R.K. Rastogi, J. - (1.) ALL these three Habeas Corpus Petitions have been filed by the above named three petitioners challenging the orders of their detention passed under the National Security Act and for their release from detention.
(2.) THE facts relevant for disposal of these Habeas Corpus Petitions are that on 16.9.2008 on the basis of a F.I.R. lodged under Sections 489-Kha and 489-Ga, I.P.C. Case Crime No. 219 of 2008 was registered at Police Station Visungarh, District Kannauj against the petitioners and one Shishupal Singh with these allegations that on the aforesaid date 100 counterfeit currency notes of Rs. 500/ - each were recovered from possession of the petitioner, Viresh Kumar, 30 counterfeit currency notes of Rs. 500/- each were recovered from possession of the petitioner, Pankaj Kumar Bhadauriya, 30 counterfeit currency notes of Rs. 500/- each were recovered from possession of petitioner, Avanish Kumar Bhadauriya and 30 counterfeit currency notes of Rs. 500/- each were recovered from possession of co-accused, Shishupal. On the basis of above recovery of counterfeit currency notes worth Rs. 95,000/-, the S.O. of P.S. Visungarh submitted proposals before the District Magistrate Kannauj against the petitioners for their detention under the National Security Act through proper channel and the District Magistrate, on the basis of that report, passed separate orders against all these petitioners on 27.9.2008 for their detention under the National Security Act. Against the above order, the petitioners submitted their representations on 16.10.2008 but those representations were rejected by the concerned authorities. THEn they filed these writ petitions. Counter affidavits have been filed in all these writ petitions by the respondents. We have gone through all of them and have also heard the learned counsel for the petitioners as well learned A.G.A. for respondents No. 1 to 3 and Mr. Pramod Kumar Singh, learned counsel appearing on behalf of Union of India. Learned counsel for the petitioners made only one submission before us that there has been unreasonable delay in disposal of the representations of the petitioners dated 16.10.08 on the part of the Union of India, the respondent No. 4. In this connection he referred to the counter affidavit filed by Smt. L.P. Srivastava on behalf of Union of India in habeas corpus writ petition No. 1624 of 2009, in para 5 of which it has been stated that the representation of the petitioner was received by the Under Secretary, Ministry of Home Affairs on 23.10.2008, who carefully considered the case, and, with her comments, put up the same before the Director (Security), Ministry of Home Affairs on 23.10.2008. The Director Security considered the same and put up it before the Joint Secretary Ministry of Home Affairs on the same date. The Joint Secretary considered the same and forwarded it to the Union Home Secretary on 23.10.2008 who considered the case of the detenu and rejected the representation of the detenu on 3.11.2008. The file was received back in the concerned Section in the evening of 7.11.2008 and then a crash wireless message dated 10.11.2008 was sent through the Home Secretary Government of U.P. and the Superintendent of Jail, Fatehpur giving intimation to the petitioner that his representation has been rejected. The same thing has been stated in paras 5 and 7 of the counter affidavit of respondent No. 4 filed in habeas corpus writ petition No. 1375 of 2009. In habeas corpus writ petition No. 1152 of 2009, a very brief counter affidavit has been filed by the respondent No. 4. It may be mentioned that in paragraph 45 of the petition, it has been asserted that representation of the petitioner was rejected by the Union of India on 3.11.2008 and its intimation was given to the petitioner on 10.11.2008. In para 4 of the counter affidavit only this fact has been stated that the file was submitted to the Director (S) Ministry of Home Affairs on 23.10.2008 and thereafter what happened to the representation has not been stated in this counter affidavit. Any how when the assertions made in para 45 of the writ petition have not been replied in the counter affidavit, there is no reason to disbelieve the assertions made in para 45 of the petition that the order rejecting the representation was passed on 3.11.2008 and its intimation was sent on 10.11.2008.
(3.) LEARNED counsel for the petitioners submitted that in these cases the files were received by the Home Secretary, Union of India on 23.10.2008 but he did not pass any order on the representations of the petitioners at the earliest and he passed the order rejecting the representations on 3.11.2008 i.e. after expiry of 11 days from the date of receipt of files of the petitioners. It was further pointed out that even after rejection of the representations of the petitioners there was delay of 7 days in communication of the order and so this order is vitiated. In support of this contention he cited before us a ruling of Hon'ble Apex Court in the case of Harish Pahwa v. State of U.P. and others, 1981 SCC (Cri.) 589 in which it has been held that the representation of the detenu must be decided as soon as possible and unnecessary delay in its disposal amounts to violation of the safeguards enshrined under Article 22 (5) of the Constitution and renders the detention unconstitutional. The same view was reiterated by the Hon'ble Supreme Court in the case of Rajammal v. State of Tamil Nadu and another, 1999 SCC (Cri) 93. In this case there was delay of 5 days in disposal of the representation by the Minister because he was outstation on tour. This explanation was not found to be satisfactory by the Hon'ble Apex Court and the further detention was found to be illegal. In Jaggu alias Jagvinder Singh v. State of U.P. and others, 2008 (3) JIC 1 (All) a Division Bench of this Court found the delay of 15 days in deciding the representation unreasonable as no explanation was offered for the same, and so the further detention was found to be bad in law. In Prem Chand alias Pintu v. State of U.P. and others, 2008 (3) JIC 46 (All) the same Division Bench held that the delay of 5 days in deciding the representation when it was unexplained, rendered the detention illegal. Learned counsel for the petitioners also cited before us a Division Bench ruling of this Court in Syed Mehtab Alam v. Superintendent Central Jail, Naini, Allahabad and others, 2004 (49) ACC 745. In this case the unexplained delay of five days in disposal of representation was held to be fatal and so the detention was held to be illegal. He also cited before us two other rulings of the Division Benches of this Court in Deepak Kumar Singh v. Superintendent of Central Jail, Naini, Allahabad and others, 2007 (2) ESC 283 and in Pradeep Singh v. Adhikshak Mandal/Janpad Karagar, Gorakhpur, 2007 (2) ADJ 222. Both these rulings were delivered by the same Division Bench consisting of Hon'ble Sushil Harkauli, J. and Hon'ble Pankaj Mithal, J. In the earlier ruling four days' delay in placing the representation from one desk to another in the concerned Ministry was held to be fatal.;