Deepak Singh vs Union Of India And 4 Others
2019 Latest Caselaw 1721 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								                A.F.R.
 
								Reserved on : 25.2.2019
 
								Delivered on :27.3.2019
 

 
Court No. - 51
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 3513 of 2018
 
Petitioner :- Deepak Singh
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Sanjeev Kumar Singh
 
Counsel for Respondent :- A.S.G.I.,G.A.,Narendra Deo Rai
 

 
Hon'ble Vipin Sinha,J.

Hon'ble Ajit Singh,J.

(Delivered by Hon. Ajit Singh, J.)

Heard Sri Sanjeev Kumar Singh, learned counsel for the petitioner, Sri N.D. Rai, learned counsel for the Union of Indian and Sri Patanjali Mishra, learned AGA appearing for the State.

The present is a habeas corpus writ petition seeking release of the petitioner from the alleged illegal detention and for quashing the impugned order dated 26.4.2018 passed by District Magistrate, Gorakhpur under Section 3(2) of the National Security Act, 1980.

The order under challenge is the detention order dated 26.4.2018 passed by the State-respondent, which was subsequently approved on 29.5.2018 and confirmed on 5.6.2018. The said order was thereafter extended vide order dated 5.6.2018 (Annexure-1) to the counter affidavit filed on behalf of State [Deputy Secretary of Uttar Pradesh Home (Confidential) Department, U.P. Civil Secretariat, Lucknow]. This extension was made for a period of three months.

Learned counsel for the petitioner contends that the detention order as passed is the logical conclusion of the FIR dated 13.2.2018 registered as Case Crime No. 89 of 2018, U/s 302, 394 IPC. In the first information report general allegation of assaulting the deceased with fists and kicks has been made against three named and three unknown persons including the petitioner. The specific role of firing has been assigned to the co-accused Ashutosh Bhatt. No incriminating article or material has been recovered either from the petitioner or on his pointing out. Learned counsel has challenged the detention order on two grounds; first is that the prosecution case as set up in the FIR itself clearly shows that it is a case which falls within the law and order and not a public order and thus the provision of NSA could not have been invoked in the present case under the garb of which the petitioner has been detained; second ground is that the provision of NSA could not have been invoked solely on the basis of solitary incident. It has been categorically stated that apart from the present case, there is no other case pending against the petitioner and the petitioner is not a history-sheeter and the petitioner has got no criminal history. It has been further contended that the detaining authority has passed the detention order in a mechanical and cavalier manner which clearly shows that the detaining authority has not even applied its mind to the facts and circumstances of the case especially in view of the fact that on the date when the detention order was passed i.e. 26.4.2018, the petitioner was already in jail in pursuance of an FIR dated 13.2.2018. The petitioner has moved an application for bail before Chief Judicial Magistrate and the same was rejected on 19.3.2018 and thereafter he filed his bail application before District & Sessions Judge, Gorakhpur and the same is pending. It has been very vehemently contended that the order impugned clearly shows that it has been passed in a cyclostyle form and without non application of mind. The detaining authority has not considered legal parameters fixed in this regard regarding non existence of any criminal history of the petitioner. The satisfaction, as recorded, does not also demonstrate as to what was the basis for detaining authority on the basis of which it has been concluded that after being released on bail, the petitioner would again indulge in similar activities. Learned counsel for the petitioner has placed reliance upon a division Bench judgments of this Court rendered in Habeas Corpus Writ Petition Nos. 9950 of 2017 (Satyendra Singh A Dablu Singh v Union of India and others), 3094 of 2018 (Istakaar and another v. Union of India and others) and 3279 of 2018 ( Noorey Alam v. Union of India and others). In support of his contention, the learned counsel for the petitioner has also placed reliance upon the judgments passed by various Division Benches of this Court in Habeas Corpus Writ Petition No.55685 of 2017 Haji Akhlakh vs. Union of India and others (decided on 30.3.2018) and Habeas Corpus Writ Petition No.3181 of 2018 Sudhir vs. Union of India and others (decided on 8.10.2018). The said judgments have been perused by this Court.

Learned counsel for the Union of India as well as learned AGA has opposed the prayer in the writ petition with the contention that present case is not a case simpliciter of law and order but involves public order and even domain of society has been disturbed, however, nothing contrary to the said judgments has been brought on record by the learned AGA or by the learned counsel for the Union of India. He also submitted that the petitioner has criminal history of three cases.

