Pankaj Singh vs State Of U.P. And 3 Others
2017 Latest Caselaw 6161 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 51
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 6366 of 2017
 

 
Petitioner :- Pankaj Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Brijesh Sahai,Katyayini
 
Counsel for Respondent :- G.A.,N.D.Rai
 

 
Hon'ble Vipin Sinha,J.

Hon'ble J.J. Munir,J.

(Delivered by Hon'ble J.J. Munir, J.)

The petitioner Pankaj Singh has been detained under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the 'Act') under an order of the District Magistrate, Jaunpur (for short the "Detaining Authority") dated 07.11.2016. The order dated 07.11.2016 shall hereinafter be referred to as the "detention order".

The representation made by the petitioner to the Detaining Authority has been rejected by an order dated 21.11.2016 on ground that by the time the the petitioner's representation was received by the District Magistrate, that is to say, on 19.11.2016 the State Government had already rejected the representation by an order dated 15.11.2016. The Central Government rejected the petitioner's representation by an order that was communicated to the detenu-petitioner through the Superintendent, District Jail, Jaunpur by a wireless message dated 09.12.2016. The case of the petitioner was reviewed by the Advisory Board under Section 12(1) of the Act who affirmed the detention order. The decision of the Advisory Board was communicated to the petitioner under the signature of the Under Secretary, Home (Confidential Department), Govt. of U.P. by a radiogram dated 28.12.2016 through the Superintendent, District Jail, Jaunpur.

This petition which in essence is a writ petition seeking a writ, order or direction in the nature of Habeas Corpus to restore the petitioner to his liberty that stands taken away by virtue of the detention order, seeks the following material reliefs:

"I.     To issue a writ, order or direction in the nature of certiorari quashing the impugned detention order dated 07.11.2016 passed by the District Magistrate, Jaunpur under Section 3(2) of the National Security Act, 1980.
 
 II.       To issue any other writ, order or directions in the nature of Habeas Corpus commanding the respondents to release the petitioner forthwith detained in pursuance to detention order dated 07.11.2016 passed by the District Magistrate, Jaunpur under Section 3(2) of the National Security Act, 1980."
 

Before we venture to judge the validity of the petitioner's detention, we are constrained to say that we are not entirely at peace with the frame of the petition, so far as as the reliefs claimed are concerned. To our mind the second relief would suffice to deal with the petitioner's claim against his detention under the Act. A writ in the nature of Habeas Corpus is generally sought and must be sought wherever illegal detention of a person, whether by or under an order of the executive authority of the State is questioned or even by or at the behest of a private person. A writ in the nature of Habeas Corpus is a wholesome remedy available to a person against illegal detention complained of whether it by the State or by a private person. No other relief or writ, order or direction of a different nature seeking to quash the order by or under the authority of which detention is made, in our opinion, is required to be sought.

In fact, it is important to note that the distinction between a petition seeking a writ, order or direction in the nature of Habeas Corpus and a writ petition seeking any other writ, order or direction becomes more than a matter of mere form as far as this Court is concerned because this Court while framing the rules of the Court in exercise of powers under Article 225 of the Constitution of India consciously chose to place petitions seeking writs, orders or directions in the nature of Habeas Corpus and petitions seeking writs other than Habeas Corpus, though both are sought under Article 226 of the Constitution, in two distinct and separate chapters of the rules of the Court, each providing for different rules of procedure, regulation, form and process. While petitions seeking a writ, order or direction in the nature of Habeas Corpus are dealt with under Chapter-XXI of Allahabad High Court Rules, 1952, all petitions under Article 226 of the Constitution other than those seeking orders, writ or directions in the nature of Habeas Corpus are dealt with under Chapter-XXII. To our mind, therefore, a petition for a writ, order or direction in the nature of Habeas Corpus is distinct and different generically from other writ petitions under Article 226 of the Constitution. Thus, a writ petition seeking a writ, order or direction in the nature of Habeas Corpus is complete in itself and must not ask for any other relief as done in the instant case where a writ, order or direction in the nature of certiorari seeking to quash the detention order has also been included in the prayer clause. The detention order in case of success would go by the dint of the writ, order or direction in the nature of Habeas Corpus alone. Nothing more is required. Thus, the first relief sought is bad in frame and we proceed to ignore the same.

