BALA KRISHNA NARAYANA,J. - (1.) HEARD Sri Anil Mullick, counsel for the petitioner, Sri Sudhir Mehrotra Advocate appearing on behalf of respondent nos. 1, 2 and 3 and Sri M.N. Singh Standing Counsel for Union of India, respondent no. 4. Counter and rejoinder affidavits have been exchanged. The habeas corpus petition is taken up for final hearing.
(2.) THE petitioner Abdul Kalam has challenged the detention order dated 3.11.2009 passed by the District Magistrate, Meerut and order dated 31.12.2009 passed by the State Government confirming his detention order under Section 12(1) of the National Security Act (hereinafter referred to as the Act). The petitioner along with one another accused was involved in case crime No. 324 of 2009 for an offence under Sections 376, 323 I.P.C. read with Section 3(1) (XII) S.C./S.T. Act, Police Station Bhawanpur, District Meerut. F.I.R. was lodged at the concerned police station on 28.9.2009 at 13.45 hours. The incident is alleged to have taken place on the same day at 11.30 A.M. in a jungle of village Rukanpur. There was another co-accused but none of them were named in the F.I.R. The other accused was mentioned as son of Islam but the parentage of the present petitioner was not given in the F.I.R. The allegation is that two daughters of the first informant namely Km. Salu and Km. Ritu had gone to bring fodder at about 11.30 A.M. from the place of incident. Both of them were manhandled and raped by the two boys who were arrayed as an accused. On 18.10.2009 the Circle Officer Bhawanpur, Meerut submitted a detailed report and forwarded it to the Senior Superintendent of Police, Meerut on the same day who also endorsed and confirmed the report and sent his recommendation to the District Magistrate on 30.10.2009 for detaining the petitioner/detenu under the Act. The impugned detention order was passed on 3.11.2009. The State Government confirmed the order of detention under Section 12(1) of the Act vide order dated 31.12.2009. It appears that in the present case, the detenu handed over his representation for Advisory Board to the Superintendent, District Jail, Meerut on 27.4.2010. Claim of the detenu is that same was refused by the Superintendent, District Jail, Meerut on account of delay as it was not given within the stipulated time. However, the other co-accused preferred his representation challenging the order of detention under the Act and the Advisory Board has revoked the detention order against him. Learned counsel appearing on behalf of detenu has challenged the detention order on the following grounds:- (1) Parity:- The submission is that since the co-accused in case crime No. 324 of 2009 who was also detained under the Act but the Advisory Board revoked his detention order and, therefore, the petitioner who has been given an identical role in the same case, is entitled to be released. While claiming release on the ground of parity, reliance has been placed on a decision of the Apex Court in the case of Alpesh Navinchandra Shah Vs. State of Maharashtra and others, (2007) 1 Supreme Court Cases (Cri) 653 Head Note B. In the said case, since the Government had revoked the detention order against similarly situated persons, the detention order against a co-applicant/co-detenu, was entitled for same treatment and, therefore, detention order was quashed. The applicant in the said case was detained for an alleged contravention of the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act). In the said case, a number of consignment of misdeclared ball bearings imported by a firm were intercepted by DRI officials. Pursuant thereto, the petitioner along with others were arrested. The trial court released them on bail. Subsequently detention order was passed. Pursuant to a show cause notice issued to the petitioner and other co-accused, they appeared before the Settlement Commission. The Settlement Commission by its final order allowed all the settlement applications and settled the case on payment of custom duty of the sum specified in terms of provisions of the Customs Act. In view of full and true disclosure, the Settlement Commission granted unconditional immunity to all the applicants including the petitioner from any penalty that could be levied under the Customs Act and also from prosecution under the said Act as well as in respect of the offences under the Indian Penal Code in relation to the alleged offence under the COFEPOSA Act. A copy of the settlement of the case was forwarded to the detaining authority and a number of accused were released and N.S.A. was revoked. The Apex Court was of the view that the case of the petitioner was similarly placed and he was also accorded an identical immunity and, therefore, the petitioner in the said case was also entitled for revocation of the detention order. There are a number of contra decisions to the aforesaid preposition therefore, it can not be a hard and fast rule. This was a case which dealt with deficiency in the custom duty and, therefore, the principle on which the parity was granted to the detenu, can not be made an example in other cases as well. Sri Sudhir Mehrotra has emphatically disputed this argument that in a case of preventive detention parity can not be claimed by any person whatsoever. (2) Petitioner's representation not accepted:- The second argument is that the petitioner's representation to the Advisory Board was not accepted and forwarded by the Jail Superintendent, Meerut on the pretext of having given the representation very late. There is specific assertion in the writ petition that detenu handed over his representation to the Jail Superintendent, Meerut on 27.4.2010 to be forwarded as per Sections 9 and 10 of the Act to the Secretary, Department of Home, Government of U.P., Lucknow. A representation was also moved for consideration before the Central Government according to Section 14 of the Act to the Secretary, Department of Home, (Internal Security Department), Union of India, North Block, New Delhi.
(3.) SRI Sudhir Mehrotra has placed a counter affidavit filed by Bhuvnesh Kumar, District Magistrate, Meerut who has disputed this fact. So far counter affidavits of Jailer and State Government are not specific on this question. Assuming all these things that the representation was either not accepted or not in time, the necessary out come is that no representation was either before the Advisory Board or the Central Government and as such the objections or the grievance against the detention order on behalf of present petitioner could not be taken into consideration and this has resulted in continuous detention of the petitioner. (3) Petitioner is juvenile:- The third argument is that the petitioner is juvenile. There is an order dated 4.12.2009 passed by Juvenile Board whereby the Chief Magistrate, Juvenile Justice Board, Meerut has declared him as a juvenile and has clearly recorded a finding that at the relevant time when he was produced before the Board, his age was determined approximately as 15 years, therefore, the submission is that detention of the petitioner along with other detenu and criminals frustrated the entire purpose of the Act. While passing the detention order, the District Magistrate has completely failed to look into this matter, also the State Government while confirming the detention order did not notice this material aspect. ;