MP HC-17 pg-special reasons to be given for passing prev detention order against any person already under detention

advertisement
WWW.LIVELAW.IN
-1-
W.P. No.25986/2018
A.F.R.
HIGH COURT OF MADHYA PRADESH, JABALPUR
DIVISION BENCH: BEFORE HON’BLE SHRI JUSTICE HULUVADI G.
RAMESH & HON’BLE SHRI JUSTICE B.K.SHRIVASTAVA
Writ Petition No.25986/2018
Smt. Kamini Yadav
Vs.
State of Madhya Pradesh & Others
________________________________________________________________
Shri Ghanshyam Pandey, Advocate for the petitioner.
Shri Shashank Shekhar, Additional Advocate General for respondent/State.
ORDER
(04.02.2019)
Per : B.K.Shrivastava, J.
1.
This writ petition has been filed under Article 226 of the Constitution of
India on 29.10.2018 by Smt. Kamini Yadav, who is the wife of detenu Suraj
alias Sonu Yadav, R/o H. No.123, Near Primary School, Gorabazar, Police
Station Gorabazar, District Jabalpur (M.P.).
2.
The petition has been filed to challenge the detention order
No.15/NSA/RDM/2018, dated 11.10.2018 passed by Collector and District
Magistrate, Jabalpur in exercise of power under clause 2 of Section 3 of National
Security Act, 1980 (hereinafter referred to as “the Act of 1980”). By the
aforesaid order the District Magistrate passed the order of detention of accused
for the period of three months from the date of actual detention preventing him
from acting in any manner prejudicial to the maintenance of public order.
ii.
Detention order No.15/NSA/RDM/2018, Jabalpur dated, 11.10.2018 is
quoted below in Hindi and English:“U;k;ky; ftyk n.Mkf/kdkjh ftyk tcyiqj ¼e-iz-½
vkns'k
[email protected]@,u-,l-,[email protected],[email protected]]
tcyiqj]
fnukad [email protected]@2018
1pwafd esa Nfo Hkkj}kt] ftyk n.Mkf/kdkjh ftyk tcyiqj dks ;g lek/kku gks
x;k gS fd vukosnd lwjt ;kno mQZ lksuw firk Lo- j?kqukFk ;kno mez 41 lky
fuoklh e-ua- 123 izk;ejh Ldwy ds ikl xksjkcktkj Fkkuk xksjkcktkj ftyk tcyiqj
¼e-iz-½ dks yksd O;oLFkk cuk;s j[kus ds izfrdwy fdlh Hkh jhfr ls dk;kZsa dks djus ls
WWW.LIVELAW.IN
-2-
W.P. No.25986/2018
jksdus ds vfHkizk; ls mls jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 dh mi/kkjk ¼2½ ds
v/khu fu:) fd;k tkuk vko';d gSA
2vr,o mDr vf/kfu;e dh /kkjk 3 dh mi/kkjk ¼2½ ds }kjk iznRr 'kfDr;ksa dks
iz;ksx esa ykrs gq;s eSa Nfo Hkkj}kt] ftyk n.Mkf/kdkjh ftyk tcyiqj ,rn~ }kjk ;g
vkns'k nsrk gwW fd vukosnd lwjt ;kno mQZ lksuw firk Lo- j?kqukFk ;kno mez 41
lky fuoklh e-ua- 123 izk;ejh Ldwy ds ikl xksjkcktkj Fkkuk xksjkcktkj ftyk tcyiqj
¼e-iz-½ dks fu:) fd;k tkdj dsUnzh; tsy tcyiqj esa j[kk tkosA
3;g vkns'k vukosnd dks fu:) fd;s tkus dh okLrfod frfFk ls vkxkeh 03
¼rhu½ ekg dh vof/k ds fy;s oS/k gksxkA
[email protected]&
¼Nfo Hkkj}kt½
ftyk n.Mkf/kdkjh
tcyiqj
i`"BkW- [email protected]@,u-,l-,[email protected],[email protected]]tcyiqj] fnukad [email protected]@2018izfrfyfi %&
1iqfyl v/kh{kd] tcyiqjA
2v/kh{kd] dsUnzh; tsy] tcyiqjA
3mi[k.M eftLVsªV xksj[kiqj ftyk tcyiqjA
4Fkkuk izHkkjh] Fkkuk xksjkcktkj tcyiqjA
¼Nfo Hkkj}kt½
ftyk n.Mkf/kdkjh
tcyiqj”
“COURT OF THE DISTRICT MAGISTRATE. JABALPUR (M.P.)
ORDER
No./ 15/N.S.A./R.D.M./2018
JABALPUR DATED 11-10-2018
1.
Whereas I, Chhavi Bhardwaj, District Magistrate, District Jabalpur, am
satisfied that with a view to preventing Suraj Yadav @ Sonu S/o Shri Raghunath
Yadav Age 41 Yrs R/o H.No. 123 Near Primary School, P.S. Gorabazar District
Jabalpur (M.P.) From action in any manner prejudicial to maintenance of Public
Order it is necessary to detain him under Sub Section (2) of Section 3 of the
National Security Act. 1980.
