# Raju @ Abid v. Union of India & Ors

- **Citation:** (2016) 7 ILRA 914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-06
- **Bench:** Bala Krishna Narayana, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-abid-v-union-of-india-ors-44085
- **Pages:** 9

## Headnote

The petitioner, Raju @ Abid, filed a writ of Habeas Corpus seeking to quash his detention order dated August
28, 2015, issued under Section 3(2) of the National Security Act (NSA), and the subsequent approval order by
the State Government.

Background and Allegations
The detention was based on the recovery of counterfeit currency notes totaling ₹2,94,000 from the petitioner
and his accomplices. He was also allegedly involved in a similar case from 2012 involving ₹2,50,000 in
counterfeit notes. The authorities argued his activities disturbed public order and harmed the national
economy.
7 All. Raju @ Abid Vs Union Of India & Ors.
915
Primary Legal Contention
The petitioner's counsel challenged the detention solely on the grounds of inordinate and unexplained delay.
Specifically, it was argued that the District Magistrate (Respondent No. 3) failed to promptly forward the
petitioner's representation to the State Government, violating Article 22(5) of the Constitution.

Examination of the Timeline
The petitioner submitted his representation on September 12, 2015. While the State Government acted
quickly once they received it, records showed the District Magistrate did not forward the documents to the
State until February 15, 2016-a delay of over five months.

Failure of Explanation
The Court found that the District Magistrate provided no plausible explanation for "sitting over" the
representation for five months. While the authorities had sent comments to the Central Government in
September 2015, they inexplicably failed to notify the State Government simultaneously.

Judicial Principles Applied
The Court reiterated that the right to representation against detention is a fundamental right under Article 21
and 22(5). While no "hard and fast" time limit exists, any delay must be explained. "Lethargic indifference" or
"needless procrastination" by authorities is not permissible.

Final Decision
The Court ruled that the unexplained five-month delay constituted a breach of constitutional imperatives,
rendering the detention illegal. The writ petition was allowed, the detention orders were quashed, and the
Court ordered the immediate release of the petitioner.

List of Citations:

Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675
Frances Coralie Mullin v. W.C. Khambra, AIR 1980 SC 849
K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India, 1991 AIR (SC) 574

## Text

914 INDIAN LAW REPORTS ALLAHABAD SERIES

India is both administrative and judicial, but such power is to be exercised sparingly and only in
appropriate cases in order to keep the subordinate courts within the bounds of their authority.

30. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10
SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9
SCC 592 observed that only in an extreme case, where on the face of it there is perversity or
irrationality, there can be judicial review under Articles 226 or 227.

31. In view thereof, I find no justification warranting interference with the orders impugned
in this writ petition.

32. Dismissed. Interim order, if any, stands vacated.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHASHI KANT, J.

Habeas Corpus Writ Petition No.- 4878 of 2016

Raju @ Abid ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Shri Tapan Kumar Mishra

Counsel for the Respondents:
G.A., A.S.G.I., Shri N.D. Rai

Held -

Nature of the Petition
The petitioner, Raju @ Abid, filed a writ of Habeas Corpus seeking to quash his detention order dated August
28, 2015, issued under Section 3(2) of the National Security Act (NSA), and the subsequent approval order by
the State Government.

Background and Allegations
The detention was based on the recovery of counterfeit currency notes totaling ₹2,94,000 from the petitioner
and his accomplices. He was also allegedly involved in a similar case from 2012 involving ₹2,50,000 in
counterfeit notes. The authorities argued his activities disturbed public order and harmed the national
economy.
7 All. Raju @ Abid Vs Union Of India & Ors.
915
Primary Legal Contention
The petitioner's counsel challenged the detention solely on the grounds of inordinate and unexplained delay.
Specifically, it was argued that the District Magistrate (Respondent No. 3) failed to promptly forward the
petitioner's representation to the State Government, violating Article 22(5) of the Constitution.

