Mahipal @ Leelu vs Union Of India
1995 Latest Caselaw 651 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner by this petition filed under Article 226/227 of the Constitution of India read with Article 226/227 of the Constitution of India read with Section 482 Cr.P.C. seeks a writ of habeas corpus or any other writ for quashing the order of detention dated 26th Sept., 1994 passed by Commissioner of Police, respondent No.2 herein, under Section 3(2) of the National Security Act (hereinafter referred to as the Act).

(2) The petition has assailed the order of detention dated 26.9.1994 (hereinafter referred to as the impugned order) inter alia on the ground that the grounds of detention are essentially the same as those of earlier detention order dated 10.7.1992 and 29.10.1992, which were revoked. It is also urged that the grounds of detention are state and have no live link with the order of detention.

(3) For a proper appreciation of the petition's contentions, let the facts in brief based on the pleadings and record be noted. These are as under :

(I)The police Commissioner (respondent no.2 herein) on 10.7.1992 passed an order for detention of the petitioner Mahipal @ Lilu S/o Fakir Chand under Section 3(2) of the National Security Act. The grounds of detention were that the petitioner was an active bad character of bundler "A" of Police Station Roop Nagar, having a criminal record of indulging in case of violence, attempt to murder, grievous hurt, wrongful restraint, criminal intimidation and offences punishable under Arms and Tada Act. Out of the seven criminal cases registered, the petitioner had been acquitted in four cases and three were still pending against him.

(II)the petitioner is pursuance to the above order was detained on 17th July, 1992. The Advisory Board on a reference being made had concluded that the order of detention could not be sustained since there was non-compliance of the requirement of contemporaneous signing and issuance of the grounds of detention and the passing of the detention order. The order of detention was accordingly revoked in terms of Section 12(2) of the Act 1980 on 8.9.1992. The petitioner was accordingly released from custody.

(III)the order of detention dated 10.7.1992 having been revoked the Commissioner of Police issued a fresh order of detention dated 29.10.1992 on the same grounds. The detention order dated 29.10.1992 was approved by the Lt. Governor on 5.11.1992. From 5th Nov., 1992 this order of detention was not served and execute till August, 1994 when finally the order was revoked under Section 14(1) of the Act on 9.8.1994 by the lt. Governor. This was done as per the request of the Commissioner of Police. The police claimed they were unable to arrest the petitioner inspite of attempts. The record also reveals that the petitioner had surrendered in court in a case on 21.12.1992 and was released on bail on 8.10.1993 but was released in these proceedings.

(IV)INthe event, the impugned order dated 26.9.1994 was passed and the petitioner was detained in pursuance thereto.

(4) Having noticed the bare facts, the grounds on which Mr. Harjinder Singh counsel of the petitioner has assailed the impugned order are enumerated as under :

(I)THEdetention order dated 10.7.1992 having been revoked pursuant to the advice of the Advisory Board, it was not open to the respondents to pass a fresh order of detention on 29.10.1992 leave aside passing the impugned order dated 26.9.1994.

(II)THEimpugned detention order relies on and is base do grounds of detention which were the ground of detention on orders dated 10.7.1992 and 29.10.1992

(III)THATthe grounds of detention are stale, having no live link with the alleged incidents.

(IV)THATthe delay in executing and arresting the petitioner from 5.11.1992 till August, 1994, when the order was revoked, casts a doubt on the genuineness of the subjective satisfaction of the Detaining Authority and the need for preventive detention.

(V)THATbecause of the failure to arrest coupled with voluntarily revocation of the order of detention, it was not open to the respondents to rely on incidents prior to 9.8.1994 when the detention order dated 29.10.1992 was revoked.

(VI)THATthe D.D. entry dated 29.8.1994 was vague and lacking in material particulars, it could not constitute the sole basis of detention.

(VII)THEincident mentioned in the grounds of detention and activities therein are relatable to Law and Order and not to public order.

(VIII)THEimpugned order of detention stood vitiated by non-supply of the documents relied on.