2
Now therefore in exercise of the power conferred by sub Section (2) of
Section 3 of the said Act. I, Chhavi Bhardwaj, District Magistrate, District
Jabalpur hereby order Suraj Yadav @ Sonu S/o Shri Raghunath Yadav Age 41
Yrs R/o H.No. 123 Near Primary School, P.S. Gorabazar District Jabalpur (M.P.)
may be so detained and kept in Netaji Subhash Chandra Bose Central Jail,
Jabalpur.
3
This order will be valid for a period of upcoming 03 (three) months from
the date of actual detention.
(Chhavi Bhardwaj)
District Magistrate,
District Jabalpur (M.P.)
No./ 15/ N.S.A./R.D.M./2018
JABALPUR DATED 11-10-2018
WWW.LIVELAW.IN
-3-
W.P. No.25986/2018
A.F.R.
Copy to,
1Superintendent of Police Jabalpur.
2Superintendent, Netaji Subhash Chandra Bose Central Jail, Jabalpur.
3S.D.M. Gorakhpur Distt. Jabalpur.
4T.I., P.S. Gorabazar Jabalpur
(Chhavi Bhardwaj)
District Magistrate,
District Jabalpur (M.P.)”
3.
It appears from the order that:-
[A]. District Magistrate has passed the order in purported exercise of provision
contained in Section 3(2) of the Act of 1980 and,
[B]. Husband of the petitioner named Suraj Yadav @ Sonu is ordered to be
kept in Netaji Subhash Chandra Bose Central Jail, Jabalpur, preventing him from
acting in any manner prejudicial to maintenance of public order.
4.
After passing the order, the same was served upon the detenu Sonu in jail
on 13.10.2018. The grounds of detention also communicated to the detenu. As
per aforesaid grounds following cases were mentioned against the detenu:[i].
Crime No.293/2006 under Sections 341,294, 323, 506 of IPC, registered
at Police Station Cant Jabalpur. The date of incident mentioned as 09.08.2006
and it is also mentioned that challan No.249/2006 has been filed before JMFC,
Jabalpur, who registered the case No.24061/2006 on 18.08.2006.
[ii].
Crime No.80/2009 under Section 34 of Excise Act, registered at Police
Station Cant Jabalpur. The date of incident is mentioned as 27.02.2009 and
challan No.54/2009 filed before JMFC, Jabalpur on 04.03.2009 and the Court
registered the case No.2640/2009.
[iii]. Crime No.155/2010 under Section 34 of Excise Act, is registered at
Police Station Cant Jabalpur. The date of incident is mentioned as 15.05.2010
and challan No.124/2010 was filed before JMFC, Jabalpur on 25.05.2010 and
Court registered case No.5330/2010.
[iv]. Crime No.368/2010 under Section 34 of Excise Act, is registered at
Police Station Cant Jabalpur. The date of incident is mentioned as 07.10.2010.
Challan 301/2010 was filed before JMFC, Jabalpur on 11.10.2010 and the Court
registered case No.11757/2010.
[v].
Crime No.400/2011 under Section 34 of Excise Act, is registered at Police
Station Cant Jabalpur. The date of incident is mentioned as 30.10.2011 and the
WWW.LIVELAW.IN
-4-
W.P. No.25986/2018
challan No.339/2011 has been filed on 02.11.2011 before JMFC, Jabalpur, who
registered the case No.12010/2011.
[vi]. Crime No.111/2013 under Section 34 of Excise Act, is registered at Police
Station Cant Jabalpur. The date of incident is mentioned as 17.03.2013 and the
challan No.87/2013 has been filed on 21.03.2013 before JMFC, Jabalpur and the
Magistrate registered the case No.4418/2013.
[vii]. Crime No.205/2014 under Sections 294, 336, 427, 506/34 of IPC, is
registered at Police Station Cant Jabalpur. The date of incident is mentioned as
20.05.2014 and the challan No.157/2014 has been filed on 23.05.2014 before
JMFC, Jabalpur.
[viii]. Crime No.248/2018 under Sections 294, 323, 186, 332, 353, 506/34 of
IPC is registered at Police Station Gorabazar, Jabalpur. The date of was
incident mentioned as 30.08.2018. The petitioner was arrested in this case and
sent to judicial custody but other accused persons are yet to be arrested.
