Mohd. Sagir vs Union Of India Thru Secy. And 6 ...
2015 Latest Caselaw 1926 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 40
 

 
Habeas Corpus Writ Petition No.758 of  2015
 

 
Mohd. Sagir                                     ..................................... Petitioner
 

 
Vs.
 

 
State of U.P.  and others                         ...........................Respondets
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

Heard learned counsel for the petitioner and learned AGA for the State.

This habes corpus writ petition has been filed by the petitioner Mohd. Sagir before this Court challenging the order dated 06.08.2014 (Annexure-1) passed by District Magistrate, Kanpur Nagar/respondent no.3 and order dated 23.09.2014 (Annexure-3) passed by State of U.P., through its Principal Secretary (Home) U.P. at Lucknow/respondent no.2.

The brief facts of the case are that the respondent no.3 District Magistrate, Kanpur Nagar in the exercise of his power conferred on him under Section 3(2) of the National Security Act (hereinafter referred to as the "NSA") passed an order of preventive detention on 06.08.014 against the petitioner, while he was confined in Central Jail, Kanpur Nagar on account of his being accused in case crime no. 201 of 2014, under Sections 285, 379, 411 IPC, P.S. Maharajpur, District Kanpur Nagar, case crime no. 202 of 2014, under Section 3/4 Prevention of Public Property & Damage Act, case crime no. 203 of 2014, under Sections 15(2) and 15(4) Petrol & Mineral Pipe Line Act, case crime no. 204 of 2014, under Section 3/5 Explosive Act, P.S. Maharajpur, District Kanpur Nagar. The order of detention dated 06.08.2014 as well as the grounds of detention under Section 8 of the NSA were served upon the petitioner through respondent no.4. The petitioner filed a representation under Section 11(1) of the NSA to the respondent no.4 before the respondent nos. 1 and 2.

The detention order dated 06.08.2014 was confirmed by the respondent no.2 under Section 12(2) of the NSA by its order dated 23.09.2014 (Annexure-3).

The facts of the case as emerging from the perusal of the grounds of detention supplied to the petitioner under Section 8 of the National Security Act are that although the petitioner had no criminal history, he was a daring criminal whose criminal activities had adversely affected and disturbed the maintenance of supplies and services of essential to the community. He along with his eight accomplices had stolen 2000/- ltrs. of diesel on 28.06.2014 at about 2.00 p.m. at a place in village Baradari, P.S. Narwal, District Kanpur Nagar towards south of ghatukeda road from the pipe line of Indian Oil in a tanker by cutting the same and installing a circuit thereon.

The grounds of detention further reflect that on getting reliable information about the aforesaid activity S.I.- Surendra Kumar, Head Constable Kaptan Singh, Constable Chotey Lal, Constable Arun Kumar, Constable Rajeev Kumar and Constable Dinesh Kumar of P.S. Maharajpur reached the place of occurrence where in obedience to the command of S.H.O., Maharanpur, S.I. Ram Baran Pandey, Incharge police out post Kulgaon Mod, Constable Sagir Ahmad, Head Constable Gulfam Ali, Constable Mazharuddin and Constable Raghuraj Singh had already reached the place of occurrence where they were waiting for them. They were informed that some miscreants were stealing diesel from the Indian Oil pipeline in a tanker after cutting the same. On the basis of the aforesaid reliable information S.O., Maharajpur reached the placed of occurrence and caught the criminals who were committing the aforesaid daring act red handed. When the criminals who were arrested on the spot were asked their names, the petitioner disclosed his name as Mohd. Sagir. His personal search lead to recovery of a black colour purse from the pocket of the trouser which he was wearing at the time of his search containing Rs. 2050/-, one driving license and a certificate issued by the Income Tax Department. The other apprehended persons disclosed their names as Vimlesh, Majid Hussain, Nand Kishore Tripathi, Guddu and Salim. Vimlesh further disclosed that the names of the four criminals who had managed to escape from the spot were Yunus, Mehul, Imran Khan and Krishna Kumar Dixit. The facts which came to light as a result of further interrogation on the spot were that the petitioner and his companions had planned to steal diesel from the Indian Oil pipe line and with the object of executing the aforesaid plan, on the date of the occurrence, they had cut the Indian Oil pipe line and stolen 2000 litres of diesel from it with the aid of various equipments and attachments by filling the same in Tanker No. UP-78- AN 5731 belonging to accused Imran Khan. The police party also recovered a Scorpio car bearing registration no. UP78-CL 0172 and a motorcycle registration number whereof was UP 78 CR-3498 from the spot. When the criminals arrested on the spot were questioned about the aforesaid car and motorcycle, they disclosed that the owner of the Scorpio car was Nand Kishore Tripathi @ Guddu one of the accomplice of the petitioner while the owner of the motorcycle was Vimlesh who was keeping vigil around the place of occurrence by moving around on his motorcycle. Registration papers pertaining to the aforesaid Scorpio car and motorcycle were not produced.

