M.C. Jain, J.@mdashBy means of this habeas corpus petition the petitioner Idris has challenged the detention order dated 3-7-1999 passed
against him by respondent No. 3 (District Magistrate Bulandshahr ) u/s 3(2) of the National Security Act, 1980 and his continued detention
thereunder.
2. Affidavit and counter-affidavits have been exchanged between the detention the parties.
3. We have heard Sri Sunil Kumar, learned counsel for the petitioner, learned A.G.A. for respondents No. 2, 3 and 4 and the learned counsel
representing respondent No. 1 - Union of India. The record has also been examined by us. The grounds of detention of the Petitioner have been
annexed as Annexure 1 to the writ petition. According to them, in between the night of 13/14 th June, 1999 at a distance of 50-60 yards from
Ganga Ghat Basi within Police Station Narsena, District Bulandshahr, 60 or 65 calves aged between 1 and 11/2 year had been slaughtered with a
planning and the beef had been carried to Delhi on trucks etc. for sale. 40 heads of calves, 192 legs and 9 skeletons had been found there. The
petitioner was allegedly one of the offenders of this crime whose complicity came to be known during investigation consequent upon the lodging of
the first information report the following day by one Om Prakash at 12.30 P.M. The news of slaughtering of calves at such a large scale spread like
wild fire and communal tension was created in the area. Public order was disturbed. Steps had been taken to maintain public order by deploying
police force in the area inhabited by mixed population of different communities A case under the U.P. Prevention of Cow Slaughter Act has also
been registered.
4. The grounds also stated that the petitioner was attempting to get bailed out and there was every apprehension that on coming out of jail he
would again indulge in such activities adversely affecting public order and would also destroy the evidence.
5. The first contention of the learned counsel for the petitioner is that the petitioner was not named in the first information report and he had simply
been falsely implicated at the instance of his enemy Shabbir. It has been urged that at any rate, the incident was only a law and order problem
having nothing to do with public order.
6. So far as the alleged false implication of the petitioner is concerned, this Court would not enter into the sufficiency or otherwise of the material
because while deciding Habeas Corpus Petition we do not sit in appeal over the order of detention passed by the detaining authority. The basic
thing is that credible material before the detaining authority was there on the basis of which reasonable inference could be drawn regarding adverse
effect on the maintenance of public order owing to the incident in question in which the involvement of the present petitioner was alleged.
7. On a careful consideration we are inlined to reject this contention also that the incident was only matter of law and order The slaughtering of
calves at such a large scale in an area inhabited by different communities had the potentiality of disturbing communal harmony and to give rise to
communal riots by the flaring up of communal frenzy. It cannot be denied that such an incident was to hurt the religious feelings of certain section of
the society. The detention order clearly states that additional police force had to be deployed to maintain public order because of the situation
arising from this incident. So, in our view, it was such an act as to give rise to an inference prejudicial to the maintenance of the public order. We,
therefore, reject the first argument advanced by the learned counsel for the petitioner.
8. It has next been argued by the learned counsel for the petitioner that there was unexplained delay in disposal of his representation by the Central
Government. It has been submitted that the petitioner had furnished ten copies of his representation to the District Superintendent Jail, Bulandshahr
on 7-7-1999 with a request to send the same to the State Government and Central Government. The representation of the petitioner was
ultimately rejected by the Central Government on 22-7-1999. On the other hand, it is submitted that by the learned A.G.A. on behalf of
respondent No. 2 to 4 and learned counsel for respondent No. 1 - Union of India that there was no delay at all in the decision of the
representation of the petitioner. It has also been submitted that the petitioner did make a second representation dated 27-12-1999 which also
came to be rejected during pendency of this writ petition. The contention from the side of the respondent is that the petitioner having made a
second representation dated 27-12-1999. He cannot now rake up the question of alleged delay in disposal of his first representation.
