Shafiq vs The State Of Madhya Pradesh
2021 Latest Caselaw 8576 MP

1                                                       WP No.23088/2021

      The High Court of Madhya Pradesh Bench at Indore



Case Number                          W.P.No. 23088/2021
Parties Name                                Shafique
                                               Vs.
                                       State of MP & Ors.
Date of Order           10/12/21
Bench                   Division Bench:
                        Justice Sujoy Paul
                        Justice Pranay Verma
Judgment delivered      Justice Sujoy Paul
by
Whether approved        No
for reporting
Name of counsel for Shri S.K Meena, learned counsel for the petitioner.
parties             Shri Vivek Dalal, learned AAG for the
                        respondent/state.


                                ORDER

th (10 December, 2021)

Sujoy Paul, J.:

The petitioner Shafique, father of the detenue Shakir has filed this habeas corpus petition assailing the order of detention dated 21.09.2021 (Annexure P/1) passed by District Magistrate under the N.S. Act.

2) Learned counsel for the petitioner submits that a conjoint reading of detention order dated 21.09.2021 and the grounds of detention shows that necessary ingredients for invoking the National Security Act, 1980 (NS Act) are not available in the instant case. Assuming that allegations mentioned in the grounds of detention are correct, it will bring the incident within the purview of 'law and order' and will not attract "public order". It is further urged that the criminal record filed as Annexure R/1 shows that there were trivial cases except crime no.237/2019. There is no live nexus between the

previous criminal antecedent and that of the present one which became operative reason and foundation for passing the order of detention. The detention order is liable to be set aside.

3) Shri Vivek Dalal, Learned AAG for the respondent/state supported the detention order and urged that the applicant has a criminal record which is evident from Annexure R/1. In addition, the report of Superintendent of Police dated 21.09.2021 Annexure R/7 not only shows detenue's criminal record, it throws light on certain criminal antecedents in which the detenue has taken part and because of which there was a communal tension in the area. By placing reliance on AIR 1966 SC 740 (Ram Manohar Lohia Vs. State of Bihar and Anr.), learned AAG submits that the factual backdrop of the matter and criminal antecedent shows that it is a matter relating to 'public order' and not confined to 'law and order'.

4) The parties confined their arguments to the extent indicated above.

5) We have bestowed our anxious consideration on rival contentions and perused the record.

6) Before dealing with rival contentions, it is apt to quote the relevant portion from the grounds of detention:-

"vkids }kjk fnukad 17-09-2021 dks Qfj;knh txnh'k ekyoh; us Fkkuk 'kqtkyiqj e.Mh ij fjiksVZ fd;k fd eSa etnqjh djrk gw¡ vkt 'kke 06%00 cts eSa o esjk csVk vjfoUn ge nksuksa cl LVs.M ij vuoj iku dh nqdku ds lkeus [kM+s Fks esus esjs csVs vjfoUn dks chMh ysus dk cksyk brus esa 'kkdhj iUuh fuoklh 'kqtkyiqj flVh] lksuq mQZ euh"k ;kno fuoklh d`".kkuxj dkyksuh 'kqtkyiqj e.Mh] fot; firk jktq oSn fuoklh d`".kkuxj 'kqtkyiqj e.Mh rhuksa vk;s vkSj vkrs gh 'kkdhj iUuh us eq>s cksyk D;ks cyV~Vs b/kj vk rqus esjk uke dy dh fjiksVZ esa D;ks fy[kk;k rks esus cksyk eSus rqEgkjk uke ugha fy[kk;k brus esa lksuq mQZ euh"k ;kno us iSj dh esjh Nkrh esa ekjh vkSj cksyk 'kkdhj ;s <sM tkr txnh'k >qB cksy jgk gS brus esa 'kkdhj us viuk csYV fudkydj ekjh tks esjs vksB esa yxh rks esjs csVS vjfoUn us 'kkdhj ls cksyk dh esjs ikik dks D;ks