S.H.O., Maharajpur prepared a detailed report of the aforesaid daring incident and the recoveries made on the spot in the presence of all the accused and thereafter lodged them at P.S. Maharajpur and on the basis of the aforesaid recovery memo, case crime no. 201 of 2014, under Section 285, 379 and 411 IPC, case crime no. 202 of 2014, under Section 3/4 Prevention of Damages of Public Property Act, case crime no. 203 of 2014, under Sections 15(2) and 15(4) of Petroleum and Minerals Pipe Line Act and case crime no. 204 under Section 4(3) of the Explosives Act, 1884 were registered against the petitioner and the other accused at P.S. Maharajpur on 28.06.2014 at 5.45 P.M.. The investigation of all the aforesaid cases was entrusted to SHO, P.S. Narwal, Kanpur Nagar who immediately recorded the statement of the informant of the aforesaid cases, S.H.O., Maharajpur and recovered one motor Vijay Kirloscar and 50 ft. pipe allegedly used in the commission of the aforesaid offences on the pointing out of the petitioner after observing all the necessary legal requirements. Equipments used in stealing diesel for cutting the indian oil pipe line were also recovered by the Investigating Officer through the specialist officers of the Indian Oil Corporation. The Investigating Officer also recorded the statements of concerned, officers, employees of the Indian oil corporation, Sri Siyaram, Sri Rohit, Sri Shesh Narain and Sri Yogesh Kumar Saxena and from the facts disclosed by them, the complicity of the petitioner in the incident in question was fully established and it also came to light that as a result of the daring act of the petitioner and his accomplices maintenance of supplies and services essential to the community had been adversely affected and the aforesaid act of the petitioner and his companions also had the potential of causing an explosion endangering human lives.

The incident in question was given wide coverage in several national level news papers like Dainik Jagran, Hindustan, Rashtriya Sahara and Amar Ujala, which created a feeling of fear, anger and sadness amongst the members of the public.

The grounds of detention further reflect that the detaining authority had reason to believe that the petitioner who was confined in district jail, Kanpur Nagar on account of his being accused in case crime nos. 201, 202, 203 and 204 of 2014 had moved an application for being released on bail in case crime no. 201 of 2014 before the Sessions Judge, Kanpur Nagar and 05.08.2015 was the date fixed before the Sessions Judge, Kanpur Nagar for hearing of his bail application and there was every likelihood of the petitioner being released on bail and the petitioner on being released on bail would indulge in criminal activities prejudicial to the maintenance of supplies and services essential to the community and in order to prevent such activities, it was imperative to pass an order for preventive detention against the petitioner.

The detaining authority respondent no. 3, District Magistrate, Kanpur Nagar on the basis of the aforesaid grounds, passed the impugned order directing detention of the petitioner in order to prevent him from indulging in any activities, prejudicial to the maintenance to supplies and services essential to the community.

Learned counsel for the petitioner submitted that the satisfaction recorded by the detaining authority/District Magistrate, Kanpur Nagar, respondent no.3 in the impugned order is based upon irrelevant, insufficient and non existent grounds which has totally invalidated the same. He next submitted that the order of preventive detention passed in respect of the a detenu who is in judicial custody in order to be a valid order should disclose that the detaining authority not only should be aware of the said fact but there should be some material on record for his belief that he may be released on bail and the detenu would indulge in similar activities if set at liberty. He further submitted that since on the date of the passing of the impugned detention order, the petitioner was in jail on account of his being accused in four criminal cases, namely, 201, 202, 203 and 204 of 2014 registered against them at P.S. Maharajpur and there being no material before the respondent no.3 showing that the petitioner had moved his bail applications in case crime no. 202, 203 and 204 of 2014, even if his bail application filed by him before the Sessions Judge, Kanpur Nagar in case crime no. 201 of 2014 was allowed, he could not have actually come out of jail, thus the subjective satisfaction recorded by the detaining authority/respondent no.3, District Magistrate, Kanpur Nagar that there was strong possibility of the petitioner coming out from jail on bail and re-indulging in activities prejudicial to the maintenance of supplies and services essential to the community was not based on any cogent and reliable material and in the absence of cogent and reliable material, the impugned detention order has to be accepted as based on mere epse dixit of the detaining authority. In support of his aforesaid contention learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court rendered in the case of Radhey Shyam Parcha Vs. Union of India, 2014 (3) ACR, Page 2774.