(5) Mr. Harjinder Singh in support of his first ground submitted that the detention order dated 10.7.1992 was revoked following the opinion of the Advisory Board in terms of Section 12(2) of the National Security Act, 1980. There was no power or authority with the detaining authority to issue a fresh detention order on the same grounds, under the Act, Mr. Harjinder Singh relied on a decision by a Division Bench of this Court reported at 1986 Clj 12 (90), titled Satya Narayan Aggarwal v. Union of India & Ors. It was a case of detention under the COFEPOSA. The detentions of the detenue had been revoked following the advice of Advisory Board that the detenue had been deprived from making an effective representation as the copies of documents supplied were illegible. The detention order had, therefore, been revoked under Section 8(f) of COFEPOSA. It was held that Section 8(f) of Cofeposa there was a mandate to follow the opinion of Advisory Board and revoke the detention order. The Section did not confer further power to radiation on the same grounds as is provided by Section 11(2) of COFEPOSA. It was held that if the Act does not specifically provide for detention then in case of revocation under Section 8(f), there is no authority to radiation. It was submitted that Section 8(f) is para material to Section 12(2) of the National Security Act. Accordingly in the instant case where the detention order had been revoked pursuant to the advice of the Advisory Board, there was no power to radiation on same grounds. It is true that provision is made for redetection under Section 14 of the National Security Act which is para material to Section 11 of COFEPOSA. However these are cases where the revocation is not pursuant to the advice of the Advisory Board but otherwise. Even in these cases falling under Section 11(1) of the Cofeposa or Section 14 of the National Security Act. The Apex Court in Ibrahim Bachu Bafan v. State of Gujarat held that there cannot be redetection under Section 11(2), if the detention had been quashed by a court of Law. However, the present case falls within the category of the cases where detention is revoked pursuant to the advice of the Advisory Board. It would, therefore, follow that the fresh order of detention dated 29.10.1992 and impugned order dated 26.9.1994 are passed without the authority of the Law. The submission of Mr. Sharma that it was permissible to pass fresh order of detention on the same grounds under Section 14 of National Security Act even in cases where revocation is pursuant to the advice of the Advisory Board, is not supported by the scheme of the Act or any judicial pronouncement. The same is contrary to the decision in Satya Narain Aggarwal's case (supra) and is rejected.

(6) Mr. Harjinder Singh while assailing the impugned order laid considerable emphasis on the grounds of detention of the impugned order being based on the grounds set out in the earlier detention orders dated 10.7.1992 and 29.10.1992. He submitted that the grounds of detention were state, having no live link with the order of detention. The delay in executing and arresting of the petitioner from 5.11.1992 till August 1994 case a doubt on the genuineness of the subjective satisfaction of the detaining authority and need for preventive detention. These are the grounds enumerated in para 4(ii) to 49(iv) and para 4(v) and 4(vi).

(7) A perusal of the impugned detention order reveals that it refers to and relies on the incidents and activities of the petitioner from October 1985 to 31st Jan. 1991. Details of the various cases registered against the petitioner are mentioned. Thereafter, the detention order proceeds to recall the passing of the detention order dated 10.7.1992 and its revocation pursuant to the opinion of the Advisory Board. It is further stated that the revocation of the order dated 10.7.1992 being on technical grounds a fresh detention order was passed on 29.10.1992. Thereafter, the detention order recites the revocation by the Government on 9.10.1994. Copies of the FIRs and relevant documents which were the basis of the detention order dated 10.7.1992 and 29.10.1992 are annexed as Annexure 1 to 16 impugned detention order.

(8) The detention order proceeds to list out the activities of the detenue after the detention order dated 29.10.1992. These are Dd No.27-A dated 21.9.1992 P.S. Roop Nagar, Dd No. 10-A dated 8.10.1992 P.S. Roop Nagar, Dd No. 75-B dated 25.11.1993 P.S. Roop Nagar, Dd No. 27-A dated 29.3.1994 P.S. Roop Nagar, Dd No.23-A dated 23.4.1994. These Dd entries record, inter alia, the threats being held out by the petitioner and his associates to witnesses and terror being unleashed by the petitioner in the locality. It records petitioner's alleged action in terrorising contractors of Dda and Mcd and preventing them from bidding in tenders to ensure contractors under his protection got the contract. Reference is then made to the attack on the petitioner by a rival group and the petitioner's planning Along with other desperate criminals to take revenge. Dd entry dated 13.4.1994 further records that criminals were visiting the petitioner's house. The copies of these Dd entries were relied on and supplied to the petitioner. It would be seen from the foregoing that the petitioner's alleged action in terrorising the contractor and spreading terror was known from Sept. 1993 to April, 1994.

