VISHNU SAHAI, J. - (1.) Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Sher Singh has impugned the order dated 2-8-2002, passed by the third opposite party, Mr. Mahesh Kumar Gupta, District Magistrate, Agra, detaining him under S. 3(2) of the National Security Act. The detention order along with the grounds of detention, which are also dated 2-8-2002, was served on the petitioner-detenu on 2-8-2002 and their true copies have been collectively filed as Annexure 1 to the writ petition.
(2.) We have heard counsel for the parties. Since in our view this writ petition deserves to succeed on the averments contained in paragraphs 7 and 8 of the petition and those contained in Ground No. 28 (h) thereof, we are not adverting to the prejudicial activities of the petitioner detenu contained in the grounds of detention. The substance of the averments contained in paragraphs 7 and 8 of the petition and ground No. 28(h) thereof, is that although the petitioner detenu made a representation on 12-8-2002 to opposite parties Nos. 1 to 3, namely; (1) Union of India through Secretary, Government of India, Ministry of Home Affairs (Internal Security Department), North Block, New Delhi, (2) State of U.P. through Secretary, Department of Home, Civil Secretariat, Lucknow and (3) District Magistrate, Agra, U.P. the said representation has not been decided till date. However, during the course of submissions Mr. M.P. Yadav, learned counsel for the petitioner restricted his submission to the representation preferred by the petitioner detenu to Union of India.
(3.) The averments contained in paragraphs 7 and 8 of the petition and ground No. 28(h) thereof have been replied to in paragraph 9 of the affidavit of the detaining authority (opposite party No.3), and in paragraph 6 of the return of Mr. Ramesh Kumar, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi dated 26-11-2002 and in paragraph 3 of an additional return of the said functionary, dated 31-12-2002. In paragraph 9, the detaining authority has stated thus: "That with regard to the contents of para 7 of the writ petition so far the contention of the petitioner that he made a representation to the respondent Nos.1, 2 and 3 is concerned, it is submitted that the petitioner made a representation undated given to the jail authorities on 19-8-2002, it came to the office of the detaining authority on 19-8-2002 itself, they were addressed to the State Government, Central Govt. Chairman, Advisory Board, it came to the office of District magistrate on 19-8-2002 and thereafter the detaining authority prepared the parawise comments on the representation on 22-8-2002 and sent the copies of the representation to the State Govt. Secretary, Home Department and Secretary, Internal Security, New Delhi along with representation and it is also submitted that no representation was made addressing to the District Magistrate. The contention in this regard in para under reply is incorrect and denied. It is also submitted that the date of representation is not 12-8-2002, the representation is undated." In paragraph 6 of his first return Mr. Ramesh Kumar has stated thus : The allegations made in the para Nos. 7, 8, 10, 17 and ground (b) and (h) of para 28 of the petition are denied being incorrect. It is stated that Govt. of Uttar Pradesh vide their letter No. 108/2/356/CX-7 dated 24-2-2002 forwarded a representation of Shri Sher Singh. As the representation was not addressed to Central Govt. it was returned to them for taking action under S. 8 of NSA- 1980 vide Ministry's letter dated 4-9-2002. The representation dated 12-8-2002 alleged to be addressed to Central Govt. was never received in the office of Respondent No.1. Hence the averments that the representation made to Respondent No.1 is still pending is denied." In paragraph 3 of his additional return Mr. Ramesh Kumar has stated thus : The statement made in our earlier Affidavit at para 6 is reiterated. The allegations made in the Para Nos. 7, 8, 10, 17 and grounds (b) and (h) of para 28 of the petition are denied being incorrect. It is stated that Government of Uttar Pradesh vide their letter No. 108/2/356/2002-CX-7 dated 24-8-2002 (Annexure 1) forwarded a representation of Shri Sher Singh. As the representation was not addressed to Central Government, it was returned to them for taking action under S. 8 of NSA-1980 vide this Ministry's letter dated 4-9-2002 (Annexure II). The representation dated 12-8-2002 alleged to have been addressed to Central Government was never received in the office of Respondent No.1. Hence the averment that the representation made to Respondent No.1 is still pending is denied." It is pertinent to mention here that along with the second return Mr. Ramesh Kumar has annexed the representation of the petitioner-detenu, which was forwarded by the State Government of Uttar Pradesh. It is also pertinent to mention that a perusal of the said representation shows that it was addressed to the Home Secretary, Government of Uttar Pradesh, Lucknow.;