A person arrested under the National Security Act was ordered to be released and the detention order issued by the District Magistrate was set aside on the grounds that the procedure laid down under the Act was not followed. Hence the court stated that the law which confers extraordinary power to the state must be exercised with extreme care. This ratio was laid down by J. P. Diwaker & J. P.K. Srivastava in the case of Javed Siddiqui Vs. Superintendent District Jail Janpur & Ors., [HABEAS CORPUS WRIT PETITION No. – 458 of 2020].
The brief facts of the case are that the Appellant was arrested in June 2020 and booked for arson and rioting after homes that belonged to Dalits were burned in a locality near Jaunpur. The appellant was booked for the two charges but was released on bail. Even after grant of bail he remained under custody because the District Magistrate notice the efforts the Appellants was making to get a bail and so he anticipated that it would be difficult to maintain law and order if he is released and hence he decided to initiate action for preventive detention under Section 3(2) of the National Security Act. Hence, the appeal has been made to set aside the preventive detention order.
The counsel for the appellant submitted that the Appellant was not given a chance to present his case before the Advisory Board and the prevention order was directly issued. This was a violation of Articles 14, 21 and 22(5) of the Constitution and the relevant sections under National Security Act.
The Allahabad High Court set aside the detention order passed on 21.07.2020 and ordered the Appellant to be released if he has no other case pending against him. The High Court stated that, “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 Court further added 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 protections.”
Judgement reviewed by-Sarita Kumari