We have very carefully scanned the impugned order and the grounds of detention and also the counter affidavit filed on behalf of the State 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.3. 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 maintenance of public order, was not enough to justify passing of an order of preventive detention against him. After careful perusal of the case and going through the contention raised by learned A.G.A., in which it has been mentioned that the petitioner is having a criminal history of three cases, which has been properly explained by learned counsel for the petitioner in para 22 of the writ petition. The criminal history is shown of the year 2007 and 2009 and after 2009 the present F.I.R. has been lodged against the petitioner in the year 2008.

From the perusal of the entire record and the allegations made against the accused, it cannot be said inferred that the petitioner was in a habit of terrorising the public or the public was scared of his activities. The petitioner is said to have committed criminal offences nine years prior to this incident, in which he is preventively detained. In our opinion nine years old criminal history of the accused is of no relevance in the initiation of the proceedings against the petitioner. We stand fortified in our view by the law laid down by the Apex Court in the case of Shashi Agarwal Vs. State of U.P. and others reported in 1988 (1) SCC 436 and Rameshwar Shaw Vs. District Magistrate, Burdwan & another reported in AIR 1964 SC 334.

The Hon'ble Apex Court in paragraphs 9 and 10 of its judgment 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 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. In other words, where an authority is acting bona fide and considering 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."

Similarly the Apex Court in paragraphs 8, 9, and 10 of its judgment rendered in Smt. Shashi 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 raised;. 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. Eternal 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."

Reference may also be made to the judgment passed by the Apex Court in the case of Dharmendra Suganchand Chelawat & Suganchand Kanhaiyyalal vs. Union of India, reported in AIR 1990 SC 1196. The Apex Court has clearly held that 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 (I) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compel-ling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) 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 another judgment rendered in the case of Jaya Mala vs Home Secretary, Government of Jammu and Kashmir and others, reported in AIR 1982 SC 1297, the Apex Court has held as under:-

"It cannot be said that that power under the preventive detention law cannot be exercised where a criminal conduct which could not be easily prevented, checked or thwarted, would not provide a ground sufficient for detention under the preventive detention laws. But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. If every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and Criminal Courts set up for administering justice will be substituted for detention laws often described as lawless law.

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 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 there 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 this regard, reference may be made to the judgment of the Apex Court rendered in the case of Gulab Mehra vs. State of UP and others, reported in AIR 1987 SC 2332 where the Apex Court has extracted and relied upon the judgment of the Apex Court rendered in the case of Kanchanlal Maneklal Chokshi vs. State of Gujarat reported in AIR 1979 SC 1945, wherein it has been observed that :

" The ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention, but that the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the court that the detaining authority so borne the question in mind the court would be justified in drawing the inference that there was no application of the mind of the detaining authority to the vital question whether it was necessary to preventively detain the detenu."

In the present case we find that there is nothing on record which may show that it was necessary to pass the detention order when normal criminal prosecution would have been enough, even otherwise there is nothing to show that there was 'every likelihood' of the petitioner after being released on bail would indulge in prejudicial activities affecting the public order. In the present case there is only a solitary FIR for which the petitioner was arrested and sent to jail and thus, it cannot be said that circumstances so demanded on the basis of solitary case which too has been instituted as alleged on account of some political enmity, preventive detention order could not have been passed.

Learned counsel for the petitioner has submitted that similarly placed co-accused Satish Sonkar @ Tinu Sonkar has been granted indulgence by this Court vide order dated 23.1.2019 passed in Habeas Corpus Writ Petition no. 3656 of 2018.

Thus, in view of the aforesaid facts and circumstances of the case and consistent legal position as enumerated above, we set aside the impugned detention order dated 26.4.2018 passed by the District Magistrate, Gorakhpur, respondent no. 3, as approved by the State Government on 29.5.2018 and all consequential orders by means of which the period of detention was extended from time to time.

The writ petition is allowed. The petitioner, if not wanted in any other case, shall be released from custody forthwith in accordance with law after due communication of this order to the authorities concerned, once again in accordance with law.

Order Date : 27.3.2019.

Faridul.