[ix]. Crime No.197/2018 under Section 34(2), 40 of Excise Act, is registered
by District Excise Department. The date of incident was mentioned as
30.08.2018. The accused was directed to sent to judicial custody.
5. As averred in the writ petition that the husband of the petitioner having some
altercation with the Excise Officer against registration of case under Section
34(2), 40 of M.P. Excise Act on 30.08.2018. The detenu remanded by the Court
and sent to judicial custody. Thereafter, police initiated National Security Act
proceeding against the detenu without giving opportunity of hearing to detenu
and without adducing evidence of witness, the respondent No.2 passed the
detention order on 11.10.2018 for a period of three months. The detenu was in
jail since 30.08.2018 in connection with Crime No.197/2018 punishable under
Section 34(2) and 40 of M.P. Excise Act. The detention order is perverse and
illegal because during detention order detenu Suraj alais Sonu was in jail. The
ground mentioned in para Nos. 1 to 9 is stale and it is not relevant for forming
the subjective satisfaction of detaining authority. The cases referred against the
detenu are minor in nature and without any subjective satisfaction, aforesaid
cases have been imposed by the police due to political motivation. The grounds
as mentioned in the detention order by detaining authority are illegal and
perverse because the act of detenu is not disturbing the society to the extent of
causing a general disturbance of public tranquility and act of detenu had no
effect on the public or community at large and cannot be held to have
WWW.LIVELAW.IN
-5-
W.P. No.25986/2018
A.F.R.
disturbance in the public order. The detaining authority did not send his order for
confirmation before respondent No.1 and the detenu is not produced before the
Advisory Board during the day of filing of petition, therefore, the order is
perverse and liable to be quashed. The petitioner has also mentioned some case
laws in para-6(K) and said that the order of detention is bad in eyes of law due to
principle laid down by the High Court and Hon’ble Supreme Court. Therefore, it
is prayed that the order of detention be quashed and the detenu be directed to
release from custody.
6.
The respondents have filed their return as I.A. No.15847/2018 on
03.12.2018. The respondents have drawn attention of the Court towards Section
3(2) of National Security Act, 1980 and said that the SHO Gorabazar has
submitted a report No. 1588/2018 dated 17.09.2018, alongwith criminal record
and a list of witnesses and the copy of rojnamcha before Superintendent of
Police, Jabalpur stated in that petitioner’s husband is involved in illegal activities
and there is terror in the police and local area because of that the maintenance of
peace in that area has become difficult. Upon the basis of the aforesaid report,
the Superintendent of Police, Jabalpur submitted a report on 5.10.2018 to the
District Magistrate and said that the petitioner’s husband is a hardened criminal
and he alongwith companion abused the persons who are residing under the
police area and also did marpit and also threatened to death. He has a habit to
sale and keep illegal liquor and because of which, criminal offence has been
registered against him and, therefore, peace is not maintained in that area of
Police Station Gorabazar. The petitioner is an active criminal. His name has also
been registered in the Gunda list. It is also mentioned that detenu has habit of
roaming in the area at night along with his active friends. He also assaulted the
government servant. District Magistrate, Jabalpur after considering the police
report has found that to stop the crime and to maintain peace in the district and to
provide peaceful environment to the general public living in the area, it is
necessary to pass the detention order against the petitioner. The ground for
detention has also been supplied to the petitioner. The District Magistrate,
Jabalpur has issued a jail warrant against the petitioner, which has been duly
served upon the petitioner, therefore, the contention of the petitioner is that the
detention order cannot be passed, if the petitioner is already in jail is
misconceived. Upon the aforesaid ground, it is requested that the petition is
liable to be dismissed. No case is made out warranting interference of this Court
WWW.LIVELAW.IN
-6-
W.P. No.25986/2018
in exercise of its extra ordinary writ jurisdiction.
7.
It is submitted by petitioner that without giving opportunity of hearing to
detenu and without adducing evidence of witness, the respondent No.2 passed
the detention order. This argument having no any force. Another D.B. of this
court, by order dated 22.07.2016 passed in W.P. No. 10476 of 2016 “Ankur
Mishra Vs. State of M.P.”, held that there is no requirement to give prior notice
or opportunity of hearing before passing a detention order.
8.
In this case on 12.12.2018, the Court directed to the Superintendent of
Police, Jabalpur, SHO of concerned Police Station to file an affidavit indicating
therein that the detaining authority was aware of the fact that the detenu was
already in custody at the time of passing of the order dated 11.10.2018 and also
give details about date of arrest of detenu and as to whether he has been granted
bail or not ? In response to the aforesaid order the respondent filed a compliance
report bearing I.A. No.16777/2018 on 19.12.2018. It is stated in the report that
the accused / detenu was arrested on 30.08.2018 in another crime No.197/2018
under Section 34(2) and 40 of Excise Act and also arrested on 31.08.2018 in
connection with Crime No.248/2018 for the offence punishable under Sections
294, 323, 186, 332, 353 and 506/34 of IPC. In Crime No.248/2018 he was
enlarged on bail vide order dated 10.10.2018 passed by High Court in M.Cr.C.
No.38069/2018, but he did not furnish bail bond. In Crime No.197/2018 bail
was not granted, therefore, the petitioner/detenu is confined in custody since
30.08.2018. In this reply, it is also mentioned that the respondents are relying on
para Nos. 6, 7, 8 and 9 of the order passed by the Division Bench of this Court.
