every three months after
it ha passed the confirmatory order." Fairly,
Mr. Luthra did not seek to rely on
Cherukari Mani (supra) further.

..................................

..................................

76. Mr. Dave next relied on the
reasons assigned in Pesala Nookaraju
(supra) to contend that the impugned
Detention Order should be held legal and
unexceptionable.

..................................

78. It is indeed true that the
appellant had raised a contention before the
Court that the Government of Andhra
Pradesh had directed detention of the
appellant for the maximum period of 12
(twelve) months without any application of
mind providing reasons as to why this is
necessary."

vi) Learned counsel for the
petitioner in effect, therefore, argued that
once when an order confirming the
detention under section 12(1) of the
National Security Act had been passed,
then, the same could not be reviewed or
extended. However, he submitted that for
the benefit of the detenue, order could be
passed either revoking or modifying the
detention in terms of the provisions of
Section 14 of the National Security Act.
Learned counsel for the petitioner reliying
upon the judgement of the Ram Bali
Rajbhar vs. The State of West Bengal and
others reported in (1975) 4 SCC 47, has
submitted that the State could pass the
modification order in favour of the detenue
after complying with the provisions of
Section 10 & 11 of the National Security
Act. Since, learned counsel for the
petitioner relied heavily upon paragraph
'12', of the judgement of Ram Bali Rajbhar
(supra), the same is being reproduced
herein as under:

"12. We think it will be a
reasonable and judicious exercise of the
power under Section 14 of the Act to refer a
case once again to the Advisory Board for
its
opinion
before
a
subsequent
representation made on fresh materials by a
detenu is rejected. It is true that the
conditions under which a reference is made
for the opinion of the Advisory Board
under Section 10 of the Act cannot be
repeated. It is also clear that the express
and mandatory duty to refer arises only
under the conditions laid down by Section
10 of the Act and there is no specific or
separate provision for calling for the
opinion of the Advisory Board from time to
time., Nevertheless, if the power under Sec.
14 of the Act can be exercised "in the like
manner and subject to the like sanctions
and conditions (if any)", to use the
language employed by Section 21 of the
General Clauses Act, we can only interpret
"like manner" and subjection to "like
conditions" to mean similar and not
identical manner and conditions. We think
that a situation in which a power of
revocation or modification of a detention
order is invoked by a second or subsequent
2 All. Niyaz Ansari Vs. Adhikshak Janpad Karagar, Chitrakoot & Ors.
105
representation can, after making allowance
for intervening events which cannot be
wiped out of existence, be compared to and
resembles a situation in which the opinion
of the Advisory Board is sought after an
approval or a preliminary confirmation of a
detention order by the State Government
under Section 3 (3) of the Act, awaiting the
opinion of the Advisory Board, which is
expected to function quite impartially and
independently
before the
Government
makes a final order under Section 12 of the
Act. Section 10 of the Act only provides for
the Ist representation. But, it appears to us
that the power under Section 14 of the Act,
read with Section 21 of the General Clauses
Act, which is specifically mentioned in
Section 14 of the Act, could import or
imply a power of the State Government to
refer a second representation likewise to
the
Advisory
Board,
if
the
State
Government so decides in an analogous
situation. And, the Advisory Board can then
adopt such, parts of the procedure laid
down in Section IT of the Act as could be
applied to a second representation. In such
a case, the reference would not be under
Section 10 of the Act but under Section 14
of the Act read with the necessary
implication of preserving the power of the
Government to act as laid down in Section
21 of the General Clauses Act. In other
words, the subsequent reference would
result from a necessarily implied power of
the Government, to act, so far as possible,
in a like manner to the one it has to adopt in
confirming or revoking the initial detention
order under Section 12 of

the Act. And, if there is such a
power in the Government to refer a
subsequent representation on fresh grounds
to the Advisory Board for its opinion, there
will, we think be a corresponding implied
power and obligation of the Advisory
Board to give its opinion in accordance
with the procedure prescribed by Section II
of the Act except that its report will
necessarily have to be submitted in such
cases beyond ten weeks from the date of
detention order but within a reasonable
time."

vii) Learned counsel for the
petitioner states that if any order after the
order dated 05.06.2023 had to be passed,
then fresh reasons ought to have been there
and all the machinery which was provided
under Sections 3, 8, 10 and 11 of the
National Security Act ought to have been
followed.

viii) Still further, learned counsel
for the petitioner has submitted that there
was no finding with regard to the fact as to
how "public order" was being disturbed.
He submits that in the First Information
Report there were seven accused including
Abbas Ansari, but only the petitioner-
Niyaz Ansari, who was only a driver of
Nikhat Ansari, the wife of said Abbas
Ansari, had been detained under the
provisions of the Act.

3. On 10.01.2024, we had put certain
questions and had asked the learned A.G.A.
to reply to them today. A Supplementary
Affidavit has been filed by Sri Premendra
Kumar Gupta, the Deputy Secretary,
(Home Department (Confidential), U.P. and
with regard to the reply vis-a-vis the
representation which the petitioner had
submitted,
he
has
stated
that
the
representation in fact, was never there
before the Advisory Board. He has
submitted that the petitioner had never
mentioned before the Advisory Board that
the representation was sent. With regard to
the subsequent representation which finds
mention in the writ petition and was dated
01.06.2023, learned A.G.A. submits that in
fact it was not submitted on 01.06.2023 but
was signed on 06.06.2023 and on that date
106 INDIAN LAW REPORTS ALLAHABAD SERIES
the detenue and his counsel had submitted
the
same.
The
original
of
this
communication was produced before us.