We have heard Sri Brijesh Sahai, learned counsel for the petitioner assisted by Ms. Katyayini, learned counsel for the petitioner, learned AGA for Respondents Nos. 2, 3 and 4 and Sri N.D. Rai for Union of India, Respondent No.1.

This petition was presented on 07.02.2017 on behalf of the petitioner and on 09.02.2017 orders were passed directing the State and their various authorities as well as the Union of India to file their return within six weeks. The aforesaid order, constitutes a rule nisi requiring the authorities to substantiate the petitioner's continued detention in prison under the Act.

Returns to the rule were filed in the manner that the earliest was a counter affidavit on behalf of the State, Respondent No.2, being a counter affidavit sworn on 17.03.2017, served upon the learned counsel for the petitioner on 22.03.2017. It appears to have been filed thereafter under an office report dated 12.05.2017 along with a separate counter affidavit on behalf of the Superintendent, District Jail, Jaunpur. A supplementary counter affidavit on behalf of the State sworn on 01.06.2017 and served upon the learned counsel for the petitioner was also filed bringing on record the extension to the period of detention ordered through the detention order by enlarging the period of detention sanctioning it for a total of six months by the State Government's order dated 02.05.2017. The next return in chronology is that of the Detaining Authority which is a counter affidavit dated 17.06.2017 sworn by one Bhanu Chandra Goswami posted at the time of swearing the affidavit as the Vice Chairman, Allahabad Development Authority; he was the incumbent Officer making the detention order at Jaunpur. The said affidavit is available on record. There is then a further return filed on behalf of the State being a Supplementary Counter Affidavit sworn on 29.08.2017 and served upon learned counsel for the petitioner on 08.09.2017. The said affidavit has also been placed on record through an office report dated 29.09.2017.

The Union of India has answered the rule by their return in the form of a counter affidavit sworn on 04.05.2017 by one Sri Balraj, Under Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. The said affidavit is also on record. A rejoinder affidavit has been filed by the petitioner in response to the counter affidavit by the Jail Superintendent, Jaunpur, Respondent No.4. The said rejoinder affidavit is one dated 06.07.2017 filed on behalf of the petitioner by Shailendra Kumar Singh, his brother and Parokar. There is also a rejoinder affidavit filed by the same deponent on behalf of the petitioner dated 06.07.2017 in response to the counter affidavit filed on behalf of the State.

The thrust of the submission of Sri Brijesh Sahai, learned counsel for the petitioner is that the Detaining Authority has passed the detention order without application of mind in a mechanical manner which, in turn, has been mechanically affirmed by the State Government, the Central Government and also the Advisory Board. In order to substantiate his submission he brought to our notice the recommendation made by the sponsoring authority which according to learned counsel have been reproduced by the Detaining Authority in the grounds of detention accompanying the detention order. It is the learned counsel's contention that a verbatim repetition of the words of the sponsoring authority in the order of detention and the grounds without doubt betray lack of application of mind on the part of the Detaining Authority. He has particularly emphasised the fact that there is no material on record to show that in case the petitioner was released from jail he would repeat his criminal activities prejudicially affecting the maintenance of public order. The learned counsel for the petitioner submits that a bald statement to the effect that once released on bail the petitioner would indulge in activities prejudicial to maintenance of public order is not sufficient warrant for the Detaining Authority to exercise of power under Section 3(2) of the Act. In short, the contention runs to the effect that there is no material whatsoever on the the basis of which the Detaining Authority could have arrived at a valid subjective satisfaction under Section 3(2) of the Act that the petitioner in case of release from jail on bail would act in a manner prejudicial to the maintenance of public order.

