- (1.) IN all the aforesaid writ petitions questions of fact and law are similar and they can conveniently be decided by a common judgment against which learned counsel for the parties have no objection.
(2.) " Petitioners of the aforesaid writ petitions have filed these petitions chal lenging the order dated 21- 12-1998 passed by respondent No. 2, District Magistrate, Shahjahanpur, under Section 3 (2) of the National Security Act (hereinafter referred to as the Act) under which petitioners have been detained. In all the writ petitions counter and rejoinder affidavits have been exchanged. We have heard Shri D. S. Mishra, learned counsel for the petitioner, Shri A. K. Tripathi, learned AGA for respondents Nos. 1 to 3 and Shri Tej Prakash, Shri K. N. Pandey, Shri S. C. Dube and Shri S. C. Mishra for Union of India. Learned counsel for the petitioners have challenged the continued detention of the petitioners on the ground of delay in deciding the representation of the petitioners by the Central Govern ment on two grounds. The first submission is that consideration on the repre sentations of the petitioners was postponed illegally by the Central Government and it was awaiting for the report from the Advisory Board. It has been submitted that on 29-1-1999 State Government informed the Central Government that opinion of the Advisory Board has not been received, even then representations were not taken up for con siderations by the Central Government. The consideration on the representations was started only on 5-2-1999 after receipt of the opinion of the Advisory Board on 3-2-1999. It is submitted that this delay of 12 days i. e. from 23-1-1999 to 4-2-1999 does not bear any explanation and is suffi cient to render the continued detention of the petitioners as illegal. For this submis sion learned counsel for the petitioner has placed reliance in the case of Pappu alias Ausan Singh v. Adhikshak Janpad Karagar, Mainpuri, 1999 (1) JIC 234 (All ). The second submission of the learned counsel for the petitioners is that the repre sentations of the petitioners with all com plete reports and materials were placed before the Home Minister on 9- 2-1999, but it was decided by the Home Minister on 15-2-1999 i. e. after 5 days for which there is no valid explanation and this delay render continued detention of the petitioners illegal. Reliance has been placed in the case of Rajammal v. State of Tamil Nadu and another, JT 1998 (8) SC 598 and also unreported judgments of the Division Bench of this Court in the cases of Ashwani Kumar @ Soni v. Superintendent, District Jail, Muzaffarnagar and others, Habeas Corpus Writ Petition No. 8114 of 1999, decided on 11-5-99 and Govindpalv. Superintendent, District Jail, Varanasi and others, Habeas Corpus Writ Petition No. 41113 of 1998, decided on 20-4-99.
(3.) SHRI A. K. Tripathi, learned AGA, on the other hand, submitted that Rajammal's case (supra) relied on by the learned counsel for the petitioners is not applicable in the facts of the present case and is distinguishable. In sum and sub stance, the submission of the learned AGA is that in Rajammal's case (supra) Hon'ble Supreme Court has considered the delay caused in deciding the representation by the appropriate Government while in the present case the delay is alleged to have been caused by the Central Government which could exercise statutory powers and not under constitutional obligation caused by Article 22 (5) of the Constitution of India. It is submitted that statutory obligation cannot be equated with con stitutional obligation. Learned counsel for Union of India submitted that Bina Prasad has explained delay in Para 8 of the counter-affidavit and delay of few days was on account of holidays. We have considered the submis sions of the learned counsel for the par ties. There is no dispute about the dates between the parties. This Court in several cases has already taken the view that Central Government could not postpone the decision on the in presentation on the ground that opinion or the Advisory Board was not made available. If the opinion was not made available representations ought to have been decided without any further delay. In the present case there is clear delay of 12 days during which the repre sentations of the petitioners were not con sidered by the Central Government on the ground that opinion of the Advisory Board was not made available. Thus, judgment of Court in the case of Pappu (supra) is squarely applicable which is sufficient to vitiate the continued detention of the petitioners. So far as the delay by Home Minister in deciding the representation is concerned this Court has already taken the view that the explanation based on one or two holidays falling in between cannot be, accepted.-Relevant portion of the judg ment dated 20-4-1999 in the case of Govind Pal is being reproduced below: "in our opinion, such explanation based on one or two holidays falling in between cannot be accepted. We have come across several cases of preventive detentions, where representations were decided by the Central Government on holidays. However, even if, for argument's sake, the explanation is accepted, three days delay remained unexplained which rendered the con tinued detention of petitioner illegal. ";