In case of Chhenu alias Yunus Vs. State of M.P. reported in 2011 (1) MPWN
50, wherein the Court after relying on catena of judgments of Hon’ble Supreme
Court has held that the order of detention can be passed against the person who
is already in jail in some other offence subject to if the authority passing the
order is aware of the fact that he is actually in custody. It is also submitted that
the detenu was granted bail by High Court but he failed to furnish the bail bond
and is continuing in jail. The order was served upon him in jail on 13.10.2018.
9.
It is an admitted position in this case that the detenu was arrested on
30.08.2018 in connection with Crime No.197/2018 and on 31.08.2018 in
connection with Crime No.248/2018. The detention order has been passed on
WWW.LIVELAW.IN
-7-
W.P. No.25986/2018
A.F.R.
11.10.2018. Therefore, when the order was passed, the detenu was already in jail.
The detention order was passed upon the basis of report dated 17.09.2018 given
by Police Station Gorabazar. Station Incharge Gorabazar submitted his report
No.1588/2018 dated 17.09.2018 to the Superintendent of Police and the
Superintendent of Police submitted his report No.S.P./JBP/NSA/16/18 dated
05.10.2018 to District Magistrate, Jabalpur, who passed the order of detention on
11.10.2018.
10.
Learned counsel for the petitioner strongly raised a ground that the
detention order cannot be passed because on the date of passing of the aforesaid
order the detenu was already in jail.
11.
Sub-section (2) of Section 3 of the Act confers power to make an order of
detention with a view to preventing any person from acting in any manner
prejudicial to the security of the State or from acting in any manner prejudicial to
the maintenance of public order, etc. A preventive action postulates that if
preventive step is not taken the person sought to be prevented may indulge in
any activity prejudicial to the maintenance of public order. In other words, unless
the activity is interdicted by a preventive detention order the activity which is
being indulged in is likely to be repeated. This is the postulate of the section.
And this undoubtedly transpires from the language employed in Sub-section (2)
which says that the detention order can be made with a view to, preventing the
person sought to be detained from acting in an manner prejudicial to the
maintenance of public order. Now, if it is shown that the man sought to be
prevented by a preventive order is already effectively prevented, the power under
Sub-section (2) of Section 3, if exercised, would imply that one who is already
prevented is sought to be further prevented which is not the mandate of the
section. An order for preventive detention is made on the subjective satisfaction
of the Detaining Authority. The Detaining Authority before exercising the power
of preventive detention would take into consideration the past conduct or
antecedent history of the person and as a matter of fact it is largely from the prior
events showing, the 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. If the subjective satisfaction of the Detaining
Authority leads to this conclusion it can put an end to the activity by making a
preventive detention order. In Rameshwar Shaw v. District Magistrate, Burdwan,
WWW.LIVELAW.IN
-8-
W.P. No.25986/2018
MANU/SC/0041/1963 : AIR 1964 SC 334, the Constitution Bench considered
the question: "Can a person in jail custody be served with an order of detention
whilst he is in such custody ?" In this context, the Bench held that as an abstract
proposition of law, there may not be any doubt that Section 3(1)(a) does not
preclude the Authority from passing an order of detention against a person whilst
he is in detention or in jail; but the relevant facts in connection with the making
of the order may differ It was observed thus:
“Whether the detention of the said person would be necessary after
he is released from jail, and if the authority is bonafide satisfied that
such detention is necessary, he can make a valid order of detention a
few days before the person is likely to be released.”
Same view has been reiterated in subsequent decisions of the Supreme
Court. [See: Sanjay Kumar Agarwal v. Union of India, MANU/SC/0461/1990 :
(1990) 3 SCC 309, N. Meera Rani v. Government of Tamil Nadu,
MANU/SC/0381/1989 : (1989) 4 SCC 418, Dharmendra Suganchand Chelawat
v. Union of India, MANU/SC/0226/1990 : AIR 1990 SC 1196, Kamarunnissa v.
Union of India, MANU/SC/0376/1991 : AIR 1991 SC 1640 and Abdul Sathar
Ibrahim Manik v. Union of India, MANU/SC/0491/1991 : (1992) 1 SCC 1,
Veeramani v. State of Tamil Nadu MANU/SC/0632/1994 : JT 1994 (1) SC 350.]
12.
