# Sonu @ Mohd. Ishtiyaq v. U.O.I.& Ors

- **Citation:** (2021) 11 ILRA 822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-01
- **Case number:** Habeas Corpus Writ Petition No. 11132 of 2021
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-mohd-ishtiyaq-v-u-o-i-ors-46622
- **Pages:** 9

## Headnote

National Security Act, 1980 - Section 3(2) -
Constitution of India - Art. 22(5) - Detention
order
-delay
in
deciding
detenue's
representation against detention order - Held -
Any unexplained delay would be a breach of
constitutional imperative and it would render
the continued detention of the detenu illegal -
delay itself is not fatal, the delay which
remains unexplained becomes unreasonable -
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 - explanation offered must
be reasonable indicating that there was no
slackness or indifference (Para 31)

Unexplained delay of four days in deciding detenue's
representation on the part of the Central Government
which infringed his fundamental right envisaged
under Article 21 and 21(5) of the Constitution of India
- In the affidavit filed on behalf of Union of India the
delay on 19.06.2021 and 20.06.2021 has been
explained, but the affidavit is silent on the delay of
21.06.2021 to 24.06.2021 - Held - on account of
unexplained delay of four days on the part of Union of
India, the continuation of the preventive detention
sands vitiated - Order of detention, quashed. (Para
31, 32)

Allowed. (E-5)

List of Cases cited:

## Text

822 INDIAN LAW REPORTS ALLAHABAD SERIES
say, even more important, essential and
indispensable considerations...

xxx

63. In our considered opinion, on the facts and in
the circumstances of the case, both the courts were
duty-bound to consider the allegations against the
respondent herein and pendency of criminal case
for an offence punishable under Section 498-A
IPC. One of the matters which is required to be
considered by a court of law is the "character" of
the proposed guardian. In Kirtikumar, this Court,
almost in similar circumstances where the father
was facing the charge under Section 498-A IPC,
did not grant custody of two minor children to the
father and allowed them to remain with maternal
uncle.

64. Thus, a complaint against the father
alleging and attributing the death of mother, and a
case under Section 498-A IPC is indeed a relevant
factor and a court of law must address the said
circumstance while deciding the custody of the
minor in favour of such a person."

9. In an earlier decision in the case of
Kirtikumar
Maheshankar
Joshi
vs.
Pradipkumar Karunashanker Joshi2, where in
almost similar circumstances the father was facing
a charge under Section 498-A I.P.C., it was held
that though the father being a natural guardian, has
a preferential right to the custody of the children,
but in the facts and circumstances of the case, it
would not be in the interest of children to hand
over their custody to the father.

10. In a recent decision in Rachit Pandey
(minor) and another vs. State of U.P. and 3
others3 this Court after referring to the
authoritative pronouncements in the case of
Nithya Anand Raghvan vs. State (NCT of
Delhi) and another4, Sayed Saleemuddin vs.
Dr. Rukhsana and others5 and Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad Tewari
and others6, has held that in an application
seeking a writ of habeas corpus for custody of a
minor child, the principal consideration for the
Court would be to ascertain whether the custody of
the child can be said to be unlawful and illegal and
whether the welfare of the child requires that the
present custody should be changed and the child
should be handed over in the care and custody of
someone else other than in whose custody the
child presently is. It was held that the pregorative
writ of habeas corpus, is in the nature of
extraordinary remedy, which may not be used to
examine the question of custody of a child except
where in the circumstances of a particular case, it
can be held that the custody of the minor is illegal
or unlawful.

11. Learned Senior Counsel appearing for
the petitioners has not been able to point out as to
how, in the facts and circumstances of the present
case, the custody of the petitioner no. 2 with his
maternal grand- father can be said to be illegal or
unlawful so as to pursuade this Court to exercise
its extraordinary prerogative jurisdiction for
issuing a writ of habeas corpus. He has also not
disputed
that
any
rights
with
regard
to
guardianship or custody are to be agitated before
the appropriate forum.

