S.N.H.ZAIDI,J. - (1.) BY way of this writ petition detenu, Ashok Kashyap has prayed for issuance of writs, orders or directions in the nature of Habeas Corpus and certiorari, as also for quashment of the detention order dated 27-04-2009 passed by District Magistrate, Muzaffar Nagar and the confirmation order dated 12-06-2009 issued by the State Government, and the consequent release from illegal custody.
(2.) IT appears that petitioner Ashok Kashyap was lodged in jail on 01-04-2009 in case crime no. 604 of 2009, registered under Sections 307/326/34/120-B/420/467/471 I.P.C. and 3(2)5 of the S.C./S.T.(Prevention of Atrocities) Act. He was also wanted in case crime no. 706 of 2009 under Sections 409 I.P.C. In this background, the District Magistrate concerned passed the order (vide Ref. no. 135/Nyay Sahayak/09 dated 27-04-2009), directing preventive detention of the detenue petitioner. Grounds of detention and all other connected materials were sent to the District Jail, Muzaffar Nagar, the same day i.e. 27-04-2009 for service upon the petitioner which was received in jail and duly served upon the detenu the same day itself and his thumb impressions were also obtained on the receipts thereof. Petitioner was also informed about his right to make a representation to District Magistrate, State Government, Central Government, and also to Advisory Board through Superintendent, District Jail. The detention order was approved by the State Government and the information to that effect was sent through a radiogram on 06-05-2009(Ref. no. 108/2/152/2009/CX-7 :LKW, dated 06-05-2009) which was received at the District Jail, Muzaffar Nagar on 07-05-2009 and communicated to the detenu the same day. The detenu submitted representations dated 08-05-2009 through Superintendent, District Jail, Muzaffar Nagar, which were addressed to Advisory Board, State Government, Central Government and District Magistrate, Muzaffar Nagar, and also to Senior Superintendent of Police, Muzaffar Nagar. The District Magistrate rejected the representation on 11-05-2009 which was communicated to the petitioner through Jail Superintendent, District Jail, Muzaffar Nagar on 12-05-2009. The State Government also rejected the representation on 18-05-2009 and the information to that effect was sent through radiogram massage on 18-05-2009 which was received in the District Jail, Muzaffar Nagar on 19-05-2009 and the same was communicated to the petitioner through Jail Superintendent, District Jail, Muzaffar Nagar on 19-05-2009. Central Government also rejected the representation vide its order dated 15-06-2009 which was communicated to the petitioner on 16-06-2009. Additionally, a copy received by post was also served through the Jail Superintendent concerned on the petitioner on 20-06-2009. The petitioner was also produced before the Advisory Board on 21-05-2009 at 3 p.m. Finally, the State Government confirmed the detention order on 12-06-2009 which was to continue for a period of 12 months from the date of the detention i.e. 27-04-2009. The confirmation order was received in the office of Superintendent, District Jail, Muzaffar Nagar, on 13-06-2009 and again communicated to the petitioner the same day. Though, this writ petition has been preferred on various grounds but the one and only ground that was canvassed before this Court is regarding the delay in disposal of representation. Learned counsel referred to paras 5 and 6 of the affidavit filed by the Under Secretary, Ministry of Home Affairs, Government of India, which are reproduced as under: 5. That in regard to the contentions made in paras 64, 65 and 66 and grounds (d) and (g) of the petition, it is further submitted that the same is false and denied as being incorrect. That the representation was examined and processed for consideration on 09-06-2009 and the case of the detenue was processed at the levels of Under Secretary, Consultant(s) Joint Secretary who considered the case and placed the same before the Union Home Secretary on 11-06-2009. The Union Home Secretary (who has been delegated powers by the Central Government to decide such cases) considered the case of the detenue and after carefully going through the detention order, grounds of detention, representation of the detenue and parawise comments of DM/State Government, rejected the representation of the detenue on 12-06-2009 marked the file to Joint Secretary (IS). The file reached the concerned desk through the aforesaid levels of officers on 13-06-2009. 6. That during the relevant period the Section had received a large number of representations relating to detention under NSA, especially from Uttar Pradesh. Only one Dealing Hand is allocated the work relating to Uttar Pradesh. The said Dealing Hand was on leave for about 20 days on medical grounds. The representations received are being disposed of in chronological order. Accordingly this representation could be processed only on 09-06-2009. It is humbly submitted that there has been no casualness or deliberate delay in dealing with the matter. This is also a submission of the learned counsel that in an identical case, namely, Kamlesh Pathak Vs. District Magistrate, Auraiya and Ors. reported in 2009(66) ACC 743 wherein similar averments were made on behalf of Union of India in respect of delay in disposal of representation, the Principal Bench at Allahadbad vide paragraph 22 of the judgment, quashed the detention order only on the ground that there was no proper explanation for delay in the disposal of representation. Learned counsel also referred to a latter judgment of this Bench rendered in writ petition no. 217 of 2009(H/C) (Shiv Shankar Soni Vs. Union of India and Ors.) wherein also the detention order has been quashed.
(3.) LEARNED counsel for Union of India on the other hand referred to a judgment of Apex Court reported in 2008 (5) SCC 490(Union of India and Ors Vs. Laishram Lincola Singh) to contend that if the delay in disposal of representation is explained, then the detention order would not become infirm. Learned counsel for State of U.P. also referred to a judgment of the Hon'ble Apex Court to justify the delay in disposal of representation which is reported in 2006(5) SCC 142 D. Anuradha Vs. Joint Secretary and Anr. rendered in a case of preventive detention under COFEPOSA Act.;