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Madhya Pradesh High Court · body

2001 DIGILAW 554 (MP)

Shahajad v. State of M. P.

2001-07-31

A.M.SAPRE, J.G.CHITRE

body2001
ORDER (Oral) Chitre, J. -- 1. Detenu Shahajad S/o Rasid has filed this petition through his advocate Shri S.L. Nagar for assailing the detention order passed by the District Magistrate, Indore, dated 16.5.2001 by which detenu Shahajad S/o Rasid Rio 6, Bandra Compound, Chhoti Gwal Toli, Indore, has been detained in view of provisions of section 3(2) of the National Security Act, 1980 (hereinafter referred to as "NSA" for convenience). 2. Few facts need to be stated for the purpose of unfolding the matter and for better understanding it. It appears from the record that the District Magistrate, Indore, got the information that detenu Shahajad S/o Rasid was active worker of Student of Islamic Movement of India (SIMI) and was engaging himself in such activities which were likely to create communal tension at Indore which was likely to cause prejudice to the maintenance of public order. He got the information that the detenu was sticking posters at various places which were exhibiting the speeches of Osma Bin Laden, Saiyyad Salauddin. It is alleged by the detaining authority that the detenu was having relations with ISI and one Khurram Khan Imamat who happens to be a Pakistani citizen. The detaining authority also alleged that the petitioner-detenu created obstructions in arrest of his colleagues named Anwar, Muvin Nagori, Farukh, Ajij Jafar. All those activities have been described in detail in the detention order dated 16.5.2001 which has been annexed as Annexure R/2 to the return filed by the respondents. 3. After the detention of the detenu-petitioner as per respondents' case, the detention order was served on the detenu on 16.5.2001, informing him the grounds of detention on the same date. On 25.5.2001, the case of detention of the detenu was sent to the State Government for approval and on 28.5.2001 the State Government approved the detention of the present detenu. On 29.5 .2001 the report was submitted to the Central Government and on 30.5.2001 a reference was made to the Advisory Board. 4. The Advisory Board, after considering the matter, confirmed the detention of the present detenu and its report is dated 6.6.2001. On 8.6.2001, the respondents received the report from the Advisory Board. The State Government confirmed the detention of detenu in view of the report of the Advisory Board detaining the detenu for a period of one year. The date of the said report is 19.6.2001. 5. On 8.6.2001, the respondents received the report from the Advisory Board. The State Government confirmed the detention of detenu in view of the report of the Advisory Board detaining the detenu for a period of one year. The date of the said report is 19.6.2001. 5. The detenu had submitted a representation addressed to the Home Secretary, Government of M.P., and it is dated 19.5.2001. The copies of the said representation were sent to (i) His Excellency the President of India, (ii) Hon. the Prime Minister of India, (iii) Secretary, Home Department, Central Government, (iv) His Excellency the Governor of the State of M.P. and (v) Hon. the Chief Minister of the State of M.P. His representation was considered by the State Government on 25.5.2001 and the said decision taken by the State Government was informed to the detenu on 30.5.2001. The Government of India considered his representation and the decision taken by the Government of India was informed to the detenu on 26.6.2001. 6. Shri S.L. Nagar assisted by Shri Rajendra Sharma vehemently criticised the action of the detaining authority and submitted that the detaining authority did not follow the provisions of section 3(2) of the NSA and on account of illegal detention of the detenu, his fundamental rights guaranteed by Art. 19, 21 and 22 of the Constitution of India have been infringed. He submitted that the detaining authority was not having sufficient information with it which was allowing it to detain the detenu lawfully. He submitted further that on account of non-compliance of the provisions of section 3(2) of NSA, the detenu was prevented from making effective representation. 7. Shri Nagar further submitted that it was totally wrong on the part of the State Government to empower the Distt. Magistrate, Indore, to detain a person three months prior to the date of detention of the present detenu and that shows that a plan was hatched up for the purpose of detaining the detenu unlawfully. 8. By summing up all and placing reliance on the judgments of the Supreme Court of India, Shri Nagar submitted that the detention order needs to be quashed as contrary to provisions of Constitution and the law. 9. Shri G. Desai, Dy. Advocate General appearing for the respondents assisted by Shri Prakash Verma submitted vehemently for justifying the order of detention. By summing up all and placing reliance on the judgments of the Supreme Court of India, Shri Nagar submitted that the detention order needs to be quashed as contrary to provisions of Constitution and the law. 9. Shri G. Desai, Dy. Advocate General appearing for the respondents assisted by Shri Prakash Verma submitted vehemently for justifying the order of detention. He pointed out various dates by making reference to the return filed by the respondents and' demonstrated as to how the detaining authority complied with all essential requirements indicated by the provisions of section 3 of NSA. He submitted that the detention order by itself is an speaking one and it was elaborately demonstrating as to how the activities of the detenu