He lastly submitted that since the respondent no.3 (detaining authority) has exercised power arbitrarily the impugned order cannot be sustained and liable to be quashed.

Per contra, learned AGA and learned counsel for the Union of India made their submissions in support of the impugned detention order.

We have heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the material brought on record as well as the law report cited by the learned counsel for the petitioner.

Under identical circumstances a Division Bench of this Court in case of Radhey Shyam Parcha Vs. Union of India reported in 2015 (1) ALJ 714, had in paragraphs 14, 15,16 and 22 of its aforesaid judgement, which are relevant for out purpose, has held as hereunder:

" 14. This Court has perused the detention order in question and the documents so supplied in respect of the same and the detention order in question reflects that the detaining authority has proceeded to form opinion of preventive detention of petitioner and therein reference has been given of the three criminal cases along with the details of the case being Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act and then reference has been given of Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC and, thereafter, reference has been given of Case Crime No. 264 of 2013 under Sections 147/ 148/ 149/ 307/ 342/ 336/ 436/ 392/ 427/ 323/ 504/ 506/ 153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and investigation of said criminal case is being made by Narendra Singh. It has been mentioned therein that during the course of investigation statement of Om Prakash has been recorded by IO concerned, wherein it is reflected that petitioner and his associates have participated in the aforementioned criminal cases with the object of disturbing communal harmony and in the said direction damaging property, arsoning facts have been substantiated. Large scale shoes, motorcycles, scooties etc. have been recovered and the investigation reflects complicity of petitioner. It has also been mentioned that such activities of petitioner and his associates has resulted in various counter acts of arsoning and looting in Shamli area and on account of the same there has been serious apprehension of life and property in public at large and details have also been given that Vedpal, Prakash Chandra, Smt. Sevati, Manish Goyal, Shishir Jain, Mukesh Kumar Jain and M/s. Suresh Chandra have also given reports of the looting and arsoning that has taken place and it has also been mentioned that all the activities of petitioner are of daredevil nature and same have also been widely published in newspapers. It has also been mentioned therein that petitioner has spread hatred and on account of provocation given by him under his leadership large scale criminal activities have been carried out by the mob against a particular community and on account of which life of hundreds have been disturbed and sense of insecurity has been there. It has also been mentioned therein that at large places fires have been opened and on account of arsoning and looting entire public order has been disturbed and as a reaction of the same members of other community have also indulged in similar activities for which apart from local police additional forces have been deployed in the area and as petitioner is detained in jail in Case Crime No. 262 of 2013 under Sections 147/ 148/ 149/ 302/ 307/ 323/ 324/ 504/ 153-A IPC and Section 7 Criminal Law Amendment Act and in Case Crime No. 263 of 2013 under Sections 147/ 427/ 323/ 504/ 153-A IPC as well as in Case Crime No. 264 of 2013 under Sections 147/ 148/ 149/ 307/ 342/ 336/ 436/ 392/ 427/ 323/ 504/ 506/ 153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and details have been given that petitioner has moved bail application in Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act before the Chief Judicial Magistrate concerned and same has been rejected by the competent court and on 13.09.2013 Constable Kunwar Pal Singh has given beat information that petitioner through his pairokar is trying to get himself bailed out and come out from jail and petitioner would be moving bail application at Muzaffarnagar and Kairana courts and hearing this public is under duress and fear in case petitioner comes out again after obtaining bail there can be violence and the said beat information has been inquired by SI Satyapal Vats and he has ratified the same.

15. Based on the same it has been mentioned that petitioner is attempting to come out from jail and if he comes out from the jail, then there are possibility of communal clashes on the provocation of petitioner and there is lot of fear and insecurity and there would be again disturbance of public on a order and, in view of this, satisfaction so recorded, petitioner has been detained in jail.

