'Extraordinary Haste Shown': Allahabad High Court Cautions State To Use National Security Act With Extreme Care

"Where the law confers extra-ordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care."

The Bench of Justice Pritinker Diwaker and Justice Pradeep Kumar Srivastava was hearing a habeas corpus petition filed by Javed Siddiqui (Detenu).

Quashing the detention order under the NSA, the Bench observed that the authorities did not present Siddiqui's petition report before the Advisory Board on time.

The Case before the Court

The Detenu was arrested along with others during a clash between Dalits and Muslims at Bhadethi village in Saraikhwaza area of Jaunpur in June this year.

Around 10 houses of Dalit families were set on fire after a clash with Muslims at Batheti village in Jaunpur district of Uttar Pradesh on Tuesday night, leading to tension in the area.

The petitioner was booked for arson and rioting; however, he was released on bail but remained in jail under Crime No. 156 of 2020, under Section 3(1) U.P. Gangster Act.

The District Magistrate found that the petitioner was making all efforts to obtain bail and it was felt by the DM that after coming out from jail, the petitioner will again start a similar kind of lawless activities.

Further, he observed that it would not be possible to maintain law and order and communal harmony and, therefore, after being satisfied, it was decided to initiate action for preventive detention under Section 3(2) of the National Security Act.

Thereafter, the Petitioner (Javed Siddiqui) filed a writ petition against the detention order passed on 10.07.2020, under Section 3(2) of the National Security Act and requested to issue a direction to produce him in the Court and also for setting aside the impugned detention order.

Arguments put forth

The submission of the counsel for the petitioner was that despite he made representation against the detention order, the same was not forwarded in time and the same was rejected on the basis that it was not received in time.

It was contended that the detention order was in complete violation of Articles 22(5), 14 and 21 of the Constitution of India and Section 3(2), 3(4), 3(5), 8, 10, 12 and 14 of the National Security Act and that he was entitled for immediate release from jail.

It was argued that his representation was not disposed of in a legal manner by the District Magistrate. The Central Government also disposed of his representation dated 27.07.2020 after much delay on 01.09.2020.

Significantly, the admitted fact was that the detaining authority passed the detention order on 10.07.2020 against the petitioner and the petitioner gave his representation on 20.07.2020. The detention order was approved on 21.07.2020.

The representation so given by the petitioner was well within the prescribed period of 12 days.

However, on 14.08.2020, his representation was rejected. Prior to that, the Advisory Board had already made the recommendation for approval of the detention order on 12.08.2020.

The record showed that the petitioner's representation was not placed before the Advisory Board till 12.08.2020 even though the same was filed on 20.07.2020.

His representation remained pending with the State Government and after 2 days from the date the Advisory Board sent the recommendation, the same was rejected.

In other words, his representation was rejected after his detention was approved by the Advisory Board.

Court's Order

The Court, in its order, remarked,

"We are of the view 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."

Noticing the "the reluctance on the part of opposite parties in delaying and keeping the representation pending and not placing the same before the Advisory Board", the Court said,

"The representation was kept pending for more than 3 weeks and was never placed before the Advisory Board. After the recommendation was made by the Advisory Board on 12.08.2020, the representation was rejected by the Authority."

The Court was of the view that on the date when the case was fixed before Advisory Board, the authorities "could have placed the representation of the petitioner before the Board."

Thus, the Court did not find that any reasonable explanation was been given for delay and not placing the representation before the Board.

Observing that "extraordinary haste was shown in taking action against the petitioner", the Court said,

"Inaction on the part of the authorities certainly resulted in deprivation on the right of the petitioner of the 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."

In view of above discussion, the Court found that the impugned detention order dated 10.07.2020 and its subsequent extension orders passed against the petitioner was arbitrary and illegal and was liable to be quashed.

Thus, the writ petition was allowed and the impugned detention order of the petitioner Javed Siddiqui was quashed.

Case Title: Javed Siddiqui v. Superintendent District Jail Jaunpur And 3 Others [Habeas Corpus Writ Petition No. - 458 of 2020]

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