ekj jgs gks rks fot; vkSj lksuq mQZ euh"k ;kno xkyh xyksp dj esjs csVs ls >qe x;s vkSj esjs csVs ds lkFk FkkiM+ eqDdksa ls ekjihV dh ftlls esjs csVs dks pksV vkbZ esus chp cpko fd;k rks 'kkdhj] fot;] lksuq mQZ euh"k ;kno us esjs lkFk Hkh FkkiM eqDdks ls ekjihV dh ftlls eq>s ck, gkFk o ck, xky ij pksV yxh ge nksuksa fdlh rjg muls NqVdj Hkkxdj iqjkuh iqfyl pkSdh pys x;s rks og rhuks ogk ls Hkkx x,A ?kVuk cl LVs.M ij mifLFkr jkds'k firk pUnjflag fuoklh [ksM+k xksdyiqj us ns[kh gS ckn esa vius csVs ds lkFk Fkkuk fjiksVZ dks vk, fjiksVZ djrk gwa dk;Zokgh dh tkosA ftlij ls Fkkuk 'kqtkyiqj e.Mh ij vijk/k Ø- [email protected] /kkjk 323] 294] 34 Hkknfo ds vk'k; ls vijk/k dkfjr fd;s x;s gSA vki foxr o"kksZa ls 'kgj esa fgUnq vkSj eqlyeku nksuksa laiznk;ksa ds e/; oSeuL;rk QSykus rFkk dkuqu O;oLFkk dh fLFkfr fufeZr djus ds vijk/k ?kfVr fd;s gS vukosnd ds fo:) Fkkuk 'kqtkyiqj e.Mh ,oa Fkkuk 'kqtkyiqj flVh esa vijk/k dkfjr dj fujUrj vijk/kksa esa fyIr jgk gSA vkids dkj.k yksxksa dh lqj{kk ,oa 'kkafr O;oLFkk yxkrkj izHkkfor gks jgh gS ftlls {ks= dh yksd O;oLFkk dks cuk;s j[kus esa xaHkhj [krjk mRiUu gks x;k gSA vkids d`R;ksa ls {ks= esa dHkh Hkh lkaiznkf;d fgalk HkMd ldrh gSA ftlls vke ukxfjdksa dk tuthou izHkkfor gksrk gS o dkuwu O;oLFkk yksd O;oLFkk dh fLFkfr fufeZr gks tkrh gSA^^

^^vkids fo:) mijksDr iznf"kZr d`R;ks ls Li"V gS fd vkids }kjk fd;k x;k vkpj.k fof/k O;oLFkk ds vuqdqy ugha gS vuqeku fd;k tk ldrk gS fd vki Hkfo"; esa yksd O;oLFkk cuk;s j[kus ds izfrdqy jhfr esa dk;Z djsxsaA fuokjd fujks/k] lekt dh lqj{kk dh ;qfDr gksrh gS vkSj blfy;s tgk fdlh O;fDr }kjk ,sls dk;Z ds fd;s tkus dh laHkkouk gks ftlls lekt ;k leqnk; ds e/; mRrstuk fd;k tkuk fof/k lEer gksus dh laHkkouk gks ,sls O;fDr dk fujks/k mu O;fDr;ksa }kjk fd;k tkuk fof/k lEer gksrk gS ftu ij lekt esa O;oLFkk j[kus dk nkf;Ro gksrk gSA c<+rs lkEiznkf;d ruko ds dkj.k yksd O;oLFkk ,oa jkT; o jk"Vª dh ,drk o va[kMrk rFkk jkT; dh vkarfjd lqj{kk cuk;s j[kus esa ladV dh fLFkfr iSnk gks ldrh gSA vkidk LoNan jguk 'kkafr O;oLFkk ds mns"; ls [krjukd gSA 'kkafr O;oLFkk cuk;s j[kus rFkk jk"Vª dh ,drk o v[kaMrk cuk;s j[kus ds fy;s ,oa 'kgj& 'kqtkyiqj o vkl&ikl ds {ks=ksa esa c<+rs lkEiznkf;d ruko o vkilh

