The Allahabad High Court has quashed the detention order of Niaz Ansari, driver of shooter and politician Abbas Ansari, terming it illegal.
The Division Bench of Justice Siddhartha Varma and Justice Anish Kumar Gupta passed this order while hearing a Habeas Corpus petition filed by Niyaz Ansari.
A First Information Report was lodged on 11.02.2023, alleging that quite a number of persons were illegally meeting the already incarcerated person, namely Abbas Ansari in the Jail premises and were trying his escape from lawful custody.
The petitioner herein was arrested and was in judicial custody. When the petitioner herein moved an application for his release on bail, the District Magistrate who was delegated powers under Section 3(3) of the National Security Act, 1980, apprehending the disturbance of public order by the petitioner herein passed an order dated 06.05.2023 under Section 3(2) of the Act, directing detention of the petitioner.
Under Section 3(4) of the National Security Act, the State Government on 10.05.2023 approved the detention order. Thereafter, as per Section 3 (5) of National Security Act, the detention order, grounds of detention and all other relevant documents, as were in the possession of the State Government, were sent to the Central Government by a communication dated 11.05.2023. Also, under Section 10 of the National Security Act, 1980, on the same date i.e on 11.05.2023, the matter was referred by the State Government to the U.P Advisory Board (Detention), Lucknow. The Advisory Board, after allegedly complying with all the provisions under Section 11 of the National Security Act, sent its report (the date of which is not given).
However, it was received by the State Government on 31.05.2023. Thereafter, upon considering the report of the Advisory Board on 05.06.2023, an order was passed by the State of U.P under Section 12 (1) of the National Security Act, as per the affidavit filed by the Deputy Secretary, by which the petitioner was to be detained provisionally for a period of three months. This order again, as per the affidavit filed by the Deputy Secretary, Pramendra Kumar Gupta, was extended on 21.07.2023 and the petitioner was to be detained provisionally for a period of six months from the initial date of detention.
Aggrieved by the initial order of detention, dated 06.05.2023 and the consequential illegal detention, the petitioner has approached the Court.
Counsel for the petitioner submitted that the petitioner had tried to submit his representation through the jailer and when the same was not taken by the Authorities, he submitted the representation by registered post on 26.05.2023. This representation was addressed to the District Magistrate. However, he submits that the hearing was conducted on 26.05.2023 itself by Advisory Board, and therefore, the representation as was required to be placed before the Advisory Board under Section 10 of the National Security Act, was never there before the Advisory Board.
Counsel for the petitioner has further submitted that when the petitioner represented through his counsel on 01.06.2023 to the State Government and the Central Government, this representation was never considered.
He also submitted that the law as had been laid down in Cherukuri Mani vs Chief Secretary, Government of Andhra Pradesh and others reported in (2015) 13 SCC 722, which had stated that the detention order had to be initially passed for three months and thereafter could be extended after every three months under section 3(3) of the National Security Act was not a good law.
Having heard Dayashankar Mishra, Senior Counsel assisted by Abhishek Mishra and Chandrakesh Mishra, Advocates; Additional Advocate General, P.C Srivastava, assisted by J.K Upadhyaya; Vikas Sahai for the State of Uttar Pradesh and the counsel for the Union of India Ms Manjari Singh, we are of the view that the writ petition deserves to be allowed. The petitioner was at the first place, as per the law laid down in A.K Roy (supra) and Choith Nanikram Harchandani (supra) as was followed by our High Court in Najar Quraishi (supra) was not given the right to have assistance of Legal Practitioners, the Court observed.
“In view of the fact that the State was having Government officials i.e, Legal Advisors (as had been interpreted in Choith Nanikram Harchandani), the petitioner also ought to have had the legal assistance on the 26th of May 2023 i.e the day when he had appeared before the Advisory Board. Therefore, we are of the view that the petitioner’s valuable right of being properly heard was violated.
We also are of the view that once when the order of detention was confirmed on 05.06.2023, after considering the Advisory Board’s report, then, the State Government ought to have applied its mind in one go and as per Section 12 of the National Security Act, it ought to have passed an order as to for what period the detention had to be done. Definitely, the detention could not have been done in piecemeal as has been done in the case by the State Government. If the initial detention was for three months, then it could have been there only for three months. If for any further reasons the Government intended to detain the detenue further than all the machinery as is provided under Sections 3, 5, 8, 9, 10, 11 and 12 of the National Security Act, ought to have been followed”, the Court further observed while allowing the petition.
“The order by which the initial detention order dated 06.05.2023 was confirmed on 05.06.2023 is quashed. The petitioner though has not challenged in the writ petition the orders dated 21.07.2023 and 27.10.2023 but were brought before us whereby the detention was extended are also hereby quashed and set aside. Since the confirmation order dated 05.06.2023 by which the detention order dated 6.5.2023 has been set-aside, we are of the view that the order dated 06.05.2023 also goes as it has outlived its life.
We, therefore, direct that the petitioner, Niyaz Ansari, (Detenue) be set at liberty, unless he is required in any other case”, the Court ordered.