Examination of the Timeline
The petitioner submitted his representation on September 12, 2015. While the State Government acted
quickly once they received it, records showed the District Magistrate did not forward the documents to the
State until February 15, 2016-a delay of over five months.

Failure of Explanation
The Court found that the District Magistrate provided no plausible explanation for "sitting over" the
representation for five months. While the authorities had sent comments to the Central Government in
September 2015, they inexplicably failed to notify the State Government simultaneously.

Judicial Principles Applied
The Court reiterated that the right to representation against detention is a fundamental right under Article 21
and 22(5). While no "hard and fast" time limit exists, any delay must be explained. "Lethargic indifference" or
"needless procrastination" by authorities is not permissible.

Final Decision
The Court ruled that the unexplained five-month delay constituted a breach of constitutional imperatives,
rendering the detention illegal. The writ petition was allowed, the detention orders were quashed, and the
Court ordered the immediate release of the petitioner.

List of Citations:

Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675
Frances Coralie Mullin v. W.C. Khambra, AIR 1980 SC 849
K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India, 1991 AIR (SC) 574

(Delivered by Hon'ble Bala Krishna Narayana, J.
&
Hon'ble Shashi Kant, J.)

1. This writ petition has been filed by the petitioner with a prayer to issue a writ, order or
direction in the nature of Habeas Corpus quashing the detention order dated 28.8.2015 passed by
the respondent no. 3 and the order dated 7.9.2015 passed by the respondent no. 2 approving the
detention order (collectively filed as annexure-2 to the writ petition). A further prayer has been
made for issuing a writ, order or direction in the nature of Habeas Corpus directing the respondent
no. 5 to release the petitioner forthwith.

2. The relevant facts giving rise to this writ petition as narrated in the grounds of detention
are that on the basis of the F.I.R. lodged by the SHO Echotech-3, district-Gautam Budh Nagar at
Police Station-Echotech-3, district-Gautam Budh Nagar, Case Crime no. 240 of 2015, under
Sections 489B and 489C I.P.C. was registered against the petitioner and his two other accomplices
on the allegation that counterfeit currency notes of Rs. 2,94,000/- (Rs. Two lacs ninety four
916 INDIAN LAW REPORTS ALLAHABAD SERIES

thousand) were recovered from the petitioner and his two other accomplices on 16.7.2015 when
they were intercepted, searched and arrested by the SHO police station-Echotech-3, district-Gautam
Budh Nagar and his two companions on the Haldwani Road, Gautam Budh Nagar, while they were
going on a motorcycle and a scooty along with counterfeit currency notes. Apart from the aforesaid
incident, the counterfeit currency notes of Rs. 2, 50,000/- (Rs. Two lacs fifty thousand) were
recovered from one Neeraj and his other accomplices on 13.10.2012 and on the basis of the
aforesaid recovery, Case Crime no. 592 of 2012, under Sections 489B and 489C I.P.C. was
registered against the petitioner and his other accomplices at police station-Echotech-3, districtGautam Budh Nagar, in which after completion of investigation charge sheet was submitted against
the petitioner and the other co-accused. The aforesaid activities of the petitioner had not only
disturbed the public order but had also adversely effected the circulation and supply of Indian
currency which is essential for the community. While the petitioner was in District Jail, Gautam
Budh Nagar on account of his being accused in Case Crime no. 240 of 2015 was served with the
impugned order of detention passed by the respondent no. 3 in the exercise of his power under
Section 3(2) of the National Security Act (hereinafter referred to as the "NSA") along with the
grounds of detention on 28.8.2015. The petitioner made a representation against the impugned
detention order before the respondent no. 1 through respondent no. 5 on 12.9.2015 (annexure-6).
The petitioner's representation was rejected by the respondent no. 1 on 27.10.2015. The order dated
23.10.2015 was communicated to the petitioner on 27.10.2015. The representation dated 12.9.2015
moved by the petitioner before the State Government was rejected by the State Government on
22.2.2016. Information whereof was communicated to the petitioner through district authority by
the State Government on 23.2.2016. The U.P. Advisory Board, Lucknow approved the detention
order on 30.9.2015. The State Government took a decision to confirm the detention order and to
keep the petitioner under detention for a period of twelve months from the date of his actual
detention, i.e. 28.8.2015.

