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2005 DIGILAW 1144 (RAJ)

Nijam @ Nijamudeen v. The State of Rajasthan

2005-04-15

B.PRASAD, SATYA PRAKASH PATHAK

body2005
Judgment B. Prasad, J.-The petitioner has filed this writ petition challenging inter alia an order passed by respondent No. 2. It has been alleged by the petitioner that a detention order has been passed against the petitioner by respondent No. 2 on 10.08.2004. The detention is made under the provisions of National Security Act for a period of 12 months. Section 3 Sub-section (4) of the Act has been invoked while the detention of the petitioner was made on 10.08.2004. The detention order and the grounds of detention was served on him. After getting detained, the petitioner alleged that he made a representation against the order of detention on 17.09.2004. This representation was addressed to the Advisory Board. The petitioner claims that this representation was also made to the State Government. The Advisory Board considered the case of the petitioner and passed an order dated 17.09.2004. The opinion of the Advisory Board was that the detention order deserves to be approved. It is worthwhile to note that the petitioner has prayed for being heard in person by the Advisory Board. This facility was provided. He was produced before the Advisory Board and the Advisory Board has noted these facts in the following terms:- “The grounds of detention have been served on the detenu but he has not filed any representation before the State Government but he was produced in person before this Board and he handed over a written reply to the Board against the order of detention.” 2. After consideration of the case of the petitioner by the Advisory Board, the matter once again was considered by the State Government and the State Government vide its order dated 010.2004 came to the conclusion that after considering the opinion of the Advisory Board and other documents on record, it opined that there are sufficient reasons to sustain the detention of the petitioner. Invoking the powers conferred on the State Government under Section 12(1) of the Act ordered that the petitioner be kept under detention for one year. The petitioner has challenged the order of detention being violative of Articles 21 and 22(5) of the Constitution. The case of the petitioner is that the State Government has not decided his representation and, therefore, his right under Article 22(5) of the Constitution of India has been violated. 3. According to the petitioner, he had made representation, Annexure-3, on 17.09.2004. The petitioner has challenged the order of detention being violative of Articles 21 and 22(5) of the Constitution. The case of the petitioner is that the State Government has not decided his representation and, therefore, his right under Article 22(5) of the Constitution of India has been violated. 3. According to the petitioner, he had made representation, Annexure-3, on 17.09.2004. This representation is addressed to the Advisory Board. It has not been endorsed to the State Government. The case of the petitioner is that notwithstanding the fact that the representation was addressed to the Advisory Board, the State Government was under obligation to decide the representation of the petitioner. The State Government having not decided the representation of the petitioner, the rights of the petitioner, enshrined in the Constitution for affording a fair hearing, has been denied and, therefore, the order of detention stands vitiated. 4. The petitioner relies on a case decided by the Hon’ble Supreme Court rendered in the matter of Moosa Husein Sanghar vs. The State of Gujarat & Ors., 1993 (1) SCC 511 . 5. The further case of the petitioner is that the grounds of detention supplied to the petitioner contained an opening note. In this note it was stated that there are cases against the petitioner registered under various heads, including murder. But none of the cases which has been detailed as the grounds of detention is under Section 302 IPC. Therefore, there being no case registered against the petitioner under Section 302 IPC, the recital in the opening statement of the detention order shows that the entire sequence of events have been drafted without there being sound application of mind. 6. According to the learned Counsel, the reference to the offences, like murder in the opening statement of grounds of detention, show that there was total non-application of mind by the detaining authority. According to the learned Counsel, the grounds of detention cannot be based on extraneous grounds and, therefore, the order is vitiated on account of being based on extraneous grounds. This makes the order bad in the eye of law. 7. The learned Counsel for the petitioner has further submitted that the grounds which are made the basis for passing the detention order, are not the grounds which can be covered within the definition of requirement of law which is needed to be based for detention. This makes the order bad in the eye of law. 7. The learned Counsel for the petitioner has further submitted that the grounds which are made the basis for passing the detention order, are not the grounds which can be covered within the definition of requirement of law which is needed to be based for detention. None of the grounds are good enough to be covered by the requirement of public order. The cases, as narrated in the order of detention, are simply of the nature which are said to be a law and order problem and not of a public order. The learned Counsel stressed that such an order has no import of the principles of National Security Act. 8. The learned Counsel for the petitioner further submitted that the detention order was passed on 10.08.2004 and the petitioner was arrested on 12.08.2004. The last of the cases registered against the petitioner were in the month of March, 2004. The detention order has come almost five months after the last of the cases having been registered against the petitioner. This has no proximity with the requirement of detention after five months. Therefore, the case is not the one which can be covered by the clause of urgency and immediate requirement of the detention of the petitioner. To support his contention, learned Counsel for the petitioner relied on a case decided by the Hon’ble Supreme Court in the matter of T.A. Abdul Rahman vs. State of Kerala & Ors., 1990 CrLR (SC) 15. 