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Allahabad HC orders release of man booked under NSA, says state must exercise law with ‘extreme care’

The High Court observed, “Where the law confers extraordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care.”

Written by Manish Sahu | Lucknow | Updated: December 9, 2020 8:58:24 am
The Allahabad High Court. (File photo)

Ordering the release of a person arrested under the stringent National Security Act (NSA), the Allahabad High Court on Monday observed that the law which confers extraordinary power to the state must be exercised with “extreme care”.

Hearing a habeas corpus petition, a Division Bench of Justice Pradeep Kumar Srivastava and Justice Printinker Diwaker quashed the order for detention of Javed Siddiqui under the NSA on the ground that the authorities did not present his petition report before the Advisory Board on time.

“Where the law confers extraordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care,” the High Court observed.

“The history of personal liberty is largely the history of insistence on observation of the procedural safeguards. The law of preventive detention, though is not punitive, but only preventive, heavily affects the personal liberty of individual enshrined under Article 21 of the Constitution of India and, therefore, the Authority is under obligation to pass detention order according to procedure established by law and will ensure that the constitutional safeguards have been followed,” the High Court added.

Siddiqui was arrested along with others during a clash between Dalits and Muslims at Bhadethi village in Saraikhwaza area of Jaunpur in June this year. He was booked for arson and rioting. Later, the district administration invoked NSA against him.

According to the High Court’s order, the detention order against Siddiqui was passed by the detaining authority on July 10 and he gave his representation July 20. “The detention order was approved on 21.07.2020 (July 21). It is evident that the representation so given by the petitioner (Siddique) was well within the prescribed period of 12 days. On 14.08.2020 (August 14), his representation was rejected… Prior to that, the Advisory Board had already made the recommendation for approval of the detention order on 12.08.2020 (August 12). The record shows that the representation of the petitioner was not placed before the Advisory Board till 12.08.2020 (August 12) even though the same was filed on 20.07.2020 (July 20). It remained pending with the State Government and after two days from the date the Advisory Board sent the recommendation, the same was rejected,” the High Court said in its order.

Stating that “no reasonable explanation” was been given by state authority for the delay in forwarding Siddiqui’s representation and not placing it before the Advisory Board,” the High Court said, “This inaction on the part of the authorities certainly resulted in deprivation on the right of the petitioner of the fair opportunity of hearing and it also resulted in denial of the opportunity of fair hearing to the petitioner as provided under the law. This is not permissible and is in gross violation of established legal and procedural norms and legal and constitutional protection.”

“In our view, the above explanation itself speaks in volume about the reluctance on the part of opposite parties in delaying and keeping the representation pending and not placing the same before the Advisory Board. The plea of Covid-19, officials suffering from pandemic, intervening holiday or negligence on the part of an official on account of which he was suspended, are no reason, which could be attributed towards any fault or lapse on the part of the petitioner. Even on the date when the case was fixed before the Advisory Board, the authorities could have placed the representation of the petitioner before the Board. Thus, we find that no reasonable explanation has been given for the delay and not placing the representation before the Board,” the High Court said.

Siddiqui is directed to be released forthwith, if not required in any other case, the court added.

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