Karan Singh vs Union Of India Thru Secy. And 3 ...
2015 Latest Caselaw 2264 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved 
 
Judgement reserved on 27.8.2015
 
                                         Judgement delivered on    11.09.2015
 
HABEAS CORPUS WRIT PETITION No. - 3002 of 2015
 
Petitioner :- Karan Singh
 
Respondent :- Union Of India Thru Secy. And 3 Others
 
Counsel for Petitioner :- Bhupendra Pratap Singh, 					     Arvind Kumar, Ashwini Singh
 
Counsel for Respondent :- Govt.Advocate, A.S.G.I.						(2015/0079),Braj Lal
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

Challenging the validity and legality of the order dated 30.9.2014 passed by respondent no. 4, District Magistrate, Ghaziabad under Section 3(3) of the National Security Act, 1980 and the order dated 17.11.2014 passed by respondent no. 3-Joint Secretary, Home and Confidential Department, Government of U.P., Lucknow confirming the same by exercising the power under Section 12(1) of the National Security Act, 1980, the petitioner by means of the present habeas corpus writ petition has, approached this Court, praying for quashing of both the aforesaid orders.

The brief facts giving rise to this petition are that an incident of rape of 10 years old girl named Rakhee by a 60 years old man Sayyad Mohammad had occurred on 17.8.2014 in district Ghaziabad involving communal tension due to the reason of minor girl being Hindu and the accused being a Muslim old man. On 18.8.2014 when Inspector Gorakhnath Yadav, In-charge of the Police Station Loni, district Ghaziabad alongwith Sub Inspector Bhanu Pratap Singh, S.I. Sanjay Singh, S.I. Rajeev Kumar, S.I. Sanjiv Kumar Shukla, S.I. Kawish Kumar and some police constables was on patrol duty and was checking law and order situation apprehending communal riot, about 164 people (15 named and 150 unnamed) reached on the road raising slogan of "Jai Shree Ram" and blocked the Delhi-Saharanpur Highway. In order to ease the situation, the police tried to pacify the agitated mob but the mob became offensive. It started firing on the police. The old tyres and wooden benches were put on fire by the mob which also started looting the shops and destructed the government vehicles. Stones were pelted on Mustafa Masjid and Ek Minari Masjid and anti muslims slogans were raised causing huge chaos in the entire area. Due to this incident, terror crept in the entire locality, shopkeepers put their shutters down due to fear of communal riots and a curfew like situation was created in the area. To control it, extra police force as well as Para-military forces were called.

Inspector Gorakh Nath Yadav gave oral information about the incident at Police Station Loni, on the basis of which a first information report was registered at Case Crime No. 2235 of 2014 under Sections 147, 148, 149, 436, 341, 336, 332, 353, 395, 397, 307, 153A and 427 I.P.C. readwith Section 5 of Prevention of Public Property Damages Act and Section 7 of Criminal Law Amendment Act, Police Station Loni, district Ghaziabad against 15 named and about 150 unnamed persons.

The petitioner was not named in the F.I.R. However, his name surfaced during the course of investigation on 15.9.2014. On 16.9.2014 the investigation got concluded and police submitted charge-sheet in the aforesaid Case Crime No. 2235 of 2014 against twelve persons including the petitioner under Sections 147, 148, 149, 436, 341, 336, 332, 353, 395, 397, 307 and 427 I.P.C. readwith Section 5 of Prevention of Public Property Damages Act and Section 7 of Criminal Law Amendment Act

On 27.9.2014 Inspector Gorakh Nath Yadav, submitted a report to the Senior Superintendent of Police, Ghaziabad to the effect that the petitioner has been found involved in the aforesaid occurrence causing disturbance in law and order situation. He has a criminal history of 5 cases against him. He is in jail in Case Crime No. 2235 of 2014 and is trying for his bail. The bail application has been rejected by the A.C.J.M.-I, Ghaziabad and is pending in the court of Sessions Judge, Ghaziabad and in case the petitioner is bailed out, there is strong possibility of disturbance of public order. Mentioning all these facts, it was prayed by Inspector Gorakh Nath Yadav that the petitioner be detained under Section 3(2) of National Security Act. The S.S.P. Ghaziabad recommended the detention of the petitioner by sending letter dated 27.9.2014 to the District Magistrate, Ghaziabad and the District Magistrate, Ghaziabad by the impugned order dated 30.9.2014 ordered that the petitioner be detained in District Jail, Ghaziabad under Section 3(2) of National Security Act, which order was confirmed by respondent no. 3 vide order dated 17.11.2014.

