Amarpal Sharma vs Union Of India And 3 Others
2018 Latest Caselaw 1969 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Reserved On 06.08.2018
 
Delivered On.14.08.2018 
 

 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 3175 of 2018
 

 
Petitioner :- Amarpal Sharma
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Anurag Yadav,Anuj Srivastava,Mahendra Pratap
 
Counsel for Respondent :- A.S.G.I.,G.A.,J.P. Mishra
 

 
Hon'ble Rajesh Dayal Khare,J.

Hon'ble Neeraj Tiwari,J.

(Delivered by Justice Neeraj Tiwari)

Heard Sri Mahendra Pratap, learned counsel for the petitioner, Sri Jitendra Prasad Mishra, learned counsel for Union of India and learned AGA for the State.

Pleadings are exchanged. With the consent of learned counsel for the parties, the present criminal misc. writ petition is being decided finally.

The writ petition has been filed by the petitioner- Amarpal Sharma with a prayer to issue a writ, order or direction in the nature of Habeas Corpus directing the respondents to produce the corpus before this Court, set him at liberty and to quash the order dated 05.02.2018 passed by District Magistrate, Ghaziabad in exercise of powers under Section 3(2) of the National Security Act, 1980.

The brief facts are that two unknown persons killed Gajendra @ Gajji and the role assigned to the petitioner is a conspirator. An FIR being case crime no. 461 of 2017, under sections 302, 307, 120B I.P.C., P.S. Khoda, District Ghaziabad was registered in which petitioner was named as an accused. Thereafter, District Magistrate, Ghaziabad passed an order dated 5.2.2018 under section 3(2) in exercise of authorization under section 3(3) of National Security Act, 1980 detaining the petitioner in District Jail, Ghaziabad. A copy of the grounds of detention dated 5.2.2018 was also served upon the petitioner, when the petitioner was in judicial custody in the aforesaid case.

The basis of grounds of detention is the case crime no. 461 of 2017, under sections 302, 307, 120B I.P.C., which has been mentioned in the grounds of detention. Alongwith the grounds of detention, report of SSP, Ghaziabad dated 2.2.2018, report of SP City dated 1.2.2018, report of CO dated 1.2.2018 and report of Inspector, Khoda dated 31.1.2018 were also served upon the petitioner.

Learned counsel for the petitioner has submitted that the detaining authority has not recorded her satisfaction that release of the petitioner is eminent in the future and is a real possibility. From the catena of decisions, it is clear that in case, a person is detained in custody even then detention order can be passed by the detaining authority provided he/she is aware that the detenue is actually in custody, he/ she has reason to believe on the basis of relevant material him/ her (a) it is real possibility of his being released on bail and (b) on being so released, he would in all probability indulged in prejudicial activity and if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his/ her satisfaction in this regard only then detention order can be said to be valid. Here in the present case, it is lacking and therefore the order of detention is bad and illegal.

He has further submitted that in the grounds of detention, detaining authority has mentioned her awareness about the aforesaid case except five more criminal cases referred hereinafter in which the petitioner was in jail on 5.2.2018 when the detention order was passed. Had she recorded her satisfaction for real possibility of release on the basis of bail granted in case crime no. 461 of 2017, satisfaction would have been vitiated because of petitioner's incarceration in five other criminal cases. In support of his submission, learned counsel for the petitioner has relied upon several judgements of Apex Court as well as of this Court. He has also placed reliance upon paragraphs 3 and 14 of the counter affidavit filed on behalf of Superintendent District Jail, Ghaziabad. Lastly, learned counsel for the petitioner has submitted that for the aforesaid reasons, order passed by District Magistrate, Ghaziabad is bad in law and liable to be set aside.

It is also argued by learned counsel for the petitioner that right to make a representation to the authorities is a fundamental right under Article 22 of the Constitution of India. It is implicit in the said right and corresponding duty of the detaining authority is that a person has a right to be informed to whom the representation would be made. The detaining authority has not informed to the petitioner that he has a right to make a representation before the detaining authority, State Government, Central Government and Advisory Board. This constitutional mandate is lacking in the order and ground of detention served upon the petitioner and therefore continued detention of the petitioner is illegal and unconstitutional.

Per contra, Sri Jitendra Prasad Mishra, learned counsel for Union of India and learned AGA for State have made submissions in support of impugned order.

Learned AGA has submitted that the cases which have been mentioned by learned counsel for the petitioner during the course of argument, four of them are minor in nature and further detention order has been passed mainly with regard to the incident occurred on R.K. Memorial Public School, in which Gajendra Bhati @ Gajju was brutally killed and Balbir Chauhan was seriously injured. On account of said incident, public order was seriously disturbed, therefore, the petitioner was detained under provisions of National Security Act as he was named in the FIR of the said incident dated 3.9.2017, which is part of writ petition.

