- (1.) VISHNU Sahai, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner-detenu Shanker Barasia has impugned the order dated 31st July, 2002 passed by the second opposite party Mr. Alok Kumar, District Magistrate, Faizabad detaining him under Section 3 (2) of the National Security Act. The detention order, along with the grounds of detention, which are also dated 31st July 2002 was served on the petitioner-detenu on 31st July 2002 itself and their true copies have been filed as Annexures 1 and 2 respectively to this writ petition.
(2.) WE have heard learned Counsel for the parties. In our view, this writ petition deserves to succeed on the basis of the averments contained in paragraphs 7 and 9 of the return of Mr. Ramesh Kumar, under Secretary, Ministry of Home Affairs, Government of India, New Delhi. A perusal of paragraph 7 of the return makes it manifest that the petitioner-detenu's representation was rejected by the Union Home Secretary (who had been delegated powers by the Union Home Minister to decide it) on 22nd August 2002. A perusal of paragraph 9 would show that the petitioner-detenu was informed of the decision of the Central Government through a crash wireless message dated 2nd September, 2002 through the Home Secretary, Government of Uttar Pradesh and Superintendent, District Jail, Faizabad. This message was followed by a letter. A perusal of paragraphs 7 and 9 would thus, make it clear that between the rejection of the petitioner- detenu's representation by the Union Home Secretary and its communication to he petitioner-detenu, there ws an inordinate time lag of eleven days. The Supreme Court in the oft-quoted case of Harish Pahawa v. State of U. P. and others, AIR 1981 Supreme Court 1126, in paragraph 3 has observed thus: ". . . . We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. . . . " A perusal of said paragraph would show that not only should the representation preferred by the detenu in a preventive detention matter be dealt with the utmost promptitude, but also result of its disposal should be communicated to the detenu with corresponding promptitude. We regret that this wanting here. To repeal, in communicating to the petitioner-detenu the factum of rejection of his representation, there has been an inordinate and wholly unexplained delay of eleven days on the part of the Central Government.
(3.) IN our view the said delay is in violation of the ratio laid down in Harish Pahwa's case (supra) and renders the continued detention of the petitioner-detenu illegal in law. Before parting with the judgment. We would like to observe that we are not oblivious of the fact that the ground, on which we are allowing this writ petition, has not been taken by the petitioner in the petition, but since the Supreme Court in Harish Pahwa's' case (supra) itself, in paragraph 2 has laid down that where the material for the adjudication of a ground is available on the record. Then the circumstance that the ground has not been pleaded, would be no impediment in the way of the Court in considering it and the material for the said ground is contained in paragraphs 7 and 9 of the return of Mr. Ramesh Kumar, we have shunned technicalities.;