In Vijay Kumar Vs. State of Jammu & Kashmir and Ors., AIR 1982
SC 1023 = 1982 (2) SCC 43 = 1982 Cri.L.J. 988 [17.03.1988] detention order
dated July 11, 1981 made by the District Magistrate, Jammu in exercise of the
power conferred by Section 8 of The Jammu and Kashmir Public Safety Act,
1978. The detenu Vijay Kumar was arrested on June 26, 1981. The detenu was
served with the detention order dated July 11, 1981 on the same day in jail
because he was already in jail from June 25, 1981. The grounds for detention
were served on him on July 15, 1981. The contention of petitioner was that the
order of the District Magistrate suffers from nonapplication of mind inasmuch as
the date on which he passed the impugned order of detention dated July 11,
1981, the detenu was long before arrested and locked up in Jail on the allegation
that he was suspected to have committed some offence under the Enemy Agents
Ordinance 8 of Samvat Year 2005, and, therefore there was no present
apprehension that the detenu, if not detained, was likely to act in any manner
prejudicial to the security of the State. The District Magistrate passed the
impugned order of detention on being satisfied that with a view to preventing the
detenu from acting in a manner prejudicial to the security of the State it was
WWW.LIVELAW.IN
-9-
W.P. No.25986/2018
A.F.R.
necessary to detain him. The order ex facie does not show that the detaining
authority was aware that the detenu was already arrested and kept in jail. If the
detaining authority was conscious of the fact that the detenu was already arrested
and confined in jail, the order exfacie would have shown that even though the
detenu was in jail, with a view to preventing him from acting in a manner
prejudicial to the security of the State it was necessary to detain him. The Apex
court held ( in para 9 of Cri.L.J.) that :“............Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is
thereby prevented from acting in a manner prejudicial to the
security of the State. May be, in a given case there yet may be the
need to order preventive detention of a person already in jail. But in
such a situation the detaining authority must disclose awareness of
the fact that the person against whom an order of preventive
detention is being made is to the knowledge of the authority already
in jail and yet for compelling reasons a preventive detention order
needs to be made. There is nothing to indicate the awareness of the
detaining authority that detenu was already in jail and yet the
impugned order is required to be made. This, in our opinion, clearly
exhibits nonapplication of mind and would result in invalidation of
the order.”
13.
The similar issue had come up before the Division Bench of this Court in
the matter of Chhenu @ Yunus vs. State of M. P. and another, reported in
MANU/MP/0478/2010 : 2010(4) MPL J 253 = 2011(1) MPHT 208. In this case
The District Magistrate, Ujjain, passed the detention order on the March 3, 2010,
directing that the Petitioner should be detained. The Order recites that the
District Magistrate was satisfied that it was necessary to detain the Petitioner
with a view to prevent him from acting in a manner prejudicial to the
maintenance of public order. This order was served on the Petitioner on March 3,
2010. The grounds of detention were served on 4-3-2010. After getting positive
report from the Advisory Board, State Government passed the Order dated April
19, 2010 under Section 12 of the Act confirming the detention order for a period
of twelve months. According to Learned Counsel for Petitioner the detenu was
already in jail when he was served with the detention order. After taking note of
the judgment of the Supreme Court in the matter of Sanjay Kumar Agarwal vs.
Union of India, reported in MANU/SC/0461/1990 : (1990) 3 SCC 309, N. Meera
Rani vs. Government of Tamil Nadu, reported in MANU/SC/0381/1989 : (1989)
4 SCC 418, Dharmendra Suganchand Chelawat vs. Union of India, reported in
MANU/SC/0226/1990 : AIR 1990 SC 1196, Kamarunnissa vs. Union of India,
reported in MANU/SC/0376/1991 : AIR 1991 SC 1640, Abdul Sathar Ibrahim
WWW.LIVELAW.IN
-10-
W.P. No.25986/2018
Manik vs. Union of India, reported in MANU/SC/0491/1991 : (1992) 1 SCC 1,
Veeramani vs. State of Tamil Nadu, reported in MANU/SC/0632/1994 : JT
1994(1) SC 350, the Division Bench of this Court held thus :-“9. From the catena of decisions of Supreme Court it is clear that
even in the case of a person in custody, a detention order can
validly be passed if the authority passing the order is aware of the
fact that he is actually in custody: if he has reason to believe on the
basis of the reliable material that there is a possibility of his being
released on bail and that on being so released, the detenu would in
all probabilities indulge in prejudicial activities and if the authority
passes an order after recording his satisfaction the same cannot be
struck down.”
In Para 7 the D.B. also said that the question as to whether an order of
detention can be passed against a person who is in detention or in jail, will
always have to be determined in the circumstances of each case.
In
the
aforesaid case the Division Bench of this Court found that nothing was produced
to show that the detaining authority was aware of the fact that the detenu was
already in jail, therefore, the detention order was held to be invalid by
observing :-“12. The impugned detention order does not give the slightest
indication that the Detaining Authority was aware that the detenu
was already in jail and yet on the material placed before him he
was satisfied that a detention order ought to be made. There is
nothing in the order to show that to the knowledge of the Detaining
Authority the detenu was already in jail before the date on which he
passed the order and that such detention in the opinion of the
Detaining Authority was not sufficient to prevent the detenu from
acting in a manner prejudicial to the security of the State, and,
therefore, power under section 3(2) of the Act is required to be
exercised. The reply and affidavit of the District Magistrate does
not throw any light on the vexed question whether the Detaining
Authority was aware of the fact that the detenu on being suspected
of having committed a serious offence, was already in jail. There is
nothing to indicate the awareness of the Detaining Authority that
detenu was already in jail and yet the impugned order was made.
