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2006 DIGILAW 318 (UTT)

Umesh Maheshwari v. State of Uttaranchal

2006-06-20

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PRAFULLA C. PANT, J. These two Habeas Corpus petitions have been moved by the petitioners challenging the detention orders dated 21st of July, 2005 (Annexure No. 2 to the writ petitions), passed under Section 3 of the National Security Act, 1980, by the District Magistrate, Udham Singh Nagar. 2. We heard learned Counsel for the parties and perused the record. 3. Brief facts, as narrated in the writ petition No. 13 of 2005, filed on behalf of petitioner Umesh Maheshwari, are that the petitioner Umesh Maheshwari alias Umesh Pahalwan is a named accused in crime No. 1565 of 2005 under Section 302/34 of the Indian Penal Code, 1860 (for brevity hereinafter the IPC), registered with Police Station Kashipur, District Udham Singh Nagar. He is in jail in connection with said crime. The role assigned in the First Information Report (for brevity hereinafter FIR) to this petitioner is of exhortation to another accused in the murder of one Manoj Chaudhary, Vice-Chairman of Nagar Palika Parishad, Kashipur. It is alleged in this petition that the deceased Manoj Chaudhary himself was a man of a shady character and was involved in several heinous crimes. A copy of said FIR is Annexure No. 1 to the writ petition. When the petitioner was taken into custody in connection with above crime, he was served with the impugned detention order, on 22-7-2005 through the Superintendent, District Jail, Nainital. The impugned order passed under the National Security Act (Act No. 65 of 1980) is Annexure No. 2 to this writ petition. It appears that on 21-7- 2005, the detention order was sent to the Government, for its approval. The proposal for the detention of the petitioner Umesh Maheshwari alias Umesh Pahalwan under aforesaid Act No. 65 of 1980 was moved on 14-7-2005 by the Investigation Officer of aforesaid crime alleging that the petitioner is a daredevil and hardened criminal. It was further alleged in said proposal that the petitioner with his associates had committed several offences of murder, attempt to murder, dacoity and robbery. It is also alleged by the Police that due to the criminal activities of the petitioner the public order is adversely affected in the area of police station Kashipur. It is alleged in the writ petition that the petitioner has been granted bail on 7-9-2005 in the aforesaid crime No. 1565 of 2005. It is also alleged by the Police that due to the criminal activities of the petitioner the public order is adversely affected in the area of police station Kashipur. It is alleged in the writ petition that the petitioner has been granted bail on 7-9-2005 in the aforesaid crime No. 1565 of 2005. The proposal of the Investigating Officer was approved by the Additional Superintendent of Police and Senior Superintendent of Police, Udham Singh Nagar and the matter was forwarded to the District Magistrate. Udham Singh Nagar recommending to pass necessary orders under the National Security Act, 1980. Consequently, impugned detention order was passed and served on 22-7-2005 on the petitioner asking him that he make represervation against the detention order. A representation (copy of which is Annexure No. 8 to this writ petition) addressed to the Government, was made by the petitioner Umesh Maheshwari alias Umesh Pahalwan. In his representation, the petitioner has alleged that the petitioner has been falsely implicated in number of false cases, time and again, by the police in connivance with one person or the other. It is also alleged by him that he has never been indulged in any activities which caused fear and terror amongst the citizens of the area and had caused public disorder in any manner. It is also alleged in the representation that the District Magistrate has not applied his mind and without any rhyme and reason wrongly implicated him under National Security Act, 1980. It is further alleged that the petitioner was falsely implicated due to enmity in the murder of Manoj Chaudhary and the whole story regarding his involvement in the said crime is baseless and based on wrong facts. Lastly, it was also stated in the representation that the petitioner is a peace loving person and well aware of his responsibilities towards the society. The petitioner Umesh Maheshwari alias Umesh Pahalwan was elected as member of Municipal Board by the people and he was also President of Traders Association. The petitioner himself is a businessman. 