12. The habeas corpus petition stands
dismissed accordingly.
----------
(2021)11ILR A822
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Habeas Corpus Writ Petition No. 11132 of 2021

Sonu @ Mohd. Ishtiyaq ...Petitioner
Versus
U.O.I.& Ors. ...Respondents
11 All. Sonu @ Mohd. Ishtiyaq Vs. U.O.I. & Ors.
823
Counsel for the Petitioner:
S. Malik-E- Ashtar Rizvi Anil Kumar Pandey

Counsel for the Respondents:
G.A., Asstt. Solicitor General, Chief Standing
Counsel

National Security Act, 1980 - Section 3(2) -
Constitution of India - Art. 22(5) - Detention
order
-delay
in
deciding
detenue's
representation against detention order - Held -
Any unexplained delay would be a breach of
constitutional imperative and it would render
the continued detention of the detenu illegal -
delay itself is not fatal, the delay which
remains unexplained becomes unreasonable -
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 - explanation offered must
be reasonable indicating that there was no
slackness or indifference (Para 31)

Unexplained delay of four days in deciding detenue's
representation on the part of the Central Government
which infringed his fundamental right envisaged
under Article 21 and 21(5) of the Constitution of India
- In the affidavit filed on behalf of Union of India the
delay on 19.06.2021 and 20.06.2021 has been
explained, but the affidavit is silent on the delay of
21.06.2021 to 24.06.2021 - Held - on account of
unexplained delay of four days on the part of Union of
India, the continuation of the preventive detention
sands vitiated - Order of detention, quashed. (Para
31, 32)

Allowed. (E-5)

List of Cases cited:

1. Rajammal Vs St.of T.N. & anr. (1991) 1 SCC 417

2. Mohinuddin @ Moin Master Vs D.M., Beed AIR
1987 SC 1977

3. Satyapriya Sonkar Vs Superintendent, Central Jail
2000 Cr.L.J. Allahabad (B.D.)

4. Kundanbhai Dulabhai Shaikh Vs Distt. Magistrate,
Ahmedabad 1996 (3) SCC 194

5. K.M. Abdulla Kunhi Vs U.O.I. (1991) 1 SCC 476

6. Harish Pahwa Vs St. of U.P. & ors. A.I.R. 1981 SC
1126

7. Abdul Nasar Adam Ismail Vs. St. of Mah. (2013) 4
SCC 435

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. The instant Habeas Corpus petition has
been filed under Article 226 of the Constitution
of India by the detenue/petitioner Sonu @
Mohd. Ishtiyaq through his next friend/mother
Shameem Bano to quash the impugned detention
order passed by the respondent No.3 i.e. District
Magistrate,
Barabanki
vide
No.01/J.A./Ra.Su.Ka./2021 dated 11.04.2021,
whereby the detention order has been passed
exercising the power under Section 3(2) of the
National Security Act, 1980 (in short 'NS Act')
and directing to retain the petitioner/detenue
under Section 3(2) of the NS Act as well as the
impugned order dated 22.04.2021 passed by the
respondent No.2, whereby the detention order
has been approved by the State Government.

2. The pre-judicial activities of the
petitioner/detenue necessitating the District
Magistrate, Barabanki to pass the impugned
detention order against him are detailed in
grounds of detention. The facts relating to
detention of the petitioner/detenue has been
described in the 'grounds of detention' followed
by detention order dated 11.04.2021 in short are
as under:-

One
Mr.
Mahendra
Singh,
Sub
Inspector, Police Station Ram Sanehi Ghat,
District
Barabanki
has
lodged
a
First
Information Report against 22 named persons
including the petitioner and about 150 unknown
persons on 20.03.2021 at about 8:00 P.M. which
was registered at Case Crime No.89 of 2021,
under Sections 147, 148, 149, 323, 504, 506,
307, 332, 333, 336, 352, 427, 34 & 188 of the
824 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Penal Code (in short I.P.C.) and Section 7
of Criminal Law Amendment Act and Case
Crime No.90 of 2011, under Section 3/25 of
Arms Act, both are relating to Police Station
Ram Sanehi Ghat, District Barabanki.

3. In the First Information Report it was
alleged that on 19.03.2021 the complainant
alongwith other police personnel were present at
the gate of Tehsil Ram Sanehi Ghat to maintain
law and order, the accused persons armed with
deadly weapons and making protest against the
policies of State Government and removal of
illegal encroachment made in Tehsil compound
tried to forcibly enter in Tehsil compound. When
the police personnel tried to restrain them, they
became aggressive and attacked upon the police
personnel by lathi, danda, bricks, stones and sharp
edged weapons. The accused persons assaulted the
police personnel with an intention to commit their
murder, hurled abuses and ripped their uniforms.
They also caused damages to the vehicles. The
extra police force was called only then the riot
could be controlled. It has also been alleged that
the police personnel caught hold 22 persons
including the petitioner at the spot by using
necessary
force.
From
the
possession
of
petitioner/detenue, a country made pistol of 12
bore and 2 live cartridges were recovered.

