- (1.) A Division Bench of this Court noticed a conflict of opinion in the judgments of the Court delivered in Ram Lal v. State of U.P.,2000 41 ACC 1715 and in Idrish v. Secretary, Ministry of Home Affairs, Government of India, New Delhi and Ors.,2002 44 ACC 1117 and has referred the following questions to be considered by a Larger Bench: (1) Whether the District Magistrate/Detaining Authority acting under Section 3(2) of the National Security Act is required to communicate to the person detained, regarding right of making representation to him in view of Apex Court's decision in Kamlesh Kumar's case (supra)? If so, non communication would infringe fundamental right guaranteed under Article 22(5) of the Constitution? (2) If the answer of question No. 1 is in the affirmative, whether there is obligation on the District Magistrate (Detaining Authority) to communicate the detenu's right within which the detenu is required to make representation to him i.e. before approval of the detention order by the State Government or before 12 days ? If so non communication of above period will render the detention order invalid? (3) Whether the District Magistrate/Detaining Authority has power to revoke or modify the detention order passed by him after its approval by the State Government? (4) Whether there is obligation on the District Magistrate/Detaining Authority to consider and decide the representation of the detenu even after approval of the detention order by the State Government.
(2.) The maximum period of detention of the petitioners has long expired and thus the questions raised before us so far as the petitioners are concerned have become academic in nature. We are, however, deciding them as these questions may arise, in the habeas corpus petitions to be decided in future.
(3.) The relevant facts giving rise to the questions posed before us, as narrated by the Division Bench in referring the order dated 22.4.2003 are as follows: The grounds of detention served upon each of the petitioner separately along with order of detention common in all the writ petitions, stated that on the night of 22/23-1-2002 at about 10.10 p.m. Dr. Deepak Agrawal, Child Specialist was going to his residence from his clinic situate at Mohalla Unchamandi, P.S. Muthiganj, Allahabad, along with his security guard Kamlesh Narain Mishra, in his Maruti Zen Car. The petitioner Ashok Mishra along with his associates Ashok Singh, Dinesh Tewari @ Pappu Shooter, Sandeep Singh, Amit @ Brijesh Singh and others in order to carry out their criminal conspiracy, kidnapped him (Dr. Deepak Agarwal) along with his Maruti Car at about 10.30 p.m. for ransom. The petitioner Ashok Mishra and his associates kept kidnappees Dr. Agrawal and his Security Guard Kamlesh Narain Mishra, at the official residence of petitioner Km. Indu Mishra (Constable) at Police Lines Sultanpur. Her associates demanded Rs. 50 lacs as ransom from the family members of Dr. Agrawal and his relatives on telephone. On the report of Smt. Savita Agrawal, wife of Dr. Deepak Agarwal a case at crime No. 18 of 2002 was registered under Section 364 IPC at 3.10 a.m. on 23.1.2002 at P.S. Muthiganj, Allahabad. The matter was negotiated at Rs. 30,00,000/-, on payment of Rs. 15,10,000/- and promise to pay remaining Rs. 14,90,000/- later on. Dr. Agarwal and his Security Guard were released on the night of 26/27-10-2002 at 11.00 p.m. on Sultanpur - Pratapgarh road. Shocks, belt and buckle of Security Guard Kamlesh Narain Mishra were recovered from official residence of petitioner Km. Indu Mishra. On 3.2.2002 on the pointing out of petitioner Indu Mishra, a sum of Rs. One lac, share of ransom money, was recovered by the Investigating Officer. A sum of Rs. 8,800/-, share of ransom money, was recovered from petitioner Jagdamba Prasad Pande and he told that he had spent Rs. 1200/-. During investigation of above case evidence was collected that telephone (mobile) No. 9838095939 belonged to Dinesh Tewari @ Pappu Shooter and telephone No. 9838054138 belonged to petitioner Ashok Mishra who talked on said phones after kidnapping and before release of Dr. Agarwal on telephone (mobile) No. 9838067646 purchased from Allahabad, communication was sent to relatives of Dr. Agarwal on mobile phone No. 9038057095 and amount of ransom was settled. Petitioner Indu Mishra talked with petitioner Ashok Mishra from telephone No. 27348 on mobile phone No. 9838054138, time and again. Dr. Agarwal recognized the petitioner Indu Mishra and her associates Dinesh Tewari @ Pappu Shooter, Sandeep Singh @ Guddu @ Dabboo, Amit @ Brijesh Singh. He also disclosed that threats were extended to him by the petitioners to kill him in case he gave evidence against them. The dare devil incident of kidnapping of a doctor for ransom was committed during Assembly Election period. On account of said incident a sense of terror and fear prevailed in doctors, traders and respectable citizens of Allahabad. The doctors resorted to the strike due to which public order was adversely affected. The news of kidnapping was published in daily newspapers on various dates which again affected public order. The petitioners were detained in Central Jail, Naini and attempt was being made by pairokars of the petitioners to get them released on bail. There was real possibility of petitioners being released on bail and on release on bail of indulging them in similar activities prejudicial to the maintenance of public order. On account of above the detaining authority was satisfied that detention of petitioner under the Act was essential for preventing the petitioners from indulging in activities prejudicial to maintenance of public order. Each of the petitioner was separately communicated that in case he wanted to make representation against detention order before detaining authority, he may do so, at the earliest through jail authorities where they were detained. In case representation was received after approval of detention order by the State Government then the detaining authority would not consider it. Each of the petitioner was further informed that in case he wanted to make representation to State Government he could do so addressing to Home Secretary, Government of U.P. through jail authority. They were further informed that detention order would be referred to the Advisory Board within 3 weeks for approval under Section 10 of the Act and in case petitioners wanted to send representation to the Advisory Board they could do so. Representation received after approval by Advisory Board would not be considered. It was again informed to each of the petitioner that in case he wanted to make representation to His Excellency President of India or Central Government, he could do so addressing to Secretary, Home and Internal Security Department, Government of India, North Block, New Delhi though jail authorities.;