ZAKI AHMAD v. STATE OF UTTAR PRADESH — 1988 DIGILAW 61 (ALL)

MADAN MOHAN LAL, J. ( 1 ) THIS is a habeas petition filed by Zaki Ahmad against an order of detention dated 10. 7. 1987 passed by the District Magistrate, Aligarh under section 3 (2) of the National Security Act. The petitioner was already in jail in connection with some other cases. The order of detention was served on the petitioner in jail on the same day, i. e. 10. 7. 1987. The case of the petitioner was referred to the Advisory Board on 22/7/1987. The petitioner had made representation to the State Government against his detention order on 29/7/1987. The said representation was sent to the State Government on 31/7/1987. The same was received by the State Government on 1/8/1987, 2/8/1987 was Sunday. The said representation was placed before the Advisory Board on 3/8/1987. The representation was rejected by the State Government on, 12/8/1987. Hearing before the Advisory Board took place on 18/7/1987. The Advisory Board submitted its report against the petitioner on 25/8/1987. The detention order was confirmed by the State Government on 27. 8. 87. ( 2 ) ACCORDING to the grounds of detention Sri Chandra Pal Singh, Station Officer, Police Station Gandhi Park, Aligarh, received a message on 26. 6. 87 at about 7. 15 p. m. that the petitioner was sitting near company garden and was waiting for his companions and that he was in possession of unlicensed arm and ammunition. On the same the said Station Officer organised a raid. On being chased by the police party the petitioner fired a shot with a revolver on the police party as a result of which the people started running either and thither. The, truck drivers along with trucks started to run and the shopkeepers in the area closed their shops. The firing made by the petitioner created panic among the people. The petitioner was, however, overpowered at about 7. 45 p. m. on the same day and a revolver of 38 bore and some live cartridges were recovered from his possession. Case Crime No. 169 of 1987 under section 307 I. P. C. and Case Crime No. 170 of 1987 under sections 25/27 of Arms Act were registered against the petitioner. ( 3 ) THE petitioner was interrogated by the police on 27. 6. 87 when the petitioner made a confession with regard to his participation. Case Crime No. 169 of 1987 under section 307 I. P. C. and Case Crime No. 170 of 1987 under sections 25/27 of Arms Act were registered against the petitioner. ( 3 ) THE petitioner was interrogated by the police on 27. 6. 87 when the petitioner made a confession with regard to his participation. In the incident which had taken place in the City of Aligarh On 21. 6. 87, resulting in the registration of Case Crime Nos. 159, 160 and 161 of 1987. The petitioner had confessed that on 18. 6. 87 one Bashir, father of Aqil, had called him at his house and after telling him that the police had got his son Aqil disappeared or had killed him in an encounter, stated that revenge had to be taken from the police. The petitioner further confessed that on the same he and his associates on 21. 6. 87 at about 9 p. m. pelted brick-bats, upon the government vehicles, including that of the police and of P. A. C. , and caused damage to them. They assaulted one home-guard personnel. The petitioner and his associates also set fire to the shops, situated at Mohammad Ali Road, as a result of which 11 shops were completely gutted. They gave knife blows to police personnels and passersby, who were going on by cycles and rickshaws. The person who sustained injury in the rickshaw succumbed to his injuries. The said incident had created a reign of terror and had disturbed the even tempo of the life of the community. ( 4 ) THE learned counsel for the petitioner has challenged the detention order on various grounds. Firstly, he has urged before us that when the petitioner was already in jail from 26. 6. 87 there could have been no apprehension that the petitioner would carryon his criminal activities in the area. ( 4 ) THE learned counsel for the petitioner has challenged the detention order on various grounds. Firstly, he has urged before us that when the petitioner was already in jail from 26. 6. 87 there could have been no apprehension that the petitioner would carryon his criminal activities in the area. In this context he has referred to us Ramesh Yadav v. District Magistrate, Etah and others, in which it has been observed that where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would again carryon his criminal activities in the area the same was not proper and that if the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. It was further observed that merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed. The aforesaid case of Ramesh Yadav (supra) has been considered by the Honble Supreme Court in Poonam Lata v. M. L. Wadhawan and another, and it was observed that the principles enunciated in the said case of Ramesh Yadav shall have to be judged and applied in the facts and the circumstances of each case and that the fact that the detenu is already in detention does not takeaway the jurisdiction of the detaining authority in making an order of preventive detention. It was also observed that all that was necessary in a case of that type is to satisfy the Court when detention is challenged on that ground that the detaining authority was aware on the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In this case before us Sri Lalit