3. The only ground on which the petitioner's counsel has assailed the detention of the
petitioner under the N.S.A. is that there was an inordinate and unexplained delay on the part of the
respondent no. 3 in forwarding the representation made by the petitioner on 12.9.2015 (annexure-6)
to the State Government against the impugned detention order dated 28.8.2015 to the State
Government and also on the part of the State Government in deciding the same which has totally
vitiated the impugned detention order as the same infringed the fundamental right guaranteed to the
petitioner under Section 22(5) of the Constitution of India.

4. Per contra, Sri J.K. Upadhyay appearing on behalf of the State and Sri N.D. Rai, learned
counsel for the respondent no. 1 made their submissions in support of the impugned detention
order. Sri J.K. Upadhyay vehemently submitted that the delay, if any, in the disposal of the
petitioner's representation has been satisfactorily explained in the counter affidavit filed by the
respondent no. 2 in this case and the impugned order is not liable to be set aside merely on the
ground of some delay on the part of the State Government in deciding the petitioner's
representation.
7 All. Raju @ Abid Vs Union Of India & Ors.
917
5. We have heard the learned counsel for the parties and perused the impugned order of
detention as well as the grounds of detention and the pleadings of the parties. The only question
which requires consideration in this writ petition is that whether there was any undue and
unexplained delay on the part of the respondent no. 3 in forwarding the petitioner's representation
to the respondent no. 2 and on the part of respondent no. 2 in deciding the petitioner's
representation dated 12.9.2015 made by him before the respondent no. 2 against the impugned
order of detention, through the respondent no. 3.

6. There is no dispute about the fact that while the petitioner was in District Jail, Gautam
Budh Nagar on account of his being accused in Case Crime no. 240 of 2015 he was served with the
impugned detention order dated 28.8.2015 along with the grounds of detention. Against the
detention order dated 28.8.2015 the petitioner made a representation on 12.9.2015 before the State
Government which was rejected by the State Government on 22.9.2015. Thus apparently there has
been a delay of about five months and ten days on the part of the State Government in deciding the
petitioner's representation. According we proceed to examine whether the delay has been
sufficiently accounted for or not.

7. We have very carefully gone through the counter affidavit filed in this case on behalf of
the respondent nos. 2 and 3.

8. A perusal of the paragraph nos. 5, 6 and 7 of the counter affidavit of the respondent no. 2
show that the petitioner's representation (annexure-6) was received in the concerned section of the
State Government on 16.2.2016 along with the comments of the detaining authority along with his
letter dated 15.2.2016. Copy of the petitioner's representation was sent by the State Government
along with the parawise comments to the Central Government, New Delhi along with letter dated
17.2.2016. Thereafter the concerned section (Gopan Anubhag-7) of the State Government
examined the petitioner's representation on 18.2.2016. The Under Secretary Home Government of
Uttar Pradesh, Lucknow and the Special Secretary examined the petitioner's representation on
19.2.2016. Since 20.2.2016 and 21.2.2016 were holidays on account of Saturday and Sunday, the
Secretary Government of Uttar Pradesh examined the petitioner's representation on 22.2.2016,
where after the necessary record was submitted to the higher authorities for passing final order in
this matter and after due consideration the petitioner's representation was rejected by the State
Government on 22.2.2016, information whereof was communicated to the petitioner through
District Authorities on 23.2.2016. Thus, as far as the State Government is concerned there does not
appear to be any undue or deliberate delay on its part in deciding the petitioner's representation but
there does appear to be an inordinate delay on the part of the District Magistrate, NOIDA in
forwarding the petitioner's representation to the State Government. In order to examine whether the
District Magistrate, NOIDA has been able to come up with any plausible explanation for the delay
of more than five months on his part in forwarding the petitioner's representation to the State
Government, we consider it appropriate to refer to the counter affidavit filed by the District
Magistrate, Gautam Budh Nagar, respondent no. 3 in this case.
918 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In paragraph 15 of his counter affidavit the respondent no. 3 has admitted that the
representation of the petitioner dated 12.9.2015 was received in his office on 12.9.2013 itself. In
paragraph 27 of his counter affidavit the respondent no. 3 has stated that that the petitioner's
representation dated 12.9.2015 was marked by him to the Addl. District Magistrate (Executive),
Gautam Budh Nagar who marked the aforesaid representation of the petitioner to the assistant to
the District Magistrate on 14.9.2015 and the Addl. District Magistrate (Administration)/Office
Incharge, Gautam Budh Nagar requested the Senior Superintendent of Police, Gautam Budh Nagar
to submit his report on the representation of the petitioner. The aforesaid letter was issued by the
A.D.M. (Administration)/Office Incharge, Gautam Budh Nagar on 19.9.2015. In paragraph 29 of
his counter affidavit the respondent no. 3 has stated on oath that he had forwarded the copy of the
representation along with parawise comments/police report to the Govt. Of U.P. Lucknow on
15.2.2016.