4. Brief facts in the connected writ petition No. 14 of 2005, filed on behalf of petitioner Gurumukh Singh, are that the petitioner Gurumukh Singh alias Gorkha is a named accused in crime No. 1565 of 2005 under Section 302/34 of the IPC, registered with Police Station Kashipur. District Udham Singh Nagar. He is in jail in connection with said crime. Brief facts in the connected writ petition No. 14 of 2005, filed on behalf of petitioner Gurumukh Singh, are that the petitioner Gurumukh Singh alias Gorkha is a named accused in crime No. 1565 of 2005 under Section 302/34 of the IPC, registered with Police Station Kashipur. District Udham Singh Nagar. He is in jail in connection with said crime. The role assigned in the FIR to this petitioner is of shooter in the murder of one Manoj Chaudhary, Vice-Chairman of Nagar Palika Parishad, Kashipur. It is alleged in this petition that the deceased Manoj Chaudhary himself was a man of a shady character and was involved in several heinous crimes. A copy of said FIR is Annexure No. 1 to the writ petition. When the petitioner was taken into custody in connection with above crime, he was served with the impugned detention order on 22-7-2005 through the Superintendent, District Jail, Nainital. The impugned order passed under the National Security Act (Act No. 65 of 1980) is Annexure No. 2 to this writ petition. It appears that on 21-7- 2005, the detention order was sent to the Government, for its approval. The proposal for the detention of the petitioner Gurumukh Singh alias Gorkha under aforesaid Act No. 65 of 1980 was moved on 14-7-2005 by the Investigation Officer of aforesaid crime alleging that the petitioner is a daredevil and hardened criminal. It is further alleged that the petitioner with his associates had committed several offences of murder, attempt to murder, dacoity and robbery. It is also alleged by the Police that due to the criminal activities of the petitioner the public order is adversely affected in the area of police station Kashipur. It is alleged in the writ petition that the petitioner has been granted bail on 7-9-2005 in the aforesaid crime. The proposal of the Investigating Officer was approved by the Additional Superintendent of Police and Senior Superintendent of Police, Udham Singh Nagar and the matter was forwarded to the District Magistrate, Udham Singh Nagar recommending to pass necessary orders under the National Security Act, 1980. Consequently, impugned detention order was passed and served on 22- 7-2005 on the petitioner Gurumukh Singh alias Gorkha asking him that he may make representation against the detention order. A representation (copy of which is Annexure No. 8 to this writ petition) addressed to the Government, was made by the petitioner. Consequently, impugned detention order was passed and served on 22- 7-2005 on the petitioner Gurumukh Singh alias Gorkha asking him that he may make representation against the detention order. A representation (copy of which is Annexure No. 8 to this writ petition) addressed to the Government, was made by the petitioner. In his representation, the petitioner Gurumukh Singh alias Gorkha has alleged that the petitioner has been falsely implicated in number of false cases, time and again, by the police in connivance with one person or the other. It is also alleged by him that he has never been indulged in any activities which caused fear and terror amongst the citizens of the area and had caused public disorder in any manner. It is also alleged in the representation that the District Magistrate has not applied his mind and without any rhyme and reason wrongly implicated him under National Security Act, 1980. It is further alleged that the petitioner was falsely implicated due to enmity in the murder of Manoj Chaudhary and the whole story regarding his involvement in the said crime is baseless and based on wrong facts. It is stated in the representation that the petitioner Gurumukh Singh alias Gorkha is a peace loving person and well aware of his responsibilities towards the society. Lastly, it is stated that the petitioner himself is a businessman. 5. In the counter-affidavit filed by respondent No. 2 in the Habeas Corpus Writ Petition No. 13 of 2005. it is admitted that the petitioner Umesh Maheshwari alias Umesh Pahalwan has been the Vice-Chairman of the Nagar Palika Parishad, Kashipur for two years and thereafter Manoj Chaudhary (deceased) succeeded him for the said post till his death. It is also submitted that the above petitioner and the deceased were on inimical terms due to the said post of Vice-Chairman. In reply to the contents of para 2 of the Habeas Corpus Writ Petition No. 14 of 2005, filed on behalf of petitioner Gurumukh Singh alias Gorkha, it has been stated in the separate affidavit by respondent No. 2 that Gurumukh Singh alias Gorkha has been named in the FIR and specific role of firing on the deceased is assigned to him. In both the counter-affidavits, in reply to the contents of para 10 of the writ petitions, it is stated by the answering respondent that the petitioners namely Umesh Maheshwari alias Umesh Pahalwan and Gurumukh Singh alias Gorkha both were hardcore criminals and as such due to their terror no person from the public could dare to speak against them and both of them were earlier acquitted by the trial Courts mostly on the ground that the prosecution witnesses turned hostile. It is further stated in the counter-affidavits filed by respondent No. 2 that representations of the petitioners which were addressed to the Government of Uttaranchal and Government of India were sent on 4-8-2005 with parawise comments thereon, it is further stated in the counter-affidavits that the representations of the petitioners were rejected by the Government of Uttaranchal. 