4. The impugned detention order dated
11.04.2021 depicts that the detention order was
passed to maintain public order and public peace.
In the grounds of detention it has also been
mentioned that the in-charge Inspector of Ram
Sanehi Ghat reported that in Tehsil Ram Sanehi
Ghat some people were living after constructing
the illegal houses on the Government land,
whereas on the above Government land bearing
Gata No. 776 and 777, which are adjacent to
offices and official residences of Deputy Collector
Ram Sanehi Ghat and Circle Officer were there.
The persons who are living illegally in an
unauthorized manner, have also constructed a
passage unauthorizedly, which was being used by
the persons of doubtfull category, causing danger
to the Government records and other properties
and also that the Government work was also being
disturbed. It was also found that on the
Government land some rooms were constructed
unauthorizedly and they were used for "Offering
Namaz". Tehsildar Ram Sanehi Ghat issued a
notice in this regard, but no reply was received
from the unauthorized occupants. Thereafter the
Tehsildar Administration got constructed the wall
and closed the unauthorized passage, but kept both
the legal passages open which were already in
existence. On 19.03.2021 after "Offering Namaz"
the petitioner and his companions reached the spot
armed with deadly weapons and they assaulted the
police force. Many police personnel got injured
and the public order got disturbed. The petitioner
was arrested at the spot along with many other coaccused persons, the country made pistol was
recovered form the possession of the petitioner in
connection of which a separate proceedings under
Section 25 of the Arms Act was registered.

5. In this matter the detention order was
passed
by
the
District
Magistrate,
Barabanki/Detaining Authority on 11.04.2021
on the basis of recommendation report of
Additional Superintendent of Police (South),
District
Barabanki
dated
09.04.2021,
recommendation report of Circle Officer, Ram
Sanehi
Ghat,
District
Barabanki
dated
09.04.2021 and recommendation report of
Incharge Inspector Police Station Ram Sanehi
Ghat District Barabanki dated 09.04.2021
alongwith the Dozier containing the papers,
related to the Case Crime No.89 of 2021, under
Sections 147, 148, 149, 323, 504, 506, 307, 332,
333, 336, 352, 427, 34 & 188 I.P.C.) and Section
7 of Criminal Law Amendment Act and Cases
Crime No.90 of 2011, under Section 3/25 of
Arms Act approved by the Superintendent of
Police, District Barabanki on 10.04.2021.

6. The impugned order dated 11.04.2021 as
well as other material on the basis of which the
11 All. Sonu @ Mohd. Ishtiyaq Vs. U.O.I. & Ors.
825
detaining
authority
drew
his
subjective
satisfaction was served on the detenue/petitioner
on the same day i.e. 11.04.2021.

7. The perusal of the grounds of detention
(annexure No.3) dated 11.04.2021 reveals that
apart from grounds recorded by the detaining
authority in clamping NSA on the detenue, the
detaining authority also informed to the detenue
about his right of making a representation to
detaining authority, State Government, Advisory
Board and Central Government. The detention
of the petitioner / detenue was confirmed by the
Advisory Board and thereafter the State
Government vide order dated 2/3.06.2021 had
extended the tentative period of detention w.e.f.
11.04.2021 for three months which was duly
communicated to the detenue.

8. Heard Mr. Anil Kumar Pandey, learned
counsel for the petitioner, Mr. S.P. Singh,
learned A.G.A. for the State and Mr. Varun
Pandey, learned counsel for the Union of India.

9. The petitioner/detenue challenged the
impugned orders on many grounds, but during
the arguments, the counsel for the petitioner
pressed it on the ground of delay alone on the
part of the State Government as well as the
Union of India.

10.

Learned
counsel
for
the
petitioner/detenue submitted that there was
undue delay in disposal of the representation of
the detenue/petitioner on the part of the Central
Government, Ministry of Home Affairs, New
Delhi
as
the
representation
of
the
petitioner/detenue dated 10.05.2021 has not been
decided by the Union of India so far. However,
the representation dated 18.05.2021 and that has
been decided by the concerned authority on
25.06.2021 after a delay of more than a month.
He further argued that no plausible explanation
of
delay
in
deciding
the
petitioner's
representation has been given in the affidavit
filed on behalf of the Union of India. The delay
committed by the Union of India and deciding
the
detenue/petitioner
representation
has
infringed fundamental rights of the detenue
envisaged under Article 21 and 21(5) of the
Constitution of India. On this count alone the
impugned orders are liable to be quashed.

