Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 78 (ALL)

SHARIEF v. DISTRICT MAGISTRATE, PRATAPGARH

2000-01-17

R.D.MATHUR, S.H.A.RAZA

body2000
S. H. A. RAZA, R. D. MATHUR, JJ. ( 1 ) ON 27. 6. 99 the District Magistrate, Pratapgarh, on the basis of the material placed before him arrived at that the subjective satisfaction to detain the petitioner under Section 3 (3) of the national Security Act with a view to prevent him from committing such acts which disturb the public order, peace and tranquillity of the society. ( 2 ) IN the ground of detention. It has been stated that on information received by the police constables that the petitioner has been selling beef (meat of the cow) as result of which the emotions of the Hindu population of the area was enraged. Both the police constables along with other constables reached at the residence of the petitioner at 11. 03 a. m. The petitioner was caught red-handed while selling the meat of the cow. One Mr. Buddu alias Abdul Malik had purchased two kilos of the meat of the cow. At the spot, the instruments for cutting the cow meat, the head of the cow. the meat, and the legs, which were weighing 45 kilos were recovered from the possession of the petitioner which was to be sold. A criminal case bearing No. 52 of 1999 under Section 3/5/8. Prevention of Cow Slaughter Act was registered in police-station maheshganj which was investigated by the Station Officer Sri Bhagrai and Sri Chatpal Singh chauhan. ( 3 ) IN view of the aforesaid Incident, the atmosphere was surcharged with communal passions between the Hindus and Muslims, which is evident from the news item published in Dalnlk jagran on 23. 6. 99. The question which is relevant to be decided in the present writ petition is as to whether the detaining authority was influenced by the antecedent of the petitioner who was alleged to be Involved in similar offences earlier. The grounds for detention reveals that the petitioner even before the said incident was implicated in Case Crime No. 234 of 1996 under sections 3/5/8. Prevention of Cow Slaughter Act and from the perusal of his criminal antecedent/history. It was evident that the petitioner was a man of criminal habit and if he should be left free. It will be prejudicial to public order and tranquillity hence he deserves to be detained. Prevention of Cow Slaughter Act and from the perusal of his criminal antecedent/history. It was evident that the petitioner was a man of criminal habit and if he should be left free. It will be prejudicial to public order and tranquillity hence he deserves to be detained. According to the police report, it has been averred that in between 1991-99 the petitioner was involved in various cases of dacoity. attempt of murder or assault, etc. , several preventive measures were adopted in the past to prevent him from indulging into communal activities as well. Proceedings under U. P. Control of Goonda Act were also Initiated against the petitioner and an history sheet was also opened under the Police Regulations. Regarding the incident dated 22. 6. 99, it was averred in the ground of detention that fear and terror had been created to such an extent that nobody dared to give evidence against the petitioner. It has been positively asserted by the petitioner in paras 10 and 11 of the writ petition that the petitioner was tried for that offence, but he was acquitted of the charge much before the date of passing of the detention order and para 15 of the writ petition Indicated that he was acquitted in Case Crime no. 83 of 1991 under Section 394, I. P. C. , Crime No. 1-A of 1993 under Sections 147/148/149/ 307/504, I. P. C. . Crime No. 38 of 1997 under Sections 323/523. I. P. C. and Crime No. 234 of 1996 under Sections 3. 5, 8. Prevention of Cow Slaughter Act. It was asserted in para 16 of the writ petition that all those cases which have been indicated as pending for trial, the petitioner had been acquitted in those cases. Crime No. 38 of 1997 under Sections 323/523. I. P. C. and Crime No. 234 of 1996 under Sections 3. 5, 8. Prevention of Cow Slaughter Act. It was asserted in para 16 of the writ petition that all those cases which have been indicated as pending for trial, the petitioner had been acquitted in those cases. ( 4 ) IN para 8 of the counter-affidavit, it has been stated that the allegations contained in para 10 of the writ petition are correct Inasmuch as that the District Magistrate on the basis of the past activity of the petitioner was satisfied that if the petitioner was not detained, than he would indulge into activities prejudicial to the maintenance of public order and the said fact was taken into consideration after satisfying that the petitioner would repeat the offence again, if not prevented, and as such the detention order was passed against the petitioner in order to prevent him from indulging into activities prejudicial to the maintenance of public order. ( 5 ) IN para 9 of the counter-affidavit. It was asserted that the contents of paras 11 and 12 of the writ petition require no reply but it is stated that In past also the petitioner committed such act and there was likelihood of the petitioner repeating the same and accordingly the District magistrate after the said satisfaction passed the detention order against the petitioner. ( 6 ) IT was also averred In para 10 of the counter-affidavit that the deponent has considered the involvement of the petitioner in Case Crime No. 234 of 1996 under Sections 3/5/8, Prevention of cow Slaughter Act only as a background/history and not as a grounds of detention. ( 7 ) REGARDING the allegations contained in paras 15 and 16 of the writ petition. It was asserted in para 12 of the counter-affidavit that paras 15 and 16 of the writ petition are not relevant in so. far as the detention order of the petitioner under the Act is concerned. It is, however, stated that 12 cases were registered against the petitioner. ( 8 ) FROM the perusal of the ground of the detention, it is evident that it has been clearly indicated in the ground of the detention that the petitioner had committed an offence. A case was registered against the petitioner in Case Crime No. 234 of 1996 under Sections 3/5/8. ( 8 ) FROM the perusal of the ground of the detention, it is evident that it has been clearly indicated in the ground of the detention that the petitioner had committed an offence. A case was registered against the petitioner in Case Crime No. 234 of 1996 under Sections 3/5/8. Prevention of Cow Slaughter Act, which was pending for trial. The question which requires consideration in the present writ petition is whether due to the withholding of the information that the petitioner was acquitted in Case Crime No. 234 of 1996 under Sections 3/5/8, Prevention of Cow Slaughter act. would have vitiated the order of detention. ( 9 ) IT is well-settled that formation of a subjective satisfaction by the detaining authority is a condition precedent for passing a detention order, but such a detention order may be said to be vitiated materially if the