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2009 DIGILAW 2455 (ALL)

DILSHAD v. STATE OF U. P.

2009-07-03

V.K.DIXIT, VINOD PRASAD

body2009
JUDGMENT Hon’ble Vinod Prasad, J.—Dilshad, the detenu petitioner, has invoked our extraordinary jurisdiction under Article 226 of The Constitution of India, through the instant Habeas Corpus Writ Petition, with the prayer that his detention order dated 2.8.2008, under the National Security Act, 1980 (hereinafter referred to as the Act), ordered by the Detaining Authority, respondent No. 3, District Magistrate, Ghaziabad, Annexure 1, to the amendment application, be quashed and he be set at liberty. 2. The grounds of detention, as was supplied to the petitioner under Section 8 of the Act and as is narrated in the counter affidavit filed by the Detaining Authority District Magistrate, Ghaziabad, respondent No. 3, is reproduced below : "On 18/19.4.2008 in the night, the petitioner and his associates Anees @ Tulsi, Kaloo, Pyaru, Sirakat all resident of Village Nahali, Police Station Bhojpur, District Ghaziabad along with Asif and Hashmat resident of Village Todi, 13 Biswa, Police Station Bhojpur, District Ghaziabad committed theft of electricity wire in the forest of Village Eesapur. The petitioner and his associates cut 1050mt. Electricity wires from the L.T. Line of Kandam Singh, three wires of 5 spane, three wires of one spane from L.T. Line of Bhahm Singh, measuring 110mt. Three wires of one spane from L.T. Line of Smt. Shikshawati measuring 102mt. One spane wire from L.T. Line of Bhopal Singh and three wire of five spane from the Line of Brahm Singh, measuring 1120mt. At the time of cutting the wire from the line of Brahm Singh, one electricity pole was also fallen down. In this night, the petitioner and his associates committed theft of wire of 25 K.V. Transformer of Mohammad Umar in forest of Village Todi, 7 Biswa. The First Information Report in respect of this occurrence was lodged by Sahastrapal Singh. Junior Engineer 33/11 K.V. Electricity, Sub-Station Kilhoda at Police Station Bhojpur on 1.5.2008, which was registered vide case crime No. 96 of 2008 under Section 136 of Electricity Act, 2003. The investigation of this case was entrusted to Dayanand Singh, who recovered the stolen electricity wire and prepared the recovery memo. On the pointing out of the petitioner on 20.5.2008 at about 11:45 p.m. Three bundles go cut wires of Electricity department was recovered from bush near bridge of Bamba and after verification it was found that the recovered wires are stolen wires. On the pointing out of the petitioner on 20.5.2008 at about 11:45 p.m. Three bundles go cut wires of Electricity department was recovered from bush near bridge of Bamba and after verification it was found that the recovered wires are stolen wires. In this respect, the Junior Engineer Sahastrapal Singh has submitted his comments on 1.6.2008 and the case is under investigation. In the night of 11/12.5.2008, the petitioner and his associates have stolen two wires of two spane from 11 K.V. line of forest of Village Eesapur. Three wires of three spane measuring 1000 mt. Three wires of three spane from L.T. line of Ram Charan measuring 630 mt. and one wire of one spane from L.T. line of Harpal measuring 60 mtrs. The report of this incident was lodged by Sahastrapal Singh. Junior Engineer on 12.5.2008 at about 7 p.m. which has given rise to case crime No. 111 of 2008 under Section 136 of Electricity Act, 2003. During the course of Investigation, this case was conducted by Shri Chhotey Lal stolen electricity wires were recovered on 20.5.2008 at about 11.45 p.m. from the Bush near bridge of Bamba in Isaqq Nagar and after verification it was found that the recovered wires are stolen wires. The Junior Engineer; Sahastrapal Singh has submitted his report on 1.6.2008 in the night of 11/12.5.2008. The petitioner and his associates cut three wires of two spane from L.T. line of tubewell of Rasool son of Ashraf measuring 130 mt. and three wires of four spane L.T. Line of Ved Pal Singh measuring 360 mt. The First Information Report regarding this Incident was lodged on 19.5.2008 by Udaibhan Kushwaha, J.E. 33/11 K.V. Electricity Sub-station Fareednagar at Police Station Bhojpur, which has given to rise case crime No. 124 of 2008, under Section 136, Electricity Act, during the course of investigation, the recovered stolen wires were sealed and recovery memo was prepared. After investigation, it was found that the cut wires of the stolen wires and J.E. Udaibhan Kushwaha submitted its report on 5.6.2008. In the night of 12.5.2008, the petitioner and his associates had stolen she buffalo of Azad son of Alebel Singh and a case crime No. 125 of 2008 under Section 379, IPC was registered on 20.5.2008 at about 12.30. In the night of 12.5.2008, the petitioner and his associates had stolen she buffalo of Azad son of Alebel Singh and a case crime No. 125 of 2008 under Section 379, IPC was