9. We have examined this aspect of delay in disposal of first representation of the petitioner by the Central Government. We are of the opinion that
the petitioner cannot be precluded from raising the contention of delay in disposal of his first representation by the Central Government simply
because he made a second representation on 27-12-1999. Making of second representation does not wipe off the delay, if any on the part of the
Central Government in disposal of the first representation the petitioner. The learned counsel for respondents have reasoned that the first
representation of the petitioner was not addressed to the Central Government. The same had been received in the office of the District Magistrate
through jail authorities on 7-7-1999 and after collection of relevant information parawise comments were prepared and the representation was sent
through special messenger to the State Government on 10-7-1999. It is so stated in paragraph No. 8 of the counter affidavit filed by the District
Magistrate Bulandshahr. The affidavit of Sri .R.A.Khan filed on behalf of State Government states in paragraph No. 3 that the representation of the
petitioner was received by the State Government on 12-7-1999 and the same along with parawise comments was sent to the Advisory Board as
well as to the Central Government on 13-7-1999. The argument of learned A.G.A. is that it was discovered only on the perusal of the
representation that the petitioner also meant it to be considered by the Central Government (though it was not addressed to the Central
Government). As per the counter affidavit of Sri Sushil Kumar filed on behalf of Central Government, it was received there on 16-7-1999. In this
way, it s submitted tha no delay occurred when the representation of the petitioner was decided by the Central Government on 22-7-1999 after
having been received only on 16-7-1999. From the side of the respondents reliance is placed on the case of Jasbir Singh v. Lt. Governor Delhi
(38) 1999 Acc 801 in which in a case of detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, the
disposal of representation by the Central Government on 13-7-1995 which had been filed on 22-6-1995 was not held to have been decided after
inordinate delay.
10. In our opinion, the said ruling would not be of much help to the respondents under the facts and circumstances of the present case. The Apex
Court observed in the said case as under:
...There is no inflexible Rule that delay in considering the representation in all cases ipso facto would be sufficient to render the detention void.
Further what can be held to be an unexplained delay in disposing of the representation would depend upon the facts and circumstances of each
case. The right to make a representation is undoubtedly a constitutional right of detenu and such a representation should be considered as
expeditiously as possible. But what is reasonable expedition will depend upon the facts of each case....
11. In the present case, the averment of the petitioner has not been disputed in the counter affidavit filed by Sir Shobh Nath Yadav, Dy. Jailer that
he had submitted ten copies of representation on 7-7-1999. In the case of Jai Prakash v. District Magistrate Bulandshahr (38) 1992 ACC 256 the
Apex Court held that when the representation was simply addressed to ""Home Minister"" without disclosing whether it was for State or Central
Government and the detenu had given nine copies of it to the Jail Superintendent, one copy ought to have been sent to the Central Government. By
not doing so, the detenu was denied his right to make effective representation and the detention was liable to be quashed on this ground. In the
present case . When the representation of the detenu was scrutinized by the detaining authority-District Magistrate Bulandshahr and comments
were prepared, it must have necessarily come to his notice by the bare reading of the representation of the petitioner that he also meant it to be
considered by the Central Government, Despite that he adopted a circumlocutory course by sending his representation to the State Government
wherefrom it was transmitted to the Central Government on 13-7-1999 to be received there on 16-7-1999. The detaining authority sent the
representation of the petitioner to the State Government through special messenger but took no steps to send one copy of the same simultaneously
to the Central Government for consideration. Had the same been sent simultaneously to the Central Government on 10-7-1999 itself (on which
date it was sent to the State Government by special messenger) even by ordinary post, the same would have ben received in the central
Government much before 16-7-1999 when it was actually received there. It is thus apparent that the transmission of the representation to the
Central Government was dealt with in a casual and insouciance manner. It ultimately contributed an unexplained delay in consideration of the
representation of the petitioner by the Central Government which decided it on 22-7-1999. In any view of the matter, the delay between 10th July
1999 goes unexplained. The Apex Court has held in the case of Rajammal Vs. State of Tamil Nadu and Another, that even four days unexplained
delay renders the continued detention of the petitioner to be illegal. Their Lordship held that even longer delay could be explained. The test was not
duration or range of delay but how it was explained by the authority concerned. We are therefore, of the opinion that respondent No. 3 District
Magistrate Bulandshahr did not take requisite steps and care in sending the representation of the petitioner to the Central Government
simultaneously when he sent it to the State Government. It resulted in six days'' unexplained delay, ultimately contributing in the disposal of the
representation of the petitioner by the Central Government. We are of the view that it had rendered the continued detention to be illegal and he is
entitled to the relief.
12. For the reasons stated above the writ petition deserves to succeed on the ground of unexplained delay in deciding the representation by the
Central Government. The Writ petitioner is found to be illegal, the respondents are directed to set the petitioner at liberty forthwith if his detention
is not required in any other connection.