Mohd. Rauf Mohd. Yusuf Qureshi Vs. Shri R.D. Tyagi, Commissioner of Police - Court Judgment

Excerpt:
the national security act, 1980 : section 3(2) - two representations by the detenue - on representation dt. 28.5.97 vital information received by the central govt. on 3.10.96 - representation disposed off on 21.1.97 - delay -not explained - another representation on different ground - not considered - detention order set aside. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 92 of 1996 as well as m. the detaining authority has further recorded satisfaction that the detenu is acting in a manner prejudicial to the maintenance of public order and in view of his tendencies and inclinations reflected in the offences committed by the detenue as stated above, the detaining authority is further satisfied that the detenu is likely to indulge in activities prejudicial to the maintenance of public order in future and that it is necessary to detain him under the national security act, 1980 to prevent him from acting in such a prejudicial manner in future. law is well settled that any competent authority to whom a representation is addressed is constitutionally obliged to consider the same expeditiously, diligently and independently. the petitioner submits that the continued detention is illegal and bad in law for delay in consideration of the representation of the detenue and also for delay in communicating its decision to the detenue. the order of detention is illegal and bad in law, ought to be quashed and set aside. the continued detention of the detenu is illegal and bad in law. the order of detention is illegal and bad in law, ought to be quashed and set aside. in the said affidavit shri narkar has dealt with the reply pertaining to paragraph 10-a and also furnished details that after the passing of the order of detention how the report was submitted and thereafter giving particulars about the order passed by the state government approving the said order as well as the report made in favour of the central government as per the provisions under section 3(5) of the national security act and the reference made under section 10 of the said act in favour of the advisory board and after the report received from the advisory board the order of confirmation was issued by the government. as can be seen from the affidavit of shri ishwar singh that after the representation was received in the central ministry on 30th august, 1996, the ministry has called for the vital information from the stale government as well as from the detaining authority on the very day and the reminder was issued on 25th september, 1996. even after the required particular information was received in the ministry of home affairs on 3rd october, 1996 and when the representation was processed by the various authorities and when the same reached up to the special secretary, ministry of home affairs on 10th october, 1996 and when he has cleared immediately and placed it before the home minister, government of india on 11th october, 1996, the delay is thereafter not at all explained as the home minister has returned the case on 13th december, 1996, as he desired re-examination of the case. the continued detention of the detenu is accordingly bad in law.d.k. trivedi, j.1. the petitioner-detenu has filed this petition and challenged the order passed by the 1st respondent, the commissioner of police, brihan murnbai, dated 15th june, 1996, and prayed that the order of detention passed by the 1st respondent be quashed and set aside and prayed for release from the detention.2. the first respondent, commissioner of police on considering the material placed before him after recording satisfaction, in exercise of the powers conferred by sub-section (2) of section 3 of the national security act, 1980, has passed the order detaining the detenu and as per committal order the detenu was ordered to be kept with superintendent, mumbai central prison, arthur road, mumbai.3. while passing the order of detention against the petitioner-detenu, the detaining authority has recorded satisfaction that the detenu is acting prejudicial to the maintenance of public order and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, he resorted to pass the order of detention under the national security act. after the said order was passed on 15th june, 1996, the detenu was served with the said order along with grounds of detention and other material on 18th july, 1996.4. in the petition, the petitioner has challenged the order of detention on several grounds and the petitioner has also annexed the order of detention and the grounds of detention and other documents to the petition.5. as reflected in the grounds of detention, the detaining authority considered the involvement of the detenu in a criminal case registered against him and his associates dated 29th february, 1995 and another offence took place on 23rd march, 1996. the detaining authority on considering the material has recorded satisfaction that the person (detenu) is a weapon wielding desperado, a dreaded criminal and an extortionist and thereby a perpetual danger to the society at large and the detenu is creating a terror in the minds of the peace loving and law abiding citizens of the localities of ambala doshi marg, fort, shahid bhagatsingh road, colaba and areas adjoining thereto falling within