"Unexplained Delay Of 4 Days": Allahabad HC Quashes NSA Detention Of Man Who Allegedly Protested, Assaulted Police Force

The Allahabad High Court last week quashed the detention order passed under the National Security Act on account of 4 days of unexplained delay in disposing of the petitioner/detenue's representation by the Union of India.

This order was passed by the Bench of Justice Ramesh Sinha and Justice Saroj Yadav while hearing the habeas corpus plea filed by the detenue Sonu @ Mohd. Ishtiyaq through his Mother Shameem Bano.

The facts in brief

Allegedly, in Tehsil Ram Sanehi Ghat, Barabanki, some people were living after constructing the illegal houses on the Government land, adjacent to offices and official residences of Deputy Collector Ram Sanehi Ghat and Circle Officer.

As alleged, they had also constructed a passage unauthorizedly, which was being used by the persons of doubtful category, thereby causing danger to the Government records and other properties and also that the Government work was also being disturbed.

It was also found that on the Government land some rooms were constructed unauthorizedly and they were used for "Offering Namaz", therefore, Tehsildar Ram Sanehi Ghat issued a notice in this regard, but no reply was received from the unauthorized occupants and thus, the Tehsildar Administration got constructed the wall and closed the unauthorized passage, but kept both the legal passages open which were already in existence.

Pursuant to this, on 19.03.2021 after "Offering Namaz", the petitioner and his companions reached the spot armed with deadly weapons and they assaulted the police force and they protested against the policies of the State Government and removal of illegal encroachment.

In this incident, many police personnel got injured and the public order got disturbed. The petitioner was arrested at the spot along with many other co-accused persons, the country-made pistol was recovered from the possession of the petitioner.

A case was registered against the petitioner under Sections 120-B, 147, 148, 149, 323, 504, 506, 307, 332, 333, 336, 352, 427, 34 & 188 I.P.C. and Section 7 of Criminal Law Amendment Act.

Since the petitioner has been granted bail by the concerned Court, therefore, in order to restrain the petitioner from creating trouble which may result in the collapse of public order, proceedings under National Security Act had been invoked.

Therefore, the impugned detention order was passed on April 11, 2021, depicting that the detention order was passed to maintain public order and public peace. 

The argument of the petitioner 

It was argued by the petitioner/detenue that there was undue delay in disposal of his representation on the part of the Central Government, Ministry of Home Affairs, New Delhi as the representation dated May 18, 2021, had been decided by the concerned authority on June 25, 2021, after a delay of more than a month.

Court's observations 

At the outset, perusing the affidavit filed by the State Government, the Court noted there was no delay on the part of the State Government in deciding the representation of the detenue against his detention.

However, persuing the affidavit filed on behalf of the Union of India, the Court observed that the representation of the Detenue dated May 18, 2021  along with the para wise comments of the detaining authority was processed for consideration for Union of India, Home Secretary on June 18, 2021 and the representation was rejected and detenue was informed of the rejection dated June 25, 2021.

Against this backdrop, the Court observed thus:

"In the affidavit filed on behalf of Union of India the delay on 19.06.2021 and 20.06.2021 has been explained (19th and 20th June 2021 were holidays being Saturday and Sunday), but the affidavit is silent on the delay of 21.06.2021 to 24.06.2021. Thus delay of four days has not been explained."

Therefore, the Court held that on account of unexplained delay of four days on the part of the Union of India, the continuation of the preventive detention stood vitiated.

In this regard, the Court referred to Apex Court's ruling in the case of Rajammal Vs. State of Tamil Nadu and another : (1999) 1 SCC 417 and Harish Pahwa v. State of U.P. : AIR 1981 SC 1126 which deal with the expeditious disposal of the representation filed by the detenue against their detention.

In light of the aforesaid discussion, the Court allowed the Habeas Corpus petition and the impugned orders of detention and other consequential orders were quashed. 

Case title - Sonu @ Mohd. Ishtiyaq Through Mother Shameem Bano v. Union of India and others

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