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2009 DIGILAW 463 (ALL)

JAFAR HUSAIN v. UNION OF INDIA

2009-02-09

A.K.ROOPANWAL, R.K.RASTOGI

body2009
A. K. ROOPANWAL, J. We have heard Mr. Sanjay Kumar, learned Counsel for the petitioner, Mr. J. K. Sisodia, learned AGA for the State, Mr. N. B. Singh, learned Counsel for the Union of India and perused the record. In this Habeas Corpus Writ Petition filed under Article 226 of the Constitution of India the petitioner Jafar Husain has chal lenged the validity of the detention order dated 19. 5. 2008 passed by the District Magistrate, Bijnor, in exercise of the powers under section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act ). This detention order was passed on a solitary incident giving rise to Crime No. 90 of 2008, under section 489-B and 489-C I. P. C. , Police Station Nahtaur, District Bi jnor. 2. According to the FIR of the case, on 1. 2. 2008 Mr. Shyamveer Singh, Station Officer, Police Station Nahtaur, District Bijnor, got an information that two persons on a Hero Honda Splendor motorcycle are present in the town of Nahtaur and trying to use as genuine forged or counterfeit cur rency notes. On this information the S. O. tried to procure public witnesses but none became ready. The police party came at Jhalu Chauraha where the informer pointed out the above two persons to the police. After some time these persons went to a liquor shop and demanded two quar ters of liquor. The salesman supplied the same. These persons took out bundles of currency notes from their pockets and each of them tried to give a currency note of Rs. 500/- to the salesman on which the police party apprehended them. It was 6. 10 P. M. One of them disclosed his name as Mah-mood and the other was the present peti tioner. The memo of the recovered notes was prepared at the spot. 3. As the act of the petitioner was prejudicial to the maintenance of supplies and services of the Indian currency, hence the Station Officer, Police Station Nahtaur, District Bijnor, sent a report to the Superin tendent of Police, Bijnor, for detaining the petitioner under the provisions of the Act. The memo of the recovered notes was prepared at the spot. 3. As the act of the petitioner was prejudicial to the maintenance of supplies and services of the Indian currency, hence the Station Officer, Police Station Nahtaur, District Bijnor, sent a report to the Superin tendent of Police, Bijnor, for detaining the petitioner under the provisions of the Act. The Superintendent of Police, Bijnor, being satisfied with the report of the Station Offi cer, Police Station Nahtaur, and the rec ommendation of the Circle Officer Police, Police Station Dhampur, Bijnor, and the Superintendent of Police (Rural), Bijnor, thereon recommended the case to the Dis trict Magistrate, Bijnor, for detaining the petitioner under the Act. The District Mag istrate went through all the materials supplied by the sponsoring authority and finding it a fit case for detaining the peti tioner under the Act, detained him under the Act vide order dated 19. 5. 2008. The order was served upon the petitioner, who made representations before the State of U. P. and the Central Government. The State Government approved the detention order on 27. 5. 2008 and this approval was communicated to the petitioner through the District Authorities of the State Government through Radiogram and a letter dated 27. 5. 2008. A copy of the detention order, the grounds of detention and all other connected papers received from the District Magistrate, Bijnor, were also sent to the Central Government by Speed Post on 28. 5. 2008. The case of the petitioner was also referred to the Advisory Board by the State Government and the Advisory Board after giving personal hearing to the peti tioner found that the petitioner was de tained on sufficient grounds. Thereafter the State Government confirmed the detention order and directed that the petitioner shall be detained for twelve month from the date of the order passed by the District Magistrate, Bijnor. 4. Learned Counsel for the petitioner challenged the detention order on the ground that there was no cogent material before the detaining authority on the basis of which he could reach the requisite satisfac tion that the petitioner could repeat the al leged prejudicial activity in future. 4. Learned Counsel for the petitioner challenged the detention order on the ground that there was no cogent material before the detaining authority on the basis of which he could reach the requisite satisfac tion that the petitioner could repeat the al leged prejudicial activity in future. Accord ing to him, the solitary act complained of against the petitioner was not sufficient to indicate in absence of any other cogent ma terial that there was a likelihood of the peti tioner repeating the same incident in future. 5. To the above, it was replied by the learned Counsel for the respondents that the satisfaction recorded by the detaining authority to the effect that there was likeli hood that the petitioner could repeat the prejudicial act in future was based on co gent material namely the report submitted by the Superintendent of Police, Bijnor, and therefore, it cannot be said that the satis faction recorded by the District Magistrate was without any basis. It was also argued that the nature of the incident, which was the basis for passing the detention order was such, as itself indicated that there could be every likelihood of the petitioner involving himself in the same activity in future. They also refuted the argument to the petitioners Counsel that a single case cannot be the basis for passing the valid detention order. 6. The question as to whether and in what circumstances an order for preventive detention can be passed against a person, who is in custody, carne for consideration before a three Judges Bench of the Honble Supreme Court in the case of Dharmendra Suganchand Chelawat v. Union of India 1990 (27) ACC 203 (SC) = AIR 1990 SC 1196 wherein after considering all the earlier relevant decisions, the Apex Court an swered the question in the following words: - "the decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling rea sons" in the context of making an order for detention of a person al ready in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in or der to prevent him from engaging in such activities. " 7. In view of the above decision of the Supreme Court the criteria for judging the validity of a detention order would not be the number of activities complained of but the principles stated in the aforesaid ruling. Even a single case may be sufficient to pass a valid detention order and such view was approved by the Apex Court in the decision in Abdul Sathar Ibrahim Manik v. Union of India and others, AIR 1991 SC 2261 and by this Court in the decision in Vijai Pal alias Pappit v. Union of India and others. 1996 (33) ACC 741. When applying the principles laid down in the case of Dharmendra Suganchand Chelawat v. Union of India on the facts of the present case there could be no escape from the conclusion that the impugned order of detention was validly passed and there was cogent material before the detaining authority to pass this order. 8. The grounds of detention indicate the detaining authoritys awareness of the fact that the detenu was in judicial custody at the time of making the detention order. He had also mentioned the cogent material in the detention order i. e. the details of the offending activity, investigation by the po lice, the effect which the activity had on the public, which was necessary for arriving at the satisfaction that the further detention was necessary under the circumstances of the case. The facts of solitary case, which was the basis of the detention order, show that the petitioner was not doing the trade of fake currency notes all alone, but he was doing the prejudicial activity in association with other persons. The facts of solitary case, which was the basis of the detention order, show that the petitioner was not doing the trade of fake currency notes all alone, but he was doing the prejudicial activity in association with other persons. The activity com plained of against the petitioner was suffi cient to indicate that he was actively en gaged in the trading of fake currency notes as the huge amount of fake currency notes was recovered from his possession and this act of him was definitely prejudicial to the maintenance of supplies and services of the Indian currency essential to the commu nity. In such factual matrix the District Magistrate was perfectly justified in reaching to the subjective satisfaction that the detention of the petitioner was neces sary for the maintenance of supplies and services of Indian currency essential to the community at large. 9. We, in view of the above discus sion, do not find any material on the record to find any fault in the order impugned in this petition. Accordingly, this petition has no merits and is liable to be dismissed. The petition is dismissed. .