the jurisdictions of m.r.a. marg and colaba police stations in brihan mumbai. people in the said localities and areas are experiencing a sense of insecurity and living and carrying out their daily routines under a constant shadow of fear whereby the even tempo of life of the society is disturbed. the detaining authority further recorded that the action taken against the detenu under the ordinary law of the land is found to be inadequate and ineffective to control the criminal activities of the detenu and the detenu's activities are prejudicial to the maintenance of public order.6. it is also found from the grounds of detention wherein the detaining authority has given details in connection with the offence which took place on 29th february, 1996, the detaining authority has narrated the said facts in paragraph 4(a)(i) of the grounds of detention. the offence was registered at colaba police station vide c.r. no. 92 of 1996 under section 307, 506 34 of i.p.c. read with 3, 25, 27 of the arms act against the petitioner-detenu and other co-accused. the petitioner-detenu was arrested on 22nd march, 1996 in c.r. no. 92 of 1996. it is also found from the grounds of detention that the petitioner-detenue has not been granted bail facility in connection with above two offences registered at colaba police station vide c.r. no. 92 of 1996 as well as m.r.a. marg police station vide c.r. no. 98 of 1996.7. the detaining authority on considering the material has recorded satisfaction that the detenu is a weapon wielding desperado, a dreaded criminal and an extortionist and thereby a perpetual danger to the society at large and created a terror in the minds of the peace loving and law abiding citizens of the localities of ambala doshi marg, fort, shahid bhagatsingh road, colaba and areas adjoining thereto falling within the jurisdiction of m.r.a. marg and colaba police station in brihan mumbai. people in the said localities and areas are experiencing a sense of insecurity and living and carrying out their daily routines under a constant shadow of fear whereby the even tempo of life of the society is disturbed. the action taken against the detenu under the ordinary law of the land is found to be inadequate and ineffective to control his criminal activities and his activities are prejudicial to the maintenance of public order in the said localities and areas in brihan mumbai. the detaining authority has further recorded satisfaction that the detenu is acting in a manner prejudicial to the maintenance of public order and in view of his tendencies and inclinations reflected in the offences committed by the detenue as stated above, the detaining authority is further satisfied that the detenu is likely to indulge in activities prejudicial to the maintenance of public order in future and that it is necessary to detain him under the national security act, 1980 to prevent him from acting in such a prejudicial manner in future.8. on behalf of the detaining authority an affidavit in reply is filed by shri subhaschandra malhotra, commissioner of police, brihan mumbai, dated 2nd may, 1997 wherein he has replied the petition parawise and the contentions raised by the petitioner were denied and averred that the detaining authority, the commissioner of police, after considering the material has found that the detenu is acting prejudicial to the maintenance of public order and passed the order of detention under the national security act and prayed for the dismissal of the petition.9. during the hearing of this petition, though the petitioner has challenged the order of detention on several grounds, mr. tripathi has placed in service only one ground that the representation dated 28th august, 1996 meant for consideration for the various authorities is not considered by the central government and no communication is received from the central government and non-consideration of the represenation, the order of detention is liable to be quashed and set aside in view of the decision of the apex court. in paragraphs 10-a and 10-h of the petition, the petitioner has taken the ground regarding the representations made by him. paragraphs 10-a and 10-h read as follows:10-a the petitioner says and submits that 7 copies of representations were handed over to the jail authority of bombay central prison at bombay on 28.8.96 by his lawyer on his behalf to forward those to the concerned authorities. the petitioner submits that so far he has not received any communication from the central government as regards to the consideration of the said representation of the detenue, thereby the' central government has delayed in considering the representation of the detenue and also in communicating the decision taken thereon, if any. law is well settled that any competent authority to whom a representation is addressed is constitutionally obliged to consider the same expeditiously, diligently and independently. the central government is called upon to disclose and explain to this honourable court as regards to the delay, by which authority and at what stage of such consideration such delay occured. the petitioner submits that the continued detention is illegal and bad in law for delay in consideration of the representation of the detenue and also for delay in communicating its decision to the detenue. the order of detention is illegal and bad