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2003 DIGILAW 90 (ORI)

SALIM v. DISTRICT MAGISTRATE UJJAIN

2003-01-30

S.L.KOCHAR

body2003
S. L. KODIAR, J. ( 1 ) PETITIONER/detenue Salim has changed his order of detention dated 21 Febuary 2002 passed by respondent No. 1 District Magistrate, Ujjain (Annexure 1) and confimied by the State Gemment vide order dated 13th May 2002 (Annexure 3) detaining the petitioner for 12 months from the date of his arrest, 26/3/2002 under the National Security Act (herein after refind to as the NSAf ). ( 2 ) FROM the petition and its reply facts emerged, are that Police of PS Jiwaji Ganj, Ujjain received information about admission of Inamul Haq Sb Iftakhar Anasri in the Government hospital in serious condition. On this information, Sub-Inspector of Jiwaji Ganj Police Station reached the hospital. On investigation of the residential premises of the petitioner, the police found that the petitioner and Inamul Haq were illegally preparing hand bombs by filling in small steel containers with Pottash, gun powder, powder of head of match sticks, iron pieces, nails, cloths piecetse c. While making hand bombs, one of them blasted resulting into causing service injuries to Inamul Haq to his left palm. His hand was completely imputed. During investigation, Sub-Inspector recorded the statements of several witnesses and registered offence against Inamul Haq and the present petitioner under Section 4 (b)/5 of the Explosive Substances Act, 1908 (for short, the Act ). After detailed investigation, police submitted report to the District Magistrate, Ujjain, who passed the order of detention on 21st March, 2002 against the petitioner and Inamul Haq. ( 3 ) ACCORDING to the grounds of detention order, petitioner and his companion Inamul Haq were involved in manufacturing of hand made boms and while doing so due to blasting of one of the bombgs, Inamul Haq received serious injuries including imputation of left palm. The petitioner was involved in antisocial activities and illegal manufacturing of hand made boms against whom crime No. 64/02 under Sections 4 and 5 of the Act was registered and investigation was going on. In ground No. 3, it has been mentioned that because of their act, terror was created in Ujjain city and the public was in the fear. Because of their activities, there was danger to life and property of the public. In ground No. 3, it has been mentioned that because of their act, terror was created in Ujjain city and the public was in the fear. Because of their activities, there was danger to life and property of the public. Ground No. 4 is revealing the fact that because of laying of foundation stone CSheeladan in Aayndhya, there was great tension in the town and the police was trying to maintain peace and harmony in the city. On 15/3/2002 because of the act of the petitioner and his companion, preparing illegally hand bomb and its blasting near Ring Road, Juna Somwaria locality, there was unrest in the said locality. The public started running here and there. Public was in the fear and closed their shops and the market remained closed. The situation was like a Curfew in the town. Along with the detention order, copies of grounds of detention, FIR, Rojnamcha Sana, notification of Home Department were supplied to the petitioner. ( 4 ) CONTENTION of the learned Counsel for the petitioner is that since the petitioner has already been arrested and prosecuted for the offence punishable under Sections 4 and 5 of the Act, he should not have been detained under the Provisions of NSA Act. He has also contended that detention order is bad in law because the same was passed on solitary incident. In support of his contention he placed reliance on the judgment of Full Bench of this Court in the case of Ajay Dhakad v. State of H. P. ; Hamid All v. State of M. P. ; Shafiuddin Qureshi v. State and Shivgiri v. State. ( 5 ) RESPONDENTS have filed reply and Mr. Girish Desai, learned Deputy Advocate General contended that on solitary instance, even after the prosecution in Criminal Court, a person can be detained under the Provisions of NSA Act. To strengthen his contention, he cited judgment of the Constitution Bench consisting 9 Judges of the Supreme Court in the case of Attorney General for India and Ors. v. Amratlal Prajivandas and Ors. and the Division Bench Judgment of this Court in case of Charan Singh Sb Sujan Singh v. Union of India and Ors. To strengthen his contention, he cited judgment of the Constitution Bench consisting 9 Judges of the Supreme Court in the case of Attorney General for India and Ors. v. Amratlal Prajivandas and Ors. and the Division Bench Judgment of this Court in case of Charan Singh Sb Sujan Singh v. Union of India and Ors. ( 6 ) HAVING heard learned counsel for the parties and after perusing the entire record, we are of the considered opinion that detention order passed against the petitioner Annexure and duly confirmed by the State Government, by order dated 13/5/2002 suffers from no infirmity and illegality. ( 7 ) IT is apposite to mention here that the petitioner has not availed his right to file representation before Advisory Board. He has chosen to file this petition before this Court. The detention order and its grounds as also the documents are showing positive material for the involvement of the petitioner in illegal manufacturing of bombs in his premises. The petitioner was doing so along with co-accused Inamul Haq in day light. The incident of blasting took