Vijay vs Union Of India Thru' Its Secy. & 5 ...
2017 Latest Caselaw 1306 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 8870 of 2017
 

 
Petitioner :- Vijay
 
Respondent :- Union Of India Thru' Its Secy. & 5 Others
 
Counsel for Petitioner :- Birendra Singh Khokher
 
Counsel for Respondent :- G.A.,A.S.G.I.,Alok Ranjan Mishra
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

The Order of the Court was delivered by

Bala Krishna Narayana,J.- The argument of this Case concluded on 26.05.2017. We then made the following order:-

"Heard Sri Birender Singh Khokher, learned counsel for the petitioner, Sri Alok Ranjan Mishra, learned counsel for the respondent no.1, Union of India, Sri J.K.Upadhyay, learned counself for the respondent nos. to 6.

We will give reasons later. But we are making the operative order here and now.

The impugned detention order dated 30.09.2016 passed by respondent no.3, District Magistrate, Ghaziabad is hereby quashed.

The petitioner, Vijay shall be released forthwith unless he is wanted in any other case"

Here are the reasons :- In this writ petition, the validity of the detention of petitioner- Vijay has been challenged. He has been detained by the District Magistrate, Ghaziabad by an order dated 30.09.2016 made under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the NSA).

Briefly stated the facts of this case as emerging out from the pleadings of the parties are that on the basis of a written report lodged by one Javed @ Shanu son of Sri Saeed, r/o Mohalla Vyaparayan Qasba, P.S. Muradnagar, District Ghaziabad alleging therein that petitioner Vijay owed a sum of Rs. 45,000/- to his brother Wasim towards the price of the buffaloes purchased by him from his brother Wasim and although his brother had demanded payment of the aforesaid amount from the petitioner on several occasion but he kept postponing the payment on one pretext or the other. On 23.02.2016 at about 16.45 hours while his brother Wasim speaking to someone on the telephone, informant inquired from him about the identity of the person to whom he was talking on which Wasim told him that he was talking to Vijay of Bheekhanpur and he had called him for making payment of the amount payable by him to his brother. Thereafter his brother Wasim left his house along with his nephew Naeem son of Sagheer but when despite lapse of considerable time they did not return back the informant became suspicious as on several other previous occasions also heated altercations had taken place between the petitioner and his brother Wasim over the aforesaid issue and he along with Javed @ Shanu and Ajmal son of Saghir went to the petitioner's dairy outside village Bheekhanpur at about 21.45 hours and on reaching there they heard voices of people fighting with each other and when they peeped into the room, they saw Ashu son of Satya Prakash, Deepak son of Omveer, resident of village Bheekhanpur, P.S. Muradnagar, District Ghaziabad and Billoo son of Rupchand, resident of Basantpur Saitali, P.S. Muradnagar, District Ghaziabad holding Naeem and Wasim, who were shot by one Ankit son of Rajesh and the petitioner by their respective firearms on which Javed and Ajmal got terrified and ran away from the place of incident to their house and narrated the entire occurrence to their family members. Case crime no. 132 of 2016 under Sections 302, 147, 148, 149 and 34 IPC was registered against the petitioner and other accused at P.S. Muradnagar, District Ghaziabad on 24.02.2016 at about 00.15 hours and recorded in the G.D. on the same day vide Rapat No. 02 at 00.15 hours. The search of the petitioner at the time of his arrest on account of his being accused in the aforesaid case lead to recovery of a 315 bore country made pistol (crime weapon) and two live cartridges from his possessions. While the petitioner was in District Jail on account of his being accused in case crime no. 132 of 2016 he was served with the impugned detention order along with the grounds of detention on 30.09.2016.