in law, ought to be quashed and set aside.10-h the petitioner says and submits that a representation dated 24.1.1997 was sent to the central government by speed post with fresh grounds for their consideration and revocation of the order. the petitioner submits that so far no communication has been received by the detenu as regards to the decision taken on the said representation, thereby the central government has delayed in considering the representation expeditiously. the continued detention of the detenu is illegal and bad in law. the central government is called upon to explain to this honorable court as to why and what stage of consideration such delay occured. the order of detention is illegal and bad in law, ought to be quashed and set aside.10. on behalf of the respondent-state of maharashtra an affidavit of shri v.d. narkar, desk officer, home department (special), mantralaya, mumbai, dated 6th may, 1997 is filed. in the said affidavit shri narkar has dealt with the reply pertaining to paragraph 10-a and also furnished details that after the passing of the order of detention how the report was submitted and thereafter giving particulars about the order passed by the state government approving the said order as well as the report made in favour of the central government as per the provisions under section 3(5) of the national security act and the reference made under section 10 of the said act in favour of the advisory board and after the report received from the advisory board the order of confirmation was issued by the government. as reflected in his affidavit the detenu was actually detained on 18th july, 1996. the representation of the detenu dated 28th august, 1996 was received in the home department vide letter of the superintendent, mumbai central prison, dated 28th august, 1996. before processing the said representation to the government, the report of the advisory board along with the representation of the detenu addressed to the advisory board were also received. the report of the advisory board along with both the representations; were submitted before the deputy chief minister (home) for his consideration on 2nd september, 1996, as the 1st september, 1996 was public holiday. the deputy chief minister (home) after considering both the representations has rejected the same and the rejection reply was sent to the detenu on 4th september, 1996 through the jail authority. so far as the consideration of the representations by the state government is concerned, the said representations were processed immediately and decided by the deputy chief minister (home).11. while dealing with the contentions taken by the petitioner as to how the representations of the detenu were dealt with by the union of india, on behalf of the respondent no. 3 i.e. union of india an affidavit of shri ishwar singh, desk officer, government of india, new delhi dated 3rd march, 1997 is filed. in his affidavit shri ishwar singh has stated that he had read the copy of the criminal writ petition and as he was conversant with the facts of the case, in his official capacity he was authorised to file affidavit. in his affidavit in paragraph 3 he has referred to grounds a and h of paragraph 10 and paragraph 5 of the petition while giving details as to how the representation of the detenu was processed. in ground a, the petitioner has referred to the representation dated 28th august, 1996 and in ground h the petitioner has referred to the representation dated 24th january, 1997 sent to the central government by speed-post with fresh grounds for consideration and revocation of the order. while filing reply shri ishwar singh, the deponent, has not dealt with in particular about the representation the detenue addressed to the central government dated 24th january, 1997. so the contention of the petitioner about his representation dated 24th january, 1997 is not dealt with by the central government at all. as reflected in his affidavit that the representation of the detenu dated 28th august, 1996 was received by the central government in the ministry of home affair on 30th august, 1996 through the superintendent mumbai central prison, mumbai. after the said representation was received the same was processed and it was found that certain vital information is required and accordingly a crash wireless message was sent in favour of the state government, commissioner of police, brihan mumbai, on 30th august, 1996 and thereafter a reminder was sent on 25th september, 1996.12. the central government in the ministry of home affairs received the particular information on 3rd october, 1996 from the commissioner of police, brihan mumbai, vide his letter dated 30th september, 1996. after the information was received, the case of the detenu was put up before the joint secretary, ministry of home affairs on 9th october, 1996. the joint secretary considered the case and with his; comments put up before the special secretary, ministry of home affairs on 10th october, 1996. thereafter the special secretary after processing the same put up before the home minister, government of india on 11th october, 1996. it is further found from the affidavit of shri ishwar singh that the home minister has returned the file as he desired re-examination of the case on 18th december, 1996. after the case was returned, the said case was re-examined