(9) The detention order also relies on Dd entry 29-a dated 29.8.1994 P.S. Roop Nagar. This Dd entry records on the basis of a patrolling report submitted by S.I. Vinit Soni that in the evening at about 7.45 P.M. he had found some local residents of Chandrawal whispering. Upon enquiry and gaining their confidence they disclosed that one Rakesh Kalia a criminal, had visited the petitioner with his cronies. The petitioner was heard telling Rakesh Kalia that he had improved and they should now get ready to take revenge from Jitender, Sumer and others. Who had attacked the petitioner, further that the petitioner though is convalescence being confined to the house, was carrying out activity of extortion and controlling the tenders and award of Dda and Mcd contracts, reference was also made to two chain snatchers visiting the petitioners. It would be seen that this Dd entry was again concerned with the extortion in respect of Mcd and Dda tenders as well as the alleged plan of petitioner take revenge from those assaulted him which was also the subject matter of the earlier Dd entries namely Dd entry No.27-A dated 29.3.1994, Dd No. 23-A dated 13.4.1994.

(10) Mr. Harjinder Singh submitted that firstly the detention order dated 29.10.1992 was a nullity having been passed contrary of the statute as it relied on the same grounds, as that of order dated 10.7.1992, which was revoked. Secondly the order dated 29.10.1992, having been revoked on 9.8.1994, the incidents prior to 9.8.1994 could not form the basis of the detention order. In this connection Mr. Harjinder Singh urged that the impugned detention order could not be sustained as it was based on the grounds of earlier detention order. This averment of the petitioner in this regard had not been denied by the respondents in their counter, which referred to all the past "activities" of the detenu. The impugned order of detention was vitiated by non application of mind. It was asserted on behalf of the petitioner that the cases registered under Dd entries were false and the petitioner had offered his explanation for the same.

(11) Mr. P.S. Sharma, the standing counsel for Delhi Administration in reply submitted that the incidents and Dd entries mentioned in the impugned detention order were by way of preamble and narration of background facts, describing the activities which led to the passing of the first order of detention dated 10.7.1992 and the subsequent orders. According to Mr. Sharma there was fresh material available after the passing of the detention order dated 29.10.1992. He also laid emphasis on Dd entry No.27-A dated 29.3.1994 which recorded the petitioner's acting in terrorising contractors Dda and Mcd, who were not under his protection and that the contractors under petitioner's protection succeeded in obtaining the tenders at low rates. The murderous attack on the petitioner as well as the planning of the petitioner and his followers with members of another gang to take revenge from those who had attacked the petitioner earlier were sufficient to show that the petitioner's detention was essential to maintain public order and to prevent the terror that had been spread by the petitioner.

(12) Reliance was placed on Dd Entry No.29A dated 29.8.1994. The said entry may be reproduced as under : "DDNo. 29A-dated 29.8.94 P.S. Roop Nagar A Dd entry was recorded on the receipt of the information through an informer mentioning therein that a criminal namely Rakesh Kalia who was previously residing in Chandrawal had contacted Mahipal Along with 3/4 accomplices. Mahipal @ Lilu has incited them to take revenge against Jitender group as his group had attacked him. He has asked them not to allow the licensee contractors to bid for the contract and the contract should not only be released in the name of his protected contractors. A copy of the Dd entry is annexed as Annexure-XXII. It has been reported that secret sources revealed that Mahipal @ Lilu belongs to a gang of musclemen and extortionists operating in the offices of Mcd and Dda, who terrorise contractors seeking civil contracts. Their modus operandi is to permit only those contractor to bid for tender, who agree to pay amount to them. His group also does not permit genuine contractors to bid for tenders until they seek their patronage. Because of their terror, contractors prefer not to lodge complaint but choose to meet their illegal demands. He attaches no value to human life and has no fear of the law of land. From the above, it is evident that despite his arrest/prosecution in number of cases and detention under the provisions of the National Security Act, 1980, he has not deferred from his activities and he is till continuing his illegal activities. Due to his activities there is terror in the area and as such his being at large is detrimental at the maintenance of public order".

MR.Sharma submitted that this entry was by itself sufficient to warrant the petitioner's detention.