9. Per contra, the learned Government Advocate, Mr. S.K. Vyas, submitted that the petitioner has not come up with clean hands. He had never made a representation to the State Government. His representation was addressed to the Advisory Board. Neither there is any averment nor there is any endorsement in the Annexure-3 that any additional copy was forwarded to the State Government. Reliance of the petitioner on the averments in the writ petition and the reply of the State Government cannot extend to the extent where it can be presumed that any separate copy was ever endorsed to the State Government. 10. The petitioner required himself to be heard before the Advisory Board. The Advisory Board heard the petitioner in person at the time when it considered the representation. Thus, there was a proper representation of the petitioner before the Advisory Board. 10. The petitioner required himself to be heard before the Advisory Board. The Advisory Board heard the petitioner in person at the time when it considered the representation. Thus, there was a proper representation of the petitioner before the Advisory Board. After the Advisory Board approved the detention order as was passed by the detaining authority, the documents were forwarded to the State Government. While passing the order dated 010.2004, the State Government has recorded that it has perused the entire record of the Advisory Board. All documents related to the matter have been considered from the record. This includes the representation as made to the Advisory Board. 11. When the matter came up for consideration before the State Government, after being considered by the Advisory Board, the State Government gave a thoughtful consideration and in that consideration the representation of the petitioner was also before it and, therefore, this argument of the learned Counsel is of no consequence. The cases relied on by the learned Counsel is of no assistance because in the matter of Moosa Husein Sanghar (Supra), the Hon’ble Supreme Court considered the case wherein the representation was decided by the State Government after the decision of the Advisory Board. The Hon’ble Supreme Court was of the opinion that the obligation of the Government to consider the representation is different than that of the Advisory Board. In the instant case there was no representation addressed to the State Government. The only representation which was made by the petitioner was to the Advisory Board. There is no averment whatsoever that any separate representation was ever sent than the one which was addressed to the Advisory Board. In this connection the learned Counsel for the State placed reliance on Para 8 of the Judgment under reference: - “Having regard to the importance of the safeguard of a representation under Article 22(5) for protection of the right to personal liberty guaranteed under Article 21 of the Constitution, this Court has repeatedly emphasized the need for expeditious consideration of the representation submitted by a detenu and has insisted that the representation must be disposed with a sense of urgency without avoidable delay. The appropriate Government would not be justified in postponing the consideration of the representation while the matter is pending consideration before the Advisory Board because the obligation of the Government to consider the representation is different from that of the Advisory Board.” 12. The learned Counsel for the State further submitted that the ground of detention, though in its opening remarks makes a mention of the involvement of the petitioner in murder, but in fact there is no case of murder registered against him. But this by itself would not be sufficient to hold that the grounds, or basis of detention order, is bad in the eye of law because the order is not based on this ground alone. The detention was ordered for various reasons and it cannot be said that but for this, the mind of the detaining authority was influenced otherwise. 13. The cases which have been set up in the detention order shows that there had been several instances showing that the detenu has been indulging in various illegal activities. Each activity enumerated in the detention order can form the basis of separate ground by itself . It is not a case of a solitary ground for detention which is non-existent. In the case of Vashisht Narain Karwaria vs. State of U.P. & Anr., 1990 SCC (Cri) 372, it was a case of solitary ground and that case is thus distinguishable. Sufficient details were available in the grounds of detention, of his involvement in various offences and, therefore the present case would not be one which is based on non-existent grounds. To make his position clear, the learned Counsel has relied on Para 12 of the Judgment :- “It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5-A(a).” 14. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5-A(a).” 14. Learned Counsel for the State has further submitted that the offences which have been committed by the petitioner cover a very wide range involving offences against property, person and society. When a man indulges in a long list of crimes involving person, property and social tranquility, it cannot be said that he only has the tendency of disturbing law and order and not the public order. The instances of offences quoted, show that the petitioner had the tendency and capacity to disturb the public order and, therefore, it cannot be said that the said satisfaction of the detaining authority was not in relation to the public order. Finally, the learned Counsel for the State submitted that it is wrong to say that there was no proximity of the detention to the grounds. The petitioner was ordered to be detained on 10.08.2004 and he was in fact detained on 12.08.2004. The case relied on by the learned Counsel for the petitioner in the matter of T.A. Abdul Rahman (Supra), wherein a detention order was passed by the detaining authority on 30.11.1986 and the accused was detained on 010.1987, thus, almost 11 months were there. In the instant case the detention order was passed on 10.08.2004 and the accused was detained on 12th of August. Thus, the case relied upon by the learned Counsel cannot be viewed in the light of the observations made in Paragraph 12 and has no application in the present facts and circumstances. 