oSeuL;rk dks [kRe djus rFkk veu 'kkafr dk;e djus ds fy;s ,oa {ks= esa vko';d lsok,a o vkiwfrZ lqfuf'pr djus ds fy;s vids fo:) /kkjk 3¼2½ jk"Vªh; lqj{kk vf/kfu;e 1980 ds rgr dk;Zokgh fd;k tkuk jk"Vªh; fgr esa vR;Ur vko';d gSA fujh{kd lR;sUnz izrkiflag jk?ko Fkkuk 'kqtkyiqj flVh ,oa fujh{kd lUrks"k ok?ksyk Fkkuk 'kqtkyiqj e.Mh }kjk vius dFku esa izfrosnu esa mYysf[kr fLFkfr dk leFkZu fd;k gSA lk{kh txnh'k ekyoh;] lk{kh vjfoUn ekyoh; us Hkh vius dFku esa vki ds }kjk mDr vijk/k dkfjr fd;k tkuk Hkh O;Dr fd;k gSA vr% vkids d`R; ds dkj.k iqfyl v/kh{kd 'kktkiqj }kjk vkids fo:) jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 ¼2½ ds vUrxZr dk;Zokgh dj rRdky fujks/k esa fy;k tkus gsrq izfrosnu fn;k gSA Fkkuk izHkkjh iqfyl Fkkuk 'kqtkyiqj flVh ,oa Fkkuk 'kqtkyiqj e.Mh ds }kjk Hkh dFku djds vkids fo:) mijksDr mYysf[kr vijk/kksa dks ns[krs gqos vkus okys le; esa R;kSgkjks ds nkSjku vkids }kjk iqu% ,slh ?kVuk ?kfVr djds yksd O;oLFkk ,oa tu'kkafr dks Hkax djus dh vk'kadk O;Dr dh gSA vki lkEiznkf;d esy&feyki dks ladV esa Mkyus] yksd O;oLFkk rFkk jkT; dh lqj{kk ij izfrdqwy izHkko Mkyus okyk dk;Z djus ds fy, lfØ; gksxs ftlls yksd O;oLFkk cuk;s j[kus esa ck/kk ,oa lekt ds fy;s vko';d lsokvksa dh iwfrZ dh O;oLFkk cuk;s j[kus esa xaHkhj dfBukbZ;kW mRiUu gksxhA vr% vkxs fo:) jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3¼2½ ds varxZr rRdky dk;Zokgh dj vkidks fujks/k esa fy;k tkuk vR;ar vko';d gqvk gSA^^ (Emphasis Supplied)

7) A plain reading of grounds of detention shows that on 17.09.2021 a quarrel had taken place at bus stop wherein the detenue allegedly threatened the complainant and assaulted the complainant and accordingly crime no.319/2021 for committing the offence under section 323, 294, 34 of the IPC and certain provisions of SC/ST Act was registered against the detenue. In addition, founded upon the said Superintendent of Police's report and criminal antecedents, it is averred that the detenue has criminal record. The detenue murdered a woman because of that communal tension had taken place in Shujalpur.

8) The criminal record of detenue shows that last incident had taken place (before the present incident) relating to Crime No.237/2019 & 310/2019 in the year 2019. Thereafter, through istghasa No.7/2019 and 111/2021, the action has been taken against the detenue under Section 151, 107, 116(3) and 110 of the Cr.P.C. The Superintendent of Police in his report averred as under:-

";g fd vkjksih cnek'k }kjk xzke ujksyk Fkkuk 'kqtkyiqj flVh esa gqbZ fgUnw ;qorh dh lfUnX/k voLFkk esa e`R;q dks ysdj fgUnq eqlfye lekt ds yksxks ds chp lkEiznkf;d oSeuL;rk QSykus esa egRoiw.kZ Hkwfedk jgh gSA ftlls 'kqtkyiqj 'kgj esa lkEiznkf;d mUekn tSlh fLFkfr iSnk gqbZA^^ (Emphasis Supplied)

9) Pertinently, above passage was highlighted by the S.P.

Immediately after this finding, the S.P. mentioned that because of detenue's conduct, a communal tension arose between two communities. A microscopic reading of this reproduced paragraph shows that it does not contain minimum essential details of the incident. The sentence is not happily worded and is cryptic in nature. It does not take us to any conclusion that the detenue was involved or responsible for the death of the Hindu girl. The date of incident, name of the girl, the nature of the incident are not mentioned. This was the minimum requirement to mention how the detenue was involved in the death or murder of said young girl which allegedly became reason of communal tension in the area. If this finding of S.P. is examined in juxtaposition to the criminal record (Annexuren R/1), it will further be clear that there is no charge of murder against the detenue in any of the previous criminal cases. Thus, we are unable to hold that the aforesaid reason of communal tension can become foundation for passing the detention order.

10) Pausing here a moment, we would like to observe that the detention of a citizen and curtailment of freedom is a serious matter. Life and liberty of the citizen cannot be taken in the manner it has

been done in the instant case. The report of S.P. which became the operative reason for the District Magistrate to detain the detenue is also based on the above reproduced portion of his report which does not lead us to anywhere. This cryptic report could not have been a reason to detain a citizen. We deprecate the practice of detaining the citizen in this manner.

