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2004 DIGILAW 261 (MP)

Naimuddin v. State of M. P.

2004-03-16

S.L.KOCHAR, UMA NATH SINGH

body2004
Judgment UMA NATH SINGH, J. ( 1. ) This writ petition filed by detenu Naimuddin S/o Ziauddin seeks quashment of an order of detention (Ex.P/4) dated 20-3-2003 passed by the District Magistrate, Indore u/S. 3(2) of the National Security Act, 1980 (for short "the Act"). ( 2. ) It is said that at about 7.20 PM on 18-8-2003 some boys were quarrelling near the house of.one Taj Modh. in Marathi Mohalla, Indore, which was witnessed by others who did not intervene. It is also said that Ziyauddln and Riazuddln were standing on backside of their house on the ground. It is also said that both of them shouted and asked detenu Naimuddin to fire on the persons who were witnessing the quarrel. Accordingly, the petitioner is said to have brought his licensed gun from his house and fired at the crowd. The gun shot caused injuries to Prakash Kadam and two others. Resultantly, there was a disturbance of the public order. Subsequently, Prakash Kadam succumbed to the gun shot injuries. On 18-3-2003 at 7.30 PM Police Station Sadar Bazar, Indore, initially registered a criminal case u/Ss. 307 and 294 read with Section 34 of I.P.C. against detenu Naimuddin, Riyazuddin and Ziyauddin and later on Section 302, I.P.C. was also added. It is said that the detenu surrendered on 19-3-2003 before the Judicial Magistrate First Class and on 20-3-2003 the impugned detention order u/S. 3(2) of the Act was passed. It is also said that though the petitioner detenu was on police remand till 22-3-2003, the District Magistrate did not refer to this fact in his order. He also did not mention the reasons for his apprehension about possible release of the petitioner on bail in the criminal case. It is also said that the Supdt. of Police in his submissions dated 20-3-2003 to the District Magistrate, Indore, to initiate proceedings for detention mentioned nothing about the surrender of the petitioner before the Judicial Magistrate First Class on 19-3-2003 and, therefore, a vital information which would have influenced the subjective satisfaction of the detaining authority was not brought to his notice. It is said that the detention order was served on the detenu on 21-3-2003 along with enclosures but he did not make representation to the appropriate Government. The detenu was produced before the Advisory Board at Jabalpur in April, 2003 and on 29-4-2003 the Govt. It is said that the detention order was served on the detenu on 21-3-2003 along with enclosures but he did not make representation to the appropriate Government. The detenu was produced before the Advisory Board at Jabalpur in April, 2003 and on 29-4-2003 the Govt. of Madhya Pradesh confirmed the detention. ( 3. ) It is thus submitted that the subjective satisfaction of the detaining authority was vitiated on the ground that he has not referred to a vital fact that the detenu was in police custody on the date of his subjective satisfaction and there was a possibility of his release on bail which would have prejudicially affected the maintenance of public order. It is also submitted that since the detenu/petitioner was in custody in connection with a serious offence and there was no obvious reason or material to show that he would have been released on bail, the impugned order was passed without application of mind. This is also a case of the petitioner that once the detenu was on police remand in police custody, it was necessary to record cogent reasons before passing detention order u/S. 3(2) of the Act. ( 4. ) . This is also a contention of the petitioner that the offence in question at the most would have resulted in a law and order problem and not in the breach of "Public Order". During the course of arguments, learned counsel for the petitioner cited a decision of Honble the Apex Court reported in 1995 Cri LJ 2657 (Surya Prakash Sharma v. State of U. P.). In that case, the detaining authority was though aware of the fact that the detenu was already in custody of the time of passing of detention order but there were no cogent materials on the basis of which the authority was satisfied that the detenu might indulge in serious offences causing threat to public order if he was released on bail. Hence the order of detention was held liable to be quashed. The counsel also cited another decision of Honble the Apex Court in Tarannum v. Union of India, reported in 1998 (1) MPWN page 229 (Note 159) : (1998 Cri LJ 1414). The Honble Court held that commissions of offences resulting in law and order problem cannot be treated as "public order" for detention. The counsel also cited another decision of Honble the Apex Court in Tarannum v. Union of India, reported in 1998 (1) MPWN page 229 (Note 159) : (1998 Cri LJ 1414). The Honble Court held that commissions of offences resulting in law and order problem cannot be treated as "public order" for detention. Yet another Judgment of Honble the Apex Court was cited on the point that the detention order would be vitiated if the subjective satisfaction of the detaining authority is reached without taking into account the fact that the detenu was already in jail. This judgment is reported in 1982 Cri LJ 2354 : ( AIR 1982 SC 1539 ) (Biru Mahato v. District Magistrate, Dhanbad). ( 5. ) On the other hand, appearing for the respondents, learned Deputy. Advocate