Srivastava, District Magistrate, Aligarh, who passed detention order, has filed his counter affidavit from which it is clear that he was aware that the petitioner was in jail and had moved an application for bail and that he was satisfied that the petitioners detention was essential to be made as he was likely to come out from jail. In our opinion, both the aforesaid conditions, as laid down by the Honble Supreme Court in the case of Poonam Lata (supra), i. e. the detaining authority must be aware of the fact that the detenu was already in jail and he was subjectively satisfied that his order of detention was necessary, were fulfilled in this case. The learned counsel for the petitioner has also urged before us that in fact the application for bail was not moved by the petitioner. In this respect the District Magistrate, Aligarh in his affidavit has deposed that the petitioner had moved an application for bail on 2. 7. 87 and that he had received a copy of the bail application, along with the police reports. In our opinion, when it b an admitted fact that an application for bail was moved and also when the District Magistrate has stated in his affidavit that the application for bail had been moved by the petitioner we have no reason to doubt the submission of the District Magistrate that he was subjectively satisfied that although the petitioner was in jail yet his order of detention had become necessary. ( 5 ) THE learned counsel for the petitioner has further referred to us Gulab Mehra v. State of A. P. and others, and has urged that when the petitioner was in jail custody and he was not likely to be released on bail it was not possible to contend that there could be satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities. Which would jeopardize the public order in this respect we have already observed that an application for bail had been moved by the petitioner and that the detaining authority was satisfied that although the petitioner was in jail yet passing of order of detention had become necessary. Besides, it may be observed that in the said case of Gulab Mehra (supra) the District Magistrate had not come forward to file his own affidavit. Instead thereof Sri D. P. Ojha, Station Officer of the Police Station had filed a counter affidavit that the District Magistrate had passed the detention order on the apprehension that the appellant was likely to be released on bail in the near future and that if the appellant was bailed out, the public order problem would become worse. Instead thereof Sri D. P. Ojha, Station Officer of the Police Station had filed a counter affidavit that the District Magistrate had passed the detention order on the apprehension that the appellant was likely to be released on bail in the near future and that if the appellant was bailed out, the public order problem would become worse. On the same the Honble Supreme Court had observed that the Sub-Inspector arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate, on whom the power was conferred by the Act. It was found that there was nothing to show that there was awareness in the mind of the District Magistrate of the fact that the appellant was in jail at the time of clamping of the order of detention and that the detaining authority was satisfied in considering his antecedents and previous criminal acts, that there was likelihood of his indulging in criminal activities jeopardising public order if he was enlarged on bail etc. On the same the order of detention was held to be invalid. This is not the case here. In this case the District Magistrate, who passed the detention order, has come forward to file his counter affidavit which shows that he was not only aware of the fact that the petitioner was in jail but also that he was satisfied that inspite of his being in jail the passing of the detention order had become necessary. 5. The next point which the learned counsel for the petitioner has urged before us is that the confession alleged to have been made by the petitioner on 27. 6. 87 was not admissible and the detaining authority could not have placed reliance upon the same. In our opinion, the said argument is misconceived. Under section 25 of the Evidence Act no confession made to a police officer can be proved against a person accused of any offence. In this case the confession made by the petitioner was not sought to be proved against him as a person accused of any offence. The said section 25 merely forbids the use of a confession made by an accused person before the police officer in trial of the case for having committed an offence. In this case the confession made by the petitioner was not sought to be proved against him as a person accused of any offence. The said section 25 merely forbids the use of a confession made by an accused person before the police officer in trial of the case for having committed an offence. The said section does not forbid use of such a statement in a matter in which the person who had made the confession was not being tried for having committed an offence. It bas been observed in Mahata Singh Natha Singh v. Het Ram Pakhar and another that the statement made under section 25 of the Evidence Act would be admissible in a civil case brought against the accused for recovery of the articles or for damages for trespass and the like proceedings. Similarly, in Pohiu v. Emperor, it has been held that there was no bar either in section 25 of the Evidence Act or