11. Learned counsel for the petitioner to
support his arguments placed reliance on
Rajammal Vs. State of Tamil Nadu and
another : (1991) 1 SCC 417, Mohinuddin @
Moin Master Vs. District Magistrate, Beed :
AIR 1987 SC 1977, Satyapriya Sonkar Vs.
Superintendent, Central Jail : 2000 Cr.L.J.
Allahabad
(B.D.),
Kundanbhai
Dulabhai
Shaikh Vs. Distt. Magistrate, Ahmedabad :
1996 (3) SCC 194, K.M. Abdulla Kunhi Vs.
Union of India : (1991) 1 SCC 476 and Harish
Pahwa Vs. State of Uttar Pradesh and others
: A.I.R. 1981 SC 1126.

12. To the contrary, learned A.G.A.
appearing on behalf of the State/respondent Nos.
2 to 8 argued that the procedure provided under
the National Security Act has been followed
perfectly. The detenue/petitioner was served the
copy of the orders passed promptly. The State
Government approved the detention order well
within time as provided under Section 3(4) of
NS Act. The State Government forwarded the
copy of the detention order and other material to
the Central Government within the time
prescribed. He further submitted that the State
Government forwarded the detention order and
grounds of detention etc. to the U.P. Advisory
Board (detentions) Lucknow within time from
the date of actual detention as required under the
provisions of Section 10 of the NS Act. The
detenue/petitioner was heard in person through
video conferencing by the Advisory Board and
the Advisory Board sent its report alongwith
opinion that there is sufficient cause for issuing
the order of preventive detention to the
petitioner within time as provided under Section
826 INDIAN LAW REPORTS ALLAHABAD SERIES
11(1) of the NS Act. The detention order was
confirmed tentatively for three months from the
date of actual detention and the copy of the same
was served upon the detenue/petitioner.

13. He further submitted that the State
Government rejected the representation of the
petitioner without any delay and forwarded the
representation of the petitioner to the Central
Government along with parawise comments
expeditiously within time. Hence the petition
should be dismissed.

14. Mr. Varun Pandey, learned counsel for
the Union of India -respondent No.1 has
submitted that the representation of the
detenue/petitioner was considered and rejected
expeditiously without any unreasonable delay.

15. Considered the submissions of all the
parties and gone through the impugned orders as
well as material brought on record.

16. The counter affidavit dated 17.06.2021
filed by the District Magistrate, Barabanki in
which, it has been stated that petitioner was
instrumental in hatching the conspiracy as a
consequence of which during the course of
investigation under Section 120-B of I.P.C. has
been added to the list of offences. The petitioner
has been granted bail by the concerned Court.
However to restrain the petitioner from creating
trouble which may result in collapse of public
order, proceedings under National Security Act
had been invoked.

17. The detention order dated 11.04.2021
was approved by the State Government on
22.04.2021. The petitioner has stated in the writ
petition that due to Covid-19 Pandemic the
petitioner could not gave a representation
against the aforesaid detention order dated
11.04.2021 within the prescribed time limit and
he could gave his representation under Section 8
of
National
Security
Act
through
the
Superintendent of Jail District Barabanki to the
Union of India, State Government and District
Magistrate, Barabanki on 10.05.2021 that is why
the respondent No.2 approved the illegal
detention order dated 11.04.2021 vide impugned
order 22.04.2021.

18. The Detaining Authority/ District
Magistrate, Barabanki in the counter affidavit
has denied this contention and submitted that
necessary services were in operation during the
Covid-19 period. Therefore, the plea of the
petitioner
is
that
he
could
not
make
representation
within
time
is
totally
misconceived.

19. However, this reply of the detaining
authority is not convincing because it is an open
truth that in the month of April and May the
Covid-19 pandemic was on its peak in the State
of U.P., and in such circumstances to expect
from a person detained in jail or from his
relative/next friend to file a representation is
beyond imagination.

20. Learned counsel for the petitioner
during the argument submitted that he wants to
press this writ petition mainly on the point of
delay in the disposal of the representation of the
petitioner.

21. The fact is that detention order was
passed on 11.04.2021, the petitioner could not
file representation against the same due to
Covid-19 Pandemic as has been written by him
in his petition and the detention order was
approved
by
the
State
Government
on
22.04.2021.