registered on 20.5.2008 at about 12.30. In the same evening, the petitioner was arrested from the forest of Village Eesalpur in the suspected situation of Sohanbeer Singh son of Faker Chand Resident of Village Eesapur, Police Station Bhojpur, District Ghaziabad and he was sent to the lock-up of Police Station Bhojpur; District Ghaziabad in the night at about 8.15 a.m. After Interrogation, the petitioner confessed about the theft of she buffalo of Azad and also stolen wires in relation to case crime No. 96 of 2008 under Section 136 of Electricity Act, 2003. A case crime No. 218 of 2008 under Section 136 of Electricity Act, 2003 and case crime No. 124 of 2008 under Section 136 of Electricity Act, 2003 at Police Station Bhojpur, District Ghaziabad. The petitioner also confessed that a part of the stolen wires has been sold by the petitioner and he recovered the stolen wires. The stolen wires were recovered on the pointing out of the petitioner by Sub-Inspector Ajab Singh, Inspector Incharge Bhojpur, District Ghaziabad. The recovery memo was prepared. The recovered electricity wires sent for verification by the investigating officers of case crime No. 96 of 2008, 112 of 2008 and 124 of 2008 and after verification, it was found that these are the cut wires of electricity department. Due to the activities of the petitioner and his associates supply of the Electricity has been interrupted in Village Yusufpur Eesapur, Kilhoda, Raghunathpur, Kalchhina, Bhojpur. The total population is about 25,000 and the petitioner and his associates have interrupted the supply of essential commodities to the public at large. The firm of farmers was destroyed and study of the students was also adversely affected. The public at large also suffered great loss due to non-sanctioning of flourmil and incidents of theft increased due to absence of light. The letters have been received by the J.E. Fareednagar and J.E. 33/11 K.V. Electricity Sub-Station, Kilhoida, and Gam Panchayat Munsufpur and Gram Panchayat Kilhoda. The people due to non-supply of the electricity wires were installed, as such huge amount belonging to public revenue has been spent. The activities of the petitioner and his associates created problem of public order. The letters have been received by the J.E. Fareednagar and J.E. 33/11 K.V. Electricity Sub-Station, Kilhoida, and Gam Panchayat Munsufpur and Gram Panchayat Kilhoda. The people due to non-supply of the electricity wires were installed, as such huge amount belonging to public revenue has been spent. The activities of the petitioner and his associates created problem of public order. It was an organized act and the same also shows repeating tendency, hence after being subjectly satisfied, the deponent took preventive action against the petitioner under Section 3(2) of the National Security Act on 25.7.2008.” 3. On such facts, District Magistrate, Ghaziabad was satisfied that there were sufficient reasons to detain the petitioner under the Act to desist him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Hence the District Magistrate detained the petitioner under Section 3(3) of the Act vide his order dated 25.7.2008 (Annexure 1 to this writ petition). The grounds mentioned above along with other relevant materials were served to the petitioner along with the detention order on the same day inside district jail Ghaziabad where the petitioner, on that date, was confined. 4. However, for the reason that there were some topographical errors the Detaining Authority, respondent No. 3, revoked the detention order dated 25.7.2008 (annexure 1 to the writ petition) on 2.8.2008 and simultaneously passed a fresh order of detention under Section 3(3) of the Act, on the same date 2.8.2008 which detention order is Annexure 1 to the amendment application and is now under challenge in this Habeas Corpus Writ Petition. 5. The detention order dated 2.8.2008, along with grounds thereof and all connected papers were forwarded to the State Government by the District Magistrate on the same day which was received by it on 4.8.2008. After examining the case of the detenu petitioner in detail, the State Government approved the detention order under Section 3(4) of the Act, on 8.8.2008, which approval order was communicated to the detenu petitioner on the same day through radio gram and a letter. The detention order along with grounds etc. were also forwarded by the State Government to the Central Government, respondent No. 2, on 11.8.2008, in consonance with Section 3(5) of the Act. 6. The detenu after reviewing detention order and the grounds thereof filed a representation to various authorities on 13.8.2008 through District Magistrate, Ghaziabad. The detention order along with grounds etc. were also forwarded by the State Government to the Central Government, respondent No. 2, on 11.8.2008, in consonance with Section 3(5) of the Act. 6. The detenu after reviewing detention order and the grounds thereof filed a representation to various authorities on 13.8.2008 through District Magistrate, Ghaziabad. Detenu’s representation was received in the office of the Detaining Authority, through Jail Authorities, on the same day. Detaining Authority, respondent No. 3, called for comments from Senior Superintendent of Police, Ghaziabad, which was submitted to him on 20.8.2008. Thereafter the Detaining Authority prepared his comments on 21.8.2008 and forwarded the same to the State Government through special messenger on the same day along with the representation of the petitioner and other documents. Detaining Authority, on his part, considered detenu’s representation and rejected the same on 1.9.2008. 