This, in our opinion, clearly exhibits non-application of mind and
would result in invalidation of the order.
13. In view of the foregoing discussion we allow this writ petition
and quash the detention order dated March 3, 2010 and the
subsequent confirmation order dated April 19, 2010 and direct that
the detenu Chhenu alias Yunus be released immediately from the
custody if he is not required in any other cause. Order
accordingly.”
14.
In Sanjay Yadav and Anr. Vs. State of Madhya Pradesh and Anr.,
2011(1) MPHT 332 (DB) detention order dated 17.02-2010 was passed against
WWW.LIVELAW.IN
-11-
W.P. No.25986/2018
A.F.R.
him under Section 3(2) of the Act and he was taken in detention on 22.02.2010.
He was served with the detention order and grounds of detention along with the
documents on 22.02.2010. The case was sent for approval of the Government on
17.02.2010 and the State Government granted approval on 26.02.2010 and the
information was sent to the Central Government on 02.03.2010. The case was
sent to the Advisory Board on 3.3.2010 and the Advisory Board gave its opinion
and thereafter the order confirming the detention order was passed on
15.04.2010. It was contended that the Petitioner No. 1 was already in jailfor
offence under Section 302 of I.P.C. and the detention order has been passed
without application of mind and that there is no material to indicate that the
Petitioner No. 1 is indulging in any activity from inside the jail to disturb public
order. The court said in para 6 that it is the settled position in law that detention
of a person without a trial is a very serious encroachment on his personal
freedom and at all stage all questions in relation to the detention are required to
be carefully and solemnly considered. Since the preventive detention is a serious
inroad into the freedom of individuals, therefore, reason, purposes and the
manner of such detention is subject to closest scrutiny and examination. Court
also quote the following lines of Shafiq Ahmad v. District Magistrate, Meerut
and Ors., reported in MANU/SC/0491/1989 : (1989) 4 SCC 556, related to scope
of judicial review:
“Hence, there must be conduct relevant to the formation of the
satisfaction having reasonable nexus with the action of the
Petitioner which are prejudicial to the maintenance of public order.
Existence of materials relevant to the formation of the satisfaction
and having rational nexus to the formation of the satisfaction that
because of certain conduct "it is necessary" to make an order
"detaining" such person, are subject to judicial review.”
Thereafter the Court said in para 8 :
“It is the settled position in law that the authorities are not
precluded from passing an order of detention when the person
concerned is in jail, but while passing the order of detention, they
are required to apply their mind to the fact that the person
concerned is already in jail and there are compelling reasons
justifying such detention despite the fact that the detenu was
already in detention and the compelling reasons 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 or 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
WWW.LIVELAW.IN
-12-
W.P. No.25986/2018
in such activities. The aforesaid proposition in law is supported by
the judgments of the Supreme Court in the matter of Abdul Razak
Abdul Wahab Sheikh v. S.N. Sinha, Commissioner of Police,
Ahmedabad and Anr., reported in MANU/SC/0007/1989 : (1989) 2
SCC 222; in the matter of N. Meera Rani v. Government of Tamil
Nadu and Anr., reported in MANU/SC/0381/1989 : (1989) 4 SCC
418; and in the matter of Dharmendra Suganchand Chelawal v.
Union of India and Ors., reported in MANU/SC/0226/1990 : (1990)
1 SCC 746.”
The D.B. held in para 9 that the order has been passed without application
of mind and said :
“In the present case the Respondents have noted the fact that the
Petitioner No. 1 is in jail but there is no application of mind by the
Respondents in respect of the possibility of the release of the
Petitioner No. 1 on bail in respect of the offence of Section 302,
IPC and other connected offences for which he is already in jail.
The detention order and the grounds of detention do not mention if
the Petitioner No. 1 had applied for grant of bail and what was its
but come. Thus, the detention based on Ground No. 40 cannot be
sustained having been passed without application of mind on this
aspect.”
15.
In the case of Bhagwan Singh @ Choti Vs. State of M.P., 2012 (III)
MPWN 37 [DB] the detention order was passed by D.M. Ujjain on 18.01.2012
on which the petitioner was already in Jail in connection with the crime No. 446
of 2011 under sections 323, 365, 368, 120(B), 506, 395, 397, 364A R/w 34 of
IPC. The D.B. took the note of Chhenu @ Yunus vs. State of M. P. and
another, 2010(4) MPL J 253 = 2011(1) MPHT 208 and examined the matter in
the light of the observation made by Supreme Court in Vijay Kumar Vs. State
of Jammu & Kashmir and Ors., AIR 1982 SC 1023, and queshed the order
and said in para 8 that :“...........We find that there is no indication in the order to the effect
that the detaining authority was aware that the detenu was already
in custody and that he has reason to believe on the basis of reliable
material that there is a possibility of his being released on bail and
that on being so released the detenu would in all probabilities
indulge in prejudicial activities and for compailing reasons a
preventive detention order need to be made.”