22. In the affidavit filed by the Detaining
Authority/District Magistrate dated 17.06.2021 it
has been stated that the sponsoring agency has
filed a comprehensive police report and brought on
record ample material which was sufficient for
invocation of the National Security Act. In the
11 All. Sonu @ Mohd. Ishtiyaq Vs. U.O.I. & Ors.
827
affidavit filed by the jailer District Jail, Barabanki
it has been mentioned that detenue has been
confined in the district jail, Sultanpur in Case
Crime No.89 of 2021, under Sections 147, 148,
149, 323, 504, 506, 307, 332, 333, 336, 427, 34 &
188 of the Indian Penal Code (in short I.P.C.) and
Section 7 of Criminal Law Amendment Act and
Cases Crime No.90 of 2011, under Section 3/25 of
the Arms Act, both are relating to Police Station
Ram Sanehi Ghat, District Barabanki under order
of learned Judicial Magistrate, Court No.27 w.e.f.
20.03.2021. The detention order dated 11.04.2021
alongwith all documents was served upon the
detenue on 11.04.2021 and report was duly sent to
the District Magistrate on the same day. On
22.04.2021 vide radiogram the State Government
had approved the detention order and same was
received on 22.04.2021 which was served upon the
detenue on the same day and a information to this
effect was also sent to the State Government on the
same
day.
The
Government
Order
dated
22.04.2021 by means of which the State
Government had approved the detention order of
the detenue had been received in jail on 04.5.2021
and the same was served upon him on the same
day. The District Jail had received letter dated
17.05.2021 sent by the Advisory Board through
State Government in which the date of proceedings
before the same i.e. 20.05.2021 was informed. The
letter dated 17.05.2021 was received to the jailor
on the same day, which was served upon the
detenue on the same day and detenue was
produced before the Advisory Board through video
conferencing on 20.05.2021 at 11:00 A.M.. The
State Government vide order dated 03.06.2021
extended the detention order tentatively for three
months which was received on 03.06.2021 and the
same was served upon detenue on the same day.
There was no laxity on the part of the jail
authorities and the orders passed by the Competent
Authority in context of detention.

23. In the affidavit filed by the Joint
Secretary to Government of U.P. Home
(Confidential)
Department
of
U.P.
Civil
Secretariat, Lucknow, in this regard it has been
stated that the detention order dated 11.04.2021,
grounds for detention and all other connected
documents forwarded by the District Magistrate,
Barabanki vide its letter dated 11.04.2021 was
received
by
the
State
Government
on
13.04.2021. The State Government approved
order of detention on 20.04.2021. The approval
of the detention order was communicated to the
petitioner through the District Authorities by the
State Government through radiogram and letter
both, dated 22.04.2021, which was within 12
days as required under Section 3(4) of the
National Security Act.

24. It has further been stated that a copy of
detention order, grounds of detention and all
other connected documents received from the
District Magistrate, Barabanki were also sent to
the Central Government by speed post within
seven days from the date of approval by the
State Government as required under Section 3(5)
of the National Security Act. Hence the
provisions of Section 3(4), 3(5) of the National
Security Act has been fully complied with. The
petitioner appeared for personal hearing before
the U.P. Advisory Board on the date fixed i.e.
20.05.2021. The U.P. Advisory Board heard the
petitioner in person and submitted its report to
the State Government that there is sufficient
cause for the preventive detention of the
petitioner under the National Security Act, 1980.
This report was received in the concerned
Section of the State Government on 29.05.2021
through the letter of Registrar, U.P. Advisory
Board (detentions) letter dated 25.05.2021, well
within seven weeks from the date of detention of
the petitioner as provided under Section 11(1) of
the National Security Act. It has further been
stated that after receiving the report, the State
Government once again examined afresh the
entire case of the petitioner alongwith the
opinion of the U.P. Advisory Board and took a
decision to confirm the detention order and also
for keeping the petitioner under detention for a
828 INDIAN LAW REPORTS ALLAHABAD SERIES
period of three months at first instance from the
date of actual detention of the petitioner i.e.
since 11.04.2021. The copy of the petitioner's
representation dated 18.05.2021 along with
parawise comments was received in the
concerned section of the State Government on
14.06.2021 along with letter of District
Magistrate, Barabanki dated 10.06.2021. The
State
Government
sent
copy
of
the
representation and parawise comments there on,
to the Central Government, New Delhi vide its
letter
dated
14.06.2021.
Thereafter
the
concerned Section i.e. Home (Gopan) Anubhag
(6) of the State Government examined the
representation on 15.06.2021.