7. The detenus representation dated 13.8.2008, which was dispatched by the Detaining Authority on 21.8.2008, was received to the State Government on 22.8.2008. State Government prepared it’s parawise comments and thereafter dispatched the said representation along with the comments to the Central Government and Advisory Board on 25.8.2008 through two separate letters. Central Government was informed by speed post. Thereafter the concerned Section of the State Government submitted a detailed note on 25.8.2008. Joint Secretary examined the representation on 26.8.2008 and on the following day, O.S.D. examined it and submitted it to the secretary. Secretary on its turn examined it on 28.8.2008 and thereafter the file was submitted to the Higher Authorities for final orders. The State Government finally rejected detenu’s representation on 29.8.2008. Next two days were the holidays being Saturday and Sunday and, therefore, rejection of the representation was communicated to the petitioner detenu through District Authorities vide radio gram dated 1.9.2008. 8. The case of the detenu petitioner was also referred to the Advisory Board, who heard the petitioner in person on 8.9.2008 and finding sufficient grounds to detain the petitioner, submitted it’s report to the State Government, respondent No. 1. On the basis of recommendation by the Advisory Board and after considering the case of the petitioner afresh, State Government confirmed the detention order of the petitioner on 23.9.2008 for a period of 12 months from the date of his detention under Section 12 of the Act. 9. Union of India in its turn received the communication from the State Government on 18.8.2008. 9. Union of India in its turn received the communication from the State Government on 18.8.2008. The secretary considered the same on 1.9.2008 and the case was submitted to the Director (S) who completed the examination of the report in the Ministry of Home Affairs. 10. On the above facts, the petitioner has challenged his detention order in the instant Habeas Corpus Writ Petition. 11. Counter affidavits have been filed by all the respondents to which rejoinder affidavits have also been filed. 12. We have heard Sri S.A. Imam, learned counsel in support of this Habeas Corpus Writ Petition, Sri Sudhir Mehrotra, learned AGA on behalf of respondent State, District Magistrate/Detaining Authority and Jail Superintendent, and Sri Shachi Kant Mishra, learned counsel on behalf of Union of India. 13. Learned counsel for the petitioner contended before us that the detention of the petitioner is absolutely illegal and cannot be sustained at all. He submitted that the present detention order is based on total non-application of mind and is against the provisions of the Act. Learned counsel further contended that in it’s counter affidavit, Union of India, has nowhere said that it had decided the representation of the detenu petitioner and, therefore, it is to be taken that the detenu’s representation has not been considered by the Union of India at all and this fact alone renders the detention order illegal. Learned counsel for the petitioner further submitted that on the same facts, the detenu petitioner cannot be detained twice. It is further submitted that earlier detenu was detained under the Act, vide detention order dated 25.7.2008, which detention order (Annexure 1 to the writ petition) was revoked on 2.8.2008 by the detaining authority himself who, on the same day, passed a fresh order of detention on those very materials and grounds on the basis of which detention order dated 25.7.2008 was passed. Learned counsel further submitted that admittedly, the detention order was passed after the bail was granted to the detenu petitioner and, therefore, exercise of power under Section 3(3) of the Act by the Detaining Authority is a malafide exercise. Learned counsel for the petitioner further submitted that the present Habeas Corpus Writ Petition deserves to be allowed and the petitioner be directed to be set at liberty forthwith. 14. Learned counsel for the petitioner further submitted that the present Habeas Corpus Writ Petition deserves to be allowed and the petitioner be directed to be set at liberty forthwith. 