Shahzada v. Supdt. District Jail, Moradabad — 1983 DIGILAW 494 (ALL)

JUDGMENT P.N. Harkauli, J. - We have already allowed the petition and ordered that f petitioner shall be set at liberty. We nc proceed to give the reasons for our order. 2. The petitioner Shahzada was detain in the District Jail, Moradabad on November 6. 1982 under Section 3 of the Nation Security Act. He filed this Habeas Corp Writ Petition challenging the legality of the order and praying for his release. 3. The order of detention, as mention above, was passed on November 6. 1982. 'vis, however. served on the petitioner April 5, 1983 in the District Jail, Moradabad after he surrendered in Court in connection with a criminal case on April 4, 1983. The grounds of detention were supplied to the petitioner the next day i.e. April 6, 1983. A copy of the sane is annexure 2 to the petition 4. The Station House Officer, Mughalpura, Moradabad, submitted a report dated October 12, 1982 for the detention of the petitioner, and the detention order was passed by the District Magistrate on the basis of the facts stated therein. These facts, as reproduced in the grounds of detention, were that Jama Masjid area of Moradabad town was a communally sensitive area, that on each of the two days, September 20, 1982 and September 21, 1982, one dead body was recovered as a result of which there was tension in the whole town, that on September 25, 1982 one Ram Bliarose disappeared, that the festival Bakrid wes celebrated on May 28, 1982 in an extremely tense atmosphere, and that on September 29, 1982 at about 10 A.M. some Hindu boys attacked two Muslims near the Raniganga bridge killing one on the spot and seriously injuring the other. It was further stated that the petitioner and his accomplices Mohd. Yusuf. Amin, Bhola, Baboo, Munna, Babbu, Usuf. Sumi, Usman, Dr. Athar. Dr. Asif, Shafiq, Sakkan and Sabir entered into a conspiracy to take revenge from the Hindus, who in their view were responsible for committing the outrages mentioned earlier, and in pursuance of this desire for communal vengeance. Dr. Athar decoyed one Kuldip photographer and brought him into a narrow lane near a mosque, and then all these person, murdered him. put his body in a gunny bag, took it in a The to the Bhishtiwali mosque and threw it into a man-hole there. Dr. Athar decoyed one Kuldip photographer and brought him into a narrow lane near a mosque, and then all these person, murdered him. put his body in a gunny bag, took it in a The to the Bhishtiwali mosque and threw it into a man-hole there. This action, motivated by communal feelings, of the petitioner and his accomplice, it was stated, had led to widespread sense of fear, insecurity and tension in the whole town, and the District Magistrate was therefore satisfied that it was necessary to detain the petitioner under the Act in order to prevent him from actin in P. manner prejudicial to maintenance of public order. 5. The petitioner challenges the legality of this detention order on the following grounds 1. The order directing the petitioner is discriminatory and it violates Article 14 of the Constitution. 2. On the own admission of the District Magistrate contained in the affidavit tiled by him in another case, a part of the grounds of detention was non-existent. 3. The petitioner made three representations dated April 15, 1983, April 18, 1983 and April 23, 1983 against his detention, out of which one dated April 18, 1983, was not forwarded by the Distt. Magistrate to the State Govt. or the Advisory Board at all and the other two were not placed before the Advisory Board within the period of three weeks as required by Section 10 of the National Security Act. 4. The order of detention was passed by the District Magistrate, Moradabad in a casual manner at the behest of the police without applying his mind and it was not passed on his genuine satisfaction that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to maintenance of public order. 6. The petition has been contested by the respondents who contend that the detention order does not suffer from any such infirmity. 7. It will he convenient to consider each of the contentions of the petitioner separately. 8. The learned counsel for the petitioner contended that it was clear from a perusal of the grounds of detention (annexure 2 to the petition) that a number of persons other than the petitioner were alleged to have taken part in the incident on the basis of which the petitioner wa; detained, and at least one of them, Dr. 8. The learned counsel for the petitioner contended that it was clear from a perusal of the grounds of detention (annexure 2 to the petition) that a number of persons other than the petitioner were alleged to have taken part in the incident on the basis of which the petitioner wa; detained, and at least one of them, Dr. Athar, was assigned a specific and important part in the crime, namely that he had discovered Kuldip, deceased, whereafter he was murdered. while the petitioner was only generally alleged to have taken part in the murder. but no order of detention was passed against Dr. Athar, while the Petitioner was ordered to he detained. This, it was contended, amounted to discrimination 9. This contention has no substance at all. The petition has been satisfactorily explained in the counter affidavit filed by the District Magistrate Sri B. Sinha. It may be that it is not very happily drafted and it does not make the thing explicit. Nevertheless it is fairly clear from the averments contained in paras 16 and 17 of this affidavit that Dr. Athar and Dr. Asif made sta merits under Section 164 