The grounds of detention supplied to the petitioner along with the impugned detention order, copy whereof has been brought on record as Annexure SA-1 to the Supplementary Affidavit filed by the petitioner further revealed that the news about the aforesaid incident in which two persons were brutally murdered in broad day light spread like wild fire throughout the area creating an atmosphere of fear and terror amongst the public. Shops in Muradnagar were shut down hurriedly and there was panic every where. The movement of traffic was also seriously affected. Communal harmony and public order were totally shattered. The attendance in schools and collages remained low for several days following the occurrence. The working of hospital and business establishment was also seriously affected. Additional PAC Battalion had to be requisitioned in qasba Muradnagar for maintenance of law, order, place and tranquility in the area. On the basis of the material collected by the Investigating Officer of the aforesaid case during the investigation, the complicity of the petitioner in the commission of the double brutal murder of two persons belonging to the same family was fully established.

The grounds of detention further reveal that since the petitioner, who was detained in District Jail, Ghaziabad on account of his being accused in case crime no. 132 of 2016 was making efforts to obtain bail and his bail application was pending for disposal before the Hon'ble High Court, the detaining authority was satisfied that in case he was released on bail he would certainly be a serious threat and danger to public order and hence in order to prevent the petitioner from indulging in any activity prejudicial to public order it was imperative to pass an order for his preventive detention.

Learned counsel for the petitioner submitted that the District Magistrate, Ghaziabad has not applied his mind to the facts of the case and the material on record and he has passed the impugned order in a routine manner on the report submitted to him by the police authorities. The detaining authority has failed to record any satisfaction in the impugned order that there was real possibility of the petitioner, who was already in judicial custody, being released on bail. Further the material before the detaining authority was not sufficient to satisfy him that after being released on bail the petitioner shall again indulge in activities prejudicial to the public order and hence, the impugned order which is per-se illegal may be set aside and the petitioner be set at liberty forthwith.

Per contra, learned A.G.A. and Sri Alok Ranjan Mishra, learned counsel for the Union of India made their submissions in support of impugned order and submitted that detaining authority has passed the impugned order after being fully satisfied on the basis of the material produced before him that on being released on bail the petitioner may again indulge in activities prejudicial to the public order and the same does not suffer from any illegality or infirmity, hence the present habeas corpus writ petition which is devoid of any merits is liable to be dismissed.

After having very carefully examined the submissions made by learned counsel for the parties and perused the impugned order as well as the other material brought on record, we find that the only two issues are involved in this writ petition, firstly whether the failure of the District Magistrate to record in the impugned order that there was strong possibility of the petitioner, who was already in judicial custody on account of his being accused in Case Crime no. 132 of 2016 under Sections 302, 147, 148, 149 and 34 IPC was registered at P.S. Murad Nagar, District Ghaziabad being released on bail has vitiated the impugned order and whether the subsequent recording of his satisfaction that on being released on bail there was possibility of the petitioner's indulging in similar activities which were prejudicial to the public order on his being enlarged on bail would validate the impugned order and secondly whether there was any material on record warranting the satisfaction recorded by the respondent no.2 in the impugned detention order that in case the petitioner who was released he would again indulge in activities prejudicial to the public order.

The Hon'ble Supreme Court of India in paragraph 35 of its judgment rendered in the case of Haradhan Saha & Another vs The State Of West Bengal & Ors. reported in (1975) 3 SCC 198 observed that where the concerned person is actually in jail custody at the time when the order of detention is passed against him, and is not likely to be released for a fairly long time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in the activities which would jeopardise the security of the State or the public order.

The Hon'ble Supreme Court has laid down the principles as to when a detention order can be passed with regard to a person already in judicial custody in the case of Kamarunnissa vs. Union of India and another reported in 1990(27) ACC 621 SC and in paragraph 13 of the aforesaid case the The Hon'ble Supreme Court has held as hereunder :-

"13. From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed(1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him(a) that there is real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in his behalf, such an order can not be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question of before a higher Court."

Another 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 detenu is likely to be released from custody in the near future and taking into account the nature of the antecedent activities of the detenu, 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."

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 detenu being released on bail and further if released on bail he will indulge in prejudicial activity if not detained."