16.
Therefore it is the settelled position of law that the authorities are
not precluded from passing an order of detention when the person
concerned is in jail, but while passing the order of detention, they are
required to apply their mind to the fact that the person concerned is
already in jail and there are compelling reasons justifying such detention
despite the fact that the detenu was already in detention and the
WWW.LIVELAW.IN
-13-
W.P. No.25986/2018
A.F.R.
compelling reasons 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 or 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.
17.
Whether the aforesaid requirements are fulfilled in this case or not ? In
this regard the respondents tried to convenience the Court that the detaining
authority was aware of the fact that the accused is already in jail. He draws our
attention towards the report submitted by the Superintendent of Police and
argued that, in the report, it was mentioned that the detenu has been arrested in
Crime No.197/2018 and has been sent to the judicial custody. It was also
mentioned that on 30.08.2018 the detenu was arrested in connection with Crime
No.248/2018 and sent to the judicial custody. As per respondent the detenu was
arrested in connection with Crime No.248/2018 and 197/2018 and was confined
in custody. But the aforesaid fact is not reflected from the order passed by the
detaining authority. In the order dated 11.10.2018, it is mentioned that :“it is necessary to detain him under Sub Section (2) of Section 3 of the
National Security Act. 1980”. ¼jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 dh
mi/kkjk ¼2½ ds v/khu fu:) fd;k tkuk vko';d gS ½.
In para No.2, it is mentioned that:“may be so detained and kept in Netaji Subhash Chandra Bose
Central Jail, Jabalpur” (dks fu:) fd;k tkdj dsUnzh; tsy tcyiqj esa j[kk
tkos).
In para No.3 of the order, it is mentioned that:“This order will be valid for a period of upcoming 03 (three) months from
the date of actual detention” (;g vkns'k vukosnd dks fu:) fd;s tkus dh
okLrfod frfFk ls vkxkeh 03 ¼rhu½ ekg dh vof/k ds fy;s cS/k gksxk).
18.
The aforesaid quoted portion of the order shows that the detaining
authority did not took the notice of the fact that the detenu is already in custody.
We have minutely perused the impugned order dated 11.10.2018 passed by
District Magistrate. In the said impugned order, it is not mention that the accused
WWW.LIVELAW.IN
-14-
W.P. No.25986/2018
was in jail at the time of passing of the said order. It is not reflected from the said
order that the detaining authority was aware of the fact that the accused was in
jail at the time of passing of the said order. No any such material has been
produced before this Court to establish such facts. Therefore, the impugned order
clearly indicates the non application of mind by the detaining authority in respect
of the possibility of the release of the Petitioner. Since, the detaining authority
was not made aware of the fact that the accused was in custody in relation to the
investigation in two criminal cases, therefore, the detaining authority had no
occasion to apply his mind in respect of possibility of the accused being released
on bail and the probability of his involvement in such activities after release on
bail. It is not clear from the order passed by the detaining authority that it was in
the notice of the authority that the detenu was already in jail since 30.08.2018
otherwise the authority will not mention in para-3 that “this order will be valid
for a period of upcoming 03 (three) months from the date of actual detention”.
Before about 40 days back, the detenu was in custody, therefore, the satisfaction
of the authority was required and should be mentioned in the order passed, but
the authority passed the order in mechanical way by using a set proforma. Order
did not fulfill the requirement of the law and the principle laid down by the
Hon’ble Supreme Court and the High Court.
19.
The petitioner also filed some documents in relation to the result of
criminal cases mentioned in the grounds of detention order. The case mentioned
at Sr. No.7 (In para No.vii of this order) was the Criminal Case No.6072/2014, in
which judgment has been passed by JMFC, Jabalpur on 01.06.2015. It appears
from the judgment that the offence under Sections 294, 336, 427 and 506-II IPC
were compromised and the Court passed the order of acquittal only in the
offence under Section 336 of IPC. In case No.6413/2011, fine of Rs.1000/- has
been imposed under Section 34 (A) on 29.06.2011. In case No.4418/2013 fine of
Rs.500/- has been imposed under Section 34 of Excise Act on 21.03.2013. In
case No.6413/2011 fine of Rs.500/- has been imposed on 21.03.2013. In case
No.12010/2011 fine of Rs.1000/- has been imposed under Section 34(A) of
Excise Act on 02.11.2011. In case No.813/2012 fine of Rs.500/- has been
imposed under Section 34(A) of Excise Act on 03.02.2012. In case
No.15415/2010 the matter has been compromised under Sections 294, 323 and
506-II of IPC.
WWW.LIVELAW.IN
-15-
W.P. No.25986/2018
A.F.R.
20.