Cr.P.C. supporting 'the. entire prosecution case', and that they have given evidence in the case against the petitioner and they have fully corroborated the prosecution case' and hence 'there was no necessity to proceed against Dr. Asif'. In the other words, though it has not been said in so many words, Dr. Asif and Dr. Athar had turned approver and made a clean breast of it and there was therefore no longer any apprehension from them, and this was the reason why the District Magistrate did not consider it necessary to take action against them under this Act. If that is so, and there is nothing on the record to doubt it, it is clear that the District Magistrate had reasonable grounds for not taking action against Dr. Athar and Dr. Asif under the Act, and it cannot be said that he had acted arbitrarily or that his action was discriminatory or violative of Article 14 of the Constitution. 10. The second contention is, for the same reason without force. Athar and Dr. Asif under the Act, and it cannot be said that he had acted arbitrarily or that his action was discriminatory or violative of Article 14 of the Constitution. 10. The second contention is, for the same reason without force. It was alleged in para 17 of the petition that in connection with the Hebeas Corpus Writ Petition filed by another person detained in connection with this very incident; the District Magistrate had filed an affidavit in which he had averred as follows: "It may further be stated that as per the investigation conducted by the police station concerned no action was taken against Dr. Athar and Dr. Asif as investigation did not fully establish their participation in the alleged case." 11. The learned counsel for the petitioner contended that in view of this averment it was clear that a part of the alleged incident indeed an important part because it was only after Dr. Athar had brought Kuldip near the mosque that he is said to have been murdered, was untrue. and if a part of the grounds was non-existent then the detention order is vitiated. 12. But, as already stated, paras 16 and 17 of the counter affidavit of the District Magistrate showed that Dr. Asif and Dr. Athar had actually made statements under Section 164 Cr.P.C. in the course of the investigation fully supporting the entire prosecution case. No doubt in para 21 of his rejoinder affidavit the petitioner has said that the facts mentioned in paras 16 and 17 of the counter affidavit of the District Magistrate are not true. But statements under Section 164 Cr.P.C. which are recorded by a Judicial Magistrate, who is not subordinate to the District Magistrate, could not be fabricated in a back date. So if the petitioner had been serious in den vina the averment in the counter affidavit of the District Magistrate he could and should have applied for summoning the relevant records etc. to support his denial. But he made no attempt to do so, and we cannot, therefore, reject the sworn statement of a responsible officer on the basis of a bare general denial of this kind. If the averments of the District Magistrate in paras 16 and 17 of his counter affidavit are correct and Dr. Asif and Dr. to support his denial. But he made no attempt to do so, and we cannot, therefore, reject the sworn statement of a responsible officer on the basis of a bare general denial of this kind. If the averments of the District Magistrate in paras 16 and 17 of his counter affidavit are correct and Dr. Asif and Dr. Athar did make statements under Section 164 Cr.P.C. Fully corroborating the prosecution case, which necessarily means admitting the role of Dr. Asif, it cannot possibly be said that any part of the grounds of detention was non-existent. 13. This challenge to the order of the District Magistrate also, therefore, fails. Coming now to the third point, it is admitted by the respondents that the application of the petitioner dated April 19, 1983 was never forwarded by the District Magistrate either to the State Government or to the Advisory Board. The respondents' contention, however, is that it is merely an application to the District Magistrate for supplying copies of certain documents, and not a representation to the State Government against the detention order, and it was therefore not necessary to forward it to the State Government or to the Advisory Board. and, consequently. failure to do so cannot vitiate the detention 14. The learned counsel for the petitioner on the other hand contended that, since there was a prayer for revoking the detention. in this document, it amounted to a representation, and neither the fact that it was not addressed to the State Government nor the fact that the prayer for revocation of detention was combined with a request for copies could take away that character front the document, and consequently when it was admittedly not forwarded to the State Government and the Advisory Board there was no escape from the conclusion that the detention was vitiated. 15. We have carefully considered the contentions of the learned counsel for the parties and we are of the opinion that the contention of the petitioner cannot be accepted. It is true that no form is prescribed for it representation by it detenu. It is also true that even if it representation is not property addressed to the State Government, that will not take away the true character of the representation. It is true that no form is prescribed for it representation by it detenu. It is also true that even if it representation is not property addressed to the State Government, that will not take away the true character of the representation. Nevertheless, it cannot be doubted that in order to amount to a representation it must in truth and substance be a representation; it must be one which, on a fair .reading of it, would be understood by any person to be a representation against the order of detention. 