What follows from the above is that a valid preventive detention order passed against a person in judicial custody must fulfill the conditions spelt out herein above by the Apex Court in its numerous pronouncements on the issue and one such essential condition is that there should be real possibility of the person being released on bail.

In the present case the detaining authority has merely mentioned in the grounds of detention that the petitioner has filed his bail application before the Hon'ble High Court and there was possibility of the petitioner indulging in similar activities prejudicial to the maintenance of public order on his coming out of jail. He has not recorded his satisfaction in the impugned order that there was real possibility of his being released on bail, on omission which in our opinion has totally vitiated the impugned order.

While considering the second issue involved in this matter we find that admittedly the petitioner on the date of the passing of the detention order was in jail and even if it is assumed for the sake of argument that there was possibility of his being released on bail, whether there was any material before the respondent no.2 justifying the satisfaction recorded by him in the grounds of detention that detenu would indulge in prejudicial activities in case of his release on bail. Record shows that although the detaining authority has in the grounds of detention recorded therein that the petitioner who was in jail on account of his being accused in case crime no. 132 of 2016 under Sections 302, 147, 148, 149 and 34 IPC, P.S. Muradnagar, District Ghaziabad had moved a bail application before the Hon'ble High Court which was pending disposal and in case he was released on bail, he would again indulge in similar activities prejudicial to the public order but in the instant case no material was made apparent on record that the detenu if released on bail was likely to indulge in activities prejudicial to the maintenance of public order.

Hon'ble Apex Court in paragraph 9 of its judgment rendered in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan and another, 1964 AIR (SC) 334 has observed as hereunder:-

" It is also true that in deciding the question as to whether it is necessary to detain a person, the authority has to be satisfied that if the said person is not detained, he may act in a prejudicial manner, and this conclusion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activities of the said person. When evidence is placed before the authority in respect of such past conduct of the person, the authority has to examine the said evidence and decide whether it is necessary to detain the said person in order to prevent him from acting in a prejudicial manner. That is why this Court has held in Ujagar Singh v. The State of Punjab and jagjit Singh -v. The State of Punjab(1) that the past conduct or antecedent history of a person can be taken into account in making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. In this connection, it is, however, necessary to bear in mind that the past conduct or antecedent history of the person on which the authority purports to act, should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. It would, for instance, be irrational to take into account the conduct of (1) [1952] S.C.R. 756. 928 the person which took plate ten years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that his detention is necessary. Inother words, where an authority is acting bona fide andconsidering the question as to whether a person should be detained, he would naturally expect that evidence on which the said conclusion is ultimately going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally justifies the conclusion that if the said person is not detained, he may indulge in prejudicial activities. We ought to add that it is both inexpedient and undesirable to lay down any inflexible test. The question about the validity of the satisfaction of the authority will have to be considered on the facts of each case. The detention of a person without a trial is a very serious encroachment on his personal freedom, and so, at every stage, all questions in relation to the said detention must be carefully and solemnly considered."

In the instant case as is evident from the perusal of the detention order and the grounds of detention that no such exercise to examine the past conduct and antecedent history of the petitioner was undertaken by he respondent no.3 as it is largely from prior evidence showing tendency or incarnation of a man that inference could be drawn whether he is likely even in the near future to act in a manner prejudicial to the maintenance of public order nor he has referred to any material warranting such satisfaction.

In the instant case there was no material made apparent on record that the detenu if released on bail will indulge in activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the petitioner who was in jail had moved an application for bail and on his being bailed out, he would again indulge in the activities prejudicial to public order, we do not think that the impugned order of detention can be justified on that basis.

The impugned order dated 30.09.2016 passed by respondent no. 3, District Magistrate, Ghaziabad (annexure no. 6 to the writ petition) thus cannot be sustained and is liable to be quashed.

These are the reasons upon which we quashed the order of detention.

Order Date :- 29.5.2017

Abhishek Sri.