Nandu alias Nand Kishore vs Union of India and Others

Heard Sri S.N. Yadav, learned counsel for the petitioner, Sri Sudhir Mehrotra, learned A.G.A. for the State of U.P. and Sri Ishant Shishu, appearing on behalf of the Union of India. This habeas corpus writ petition has been filed by the petitioner Nandu alias Nand Kishore with a prayer to:--

1) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.2.2012 passed by the respondent No. 3 and order dated 09.04.2012 passed by the respondent No. 2 (Annexure No. 1 and 6 to this writ petition).

2) issue a Habeas corpus writ order or direction in the nature of mandamus directing the respondents to release the petitioner forthwith from detention u/S. 3(2) of National Security Act.

3) issue any other Habeas corpus petition which this Hon''ble Court may deem fit and proper in the circumstances of the case.

4) award the cost of the petition to the petitioners.

The facts in brief of this case are that the District Magistrate, Firozabad passed the order dated 25.2.2012 in exercise of power conferred u/s 3(3) of the National Security Act (hereinafter referred to as the NSA) by directing the petitioner to be detained as ordinary prisoner in district jail Firozabad u/s 3(2) of the NSA, copy of the impugned order dated 25.2.2012, its grounds and all other connected papers were served upon the petitioner on the same day in jail through the Superintendent of Jail, Firozabad, a copy of the order dated 25.2.2012, grounds of detention and other connected papers were forwarded by the District Magistrate Firozabad to the State Government vide letter dated 25.2.2012, the same was received in the concerned section of the office of the State Government on 28.2.2012, the State Government after examining the matter approved the order of detention on 2.3.2012, the order of approval was communicated to the petitioner through the District Authority by sending the radiogram and the letter both dated 5.3.2012, copy of the detention order, grounds of detention and other connected papers received from the District Magistrate, Firozabad were sent to the Central Government by the speed post on 6.3.2012, the case of the petitioner was referred by the State Government to the Advisory Board by forwarding the copy of the detention order, grounds of detention and other connected papers on 5.3.2012. The petitioner submitted his representation dated 5.3.2012 to the Superintendent of Jail Firozabad, which was sent to the District Magistrate, Firozabad on the same day i.e. 5.3.2012. The representation dated 5.3.2012 was rejected by the District Magistrate Firozabad on 5.3.2012, copy of the order dated 5.3.2012, was received by the Superintendent District Jail Firozabad on the same day, and it was served upon the petitioner on 5.3.2012. The District Magistrate, Firozabad forwarded the copy of the representation dated 5.3.2012 along with the parawise comments to the State Government vide its letter dated 5.3.2012, which was received in the concerned section of the office of the State Government on 6.3.2012, the copy of the representation along with the parawise comments was sent to the U.P. Advisory Board and Central Government vide its separate letter dated 9.3.2012, thereafter, the State Government examined the representation of the petitioner and it was rejected on 14.3.2012, copy of the order dated 14.3.2012 was communicated to the petitioner through the District Authorities by sending the radiogram dated 16.3.2012, the same was received by the Jail authority on 17.3.2012 and it was communicated to the petitioner on 17.3.2012, the Advisory Board by its letter dated 14.3.2012 informed the State Government that the petition will be taken up for hearing on 19.3.2012 and directed that the petitioner be informed that if he desires to attend the hearing before the Advisory Board along with his next friend (non advocate) he could do so and be allowed to take his next friend along with him, if he so requested, this fact was communicated to the petitioner through the district authority by the State Government by radiogram dated 14.3.2012. The petitioner appeared for hearing before the Advisory Board on 19.3.2012, the Board on that date heard the petitioner in person, considered his representation and gave its report expressing therein its opinion that there was sufficient cause for detaining the petitioner. This report and the record of the case was received in the concerned section of the State Government on 3.4.2012 sent by the registrar vide letter dated 3.4.2012, on receipt of the report of the Advisory Board, the State Government once again examined afresh the entire case of the petitioner along with the opinion of the Advisory Board and took decision to confirm the detention order and also for keeping the petitioner under detention for a period of 12 months on 9.4.2012. The order dated 9.4.2012 was communicated by the State Government to the petitioner through radiogram and letter both dated 9.4.2012. The radiogram was received in district jail Firozabad on 10.4.2012 on the same day, it was communicated to the petitioner. The letter sent by the Government in this regard was received in District Jail Firozabad on 12.4.2012 on the same day, it was served upon the petitioner.

The representation dated 5.3.2012 and parawise comments were forwarded to the Central Government in the Ministry of Home Affairs by the State Government through letter dated 5.3.2012 the same was received in the concerned section of the Ministry of Home Affairs on 7.3.2012. The representation was put up for consideration before the Union Home Secretary (who has been delegated with powers by the Central Government to decide such cases) on 19.3.2012. The Union Home Secretary rejected the representation of the petitioner on 20.3.2012 and sent the file back to the Joint Secretary which was received in the section of the office of the Joint Secretary on 22.3.2012, accordingly the wireless message dated 22.3.2012 was sent to Home Secretary, U.P. Lucknow, Superintendent District Jail, Firozabad, District Magistrate, Firozabad and the detenu informing that the representation of the petitioner was considered and rejected by the Central Government. A copy of this wireless message was also sent on 23.3.2012 by post to detenu through Superintendent District Jail, Firozabad. Its information was received at District Jail, Firozabad on 24.3.2012 and on the same day it was communicated to the petitioner.