16. Now, if we turn to the alleged representation (annexure 3 to the rejoinder affidavit), we will find that it is addressed to the District Magistrate, and in para 1 the petitioner stated that he was a man of little education and he was unable to prepare a representation, that he had asked his brother to get a representation prepared by a qualified person, that his brother contacted one such person and the latter told his brother that as the papers were incomplete he was not in a position to prepare a representation. In para 2 of this document it was me rationed that the petitioner was innocent, that there was no eye-witness against him nor was any incriminating thing recovered from his possession, and the Station Officer had submitted a report for the detention of the petitioner on the basis of a concocted story, and that he should be supplied certain copies to enable him to make an effective representation. The document ends with para 4 in which the same request for supplying copies of some documents (not of those relied upon by the detaining authority as the basis of detention order) detailed at the foot of the application was made 17. In between paras 2 and 4 a para was inserted to the effect that as complete papers were not supplied to him his detention was vitiated, and it was prayed that this application may be forwarded to the Hon'ble Chief Minister with his (D.M.'s) report so that the Hon'hle Chief Minister may revoke the detention and order the release of the petitioner. 18. It will thus be seen that it was in reality merely it request for supplying some copies, which, according to the petitioner and/or his,adviser, were necessary for making an effective representation. 19. 18. It will thus be seen that it was in reality merely it request for supplying some copies, which, according to the petitioner and/or his,adviser, were necessary for making an effective representation. 19. It will further seen that there was nothing in para 1 as to what infirmity there was in the order of detention, and it was only said that as complete papers (not, it may be maikcd, any of the papers which the detaining authority had considered and relied upon for passing the detention order but other papers which the petitioner considered helpful for his defence), had not been supplied within time, the detention was illegal. In the circumstances, this document could not be considered by anyone to be a representation against the order of detention. We cannot help thinking that this document was cleverly drafted, so that the District Magistrate may be led to think that it was merely a prayer for supplying certain copies and treat it as such, and then this may be made a ground for challenging the legality the detention. In this connection, it is important to note that the petitioner was most explicitly and expressly informed in the grounds of detention that he had a right to make a representation the State Government against the detention, and that if he wanted to exercise that right he could do so by sending a representation addressed to the Home Secretary through the Superintendent Jail. In spite of this he chose to address this application to the District Magistrate only, and to insert a prayer for sending the application to the Hon'ble Chief Minister in the middle of requests that he should he given certain copies in order to enable him to make an effective representation. This is nothing but a device to mislead the District Magistrate and then claim advantage of it. We are clearly of the opinion that this cannot be countenanced. This is nothing but a device to mislead the District Magistrate and then claim advantage of it. We are clearly of the opinion that this cannot be countenanced. While it cannot he doubted that a citizen who has been deprived of his liberty, should he given every facility to have his representation against his detention considered by the State Government and the Advisory Board and technical flaws must not be allowed to stand in the way of, or defeat, his attempts to obtain redress, if it is due, yet the detenu cannot be permitted to play a game of hide and seek, or to make it a matter of tactics and strategy to make some officer or official trip somewhere and then rush to Court with a writ petition claiming advantage of the same. To allow such tactics to succeed would be not to advance the cause of citizens' liberty but to put a premium on chicanery. 20. We, therefore, hold that the application dated April 18, 1983 was not in truth and substance a representation and the omission of the District Magistrate to forward it to the State Government or the Advisory Board, cannot vitiate the order of detention. 21. As for the representation dated April 15, 1983, the counter affidavit of Sri Vishnu Sahai shows that it was sent by the petitioner's legal adviser to the State Government by post, that it was received in the confidential section of the State Government on April 23, 1983, and as April 24, 1983 was Sunday and April 25, 1983 was a public holiday, the representation was sent to the Advisory Board on April 26, 1983. 