Therefore, it appears from the aforesaid documents that all cases
mentioned in the grounds of detention were already disposed of except the two
latest cases registered on 30.08.2018 as Crime No.248/2018 and Crime
No.197/2018, in which accused was in custody. Except aforesaid two cases, out
of remaining cases two cases were under the sections of IPC and the other case
was related to Excise Act. Cases related to Excise Act were disposed of by
imposing the fine upon admission of accused, and the cases related to IPC have
been compromised. Therefore, at the time of passing the detention order only
two cases were in existence and both were recently registered on 30.08.2018.
Both the cases arise out of same transaction. As such the allegation made against
the accused are of trivial nature and do not admit of grave and serious offence
having implication of serious repercussions on the life and liberty of larger
section of community causing disturbance even tempo of life and liberty of the
community so that same may be classified as the Act of the intended to subvert
the public order. We find that in the ground of detention there is no other material
referred to which would justify the apprehension of detaining authority that the
accused is engaged in a manner to subvert public order or that the witnesses were
not coming forward to depose against him due to fear and more so that the
accused is likely to engage himself in the activities, which may affect public
order. In absence of any contemporaneous material in this behalf it is
unfathomable as to how subjective satisfaction reached by the detaining
authority regarding involvement of the petitioner in subversion of public order
can be justified. Therefore, such sporadic and stale instances referred to and
relied upon the detaining authority are of trivial in nature cannot be construed to
have the potential of causing threat to maintenance of public order. These are the
instances, at best of breach of law and order and they did not establish any live
and proximity link to the threat of public order nor does it pass the test of
detention order passed for the right purpose. The nature of allegations with
reference to the alleged offences are of the nature, which can be dealt with under
the powers to maintain law and order. They are not of such a nature, which may
be perceived to have the intensity of causing threat to public order.
21.
The respondent also placed reliance upon Kamla Bai Vs. Commissioner
of Police, Nagpur and Others, reported in (1993) 3 SCC 384 and submits that
registration of Crime No.248/2018 is sufficient to justify the order of detention
on 30.08.2018. The accused committed marpit with the District Excise Officer,
WWW.LIVELAW.IN
-16-
W.P. No.25986/2018
G.S. Maravi and created obstruction in discharging the official duty of Shri
Maravi and other Official of the Excise Department, when they were discharging
their duty and trying to seize the liquor. During the proceeding of Crime
No.197/2018, the accused attacked upon officer of excise department, therefore,
one case Crime No.197/2018 registered under Excise Act as Crime No.197/2018
and another case registered under Sections 294, 323, 186, 332, 353 and 506/34 of
IPC as Crime No.248/2018 .
22.
In the case of Kamla Bai (supra) the detenu catch hold the police ASI and
threatened him in a public place when S.I attempt to effect arrest of detenu and
detenu associates and seizure of liquor bottles being sold. It is also mentioned in
para-3 of the aforesaid judgment that on 01.02.1992 at about 9:45, when the
Police Sub Inspector was patrolling, he saw people gathered near detenu’s stable
and on seeing him they tried to run away. The Sub Inspector caught hold one of
them, who admitted that he was selling illicit liquor in the detenu’s stable and
thereafter Sub Inspector took search of the stable and found liquor bottles. When
Sub Inspector was about to take the arrested person and the liquors bottles the
detenu and his associates came there, questioned the Sub Inspector and
forcefully broke the liquor bottle on the spot when Sub Inspector told them that
he was performing duty, the detenu threatened him that they finish him, if he
does not act according to their wishes. So saying the detenu caught hold of the
Sub Inspector and surrounded him. The Sub Inspector however, got release and
went to Police Station. This act and conduct of detenu was considered to be
nothing but display of Gundaism, by the detaining authority. The Court said
that :“ ….. We cannot say that this is a stray act affecting law and order.
Catching hold of a Sub Inspector and threatening him in public place like
that naturally would have created panic in the locality. We cannot say the
ground has no nexus to the public order”.
23.
In this case particulars of Crime No.197/2018 and 248/2018 have not been
mentioned in the ground of detention. In the report of Superintendent of Police
the position is the same. Whether the aforesaid crime was committed in public
place or not, it is not clear. Most the cases registered against the petitioner were
related to Excise Act. Any offence related to public was not registered. The
offence under IPC were related to the specific person not to the public and the
WWW.LIVELAW.IN
-17-
W.P. No.25986/2018
A.F.R.
aforesaid person entered in the compromise and the accused was acquitted in that
offence. Therefore, the case of Kamla Bai (supra) does not help the
respondents.
24.
In view of the foregoing discussion we allow this writ petition and quash
the detention order dated 11.10.2018 and direct that the detenu Suraj Yadav @
Sonu be released immediately from the custody, if he is not required in any other
case. Order accordingly.
(Huluvadi G. Ramesh)
Judge
Vin**
Digitally signed by VINOD
SHARMA
Date: 2019.02.04 15:53:44 +05'30'
(B.K.Shrivastava)
Judge