SYED MOHAMMED ASLAM v. STATE OF U. P. — 1984 DIGILAW 1015 (ALL)

S. I. JAFRI, J. ( 1 ) BY this petitioner under Article 226 of the Constitution of India, Syed Mohammed Aslam, the petitioner, questions the validity of his continued detention by an order dated 28/8/1984 of the District Magistrate, Aligarh, passed under Section 3 (8) of the National Security Act, 180 (hereinafter referred to as the Act ). ( 2 ) THE petitioner is a resident of 12, Ahmed Nagar, Waris Manzil, Dodhpur, Aligarh. In a report lodged at the Police Station, Civil Lines on 22/8/1985 under Sections 147, 118, 149 and 307 I. P. C. and registered as crime case No. 405, it is alleged that the petitioner with five others committed the aforesaid offences at the hotel of Riaz Ahmad Sherwani on 22/8/1984 at about 9 P. M. On the same evening the petitioner was arrested and sent to jail. Before the petitioner could secure his release on bail, the impugned detention order was passed by the District Magistrate, Aligarh (hereinafter referred to as the detaining authority) on 18. 8. 1984 and on the same day it was served on the petitioner in jail. ( 3 ) ON 12. 9 1984 the petitioner made a representation against his detention which was sent the same day to the State Govt. with the comments of the detaining authority which was received there on 13. 9. 1984. On 17. 9. 1984. it was placed before the Advisory Board. It was rejected by the Chief Secretary of the State Govt. on 24. 9. 1984. The order was further confirmed by the State Govt. on 23. 10. 1984 after examining the report dated 1. 10. 1984 of the Advisory Board received by the State Govt. with the covering letter of the Registrar, Advisory Board dated 11. 10. 1984. On 5. 9. 1984 the papers were also sent to the Central Govt. -. ( 4 ) THE basis of the impugned order as communicated to the petitioner is that on 22. 8. 10. 1984 of the Advisory Board received by the State Govt. with the covering letter of the Registrar, Advisory Board dated 11. 10. 1984. On 5. 9. 1984 the papers were also sent to the Central Govt. -. ( 4 ) THE basis of the impugned order as communicated to the petitioner is that on 22. 8. 1984 at about 9 P. M. the petitioner and five others armed with pistols and other weapons went to the hotel of Riaz Ahmed in the Civil Lines of Aligarh and made murderous assault on Riaz Ahmed (the proprietor of the hotel) injuring him gravely and left that place after terrorizing the general public by firing two or three rounds in the air followed by threats addressed to those who were present there that they would also meet the same fate if any of them dared to come forward or dared to appear subsequently as a witness against them. The shop keepers of the nearby shops closed their shutters and ran away. This daring incident has thus created a panic in that locality. ( 5 ) THE petitioner has denied the allegations and has challenged the order of his delention on the ground that the allegation against him is not only false but it is also not germane to public order. The solitary incident does not in any way affects public at large but affects only law and order and it cannot, therefore, form the basis of his detention. ( 6 ) SHRI Markanday Katu, the learned counsel for the petitioner, also referred to a statement of the victim of the incident viz. Riaz Ahmad made before a Magistrate on 23. 8. 1984 to be used by the prosecution as his dying declaration in the event of his succumbing to his injuries (a copy of which is Annexure 4 to the petition) which contained a version of this incident not consistent with the version contained in the F. I. R. (Annexure 1 to the petition) insofar as the (a) time of occurrence (b) manner of assault, (c) presence of witnesses etc. It is submitted by him that this statement of Riaz Ahmad dated 23. 81984 (hereinafter referred to as purported dying declaration) was not placed before detaining authority when he passed the impugned order on 28. 8. It is submitted by him that this statement of Riaz Ahmad dated 23. 81984 (hereinafter referred to as purported dying declaration) was not placed before detaining authority when he passed the impugned order on 28. 8. 1984 even though this purported dying declaration of Riaz Ahmed was then in existence and the State was aware of the inconsistency in the versions. Since this inconsistency was fatal, the. detaining authority would not, in all probability, have passed this order. Since the purported dying declaration, which was relevant in the matter, was concealed from the detaining authority, the impugned order is vitiated on this ground also. The learned counsel for the petitioner attacked the impugned order also on the ground of its having being passed Inechanically (if not malafide) without the necessary application of mind. He contended that, as is evident from the order itself, the release of the petitioner on bail was fairly anticipated. A report was then made to the District Magistrate to thwart the release of the petitioner on bail by getting him detained and thereby circumvent the jurisdiction of the Courts. It is for this reason also that the purported dying declaration of Riaz Ahmad was cancealed from him by the reporting authority. The detaining authority blindly accepted the report of the reporting authority and passed the detention order mechanically. ( 7 ) THE learned counsel for the State vehemently challenged the above contentions of the petitioners counsel. According to him the incident did affect the public order and it is not a question of mere law and order even though there is no other past incident of this nature against the petitioner. He also submitted that even if the purported dying declaration of the victim dated 23. 