The submissions based on non application of mind on the part of the Detaining Authority is sought to be buttressed by Sri Sahai by bringing it to our pointed notice that the detention order together with the grounds in support to show that the Detaining Authority while passing the same had in mind that the petitioner is making efforts to secure bail which is reflected by an assertion to the following effect in the ground of detention set out at page 28 of the paper book (translated into English from Hindi vernacular) :- "You are in effort to secure release on bail which is evident from a perusal of a certified copy of Annexure-16." Sri Sahai points out that the aforesaid assertion transparently reveals utter lack of application of mind, a mechanical approach and a manner of exercise of the power to detain that is far from one based on good subjective satisfaction considering the correct state of facts, let alone relevant material. This he says is so because the petitioner had already been granted bail by this Court vide an order dated 27.10.2016 passed in Criminal Misc. Bail Application No. 37609 of 2016. The fact that the Detaining Authority on 07.11.2016 while writing the order of detention and the grounds does not show that the petitioner had already been granted bail by this Court but says that the petitioner is endeavoring to secure bail glaringly shows lack of application of mind to relevant material. The said fact that has been asserted categorically in paragraph 20 of the writ petition has not been met at all by the Detaining Authority in paragraph 16 of the counter affidavit where he does not say at all whether he was aware of the bail order dated 27.10.2016 passed by this Court or the reasons why he did not refer to the same while recording the order of detention and grounds in support. In fact, he has evasively answered the assertion regarding non application of mind to the already existing bail order passed by this Court made in paragraph 20 of the writ petition.

Likewise, the assertion regarding the mechanical approach adopted by the Detaining Authority while writing the detention order and grounds in support by saying nothing more in the grounds than parroting the recommendation of the sponsoring authority, have not at all been met by the Detaining Authority in his reply. All that he has gone on to say in paragrpah 5 of his counter affidavit (the affidavit sworn on 17.06.2017) is that the incident impelling him to invoke his powers created wide spread disturbance of law and order and that he had complied with all procedural safeguards regarding service of the detention order, grounds of detention besides informing the petitioner of his right to represent to various authorities under the Act.

The reply is far from what meets the specific case of an absolute mechanical approach in accepting the sponsoring authority's version that is otherwise apparent from a reading of the reports of the sponsoring authority, the order of detention, and, particularly, the grounds. Thus, we find substance in the submission of Sri Sahai that the Detaining Authority while passing the detention order acted mechanically and exercised powers under Section 3(2) of Act without due application of mind to relevant material vitiating his subjective satisfaction.

It also calls to be noticed that the Detaining Authority from a reading of the grounds of detention and the material in support had no material before him justifying the apprehension that the petitioner once released on bail would indulge in activities prejudicial to the maintenance of public order. There is nothing more than a bald statement in the detention order. There is also no material brought on record by the Detaining Authority or the State to justify that conclusion. It is trite law that the decision to detain is founded on the subjective satisfaction of the Detaining Authority but it is equally true that the same has to be based on objective material. There is no material on record, say past antecedents, criminal history or like material relating to the petitioner that could have led the Detaining Authority to form a valid subjective satisfaction under the Act.

We are fortified in the view that we take by the decision of a Division Bench of this Court in Sanchit Gupta vs. State of U.P., 2016(96) ACC 84, which, in turn, draws inspiration from the guidance of the Supreme Court in Shashi Agarwal vs. State of U.P. And others, 1988(1) SCC 436 and Rameshwar Shaw vs. District Magistrate, Burdwan and another, AIR 1964 (SC) 334. Paragraphs 7, 8 and 10 of the report in re: Sanchit Gupta (supra) are apposite:-

7. We have very carefully scanned the impugned order and the grounds of detention and also the counter affidavits filed on behalf of the respondent nos. 1 to 4 in this writ petition and we are constrained to observe that no material justifying the apprehension that detenue would indulge in prejudicial activities in case of his being released on bail was placed before the respondent no.2. In our opinion the bald statement made in the grounds of detention that the petitioner upon being released on bail would repeat his criminal activities prejudicially affecting the maintainance of public order, was not enough to justify passing of an order of preventive detention against him. We stand fortified in our view by the law laid down by the Apex Court in the case of Rameshwar Shaw (supra) and Shahshi Agarwal (supra).