10. There is absolutely no explanation in the counter affidavit of respondent no. 3 for his
failure to forward the petitioner's representation dated 12.9.2015 to the State Government
immediately after receiving the parawise comments from the Senior Superintendent of Police,
Gautam Budh Nagar. It appears that respondent no. 3 has deliberately suppressed the date on which
the parawise comments of Senior Superintendent of Police to the petitioner's representation were
received by him. The respondent no. 3 has failed to come up with any explanation as to why he did
not dispatch/forward the petitioner's representation to the State Government on 29.9.2015 which is
the date on which the petitioner's representation along with the parawise comments of the
respondent no. 3 and the police report was forwarded by him to the Government of India.

11. In the case of Jayanarayan Sukul-case, AIR 1970 SC 675, Hon'ble A.N. Ray, J., as
His Lordship then was, speaking for the Constitution Bench has laid down following four
principles which should govern the consideration of representation of detenus.

"First the appropriate authority is bound to give an opportunity to the detenue to
make a representation and to consider the representation of the detenue as early as possible.
Secondly, the consideration of the representation of the detenu by the appropriate authority is
entirely independent of any action by the Advisory Board including the consideration of the
representation of the detenue by the Advisory Board. Thirdly, there should not be any delay in
the matter of consideration. It is true that no hard and fast rule can be laid down as to the
measure of time taken by the appropriate authority for consideration but it has to be remembered
that the Government has to be vigilant in the governance of the citizens. A citizen's right raised a
correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and
judgment on the representation before sending the case along with the detenue's representation
to the Advisory Board. If the appropriate Government will release the detenue the Government
will not not send the matter to the Advisory Board. If, however, the Government will not release
the detenue the Government will send the case along with the detenue's representation to the
Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of
the detenu the Government will release the detenue. If the Advisory Board will express any
7 All. Raju @ Abid Vs Union Of India & Ors.
919
opinion against the release of the detenu the Government may still exercise the power to release
the detenue."

12. In Frances Coralie Mullin v. W.C. Khambra, AIR 1980 SC 849, Chinnappa Reddy,
J., while dealing with the time imperative for consideration of the representation has emphasised

"We, however, hasten to add that the time imperative can never be absolute or
obsessive. The Court's observations are not to be so understood. There has to be lee-way,
depending on the necessities (we refrain from using the word 'circumstances) of the case. One
may well imagine a case where a detenu does not make representation before the Board
makes its report making it impossible for the detaining authority either to consider it or to
forward it to the Board in time or a case where a detenu makes a representation to the
detaining authority so shortly before the Advisory Board takes up the reference that the
detaining authority cannot consider the representation before then but may merely forward it
to the Board without himself considering it. Several such situations may arise compelling
departure from the time-imperative. But no allowance can be made for lethargic indifference.