8 1984 was not before the detaining authority and the order of detention, which was passed without its consideration, is not vitiated. This Court is not competent to sit in appeal over the subjective satisfaction of the detaining authority and examine it after taking into consideration the purported dying declaration which was not before the detaining authority. In this connection he relied upon a decision in State of Gujarat v. Adam Kasam Bhaya. 1 ( 8 ) WE are not in agreement with the learned State Counsel that the incident alleged against the petitioner affects public order. In this connection he relied upon a decision in State of Gujarat v. Adam Kasam Bhaya. 1 ( 8 ) WE are not in agreement with the learned State Counsel that the incident alleged against the petitioner affects public order. While considering this question it may be borne in mind that on the day of occurrence i. e. on 22. 8. 1984, the circumstances prevailing at Aligarh were normal. There was no grievance against the petitioner. It was only on the night of 22. 8. 1984 that the petitioner and five others are alleged to have made murderous assault on an individual in the Civil Lines of Aligarh. The petitioner will be punished for the act, if proved against him at the trial. His detention on this ground can be justified only if this incident, in any way, affects the community or the public at large. If such a solitary incident involving an individual has no potentiality of affecting the tranquility of the community or public at a large, it cannot be said to affect the public order even if during the same incident, the petitioner had committed acts to deter the onlookers from intervening in the incident or from appearing as a witness against him at the trial. The entire transaction is one and is nothing but only disturbance of law and order. A mere disturbance of law and order is not sufficient for an action under the National Security Act. We are also not inclined to agree with the learned State counsel that the impugned order of detention has been passed to thwart future acts of the petitioner in terrorising the on lookers so that they may not appear as witnesses against him at the trial. Such a contention, if accepted, only leads to an inference that the petitioner will tamper with the prosecution witnesses if he is outside the jail. In that case also the detention order cannot be held to have been passed to prevent subversion of any public order. It can be said only to be in the aid of maintenance of law and order. Therefore, the order of detention of the petitioner is, for these reasons, not valid. In that case also the detention order cannot be held to have been passed to prevent subversion of any public order. It can be said only to be in the aid of maintenance of law and order. Therefore, the order of detention of the petitioner is, for these reasons, not valid. ( 9 ) WE shall not advert to the next argument of the petitioners counsel based on the purported dying declaration of victim of the incident containing version not consistent with the version contained in the F. I. R. The inconsistencies are such which, according to the petitioners counsel are fatal, and consequently material which were necessary to be placed before the detaining authority for his consideration before be passed the order. In paragraph 7 of his counter affidavit the detaining authority has alleged that :- Moreover the statement of the injured i. e. Rivaj was not before the deponent and has never based his satisfaction upon that documents as such there is no question of comparing its contents with that of first information report from which the facts were deduced by the deponent. ( 10 ) AFTER examining the F. I. R. (Annexure to the petition) and the purported dying declaration of Riaz Ahmed (Annexure 41 to the petition) we agree with the learned counsel for the petitioner that the purported dying declaration of the victim is a material which was necessary to be brought to the notice of the detaining authority. In other words, the statement was a relevant matter because the possibility of a contrary decision of the detaining authority after a consideration of this material cannot be ruled out. We do Dot agree with the learned counsel for the State that this court is not competent to notice the purported dying declaration of the victim Riaz Ahmad for examining the satisfaction of the detaining authority. It is contended by the learned State counsel that the satisfaction of the detaining authority is subjective in nature and is based on the material placed before him. The sufficiency or otherwise of the material on which the satisfaction of the detaining authority is based is not open to the scrutiny of the Court. It is contended by the learned State counsel that the satisfaction of the detaining authority is subjective in nature and is based on the material placed before him. The sufficiency or otherwise of the material on which the satisfaction of the detaining authority is based is not open to the scrutiny of the Court. A similar question was raised in Nanha Singh v. Superintendent District Jail, Kanpur and others2 in which it has been observed