8. The Hon'ble Apex Court in paragraphs 9 and 10 of its judgement rendered in the case of Rameshwar Shaw (supra) has observed as hereunder :-

"9. 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.

10. 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 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"

9. Similarly the Apex Court in paragraphs 8, 9, and 10 of its judgment rendered in Smt. Shahsi Agarwal (supra) which are being reproduced hereinbelow has held as hereunder :-

"8. The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48. The principles may be summarised as follows.

Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.

9. We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are not in tune with the ratio of the decision in Alijan Milan's case (supra). In Ramesh Yadav v. District Magistrate Etah and Ors., [1985]4 SCC 232 at p. 234, this Court observed:

"On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raisec;. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.

10. Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed:

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Etemal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens."

10. In the instant case, there was no material made apparent on record that the detenue, if released on bail will indulge in activities prejudicial to the maintainance 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 thre was strong possibility of his being released bailed out. We do not think that the impugned order of detention can be justified on that basis.

In addition, the fact that the Detaining Authority on the date that he made the order of detention was not aware of the fact that the petitioner had been granted bail by this Court, and, instead, proceeded to write the order of detention and grounds on the supposition that the petitioner was making efforts to seek bail has brought about a situation that has been disapproved by their Lordships of the Supreme Court holding the lack of awareness regarding the stage of bail proceeding to be reflective of non-awareness of the Detaining Authority that would lead to vitiating his subjective satisfaction based on consideration of relevant materials. The said view has been eloquently expressed by their Lordships of the Supreme Court in Abdul Razak Abdul Wahab Sheikh vs. S.N. Sinha, Commissioner of Police, Ahmedabad and another, (1989) 2 SCC 222 where in paragraph 24 of the report it is observed:

"On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on 13th May, 1988. It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on 23rd May, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also." This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is non-existent. This fact of non-awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials." (Emphasis by us)

There is yet another angle of the matter which this Court cannot ignore. The petitioner is not named in the first information report giving rise to case crime no. 0388 of 2016 under Sections 147, 148, 149, 302, 120B IPC and Section 7 of Criminal Law Amendment Act, P.S. Chandwak, District Jaunpur. The informant named eight assailants but the name of the petitioner does not find mention in the FIR though there is reference to an unnamed assailant. The petitioner has been connected to the crime on the basis of a CDR of the mobile phones between the petitioner and co-accused Mithun Singh. The petitioner had been found talking via his mobile to the co-accused Mithun Singh from 22.05.2016 to the date of incident. The police have on this basis found the petitioner's complicity in the crime vide Parcha No. 25 dated 22.06.2016. There is no record of what the conversation between the petitioner and co-accused Mithun Singh was. The case diary is also silent as to why the call details of the petitioner was sought. It is the specific case of the petitioner that on perusal of the call details it only depicts that on the date of the incident the petitioner was in the village of the deceased which happens to be village of the petitioner too; the call detail does not disclose the conversation the petitioner had. Thus, the connection of the petitioner to the crime that has been made foundation to pass the detention order is based on virtually no material. Looking to the said facts this Court granted bail to the petitioner as would appear from a perusal of the bail order that is on record. The order of preventive detention appears to be one that has been made deliberately to circumvent enforcement of the bail order, and, it is for the said reason that the fact of the petitioner being granted bail on the date of the detention order does not find mention in that order or in the grounds in support. There is a categorical assertion to this effect by the petitioner in paragraph 21 of the writ petition which has not at all been answered much less effectively denied by the Detaining Authority in paragraph 16 of his counter affidavit. The aforesaid circumstance leads us to be satisfied that the detention order was passed to circumvent orders passed by this Court granting bail.