by the concerned deputy secretary and it was resubmitted in favour of the joint secretary on 10th january, 1997 and the joint secretary thereafter cleared the file and placed it before the special secretary (isp) on 18th january, 1997 and thereafter the special secretary has placed the file before the minister of state for home affairs on 20th january, 1997. the minister of state for home affairs has considered the case of the detenu and the rejected the said representation on 21st january, 1997 and the detenu was informed the decision of the central government by issuing crash wireless message on 14th february, 1997 through the home secretary, government of maharashtra and superintendent, nasik road central prison, nasik and the message was followed by the letter dated 17th february, 1997.13. as reflected from the affidavit of shri ishwar singh that the delay was on account of home minister reviewing the matter relating to nsa cases and deciding to delegate the work to the minister of state for home. as can be seen from the affidavit of shri ishwar singh that after the representation was received in the central ministry on 30th august, 1996, the ministry has called for the vital information from the stale government as well as from the detaining authority on the very day and the reminder was issued on 25th september, 1996. even after the required particular information was received in the ministry of home affairs on 3rd october, 1996 and when the representation was processed by the various authorities and when the same reached up to the special secretary, ministry of home affairs on 10th october, 1996 and when he has cleared immediately and placed it before the home minister, government of india on 11th october, 1996, the delay is thereafter not at all explained as the home minister has returned the case on 13th december, 1996, as he desired re-examination of the case. even thereafter when the file was returned by the home minister on 13th december, 1996, the file was not processed till 9th january, 1997 and thereafter there is no explanation from 12th january, 1997 to 19th january, 1997 when the special secretary has cleared the file and placed it before the minister of state for home affairs who in turn rejected the representation on 21st january, 1997. even after the rejection of the representation, the ministry has not promptly intimated to the detenu about the decision as the wireless message was sent only on 14th february, 1997.14. to appreciate the contention, as reflected from the affidavit filed on behalf of the union of india, we are of the view that the central government has not dealt with the representation of the detenu dated 24th january, 1997 meant for consideration of the central government. till today the said representation is not dealt with. even the representation of the detenu dated 28th august, 1996 is disposed of by the minister of state for home on 21st january, 1997. as observed earlier that after the vital information received from the government of maharashtra and the detaining authority by the central government on 3rd october, 1996, the representation is not processed promptly and even the delay is not explained that why the time has taken to process the representation when the representation is placed before the home minister on 11th october, 1996 till he returned the case filed for re-examination on 13th october, 1996. even when the representation thereafter processed by the various authorities, no explanation is rendered for the period from 13th january, 1997 till the same was placed before the minister of state for home affairs on 20th january, 1997. as per the settled legal position, the representation is to be dealt with promptly. the delay is also required to be explained by giving details that how the representation was processed by the various authorities. in our view there is a delay in deciding the representation of the detenu dated 28th of august, 1996 and even the delay is not explained by the respondent no. 3 - central government.15. in view of the settled legal position, we are of the view that there is a delay in not promptly considering the representation of the detenu. the representation of the detenu dated 24th january, 1997 meant for central government is not at all considered by the central government. by not explaining the said delay and by not considering the representation of the detenu dated 24th january, 1997, the order passed by the first respondent, commissioner of police, is deserved to be set aside. the continued detention of the detenu is accordingly bad in law.16. during the hearing, we are told that the detenu, in offence registered at colaba police station vide. c.r. no. 92 of 1996 and the offence registered at m.r.a. marg police station vide c.r. no. 98 of 1996, is not released on bail and is in custody. accordingly, the petition is allowed and the order of detention dated 15th june, 1996 passed by the 1st respondent is quashed and set aside. the rule is made absolute. however, we are not passing any order about the release of the detenu as from the grounds of detention it is reflected that the detenu is not released on bail and he is in judicial custody in respect of his arrest in offence registered vide c.r. no. 92/96 at colaba police station and offence registered vide. c.r. no. 98/96 at m.r.a. marg police station.