1. Heard Shri Daya Shankar Mishra, learned Senior Advocate assisted by Shri Chandrakesh Mishra, learned counsel for petitioner and Shri Arvind Singh, learned counsel for Union of India and learned A.G.A. for respondent nos. 1 to 3.
2. The instant writ petition has been filed seeking quashing of the impugned detention order dated 12.07.2023 passed by the respondent no. 2- District Magistrate- Ghaziabad under Section 3(2) of the National Security Act, 1980.
3. The facts, in brief, are that the petitioner herein was detained vide order dated 12.7.2023 passed by the District Magistrate- Ghaziabad under Section 3(2) of the Act, 1980 having been authorised under Section 3(3) of the Act, 1980. The said order was approved by the State Government under Section 3(4) of the Act, 1980 on 18.7.2023 and the matter was referred to Advisory Board. After receiving the report from the Advisory Board, the said detention order was confirmed in terms of Section 12 (1) of the Act, 1980 by the State Government on 2.8.2023 whereby the petitioner was detained for a period of three months from the date of initial detention order i.e. 12.7.2023. The detention of the petitioner herein was again extended vide order dated 6.10.2023 for a period of six months from the date of initial detention and thereafter the detention of the petitioner has been extended on 9.1.2024 for a period of nine months from the date of initial detention.
4. Learned counsel for the petitioner contends that since the order dated 2.8.2023 passed under Section 12(1) of the Act, 1980 is a final order, the State has no right to review the said order in terms of provisions of Section 12 of the Act, 1980, therefore, the order extending detention of the petitioner is without any authority of law and could not be sustained. Therefore, the detention of the petitioner herein in terms of order dated 6.10.2023 and 9.1.2024 after the expiry of three months from the date of initial detention is illegal and therefore, the petitioner is liable to be released forthwith. In support of his contentions, learned counsel for the petitioner relied upon the judgement of the Apex Court in Pesala Nookaraju vs. The Government of Andhra Pradesh & others reported in 2023 SCC OnLine SC 1003 and Ameena Begum vs. The State of Telangana and others reported in (2023) 9 SCC 587.
5. Per contra, learned A.G.A. submits that in view of the judgement of the Apex Court in Cherukuri Mani v. State of A.P., reported in (2015) 13 SCC 722, the State Government could not have passed an order of detention at a time for more than a period of three months, therefore, initially the confirmatory order dated 2.8.2023 was passed for detention of the petitioner herein for a period of three months and subsequently, the same was extended vide order dated 6.10.2023 and 9.1.2024. Therefore, there is no illegality either in the initial detention order dated 12.7.2023 and the confirmatory order dated 2.8.2023 and the subsequent extension orders dated 6.10.2023 and 9.1.2024.
6. In Cherukuri Mani (supra), relied upon by the learned A.G.A. , the Apex Court relying upon the proviso to Section 3(3) had held that the State Government cannot pass the confirmatory order under section 12(1) beyond the period of three months at a time. The said judgement in Cherukuri Mani (Supra), has been overruled by the Apex Court in a recent judgement in Pesala Nookaraju (supra), and has held that when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from the date of initial order of detention, but up to a maximum period of twelve months from the date of detention. The Apex Court has further held that the continuation of the detention pursuant to the confirmatory order passed by the State Government need not also specify the period of detention; neither is it restricted to a period of three months only. If any period is specified in the confirmatory order, then the period of detention would be upto such period, if no period is specified, then it would be for a maximum period of twelve months from the date of detention. The State Government, in our view, need not review the orders of detention every three months after it has passed the confirmatory order. It is further held that With respect, we observe that it is not necessary that before the expiration of three months, it is necessary for the State Government to review the order of detention as has been expressed by this Court in Cherukuri Mani (supra). The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention.
7. Following the judgement in Pesala Nookaraju (supra), in Ameena Begum (supra), the Apex Court has held that the State Government need not review the orders of detention every three months after it has passed the confirmatory order.