were prejudicial to the maintenance of public order. He submitted further that being at large of the detenu was prejudicial to communal harmony and that was likely to disturb the public order and, therefore, it was necessary to detain him and that exactly has been done by the District Magistrate by passing an appropriate order. Shri Desai further submitted that the said detention order has been approved by the State Government, the Advisory Board. He further submitted that the representation which has been submitted by the detenu to Government of India has been as early as possible considered by the Government of India and the decision taken by the Government of India in respect of, the representation of the detenu has been informed to him as early as possible. Shri Desai submitted that the activities which were undertaken by the detenu, were very serious in nature and were against the national interest and communal harmony as well as the public order. He submitted further that the detenu cannot get the advantage of the decisions of the Supreme Court indicated by the judgments on which Shri S.L. Nagar was placing reliance. He submitted that the petition be dismissed by refusing the writ to the petitioner-detenu for quashing. the detention order. 10. It would be better to mention the provisions of section 3 of NSA: "3. He submitted that the petition be dismissed by refusing the writ to the petitioner-detenu for quashing. the detention order. 10. It would be better to mention the provisions of section 3 of NSA: "3. Power to make orders detaining certain persons-- (1) The Central Government or the State Government may,- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence, of India, the relations of India with foreign powers, or the security of India, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India. it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order of from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary so to do, make ail order directing that such person be detained. Explanation -- For the purpose of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period, may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at anyone time. (4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government : Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted. (5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 11. Shri S.L. Nagar has placed reliance on the judgment of the Supreme Court in the matter of Devilal Mahto v. State of Bihar and another, reported in AIR 1982 SC 1548 . 11. Shri S.L. Nagar has placed reliance on the judgment of the Supreme Court in the matter of Devilal Mahto v. State of Bihar and another, reported in AIR 1982 SC 1548 . The Supreme Court held that in that case, the time of 21 days taken in examining the representation was on facts and circumstances of the case vitiating the order of detention. 12. He also placed reliance on the judgment of the Supreme Court in the matter of Dinanaih Anand v. Administrator and others, reported in 1983 SC (Cr.) 388 wherein the Supreme Court dealt with the point of claiming of privilege by respondents in respect of document which was not supplied to the detenu. The petitioner cannot take advantage of the ratio of the supreme Court in both these cases because after careful examination of the record, we find that there has not been delay which can be called unreasonable on the part of the State Government or the Central Government in considering the representation made by the detenu. In the present case, the respondents have not claimed any privilege for withholding any document which the detenu was demanding or was requmng. 13. Shri S.L. Nagar placed reliance on the judgment of the Supreme Court in the matter of Jasab Hazi Ismail and others v. K.S. Dalip Singh Secretary to Government of India and others, reported in 1986 SCC (CR) 92: wherein the Supreme Court held that the opinion of advisory Board for detention exceeding one year in view of provisions of sections 8(b), (c) and (f),9(1).& (2) and 10 of Cofeposa Act, 1974, was bad in law, as Board did not express specifically in the opinion that there was sufficient cause for 'continued detention' of the detenu. It held that mere opinion regarding necessity of 'detention' would vitiate detention under sections 8 and 9 of Coreposa Act. In that case the supreme Court found that the words "continued detention" in the opinion were not mere clerical or typographical error. It is to be noted that the present case does not indicate that there has been continued detention of the present detenu for a period more than one year. The detenu cannot take the advantage of the ratio of the Supreme Court judgment in this case. 14. It is to be noted that the present case does not indicate that there has been continued detention of the present detenu for a period more than one year. The detenu cannot take the advantage of the ratio of the Supreme Court judgment in this case. 14. Shri Nagar further placed reliance on the judgment of the Supreme Court in the matter of Fazal Ghosi, Wahid Ayaz Ahmad v. State of U.P. and others, reported in AIR 1987 SC 1877 ; wherein the Supreme Court held that the respondents were not able to show the material which was exhibiting that the detenu was addressing the assembly of persons and incited them to lawlessness. In that matter, there was no material to show that detenus would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order. In that case, on those grounds the detention was held to be illegal, vitiated and was quashed. The facts of the said matter were quite different from the present one. In that matter it was alleged by the said State