It is submitted by counsel for the petitioner that the detention of the petitioner is illegal on the following grounds:--

A. Because, the action of the District Magistrate in imposing the National Security Act upon the petitioner is wholly arbitrary, baseless and against the provision of the law as he is peace loving person of the vicinity, hence same is liable to be struck down in the interest of justice.

B. Because, the impugned order is wholly (sic) as well as contrary to the provisions of national Security Act, hence the same is liable to be quashed.

C. Because, the allegations contained in the report relying upon which National Security Act has been imposed against the petitioner is wholly baseless and as a matter of the fact only one case has been registered against the petitioner against which bail application is pending before the Court.

D. Because, the respondent No. 2 while rejecting the representation of the petitioner has not properly appraised the facts of the representation which is wholly arbitrary and illegal.

E. Because, the police of P.S. Uttar Pradesh is annoyed with the petitioner as the petitioner has not provided illegal gratitude as per demand therefore the police has referred the report against the petitioner by arranging certain persons from whom the letters has been obtained and report has been submitted against the petitioner with a view to cook up grounds to incorporate National Security Act against the petitioner which reveals that the petitioner has been falsely implicated in the National Security Act by relying upon the fabricated and baseless grounds, hence detention of the petitioner under National Security Act can not said to be justified for a moment.

F. Because, the respondent has misused its power incorporating the National Security Act against the petitioner without going to the root of the preamble i.e. object and framing National Security Act, hence incorporation of the National Security Act against the petitioner is wholly unwarranted in the eye of law and is contrary to the provision of National Security Act.

G. Because, the petitioner is peace loving having a very good reputation in the society and managing the livelihood of his life by doing job.

H. Because, framing National Security Act against the petitioner is to maintain the law and order and perusal of the entire record referred to above reveals that no case crime has been registered against the petitioner through which the public or law order can be set to be disturbed, hence incorporation of National Security Act against the petitioner is wholly unwarranted in the eye of law.

It is further submitted by counsel for the petitioner that the grounds of the detention are based on correct facts. In ground No. 3 it has been mentioned that the petitioner along with his associates were arrested from the petitioner''s house and from their possession the kidnapped boy Ishan was recovered and at the time of the arrest from the possession of the petitioner unauthorised country made pistol was recovered, whereas the recovery memo shows that the petitioner was not arrested from his house, he was arrested from the house of co-accused Mukesh Baghel and from the possession of the petitioner one knife was recovered. No country made pistol was recovered from the possession of the petitioner. It shows that the impugned detention order has been passed on wrong facts. The detaining authority did not apply his mind even did not try to verify the correctness of this fact from its recovery memo, it shows that on the basis of papers sent by sponsoring authority, the District Magistrate Firozabad without applying his mind passed the impugned order in a causal manner.

It is also submitted by counsel for the petitioner that the continuation of detention of the petitioner is illegal because the Central Government has not explained the delay in deciding the representation, as according to the affidavit filed on behalf of Union of India, the representation of the petitioner along with comments was received in the Ministry of Home Affairs on 7.3.2012 but it was put before Home Secretary on 19.3.2012, after receiving the representation of the petitioner in the Ministry of Home Affairs it was lying their for about 12 days. The explanation given by the Ministry of Home Affairs that on 10.3.2012, 11.3.2012, 17.3.2012 and 18.3.2012 were holidays, 8.3.2012 was Gazetted Holiday on account of Holi festival, even then no proper explanation on day to day basis with regard to delay in putting the representation before the Home Secretary has been given. It makes the detention of the petitioner illegal.

In reply of the above contention, it is submitted by learned A.G.A. that it is a case in which 6 years'' boy, namely Ishan was kidnapped on 12.4.2011 at about 6.30 P.M., its missing report was lodged on 13.4.2011 at 10.30 A.M., the demand of Rs. 20 lakhs as ransom was made, the kidnapped boy was recovered from the custody of the petitioner and his associates. The petitioner and his four associates were apprehended by police. At the time of recovery of kidnapped boy, country made pistols were recovered from co-accused Mukesh Baghel and Dharmendra and a knife was recovered from the possession of the petitioner. Its reference has been given in the grounds of detention. The District Magistrate has not committed any error in passing the detention order, subsequent orders have also been passed in accordance with the provisions of NSA. The State Government has not committed any error in approving and confirming the detention order, the representation has been duly considered and it was rejected well within time by the State Government, no illegality has been committed at the stage of consideration of the matter before the Advisory Board. The District Magistrate has also not committed any error in expressing the opinion. The petitioner was duly informed the orders which have been passed by authority concerned. The impugned order of detention has been passed by the District Magistrate with his full satisfaction. The impugned order is not illegal. The subsequent orders passed by the authority concerned also do not make the detention of the petitioner illegal.

