Ashok Kumar vs State of U.P. and Others

Vinod Prasad and Y.C. Gupta, JJ.—District Magistrate Kaushambi detained the Petitioner Ashok Kumar on 29.5.2008 under the National Security Act vide Annexure-4 to this petition and directed him to be detained in Central Jail Naini, Allahabad as an ordinary prisoner, the legality of which detention order has been questioned in this habeas corpus writ petition.

Grounds of detention, which was served to the detenu-Petitioner alongwith detention order, indicate that on 30th April, 2008 in between 9.30-11.30 a.m. Petitioner alongwith other persons assaulted Sub-Inspector Dinesh Chaturvedi on National Highway No. 2, between Allahabad-Manjhanpur-Kaushambi and blocked the high way by forming an unlawful assembly and thereby disturbed the even tempo of public life. Members of unlawful assembly also torched Truck No. UP70A-1826. It is further noted that they assaulted the police personnels as well, as a result of which cane charging was resorted to and additional police force was deployed for maintenance of law and order and public order.

Sri Tarun Agrawal, learned Counsel assisted by Sri Pratik J. Nagar were heard in support of this habeas corpus writ petition. Sri D.R. Chaudhary learned Government Advocate on behalf of the Respondent Nos. 1, 4 and 5 and Sri Mansoor, learned Counsel for the Respondent No. 7.

Sri Agrawal started the argument by pleading before us that the Petitioner was in Jail on the date of which the detention order was passed and, in fact, the detention power has been utilized for malicious and oblique purposes and hence it is an exercise in vindictiveness . Learned Counsel submitted that power u/s 3 of the National Security Act cannot be utilized maliciously to detain any person if he can be dealt with in accordance with ordinary criminal law. Learned Counsel further submitted that bail of the accused could have been opposed or could have been got cancelled but National Security Act should not have been clamped. However, after going through the detention order, learned Counsel for the Petitioner conceded this submission to be unworthy of merit.

The next ground to challenge the detention order urged before us is worthy to be accepted. Sri Agrawal contended that according to the counter-affidavit filed by the Detaining Authority, Respondent No. 5, vide para-7, he received detenu''s representation on 11.6.2008 and he asked for comments from the sponsors, which was submitted to him on 19.6.2008. Sri Agrawal contented that there is absolutely no explanation offered by the sponsoring authority for not sending the comments to the Detaining Authority with promptitude. Sri Agrawal further pointed out that, after Detaining Authority received the comments on 19.6.2008, he intentionally and consciously prepared the comments on 28.6.2008 after a delay of 8 days and thereafter rejected the representation on 18.8.2008 an inordinate delay of more than one and half months which delay also remains unexplained. Sri Agrawal submitted that for the aforesaid two reasons, the detention order of the detenu-Petitioner cannot be sustained and is liable to be set aside.

Learned A.G.A. fairly conceded before us that he cannot explain the occasioned delay nor can he refute the argument raised by learned Counsel for the Petitioner and has no explanation to offer for the same.

In view of the above, we are of the view that detention order of the detenu-Petitioner vide Anneuxre-4 cannot be sustained.

This habeas corpus petition deserves to be allowed and we hereby allowed it.

Detention order of the Petitioner-detenu, Annexure-4 dated 29.5.2008, passed by the District Magistrate, Kaushambi, Respondent No. 5 is hereby set aside and we direct the Petitioner to be set at liberty forthwith unless and until he is wanted in another case and is incarcerated under legal orders. Habeas corpus writ petition is allowed.