8. This Court has also recently dealt with elaborately this issue in Habeas Corpus Writ Petition No. 622 of 2023 (Niyaz Ansari Vs. State of U.P. and others) and also in Habeas Corpus Writ Petition No. 1046 of 2023 (Sunil chachuda Vs. State of U.P. and others) and has following the judgement of the Supreme Court in Pesala Nookaraju (supra) held that once the confirmatory order of detention passed under Section 12 (1) of the Act is a final order, the State Government has no authority to review its order. If in the confirmatory order any particular period of detention is prescribed by the State Government such detention order is valid only for that period. If no period of detention is prescribed in an order passed under Section 12 (1) of the Act, then, such detention will be for a maximum period of 12 months as prescribed under Section 13 of the Act. However, once an order under Section 12 (1) is passed by the State Government prescribing a period of detention, the said order cannot be reviewed or extended by the State Government. Such detention will be over after the expiry of the period prescribed in the confirmatory order passed under Section 12(1) of the Act. The said order cannot be reviewed or extended any further. However, the Detaining authority i.e., the State Government or the District Magistrate, may pass a fresh order in terms of Section 3(2) of the Act, if the circumstances so demand. Such detention order has to be confirmed again following the procedure prescribed under Sections 3, 10, 11 and 12 of the Act.
9. In the instant case, the confirmatory order has been passed on 2.8.2023, whereby the petitioner herein was directed to be detained for a period of three months from the initial detention order i.e. 12.7.2023. Therefore, after the expiry of three months the petitioner's detention becomes illegal and he is liable to be released forthwith. For the reasons stated above, the writ petition is allowed.
10. The petitioner-Abdul Rahman Alias Nanni is directed to be released forthwith, unless he is required in any other case.
11. We are constrained to observe that habeas corpus is a serious matter where the liberty of an individual is at stake. From the instant case and from so many other cases which we have decided in the past few days, we find that the State Government is passing orders on the basis ofa judgment passed in Cherukuri Mani Vs. State of Andhra Pradesh reported in (2015) 13 SCC 722. This judgment is dated 08.05.2014 and thereafter two further judgments have been pronounced by the Supreme Court, one being Pesala Nookaraju Vs. The Government of Andhra Pradesh & others reported in 2023 SCC OnLine SC 1003 and another being Ameena Begum Vs. The State of Telangana and others reported in (2023) 9 SCC 587 whereby the judgment in Cherukuri Mani (supra) has been overruled. Further in this case we find that the counter affidavit was filed by State of U.P. on 14.12.2023 (sworn on 26.10.2023), relying upon the Supreme Court's judgment passed in SLP No. 7453 of 2018 dated 31.08.2018. Paragraph 13 of the aforesaid counter affidavit is reproduced herein for ready reference :-
"That it is most respectfully submitted that the Hon'ble Supreme Court in the S.L.P. No. 7453 of 2018 vide its order dated 31.08.2018 has clarified that the state government can extend the detention period and there is no need to get another approval from Advisory Board for the same."
12. This judgment has absolutely nothing to do with the detention of a person. Infact in this judgment the Supreme Court has refrained from interfering with the High Court’s judgement. All this definitely shows that the State of U.P. is relying upon a judgment dated 14.05.2014 which had been subsequently overruled by the judgments which were passed on 16.08.2023 and 04.09.2023 by the Supreme Court. Both these judgments were passed before the affidavit of Shri Premendra Kumar Gupta, Deputy Secretary Home Confidential Department, U.P. was sworn on 26.10.2023. Therefore this definitely shows that the State is not getting effective legal assistance. We find that due to the lack of proper legal assistance wrong cases are being relied upon and wrong/illegal orders are being passed by the authorities. In the instance case the extension orders were passed on 06.10.2023 & 09.01.2024. Thus these orders were also passed after the judgments of the Supreme Court were delivered on 16.08.2023 & 04.09.2023, wherein specifically the judgment of Cherukuri Mani (supra) which was dated 08.05.2014 was overruled. If this state of affairs continues, the Court would be constrained in future to impose heavy costs upon the State. We, keeping in mind the state of affairs, consider it appropriate to direct that the Secretaries which pass orders in such serious matters should be given legal assistance. The State may have a panel of meritorious lawyers for this purpose.
13. Registrar (compliance) of this Court is directed to forward a copy of this judgement to the Secretary, Home, Government of U.P. for necessary compliance.