Questioning the legality of both the aforesaid orders learned counsel for the petitioner has contended that the petitioner has been falsely implicated in this case due to political reasons. The name of the petitioner never appeared either in the statements of any of the witnesses or in the statement of co-accused persons. The petitioner had nothing to do with the occurrence but the police, maliciously and illegally, in a planned manner has charge-sheeted him which is evident from the fact that the name of the petitioner was added during the course of the investigation on 15.9.2015 and just after one day i.e. on 16.9.2015 the I.O. filed the charge-sheet against him in haste, without keeping in view the fact that petitioner is neither named in the F.I.R. nor there is recovery of any weapon from him.

Learned counsel for the petitioner has next contended that the petitioner had moved representations before the District Magistrate, State Government, Central Government and Advisory Board as provided under the National Security Act, which were rejected by the concerned authorities without considering that the petitioner had not done anything prejudicial to the security of the State or maintenance of public order. Learned counsel for the petitioner has argued that the petitioner has been detained under National Security Act solely for the reason of his being a member of "Rashtriya Swayam Sewak Sangh". Due to political vendetta and grudge of the ruling party, the name of the petitioner has been dragged during late stage of investigation i.e. a day before filing of the charge-sheet. Learned counsel has submitted that the F.I.R. has been lodged by Inspector Gorakh Nath Yadav, who was present on the spot. If the petitioner was found involved in the occurrence what could have been the reason that the informant did not name him in the F.I.R. despite the fact that he named as many as 15 persons. Learned counsel has submitted that the filing of charge-sheet against the petitioner in haste only after one day of his name having surfaced during investigation and then roping him under National Security Act, clearly indicates that it is not the petitioner but the State authorities who have acted in a prejudicial manner. While drawing our attention to Annexure - 7 i.e. the grounds for detention supplied to the petitioner by the District Magistrate, learned counsel for the petitioner has further contended that there is no whisper in this recital that there is any possibility of the petitioner being bailed out.

On the aforesaid grounds learned counsel for the petitioner has prayed that the impugned orders dated 30.9.2014 and 17.11.2014 which suffer from gross illegality due to the reasons of being against the provision of National Security Act, be quashed and the petitioner be released forthwith.

Learned A.G.A. appearing on behalf of respondent nos. 2, 3 and 4 and learned Counsel appearing for Union of India have opposed the petition. Learned A.G.A. has submitted that the facts mentioned in the writ petition are misconceived. The investigating officer, after a fair and impartial investigation of the case, has submitted charge-sheet on 16.9.2014. The statements of S.I. Arvind Kumar and S.I. Sanjay Singh were recorded by the I.O. both of whom have specifically named the petitioner as a member of unlawful assembly disturbing the public order. Learned A.G.A. has further submitted that the detention order has been passed by the District Magistrate on the basis of the report of the sponsoring authority and other materials available before him. He has contended that the recovery of weapon is not necessary to initiate the proceedings under National Security Act, the impugned detention order has been passed by the District Magistrate, Ghaziabad after recording his subjective satisfaction. Learned A.G.A. has further submitted that the grounds of detention alongwith all the relevant materials were supplied to the petitioner through jail authorities within time. The impugned order dated 30.9.2014 was approved by the State Government on 10.10.2014 and information to this effect was given forthwith to the petitioner through jail authorities. He has further submitted that the representation of the petitioner was received on 19.11.2014 in District Magistrate's office which was rejected by the District Magistrate on 20.11.2014 and information was given to the petitioner through jail authorities. The State Government had also rejected the representation of the petitioner on 17.11.2014. Advancing his arguments further learned A.G.A. has contended that the petitioner was produced before the U.P. Advisory Board on 29.10.2014 where he was heard in person. The Advisory Board gave its report alongwith the opinion that there was sufficient cause for preventive detention of the petitioner under National Security Act. On the aforesaid grounds learned A.G.A. has prayed that the writ petition, being devoid of merits, be dismissed.

Learned counsel for Union of India has submitted that there is neither any procedural delay at any stage nor there is any illegality in the order impugned, so the petition is liable to be dismissed.

We have heard the learned counsel for the petitioner, learned counsel for the respondents and perused the material brought on record as well as the various judicial pronouncements cited by the learned counsel for the parties.

The law with regard to "subjective satisfaction" of detaining authority before detaining a person, who is already in custody, under National Security Act has been well settled by a catena of judgements of Hon'ble Supreme Court, which mandates that before exercising the power of preventive detention against a person already in jail, the detaining authority must be satisfied that there is strong possibility of the detenue being released on bail in all those cases in which he is in jail.

One of the leading authority on the same issue is the judgment of Apex Court rendered in the case of Huidrom Konungjao Singh Vs. State of Manipur; (2012) 7 SCC 181 wherein the Supreme Court has held as under :

"If the detention order, passed against a person who is already in custody in respect of criminal case is challenged the detaining authority has to satisfy the Court the following facts :-

1.The authority was fully aware of the fact that the detenue was actually in custody.