Government that several members of the community were returning from the mosque after their afternoon prayers and at a spot known as Bholanath Ka Kuan, Abdul Aziz Road, Lucknow they were addressed by detenu Fazal Ghosi and his son Wahid in language inciting them to beat the Police and the Police Armed Constabulary. At another place, Sarkata Nala, a large number of the Muslim community are said to have been similarly addressed by Ayaz Ahmad and Riaz Ahmad. It was alleged that in consequence, the crowd commenced pelting stones and discharged fire arms on the government officials and the police personnel assembled there as a result of which they received injuries. The petitioners (detenus) and the appellants (detenus) were arrested alongwith other persons, and a first information report was lodged in respect of each of them for offences under Ss. 147, 148, 149,307 and 332 of the Penal Code. The said detenus had applied for bail and while the bail applications were pending, the District Magistrate, Lucknow purporting to act under sub-section (3) of the NSA, served a detention order on February 20, 1986 on each of the four detenus. That was followed on February 21, 1986 by service of the grounds of detention. 15. The said detenus had applied for bail and while the bail applications were pending, the District Magistrate, Lucknow purporting to act under sub-section (3) of the NSA, served a detention order on February 20, 1986 on each of the four detenus. That was followed on February 21, 1986 by service of the grounds of detention. 15. In Fazal Ghosi' s case (supra), the Supreme Court found that there was no material to show that the detenus would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order. The Supreme Court expressed its opinion that even if it is accepted that they did address the assembly of persons and incited them to lawlessness, there is no material to warrant the inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order. The Supreme Court held," The District Magistrate, it is true, has stated that the detention of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction." Supreme Court• further observed, "We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. In the circumstances, the detention order in respect of four detenus must the quashed". The detenu cannot take the advantage of these observations because the detention order is speaking by itself and is detailed one expressing every facet of the activities of the detenu. In the circumstances, the detention order in respect of four detenus must the quashed". The detenu cannot take the advantage of these observations because the detention order is speaking by itself and is detailed one expressing every facet of the activities of the detenu. It is to be noted that the District Magistrate has pointed out in the detention order the allegation that the detenu alongwiah his companions 'was responsible for (1) affixing posters on 4.12.1997 which was having the material printed on it which was sufficient enough to create enmity between two religious sections of the society and on account of that, Crime No. 216/97, was registered against the detenu in context with provisions of section 153 and 120 of IPC: (2) it has been pointed out that on 3.12.1999, detenu was responsible for a procession which was for protesting the demolition of a structure in which Crime No. 189/99 was registered against him in view of provisions of sections 151, 107, 116(3) of CrPC; (3) it has been pointed out that on 24.10.1999, the detenu allegedly created traffic jam, in context with that a crime was registered -against him bearing No. 293/99 and 322/99 in context with provisions of sections 341/34 of IPC; (4) it has been pointed out that on 7.5.2000, a crime was registered against the detenu bearing No. 148/2000 in context with provisions of Ss. 147, 148,294,323,336,506 of IPC for assaulting Dhirendrasingh S/o Ramsajivansingh, owner of Ma Sharda STD/PCO Booth; (3) It has been pointed out that a crime was registered bearing No. 70/2000 in "respect of alleged incident dated 8.5.2000 where the detenu is alleged to have created a protest mob near Ganesh Lodge Square for protesting the arrest of his colleagues; (6) in the said order it has been mentioned that in view of the news item published in daily "Sanjha Lokswami" dated 28.9.2000 that the detenu was responsible for some public protest which was likely to create religious enmity and commotion. This mention has been made in respect of the news item in the same daily newspaper dated 22.10.2000 as well as the news item in newspaper dated 23.10.2000. News items published in daily "Prabhat Kiran" has also been mentioned so far as 24.9.2000 is concerned. This mention has been made in respect of the news item in the same daily newspaper dated 22.10.2000 as well as the news item in newspaper dated 23.10.2000. News items published in daily "Prabhat Kiran" has also been mentioned so far as 24.9.2000 is concerned. A mention has been made to publication in "India Today" dated 20.9.2000 and it was alleged that the detenu was responsible in publication of the interview of Saiyyad Salauddin of Hizbul Mujahid; (7) it has been mentioned that in respect of Crime No. 380/2000, when ASI Shri R.K. Mishra had gone to arrest his colleagues on 2.11.2000, the detenu was responsible for preventing the arrest of his colleagues named Anwar, Muvin Nagori, Farukh, Ajij Jafar, For that a crime has been registered against him bearing No. 402/2000 which is pending for hearing; (8) it has been also mentioned that the detenu was responsible for pubhcation of various posters on the public walls of this city and those posters