General Shri Desai submitted that the detention order was passed on 20-3-2003, the actual detention started from 21-3-2003, detention order with ground and documents was served on 21-3-2003, the case was sent for approval on 24-3-2003, the State Govt. granted approval of detention on 31-3-2003, a report was sent to the Central Govt. on 1-4-2003, the matter was referred to the Advisory Board on 3-4-2003, the Board gave its opinion on 24-4-2003, the opinion was received on 26-4-2003 and the appropriate Govt., being the State Govt. confirmed the detention on 29-4-2003. It is also said that the detaining authority having applied the mind to the materials on record has reached the subjective satisfaction before passing the detention order so as to prevent the petitioner from indulging and acting in any manner prejudicial to the maintenance of public peace and order. ( 6. ) It is further said that in spite of making aware of the right to make a representation to the State Govt., being the appropriate Govt. and in spite of providing all the facilities to the detenu for the same, he did not choose to make a representation. It is also submitted that during his lodgment in jail, the detenu was never refused any assistance, whatsoever. ( 7. ) It is also a contention of the State that the offence was committed on 18-3-2003 at 7.20 and the accused surrendered before the learned J.M.F.C., Indore on 19-3-2003 at 12.10 PM. He was lodged in police custody and was again produced before the Magistrate on 20-3-2003. ( 7. ) It is also a contention of the State that the offence was committed on 18-3-2003 at 7.20 and the accused surrendered before the learned J.M.F.C., Indore on 19-3-2003 at 12.10 PM. He was lodged in police custody and was again produced before the Magistrate on 20-3-2003. On that date itself, the police forwarded the documents to the District Magistrate for taking action against the petitioner under the National Security Act and the impugned detention order was passed on 20-3-2003 but he was physically detained under the order on 21-3-2003. As both the proceedings were almost simultaneous so lodgement of the petitioner in police or Judicial custody was of no consequence. It is also a submission of the State that the activities of the petitioner had sparked communal riot, disturbance and disharmony, therefore, it was necessary for the local administration to pass the detention order to prevent such activities of the petitioner. ( 8. ) We have heard learned counsel for the parties and perused the records. It is obvious from the train of events that the incident took place on 18-3-2003, the petitioner surrendered before the J.M.F.C., Indore on 19-3-2003 and he remained lodged in police/judicial custody thereafter. He was again produced before the J.M.F.C. on 20-3-2003 and on that day itself the detention order was also passed. Neither from the report submitted by the Supdt. of Police to the District Magistrate, Indore, nor from the detention order, it is perceptible that the factum of petitioner being in custody in connection with commission of serious offences u/Ss. 307, 294 and 302, IPC was in the knowledge of the District Magistrate/detaining authority. ( 9. ) Thus, it is crucially important to note that had the factum of the petitioner being in custody been in the notice of the detaining authority, probably he would not have passed the detention order as conceivably offences being serious in nature there was no logical and real possibility that the petitioner would have been admitted to bail. ( 9. ) Thus, it is crucially important to note that had the factum of the petitioner being in custody been in the notice of the detaining authority, probably he would not have passed the detention order as conceivably offences being serious in nature there was no logical and real possibility that the petitioner would have been admitted to bail. Honble the Apex Court in the case of Union of India v. Paul Manickam ( (2003) 8 SCC 342 : (2003 Cri LJ 4561) (para 14)) has reiterated the guidelines as laid down in Kamarunnissa case (1991) 1 SCC 128 : (1991 Cri LJ 2058), that the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. Further the detaining authority must have a reason to believe on the basis of reliable material placed before him that there is a real possibility of his release on bail and that on being released he would in all probability indulge in prejudicial activities. The impugned order, therefore, appears to suffer from an abyss of defects beyond replenishment. We have carefully analysed the events and visited the circumstances and also gleaned the ratio from judgments as referred to in para 4 hereinabove, we find that the impugned order for the preceding discussions appears to suffer from adversity of diversity of infirmities including non-application of mind, and dearth of material to show awareness about the petitioner being in custody on the date of passing the order leading to vitiation of the subjective satisfaction of the detaining authority. Hence this detention order cannot endure. Resultantly, the detention orders dated 20-3-2003 (P/4 and P/5) and the order of confirmation (P/6) dated 29-4-2003, as prayed for in para 7(A) of the petition are hereby quashed. The petitioner is, accordingly, directed to be released forthwith if not required in any other case. In the premises, this writ petition is hereby allowed with no orders as to costs.Petition allowed.