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2010 DIGILAW 875 (MP)

Sanjay Yadav v. State of Madhya Pradesh

2010-08-30

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2010
ORDER Prakash Shrivastava, J. 1. This writ petition is at the instance of the Petitioner No. 1 - detenu and the Petitioner No. 2 - his father, challenging the order dated 17-2-2010 passed by the District Magistrate, Badwani in N.S.A. Case No. 1/2010 directing the detention of the Petitioner No. 1 under Section 3(2) of the. National Security Act, 1980 ("Act" hereafter) as confirmed by the order of the State Government dated 15-4-2010 under Section 12(1) of the Act directing that the Petitioner No. 1 will be kept in detention for a period of 12 months till 21-2-2011. 2. The brief facts are that the Petitioner No. 1 is a resident of Sendhwa. The impugned detention order dated 17-2-2010 was passed against him under Section 3(2) of the Act and he was taken in detention on 22-2-2010. He was served with the detention order and grounds of detention along with the documents on 22-2-2010. The case was sent for approval of the Government on 17-2-2010 and the State Government granted approval on 26-2-2010 and the information was sent to the Central Government on 2-3-2010. The case was sent to the Advisory Board on 3-3-2010 and the Advisory Board gave its opinion and thereafter the order confirming the detention order was passed on 15-4-2010. Aggrieved with the detention order, the Petitioners have approached this Court. 3. Learned Counsel for the Petitioners submitted that the Respondents have relied upon the stale material for the purpose of the detention of the Petitioner No. 1. He further submitted that the Petitioner No. 1 is already in jail and the detention order has been passed without application of mind and that there is no material to indicate that the Petitioner No. 1 is indulging in any activity from inside the jail to disturb public order. 4. Learned Counsel appearing for the Respondents submitted that the grounds of detention indicate that no error has been committed by the Respondents in passing the detention order since the Petitioner is involved in the activities disturbing the public order. 5. We have heard learned Counsel for the parties and perused the record. 6. It is the settled position in law that detention of a person without a trial is a very serious encroachment on his personal freedom and at all stage all questions in relation to the detention are required to be carefully and solemnly considered. 5. We have heard learned Counsel for the parties and perused the record. 6. It is the settled position in law that detention of a person without a trial is a very serious encroachment on his personal freedom and at all stage all questions in relation to the detention are required to be carefully and solemnly considered. Since the preventive detention is a serious inroad into the freedom of individuals, therefore, reason, purposes and the manner of such detention is subject to closest scrutiny and examination. The Supreme Court in the matter of Shafiq Ahmad v. District Magistrate, Meerut and Ors., reported in (1989) 4 SCC 556 , has laid down the scope of judicial review by observing that: Hence, there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the Petitioner which are prejudicial to the maintenance of public order. Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct "it is necessary" to make an order "detaining" such person, are subject to judicial review. 7. The Petitioner No. 1 is already in jail for offence under Section 302, IPC, which is apparent from Ground No. (40) of Grounds of Detention supplied to the Petitioner, but the grounds or the detention order do not reflect that the Respondents have applied their mind to the possibility of the Petitioner No. 1 being released on bail. 8. 7. The Petitioner No. 1 is already in jail for offence under Section 302, IPC, which is apparent from Ground No. (40) of Grounds of Detention supplied to the Petitioner, but the grounds or the detention order do not reflect that the Respondents have applied their mind to the possibility of the Petitioner No. 1 being released on bail. 8. It is the settled position in law that the authorities are not precluded from passing an order of detention when the person concerned is in jail, but while passing the order of detention, they are required to apply their mind to the fact that the person concerned is already in jail and there are compelling reasons justifying such detention despite the fact that the detenu was already in detention and the compelling reasons implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that the detenu is likely to be released from custody in the near future or 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 order to prevent him from engaging in such activities. The aforesaid proposition in law is supported by the judgments of the Supreme Court in the matter of Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, Commissioner of Police, Ahmedabad and Anr., reported in (1989) 2 SCC 222 ; in the matter of N. Meera Rani v. Government of Tamil Nadu and Anr., reported in (1989) 4 SCC 418 ; and in the matter of Dharmendra Suganchand Chelawal v. Union of India and Ors., reported in (1990) 1 SCC 746 . 9. In the present case the Respondents have noted the fact that the Petitioner No. 1 is in jail but there is no application of mind by the Respondents in respect of the possibility of the release of the Petitioner No. 1 on bail in respect of the offence of Section 302, IPC and other connected offences for which he is already in jail. The detention order and the grounds of detention do not mention if the Petitioner No. 1 had applied for grant of bail and what was its but come. The detention order and the grounds of detention do not mention if the Petitioner No. 1 had applied for grant of bail and what was its but come. Thus, the detention based on Ground No. 40 cannot be sustained having been passed without application of mind on this aspect. 