S.C. Mathur, J. - (1.) Tasdeeq Elahi has through the instant petition sought his release from detention through a writ of habeas corpus. The District Magistrate Moradabad passed an order of detention against the petitioner on 30-6-1986 under Section 3 of the National Security Act, 1980. In pursuance of this order the petitioner was arrested on 1-7-1986 Grounds of detention were served upon the petitioner on 7-7-1986. On these facts there is no dispute between the parties.
(2.) The order of detention has been challenged on a number of grounds but it is not necessary to state all of them as the detention will have to be quashed on the ground that grounds of detention were not served within 5 days, thereby violating Section 8(1) of the Act. Section 8(1) of the Act provides as follows:- "8. Grounds of order of detention to be disclosed to persons effected by the order. - (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than (ten days) from the date of detention, communicate to him the grounds on which the order was been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government, (2) ..............................." It has already been held by is in Writ Petition No. 5484 of 1986 Raisur Rahan v. State of U.P. and others decided on 20-9-1986 that the requirement of communicating grounds of detention within 5 days is mandatory and where the grounds are served beyond 5 days reasons in writing have to be recorded.
(3.) Learned counsel for the State, however, submitted that although the grounds were served on 7-7-1986, they had been signed and despatched by the District Magistrate on 5-7-1986. It has but stated that 6th July, 1986 was Sunday and therefore, the grounds could not be served and thereafter they were served on next working day, that is, 7th July, 1986. In order to substantiate the defence that the grounds were despatched on 5-7-1986 the relevant despatch Register was produced before us by the learned Additional Government Advocate. From the material on record it is established that the ground of detention had been despatched on 5-7-1986. However, in the counter-affidavit filed on behalf of the opposite parties no explanation has been given regarding non-service of the grounds on the same day. If grounds had been served on 5-7-1986 there would have been no violation of Section 8(1) of the Act as that was the fifth day of detention. There has been, therefore, violation of mandatory provision of the Act. The consequence of this violation is that the petitioner's detention cannot be continued.;