9911796707
TMI Blog2000 (9) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... which show that the petitioners were involved in criminal activities. It appears that on 11-7-1999 Arun Kumar Jain called Swatantra Rastogi from his house 10, Shivaji Road, P.S. Civil Lines, Meerut and was taking him to his factory. Electra India Ltd.' in Maruti Esteem Car No. UP-15 J-5317 through Roorkee-Delhi bye-pass. Haji Rais Ahmad was also sitting in the said Car. At about 12 noon another white Maruti Car No. DL 3 CP 7850 came from Meerut side and by overtaking the car in which Swatantra Rastogi was sitting got stopped. Swatantra Rastogi was dragged from the car and was got seated in the white Maruti Car by causing injury by butt of fire-arm and he was taken towards Delhi. Report regarding above incident was lodged on 11-7-1999 at 12.30, at. P.S. Partapur, District Meerut. A case at crime No. 201 of 1999 under Section 363, I.P.C. was registered. That the news about above sensational incident was published in various newspapers like Statesman, Times of India, Hindustan Times, Punjab Keshari, Nav Bharat Times, Amar Ujala etc. The above incident caused sense of terror and insecurity in the mind of traders and industrialists. They came on road to raise protest and launched a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co-accused Arun Kumar Jain, who was also detained under Section 3(2) of the Act, vide order dated 13-9-1999 made a representation to the Advisory Board, State of U. P., Lucknow and after receiving the advice from the Advisory Board, the State of U. P. revoked his detention order, vide order dated 28-10-1999, before the detention of the petitioners under the Act, but the above order was not placed before the detaining authority. Co-accused Arun Kumar Jain was detained in the same case and incident on which the present petitioners have been detained. Therefore, it was an identical fact involving common ground and was relevant and important piece of material which the detaining authority failed to consider and therefore vitiated the detention order. 2. The bail applications of the petitioners as well as that of co-accused Arun Kumar Jain were also not placed before the detaining authority and therefore, the detaining authority failed to consider relevant and material document. 3. The petitioners made representation on 3-1-2000 which was received by the State Government on 5-1-2000, but it was rejected on 13-1-2000. The above delay in disposal of the representation of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same incident and was on identical facts and therefore, it was relevant and important piece of material and if the detaining authority in the instant case was apprised that the Advisory Board had reported on examining, inter alia an identical ground that there was no sufficient cause for detention of another person. Involved in the same transaction, it may not have passed the order of detention against the petitioners, which is based on similar facts. It is not disputed that the detaining authority has not considered the revocation order of co-accused Arun Kumar Jain while passing the detention order. The learned counsel for the petitioners placed reliance on the Apex Court decision in Mohd. Shakeel Wahid Ahmed v. State of Maharashtra on the above point. In the said case the petitioner was detained under an order dated November 7, 1981. Prior to that, one Shamsi was detained under an order dated August 19, 1981 passed by the same Government, the Government of Maharashtra. After considering the reference and the materials placed before it in Shamsi's case, the Advisory Board reported to the State Government on October 19, 1981 that there was in its opinion no sufficient cause fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind to the relevant facts which bear upon the detention of the petitioner. It seems to us plain that the opinion of the Advisory Board in Shamsi's case was, at any rate, an important consideration which would and ought to have been taken into account by the detaining authority in the instant case. That opportunity was denied to it. 10. Relying on the above decision of Mohd. Shakeel Wahid Ahmad's case (supra) the Apex Court in the Ahmed Nassar v. State of Tamil Nadu (1999) 8 JT (SC) 252 : AIR 1999 SC 3897) held as below (Para 20) :- A man is to be detained in the prison based on subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have bearing on the issue should be placed before the detaining authority. Sponsoring authority should not keep it back based on his interpretation that it would not be of any help to a prospective detenu. Decision is not to be made by the sponsoring authority. The law on this subject is well settled a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision. 11. It is not disputed that co-accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. Therefore, non-pleading of this ground in the writ petition will have no effect. As such absence of pleading regarding above ground in writ petition will not affect. 15. Sri Mahendra Pratap further contended that the role of Arun Kumar Jain co-accused, whose detention order was revoked was different from that of present petitioners as it was found that he was only a conspirator and had not actually participated in the kidnapping and therefore, his above revocation has no bearing on the case of petitioners. We are of the view that this contention cannot be accepted because it was a particular incident, which created sense of insecurity i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Rajammal v. State of T.N., 1999 SC (Cri) 93 : AIR 1999 SC 684 as below (Para 9) :- The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. 18. As we have pointed out that there is no explanation for the delay from 4-1-2000 to 6-1-2000 and 11-1-2000 and 12-1-2000, therefore, unexplained delay adversely affected the continued detention of the petitioners. 19. Since we have found that the relevant and important material i.e. revocation of order of co-accused Arun Kumar Jain was not considered by the detaining authority while passing the detention order of the petitioners and there was also unexplained delay in disposal of representation of the petitioners, which vitiated the detention order and render ..... X X X X Extracts X X X X X X X X Extracts X X X X
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