in the following words; It is true that it is now well established that the satisfaction of the detaining authority in this regard is a subjective Satisfaction and that this Court can neither examine the sufficiency of the material on which the satisfaction of the detaining authority is based nor can it substitute its own satisfaction place of the detaining authority, In our opinion, it is not necessary for us to advert to various decisions cited by the learned counsel for the respondents in this regard However, it does not follow from these decisions that the only ground on which said satisfaction of the detaining authority can be questioned before this Court is that the material relied upon by the detaining authority is in the eye of law, no material. It is now well settled that apart from the ground that the subjective satisfaction of the detaining authority is not based on no material, the validity of the said satisfaction can be questioned on a number of other grounds as well. . . ( 11 ) AFTER making the above observations their lordships have quoted several other cases in support of the above observations as examples which need not be reproduced. Suffice it to say that it is now well settled that where subjective satisfaction Of the detening authority Cannot be examined its validity can he questioned on a variety of grounds. The ground that a material or a document which had the potentiality of affecting the decision of detaining authority while passing the detention order was suppressed from him is a ground which can be taken into consideration by the court as a relevant fact. The ground that a material or a document which had the potentiality of affecting the decision of detaining authority while passing the detention order was suppressed from him is a ground which can be taken into consideration by the court as a relevant fact. ( 12 ) WHILE relying Upon the decision in State of Gujarat v. Adam Kasam Bhaya3 the learned counsel for the State contended that this Court while considering such a document which was not before the detaining authority at the time of passing the detention order is sitting in appeal over his subjective satisfaction, which is not permitted by law. Therefore, when this Court is examining the purported dying declaration it is only examining the satisfaction of the detaining authority as if it is court of appeal. We do not agree with this contention of learned counsel for the State also. In the State of Gujarat v. Adam Kasam Bhava (supra) Adam Kasam Bhaya was detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act thereinafter referred to as the COFEPOSA Act on the ground that he along with three others found in a trawler containing contraband goods. Adam Kasam Bhaya was also considered to be a member of the crew. He made a statement on 21st Jan. 1979 before the Customs Officer that he was a member of the crew but he had no knowledge that there was contraband goods in the trawler. He had stated that he was engaged as a member of the crew by its owner on the daily wage basis at the rate of Rs. 10/- per day. A Division Bench of the Gujarat High Court quashed the order of his detention on accepting this plea that Adam Kasam Bhaya, when joined the vessel as member of the crew, had no knowledge that the vessel was to be, used for smuggling activity. While giving this finding the Gujarat High Court has observed that the satisfaction reached by the detaining authority cannot be said to be genuine on the material which was placed before the detaining authority. ( 13 ) IT is obvious from the above observation that the Gujarat High Court had examined the materials which were placed before the examining authority and had come to conclusion that the satisfaction of the detaining authority cannot be said to be genuine an these materials. ( 13 ) IT is obvious from the above observation that the Gujarat High Court had examined the materials which were placed before the examining authority and had come to conclusion that the satisfaction of the detaining authority cannot be said to be genuine an these materials. It is in such a circumstance that Supreme Court in the State of Gujarat v. Adam Kasam Bhaya (supra has observed that the High Court had misdirected itself to its jurisdiction to. inquire into the order of the detention by an authority after examining the materials placed before the detaining authority and by importing the rule of criminal jurisprudence that the guilt of an accused must be proved beyond a reasonable doubt. ( 14 ) IN the instant case we are not embarking upon any such venture and examiningmaterials which were placed before the detaining authority with a view to determine whether the same was erroneous. In other words, we are not examining the correctness or otherwise of the satisfaction of the detaining authority in this case. We are only considering validity of his detention order on account of suppression of a relevant material/document and the impact which such suppression has on the validity of the order. While doing so, we have noticed the purported dying declaration of the victim of the incident for considering its relevancy. The purported dying declaration of the victim of the incident was in existence on the date when the order of detention was passed. Its contents were also known to the State Govt. It was then the duty of the State Govt. to have placed that purported dying declaration of the victim before