14. Learned AGA as well as learned Standing Counsel for the Union of India/Central Government, contrarily refuted the arguments and contended that the detention order is a legal and valid exercise in consonance with the Act and the Habeas Corpus Writ Petition is bereft of merits and deserves to be dismissed. They submitted that because of topographical error, the earlier detention order dated 25.7.2008 was revoked by the Detaining Authority on 2.8.2008, on which date a fresh detention order was passed. They further submitted that the said power is vested in the Detaining Authority in consonance with Section 14 of the Act and, therefore, no criticism can be made of the action taken by the Detaining Authority under Section 3(3) of the Act against the detenu petitioner. Both the counsels submitted that since there was eminent danger of the petitioner repeating the activity prejudicial to the maintenance of the essential services to the community that the detention order was validly passed. Learned AGA submitted that the Detaining Authority had considered the fact that unless there is eminent possibility of the detenu being released on bail, the detention order should not be passed and, therefore, he waited till the bail was granted to the detenu petitioner and it was only when there was an immediate and eminent possibility of detenu being released from jail that the power under the Act was exercised by the Detaining Authority. Learned AGA contended that detenus representation was decided by the Detaining Authority and the State Government without any delay and, therefore, the present Habeas Corpus Writ Petition be dismissed as meritless. 15. We have considered the arguments raised by both the sides and have gone through the various counter affidavits and rejoinder affidavits. The controversy which is mooted before us for consideration is as to whether the subsequent detention order dated 2.8.2008 could have been for a period of 12 months or not? This aspect of the matter has to be analysed and judged in the light of Section 14 of the Act. For a better understanding, we hereby reproduce Section 14 of the Act, which is as follows : “14. This aspect of the matter has to be analysed and judged in the light of Section 14 of the Act. For a better understanding, we hereby reproduce Section 14 of the Act, which is as follows : “14. Revocation of detention orders.—(1) Without prejudice to the provisions of Section 21 of the General Clauses Act 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,— (a) notwithstanding that the order has been made, by an officer mentioned in sub-Section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding that the order has been made by a State Government, by the central Government. (2) The expiry or revocation of a detention order (hereafter in this sub-Section referred to as the earlier detention order) shall not whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984 bar the making of another detention order (hereafter in this sub-Section referred to as the subsequent detention order) under Section 3 against the same person : Provided that in a case where no fresh facts have arisen after expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.” 16. A perusal of the above referred Section reveals that a fresh order of detention can be passed after expiry or revocation of the earlier detention order but if the grounds on which the subsequent detention order has been made is the same against a person, then the maximum period for which the said person can be detained, in pursuance to the second detention order, shall, in no case extent beyond the expiry of a period of 12 months from the date of detention under the earlier detention order”. Underline italics words do not admit any exception and are clear and unambiguous. They clearly lay down that the subsequent detention order can be passed after revocation of an earlier detention order but the period of detention in the subsequent order cannot exceed 12 months from the date on which earlier revoked detention order was passed. Underline italics words do not admit any exception and are clear and unambiguous. They clearly lay down that the subsequent detention order can be passed after revocation of an earlier detention order but the period of detention in the subsequent order cannot exceed 12 months from the date on which earlier revoked detention order was passed. This clearly means that the subsequent detention order has to be for a period of less than 12 months, if the same has been ordered after a gap of few days from the revoked detention order. In such a situation the second detention order, after revocation of the first detention order, cannot be for a period of 12 months. Days lapsed between revoked detention order and passing of a fresh detention order has to be substracted while calculating the period of detention and therefore subsequent detention period can be only for the residue of the periods left. In the present case, to remove our doubts