4. Learned counsel for the State has
submitted that as per Cherukuri Mani
(supra), the initial confirmity order could
not have been passed for more than three
months and that it could in fact only be
extended every three months. Therefore, he
submits that the order dated 05.06.2023
was passed under Section 12(1) readwith
3(3) of the National Security Act for only a
period of three months. He submits that in
accordance with law as was prevalent at the
time of the passing of the order dated
5.6.2023 the subsequent orders dated
21.07.2023 and 27.10.2023 were passed
extending the detention by further three
months.

5. Learned A.G.A. with regard to the
presence of Government officials has stated
that in the counter affidavit it was
inadvertently stated that the Government
officials were heard. He has stated that the
Government official in fact had only visited
the office of the Advisory Board and had
supplied only events/documents before the
Advisory Board and in fact they were never
heard.

6. Having heard Sri Dayashankar
Mishra, learned Senior Counsel assisted by
Sri Abhishek Mishra and Sri Chandrakesh
Mishra, Advocates; learned Additional
Advocate General, Sri P.C. Srivastava,
assisted by Sri J.K. Upadhyaya; Vikas
Sahai for the State of Uttar Pradesh and the
learned counsel for the Union of India Ms.
Manjari Singh, we are of the view that that
the writ petition deserves to be allowed.
The petitioner was at the first place, as per
the law laid down in A.K. Roy (supra) and
Choith Nanikram Harchandani (supra) as
was followed by our High Court in Najar
Quraishi (surpra) was not given the right
to have assistance of Legal Practitioners.

7. In view of the fact that the State
was having Government officials i.e., Legal
Advisors (as had been interpretted in
Choith
Nanikram
Harchandani),
the
petitioner also ought to have had the legal
assistance on the 26th of May 2023 i.e. the
day when he had appeared before the
Advisory Board. Therefore, we are of the
view that the petitioner's valuable right of
being properly heard was violated.

8. We also are of the view that once
when the order of detention was confirmed
on 05.06.2023, after considering the
Advisory Board's report, then, the State
Government ought to have applied its mind
in one go and as per Section 12 of the
National Security Act, it ought to have
passed an order as to for what period the
detention had to be done. Definitely, the
detention could not have been done in
piecemeal as has been done in the present
case by the State Government. If the initial
detention was for three months, then it
could have been there only for three
months. If for any further reasons the
Government intended to detain the detenue
further then all the machinery as is
provided under Sections 3, 5, 8, 9, 10, 11
and 12 of the National Security Act, ought
to have been followed.

9. For the reasons stated above, the
writ petition is allowed. The order by which
the initial detention order dated 06.05.2023
was confirmed on 05.06.2023 is quashed.
The petitioner though has not challenged in
the
writ
petition
the
orders
dated
21.07.2023 and 27.10.2023 but were
brought before us whereby the detention
was extended are also hereby quashed and
2 All. Yajur Verma @ Jai Verma Vs. State of U.P. & Ors.
107
set-aside. Since the confirmation order
dated 05.06.2023 by which the detention
order dated 6.5.2023 has been set-aside, we
are of the view that the order dated
06.05.2023 also goes as it has outlived its
life.

10. We, therefore, direct that the
petitioner, Niyaz Ansari, (Detenue) be set at
liberty, unless he is required in any other
case.
----------
(2024) 2 ILRA 107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Habeas Corpus Writ Petition No. 831 of 2023

Yajur Verma @ Jai Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mahesh Narain Singh, Sri M.N. Singh,
Sri Anoop Trivedi (Sr. Advocate)

Counsel for the Respondents:
G.A., Sri Sarvesh

Civil Law - Constitution of India,1950-
Article
226
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 -
Guardians and Wards Act, 1890 - Petitioner
(father) sought habeas corpus for custody of 4year-old son from mother (respondent No. 4),
alleging illegal detention post-separation. Court
held: (1) Habeas corpus maintainable only if
custody unlawful; paramount consideration is
child's welfare, not parental rights (Syed
Saleemuddin Vs Rukhsana, (2001) 5 SCC 247).
(2) For child below 5 years, mother preferred as
natural guardian under Section 6(a) of Hindu
Minority and Guardianship Act; father's claim
unsubstantiated (Nithya Anand Raghavan Vs St.
(NCT of Delhi), (2017) 8 SCC 454). (3) No
evidence of unlawful detention or mother's
incapacity; child's stable environment with
mother and grandparents, including schooling in
Lucknow, prioritized (Meenakshi Vs St. of U.P.,
2020 12 ADJ 254). (4) Prior orders granted
petitioner
visitation
rights
for
elder
son,
extendable to younger; no justification for
disrupting child's current custody (Tejaswini
Gaud Vs Shekhar Jagdish Prasad Tewari, (2019)
7 SCC 42). (5) Petitioner to seek formal custody
under Guardians and Wards Act; writ jurisdiction
not for routine disputes. Petition dismissed;
mother retains custody. (Paras 2-19)

Writ Petition Dismissed.

Case Law Cited:

1. Syed Saleemuddin Vs Rukhsana, (2001) 5
SCC 247 (Para 10)

2. Nithya Anand Raghavan Vs St. (NCT of
Delhi), (2017) 8 SCC 454 (Para 11)

3. Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42 (Para 13)

4.
Kanu
Sanyal
Vs
District
Magistrate,
Darjeeling, (1973) 2 SCC 674 (Para 11)

5. Elizabeth Dinshaw Vs Arvand M. Dinshaw,
(1987) 1 SCC 42 (Para 11)

6. Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112 (Para 11)

7. Meenakshi Vs St. of U.P., 2020 12 ADJ 254
(Para 12)

8. Githa Hariharan Vs Reserve Bank of India,
(1999) 2 SCC 228 (Para 14)

(Delivered by Hon'ble Mrs.
Jyotsna Sharma, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Counsel assisted by Sri Mahesh
Narain Singh, learned counsel for the
petitioner, Sri Sarvesh, learned counsel for