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2003 DIGILAW 300 (MP)

BHURU TOTLA v. STATE OF MADHYA PRADESH THROUGH DISTRICT MAGISTRATE, RATLAM

2003-02-20

DEEPAK VERMA, N.K.JAIN

body2003
N. K. JAM, J. ( 1 ) BY this petition under Articles 226/227 of the Constitution of India, petitioner Bhuru Totla calls in question the order of detention dated 2/7/2002 (Annexure P/i) passed by District Magistrate, under Section 3 (2) of the National Security Act (for short, the NSA ). ( 2 ) ALTHOUGH no reference is made or objection taken by the petitioner to the proceeding or the orders which followed the passing of the impugned order (Annexure P/i), however, from the documents filed by the respondents, it appears that after passing of the order (Annexure P/i), the matter was reported by the District Magistrate on 6/7/2002, to the State Government which, in turn on 10/7/2002 aaxtiai its appioval, in terms of subsection (4) of Section 3 (vide Annexures R/4 and R/5 ). A report (Annexure R/9) was also sent to the Government of India on 12/7/2002 and the matter was referred to the Advisory Board on 18/7/2002 (vide Annexure R/6 ). The Advisory Board recorded its opinion of Approval on 30/7/2002 (Vide Annexure R/7) and final order of confirmation (vide Annexure R/ 8) was passed on 6/8/2002, dir1ing that the petitioner be detained for a period of one year ending on 1st July, 2003. ( 3 ) THE challenge is manifold and it is alleged that the District Magistrate had no authority nor any material before him to pass the impugned order; that the grounds of detention were never communicated to the petitioner more particularly, in his mother tongue Urdu as he did not understand Hindi or English; that there was undue delay in sending report to the State Government; that the representation made by the petitioner (Annexures P/s to P/il) to various authorities to wit The President, The Prime Minister, the Chief Minister and the Secretary Home both of the Union and the State Government were not considered; that he was also not given any opportunity of hearing by the Advisory Board; and, that the detention is violative of the fundamental right of life and liberty of the petitioner guaranteed by Articles 21 and 22 of the Constitution of India. ( 4 ) MR. S. L. Nagar, learned counsel for the petitioner at the time of hearing reiterated the grounds as aforestated and cted a catena4 of rulings in support5 of his argumnts, vide Abhay. ( 4 ) MR. S. L. Nagar, learned counsel for the petitioner at the time of hearing reiterated the grounds as aforestated and cted a catena4 of rulings in support5 of his argumnts, vide Abhay. hridhar; Kamal Kishore2 Thakur Muichndanr; Sunil Du Raghvend Singh; M1o2hinuddin1 Ayya @ 1a4yyub; Sqt. Angoori Devr; Jad Haji Ismait; Ibrahim Ahmect; Fazal Ghost; Lal Kamab; Bharat Pannalab; Dhunna ; and Siroman Singh ( 5 ) RESPONDENTSTATE have filed reply in oppugnation of the averments made in the petition and it is submitted that there existed more than sufficient material for the satisfaction of the detaining authority both at the initial stage and subsequent thereto so as to provide subjective satisfaction that the detention of the petitioner is necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. It is averred that the petitioner was immediately served the same day after passing of the order, with a copy of the said order along with the grounds of detention and the documents referred thereunder (vide Annexure R/3 ). A report (Annexure R/4) was also sent to the State Government without any unreasonable delay i. e. , on 6/7/2002 and the approval of the State Government was accorded on 10/7/2002, as required by subsection (4) of Section 3. The matter was also reported to the Government of India on 12/7/2002 and the entire material was placed before the Advisory Board on 18/7/2002. The Advisory Board after hearing the petitioner recorded its opinion of approval to the detention on 3/7/2002 (Annexure R/7 ). The State Government, on consideration of the material placed before it and considering the opinion recorded by the Advisory Board, passed the final order of confirmation (Annexure R/8 ). It was thus, contended that there was due and substantial compliance of the mandatory provisions of the Act, before the final order (Annexure R/8) was passed against the petitioner. The respondents denied that any representation was ever made by the petitioner or received by the respondents against his detention. It is pointed out that no such representation was also made by the petitioner to the Advisory Board. The respondents have placed on record the complete computer printout of the inward mails to show that no