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Allahabad High Court quashed a detention order issued against a person accused under National Security Act (NSA) on the ground that unreasonable delay was caused in processing the representation made by the petitioner and in placing the same before the Advisory board. A two-judge bench comprising Justices Pradeep Kumar Srivastava and Pritinker Diwaker in its order dated December 7, 2020 directed the petitioner to be released forthwith and quashed the order while making important observations pertaining to following proper procedure in preventive detention cases.
The petitioner, Javed Siddiqui filed the habeas corpus petition against the detention order passed against him under the NSA on July 10, 2020.
The background of the case is that the petitioner along with around 80 other companions entered a slum locality used casteist words against everybody who came in the way and abused them and also beat them up while also damaging their houses with lathis, even lit the houses on fire. Eventually an FIR was filed against the petitioner and many others under relevant sections of the Indian Penal Code, Prevention of Damage to Public Property Act, Epidemic Disease Act, Disaster Management Act as well as Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and UP Gangster Act.
The petitioner was able to acquire bail in all other cases except under crime registered under UP Gangster Act and hence continued to remain in jail. The District Magistrate found that the petitioner is making all efforts to obtain bail and it was felt by the DM that after coming out from jail, the petitioner will again start similar kind of lawless activities and it will not be possible to maintain law and order and communal harmony and hence decided to initiate action for preventive detention under Section 3(2) of the NSA.
The petitioner was informed about his rights of making a representation, through the Jail Superintendent, before the State Advisory Board and the details thereof, including limitation. Accordingly, the petitioner made a representation with a request to set aside the detention order and in the alternative, also made a request to make available the relevant documents to him as early as possible. However, it was not forwarded in time and the same was rejected on the basis that it was not received in time. He was also not supplied with relevant documents thus unable to make effective representation against the detention order.
The petitioner contended that his representation was dealt with by the State Government and Central Government in such a way that it would reach only after the recommendation of the Advisory Board and it gave rise to the preliminary rejection of the representation. He was also not given adequate opportunity of hearing before the Advisory Board and his representation was not referred to the Advisory Board; neither was he given the opportunity to put his case through a counsel or through a legal expert.
The court observed, through the facts of the case, that even though representation was made by petitioner within the limitation of 12 days of receiving detention order, the same was not placed before the Advisory Board until August 12, when the Board made recommendation for approval of his detention order. The petitioner’s recommendation remained pending before the State government and after 2 days from the date the Advisory Board sent the recommendation, the same was rejected. The representation was kept pending for more than 3 weeks and was never placed before the Advisory Board. The court held that the inaction on the part of authorities resulted in denial of fair opportunity of hearing and on this ground alone, the impugned detention order stood vitiated.
The court observed that delay in taking a decision on representation, and not placing the same before the Advisory Board, are important factors to adjudicate upon the legality or illegality of the order of detention. However, the court clarified that such delay could have reasonable explanation and hence depends upon the factual situation in that particular case.
The court held that Even on the date when the case was fixed before the Advisory Board, the authorities could have placed the representation of the petitioner before the Board and stated that no reasonable explanation was provided by the state for not placing the representation before the Board.
The court further observed, “it is evident from the record that, while extra ordinary haste was shown in taking action against the petitioner, the authorities remained reluctant and there was complete inaction on their part causing unjustified delay in processing the representation of the detenue and in not placing the representation before the Advisory Board. This inaction on the part of the authorities certainly resulted in deprivation on the right of the petitioner of fair opportunity of hearing and it also resulted in denial of the opportunity of fair hearing to the petitioner as provided under law. This is not permissible and is in gross violation of established legal and procedural norms and legal and constitutional protection”.
The court made further pertinent observations relating to following the legal procedures when it comes to preventive detention since it concerns with right to liberty of an individual,
“The history of personal liberty is largely the history of insistence on observation of the procedural safeguards. The law of preventive detention, though is not punitive, but only preventive, heavily affects the personal liberty of individual enshrined under Article 21 of the Constitution of India and, therefore, the Authority is under obligation to pass detention order according to procedure established by law and will ensure that the constitutional safeguards have been followed.”
On the basis of above mentioned grounds, the court held the detention order under NIA and subsequent extension orders to be “arbitrary and illegal and is liable to be quashed.”
The complete order may be read here.
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