vital fact which would have a bearing on the issue has weighed the satisfaction of the detaining authority one way or the other and had influenced the mind of the detaining authority if certain facts are suppressed or withheld by the sponsoring authority. ( 10 ) NO doubt if one of the ground of detention is vitiated, the detention order passed by a detaining authority would not become invalid if on other ground the detention order can be sustained. ( 11 ) IN the present case in the ground of detention, it has been stated that a Criminal Case No. 234 of 1996 under Sections 3/5/8. Prevention of Cow Slaughter Act, was pending against the petitioner and from the antecedents of the petitioner, it appeared that the petitioner was a man of criminal nature hence, it would be prejudicial to peace and tranquillity, if he would be allowed to remain free. This fact that the petitioner was acquitted in the said case was not denied in the counter-affidavit. If the sponsoring authority was given to understand that the trial of that particular case was pending, then non-placing of that material fact that the petitioner was acquitted from the charge might have Influenced the mind of the detaining authority that the petitioner should be detained for committing an offence on 22. 6. 99 for the reason that he had been committing such offence or offences in the past as well. 6. 99 for the reason that he had been committing such offence or offences in the past as well. ( 12 ) MORE or less in Dhoramdas Shamlal Agarwal v. Police Commis -stoner and another, 1989 scc (Cri) 378. The Honble Supreme Court observed : "thus. It is clear that either the sponsoring authority was not aware of the acquittals of those two cases or even having been aware of the acquittals had not placed that material before the detaining authority. So at the time of signing the order of detention the authority should have been Ignorant of the acquittals. Evidently to get over the plea of the detenu in the writ petition in this regard for the first time in the counter, the detaining authority is giving a varying statement as if he knew about the acquittal of the detenu in both the cases. As ruled by this Court in Shiv ratan Makum v. Union of India "even if a criminal prosecution fails and an order of detention is then made, it would not Invalidate the order of detention because as pointed out by this Court in mohd. Subrati D. State of West Bengal "the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter, the order of detention would not be bad merely because the criminal prosecution has failed". In the present case, we would make stress, not on the question of acquittal but on the question of. non-placing of the material and vital fact of acquittal which if had been placed. would have influenced the minds of the detaining authority one way or the other. Similar questions arose in Sk. Nizamuddtn v. State of West Bengal, in which the detention order was passed under the provisions of Maintenance of Internal Security act. 1971. In that case the ground of detention was founded on a solitary Incident of theft of aluminium wires alleged to have been committed by the detenu. In respect of that Incident a criminal case was filed which was ultimately dropped. 1971. In that case the ground of detention was founded on a solitary Incident of theft of aluminium wires alleged to have been committed by the detenu. In respect of that Incident a criminal case was filed which was ultimately dropped. It appeared on record that the history sheet of the detenu which was before the detaining authority did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from the case. In connection with this aspect this Court observed as follows : "we should have thought that the fact that a criminal case if pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it falls to result in conviction then preventive detention should be restored to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the district Magistrate. " It is true that the detention order in that case was set aside on other grounds but the observation extracted above is quite significant. The above observation was subsequently approved by this court in Suresh Mahato v. Distt. Magistrate. Burdwan and in Asha Devi v. Additional Chief secretary to the Government of Gujarat: In the latter case (i. e. , Asha Devt) it has been pointed out :". . . . If material or vital fact which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority It would vitiate Its subjective satisfaction rendering the detention order illegal. . . . If material or vital fact which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority It would vitiate Its subjective satisfaction rendering the detention order illegal. In Sita Ham Somani v. State of Rajasthan, certain documents which were claimed to have been placed before the Screening Committee in the first instance were not placed before the detaining authority and consequently there was no occasion for the detaining authority to apply Its mind to the relevant material. In the circumstance of that case, a principal point was raised before this Court that there was no application of mind by the detaining authority to those vital materials which were withheld. This Court, while answering that contention observed thus : "no one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not. the appellant would be entitled to be released. " It was further observed in Ramesh v. State of Gujarat and others. 1989 SCC (Cri) 716, that :"withholding of vital fact that detenu had been acquitted in the criminal case referred to in grounds of detention, held, resulted in non-application of mind of the detaining authority to that fact vitiating the order of detention. " ( 13 ) IN view of the fact that a vital Information that the petitioner was acquitted in Case Crime no. 234 of 1996 under Sections 3/5/8. Prevention of Cow Slaughter Act, was concealed or suppressed by the Sponsoring authority and the District Magistrate under an assumption that the said case was pending for trial might have arrived at his subjective satisfaction that it would be detriment in the interest of the public to keep the petitioner free, because his freedom might be prejudicial in maintenance of public order, decided to pass the impugned order. If that vital fact would have been known to the District Magistrate, that the petitioner was acquitted from that charge, he might have or might not have passed the impugned order. If that vital fact would have been known to the District Magistrate, that the petitioner was acquitted from that charge, he might have or might not have passed the impugned order. Hence, we are of the view that Impugned orders suffer from non-application of mind and deserved to be quashed. ( 14 ) IN view of what has been indicated hereinabove a writ in the nature of certiorari quashing the order of detention dated 27. 6. 99 passed by District Magistrate, Pratapgarh is issued. The petitioner shall be released from detention forthwith if not wanted in any other case or cases. .