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2005 DIGILAW 136 (ALL)

BABU (HALIM CHAWAIWALA) v. UNION OF INDIA

2005-01-28

MUKTESHWAR PRASAD, S.R.ALAM

body2005
MUKTESHWAR PRASAD, J. ( 1 ) IN these three petitions, the petitioners have questioned the validity of the orders of the District Magistrate, Meerut dated 5. 7. 2004, 23. 7. 2004 and 4. 8. 2004 res-pectively, detaining the petitioners under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act ). ( 2 ) COUNTER and rejoinder affidavits have been exchanged between the parties and are on record. ( 3 ) SINCE in all these petitions, pleading of the parties and grounds of detention are identical to each other and learned counsel for the parties have been heard together and as such, that these petitions are being disposed of by a common judgment. ( 4 ) WE have heard Sri Mahendra Pratap Singh, learned counsel for the petitioners, Sri Arvind Tripathi, learned counsel for respondent Nos. 2, 3 and 4 and Sri S. K. Misra, learned counsel for respondent No. 1, Union of India. ( 5 ) IT appears that three petitioners are detained under the provisions of the Act by three impugned orders on the basis of their involvement in the Case Crime No. 168 of 2004 under Sections 302/34 I. P. C. P. S Sardhana, and Case Crime No. 171 of 2004 under Sections 147, 148, 149, 302, 307, 336, 352 I. P. C. and Section 7 of Criminal Law Amendment Act.-P. S. Sardhana District Meerut. ( 6 ) THE particulars of the incidents regarding prejudicial activities are mentioned in the grounds of detention. In brief, the grounds are that Babu and Khilloo along with one Margoob son of Akhtar in furtherance of their common intention committed murder of Chandra Pal alias Bobby son of Dharam Pal at about 10. 30 p. m. on 18. 6. 2004 near Liberty Cinema when the deceased was going on foot to enjoy Budha Babu fair. The deceased was attacked upon by the assailants who were armed with knives and caused serious injuries. On the next day, at about 3. 40 p. m. when members of family of the deceased along with relatives and friends and police force were returning after the funeral of Chandra Pal, a mob consisting of more than 200 persons armed with knives, swords, country made pistols and lathies surrounded the aforesaid persons and attacked upon them and committed murder of one Baljit Singh, maternal uncle of the deceased Bobby. On account of these two incidents which happened on 18. 6. 2004 and 19. 6. 2004. there was complete break down of the public order and communal harmony was disturbed. The curfew was clamped and with great difficulty, the public order was restored after deployment of additional police force. The grounds of detention are enclosed along with the petitions. ( 7 ) IT has been urged on behalf of the petitioners that the general rule is that a person may be detained under the provisions of the Act provided he is found indulged in prejudicial activities and detaining authority is satisfied that in case, the order of detention is not passed under this Act, he would again indulge in similar prejudicial activities and his detention is necessary. The passing of an order detaining a person under this Act who is already in custody is an exception. It is true that a person who is already in custody may also be detained under the provisions of this Act provided the detaining authority has got sufficient material before him to justify the detention and there are compelling reasons. According to the learned counsel for the petitioners, the detaining authority has simply mentioned in the grounds of detention that the application for bail had been moved on behalf of the petitioners and they were trying to come out on bail. There was no material before the detaining authority to record his satisfaction about the imminent possibility of petitioners being released on bail and for that reason, the impugned orders are vitiated. ( 8 ) RELIANCE has been pleased on the following decisions: 1. Union of India v. Paul Manickam and another. 2. Kamarunnissa v. Union of India and others. 3. Dharmendra Suganchand Chela-wat v. Union of India and others. 4. Union of India and another v. Chaya Ghoshal. Learned counsel for the petitioners has also placed reliance on a decision of this Court dated 27. 10. 2004 in Munindra Kumar Shukia v. Union of India and others (Habeas Corpus petition No. 12370 of 2004 ). ( 9 ) ON the other hand, learned A. G. A. has contended that it is very clearly mentioned in the grounds of detention that the application for bail had been moved on behalf of the petitioners through their counsel and there was effective pairawi on their behalf for being released on bail. ( 9 ) ON the other hand, learned A. G. A. has contended that it is very clearly mentioned in the grounds of detention that the application for bail had been moved on behalf of the petitioners through their counsel and there was effective pairawi on their behalf for being released on bail. It was also mentioned that after being released on bail, the petitioners would again indulge in similar prejudicial activities affecting the public order of the locality. He has further drawn our attention to the counter affidavit of the detaining authority, wherein it is stated that he was fully satisfied regarding the possibility of being released on bail in near future as well as repetition of similar activities and only after being subjectively satisfied, the preventive action was taken. On the basis of these averments in the counter affidavits, learned A. G. A. has submitted that when the grounds of detention and counter affidavit of the detaining authority are read together, there is sufficient material on record to show that the detaining authority was rightly satisfied with the material placed before him for taking preventive action against the petitioners and thus, the requirement of law was complied in this regard. Learned A-G. A. jlaced reliance on a decision of Supreme Court in Biru Mahto v. District Magistrate, Dhanbad. ( 10 ) IN Kamarunnissa v. Union of India (Supra) the Honble Apex Court has observed as under: from the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such order cannot be struck down. If the authority passes an order after recording his satisfaction in this behalf, such order cannot be struck down. ( 11 ) AGAIN in Union of India v. Paul Manickam and another (Supra), the Honble Apex Court in para 14 of the judgment reiterated the ratio laid down by it in the case of Kamarunnissa v. Union of India (Supra) as under: where the detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such person in detention under the preventive detention laws has to be clearly indicated If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities, which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. ( 12 ) WE have considered the submissions made before us and have gone through the judgments relied upon by the parties. On perusal of the grounds of detention enclosed along with the petitions and counter affidavit of the District Magistrate, Meerut, it is apparent that the detaining authority has not recorded his satisfaction that there was possibility of the petitioners being released on bail in near future. ( 13 ) IT is well settled now that where the detenu is in custody under some other law, the detaining authority is required to apply his mind and show his awareness that detenu is already in jail in the grounds of detention, chances of his being released on bail in near future and necessity of keeping him under detention under the provisions of the Act. Where order of detention does not indicate that the detenu is likely to be released on bail, the order would be vitiated. The emphasis in the decision is that such satisfaction is to be recorded in the grounds of detention and it cannot be supplemented by way of counter affidavit of the detaining authority. Where order of detention does not indicate that the detenu is likely to be released on bail, the order would be vitiated. The emphasis in the decision is that such satisfaction is to be recorded in the grounds of detention and it cannot be supplemented by way of counter affidavit of the detaining authority. ( 14 ) NO other point was pressed in these petitions. In view of the aforesaid discussion and decisions of the Honble Apex Court, we hold that all the three petitions deserve to be allowed and order of detention passed against the petitioners are not sustainable. ( 15 ) IN the result, all the three petitions succeed and are hereby allowed. The petitioners shall be set at liberty forthwith unless they are required to be detained in any other crime. However, there will be no order as to costs. Petition allowed. .