the detaining authority in older to enable it to consider whether, in the face of that statement, order of detention could be passed against the petitioner despite that statement. In other words. what exactly is being considered in this case is whether the reporting authority was under a duty to place the purported dying declaration also before the detaining authority and whether non compliance of this duty vitiates the detention order. Consequently the decision of the State of Gujarat v. Adam Kasilm Bhaya (supra) is not attracted by the facts of this case. We are of the opinion that this Court is competent to enter into these questions. Consequently the decision of the State of Gujarat v. Adam Kasilm Bhaya (supra) is not attracted by the facts of this case. We are of the opinion that this Court is competent to enter into these questions. As seen above, if a document is relevant to the questions on which the detaining authority had to base his. subjective satisfaction and such a document was in existance on the detention date of the order within the knowledge of the reporting authority the reporting authority was under a duty to have placed that document before the detaining authority and non-compliance of such a duty would invalidate that order. Similar view has been taken by the Supreme Court in Mohd- Shnkeel Wahid Ahmed v. State of Maharashtra and others3 which was a case under the COFEPOSA Act and in which failure of the State Govt. to place highly relevant and important piece of material before the detaining authority was held to vitiate the order of detention. It was held in that case that in such a case the detaining authority is deprived of anopportunity, to apply its mind to a piece of evidence Which was relevant even though not binding. In other words the detaining authority did not, because it could not, apply its mind to a circumstance which, reasonably, could have affected its decision whether of not to pass an order of detention against the petitioner. ( 15 ) WE are, therefore, of the (pinion that the detaining authority in this case was deprived of an opportunity to apply its mind to the statement made by the victim on 23. 8. 1984 before a Magistrate which was relevant piece of evidence even though not binding on him. The order of detention of the petitioner is, therefore, bad on this ground also. ( 16 ) WE will now refer to another attack made by the counsel for the petitioner on the impugned order. He has contended that, as evident from the detention order itself, release of the petitioner on bail was fairly in anticipation of the detaining authority. It was so mentioned by him in the impugned order because such a report was made to him by the reporting authority. He has contended that, as evident from the detention order itself, release of the petitioner on bail was fairly in anticipation of the detaining authority. It was so mentioned by him in the impugned order because such a report was made to him by the reporting authority. It is, therefore, obvious that the reporting authority had made a report in anticipation of release of the petitioner en bail with the purpose of setting him detained and thereby thwart his release on bail. The detaining authority has passed this order mechanically without applying its mind to this aspect of the matter and while doing so he has only circumvented jurisdiction of tile Court. It cannot be denied that conduct of the reporting authority in not placing the statement of the victim dated 23. 8. 1984 i. e. purported dying declaration affords a legitimate ground to the petitioner to raise such a contention. In the case of Bhutnath Mate v. State of West Bengal it has been observed: The immune expedient of throwing into a prison cell one whom the ordinary law would take care of merely because it is irksome to undertake the inconvenience of proving guilt in Court is unfair abuse. If the reporting authority of the State Govt. bad taken care to perform his duty of placing the aforesaid statement of the victim dated 23/8/1983 such a contention could not have probably been raised by counsel for the petitioner. It is strong that the reporting authority of the State Govt. ignored this aspect of the matter even after the decision of a Division Bench of this Court dated 28/3/1984 in H. C. Writ Petition No. 1646 of 1984. Nanha Singh v. Superintendent District Jail, Kanpur and others. The facts as found in this case should, we hope, will be taken note of, not only by the State Govt. , but by the reporting authorities who are entrusted with the task of submitting reports before the detaining authorities for proceeding under the National Security Act. They must realise that detention of a person without trial is a curb on his liberty enshrined by the Constitution and is an evil to be suffered but to no greater extent and no greater measure than is imminently necessary and that also in the interest of country and community at large and not as an aid to the maintenance of law and order. ( 17 ) IN the result, we find that the impugned order of detention of the petitioner, for the reasons discussed above, is invalid and the continued detention of the petitioner on the basis of such an order cannot be upheld. ( 18 ) THE petition, therefore, succeeds and is allowed. The petitioner, Syed Mohammad Aslam, shall be set free forthwith unless his detention is otherwise required in connection with some other case. Petition allowed .