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1993 DIGILAW 610 (ALL)

RAJJU ALIAS RAJ NARAIN BUDHAULIA v. UNION OF INDIA

1993-10-14

J.K.MATHUR, R.K.AGRAWAL

body1993
J. K. MATHUR, J. This petition for habeas corpus under Article 226 of the Constitution seeks quashing of an order passed on 27-4-1993 by the District Magistrate, Hamirpur under Section 3 of the National Security Act, requiring the petitioner to be detained. 2. The grounds furnished to the petitioner disclose that on 5-3-1993 Anis and Chunna with their mother and the appellant were travelling in a bus from Rath to Orai. As it reached near a temple in village Etayal a white Maruti van came before the bus and stopped it. The petitioner and others got into the bus, they were armed with rifle and guns and dragged Anis, Chunna and Hanif. They shouted for help but none dared to help them. These three persons were taken out from the bus and put in the Maruti van. The persons in the bus were threatened. The three persons were taken into the Jungle and at a distance of one furlong, two of them were made to put their clothes off. Anis and Chunna were shot while Hanif escaped. He concealed himself during the day being naked and then went to his house and thereafter to the police station, in the meantime the Chowkidar of village Sarseda found the dead bodies and reported about them at the police station. The petitioner surrendered himself before the Special Judge at Jhansi on 6-3-1993. He was transferred to Hamirpur. The petitioner and other accused were remanded to the police custody and they made statements leading to certain recoveries. On 7-4-1993 while coming to Hamirpur from Jhansi the petitioner managed to go to Rath and called the driver, conductor and a witness of the offence and obtained affidavit in his favour. Since then these persons have not been traced. One of the witnesses travelling in the bus was also threatened by him. The petitioner had also committed the murder of one Ayub in 1990 and had thrown his body on the road to terrorise the people. The Muslims of the locality are feeling insecure and have been terrorised by the acts of the petitioner. 3. The detention was challenged firstly on the ground that extranuous matter had been considered by the detaining authority, that relevant material had not been considered, showing non-application of mind and that the incident could not have resulted in disturbance of public order. 4. 3. The detention was challenged firstly on the ground that extranuous matter had been considered by the detaining authority, that relevant material had not been considered, showing non-application of mind and that the incident could not have resulted in disturbance of public order. 4. In respect of first contention, it was pointed out that the life sketch of the petitioner was placed before the detaining authority containing a number of allegations against the petitioner in" respect of which no material was available for producing before the detaining authority. Annexure No. 12 contains the said life sketch. It mentions amongst others that the peti tioner had been elected as a President of Bar Association because of his terror, that he was a member of Raju Bhatnagar gang and had become its leader after the death of Raju Bhatnagar. It is also stated that he was right-hand man of Charls Shobhraj, a notorious international criminal and that he used to harbour and help Raju Bhatnagar. He joined him in a number of criminal interprises and committed a number of abductions, dacoities murders etc. His main modus was to demand money after kidnapping. He then became a member of the Congress party and obtained a Law Degree. It also gave out a number of cases which had been registered against the petitioner, and that the petitioner had grabbed huge area of land. 5. The petitioner has alleged that there was no material available with the sponsoring authority or the detaining authority to show that the petitioner had any connection with Charles Shobhraj or Raju Bhatnagar or the manner in which he had become the President of the Bar Association. There was also no material to show that he had grabbed land aforesaid. All these facts which went to instil prejudice against the petitioner were considered by the detaining authority, it is alleged, without there being any material to support and it was, therefore, urged that the order of detention was based on extranuous material. 6. On behalf of the detaining authority it was said in the affidavit filed by him that his satisfaction was not influenced by any material other than the one mentioned in the grounds of detention and that these facts were not taken by him into account. 7. The learned Counsel for the petitioner has placed reliance on the case of Vashisht Narain Karwaria v. State, 1990 SCC (Crl) 372. 