representation whatsoever was ever received by the Home Department of the State Government from the petitioner or his wife. ( 6 ) MR. It is pointed out that no such representation was also made by the petitioner to the Advisory Board. The respondents have placed on record the complete computer printout of the inward mails to show that no representation whatsoever was ever received by the Home Department of the State Government from the petitioner or his wife. ( 6 ) MR. G. Desai, learned Dy. Advocate General in reply to the arguments advanced by the learned counsel for the petitioner reiterated the above mentioned contentions and strongly defended the impugned order. ( 7 ) WE have given our anxious consideration to the rival contentions and the material placed on record and we are clearly of the view that the impugned order and the entire proceedings those followed the passing of the order including the final order of confirmation (Annexure R/8), are fully in tune with the provisions of the NSA calling for no interference by this Court and this petition must, therefore, fail. ( 8 ) AS regards the authority of the District Magistrate to pass the impugned order, it is seen that the State Government vide its Notification dated 29/6/2002, issued under subsection (3) of Section 3, published in Extraordinary Official Gazette dated the same (vide Annexure R/15), had duly authorised the District Magistrate, Ratlam to exercise powers conferred on the State Government under subsection (2) thereof. From this Notification (Annexure R/15), it further appears that this authorisation was made for a period from 1st July, 2002 to 30th September, 2002. The impugned order is passed by the District Magistrate, Ratlam during this very period and it cannot be, thus, said that he acted without any authority. ( 9 ) RESPONDENTS have also placed on record the entire documents which were placed by the Police before the District Magistrate for passing of the impugned order. These documents consisted of various reports made against the petitioner right from 1994 till June, 2002 showing that the petitioner was involved in various criminal activities constituting offences under various penal laws including those of murder and extortion etc. The District Magistrate soon after passing of the impugned order, on the same date, recorded his own reasons for detaining the petitioner and also furnished copies thereof to the petitioner, as mandated by Section 8 of the Act. This is evidenced by the receipt Annexure R/3 signed duly by the petitioner and attested by two witnesses. The District Magistrate soon after passing of the impugned order, on the same date, recorded his own reasons for detaining the petitioner and also furnished copies thereof to the petitioner, as mandated by Section 8 of the Act. This is evidenced by the receipt Annexure R/3 signed duly by the petitioner and attested by two witnesses. It is, therefore, not correct to say that the grounds of order of detention were not disclosed to the petitionerdetenu. ( 10 ) IT was, however, contended on behalf of the petitioner that the grounds were not disclosed to him in his mother tongue Urdu, as he did not understand Hindi or English. It is asserted that he could only sign in Hindi but could not read or write that language. Factually this averment is not correct. Respondents have placed on record the certificate issued by the Head Master of Government School, Alot (vide Annexure R/16), evidencing that the petitioner has studied upto Class V and was able to read and write Hindi. Obviously, the ground taken by him is clearly false. ( 11 ) AS to the sufficiency of the ground, it was a question of subjective satisfaction of the authority concerned that the petitioner was a potential threat to the maintenance of public order. This court cannot sit in appeal and reappreciate the material so as to come to its own conclusion about the sufficiency of that material. All that the court can examine is whether on the grounds which are the basis of detention, a reasonable man could have come to the conclusion that the material before it about the activities of the person sought to be detained, in the proximate past and present, is such as to enable it to make a reasonable prognosis of the probability of that person to behave similarly in future. In the instant case, as already pointed out, the petitioner has been in the past right from 1994 till June, 2002 indulging in criminal activities and has been acting in a manner prejudicial to the maintenance of public order. Immediately preceding the passing of the order he was found making calls to local citizens and in particular to businessmen