2.There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

3.In view of the above the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist, the detention order would stand vitiated and liable to be quashed.

Merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenue applied for bail, he could have been released on bail. If the said bail orders do not relate to the co-accused of the same case crime number, the accused released on bail in these cases of similar nature, having no concern with the present case, their bail orders can not be a ground to presume that the detenue may also be released on bail.

The appeal succeeds and is allowed. The impugned detention order is set aside."

In Dharmendra Suganchand Chelawat Vs. Union of India; AIR 1990 SC 1196 the Supreme Court has observed as under :

"21. .....an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that -

1.The detaining authority was aware of the fact that the detenue is already in detention.

2.There were compelling reasons justifying such detention despite the fact that the detenue is already in detention.

The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenue is likely to be released from custody in the near future and taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

In Rivadeneyta Ricardo Agustin Vs. Government of the National Capital Territory of Delhi and others; 1994 Supp. (1) SCC 597, the Hon'ble Supreme Court has observed :

"if there is no material before the detaining authority indicating that the detenue is likely to be released or such release is imminent, the detention order, passed without such satisfaction is liable to be quashed."

In Vijay Narain Singh Vs. State of Bihar; (1984) 3 SCC 14, the Apex Court has observed that :

"the law of preventive detention being a drastic and hard law, must be strictly construed and should not ordinarily be used for clipping the wings of an accused if, criminal prosecution would suffice."

The verdict given by Hon'ble Apex Court in the case of Ramesh Yadav Vs. District Magistrate, Etah; (1985) 4 SCC 232; proceeds a step further. In this case the Apex Court has laid down the guide lines regarding the proper course to be adopted by the Magistrate before detaining a person who is already in custody, under National Security Act :-

"Ordinarily a detention order should not be passed merely on the ground that the detenue was likely to be enlarged on bail. In such cases, the proper course would be to opposite the bail application and if granted, challenge the order in the higher forum but not circumvent it by passing an order of detention merely to supersede the bail order."

In Binod Singh Vs. District Magistrate, Dhanbad; (1986) 4 SCC 416, the Apex Court has emphasised that :

"before passing a detention order in respect of a person who is in jail the concerned authority must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenue being released on bail and further if released on bail he will indulge in prejudicial activity if not detained."

Now returning to the facts of the present petition annexure - 7 to the writ petition relating to the grounds supplied to the petitioner communicating him the reasons for his detention, clearly shows that the District Magistrate has not recorded anywhere his satisfaction about the possibility of the detenue being bailed out. The relevant portion of the grounds of detention supplied by the District Magistrate to the petitioner is reproduced below :

**lEizfr & vki eq0v0la0 [email protected] /kkjk 147]148]149]436]341]336]332]353]395]397]307]427 Hkknfo o fizosU'ku vkWQ Msest Vw ifCyd izksiVhZ ,DV o 7 fdz0ykW0,esUesUV ,DV dk vfHk;ksx Fkkuk yksuh ds vfHk;ksx esa ftyk dkjkxkj xkft;kckn es fu:) gSaA vki }kjk tekur dk iz;kl fd;k tk jgk gSaA vkidk tekur izkFkZuk i= vij eq[; U;kf;d eftLVsªV izFke xkft;kckn ds ek0 U;k;ky; ls fujLr gks pqdk gS rFkk ek0 ftyk l= U;k;ky; xkft;kckn esa fopkjk/khu gSA vkids tekur ij NwVdj ckgj vk tkus ij fuf'pr :i ls yksd O;oLFkk dks xEHkhj [krjk mRiUUk gksus dh izcy ,oa iw.kZ lEHkkouk gSaA **

By a perusal of the aforesaid lines it is abundantly evident that no where the District Magistrate has expressed his satisfaction that there is strong possibility of the petitioner being bail out. The grounds for detention supplied to the petitioner also reflect that the District Magistrate has passed the detention order by placing reliance solely on the report submitted by Inspector In-charge Gorakhnath Yadav, in a very mechanical manner, without application of independent mind because the language of the report submitted by the Inspector and the language of grounds of detention is almost identical.

Under, almost similar circumstances, this Court in case of Radhey Shyam Parcha Vs. Union of India reported in 2015 (1) ALJ 714 has held as hereunder:

".....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........

....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.........

.....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.......

........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. "

In Huidrom's case (supra) it has been observed by the Apex Court that :

"the question of personal liberty of a person is sacrosanct and State authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

In wake of the judicial pronouncements of Hon'ble Supreme Court cited above, we are of the firm view that the impugned orders cannot be sustained and are liable to be set aside.

The petition succeeds and is allowed. The impugned orders dated 30.9.2014 and 17.11.2014 are quashed and set aside. The petitioner be released forthwith, if not wanted in any case.

Dated : September 11, 2015.

S.B.