He has further submitted that while passing the order of detention, authorities concerned after considering the entire material, facts, reports of the concerned officers and after evaluating the subjective satisfaction, order of detention has been passed in accordance with provisions of the Act. It has been submitted that hectic efforts are being made from the side of the petitioner for getting him released on bail and each and every steps taken by the authority concerned is in accordance with the provisions of the Act, therefore, detention order is wholly in accordance with law.

We have carefully considered the submission made by learned counsel for the parties as well as other material brought on record.

A careful reading of the grounds of detention supplied to the petitioner under Section 8 of the Act along with the detention order (Annexure-1 to the writ petition) reveal that the same merely contains a recital that the petitioner who was in District Jail, Ghaziabad on account of his being involved in Case Crime No. 461 of 2017, was making efforts to come out of the jail as was evident from the fact that he had moved a bail application, which is pending for hearing.

This issue came up before Apex Court time and again and the Apex Court has examined the legal impact of the failure of the detaining authority to record in the order of the preventive detention passed with regard to a detenue already imprisoned as a person in the judicial custody that there was real possibility of the detenue being released on bail from the said judicial custody in several decisions.

The Supreme Court of India observed in the case of Haradhan Saha Versus State of Bengal, (1975) 3 SCC 198; AIR 1975 S.C. 2151 in its paragraph No 35 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 fair 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 jeopardised the security of the State or the public order."

The Supreme court has laid down principles as to when the such detention order can be passed, In this regard, the leading case is reported in (1991) 1 SCC 128, Kamarunnissa Vs. Union of India and another; which has been followed in the case of Veeramani Vs. State of Tamil Naduu; (2006) 2 SCC 664, TV Sravanan alias SAR Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and another; JT 2003 (Suppl 2) SC 503 Union of India Vs. Paul Manickam and another. It has been held by the Supreme Court of India in paragraph 13 of Kamarunnisa case;-

" 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 this 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 if before a higher court."

The above mentioned conditions should be satisfied for the above valid detention or against the person in custody, one of the condition is that there should be real possibility of the person being released on bail."

Again this issue has came up before Apex Court in the case of Champion R Sangma Vs. State of Meghalaya and others; 2015 Law Suit (SC) 679, which is having the similar provision almost paramateria of National Security Act. For ready reference, paras 7, 8, 9 and 10 of the aforesaid judgement are being quoted herein below;

7. Various contentions are advanced by the learned senior Counsel questioning the correctness of the impugned jdugment. It is not necessary to traverse all those arguments as we are of the opinion that this appeal warrants to be allowed on one ground itself , as would be noted hereinafter.

8. Coming to the ground on which we intend to allow this appeal, we may point out that even if the Appellant is in jail in connection with some criminal case(s) there is no prohibition in law to pass the detention order. Law on this aspect is well settled and stands crystallized by plethora of judgments of this Court. However, a reading of those very judgments also clarifies that there are certain aspects which have to be borne in mind by the detaining authority and satisfaction on those aspects is to be arrived at while passing the detention order. There are three such factors which were re-stated in Kamannmissa v. Union of India and Anr. 1991 1 SCC 128 (pa.13).

"13. From the catena of decisons 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 a 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 this behalf, such an order cannot 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 it before a higher court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to preempt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the Petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."

9. The aforesaid dicta is reiterated in subsequent judgments as well. Some of which are as under:

titled: T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Anr. 2006 2 SCC 664

K.K. Saravana Babu v. State of Tamil Nadu and Anr. 2008 9 SCC 89

titled: Huidrom Konungjao Singh v. State of Manipur and Ors. 2012 7 SCC 181

10. In the present case, as already pointed out above, the Appellant was under incarceration as he is implicated in as many as 8 cases. In fact till date he is in jail and has not been granted bail."

Issue of preventive detention under National Security Act has also came up before this Court on several occasions and the same has been decided after recording satisfaction about the release of petitioner on bail or not and this Court has dealt in detail in Habeas Corpus Writ Petition No. 5666 of 2005 (Iqbal Vs. State of U.P. and others) decided on 29.04.2005. For ready reference, paragraphs 9 and 10 are being quoted herein below;

"9. It is settled legal position that a person already in custody can be detained under the provisions of the Act provided the detaining authority is aware about his custody and also records his satisfaction on the material placed before him that there is every possibility of the petitioner being released on bail in near future. Reference may be made to the judgement of the Hon'ble Supreme Court in the cases of Union of India. Vs. Paul Manickam and another; and Qamarunnissa v. Union of India and others.

