- (1.) THIS writ petition re lates to a writ of certiorari for quashing the order dated 28-5-1998, passed by the Dis trict Magistrate, Sultanpur under sub-sec tion (3) of Section 3 of National Security Act, 1980, contained in Annexure No. 1 of the writ petition. Another prayer is in the nature of a writ of Habeas Corpus for im mediate release of the petitioner declaring his detention as illegal.
(2.) FACTUAL narration as a background for this writ petition is that the petitioner was detained on 28-5- 1998 in the District Jail, Sultanpur, under the orders of the District Magistrate, Sultanpur, contained in Annexure No. 1 of this writ petition, passed under Section 3 of the National Security Act, 1980. This order dated 28-5-1998 was (sic) to the detenu petitioner alongwith the grounds of detention and copies of the documents by the Superin tendent of Police; District Sultanpur on 28-5-1998. The petitioner was challaned by the police of P. S. Kamrouli, District Sultanpur on 1-3-1998 in Crime No. 43 of 1998, under Section 3/25 of the Arms Act and in Crime No. 31 of 1998, under Sec tions 147, 148, 149, 307, 302, I. P. C. of the same Police Station and since then the petitioner had been in judicial custody. The detention order, according to the con tention, was passed without applying mind by the District Magistrate, Sultanpur. The ground for detention was that the petitioner had moved bail application in the Sessions Court, District Sultanpur whereas the petitioner had not moved any such bail application in the said Court. The detaining authority had no material before it for consideration of the detention under National Security Act. The grounds of detention showed that there were three criminal cases and one such case related to the year 1994 and no one was named as accused and the petitioner was granted bail from the Sessions Court. The other two cases were instituted by the police being complainant and there were no inde pendent witnesses in support of the allega tions. The detaining authority considered these three cases as criminal history of the applicant for detaining in jail but no papers relating to case Crime No. 95 of 1994 were supplied to the petitioner to prepare an effective representation. The petitioner's representation dated 9-6-1998 has not been decided at an early date by the Union of India as- well-as State of U. P. and there was no proper explanation for the delay. Thus the detention of the petitioner was illegal as there was no com pliance of Section 3 (4) and (5) of the Na tional Security Act. Therefore, the writ petition was moved with the aforesaid prayer for quashing the detention order. The District Magistrate, Sultanpur is opposite party No. 3 in this writ petition and the counter-affidavit filed by that authority showed that in exercise of powers under Section 3 (3) read with Sec tion 3 (2) of the National Security Act, 1980, the detention order against the petitioner was passed. The detention order was passed after applying the mind of the District Magistrate, Sultanpur. There was likelihood of the petitioner being released on bail and accordingly detention order was passed against the petitioner in order to prevent the petitioner in indulging into activities prejudicial to the maintenance of public order in the event of his release. The petitioner was supplied with the copy of the F. I. R. in case Crime No. 95 of 1994 of P. S. Jamo, District Sultanpur. The petitioner preferred a representation dated 9-6-1998 addressed to the Home Secretary, Uttar Pradesh Shasan, Lucknow and the said representation was for warded by the Superintendent, District Jail Sultanpur on 9-6-1998 to the District Magistrate, Sultanpur. A copy of it was also forwarded to the Registrar, Advisory Board, High Court, Lucknow. On 11-6-1998 District Magistrate, Sultanpur sent representation of the petitioner to the State Government and the copy of the same was forwarded to the Home Secretary, Union of India, Internal Security Department, North Block, New Delhi alongwith a copy of the petition with the endorsement that parawise comments shall be sent separately without delay. On 17-6-1998 parawise comments were sent to Home Secretary, U. P. Shasan and a copy of the same was also sent by registered post to the Home Secretary, Government of India, International Security Department, North Block, New Delhi. The petitioner's representation dated 9-6-1998 was rejected by the State Government vide radiogram message dated 27-6-1998. The petitioner was informed about rejection of his representation by the Superintendent, District Jail, Sultanpur on 3-7-1998. Thus the petitioner's representation dated 9- 6-1998 was rejected by the State Govern-menton27-6-1998. Affidavit on behalf of the State of U. P. was filed by Under Secretary, Home and Confidential Department, U. P. Civil Secretariat, Lucknow in which it has been stated that the petitioner's representation dated 9-6-1998 was forwarded by District Magistrate, Sultanpur on 11-6-1998 and the same was received by the State Government on 12-6-1998. It was placed before the Advisory Board on 11-6-1998. A copy of there presentation along with the comments were also sent to the Secretary, Ministry of Home Affairs, New Delhi on 10-6-1998. District Magistrate, Sultanpur sent comments of the said representation to the State Government on 17-6-1998 which were received by the State Govern ment on 18-6-1998. State Government placed these comments before the Ad visory Board on 20-6-1998 and copy of the same was also sent to the Secretary, Minis try of Home Affairs, New Delhi. State Government examined above, repre sentation and detailed note was put by the Section concerned on 22-6-1998. Joint Secretary and Secretary, Home, State Government examined the representation on 22-6-1998 and 23-6-1998 respectively. Finally it was rejected by the State Govern ment on 23-6-1998. It was communicated to the petitioner through District authorities by the State Government on 27-6-1998. The report of the Advisory Board was received by the State Govern ment on 9-7- 1998. Thereafter on 13-7-1998 the State Government informed Secretary, Ministry of Home Affairs, New Delhi that the Advisory Board found suffi cient cause for the detention of the BJtitioner. Ministry of Home Affairs, New elhi vide letter dated 14-8-1998 in timated to the petitioner through the Su perintendent, District Jail, Sultanpur as-well-as to the State Government that the above representation was rejected by the Central Government. The detention order dated 28-5-1998 was received by the State Government on 29-5-1998 and it was ap proved within 12 days from the date of the detention, as required under Section 3 (4) of the National Security Act and within 7 days the detention order was received by the Secretary, Ministry of Home Affairs, New Delhi on 7-6-1998, as provided under Section 3 (5) of the National Security Act. Thus the State Government complied with the provisions of Sections 3 (4) and (5) of the said Act,
(3.) THE facts noted above in the peti tion and the affidavits filed on behalf of the respondents No. 2 and 3, showed that the petitioner moved the representation on 9-6-1998 relating to his detention order dated 28-5-1998. It was rejected by the State Government on 27-6-1998 and by the Central Government on 14-8-1998. THE District Magistrate, Sultanpur for warded the representation dated 9-6-1998 to the State Government on 11-6- 1998 and sent parawise comments on 17-6-1998. Parawise comments were sent after 8 days of presentation of the representation to the District Magistrate, Sultanpur. THE State Government received repre sentation of the petitioner on 12-6-1998 but it was rejected on 27-6-1998. THE Central Government rejected this repre sentation on 14-8-1998. Obviously at both Governments' level there had been delay of more than 7 days to dispose of the representation of the petitioner. In K. M. Abdulla Kunhi and another v. Union of India and others, 1991 S. C. C. (Cri.) 613: 1991 JIC 267 (SC), Hon'ble Supreme Court held that the constitution al right to make representation under clause (5) of Article 22 by necessary im plication guarantees the constitutional right to a proper consideration of the rep resentation. Government has to consider the representation of its own without being influenced by any view of the Ad visory Board. The obligation of the Government to consider the repre sentation is different from the obligation of the Board to consider representation at the time of hearing the reference. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. It is a constitutional mandate com manding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.;