section 162 Cr. P. C. to a confessional statement of an accused made to a police officer during investigation being used for the purpose of section 517. Cr. P. C. to determine firstly, whether the property was the property regarding which offence appeared to have been committed, and, secondly, for determining the person to whose custody it should be delivered. In our opinion, when in the proceedings under section 3 (2) of the National Security Act it was not the guilt of the petitioner which was to be determined but the action was Bought to be taken with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, the aforesaid confession could be relied upon by the detaining authority. There was thus sufficient material in the shape of the aforesaid confession before the detaining authority on the basis of which he could pass the detention order in question. ( 6 ) THE learned counsel for the petitioner has further urged before us that in the grounds of detention the necessary particulars of confession were not given and that the petitioner was prejudiced in making a proper representation against his detention order. In our view the said submission has no force. We have been the record and the same shows that the confession of the petitioner was recorded in G. D.- No. 11 at 7. 10 a. m. on 27. 6. 87. In our view the said submission has no force. We have been the record and the same shows that the confession of the petitioner was recorded in G. D.- No. 11 at 7. 10 a. m. on 27. 6. 87. The confession was made before the Station Officer. ( 7 ) THE learned counsel for the petitioner has also urged before us that acts attributed to the petitioner related to law and order problem and not to a public order. Whereas we are satisfied that the incident which took place on 26. 6. 87 and in which the petitioner had fired a shot at the police party did not relate to a public order but was purely a matter of law and order because it was confined to police only and could have no impact upon a large section of the community, the acts narrated and admitted by the petitioner in his confession on 27. 6. 87 definitely touched the domain of public order. As already observed, the petitioner made a. confession that on 2 1. 6. 87 at about 9 p. m. he, along with his associates, had not pelted brick bats upon government vehicles and caused damage to them and assaulted one home guard personnel but also he set fire to a number of shops as a result of which 11 shops were completely gutted. The petitioner and his companions also gave knife blows to police personnel and the persons who were going on cycles and rickshaws. The said acts of the petitioner disturbed and dislocated the even tempo of the life of the community. In such a situation the passing of the detention order in question was fully justified. As observed in Gulab Mehra v. State of U. P. and others (supra) whether an act amounts to a breach of law and order or a breach of public order solely depends on its extent and. reach to the society. If the act is restricted to particular individuals or a group of individuals, it breaches the law and order problem but if the effect and reach and potentiality of the act arc, so deep as to affect the community at large and/or the even tempo of the community then it becomes a breach of the public order. If the act is restricted to particular individuals or a group of individuals, it breaches the law and order problem but if the effect and reach and potentiality of the act arc, so deep as to affect the community at large and/or the even tempo of the community then it becomes a breach of the public order. In this case before us, as already observed, the aforesaid acts of the petitioner were not restricted to particular individuals or a group if individuals but the same affected the community at large and disturbed the even tempo of the community. The said acts amounted to breach of the public order. ( 8 ) THE learned counsel for the petitioner has lastly urged before us that the impugned order of detention was malafide passed against the petitioner. In this respect it may be observed that the petitioner has not alleged any act of mala fide against any particular official. No such official by name has been impleaded in this case. The petitioner has simply alleged malafide against the police but it may be observed that the order of detention was passed by the District Magistrate, and not by the police. The learned counsel for the petitioner has however, referred to us paragraph No. 3 of the counter affidavit of the District Magistrate in which he has stated that the petitioner had started firing with a revolver upon the police party on 26. 6. 87 and on the basis of the same he has argued that when the petitioner was alleged to have fired only a single shot from his revolver it was too much for the District Magistrate to state that the petitioner had started firing. It may be observed that the word firing means discharging of a fire arm. The District Magistrate did not state that the petitioner had resorted to firings. Therefore, it cannot be said that the District Magistrate tried to exaggerate when he stated in his counter affidavit that the petitioner had started firing. In our opinion, the petitioner has failed to make out any case of prejudice against the detaining authority, i. e. the District Magistrate. ( 9 ) IN the result, we find no merit in this petition and the same is accordingly dismissed. Petition dismissed. .