Vinod Sheo Hare vs State of U.P.& Ors.

I.P. Singh, J.—Vinod Shiv Hare, petitioner (hereinafter referred to as the detenu) has preferred this writ petition under Article 226 of the Constitution of India to challenge the validity of detention order dated 2781984 passed by the District Magistrate, Agra (hereinafter referred to as the detaining authority) under Section 3(2) of the National Security Act No. 65 of 1980 (hereinafter referred to as the Act) a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.

After hearing the learned counsel for both the sides, we feel that it is not necessary to refer to all the facts mentioned and points raised in the writ petition and consider them in detail because, in out opinion, this writ petition can be disposed of on two short points discussed hereinafter.

Learned counsel for the detenu has pointed that in paragraph 11 of the petition it is alleged that the State Government never reported the matter to the Central Government together with the grounds and order of detention and also did not send the opinion of the State Government bearing the necessity for passing the order of detention under the Act and thereby subsection (5) of Section 3 of the Act was not complied with and it rendered the detention order illegal.

Learned counsel for the detenu has referred to the counteraffidavit filed by Sri Istafa Hussain, Upper Division Assistant, Confidential Section VIII, U. P. Secretariat, Lucknow, U. P. filed on behalf of the State Government, where, in paragraph 4 in reply to above para 11 it is stated that the law does not contemplate any action by the Union of India on the representation of the petitioner and as such the question of Union Government communicating any such matter does not arise at all.

In the said paragraph 4 of the counter affidavit, reference has been made to the ''representation'' of the petitioner which was one of the subjectmatters of paragraph 11 of the writ petition, The other contention raised in paragraph 11 of the writ petition as already referred to earlier was not controverter by the State Government. It follows there from that the State Government did not report the fact of approval of the detention order to the Central Government as envisaged by Section 315) of the Act. This noncompliance renders the detention order invalid.

Learned counsel for the detenu has next pointed out that in paragraph 14 of the petition, it is alleged that under the authority of the detenu his father Sri Panna Lal Shiv Hare had handed over the representation on behalf of the detenu to the Chief Minister of the State of U. P. personally and said representation was not disposed of and nothing was communicated to the detenu. Further it is mentioned that when the detenu had appeared before the Advisory Board on 23111984, he had enquired about the said representation from the Advisory Board but was informed that the Board had not received any such representation. It follows that the said representation was presented to the Hon''ble the Chief Minister on some date prior to 23H1984. However, in the counteraffidavit of Sri Istifa Hussain in paragraph 7 which is in rebuttal of the allegations contained in paragraph 14 of the writ petition, there is no reference to this representation. Any how, there is reference to another representation of the detenu dated 3121984 which is said to have been received consideration in the section concerned of the State Government on various dates such as 14 121984, 15121984 and 211284 at different levels and thereafter it is stated that the said representation was rejected by the State Government on 1511985. Learned counsel for the detenu has argued that there remained unexplained delay in the matter of disposal of the said representation also. At least there is no effort to explain how the said representation was dealt with between 21121984 and 1511985. Obviously, in the absence of any explanation, the inescapable conclusion is that the said representation was not expeditiously disposed of and there was much delay on the point. This delay in the disposal of the said representation also renders the detention order and continued detention there under invalid.

As a result of the above discussion, we allow the writ petition and direct the respondents not to detain the detenu, namely, Vinod Shiv Hare, any more in pursuance of the impugned order dated 2781984 passed by the District Magistrate, Agra.

We make it clear that the order which we have passed today will not entitle the detenu to his physical release, if he is wanted in any other matter or can be lawfully detained in pursuance of any other lawful order.