regarding the correctness of the dates and the grounds being identical, we have called for the original record and have perused it ourselves. The perusal of the original record also indicates that in the confirmation order on the first page, the date, which is mentioned is, 25.7.2008, but in the last paragraph of the same page the period which is mentioned is 12 months. It is an admitted case of the respondent authorities that the earlier detention order was passed on 25.7.2008 which was revoked on 2.8.2008, on which date impugned fresh detention order was passed. However, the grounds in both the detention orders remains the same as, after passing of the fresh detention order on 2.8.2008, no fresh grounds of detention was served to the detenu petitioner and that very grounds remained which were served to him on 25.7.2008 along with the revoked detention order. 17. In such a view, according to the provisions of Section 14 of the Act, the detention order dated 2.8.2008 could not have been for a period of 12 months and, therefore, the confirmation of the petitioner’s detention by the State Government, under Section 12 of the Act, could have been only for a period of 11 months and 22 days. It could not have exceeded the said period. 18. It could not have exceeded the said period. 18. Further it is to be noted that once the detention order dated 25.7.2008 was revoked by the Detaining Authority, the same could not have been confirmed by the State Authorities. What could have been confirmed by it on 23.9.2008, is the detention order which was in vogue on that date. On the said date the detention order dated 25.7.2008 was not in vogue and therefore it could not have been confirmed by the State respondent. What was in vogue on the aforesaid date (23.9.2008) was the detention order dated 2.8.2008. In such a view, the confirmation of the order dated 25.7.2008 by the State Government was wholly illegal. Learned AGA made a vain attempt to justify the perpetrated illegality and submitted that there is a proforma prescribed for confirmation of the detention order and there was some topographical error in filling up that proforma and, therefore, with hand ink some words were added in it. The justification of learned AGA, through supplementary counter affidavit filed before us, is wholly unacceptable. The perusal of the confirmation order clearly indicates that it breaches Section 14 of the Act directly and substantially. The first page of the confirmation order is in direct contradiction with the back page. There was no detention order dated 25.7.2008 before State Government and, therefore, mentioning of the said date on the first page of confirmation order was wholly unnecessary. Secondly, the petitioner could not have been detained for a period of 12 months as we have already pointed out above after holding that, the subsequent detention order has to for the residue period of the first detention order. The petitioner’s detention could have been only for a period of 11 months and 22 days. 19. There is yet another reason for us not to accept the AGA’s contention and that is that the legislature was conscious of the fact that detention order can be annulled but if the grounds remains the same then period of 12 months should not be allowed to be breached by passing of repeated detention order. It is recalled here that the maximum period of detention can not exceed 12 months as is provided under Section 11 of the Act. We, therefore, reject the argument of learned AGA that the detention of the petitioner is legal and valid. It is recalled here that the maximum period of detention can not exceed 12 months as is provided under Section 11 of the Act. We, therefore, reject the argument of learned AGA that the detention of the petitioner is legal and valid. On this score alone, this Habeas Corpus Writ Petition deserves to be allowed. 20. There is yet another reason for us to allow this Habeas Corpus Writ Petition and set aside the impugned detention order dated 2.8.2008 and that is that Union of India in it’s counter affidavit has nowhere stated that it had considered the representation of the detenu petitioner at all . Admittedly, in it’s counter affidavit, Union of India has accepted receiving of the said representation. For the sake of clarity, we hereunder refer two relevant paragraphs of the counter affidavit filed by the Union of India, which are paragraphs 4 and 5 below : “4. That with regard to para 24 of the petition it is submitted that a report as envisaged under Section 3(5) of the National Security Act, 1980 about the detention of the petitioner was made by the Government of Uttar Pradesh to the central Government in the concerned Desk in the Ministry of Home Affairs vide their letter No. 108/2/143/2008-CX-7 dated 8.8.2008. The said report was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 18.8.2008. It was put up to Under Secretary (NSA) on 1.9.2008 who carefully considered the case and submitted to Director (S), Director (S) who completed the examination of the report the Ministry of Home Affairs. 