15. We have heard the learned Counsel and have given our thoughtful consideration. 16. As regards the order of detention, when impugned by the detenu by making a representation under Article 22(5) of the Constitution, the law is that the representation has to be considered in the light of Article 22(5) independently by the Government when it is made. The law in this regard has been laid down by the Supreme Court in Para 14 of the case Union of India vs. Diljeet Singh, AIR 1999 SC 1052 . The law in this regard has been laid down by the Supreme Court in Para 14 of the case Union of India vs. Diljeet Singh, AIR 1999 SC 1052 . We have to examine whether any representation was made by the petitioner to the State Government in this case. 17. It is not denied by the petitioner that the representation which was made by the petitioner was Annexure-3. Annexure-3 was only marked to the Advisory Board. There is no endorsement that any separate copy was forwarded to the State Government. The petitioner was heard before the Advisory Board and his representation was considered. After consideration of the case of the petitioner, the Advisory Board approved the order of detention and forwarded the entire record to the State Government, which in turn considered the case in its entirety and that included the entire record as per the order itself , and the record included the representation addressed to the Advisory Board. Therefore, the State Government had considered the representation as addressed to the Advisory Board and it cannot be said that the representation of the petitioner was not considered. 18. The case relied on by the learned Counsel in this regard is distinguishable on facts because there was no independent representation made, as has been the case in the case of Moosa Husein Sanghar (Supra), and it was the representation before the Advisory Board which came up for consideration before the State Government, when the record of the Advisory Board was placed before the State Government. Therefore, it is not correct to say that the order of the State Government, sustaining detention, is illegal. 19. This brings us to the second ground which is in the nature that in the opening remarks the detaining authority has written that the petitioner is being involved in the cases of murder apart from other offences. It would be correct to say that the offence of murder has not been registered against the petitioner but that was not the only ground on which the detention order has been passed. There had only been a passing instance quoted against the petitioner, as murder. Many offences were allegedly committed by the petitioner. It would be correct to say that the offence of murder has not been registered against the petitioner but that was not the only ground on which the detention order has been passed. There had only been a passing instance quoted against the petitioner, as murder. Many offences were allegedly committed by the petitioner. They can be said to be of the nature which may require his detention under the National Security Act and, therefore, it was not a case wherein a detention order was based on a solitary ground and in that background the case relied upon by the learned Counsel, Vashisht Narain Karwaria (Supra), is distinguishable because there the detention order was on a sole ground. Here the grounds of detention were numerous. 20. We have given our thoughtful consideration to the 28 grounds referred in the grounds of detention detailing various offences and we are convinced that it cannot be said that all of them are only problems of law and order and not of public order. The grounds on which the petitioner challenged his detention cannot be upheld. The grounds are in conformity with the requirement of law. They involve public order as well. 21. Another argument of the learned Counsel that here was no immediate ground for detaining the petitioner because the last case registered against him was in the month of March, 2004 and he was detained in the month of August, 2004. The case relied upon by him, Vashisht Narain Karwaria (Supra), throws no light because there, in between the passing of the order of detention there was a gap of 11 months. Here as the last case was registered in the month of March, 2004, the whole sequence of events show that in processing of the case against the petitioner the authorities considered that his detention was necessary because his activities have been continuing since 1990. The assimilation of the facts require time and then a thoughtful consideration has to be given and whatever time spent was only a time required to pass an order of detention and, therefore, this ground is also of no avail to the petitioner. 22. In the result, we are of considered opinion that none of the grounds raised by the petitioner was sufficient to hold that the detention order, passed by the detaining authority, is vitiated by any legal infirmity. 22. In the result, we are of considered opinion that none of the grounds raised by the petitioner was sufficient to hold that the detention order, passed by the detaining authority, is vitiated by any legal infirmity. The petitioner was granted sufficient time by the authorities to show that his detention is bad. Each authority has considered his case and held against the petitioner. We are in total agreement with the views taken by the authorities below and are not inclined to take a different view than the one arrived at by them. 23. In the result, there is no force in the petition, the same is, therefore, dismissed.