11) A careful reading of detention order and grounds of detention further shows that the incident dated 17/09/2021 because of which detention order is passed has no live link or nexus with his previous criminal record. Merely because the detenue has a previous criminal record, he cannot be detained under the detention law unless his previous criminal record has a live relation with the present incident which became reason for detention. (See: (2018) 9 SCC 562 [(2018) 12 SCC 150 (Sama Aruna Vs. State of Telangana & another) & (2020) 13 SCC 632 (Khaja Bilal Ahmed vs. State of Telangana)]

12) In Yumman Ongbi Lembi Leima vs. State of Manipur & ors. (2012) 2 SCC 176, it was held that a singular incident however heinous it may be is not sufficient to invoke detention law unless it has impact on 'public order' in general. The relevant portion reads as under:-

"15. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised withdue caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Indian Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention."

(Emphasis Supplied)

13) A careful reading of the judgment of Dr. Ram Manohar Lohia (supra) on which reliance is placed by Shri Vivek Dalal, it will be

clear like a cloudless sky that the criminal incident must have an effect on public at large. A careful reading of the details of incident dated 17/09/2021 mentioned in the grounds of detention clearly shows that there is no iota of material to show that such incident which took place between detenue and a particular party had any impact on public at large. Thus, we are unable to hold that said incident could have become reason for invoking detention law.

14) At the cost of repetition, in our view, the incident dated 17/09/2021 relates to 'law and order' and does not attract 'public order' at all.

15) The detenue is detained on impermissible and irrelevant reasons which cannot sustain judicial scrutiny. The Apex Court in (1964) 4 SCR 921 (Rameshwar Shaw vs. District Magistrate, Burdwan & Anr.) held as under:-

"7. There is also no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of clauses (i) to (iii) of Section 3(1)(a) and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation that again may introduce a serious infirmity in the order of his detention. If, however, the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be considered under Section 3(1)(a), it would not be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is not reasonably based on any of the said grounds."

(Emphasis Supplied)

16) In view of this constitution bench judgment also, we are inclined to hold that detenue was detained for the reasons which are beyond the purview of Section 3 of the NS Act, 1980. The detenue's liberty is taken away in a very mechanical and a cryptic manner. We have dealt with this aspect while considering the report of SP which became edifice for the order of detention. In the manner detenue is

detained, we deem it proper to impose cost on the authorities. Shri Dalal, learned AAG during the course of arguments urged that considering detenue's criminal record, no interference by this Court is warranted. We may hasten to add that under our constitutional scheme, liberty of a citizen cannot be taken away on flimsy and irrelevant grounds, grounds which are alien/foreign to relevant provision of detention law.

17) The Apex Court in Kehar Singh vs. Union of India reported in (1989) 1 SCC 204 held as under:-

"To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Art. 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than the other attributes of daily existence."

18) The Apex Court in Maneka Gandhi vs. Union of India reported in (1978) 1 SCC 248 held as under:-

""Procedure established by law", with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with "do or die" patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards? An enacted apparition is a constitutional illusion. Processual justice is writ patently on Article 21. It is too grave to be circumvented by a black letter ritual processed through the legislature."

19) The Apex Court in ADM, Jabalpur vs. Shavakant Shukla reported in (1976) 2 SCC 521 held as under:-

"The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the rule of law of the sanctity of life and liberty, it flows equally from the fact that under our penal laws no one is

empowered to deprive a person of his life or liberty without the authority of law."

20) Thus, merely because detenue has a criminal record, his detention order which otherwise is pregnant with several illegalities cannot be countenanced. Such detention by no stretch of imagination can be termed or treated as a 'necessary evil'. If we assuage our judicial conscience and treat it a 'necessary evil', it begins to look more and more necessary, and less and less evil.

21) Accordingly, impugned detention order dated 21.09.2021 is set aside. The respondents shall deposit cost of Rs.10,000/- (Rs. Ten Thousand only) before High Court Legal Aid Committee within 30 days from the date of communication of this order.

Petition is allowed.

         (Sujoy Paul)                                         (Pranay Verma)
            Judge                                                  Judge
soumya


     Digitally signed
     by SOUMYA
     RANJAN DALAI
     Date: 2021.12.13
     16:43:15 +05'30'