Raisuddin @ Babu Tamchi v. State of Uttar Pradesh & Anr.

Judgment

ORIGINAL JURISDICTION: Writ· Petition 1983 .. (Criminal) (Under Article 32 of the Constitution) No. 37 of Mrs. M. Qamaruddin and Rizwan A. Hafiezfonhe Petitioner. O.•P. Malhotra, and D. Bhand.,ri for the Respondents. TP,e Judgment of the Court was delivered by BALAKRISHNA ERADI, J. Taking into consideration the fact that , this is .a petition for a writ of Habeas Corpus filed under Article 32 the Constitution oflndia challenging the legality of the preventive detention of the petitioner under the provisions of the Nationai Security Act 1980 and the conseqaent urgency· of the matter, as so.on as the hearing of arguments in the case were completed, we .announced the conclusion reached by us by passing the following order: "After hearing counsel, appearing on botb sides, we have· come to the conclusion that the order of detention impu· gned in this Writ Petition does not call for any inter· ference. The Writ Petition is. accordingly dismissed. Detailed reason will follow."

We now proceed .to state the reasons that weighed with us in reaching the aforesaid conclusion. a4i • [1!184] l s.c.R. By an order dated November 6, 1982, passed by the District Magistrate, Moradabad, in exercise of the powers conferred under section 3, sub-section 3 of the National Security Act, 1980-herein-. after called the Act-the petitioner, Shri Raisuddin @ Babu Tamchi was ordered to be 1clrrested by the Senior Superintendent . of Police and to be detained in the District Jail, M<iradabad, with a view. to his being prevented from mdulging in any activity which may affect the,maintenance of public order. Pursuant there to, the peti· tioner was arrested on 8th November, 1982, and placed undeP detention. On the same day (8.11~ 1982), · the petitioner was served with the order of detention ·and a . memorandum setting out th~ grounds of his detention.

On 12th November, 1982, the State Government approved the detention of the petitioner and on the 18th of November, ·the case was referred by the State Government to· the Advisory Board constituted under section 9 of the Act. Subsequently, on 24th November ·1982, the petitioner submitted bis representation against t)!e order of detention. The said representa- . tion was addressed by the petitioner to the District Magistrate, Moradabad. The District Magistrate forwarded the representation · on the same day to the Senior Superintendent of Police, Moradabad, for his comments on the submissions contained in the letter. On the 27th of November, 1982, the Senior Superintendent. of Police submitted his comments to the DistriCt Magistrate. Thereafter, on 3rd December, 1982, the District Magistrate sent a report to the State Government enclosing the representation as well as the comments submitted by the Senior Superintendent of Police.

The aforesaid papers despatched from Moradabad were received by the State Government on the 6th December, 1982. On 9th December, !9S2, the State Government considered the petitioner's representation and rejected the same. Simultaneously, on the same day, the State Government forwarded the . representation of the petitioner to the Advisory Board. On 10.12.1982, the Advisory Board met to , consider the case of the petitioner, gave a_, personal hearing to the petitioner and drew up its report holding that there was sufficient cause for the detention of the petitioner. The report of the Advisory Board was received by the. State Government on 12th December, 1982, and on 21st December, 1982, the State Government confirmed· the detention order under section 12 of the Act. The petitioner wa& informed about the order of.confirmati?n on· 24.22.1982.

Though a faint attempt was made before us by the counsel for the petitioner to contend that the grounds of detention served on the petitioner did not disclose any material relevant under section 3 of RA!SUDDIN v. U.P. STATE (V.B. Eradi, J.) the Act, there is no scope at all for urging such a contention in the present case. The imputation against the petitioner is that he was inciting and fomenting communal hatred and . violence and creating an atmosphere· of fear and tension in the town of Moradabad as a resu~ of which the schools, colleges .and shops were remaining closed .in the town and terror reigned in the whole town .. Two criminal cases had been registered against him under section i 47 /353/153A •l.P.C./7 Criminal Law Amendment Act.

As there was a possibility of his being released on bail and continuing to indulge in such activities which were greatly prejudicial to the maintenance of public order, -it was considered necessary by the detaining authority to place the petitioner under detention. Having regard to the situation then prevail\ng in the town of Moradabaa whii;:h was unfortunately the scene of grave communal disturbances, it is impossible to counte- . nance the contention advanced on behalf of the' petitioner that the · grounds set out in support of the oraer of detention are. irrelevant for sustaining an order of detention being made under section 3 of the Act. • The next argument advanced on behalf of the petitioner was that there had been inordinate delay on the part of the detaining authority in forwarding the ·petitioner's representation to the State Government.

The petitioner liad addressed his representation .not to the State Government as contemplated by section 8 of the Act, but to the District Magistrate, Moradabad. It was received by the District Magistrate on the 24th of November and promptly, on the .same day, the Dirtrict Magistrate forwarded it -to Senior Superintendent of Police for the latter's comments. The comments of the Senior superintendent of Police were received in the office of the District Magistrate on the 27th November .but it was only on the 3rd December that the District .Magistrate forwarded his report to the State Government enclosing the petitioner's representation and the c_omments of the S7nior Superintendent of Police.

