Mohit Mishra Thru.Father Kamlesh ... vs U.O.I.Thru.Secy.Min.Of Home New ...
2022 Latest Caselaw 8339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 9
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 29942 of 2021
 

 
Petitioner :- Mohit Mishra Thru.Father Kamlesh Kumar Mishra
 
Respondent :- U.O.I.Thru.Secy.Min.Of Home New Delhi And Ors.
 
Counsel for Petitioner :- Bhanu Pratap Mishra,Avinash Kumar Sharma,Kunj Bihari Pandey
 
Counsel for Respondent :- G.A.,A.S.G.,Varun Pandey
 
Case :- HABEAS CORPUS WRIT PETITION No. - 29822 of 2021
 

 
Petitioner :- Hridaya Kumar Tiwari Thru.Brother Mayank Kumar Tiwari
 
Respondent :- U.O.I.Thru.Secy.Min.Of Home Affairs New Delhi And Ors.
 
Counsel for Petitioner :- Bhanu Pratap Mishra
 
Counsel for Respondent :- G.A.,A.S.G.,Pooja Singh
 
Case :- HABEAS CORPUS WRIT PETITION No. - 29184 of 2021
 

 
Petitioner :- Mohd.Vaish Ansari Thru.Next Friendbrotheruved Ahmed Ansari
 
Respondent :- U.O.I.Thru.Secy.Min.Of Home Affairs New Delhi And Ors.
 
Counsel for Petitioner :- Bhanu Pratap Mishra,Arun Sinha,Avinash Kumar Sharma,Siddhartha Sinha
 
Counsel for Respondent :- G.A.,A.S.G.,Pooja Singh
 

 
Hon'ble Rajan Roy,J.

Hon'ble Shekhar Kumar Yadav,J.

Since the controversy involved in all three petitions is one and the same, therefore, they have been connected and heard together and now they are being decided by this common order.

Heard learned counsel for petitioners, Dr. Pooja Singh & Sri Varun Pandey, learned counsel for respondent no.1 and learned A.G.A. for the State.

The petitioners are under preventive detention in pursuance to the orders of the District Magistrate, Ayodhya, dated 25.09.2021 ever since then and the said detention period is to expire on 24.09.2022 when the period of 12 months will be completed.

All the three detention orders which are impugned in the aforesaid writ petitions arise out of the same incident.

Apart from other arguments advanced by learned counsel for petitioners one of the argument is that the orders do not contain satisfaction of the District Magistrate himself as is envisaged in Section 3(2) of the National Security Act, 1980, as he has merely reproduced the recommendation of sponsoring authority in this regard. In this regard the counsel for petitioners has invited our attention to the recommendation of the sponsoring authority i.e. Senior Superintendent of Police, Ayodhya running into 14 pages. He says that on a conjoint reading of the said recommendation of the sponsoring authority with the grounds of detention mentioned by the District Magistrate along with the orders of detention will show that except for cosmetic changes here and there, the grounds of detention are nothing but verbatim reproduction of the recommendation of the sponsoring authority. He says that this is fatal to the impugned detention under the Act, 1980. In this regard he relies upon a Division Bench judgment of this Court rendered in a bunch of writ petitions leading writ petition being Habeas Corpus Writ Petition No.5 of 2022 (supra) wherein in similar circumstances on this very ground the detention order has been quashed. It is said that the Division Bench has extensively referred to various Supreme Court decisions requiring due and proper application of mind on the part of the District Magistrate and the mandatory requirement of recording of his own satisfaction as is envisaged in Section 3(2) of the Act, 1980, failing which the detention would be illegal.

On being confronted, learned A.G.A. submitted that there are valid grounds for detention of the petitioners and, therefore, this Court should not interfere in the matter to the extent that subjective satisfaction of the District Magistrate cannot be interfered under Article 226 of the Constitution of India, expect on limited grounds which are non existent in this case. There is material to support the detention of the petitioners.

Before proceeding further, we may refer to the decision of a coordinate Bench of this Court dated 26.04.2022 passed in Habeas Corpus Writ Petition No. 5 of 2022; Parvendra Kumar vs. Union of India and 3 others and other connected petitions wherein the Court had interfered with the detention orders on the ground that there was non-application of the mind on the part of the District Magistrate who had merely reproduced the recommendations of the sponsoring authority. The relevant extract of the said judgment is as under:

"22. While we do agree that facts and circumstances which have led to the recommendation by the sponsoring authority for preventing detention of petitioners remains the same on which satisfaction of the District Magistrate is to be based, but from the phraseology of the order and reference of material relied upon by the District Magistrate in the order of detention the application of mind on part of the District Magistrate must be reflected or else the satisfaction itself of the detaining authority would be vitiated.