were having material which was very much provocative and against the national interest; (9) not only that, it mentions that when the house of the detenu was searched, the printed material and other material was found which was showing that it was explosively provocative and was seriously causing prejudice to the communal harmony and the national interest; (10) besides that, it has been mentioned that the detenu was found to be spreading the rumours in the localities where Muslim persons were residing in majority proportion. The detaining authority, thus, formed the opinion that the detenu was by his acts and activities, provocating the feelings of Muslims and other communities and was spreading rumours and was publishing such material in public which was not only prejudicial to the maintenance of public order but was dangerous to the national security. 16. Thus, the case of the present detenu is different from the case of Fazal Ghosi and others (supra) and therefore, the observations of Supreme Court cannot be applicable to the present case. 17. 16. Thus, the case of the present detenu is different from the case of Fazal Ghosi and others (supra) and therefore, the observations of Supreme Court cannot be applicable to the present case. 17. Shri S.L. Nagar also placed reliance on the judgment of the Supreme Court in the matter of State of U.P. v. Kamal Kishore Saini, reported in AIR 1988 SC 208 ; wherein the Supreme Court has held that when detenu has not been given fair and reasonable opportunity, copies of FIR and charge-sheet served on detenu were showing that name of detenu was not mentioned in the FIR, the statements of concerned witnesses recorded in view of section 161, CrPC, were served on detenu long after passing of detention order. All these materials were sufficient for reaching a conclusion that the detaining authority did not reach subjective satisfaction and, therefore, the Supreme Court held in that case that the detention was invalid. Though Shri Nagar placed reliance for canvassing the case of detenu, it cannot be forgotten that in the same judgment the Supreme Court has held that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order. 18. At this juncture, the judgment of the Supreme Court in the matter of Abhay Shridhar Ambulkar v. S.V Bhave, Commissioner of Police and others, reported in AIR 1991 SC 397 , will have to be considered. Shri Nagar has submitted that in the matter of Abhay Shridhar's case (supra), the judgment of the Supreme Court indicates that if the conferment of power is considered necessary because of circumstances likely to prevail during the future period, the duration for the exercise of power must be relatable to the apprehended circumstances. Therefore, the specification of the period during which the District Magistrate or Commissioner of Police is to exercise power under sub-section (2) of section 3 would depend on the subjective satisfaction as to the existence of the circumstances in praesenti or in futuro. The Supreme Court observed that since very drastic powers of detention without trial are to be conferred. Therefore, the specification of the period during which the District Magistrate or Commissioner of Police is to exercise power under sub-section (2) of section 3 would depend on the subjective satisfaction as to the existence of the circumstances in praesenti or in futuro. The Supreme Court observed that since very drastic powers of detention without trial are to be conferred. on subordinate officers, the State Government is expected to apply its mind and make a careful choice regarding the period during which such power shall be exercised by the subordinate officers, which would solely' depend on the circumstances prevailing or likely to prevail. Shri Nagar by pointing out this submitted that it was not improper but illegal on the part of the State Government to empower the Distt. Magistrate Indore to exercise power of detention and by using that the detenu has been detained and therefore, the said order is bad in law. 19. We do not find ourselves able to uphold the submissions of Shri Nagar on this point because the government is always well informed• by its intelligence wings which are duty bound to give the information to the Government about the activities of some citizens who are prima facie found to have been engaged in mischievous activities or activities prejudicial to national interest or special interest. After getting such information, the Government acts for the purpose of protection of national interest, the protection of public order and for protection of communal harmony amongst various members of various religious sects and castes It is to be presumed that the conferment of the power on the District Magistrate in this respect must have been prompted by the information collected by the intelligence wings of the Government. It is important to note here that in the said detention order, a nexus prima facie has been shown to be in existence between the present detenu and Osma Bin Laden, a known international terrorist as well as Saiyyad Salauddin, terrorist of Hizbul Mujahid. Government is bound to take care of the citizens belonging to various religions, castes and sects and, therefore, for that purpose and for the purpose of protection of public order, the Government is duty-bound to react promptly and appropriately and, therefore, there is nothing wrong in conferment of the power on the District Magistrate, Indore in this context. 