22. The learned counsel for the petitioner contended, in the first place. that in this counter-affidavit it was only stated that the representation was sent to the Advisory Board on April 26, 1983, and not that it was delivered there on the sane day. This is nothing but playing upon words. Since both the Secretariat and the office of the Advisory Board are situate in Lucknow at a 'distance of at the most 4 or 5 Kilometres, the representation would have reached the Advisory Board the same day. This is nothing but playing upon words. Since both the Secretariat and the office of the Advisory Board are situate in Lucknow at a 'distance of at the most 4 or 5 Kilometres, the representation would have reached the Advisory Board the same day. Besides, the learned counsel for the State showed us the record of the State Government which contains a letter of the Registrar of the Advisory Board to the effect that this representation reached his office on April 26. 1983. 23. The learned counsel for the petitioner next contended that even if it reached the Advisory Board on April 26, 1983, it did reach it within three weeks i.e. 21 days from the date of detention. He contended that the representation could and should have been sent on April 23, 1983 itself, on which date it Was received in the Confidential Section of the Secretariat, and in any case on April 25, 1983 on which date the office of the advisory Board was open. He said that is a matter involving the liberty of a citizen the Government could not take shelter behind the plea that April 25, 1983 was a public holiday and the State Government office was closed. We see no force in either of these intentions The Secretariat of the State Government acts according to certain prescribed procedures. It is not as if an assistant,gets the representation and rushes with it to the office of the Advisory Board; it has to be dealt with in accordance with the established procedure. So if the representation "as sent on the very next working day, it cannot be said that there was any delay on the part of State Government in forwarding the representation to the Advisory Board. Nor can we accept the contention that the representation should have been forwarded to the Advisory Board on 24th or 25th irrespective of the fact that the office of the State Government was closed on 24th and 25th April. The Govt. can function only through its officers and officials, and it cannot be reasonably expected to do any such thing when its offices are closed and the staff is, therefore, not available for duty. The Govt. can function only through its officers and officials, and it cannot be reasonably expected to do any such thing when its offices are closed and the staff is, therefore, not available for duty. In this connection it is noteworthy that even though the petitioner was expressly told on the very day the grounds of detention were served upon him that he could send the representation through the Superintendent Jail (vide ground of detention annexure 2) to the petition by a special messenger, his counsel chose to send it on April 15, 1983, that is only 10 days before the expiry of the three week period, and even then by registered post, with the result that it reached t Secretariat on the April 23. 1983. In words, the representation reached the Secretariat late, because the petitioner's advisers sent it late and that too by Regd. post and not by the quickest method easily available, indeed offered, to the petitioner in the v beginning when the grounds were supplied to him. It was suggested on behalf of respondents that this too was done deliberately as one of the tactics for creating ground for challenging the detention. W " do not consider it necessary to go into t question. Whether deliberate or otherwise, the fact remains that the entire responsibility for the delay in forwarding the representation to the Advisory Board rests squarely on the petitioner and his pairokars. And it is a fundamental principle of law that no party can be allowed to take advantage of his own wrong. 24. The above observations apply equally to the representation dated April 23, 1983. The counter affidavit of the District Magistrate Sri B.B. Sinha shows that it was delivered to him on April 23, 1983, that he sent to the Police for comments the same day, and after the comments of the Police were received it was sent to the State Government on April 26, 1983. It was received in the Confidential Section on April 27, 1983 and after due consideration was rejected on May 3, 1983. As already stated April 24, 1983 was Sunday and April 25, 1983 was a public holiday in Government Offices on account of Mahavir Jayanti, and so it is clear that there was no delay on the part of the District Magistrate in sending the representation to the State Government. As already stated April 24, 1983 was Sunday and April 25, 1983 was a public holiday in Government Offices on account of Mahavir Jayanti, and so it is clear that there was no delay on the part of the District Magistrate in sending the representation to the State Government. It was urged in this connection also that April 24, and 25, being Sunday and Public holiday cannot be a around for delay in forwarding the representation. We do not think public servants can or should he forced to work on holidays or Sundays and compelled to deny themselves the little respite or rest which Sunday or an occasional public holiday affords all the more so when the detenu chooses to make a representation so late. and does not care even to offer an explanation for the delay. it would, to our mind. he absurd to say that the detenu is free to take his own time and to act in as leisurely a fashion as he chooses, but the District Magistrate and his staff are bound to give instant attention even on holidays. In this case also, it was suggested on behalf of the respondents that the giving of the representation was deliberately delayed. but we do not consider it necessary to go into that. We consider it sufficient to say that responsibility for this delay of one day lay entirely on the petitioner or his advisers, and he cannot get advantage of it. 25. We now come to the last contention of the petitioner. namely, that the genuineness of the satisfaction recorded by the District Magistrate is open to serious doubt. After giving our most anxious consideration to the matter we have come to the conclusion that the contention of the petitioner has force. 