6. Before further discussions, it is pertinent to mention here the grounds on which the impugned detention orders (Annexure No. 2 to the writ petitions) were passed against the petitioners. Annexure No. 2 to the Habeas Corpus Writ Petition No. 13 of 2005, reads as under : (Sic. . . . . . . . . . . . . . . . . .) Annexure No. 2 to the Habeas Corpus Writ Petition No. 14 of 2005. reads as under : (Sic. . . . . . . . . . . . . . . . . .) 7. The aforementioned orders are accompanied with the grounds mentioned in the letters dated 21-7- 2005 sent by District Magistrate (respondent No. 2) to the Secretary (Home ). Government of Uttaranchal, which are Annexure No. 3 to the writ petitions. Annexure No. 3 to the Habeas Corpus Writ Petition No. 13 of 2005 shows that petitioner Umesh Maheshwari alias Umesh Pahalwan is a hardened criminal who is involved in murders, dacoity and other heinous crimes. His activities has caused fear and terror in the public of Kashipur. Mentioning the crime No. 1565 of 2005. it is alleged that on 5-5-2005 in broad day light, at about 12. 30 p. m. , petitioner Umesh Maheshwari alias Umesh Pahalwan with his associate Gurumukh Singh alias Gorkha committed murder of Manoj Chaudhary, Vice-Chairman of Nagar Palika Parishad, Kashipur, due to which there was terror in the public and the panic stricken shopkeepers put their shutters down and traffic also was disrupted. 30 p. m. , petitioner Umesh Maheshwari alias Umesh Pahalwan with his associate Gurumukh Singh alias Gorkha committed murder of Manoj Chaudhary, Vice-Chairman of Nagar Palika Parishad, Kashipur, due to which there was terror in the public and the panic stricken shopkeepers put their shutters down and traffic also was disrupted. It is also alleged in Annexure No. 3 to the writ petition that Umesh Maheshwari alias Umesh Pahalwan has following criminal history to his account : (i) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in a robbery committed on 25-8-1990 (crime No. 626/90 under Section 394/304 of IPC, P. S. Kashipur ). However, for the want of evidence, a final report was submitted in said crime. (ii) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 762/90 under Section 307 of IPC. P. S. Kashipur, relating to the incident dated 22-10-1990, at about 2- 30 p. m. , in which after accepting Rs. 20,000/- from a landlord to get his house vacated, the tenants son was slabbed. However, the accused was acquitted m said case as the witnesses did not dare to adduce evidence against him. (iii) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 695/91 under Section 302 of IPC, P. S. Kashipur, which relates to the incident dated 8-7-1991 in which one Naseem was murdered. (iv) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 1025/91 under Section 302 of IPC, P. S. Kashipur, in which on 12-10-1991, he committed murder of one Shiv Raj Singh. However, witnesses did not dare to adduce evidence against the petitioner and he was acquitted of the charge. (v) He (Umesh Maheshwari alias Umesh Pahalwan) was booked on 29-5-1993 in crime No. 641 /93 under Section 2/3 of the U. P. Gangsters Act. (vi) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 112/94 under Section 307 of IPC. P. S. Kashipur, which relates to the incident dated 27-2-1994, in which an attempt to commit murder was made on one Dharam Pal Singh. (vii) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 7/95 under Section 323/506 of IPC. P. S. Kashipur, which relates to the incident dated 5-1- 1995. (viii) He (Umesh Maheshwari alias Umesh Pahalwan) alongwith others was involved in crime No. 33/95 under Section 147/307 of IPC. (vii) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 7/95 under Section 323/506 of IPC. P. S. Kashipur, which relates to the incident dated 5-1- 1995. (viii) He (Umesh Maheshwari alias Umesh Pahalwan) alongwith others was involved in crime No. 33/95 under Section 147/307 of IPC. P. S. Kashipur, which relates to the incident dated 13-1-1995, in which petitioner with his associates made an attempt to commit murder of one Sanjay Sharma and his brother. (ix) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 534/95 under Section 307 of IPC and crime No. 535 under Section 4/25 of the Arms Act. P. S. Kashipur. which relates to the incident dated 14-6-1995, in which attempt to commit murder with a knife was made on a police party. (x) He (Umesh Maheshwari alias Umesh Pahalwan) alongwith his