20. Shri SL. 20. Shri SL. Nagar has submitted further by placing reliance on the judgment of the Supreme Court in the matter of Solomon Castro v. State of Kerala and others, reported in 2001 SCC (Cr.) 650, that when there has been delay in considering the representation of detenu, deciding it and conveying the result of it to the detenu, the benefit of these laches should go to the detenu. But in this case, after examining the acts of the detenu, the detaining authority, the report of the Advisory Board and the actions taken .by the State Government and Government of India dealing with the representation of the detenu, we are satisfied that there are no laches on the part of the detaining authority and the other concerning authorities which would allow the detenu to pocket the benefit. 21. It is true that Articles 19, 21, 22 of the Constitution of India deal with the fundamental rights of the citizens in respect of the right to engage in trade, right of freedom of movement, right to live and necessary protection in respect of the detention. When an action of the detaining authority is touching this aspect of the fundamental rights spoken of by those articles, the Court is required to be cautious in examining the material placed before it for the purpose of getting itself satisfied whether the detention order is within the four comers of legal expectations of the constitutionality. With such cautious and examining approach, we have examined the record before us and after doing it, we have no hesitation in discarding all the submissions made by Shri Nagar, counsel for the detenu because every citizen residing in India needs to be protected in respect of his day-to-day life. Every citizen is free to follow his religious dedications, the activities for earning his livelihood and social stability. None can be permitted to play with the religious feelings and to provoke the people for his fanciful and quixotic ideas. None can be permitted to disturb communal tranquility only for the purpose of propaganding his own idea about his views or the views of some others whom he likes. None can be permitted to play with the religious feelings and to provoke the people for his fanciful and quixotic ideas. None can be permitted to disturb communal tranquility only for the purpose of propaganding his own idea about his views or the views of some others whom he likes. It is to be seriously understood that the majority of the members of the public are interested in carrying on their day-to-day routine life for the purpose of living peacefully, satisfactorily, happily from early hours of the day to the late hours of the night. They wish to sleep peacefully, calmly amongst their family members during the remaining hours of the night after retiring to the bed. They retire to bed with the hope of seeing the bright sunshine of incoming day and, therefore, none can be permitted to pollute this peaceful life by a common member of the society by mischievous activities tending to tilt the secular fabric and texture of society. The law has to take care of it and for that purpose the provisions of Special Acts create a permissible restriction on the fundamental rights of such citizens. Reasonable restrictions can be imposed on some of the fundamental rights for protecting the larger strata of the society and ensuring them a peaceful secular life. In such cases the Courts have to see very cautiously whether the administrative authorities have exercised their powers properly. It has to be seen by the Courts whether their acts and orders are based on sound material and are based on sound decisions which are consistent with the material which was before such authorities and which was considered by it and that is the subjective satisfaction which have been indicated by the various judgments of the Supreme Court and the provisions of Special Law. 22. It is to be noted that such mischievous activities spark out communal rights and in such communal rights generally the poor persons from various religions, sects or castes become the prey. Many persons who are totally dependent on daily wage earned, surviving along-with their family members on the wages earned during the day time suffer. Such activities create roits and such poor persons/weak elements of the society become the victim of that and they are deprived of even bread for their survival. 23. Many persons who are totally dependent on daily wage earned, surviving along-with their family members on the wages earned during the day time suffer. Such activities create roits and such poor persons/weak elements of the society become the victim of that and they are deprived of even bread for their survival. 23. In the present case the material which was available with the detaining authority was sufficient and was convincing to pass the order which has been assailed in this petition. Not only that, the detaining authority has carefully scrutinised that material and after its subjective satisfaction passed the order by which the detenu has been detained. Necessary provisions of law have been followed and promptly actions have been taken by the detaining authority. In the present case promptly the Advisory Board has also considered the case. The State Government and the Government of India have also decided the representations of the detenu. Absolutely there is no tinge of illegality in the detention order which has been assailed in this petition. We are totally satisfied about all relevant facets of the matter and, therefore, we discard the submissions advanced by Shri S.L. Nagar in favour of detenu for assailing the detention order. 24. Thus, we hold that the detention of the detenu is valid and lawful. The net result is rejection of the prayer of the petitioner to get the writ of Habeas Corpus and setting aside of the detention order. Petition stands dismissed.