16. The detention order in question clearly reflects that as far as petitioner is concerned, he has been detained in three criminal cases being Case Crime No. 262 of 2013 under Sections 147/ 148/ 149/ 302/ 307/ 323/ 324/ 504/ 153-A IPC and Section 7 Criminal Law Amendment Act and in Case Crime No. 263 of 2013 under Sections 147/427/323/504/153-A IPC as well as in Case Crime No. 264 of 2013 under Sections 147/ 148/ 149/ 307/ 342/ 336/ 436/ 392/ 427/ 323/ 504/ 506/ 153-A IPC and Section 3/4 Prevention of Public Property Damages Act and Section 7 Criminal Law Amendment Act and only in one criminal case i.e. Case Crime No. 262 of 2013 under Sections 147/148/149/302/307/323/324/504/153-A IPC and Section 7 Criminal Law Amendment Act, he has moved application for bail and same has been rejected on 13th of September, 2013. This much is also reflected that after the said bail application has been rejected on the very next day i.e. 14th of September, 2013, the detaining authority has proceeded to pass an order of preventive detention of petitioner. This much is also reflected that in order to form such a opinion as to there are possibility of petitioner coming out from jail on bail reliance has been placed on the beat report given by Constable Kunwar Pal Singh and confirmed by SI Satyapal Vats and the same has been made foundation and basis to form such an opinion that there is possibility of petitioner coming out from jail on bail.

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22. Once such is the factual situation that there were three criminal cases pending against the petitioner and only in one case bail application in question has been moved and same has been rejected by the court concerned and in two other matters at no point of time any bail application has been moved, then merely on the report submitted by the beat personnel and affirmance of the same by the officer concerned in mechanical manner, such a detention order could not have been passed by forming the opinion that there were possibilities of petitioner being released on bail, as forming of such an opinion ought to have been based on some cogent and reliable material and on objective consideration by the detaining authority and in absence of the same, the detention order has to be accepted based on mere ipse dixit of the detaining authority. Here in the present case, the opinion of likelihood of petitioner being released on bail is not at all based on relevant cogent material. "

Thus what follows from the reading of the aforesaid judgement is that where more than one case are pending against a detenu and bail application has been moved in only one of the case and in the other matters no bail application is moved, then merely on the report that the detenu has applied for bail in one of the several criminal cases pending against him and there is likelihood of his being granted bail in that case detention order cannot be passed by forming the opinion that there was possibility of the detenu coming out of the jail.

A perusal of the impugned order passed by the respondent no.3 detaining authority/ District Magistrate, Kanpur Nagar in the exercise of his power under Section 3(2) of the National Security Act and the grounds of detention under Section 8 of the Act shows that while the petitioner was in judicial custody on account of his being accused in four criminal cases registered against him at P.S. Maharajpur, District Kanpur Nagar, namely, case crime no. 201 of 2014, under Section 285, 379 and 411 IPC and case crime no. 202 of 2014, under Section 3/4 Prevention of Damages to Public Property, case crime no. 203 of 2014, under Sections 15(2) and 15(4) of Petroleum and Minerals Pipe Line Act and case crime no. 204 under Section 4(3) of the Explosives Act which arose from a solitary incident which had taken place on 28.06.2014 on 2.10 p.m. at a place towards south of the ghatukeda road in village Baradari, P.S. Narwal, District Kanpur Nagar in which the petitioner along with his eight associates had allegedly cut the Indian oil pipe line and stolen 2000 litres of diesel in a tanker, he had moved a bail application in case crime no. 201 of 2014, under Sections 285, 279 and 411 IPC and the detaining authority was satisfied that there was all likelihood of the petitioner's bail application being allowed and in case he was released on bail, he would again indulge in activities prejudicial to the maintenance of supplies and services essential to the community, and in order to prevent him from indulging in any such activities, it was imperative to pass an order for his detention under the National Security Act. There is neither any recital in the grounds of detention nor any tangible material on record which may indicate that the petitioner had moved bail applications in the other three criminal cases also which were pending against him on the date of the passing of the impugned order. Thus even if the petitioner was granted bail by the learned Sessions Judge in case crime no. 201 of 2014, there was no possibility of his coming out of the jail on account of his being accused in three other criminal cases, namely, the case crime no. 202, 203 and 204 of 2014 as he had not applied for bail in any of the aforesaid three cases and hence the subjective satisfaction recorded by the detaining authority/ District Magistrate, Kanpur Nagar, respondent no.3 in the impugned order and in the grounds of detention that there was strong possibility of the petitioner coming out of the jail and indulging in activities prejudicial to the maintenance of supplies and services essential to the community, in our opinion is not based upon any cogent and reliable material and the impugned order which has been passed on non existent and irrelevant grounds suffers from the vice of total non application of mind.

In view of the foregoing discussions, writ petition succeeds and is allowed, the impugned order dated 06.08.2014 passed by respondent no.3 and order dated 23.09.2014 passed by respondent no.2 are hereby quashed.

There shall however be no order as to costs.

Order Date : 21.08.2015

Abhishek Sri/-