associates was involved in crime No. 234/95 under Sections 147/148/149, 452/307/504/506 of IPC, P. S. Kashipur, which relates to the incident dated 18-2-1996, in which one Surjeet Singh was injured with a firearm. (xi) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 561/95 under Section 307 of IPC and crime No. 562/95 under Section 24 of the Arms Act. P. S. Kashipur, which relates to the incident dated 20-6-1995 in which attempt to commit murder against members of policy party was made and the firearm was recovered from the possession of the accused. (xii) He (Umesh Maheshwari alias Umesh Pahalwan) was booked in crime No. 689/95 under Section 3/4 of the U. P. Gunda Act on 14-7-1995. (xiii) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 708/95 under Section 307 of IPC. P. S. Kashipur. which relates to the incident dated 14-7-1995 in which petitioner with his associates made attempt to commit murder against a police officer Sri J. P. Naithani. (xiv) He (Umesh Maheshwari alias Umesh Pahalwan) was booked on 17-7-1995 in crime No. 710/95 under Section 2/3 of the U. P. Gangsters Act. (xv) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 234/96 under Section 147/148/149/452/307/ 504/506 of IPC. P. S. Kashipur, which relates to the incident dated 10-2-1996, in which petitioner alongwith some other persons committed attempt to murder of Surjeet Singh and members of his family. (xvi) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 133/97 under Section 302/120 B of IPC. P. S. Kashipur, which relates to the incident dated 10-2-1996, in which petitioner alongwith some other persons committed attempt to murder of Surjeet Singh and members of his family. (xvi) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 133/97 under Section 302/120 B of IPC. P. S. Ramnagar, which relates to the incident dated 29- 4 1997 in which one Deep Raj Sharma was murdered. (xvii) He (Umesh Maheshwari alias Umesh Pahalwan) was booked on 6-5-1997 in crime No. 332/97 under Section 3/4 of U. P. Goonda Act. (xviii) He was involved in crime No. 357/ 97 under Section 452/323/506/427 of IPC. P. S. Kashipur, which relates to the incident dated 21-5-1997 in which petitioner alongwith his associates committed maar peet with one Dr. Mathur. (xix) He (Umesh Maheshwari alias Umesh Pahalwan) was involved alongwith his associates in crime No. 376/97 under Sections 147/148/149/323/307/376/452/506 of IPC, P. S. Kashipur in which on the intervening night of 1st and 2nd of June, 1997, informants wife and daughters were gang raped by the accused persons. (xx) He (Umesh Maheshwari alias Umesh Pahalwan) was involved in crime No. 655/98 under Sections 307/398 of IPC which relates to the incident dated 20-7-1998, in which the accused persons attacked the police party on patrol duty and made attempt to commit murder and robbery. (xxi) He (Umesh Maheshwari alias Umesh Pahalwan) alongwith other persons was involved in crime No. 701/98 under Sections 147/342/353/504/506 of IPC, P. S. Kashipur. which relates to the incident dated 1-8-1998. (xxii) He (Umesh Maheshwari alias Umesh Pahalwan) raised a gang of criminals and he was booked on 11-10- 1998 in crime No. 1919/98 under Section 2/3 of the U. P. Gangsters Act. (xxiii) He (Umesh Maheshwari alias Umesh Pahalwan) was arrested with 22 packs of smack on 19-7-1999 and a crime No. 720/99 under Section 18/21 of the Narcotics Drugs and Psychotropic Substances Act at P. S. Kashipur was registered against him. (xxiv) On 6-10-2002, he (Umesh Maheshwari alias Umesh Pahalwan) was booked in crime No. 129/2002 under Section 2/3 of the U. P. Gangsters Act; and (xxv) He (Umesh Maheshwari @ Umesh Pahalwan) was involved In crime No. 146/2003 under Section 506 of IPC and under Section 3 (1) (X) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which relates to the incident dated 15-2-2003 in which some Municipal employees were Insulted and Intimidated. 8. Annexure No. 3 to the Habeas Corpus Writ Petition No. 14 of 2005, shows that apart from the involvement of Gurumukh Singh alias Gorkha in crime No. 1565 of 2005 under Section 302/34 of IPC registered at P. S. Kashipur, in which Manoj Chaudhary, Vice-Chairman of Nagar Palika Parishad, Kashipur was allegedly murdered by him (with his associate Umesh Pahalwan), he (Gurumukh Singh alias Gorkha) has following criminal history : (i) He (Gurumukh Singh alias Gorkha) was involved in crime No. 445/97 under Section 307/506 of IPC, which relates to the incident dated 22-6-1997, in which an attempt to commit murder of one Shakeel was made by him. (ii) He (Gurumukh Singh alias Gorkha) was involved in crime No. 829/97 under Section 302 of IPC, P. S. Kashipur, which relates to the incident dated 29-11-1997, in which one Yogender Nath Gupta was murdered. (iii) He (Gurumukh Singh alias Gorkha) was involved in crime No. 400/98 under Section 452/323/504/506 of IPC, which relates to the incident dated 24-5-1998, in which informant