No allowance can be made for needless procrastination. But allowance must
surely be made for necessary consultation where legal intricacies and factual ramifications
are involved. The burden of explaining the necessity for the slightest departure from the timeimperative is on the detaining authority.

In Frances Coralie Mullin's case AIR 1980 SC 849, the detenu's
representation was received by the detaining authority on December 26, 1979. Without any
loss of time copy of the representation was sent to the customs authorities for their remarks
which was obviously necessary because the information leading to the order of detention was
collected by the customs authorities. The fact were undoubtedly complex since allegation
against the detenu revealed an involvement with an international gang of dope smugglers.
The comments of the customs authorities were received on January 4, 1980. The Advisory
Board was meeting on January 4, 1980 and so there could be no question of the detaining
authority considering the representation of detenu before the board met, unless it was done in
a great and undue haste. After obtaining the comments of the customs authorities, it was
found necessary to take legal advice as the representation posed many legal and constitutional
question, so, after consultation with the Secretary (Law and Judicial) Delhi Administration,
the representation was finally rejected by the Administrator on January 15, 1980. It was held
that if there appeared to be any delay it was not due to any want of care but because the
representation required a thorough examination in consultation with investigation agencies
and advisers on law."

13. Agreeing with the observations in Frances Coralie Mullin's case, AIR 1980 SC 849, the
Apex Court in paragraph 16 of its judgement rendered in K.M. Abdulla Kunhi And B.L. Abdul
Khader versus Union of India reported in 1991-AIR (SC)-574 observed as hereunder :-
920 INDIAN LAW REPORTS ALLAHABAD SERIES

"(16.) We agree with the observations in frances Coralie Mullin case. The
time imperative for consideration of representation can never be absolute or obsessive. It
depends upon the necessities and the time at which the representation is made. The
representation may be received before the case is referred to the Advisory Board, but
there may not be time to dispose of the representation before referring the case to the
Advisory Board. In that situation the representation must also be forwarded to the
Advisory Board along with the case of the detenu. The representation may be received
after the case of the detenu isreferred to the Board. Even in this situation the
representation should be forwarded to the Advisory Board provided the Board has not
concluded the proceedings. In both the situations there is no question of consideration of
the representation before the receipt of report of the Advisory Board. Nor it could be said
that the government has delayed consideration of the representation, unnecessarily
awaiting the report of the Board. It is proper for the Government in such situations to
await the report of the Board. If the Board finds no material for detention on the merits
andreports accordingly, the Government is bound to revoke the order of detention.
Secondly, even if the Board expresses the view that there is sufficient cause for detention,
the Government after considering the representation could revoke the detention. The
Board has to submit its report within eleven weeks from the date of detention. The
Advisory Board may hear the detenu at his request. The Constitution of the Board shows
that it consists of eminent persons who are Judges or person qualified to be Judges of
The High Court. It is therefore, proper that the Government considers the representation
in the aforesaid two situations only after the receipt of the report of the Board. If the
representation is received by the Government after the Advisory Board has made its
report, there could then of course be no question of sending the representation to the
Advisory Board. It will have to be dealt with and disposed of by the Government as early
as possible."

14. Thus after going through the numerous authorities on the subject, referred to
herein above what follows is that the appropriate authority is bound to give opportunity to
the detenue to make a representation and to consider the representation of the detenue as
early as possible, but however, if it appears that the delay was not due to any want of care
but because the representation required a thorough examination in consultation with
investigation agencies and advisers on law, such a situation may compel departure from the
time-imperative. But no allowance can be made for lethargic indifference or for needless
procrastination. An allowance must surely be made for necessary consultation where legal
intricacies and factual ramifications are involved and a burden of explaining the necessity
for the slightest departure from the time-imperative is on the detaining authority.