10. In the case in hand, admittedly the petitioner was already in jail on the date of passing of the impugned order despite that the detaining authority did not record his satisfaction about the possibility of the petitioner being released on bail in the near future nor any material has been brought on record to show that there was every chance of the petitioner being released on bail and, therefore, in the absence of such satisfaction or material on record, the order of detention is vitiated."

Again this issue has been dealt with by this Court in Habeas Corpus Writ Petition No. 2595 of 2013 (Cheeku Badla Vs. Superintendent, District Jail, Bulandshahar and others) decided on 20.9.2013. For ready reference, paragraph 9 is being quoted herein below;

"In the present case, detaining authority has clearly mentioned in the ground of detention that it has been informed by the Pairokar of P.S. Lalkurti that the petitioner was trying for release on bail, he moved the applications before the C.J.M. Meerut and Additional District & Sessions Judge, Court No. 18, Meerut, the same were rejected, thereafter, he moved a bail application before the Allahabad High Court, the same was pending, but he has not recorded the satisfaction that there was real possibility of release on bail, which vitiate the impugned order. In the present case, the petitioner is not named in the F.I.R. subsequently, he has been released on bail by the Hon'ble S.C. Agarwal,J. on 17.2.2012 in criminal misc. bail application no.3461 of 2012 in case crime no. 445 of 2012 under sections 302,394,120-B I.P.C. P.S. Sadar Bazar district Meerut.There is no need to discuss other points raised by the learned counsel for the petitioner, in view of the above discussion we come to the conclusion that the 'satisfaction' of the detaining authority that there was real possibility of his being released on bail, has not been disclosed in the grounds of detention, it vitiates the impugned order dated 19.11.2012, therefore, the impugned order dated 19.11.2012 is hereby set aside. "

Again the similar issue has also been dealt with by this Court in Habeas Corpus Writ Petition No. 18131 of 2016 (Chhotu Yadav, Anil Yadav Vs. Adheekshak Janpad Karagar Kannauj and 3 others) decided on 19.5.2016.

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.

The law laid down by the Apex Court as well as this Court was followed in the cases of Habeas Corpus Writ Petition No. 8870 of 2017 (Vijay Vs. Union of India and 5 others) decided on 29.5.2017, Habeas Corpus Writ Petition No. 60136 of 2015 (Praveen Vs. Union of India and 3 others) decided on 19.01.2016, Habeas Corpus Writ Petition No. 58445 of 2015 (Raju @ Raj Kumar Balmiki Vs. State of U.P. and 3 others) decided on 08.01.2016 and Habeas Corpus Writ Petition No. 51988 of 2015 (Kallu @ Navi Baksha Vs. Union of India and 3 others) decided on 25.01.2016.

After going through the detention order, we are of the view that there is no satisfaction recorded by the detaining authority about the other cases in which petitioner was in jail, therefore, on this point, the order of detention is bad in law. Further the argument of learned counsel for the petitioner that he was not informed about to make representation before the authorities is not found support from the ground of detention order as he was informed about his right to file representation in the impugned detention order dated 05.02.2018, therefore, the judgement relied by the learned counsel for the petitioner in Habeas Corpus Writ Petition No. 55182 of 2002 (Rafiq Vs. District Magistrate, Moradabad and others) decided on 23.05.2003 is not come in rescue of the petitioner.

It is mandatory that an order of detention passed in respect of a person under judicial custody must satisfy the three conditions spelt out by the Apex Court in the case of Kamarunnissa (supra) and one such essential condition is that authority passing the order of detention in respect of a person in custody should have reason to believe on the basis of reliable material placed before him that there is real possibility of his being released on bail. In the present case, the respondent no. 3 / District Magistrate, Ghaziabad has failed to record any such satisfaction in the impugned order dated 05.02.2018 as mere filing and pendency of bail application does not construe satisfaction for being released on bail or coming out of jail.

Learned A. G. A. and Sri Jitendra Prasad Mishra, learned counsel for the Union of India argued vehemently in favour of impugned detention order but failed to demonstrate that the detaining authority had recorded his satisfaction in the impugned order that there was real possibility of his being released on bail or his coming out of jail.

Therefore, in lack of any such satisfaction having been recorded in the impugned order by the detaining authority / respondent no. 3, the impugned detention order which suffers from the vice of total non-application of mind, cannot be held to be a valid order.

For the aforesaid reasons and considering the settled position of law on the issue, we are of the view that the impugned order cannot be sustained and is liable to be quashed.

The writ petition accordingly succeeds and is allowed. The impugned order dated 5.2.2018 passed by the respondent no. 3 / District Magistrate, Ghaziabad ( Annexure-1) to the writ petition is hereby quashed.

The petitioner, Amarpal Sharma shall be released forthwith if he is not wanted in any other case. There shall however be no order as to costs.

Order Date :-14.08.2018

Arvind/-