23. Page by page we are shown that grounds of detention contained in the order of the District Magistrate is virtual copy of the recital contained in the recommendation of the sponsoring authority. Language as well as phraseology of facts remains unaltered and clearly suggests lack of independent application of mind on part of the District Magistrate.

24. Except for the satisfaction recorded by the District Magistrate in one sentence that on the basis of materials referred to in the grounds of detention, he is satisfied about existence of conditions warranting petitioners' preventive detention there is nothing on record which may even remotely suggest that District Magistrate has cared to read the recommendation of the sponsoring authority or satisfy himself about existence of conditions which justify the passing of order of preventive detention.

25. The satisfaction that conditions exist to detain a citizen with a view to preventing him from acting in any manner prejudicial to the maintenance of public order has to be of the District Magistrate or the Commissioner of Police, as the case may be. Such satisfaction on part of the sponsoring authority would not suffice. While District Magistrate is entitled to go through the recommendation made by the sponsoring authority for exercise of power under sub-section (3) of Section 3, but the satisfaction with regard to existence of necessary conditions has to be of the designated authority i.e. District Magistrate alone, which must be reflected in his own order.

26. The satisfaction of the detaining authority is sine qua non for exercise of jurisdiction under sub-section (3) of Section 3 of the Act of 1980. Recording of satisfaction by the District Magistrate/detaining authority in his own language would be necessary to indicate application of mind on part of the detaining authority. The satisfaction of the detaining authority may not be as exhaustive as is contained in the proposal of the sponsoring authority but he must record his independent satisfaction with regard to existence of conditions justifying invocation of power under Section 3(3) of the Act of 1980. His satisfaction need not be a virtual reproduction of all facts narrated in the recommendation of the sponsoring authority but must concisely refer to the materials on record on the basis of which he has come to the conclusion about existence of conditions justifying preventive detention of the detenue.

27. Importance of application of mind on part of the detaining authority and his independent satisfaction about existence of necessary conditions has been emphasised by the Supreme Court in Jai Singh and Others Vs. State of Jammu & Kashmir, (1985) 1 SCC 561, wherein the Supreme Court has observed as under:-

"These seven writ petitions under Article 32 of the Constitution have to be allowed on the sole ground that there has been a total non-application of the mind by the detaining authority, the District Magistrate of Udhampur. We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of village Bharakh, Tensil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in, the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner. We also notice that in the petition filed by the detenu, he had expressly alleged that he and the others had already been taken into custody in connection with a criminal case on July 6, 1984 itself and all of them were in custody since then. The detenu has given details of where he was taken and when. He has also referred to the circumstance that an application for bail was moved on his behalf on the 18th before the High Court and it was only thereafter that the order of detention was made. These facts have not been denied in the counter-affidavit filed by the respondents. In fact we are unable to find anything in the records produced before us, either in the police dossier submitted to the District Magistrate for action or in any other document forming part of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases."

28. Judgment in Jai Singh (supra) has been followed in Rajesh Vashdev Adnani Vs. State of Maharashtra and others, (2005) 8 SCC 390, wherein the Supreme Court observed as under in para 9 to 13:-

"9. Perusal of the proposal made by the sponsoring authority and the order of detention passed by the detaining authority would show that except by substituting word "he" by "you" no other change was effected.

10. But for the said change the proposal and the order of detention is verbatim the same.

11. Mr Naphade, learned Senior Counsel appearing for the respondent submitted that from the records produced before us it would be evident that there had been due application of mind on the part of Respondent 2 in passing the order of detention. This may be so but keeping in view the safeguards envisaged under Article 22 of the Constitution it was absolutely essential for the second respondent herein to apply her mind not only at the time of grant of approval to the proposal for detention but also when the actual order of detention and grounds thereof are prepared. To the aforementioned extent there has been no application of mind on the part of the second respondent herein, and, thus, we are of the opinion that the impugned order of detention dated 3-11-2004 cannot be sustained.

12. The views we have taken derive support from the judgment of this Court in Jai Singh v. State of J&K, (1985) 1 SCC 561, wherein the Division Bench held: (SCC pp. 561-62, para 1)

"We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited ''The subject is an important member of....' Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate, has done is to change the first three words ''the subject is' into ''you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi'. Thereafter word for word the police dossier is repeated and the word ''he' wherever it occurs referring to Jai Singh in the dossier is changed into ''you' in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."