Parminder Singh was insulted and intimidated. (iv) He (Gurumukh Singh alias Gorkha) has a gang of criminals. He was booked on 31-5-1998 in crime No. 754/98 under Section 2/3 of the U. P. Gangsters Act. (v) He (Gurumukh Singh alias Gorkha) was involved in crime No. 221/99 under Section 364 of IPC, P. S. Kashipur, which relates to the incident dated 6-4-1999, in which one Ankur Gupta was kidnapped. (vi) He (Gurumukh Singh alias Gorkha) was involved in crime No. 157/99 under Section 302/307 of IPC, P. S. Kashipur, which relates to the incident dated 9-4-1997, in which one Sunil Bali was murdered. (vii) He (Gurumukh Singh alias Gorkha) was involved in crime No. 1068/2001 under Section 302/307 of IPC, P. S. Kashipur, relating to the incident dated 1-10-2001, in which he alongwith his two associates committed murder of one Dr. Umesh Chandra and one more person and injured others. (viii) On 1-11-2000, an unlicensed firearm was recovered from him and the petitioner was challenged under Section 25 of the Arms Act; and (ix) He (Gurumukh Singh alias Gorkha) alongwith his associates was involved in crime No. 28/2004 under Section 147/148/149/302/307 of IPC, P. S. Jaspur, which relates to the incident dated 1-2-2004, in which to take illegal possession of land, the petitioner committed murder of one Mast Ram and Karamjeet Singh. 9. 9. During the arguments it is conceded by learned Government Advocate that in most of the aforesaid crimes the petitioners have been acquitted. Mr. S. K. Aggarwal, senior Counsel, appearing on behalf of the petitioners in both the cases, argued that the detention orders are passed on the basis of stale cases in which the petitioners have not been found guilty and it is further argued that the impugned detention orders are bad in law. The principle of law contained in Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177 : (1986 Cri LJ 2047), shows that simply because a man is discharged in criminal cases is not sufficient to discard the ground mentioned in the preventive detention order provided there is no unexplained interval between the offending acts and the order of detention. In the present case, the aforesaid chain of criminal cases for a long period do constitute a ground for satisfaction of the authority concerned to come to the conclusion that the petitioners have created a situation where there exists terror in the public. Section 5-A of the National Security Act, 1980 provides that where a person has been detained in pursuance of a detention order passed under Section 3 of said Act on two or more grounds, such order of detention shall be deemed to have been made separately on earn of such grounds and the order shall not be deemed to be invalid merely that some of the grounds are vague or nonexistent or invalid or irrelevant. The petitioners are not acquitted of all the cases and the most recent one i. e. , crime No. 1565 of 2005 under Section 302 of IPC, registered at P. S. Kashipur, is still pending in which, it is alleged by respondent No. 2 that the public of Kashipur are so much terror stricken that the shutters were put down by the shop keepers and the traffic came to a halt there. 10. Mr. 10. Mr. S. K. Aggarwal, senior Counsel appearing on behalf of both the petitioners drew attention of this Court to the principle of law laid clown in Om Prakash v. Commissioner of Police, AIR 1990 SC 496 : 1990 Cri LJ 328, Dharamdas Shamlal Agarwal v. The Police Commissioner, AIR 1989 SC 1282 : 1989 Cri LJ 1130 and Chowdarapu Raghunandan v. State of Tamil Nadu, AIR 2002 SC 1460 : 2002 Cri LJ 1836 and contended that there is difference between the "law and order" and `public order. We have gone through said case laws. None of these cases relate to the National Security Act, 1980 and it is not clear if there is any parallel provision like Section 5-A of the Act No. 65 of 1980, in the Gujarat Prevention of Anti- Social Activities Act, 1985 or Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. In State of U. P. v. Sanjai Pratap Gupta, 2005 Supreme Court Cases (Cri) 366 : 2004 Cri LJ 4600, the expression `public order, `law and order and `security of State are explained In which it has been held that it is not the number of acts which matters but the magnitude and other circumstances of the crime which may create terror in the public. In the present case, not only number of cases are high against the petitioners but also magnitude too is large. Therefore, material placed before the respondent No. 2 which is mentioned above, cannot be said to be invalid or irrelevant or vague. 11. For the reasons, as discussed above, in our opinion, impugned orders cannot be said to be without valid reasons or passed without sufficient ground, as required under Section 3 of the National Security Act, 1980. Therefore, in our opinion, both the Habeas Corpus Writ Petitions are liable to be dismissed and are accordingly, dismissed. Petition dismissed. .