5. That no case has been made out by the detenue for interference and the petition should be rejected.” 21. It was for the Union of India to satisfy this Court that it had considered detenue’s representation and has decided the same. In absence of any such averments made by Union of India, we have left with no option but to conclude that Union of India has not decided detenu’s representation at all. It was for the Union of India to satisfy this Court that it had considered detenue’s representation and has decided the same. In absence of any such averments made by Union of India, we have left with no option but to conclude that Union of India has not decided detenu’s representation at all. In our this view we are fortified by a judgment of the Apex Court rendered in Rajendra v. Commissioner of Police, Andhra and others, 1994 SCC (Cri.) 1706; wherein it has been held by the apex Court as under : "An effort was made by the learned Additional Solicitor General to persuade us to adjourn the matter to enable the Central Government to produce the file for our perusal. It appears that of late the Central Government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, of filing a counter in time before the Court dealing with the Habeas Corpus petition. Needless to say that the Central Government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The Court is expected to go by the pleadings and the Central Government is expected to place the factual material in connection with the detention order by filing a counter-affidavit so that the petitioner has an opportunity to met with that factual information. The indulgence shown by the Courts in pursuing the file seems to have given an impression that the Central Government is under no obligation to file a counter-affidavit to explain the delay. We propose to remove this impression once and for all if it persists and to impress upon the Central Government that it is under obligation to file its counter within the time permitted by the Court failing which the case may go by default. Let it be clearly understood that production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file counter but to satisfy its conscience if it notices ambiguities in the Government’s stand. Let it be clearly understood that production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file counter but to satisfy its conscience if it notices ambiguities in the Government’s stand. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. In the instant case no counter was filed and the High Court has taken note thereof but, if we may say so with respect, the Court has shown indulgence by observing that the counter is not filed ‘presumably because there is no specific allegation in this behalf in the petition. Let it be stated that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously. If there is some ex facie delay, the obligation is on the State to explain that delay. There is no question of a specific allegation to be made in the petition except pointing out by placing facts that there has been a delay which ex facie calls for an explanation and that obligation has to be discharged by filing a proper counter and explaining the delay. The Courts have not been unduly strict in insisting that each day’s delay must be explained but it is obligatory on the part of the Government to show by filing a counter-affidavit that it had acted promptly in dealing with the representation. What is essential is that the Court must be satisfied that the officers dealing with the representation- were not indifferent to the urgency of the situation of the detenu being in jail. We are afraid that in the instant case by failing to file a counter-affidavit and by failing to explain the ex-facie delay, the Central Government failed in its duty and, therefore, we see no alternative but to uphold the contention and quash the detention order." 22. Rest of the contentions raised are not essential for us to deal with as we are of the opinion that the impugned detention order of the petitioner under the Act cannot be sustained. 23. Rest of the contentions raised are not essential for us to deal with as we are of the opinion that the impugned detention order of the petitioner under the Act cannot be sustained. 23. From the discussions made above, we find that the impugned detention order of the petitioner, dated 2.8.2008, vide Annexure 1 to the amendment application, passed by Detaining Authority, District Magistrate Ghaziabad, under Section 3(3) of the Act is wholly illegal and is indefensible. It has to be set aside and we hereby set it aside. 24. This Habeas Corpus Writ Petition is allowed. 25. Petitioner is directed to be released from jail forthwith unless he is incarcerated in it in connection with any other case under the legal orders. 26. There shall be no order as to cost. ———