It is by now a matter of not much debate that preventive detention is not a remedy to curtail the right of an accused to secure bail. The circumstances aforesaid, however, lead us to believe that it is precisely what has been done here. Power of preventive detention cannot be utilized to curtail the right of an accused not to be detained without trial in accordance with law. It is always open to the State to oppose the prayer for bail on behalf of the petitioner or to seek cancellation of bail already granted in accordance with law including that by invocation of appellate procedures. But that does not justify the exercise of power to detain under Section 3(2) of the Act, which is a power that is available for an all together different purpose and is to be exercised on relevant grounds and material which do not obtain in the instant case. This view of ours finds support from the decision of a Division Bench of this Court in Jameel @ Kubra vs. State of U.P., 2016(97) ACC 610. Paragraphs 7 and 8 of the report are of utmost relevance:

7. From the perusal of the grounds of detention it emerges out that peace and tranquility was disturbed on account of lackadaisical and insouciant attitude of the administrative authority for which the petitioner alone cannot be held responsible. No doubt that the petitioner is shown to be involved in some offense, the criminal court would hold the trial on the basis of legal evidence justifying his complicity but the captivity of the petitioner merely on the so called subjective satisfaction of the detaining authority would constitute an infraction of valuable right of the detenue under Article 22 (5) of the Constitution of India. If the family members of the petitioner were trying him to be released on bail as mentioned in the detention order, then a proper course open to the authority was to oppose the bail application or to challenge the order if granted bail in the proper forum and not to curtail his right to move bail application to pre-empt or circumvent the orders granting bail if he is granted bail. The cases which are essentially criminal in nature can be dealt with under the ordinary law. Prosecution in a criminal court is conducted by a trial and proof of guilt is based on the basis of legal evidence and the standard of proof is beyond reasonable doubt whereas preventive detention is an action to prevent the act justifying the satisfaction that there is an imminent danger and the detenue would indulge in similar activities if set at liberty putting in jeopardy the security and safety of the entire society. (emphasis by us)

8. The procedural safeguards were completely given go bye by the detaining authority for which the petitioner alone has been held to be responsible for causing annoyance and breach of normal tempo of life. The detaining authority must satisfy himself that there is a real possibility of causing jeopardy and imminent danger to the safety and security of the society at large or the State or the welfare of the nation otherwise it would be an easy tool in the hands of police to lodge a first information report against unruly mob and then recommend the name of any person against whom a case was already registered previously to be detained under the National Security Act. It is conspicuous that the detention order has been passed by the detaining authority without his subjective satisfaction and without any legal proof justifying the detention that if the petitioner is not kept in custody there is possibility of causing imminent danger to the public at large to the State or the welfare of nation. The power given to the detaining authority must be exercised in exceptional cases with great deal of circumspection failing which it would defeat the objects and reasons for enacting the Act. The Hon'ble Apex Court in the Huidrom Konungjao Singh Vs. State of Manipur and others 2012 (78) ACC 120 (SC) has visited the entire law on the subject of real possibility of detenue's release on bail and it has been that there is no prohibition in law to pass the detention order in respect of a person, who is already in custody in respect of criminal case at the same time if the detention order is based on mere ipse dixit statement in the grounds of detention cannot be sustained in the eyes of law. Whether a person who is in jail can be detained under detention law on the possibility and probability of bail being granted.

In view of all that we have found, we hold the continued detention of the petitioner pursuant to the detention order dated 07.11.2016 passed by Respondent No.3 to be unlawful.

Accordingly, this writ petition stands allowed. The rule is made absolute. The continued detention of the petitioner by dint of the detention order dated 07.11.2016 passed by respondent no.3 is hereby declared illegal. The petitioner is directed to be set at liberty forthwith unless wanted in any other case.

Let certified copy of the order be supplied today to learned counsel for the parties.

Order Date :- 02.11.2017

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