place causing severe injuries to Inamul Haq including imputation of his left palm. The incident had taken place on 15th March, 2002 when there was great communal tension all over the country on account of declaration of performance of lying of foundation stone in Ayodhya (Sheeladan ). The District Authorities were fully involved in maintaining law and order, public order as well as peace and harmony in the Ujjain town. During this period unwanted, unhappy incident had taken place in which the petitioner was found involved. ( 8 ) LOOKING to the situation prevailed at that time, the District Authorities could easily discern and forecast further unhappy incident in the town thereby disturbing public order and tranquillity and because of illegal involvement of the petitioner in manufacturing bombs, the Authorities felt it just and proper to pass preventive order against the petitioner and co-accused Inmul Haq detaining them under the Provisions of NSA Act and the same cannot be considered illegal and arbitrary. It was the subjective satisfaction of the District Magistrate who arrived at the conclusion as a prevent measure to pass detention order. ( 9 ) IN the case of Shiv Gin (supra) factual position is altogether different. It was the subjective satisfaction of the District Magistrate who arrived at the conclusion as a prevent measure to pass detention order. ( 9 ) IN the case of Shiv Gin (supra) factual position is altogether different. In this case, detention order was passed on the ground that number of criminal cases were shown to be pending against the detenue whereas admittedly this was not correct. Out of registered criminal cases, so many were decided in favour of the petitioner. ( 10 ) IN the case of Satisfaction (supra) detenue was involved in Slaughtering sheeps and cows. While passing the detention order, the District Magistrate did not consider about registration of criminal case against the detenue and trying to get released on bail. It was also not mentioned in the order that the trial Court had passed the order of bail in favour of the detenue for the alleged crime. This is not the situation in the present case. The grounds of detention are indicating that the criminal case was registered against the petitioner and the same was also not out of sight of the District Magistrate while passing the detention order. Copy of the FIR has been supplied to the accused along with the grounds of detention and at that time investigation was going on. ( 11 ) IN the case of Ajay Dhakad (supra), Full Bench decision, this Court considered the question that when detenue was already in custody and this fact was not reflected in the order of detention or the grounds of detention did not show that the detaining authority was not aware of the petitioners custody on the date of detention order, the detention was illegal. This is also not the situation available in the present case. The petitioner nowhere has averred in this petition that on the date of passing of the detention order i. e. , 21/2/2002, the petitioner was already arrested in criminal case by the concerned police. This ground has also not taken for frustrating the order of detention. ( 12 ) IN the case of Hamid Au (supra), detenue/accused was a member of Muslim Community and it was alleged against him that he raped minor Hindu girl. On this fact, this Court did not find that act of the detenue was pre judicial to the maintenance of public order. Whereas in the present case, entire situation is altogether different. On this fact, this Court did not find that act of the detenue was pre judicial to the maintenance of public order. Whereas in the present case, entire situation is altogether different. The petitioner belongs to Muslim community found in illegal preparation of bomb along with the co-accused in his own premises. One of the bombs was blasted in the hand of co-accused Inamul Haq causing complete imputation of left palm and serious injuries. He was taken to the hospital by the petitioner. This incident occurred in the thickly populated locality of Ujjain. At that time because of Sheeladan programme, administration of whole country was tensed. All the decisions cited by the learned counsel for the petitioner, are not helpful to his case for declaring order of detention illegal and erroneous. ( 13 ) SO far as the question of passing of detention order on the basis of solitary act is concerned, it has been set at rest by 9 Judges Bench of the Supreme Court in the case of Attorney General for India (Supra ). It is held in this judgment that on a single ground detention can be based. Similar view has been taken by the Division Bench of this court in the case of Charan Singh (supra ). Division Bench of Andhra Pradesh High Court and Allahabad High Court have also taken similar view in the case of Hamza Bin Omer v. Commissioner of Police Hyderabac and Abdu) Iafiz Ansar?. In the decision of Allahabad High Court, detention order was held valid to prevent detenue from indulging in the activities attracting towards generating feelings of hatred between Muslim and Hindu. This order of detention was based on single incident. We, therefore, find no substance in this ground also. ( 14 ) AFTER giving our anxious and careful consideration to the facts and features of this case, we find absolutely no illegality in the order of detention Annexure 1 and Annexure 3 passed by the respondents. ( 15 ) CONSEQUENTLY, this petition fails and is hereby dismissed. Petition dismissed.