(13) It is evident that the impugned detention order did in fact rely on and was based on grounds of detention that were subject matter of the previous detention order namely 10.7.1992, which had been revoked pursuant to the opinion of the Advisory Board. This was also the position of the second detention order dated 29.10.1992, it was not permissible to do so. Moreover, the delay in executing and arresting the petitioner after the detention order dated 29.10.1992 does case serious doubts on the genuineness of the subjective satisfaction of the detaining authority and on the need for preventive detention. It is seen from the record that the respondents filed to serve the detention order dated 29.10.1992 till its revocation on 9.8.1994. Although the petitioner in between had surrendered in Court on 21.12.1992 and was again arrested on 8/9/93. The respondents explanation for non-execution is that the pending detention order was under consideration for execution or revocation (para 5 of counter). It appears that the respondents had perhaps realised that any action taken in the second half of 1994 for execution of detention order dated 29.10.1992 and may not stand judicial scrutiny and was liable to be quashed. This Court has held in Dalbir Singh v. Union of India & Ors. reported at 1995 33( DRJ)(DB) that delay by itself is not fatal, especially when the delay can be explained so as to show that the nexus between the incidents and the detention is not snapped. This authority would into help the respondents in the facts and circumstances of the case, where there is an inordinate delay of over two years in execution of the detention order and the grounds of detention have become stable and there is no live link nexus between them and the order of detention.

(14) Let us now consider whether the impugned detention order can be sustained on the basis of Dd entry 29A dated 29.8.1994 which is an event subsequent to the revocation of the detention order dated 29.10.1992 on 9.8.1994. Mr Harjinder Singh submitted that this Dd entry which has been set out in detail herein before, was vague and lacking in material particulars and could not be the solitary ground to justify the detention of the petitioner. Mr. Sharma on the other hand urged that the last Dd entry itself recorded fresh facts on the basis of which the detention order was sustainable. He relied on ; Suraj Pal Sahu v. State of Maharashtra. It is correct that the existence of one ground alone can be sufficient to sustain detention order. However, Dd No.29A dated 29.8.1994 reproduced earlier in detail, does not deal with any specific incident and is based on the report of a police officer conveying the information gathered from the residents who were whispering and gossiping. The Dd entry does not convey any information which was not available earlier. The contents are also vague. In this connection a perusal of the record reads that as far back as on 20.7.1992, the petitioner's alleged activities of extorting money from contractors tendering on Mcd contract was recorded in the note prepared for seeking approval of the Lt.Governor in terms of Section 3(4) in the following words "it is evident that Mahipal @ Lilu is a dangerous criminal who does not hesitate in using the knife against the members of public. He terrorise the witnesses, so none is willing to give evidence due to fear. He extorts money from the contractors of Mcd seeking contracts. His activities have proved to be a menace to be public at large." It is further seen from the record that proposals of the detention of the petitioner were submitted in December 1993 and April 1994, wherein emphasis was laid on the petitioner belonging to a gang of musclemen and extortionist operating in the offices of Mcd and Dda, who terrorise the contractors seeking civil contracts. Reference was made to Dd No.9-A dated 8.3.1994, Dd 27-A dated 27.3.1994 and Dd No.23-A dated 13.4.1994.

(15) It is evident from the foregoing that the main thrust on Dd No.29(8)-A relates to the extortionist activities of the detenu were the same allegations and grounds that had been made against the petitioner as far back as 1992. In these circumstances, it cannot be said that Dd No.29(8)-A had provided fresh grounds or acts sufficient to sustain by itself the detention order. Further as argued by Mr. Harjinder Singh, no regular investigation pursuant to the Dd entry resulted in any arrest or prosecution, exposing the hollowness of the same. No credibility could be attached to it.

(16) In view of the foregoing discussion, we are of the view that the impugned detention order cannot be sustained. The impugned detention order cannot be sustained. The impugned detention order has taken into consideration the grounds and activities of the petitioner which were the subject matter of the earlier detention order that had been revoked pursuant to the advice of the Advisory Board. Further there was considerable delay in execution of the detention order dated 29.10.1992, which casts a strong doubt on the genuineness and subjective satisfaction of the need for preventive detention. There was no live link with the incidents and order of detention. The incidents and grounds reeled on are stale. The respondents contention that reference to the earlier incidents was by way of preamble and background and the same were not relied upon in the detention order, was to correct. In any case it is to permissible to direct to trisect the grounds of detention as introduction, background and grounds as such, as held by the Apex Court in the Mohd. Yusuf v. State of Jammu & Kashmir.

(17) Besides the contents of Dd entry No.29A, were vague and could to justify the detention by itself as discussed in para 13 above.

(18) In the view that we have taken, it was not necessary to deal with the other grounds namely the alleged incidents relating to Law and Order and not public order as well as the alleged non-supply of documents relied in the detention order. The impugned detention order dated 26.9.1994 is hereby quashed and the petitioner is directed to be released forthwith.