7. The learned Counsel for the petitioner has placed reliance on the case of Vashisht Narain Karwaria v. State, 1990 SCC (Crl) 372. In this case also there were certain allegations made against the detenu in the report of the sponsoring authority saying that he was a hardened criminal and had a gang and also that there had been number of cases registered against him at different police stations. A similar argument raised on behalf of petitioner was also resisted in that case on the similar ground that the detain ing authority had not considered any material other than the material referred to in the grounds of detention: "the above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the dentenu are registered in various police stations and that he is in the habit of committing offences. No doubt, these avernments are not made mention of in the grounds of detention. But cap it be said that these materials placed before the authority might not have influenced the mind of the detaining authority in taking the decision of detaining the detenu ? In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satis faction to take the decision of directing the detention of the detenu. As rightly pointed out by Mr. Jain, had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order. Therefore, we have to hold that the detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order. There are several pronouncements of this Court, on this point, of which we will make mention of the following decisions: Ram Krishna Paul v. Government of West Bengal, 1972 (1) SCC 570 ; Pushpa v. Union of India, 1980 Supp SCC 391 ; Merugu Satyanarayana v. State of A. P,, 1982 (3) SCC 301 ; Mahboob Khan Nawab Khan Pathan v. Police Commissioner, 1989 (3) 568. " In this case also the argument that the allegations about the character of the petitioner and his activities leading to the commission of the crime which were made a ground for his detention could not be said to be such as would not have influenced, the mind of the detaining authority in coming to the conclusion whether it was necessary to detain the petitioner and they being not backed by any material what so ever, the order of detention is rendered invalid. 8. The learned Government Advocate placed strong reliance on the case of Victoria Fernandes v. Lalmal Sawma, AIR 1992 SC 687 . In this case the three incidents, mentioned in the g rounds of detention supplied to the petitioner were found not to be sufficient for the detention. The detaining authority had also filed an affidavit that the Annexure B which contained the details of the earlier three incidents had not been considered by him in passing the order of detention. 9. It was urged on behalf of State that these incidents could also be the order of detention though these was rejected by the order of detention should justify itself taken into consideration for justifying the order were not detained in the grounds. This contention Supreme Court which found that the only on the grounds which have been mentioned and supplied to the detenu. 10. On the basis of this decision, it was urged that the incidents which had not been mentioned in the grounds of detention can also not be considered for finding whether the detention order could rest on the grounds mentioned validly. 11. This case is on entirely different facts. In this case the contention which was being considered by the Supreme Court was that when an order is explicitly based on certain grounds, it could not be justified on grounds other than the ones mentioned even if. such grounds were mentioned by the sponsoring authority. 12. In the present case, however, the point in issue is entirely different. There are certain allegations made against the detenu which allegations do not have the support of any material. They have a positive potency, as a matter of fact to influence the mind of the detaining authority. In such a situation the order cannot be justified on the ground that it could validly only on the grounds pf detention furnished to the detenu, 13. They have a positive potency, as a matter of fact to influence the mind of the detaining authority. In such a situation the order cannot be justified on the ground that it could validly only on the grounds pf detention furnished to the detenu, 13. This case cannot dilute the ratio of Vashisht Nanain Karwaria, (supra) which explicitly holds that in these circumstances the order of detention will suffer from the voice of consideration of extranuous material, vitiating its validity. 14. It was also urged on behalf of petitioner that all of 23 cases was produced before the detaining authority to show that those cases were pending against the detenu while in fact he had already been acquitted in ten of those cases and in one case no charge-sheet was filed against him as no evidence was said to be available. These facts, it was urged were not placed before the detaining authority, again vitiating the order of detention for non-consideration of relevant material. 15. In view of fact that we have found that the order of detention suffers from consideration of extranuous material and stands vitiated, it is not necessary to consider the other points. 16. As a result, this petition is allowed. The order of detention passed against the petitioner on 27-4- 1993, as contained in Annexure 1 is hereby quashed. The petitioner shall be released forthwith unless required in connection with some other case. Petition allowed. .