It is submitted by Sri Ishan Shishu, learned counsel, appearing on behalf of Union of India that the representation of the petitioner has been rejected by Home Secretary after considering all the facts and circumstances and there is no undue delay in deciding the representation. The representation of the petitioner was rejected by Home Secretary on 20.3.2012, it was received in the office of Ministry of Home Affairs on 7.3.2012 thereafter the representation and the report as envisaged u/s 3 /5 of NSA were processed upto 19.3.2012, on the same day it was put up before Home Secretary, during this period from 7th to 19th March, 2012, 10th, 11th, 17th and 18th March were weekly holidays and 8th March 2012 was gazetted holiday on account of Holi festival, the representation of the petitioner was properly considered by the competent authority and it was rejected on 20.3.2012. There is no undue delay in deciding the representation of the petitioner.

It is submitted by the learned A.G.A. and Sri Ishan Shishu appearing on behalf of the Union of India that the impugned detention order and subsequent detention of the petitioner is not illegal, the present petition is devoid of merits, the same may be dismissed.

Considering the facts, circumstances of the case, submission made by the learned counsel for the petitioner, learned A.G.A. and the learned counsel appearing on behalf of the Union of India, and from the perusal of the record it appears that in the present case, impugned order dated 25.2.2012 has been passed by the District Magistrate, Firozabad in exercise of the power conferred u/s 3(2) of the NSA and the petitioner has been detained as an ordinary prisoner in district jail Firozabad u/s 3(2) of NSA the grounds of detention have also been supplied to the petitioner along with the copy of the detention order as well as other connected papers, the ground No. 3 were read as under:

(Vernacular matter omitted.... Ed.)

According to ground No. 3 the petitioner was arrested on 28.4.2011 at 10.45 p.m. from his house along with his associates. The recovery of the kidnapped boy has been shown from his possession. At the time of his arrest recovery of the country made pistol has been shown but according to the recovery memo which has been forwarded to the District Magistrate along with the connected papers, the petitioner was not arrested from his house, he was arrested from the house of the co-accused Mukesh on 28.4.2011, at 10.45 p.m. and from the possession of the petitioner, the recovery of knife has been shown. From the possession of the petitioner, no country made pistol was recovered, it is shown that ground No. 3 is not based on correct fact of the case, it is contrary to the material forwarded to the detaining authority, which shows that the detaining authority (District Magistrate Firozabad) has not applied his mind, even he had not gone through the contents of the documents forwarded to him by the sponsoring authority, which makes the impugned order illegal. So far as the delay in deciding the representation on the part of the central Government is concerned, affidavits filed by Sri Ashish V. Gawai, under secretary, Ministry of Home Affairs, Government of India, shows that the representation of the petitioner and the report as envisaged u/s 3(5) of the NSA made by the Government of U.P. to the central Government was received in the concerned section of the Ministry of the Home Affairs on 7.3.2012. It is also surprising that in paragraph 3 of the affidavit dated 6.9.2012 two dates of receiving the representation have been mentioned, at one place the date of receiving is mentioned as 7.3.2012 and another place this date is mentioned as 14.3.2012 in the same paragraph, it has been mentioned that during the period 7th to 9th March, 2012, some dates of holiday have been mentioned but in the additional counter-affidavit filed by the same authority the date of receiving the representation has again been mentioned as 14.3.2012 but in the short instruction/counter-affidavit filed on behalf of respondent No. 1 dated 3.9.2012 also the same controversy is involved. The representation was received in the concerned section of the Ministry of Home affairs on 7.3.2012, it was put before the Home Secretary on 19.3.2012. The delay has been explained by submitting that 8th March, was holiday on account of Holi festival, 10th March, and 11th March, 17th March and 18th March, 2012 were also the holidays. The explanation submitted by the authority concerned is not proper because day to day delay has not been explained. The representation was lying in the Ministry of Home Affairs unattended, the delay has not been properly explained, there is no justifiable ground for promoting the violation of fundamental rights and personal liberty of a citizen guaranteed under Article 21 of the Constitution of India. The delay in disposal of the representation of the petitioner by the Central Government has not been adequately and reasonably explained.

We have considered the allegations made against the petitioner which are serious in nature, when it is decided to prevent/detain a person by depriving him of his right of personal freedom, due process of law has to be observed, the manner in which the representation of the petitioner remained pending before the Central Government for a long period, is shocking to the conscious of the Court, which makes the continued detention of the petitioner illegal.

In view of the above discussion, the impugned order of detention dated 25.2.2012 passed by the District Magistrate, Firozabad and continued detention of the petitioner is hereby quashed. The petitioner shall be released forthwith in the present case, unless wanted in connection with any other case.

Accordingly this petition is allowed. Let a copy of this order be communicated to the Superintendent District Jail Firozabad through the District Magistrate by fax today.