R.A.MISRA,J. - (1.) SRI Mumtaj Husain has preferred this petition of Habeas Corpus under Article 226 of the Constitution challenging the order of detention dated 10th October, 1982 made against him under section 3(3) of the National Security Act by the District Magistrate Moradabad.
(2.) SRI Mumtaj Husain was arrested on 6th October, 1982 in connection with a case under section 302, I.P.C. and the impugned order of detention was passed on 10th October, 1982 while he was in jail. The detention order alongwith the grounds thereof were, served upon him on 11th October, 1982. He challenged the detention order vide petition under Article 226 of the Constitution Writ Petition No. 14102 of 1982, which has been dismissed by this Court on 31st January, 1982. He has filed this second petition and the learned counsel representing him has pressed the following two points which were neither pleaded nor decided in the previous petition firstly that the detenu's representation made by his brother to Central Government on his behalf on 10 -2 -83 still remains un -disposed of secondly that the order of detention has been passed without proper application of mind inasmuch as the awareness of the fact that the detenu was in jail and yet the order of his detention under the National Security Act is compelling necessity does not bear out from the order or grounds supplied to him. It has been deposed in para 20 of the petition that on 11th February, 1983 the petitioner made an attempt to submit his representation addressed to the Prime Minister and the Chief Minister but the officials of the jail refused to forward the representations to the Central and State Government. Thereupon the petitioner's brother Safdar Husain sent the representation to the Superintendent, District Jail, Moradabad by registered post on the same day. It was received by the Superintendent, District Jail, Moradabad who called the petitioner in office on 12th February, 1983 and obtained his signatures over the representation the Superintendent assured that the representations would be forwarded to the Central and State Government at the earliest but the petitioner has no knowledge that these representations have actually been forwarded. The detaining authority while replying to para 20 of the petition vide para 16 of his affidavit says that the representation dated 13th February, 1983 was forwarded by the Superintendent, District Jail, Moradabad to him on 12.2.1983. As the file of the deponent was at Allahabad with the Government Advocate, it was summoned there from for making comments. The case was carefully examined on receipt of the record and comments were prepared. The representation together with the comments of the detaining authorities were sent to the Government on 5th March, 1983. There is no word in the reply of the detaining authority to say that the petitioner's representation addressed to the Prime Minister of India (Central Government) was either sent directly to the Central Government or was even sent to the Central Government through the Slate Government. The affidavit filed by Sh. Chandra Pal Singh on behalf of the State did not say that any representation addressed to the Central Government or the Prime Minister was received as alleged in para 20 of the petition and was sent to the Central Government. There is no mention of any representation addressed to the Central Government in para 4 of the State Government's affidavit which replies para 20 of the petition. In the result the detaining authority as well as the State Government have failed to explain as to how have they dealt with the petitioner's representation addressed to the Central Government. We would like to repeat that they did not say to have forwarded this representation to the Central Government.
(3.) THE petitioner in para 21 of the petition says that he believes that his representation dated 11 -2 -83 has not been disposed of by appropriate authorities. There is nothing in the affidavits filed on behalf of the detaining authority and the State Government to say that the petitioner's representation dated 11 -2 -83 addressed to the Central Government has been disposed of Sufficient opportunity was given to the Central Government to file a counter affidavit to meet these allegations of the petitioner but no counter -affidavit was filed within the time allowed. A futile attempt was made by the learned counsel appearing for the Central Government when the case was taken up for hearing to file a counter -affidavit but it was not taken on record because the learned counsel failed to disclose any good reason for not having filed the counter affidavit for such a long time.;