demanding money and intimidating them with dire consequences if the demand is not fulfilled. Immediately preceding the passing of the order he was found making calls to local citizens and in particular to businessmen demanding money and intimidating them with dire consequences if the demand is not fulfilled. It cannot be, thus, said that the detaining authority had no material so as to reach a reasonable conclusion that the detention of the petitioner was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. ( 12 ) IT is true that it was necessary for the District Magistrate to forthwith report the fact of detention to the State Government together with the grounds on which the order has been made. In the instant case, the report in this regard was sent to the State Government on 6/7/2002 (vide Annexure R/4 ). The State Government in turn accorded their approval on 10/7/2002 (vide Annexure R/5 ). The contention of the learned counsel for the petitioner is that there was unreasonable delay in reporting the matter to the State Government inasmuch as the report ought to have been sent immediately after passing of the detention order. We are not persuaded by the argument. The expression forthwith in Section 3 (4) does not connote any prescribed time and even if the statute under consideration requires that the report shall be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay. The expression forthwith has to be understood as allowing of reasonable time. In the case before us, the report was forwarded within four days of the passing of the order and much before the expiry of the statutory period within which the State Government was required to accord its approval under Section 3 (4 ). There was, thus, no unreasonable delay and there was substantial compliance of the statutory mandate. ( 13 ) AS regards the non-consideration of the representation against detention, it is seen that no such representation was in fact made by or on behalf of the petitioner. Petitioner has filed copies of the said representations dated 8/7/2002 and 10/7/2002 (vide Annexures P/5 to P/li) which purport to have been made by the petitioners wife to Secretary (Home), Government of Madhya Pradesh, Governor of Madhya Pradesh, Chief Minister of Madhya Pradesh, Secretary (Home), Government of India, Central Home Minister, Prime Minister and President of India, respectively. Petitioner has filed copies of the said representations dated 8/7/2002 and 10/7/2002 (vide Annexures P/5 to P/li) which purport to have been made by the petitioners wife to Secretary (Home), Government of Madhya Pradesh, Governor of Madhya Pradesh, Chief Minister of Madhya Pradesh, Secretary (Home), Government of India, Central Home Minister, Prime Minister and President of India, respectively. He has also filed two postal receipts dated 21/7/2002 and 22/7/2002, collectively marked as Annexure P/4. While there is absolutely no evidence regarding sending or receipt of the representations Annexures P/7 to P/li to the concerning authorities, the receipt of representation Annexure P/5 addressed to State Home Secretary is also denied emphatically by the respondents. They have filed computer printout of inward mails from 20/7/2002 to 31/7/2002 to show that no such mail by Speed Post was received in the Home Department of the Government. Even otherwise the documents filed by the petitioner appeared doubtful. Why one should send the same representation twice to the same authority that too on two consecutive dates (20/7/2002 and 21/7/2002? The report Ex. P/6 purports to have been prepared and signed on 8/7/2002, whereas the postal receipts (Annexure P/4) are dated 20th and 21st July, 2002. Why this long gap? Why the petitioner did not choose to send representation through Jail Authorities which could be more authenticated? No only this ambiguity remains unexplained, but no evidence could also be adduced by the petitioner to show that what was mailed by receipts (Annexure P/4) was the representation (Annexure P16 ). Under all these circumstances, the petitioners objection as to the non- consideration of his representation is not acceptable. ( 14 ) WE have also perused the proceedings of the hearing before the Advisory Board and we were satisfied that the petitioner was heard by the Board before recording its Opinion. It is, therefore, wrong to contend that the petitioner was not given any opportunity of hearing by the Board. ( 15 ) NO other point was pressed before us and we see absolutely no infirmity in the impugned order of detention (Annexure P/i) and the proceedings which followed thereafter. This petition must, thus, fail and is dismissed. Petition dismissed. .