26. In para 13 of his affidavit the petitioner has alleged that on October 6, 1982 the Station rouse Officer Mughalpura submitted a report suggesting the detention of two persons named Muntaz Husain alias Laddan and Mohd. After giving our most anxious consideration to the matter we have come to the conclusion that the contention of the petitioner has force. 26. In para 13 of his affidavit the petitioner has alleged that on October 6, 1982 the Station rouse Officer Mughalpura submitted a report suggesting the detention of two persons named Muntaz Husain alias Laddan and Mohd. Yunus in connection with the murder of Kuldip photographer, and on the basis of that report the District Magistrate passed an order for their detention on October 10, 1982; that thereafter the same Station Officer submitted another report on October 10, 1982 containing identical facts for the detention of four more persons in connection with the same incident, and the District Magistrate passed an order for their detention on October 13, 1982. Finally, the same police officer submitted a third report containing the same facts and requesting that the petitioner be detained and the District Magistrate passed the impugned order against the petitioner on November 6, 1982. These facts contained in this para of the petitioner's affidavit were not specifically controverted by the District Magistrate in his affidavit, and he did not say which of this averments, if any, were wrong. He just stated in his counter-affidavit that the contents of this para "are not admitted". In the circumstances we see no reason to doubt these averments. If they are true, then the position comes to this that all the facts which formed the basis of the impugned order came to the notice of the District Magistrate on October 10, 1928, when he ordered the detention of two of the 10 persons alleged to have taken part in the murder of Kuldip, but he did not consider it necessary to order the detention of the four persons who were ordered to be detained on October 13. 1982 or, of the petitioner. Further, all these facts as rain came to the notice of the District Magistrate on October 13, 1982, and again, while ordering the detention of the four persons, whose detention was sought by the police, the District Magistrate did not consider it necessary to detain the petitioner. It was only when the police submitted a third report seeking the petitioner's detention. that the impugned order was passed. It was only when the police submitted a third report seeking the petitioner's detention. that the impugned order was passed. In his counter affidavit the District Magistrate gives no explanation why he did not consider it necessary to detain the petitioner, when he passed the to earlier detention orders, or what new development took place after the passing of those two detention orders, which persuaded him to believe that the detention of the petitioner was necessary. 27. The only new development discernible from the record is that the police made a request for the detention of the petitioner in their third report, that is after the requests for the detention of the other two batches were made. In the circumstances it is difficult to avoid the inference that the District Magistrate had not really applied his mind to the matter and that lie went on passim: one detention order after another mechanically at the behest of the police. The genuineness of the satisfaction recorded by the District Magistrate, in our view, is, in the circumstances, open to serious doubt. 28. This suspicion is further strengthened by the fact that the District Magistrate does not appear to have made any effort to see that the order passed by him was executed without unnecessary delay. There is nothing to show that the petitioner was absconding or concealing himself. If that had been so action under Section 7 of the National Security Act would have been taken. Admittedly no such action was taken and the detention order was served on the petitioner when he surrendered in court as much as five months later. The only explanation for this inordinate delay in the execution of the order offered by the District Magistrate in his counter-affidavit is that the police was 'trying' to arrest the petitioner during all this long period. This is hardly convince. This delay again casts serious doubt on the genuineness of the satisfaction recorded by the District Magistrate. In Sheikh Serajul v. State of West Bengal, AIR 1975 SC 1517 the Supreme Court has held that if there is delay in passing the order of detention and in actually arresting the detenu, the genuineness of the 'subjective satisfaction' of the detention authority may be doubted, and in the circumstances mentioned above, we are of the opinion that it is difficult to take any other view. 29. For the foregoing reason. 29. For the foregoing reason. we are of the opinion that the impugned order cannot be sustained and must he quashed. 30. The petition is accordingly allowed. The petition hall be set at liberty forthwith unless wanted in any other connection.