25. It has further been stated that Joint
Secretary examined the representation on
16.06.2021, the Special Secretary examined
the
representation
on
16.06.2021,
the
Secretary Government of U.P. examined the
said
representation
on
17.06.2021,
the
Additional Chief Secretary Government of
U.P.,
Lucknow
examined
the
said
representation on 17.06.2021. Thereafter file
was submitted to the Higher Authorities for
orders of the State Government. After due
consideration the said representation was
finally rejected by the State Government on
18.06.2021.
The
dates
19.06.2021
and
20.06.2021 were holidays on account of
Saturday and Sunday. The information of
rejection of representation was communicated
to the petitioner through District Authorities,
by the State Government radiogram dated
21.06.2021.
The
representation
of
the
petitioner has been dealt with expeditiously at
every stage.

26. Above facts shows that there was no
delay on the part of the State Government.

27. Now comes the counter affidavit
filed on behalf of Union of India i.e. an
affidavit of Mrs. Meena Sharma, under
Secretary in the Ministry of Home Affairs,
Government of India, New Delhi. In her
affidavit in this regard it has been stated that
representation dated 10.05.2021 of the detenue
or on his behalf has not been received in
Section so far. However, the copy of the
representation dated 18.05.2021 submitted by
the Shameem Bano on behalf of her son Sonu
@ Mohd. Ishtiyaq was received in the
concerned section of the Ministry of Home
Affairs on 18.05.2021. Accordingly, wireless
message No. II/15028/63/2021-NSA dated
31.05.2021 was sent to the authorities
concerned for seeking parawise comments of
the detaining authority. Thereafter the District
Magistrate,
Barabanki
vide
letter
dated
10.06.2021 sent a copy of parawise comments
to the detaining authority and was was
received in Section concerned of the Ministry
of
Home
Affairs
on
18.06.2021.
The
representation dated 18.05.2021 on behalf of
the detenue along the parawise comments of
the detaining authority was processed for
consideration for Union of India, Home
Secretary on 18.06.2021. Being aware of the
effect and sensitivity of detention under the
National Security Act and as per practice in
vogue the representation was duly considered
at various levels to ascertain the merit.
Thereafter the Union Home Secretary having
carefully gone through the material on record,
including the order of detention, the grounds
of detention, the representation of the detenue,
parawise comments of the detaining authority
thereon concluded that the detenue had failed
to bring forth any material, cause shown in his
representation to justify the revocation of the
order by exercise of the powers of the Central
Government under Section 14 of the National
Security Act, 1980. He, therefore, rejected the
representation and the detenue was informed
vide wireless message II/15028/63/2021-NSA
dated 25.06.2021. During the intervening
period i.e. 19th and 20th June 2021 were
holiday being Saturday and Sunday. It has
11 All. Sonu @ Mohd. Ishtiyaq Vs. U.O.I. & Ors.
829
further been submitted that representation was
examined with utmost care and caution with
promptitude.

28. In the Case of Rajammal Vs. State of
Tamil Nadu and another : (1999) 1 SCC 417
the Hon'ble Apex Court in this regard has held
as under:-

"9. The position, therefore, now is that
if delay was caused on account of any
indifference or lapse in considering the
representation, such delay will adversely affect
further detention of the prisoner. In other words,
it is for the authority concerned to explain the
delay, if any, in disposing of the representation.
It is not enough to say that the delay was very
short. Even longer delay can as well be
explained. So the test is not the duration or
range of delay, but how it is explained by the
authority concerned."