It was vehemently argued by the counsel for the petitioner that there bad been undue and unexplained delay on the part of the detaining autho;ity in forwarding the petitioner's representation to the State Government inasmuch as a period of nearly six days had elased between the receipt of the comments of the Senior Superintendent of Police in the office of the District Magistrate and the submission of bis report to the State Government. The original file pertaining to this case maintained in the office of the District Magistrate was produced before us for our perusal by Sliri 0 P. Malhotra, the learned Senior Advocate appearing on behalf of the respondents. It is seen tbe~from that during 8 t 0 [1984]

1 s.c.it. the period from 28th November to the . evening of the !st December, 1982, the District Magistrate had to emergently leave his headquarters because of the disturbances tha.t had occurred in other localities within his Jurisdi.ction where his presence was urgently needed for tackling the explosive situation. After he rcturhed to the headjmirters on the evening of 1st December, the District Magistrate without losing any further time forwarded the petitioner's representation to the State Government on the 3rd December together with his report and the comments. received from the Senior Superintendent of Police.

We arc fully satisfied on our perusal of the file and the averments contained in the counter affidavit filed on behalf of the respondents that the petitioner's representation has. been. dealt with by the District Mftgistrate with all the promptness that was rea,oriably possible under the circumstances then obtaining·in Moradabad city and the snrrounding areas arid that the charge of lnordinaic. delay levelled by the petitioner is baseless. ,In this context we consider it necessary , to emphasise that the questioff whether the representation submitted ·by a. detenu· has been dealt with all reasonable promptness and · · deligence is to be decidad not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and, circumstances of each case; if on such examination, it is found that there was any remissness, indifference, or avoidable delay on the part of the detaining authority/State Government in dealing with the rep~esentation, the Court will undoubtedly treat it as a factor vitiating the continued / oetention of the detenu; on the other hand, if the Court is satisfied that the delay was OCCassioned not by any lack Of deligence OF pro.mptness of attention on !he part of the authority concerned, but due.to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.

As already indicated, the case before us falls under the latte.r category inasmuch as we are satisfied that there was no avoidable delay on the part of the District Magistrate in forwarding the petitioner's representation. The last point urged on behalf of the petitioner is that there ,has been a violation of the provisions of the section 10 of the Act because the Advisory Board had not considered the case of the petitioner within three weeks from the date. of detention. As already noticed, the petitioner submitted his representation to the District Magistrate against the. detention onli on 24. 11, 1982 eVtin thouah he had been arrested and placed under detention on 8th November. Th~ ll.AISUDDIN v. U.P• STATE (V..B. Eradi,J.) sard representation reached the State Government-on 6th December, 1982. In the meantime, the petitioner's case· had been referred by the State Government to the Advisory Board .on the 18th November ·itself.

The representation received from the petitioner was forwarded by the State Government to the State Advisoty Board on 9th December, 1982. The Advisory Board held its meeting on 10th December, 1982 and, -after affording a personal hearing to the petitioner, made its report finding sufficient cause for the detention of th~ 11etitioner. The argument put forward on behalf of the retitioner is that section. 10 mandatorily en joins the State Government to take steps to see that the case of the detenu is considered by· tl)_e Advisory Board within three weeks frol]l the da.te of detention.. We are unable. to see any merit in this contention. Section 10 reads :

"Save as otherwise expressly provided in this Act, in every case where a detention ·or(Jer has been made' under this Act, the appropriate Gov~rnmeni shall, within three. weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9' the grounds on which the order has been made and the representation; if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of sectiO'll 3, also the report by such officer under subsection (4) oftha.t section." Under the section; a 'duty is cast on the appropriate Government, to "Place before" the Advisory" Board constituted under ·section 9 within three weeks from the date of detention, tbe grounds on which the. order of detention has been made and the representation, "- if any, made by the person affected by the order.

The petitioner's counsel wanted us to interpret the words "plac~ before the Advisory Board" as meaning "get considered by tbe Advisory Board''. We are wholly· unable to accede to this argument. Under the terms of.the section, tlte duty cast on the appropriate Gpvemment is to forward .IQ the Advisory. Board constituted under' section 9 within three weeks from the date of detention, the papers pertaining to the detention of the detenu consisting pf the grounds on which· the o~der ·has been made, the representation, if any, made by the person affected by the order, etc. It is to be remembered that the Advisory Board is not an entity subordinate to the Government. It is a wholly independent l;>ody cons.istin~ of persons who are or have been or are qualified to be 11 R 346. SUPREMB COURT REPORTS (1984] I s.c.R. appointed as Judg~s ofa!lJigh Court.

It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under section 11 of the Act which has specified a time. limit or seven weeks from the date. o.f detention for the submission of the Board's report to the appropriate Government. It is, therefore, wholly wrong to interpret the words "place before" as meaning anything more than forward . to or submit befo_re the Advisory Board the relevant papers relating to the detention of the detenu. In the present case, the Advisory Board has disposed of the petitioner's case well within the period of seven weeks specified in sub-section (I) of Section 11 .of the Act. This contention of the petitioner is also, therefore, devoid of substance.

The conclusion that emerges from the foregoing discussion is that thereis no ground whatever justifying any interference with the order.of detention passed against the petitioner and the writ petion is, tlterefor.e, <;mly to be dism'issed. H.S.K. Petition dismis~ed.