15. However, the facts and circumstances of the present case unequivocally indicate
that there was an inordinate and unaccounted delay of about five months on the part of the
detaining authority (District Magistrate), respondent no. 3 in forwarding the petitioner's
representation dated 12.9.2015 to the State Government. The respondent no. 3 has failed to
discharge the burden of the necessity for departuring from the time to imperative. He has
7 All. Raju @ Abid Vs Union Of India & Ors.
921
failed to furnish any reasons for sitting over the petitioner's representation for about five
months before forwarding it to the State Government.

16. The Apex Court in paragraph 12 of the case of K.M. Abdulla Kunhi (supra)
observed as here under:-

"The representation relates to the liberty of the individual, the highly
cherished right enshrined in Article 21 of our Constitution. Clause (5) of Artilce 22
therefore, casts a legal obligation on the Government to consider the representation as
early as possible. It is a constitutional mandate commanding the concerned authority to
whom the detenue submits his representation to consider the representation and dispose
of the same as expeditiously as possible. The words "as soon as may be" occurring in
clause (5) of Article 22 reflects the concern of the Framers that the representation should
be expeditiously considered and disposed of with a sense of urgency without an avoidable
delay. However, there can be no hard and fast rule in this regard. It depends upon the
facts and circumstances of each case. There is no period prescribed either under the
Constitution or under the concerned detention law, within which the representation
should be dealt with."

17. Thus, in view of the settled law on the issue and in the background of the facts
of the instant case, we do not hesitate in holding that the present case is a glaring example
of supine indifference, slackness and callous attitude on the part of the detaining authority,
respondent no. 3 in forwarding the petitioner's representation to the State Government after
a lapse of five months measurably failed to account for. The inordinate and unexplained
delay in this case on the part of the respondent no. 3 in forwarding the petitioner's
representation to the State Government, in our opinion, amounts to breach of the
constitutional imperative, rendering the continued detention of the petitioner impermissible
and illegal.

18. Since there is no explanation on the part of the respondent no. 3 for not having
forwarded the petitioner's representation promptly and there being an inordinate and
unexplained delay of more than five months on his part in forwarding the petitioner's
representation to the State Government, the impugned order can not be sustained.

19. For the aforesaid reasons, writ petition succeeds and is allowed. The impugned
detention order dated 28.8.2015 and the order of approval dated 7.9.2015 are hereby
quashed.

20. Let the petitioner, Raju @ Abid be released from jail forthwith, if he is not
wanted in any other case.

21. There shall be however, no order as to costs.
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922 INDIAN LAW REPORTS ALLAHABAD SERIES

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.

Jail Appeal No.- 5049 Of 2012

Pappu ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
From Jail

Counsel for the Respondent:
A.G.A.

Held -

Introduction and Conviction
The appellant, Pappu, challenged the judgment of the Additional Sessions Judge, Agra, which convicted him
under Sections 376/511 of the Indian Penal Code (IPC) (Attempt to commit rape). He had been sentenced to
five years of rigorous imprisonment and a fine of Rs. 20,000/-

Prosecution Case

The prosecution alleged that on October 21, 2010, the appellant abducted an 8-year-old girl and took her to a
vacant plot/house near Ankush Dairy. Witnesses claimed to have found the appellant with his trousers open
and the victim's Salwar pulled down. The appellant was caught on the spot and handed over to the police.

Key Grounds for Appeal

The Amicus Curiae for the appellant argued that:
The prosecution story was improbable and inconsistent.
There was no medical evidence of sexual assault.
The timing and genesis of the FIR were highly suspicious and contradicted by witness testimonies.
The place of occurrence was doubtful (vacant plot vs. vacant house).

Court's Observations and Findings

The High Court identified several fatal discrepancies in the prosecution's evidence:

Contradictory Timelines: The FIR was officially recorded at 2:00 PM. However, the father (PW-1) claimed he
was an hour away and only informed at 12:30 PM or 2:00 PM by different sources. One constable (PW-6)
even claimed the report was lodged at 12:30 PM, creating a physical impossibility.