29. In the case of Harish Pahwa v. State
of U.P. : AIR 1981 SC 1126, the Apex Court in
this regard held that :-

"In our opinion, the manner in which
the representation made by the appellant has
been dealt with reveals a sorry state of affairs in
the matter of consideration of representation
made by persons detained without trial. There is
no explanation at all as to why no action was
taken in reference to the representation on 4th ,
5th and 25th of June, 1980. It is also not clear
what
consideration
was
given
by
the
Government to the representation from 13th
June 1980 to 16th June 1980 when we find that
it culminated only in a reference to the Law
Department nor it is apparent why the Law
Department had to be consulted at all. Again,
we fail to understand why the representation
had to travel from table to table for six days
before reaching the Chief Minister who was the
only authority to decide the representation. We
may make it clear, as we have done on
numerous earlier occasions, that this Court does
not look with equanimity upon such delays when
the liberty of a person is concerned. Calling
comments from other departments, seeking the
opinion of Secretary after Secretary and
allowing the representation to lie without being
attended to is not the type of action which the
State is expected to take in a matter of such vital
import. We would emphasis that it is the duty of
the
State
to
proceed
to
determine
representations
of
the
character
above
mentioned with the utmost expedition, which
means that the matter must be taken up for
consideration as soon as such a representation
is received and dealt with continuously (unless it
is absolutely necessary to wait for some
assistance in connection with it) until a final
decision is taken and communicated to the
detenu. This not having been done in the present
case we have no option but to declare the
detention
unconstitutional.
We
order
accordingly, allow the appeal and direct that the
appellant be set at liberty forthwith.

Appeal allowed."

30. In the affidavit filed on behalf of Union
of India the delay on 19.06.2021 and 20.06.2021
has been explained, but the affidavit is silent on
the delay of 21.06.2021 to 24.06.2021. Thus
delay of four days has not been explained.

31. Thus on account of unexplained delay
of four days on the part of Union of India, the
continuation of the preventive detention sands
vitiated. In Abdul Nasar Adam Ismail Vs. State
of Maharashtra (2013) 4 SCC 435 the Apex
Court in this regard held that:-

"16.
........Article
22(5)
of
the
Constitution casts a legal obligation on the
Government
to
consider
the
detenu's
representation as early as possible. Though no
time limit is prescribed for disposal of the
representation, the constitutional imperative is
830 INDIAN LAW REPORTS ALLAHABAD SERIES
that it must be disposed of as soon as possible.
There should be no supine indifference,
slackness or callous attitude. Any unexplained
delay would be a breach of constitutional
imperative and it would render the continued
detention of the detenu illegal. That does not,
however, mean that every day's delay in dealing
with the representation of the detenu has to be
explained. The explanation offered must be
reasonable indicating that there was no
slackness or indifference. Though the delay itself
is
not
fatal,
the
delay
which
remains
unexplained becomes unreasonable. The court
can certainly consider whether the delay was
occasioned due to permissible reasons or
unavoidable causes. 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 the range of delay, but how it is
explained by the authority concerned. If the inter
departmental consultative procedures are such
that the delay becomes
inevitable, such
procedures will contravene the constitutional
mandate. Any authority obliged to make order of
detention should adopt procedure calculated
towards
expeditious
consideration
of
the
representation. The representation must be
taken up for consideration as soon as such
representation is received and dealt with
continuously (unless it is absolutely necessary to
wait for some assistance in connection with it)
until a final decision is taken and communicated
to the detenu."

32. In light of the aforesaid discussion, we
allow
this
Habeas
Corpus petition.
The
impugned
order
dated
11.04.2021
and
22.04.2021 and other consequential orders are
hereby quashed. The petitioner shall be set at
liberty forthwith unless required in any other
case.

33. For the facts and circumstances of the
case, there is no order as to costs.
----------
(2021)11ILR A830
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.10.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Habeas Corpus Writ Petition No. 14986 of 2021

Smt. Suneeta ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Bhoopal Singh

Counsel for the Respondents:
G.A., Anand Kumar, Y.P. Singh

Constitution of India, Art.226 - Writ of Habeas
Corpus - Illegal detention - Habeas Corpus writ
petition filed by husband (Ram Mitra) for
direction to the opposite parties (parents of
detenue) to set free his wife (detenue) -
alleged detenue was 17 years' old at the time
of her marriage - alleged detenue when
produced before Court stated she is not legally
wedded & expressed her unwillingness to go
with the alleged next friend (Ram Mitra) rather
wants to reside with her parents in the
parental house - Held - alleged detenue was 17
years' old at the time of her marriage and by
reason of her minority, she was neither in
capacity of giving her consent for marriage nor
her wish to go with the petitioner - Detenue
when produced before the Court attained
majority but she does not ratify the alleged
marriage - Held - writ of Habeas Corpus in said
circumstances cannot be issued.

Dismissed. (E-5)

Cases Relied on :

1. Lata Singh Vs St. of U.P. & ors. AIR 2006 SC 2522

(Delivered by Hon'ble Vikas Kunvar Srivastav,
J.)