13. For the reasons aforementioned the order of detention passed against the detenu Vashdev Gobardhan as also the impugned judgment cannot be sustained. It is quashed accordingly. He is directed to be released if not wanted in connection with any other case."

29. Constitutional safeguards and legislative scheme of the Act of 1980 has been referred to in a recent judgment of the Supreme Court in Sarabjeet Singh Mokha Vs. District Magistrate, Jabalpur and others, 2021 SCC OnLine SC 1019. Though the aspect for examination was distinct there i.e. delay in disposal of representation, but the constitutional safeguards in such matters have been emphasised by the Court in following words:-

"17. Article 22 of the Constitution provides specific protections to undertrials and detainees in India. The framers of the Constitution, who were also our freedom fighters, were conscious of founding a polity that secured civil and political freedoms to its citizens. Dr. B R Ambedkar, while proposing the article, noted the necessity of retaining the concept of preventive detention "in the present circumstances of the country". However, the discontinuity from the colonial regime lay in the introduction of strict countervailing measures that ensured that "exigency of liberty of the individual [is not] placed above the interests of the State" in all cases.

18. The specific provisions relating to preventive detention under Article 22 were framed in the following terms:

"(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)."

(emphasis supplied)

19. The text of Article 22 enshrines certain procedural safeguards, many of which are otherwise available in the CrPC. In elevating these safeguards to a constitutional status, the framers imposed a specific "limitation upon the authority both of Parliament as well as [State] Legislature [to] not abrogate" rights that are fundamental to India's constitution. Dr Bakshi Tek Chand, a conscientious dissenter to preventive detention in peaceful times, proposed a further safeguard in the provision of a right to make representation to the detenu, which was eventually accepted by the Constituent Assembly as a reasonable compromise. Therefore, preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.

20. This history of the framing of Article 22 is critical for the judiciary's evaluation of a detenu's writ petition alleging, inter alia, a denial of the timely consideration of his representation. While several arguments have been preferred by the appellant to argue for his release from preventive detention, we are confining our analysis to the most clinching aspect of this case - the failure of the Central Government and the State Government to consider his representation dated 18 May 2021 in a timely manner."

30. Whether the material referred to in the communication of the sponsoring authority depicts concerns of law and order vis-a-vis public order or that possibility exists of detenue indulging in acts prejudicial to maintenance of public order or that he is likely to be released etc. are issues that directly affect the liberty of citizens and cannot be allowed to be dealt with in a cursory manner. Routine exercise of power in that regard or passing of formatted orders where recommendations made by the sponsoring authority are physically lifted and included in the body of the grounds of detention cannot be approved of. Unless it is shown from the order that the detaining authority has independently applied his mind upon the materials placed before him, to come to a conclusion with regard to existence of material justifying invocation of power under Section 3(3) of the Act of 1980, the order itself would be rendered invalid. One of the surest ways to ascertain application of mind on part of the detaining authority is the independent recording of reasons/satisfaction by the detaining authority in the grounds of detention."

We have perused the orders of detention and the grounds of detention accompanying the same and have read the same conjointly with the recommendation of the sponsoring authority i.e. the Senior Superintendent of Police, Ayodhya referred hereinabove and we find substance in the submission of counsel for petitioners that except for a few changes in the wordings/language here and there so as to give an impression that the District Magistrate has applied his own mind, the grounds of detention are nothing but almost a verbatim reproduction of the recommendation of the sponsoring authority which displays non-application of mind at the end of the District Magistrate and the non-recording of any satisfaction of his own for justifying the detention under the Act, 1980, meaning thereby, the requirements of Section 3(2) of Act, 1980 are not being satisfied. The District Magistrate has not applied his own mind to the facts of the case independently in light of the legal/statutory requirement under the Act, 1980 so as to record his own satisfaction, instead he has merely reproduced what has been recommended by the sponsoring authority in his own order by making few changes here and there. Learned A.G.A. could not show that it was otherwise.

In view of the facts of the case, the Division Bench judgment referred hereinabove applies on all its fours, this in our opinion is sufficient to quash the detention of the petitioners without considering any other ground.

We, accordingly, quash the impugned detention orders and hold that the detention of the petitioners is illegal. Consequences shall follow accordingly. Petitioners shall be released from detention forthwith.

The writ petitions are allowed.

Order Date :- 28.7.2022

Arti/-

(Shekhar Kumar Yadav,J.) (Rajan Roy,J.)