- (1.) NON-placement of the representation sent by an advocate Sri Daya Shankar Misra under his name and signatures, alleged to be on behalf of the detenu, before the Advisory Board by the State Government - respondent No. 3 and non-consideration of the same by the Advisory Board rendering the detention order dated 2-7-2005 (annexure No. 1 to the writ petition) passed by the District Magistrate - respondent No. 2 against the petitioner (detenu), under Section 3 (2) of National Security Act, 1980, to be illegal and deserving to be quashed, is the point mooted for our consideration through the present habeas corpus petition alongwith ancillary grounds.
(2.) BUT before adverting to the controversy, we relate the factual matrix of the petition. The dossier dated 27-6-2005 by the police of Police Station Kotwali, District Banda and recommendation dated 28-6- 2005 by Superintendent of Police, Banda resulted in the passing of detention order under Section 3 (2) of the National Security Act, 1980 (hereinafter Referred to to as 'the Act'), against the petitioner on 2-7-2005 (Annexure No. 1 to the writ petition) by the District Magistrate, Banda - respondent No. 2. On that day itself, the grounds of detention were served on the petitioner which revealed that on 20-1-2005 at 9 A. M. in the down town Banda, the detenu along with his associate Dasrath Yadav abducted a young infant student Ishu Nigam of Class V, aged about nine years, for the purpose of ransom of Rs. 15 Lacs and thereafter murdered him, throwing his corpse tied with stone in Brahmanand barrage over Burma river under circle of Police Station Rath, District Hamirpur. The detenu burnt his school bag near the field of Pappu son of Jugul Babu in village Evjhi, situated near Muskara Basaura way, P. S. Muskara, District Hamirpur. The aforesaid activity engulfed the area with terror and insecurity, as a result of which public order was shattered and the parents stopped sending their children to schools, Shiv Shankar Nigam, father of the infant boy lodged a report at Police Station Kotwali Banda on 21-1-2005 at 2. 40 p. m. , regarding the disappearance of his son. On 22-1-2005 at 20. 50 hours he received anonymous telephone call demanding a ransom of Rs. 15 Lacs, resulting in the conversion of the registered crime No. 23 of 2005 into an offence under Section 364-of I. P. C. Anguished and deterred parents and the social organizations dispatched various representations and letters to the authorities. During investigation, the complicity of the detenu surfaced resulting in his arrest on 27-1-2005. The dead-body of the infant boy alongwith his half burnt pieces of his books, pant and shirt alongwith stone and gunny bag (in which the dead-body was concealed) were recovered at the pointing out of the petitioner detenu. The investigation culminated into charge-sheet against the petitioner detenu under Sections 364-A, 302, 201, 34 I. P. C. The petitioner was endeavouring to get himself bailed out and the news of his efforts further intensified the sense of insecurity amongst the public. This was so reported by constable Mahesh Chandra and Ram Pal and was entered vide entry No. 30 dated 27-5-2005. Two other constables Ram Singh and Sant Ram Pal also reported the same air of insecurity on 31-5-2005 vide entry No. 32. The aired news of the petitioner being enlarged on bail deterred the parents and they stopped sending their children to school. Consequently, to stop the petitioner from acting in the manner prejudicial to the maintenance of public order in future by indulging in such activity, the District Magistrate-respondent No. 2 detained him under the Act as mentioned above which is under challenge before us. In accordance with Section 8 of the Act, the detenu made a representation to the respondents and to the Advisory Board on 13-7-2005 which has been appended as RA-1 to the rejoinder affidavit filed in the writ petition. On the said representation, the detaining authority respondent No. 2 called for a report from police which was furnished to it on 20-7-2005 by Superintendent of Police, Banda. Respondent No. 2 sent the said representation along with his comments to the State Government respondent No. 3 on 21-7-2005 which was received to it on 22-7-2005. The case of the detenu was submitted before the Advisory Board for its opinion. 26-7-2005 was the date fixed for the consideration of the case of the detenu by the Advisory Board. On 26-7-2005 the detenu was produced before the Advisory Board, which sealed its opinion on the very day that there was sufficient ground for detaining the petitioner on the facts and grounds mentioned therein (for this fact we have called for the original record and have perused ourselves ). The State Government - respondent No. 3 confirmed the detention order of the petitioner on 23-8-2005. Union Government respondent No. 4 also rejected the representation made to it by the petitioner on 1-8-2005. It was on 26-7-2005 when the case of the detenu was being considered by the Advisory Board and the detenu was personally present before the Board that day, that a second representation was sent from Allahabad through speed post, by the detenu's Counsel Sri Daya Shankar Misra under his name and signatures alleged to be on the instructions of the detenu, his relatives and pairokars, addressed to the Home Secretary, Government of India, New Delhi and to the Principal Secretary, Home, Lucknow. The said representation and photo copy of speed post receipts are appended as annexure No. 5 to the writ petition. This was received to the respondent No. 3 on 28-7-2005 (two days after the case of the petitioner was considered by the Advisory Board on 26-7-2005 on which day itself the Board had signed and sealed its opinion ). Respondent No. 3 called for report from respondent No. 2 on this representation on 1-8-2005 which communication was received to respondent No. 2 on 4-8-2005. Respondent No. 2 furnished his comments on 19-9-2005 to the respondent No. 3 who received it on 22- 9-2005 and ultimately rejected the said representation on 26-9-2005.
(3.) ON the above facts, the detention order is under challenge before us. We have heard Sri Day a Shankar Misra, Advocate on behalf of the petitioner detenu, Sri Arvind Tripathi, learned A. G. A. on behalf of respondents No. 1, 2 and 3 and Sri R. N. Shukla, learned Standing Counsel for the Union of India for respondent No. 4 at great length.;