10. In the Ground No. 41 of the detention order it is mentioned that the Petitioner No. 1 is indulging in the activity of illegal recoveries from the businessmen of Sendhwa from inside the jail through the persons who come to meet him. But this ground is based only upon one Rojnamcha Sanha entry of 12-1-2010, which even does not disclose the name of the person who had informed that the Petitioner No. 1 is indulging in any such activity from the jail. 11. The Supreme Court in the matter of Fazal Ghosi v. State of U.P and Ors., reported in (1987) 3 SCC 502 , has held that the satisfaction of the District Magistrate is subjective in nature but even subjective satisfaction must be based upon some patent material. The question is not of sufficiency of that material but of the very existence of the relevant material. 12. In the present case only on the basis of the Rojnamcha Sanha entry, which does not even disclose the sources of intimation and which is not supported by any FIR, complaint or report, it has been alleged that the Petitioner is indulging in the illegal activity from inside the jail. There was no material existing in the eyes of law for such an allegation. Even otherwise the Respondents have failed to point out as to how they will prevent the Petitioner No. 1 from indulging in any such activity when he will be detained in preventive detention if they have failed to stop him from indulging in such activities when he is already in jail for the offence under Section 302, IPC alleged to have been committed by him. 13. The detention order is also under challenge on the ground that it has been passed on the basis of old and stale material. 13. The detention order is also under challenge on the ground that it has been passed on the basis of old and stale material. The Constitution Bench of the Supreme Court in the matter of Rameshwar Shaw v. District Magistrate, Burdwan and Anr., reported in AIR 1964 SC 334 , has held that the past conduct or antecedent or history of the person on which the authority purports to act, should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. 14. In the present case, the cases which were registered against the Petitioner No. 1 about 25 years back have been made the basis for the order of detention. The Ground Nos. (1) to (31) relate to the criminal cases registered against the Petitioner No. 1 between the period June, 1985 to April, 2002. The Ground Nos. (33) to (38) relate to the cases registered against him in the year 2007; whereas the order of detention has been passed in the year 2010. These cases are not proximate in point of time to form the basis for passing the order of detention. Even otherwise the uncontroverted chart disclosed in the writ petition indicates that out of these 38 cases, the Petitioner No. 1 was already acquitted in 28 cases. He was convicted and imposed the fine only in 3 cases and 7 cases are pending. The cases in which the Petitioner No. 1 has already been acquitted or the cases for minor offences for which only the fine has been imposed and which relate to law and order problem could not have been formed the basis for preventive detention. Thus, it is found the Ground Nos. (1) to (38) mentioned in grounds of detention served upon the Petitioner cannot form the basis for passing the order of detention. 15. The Ground No. (39) is in respect of the offence to Gambling Act and does not relate to public order problem. 16. The Ground No. (42) of detention order refers to one of the Rojnamcha Sanha Entry of 5-9-2006 relation to the collection of illegal contribution for Ganesh Chaturthi festival. But this Rojnamcha itself is more than three and half year old and it is not in proximate in point of time. Therefore, not relevant for the present detention. 17. 16. The Ground No. (42) of detention order refers to one of the Rojnamcha Sanha Entry of 5-9-2006 relation to the collection of illegal contribution for Ganesh Chaturthi festival. But this Rojnamcha itself is more than three and half year old and it is not in proximate in point of time. Therefore, not relevant for the present detention. 17. The Ground No. (43) of detention order refers to the earlier detention orders passed against the Petitioner No. 1 but those alone cannot form the basis for passing fresh detention order against the Petitioner No. 1 if no other legally sustainable ground for preventive detention is made out. 18. Thus, it is found that none of the ground on which the order of detention is based are legally sustainable and the order of detention could not have been lawfully passed on the basis of the 43 grounds of detention supplied to the Petitioner No. 1. 19. Learned Counsel for the Respondents has relied upon the judgments in the matter of Shahajad v. State of M.P. and Anr., reported in 2002 Cri.LJ 1587; in the matter of Charan Singh v. Union of India and Ors., reported in 2001(1) M.P.H.T. 296 (DB) : 2000 Cri.LJ 4315; and in the matter of State of U.P and Anr. v. Sanjai Pratap Gupta ' Pappu and Ors., reported in AIR 2004 SC 4703 ; wherein it has been held that even single act affecting public order can form the basis and the background and antecedents of the detenu can be considered. But in the present case, the Respondents have failed to point out even a single act relating to the public order proximate in point of time when the order of detention was passed. They have also failed to justify the need for passing the detention order when the Petitioner No. 1 is already in jail. The cases relied upon by the Respondents do not relate to the detention when the detenu was already in jail at the time of passing of the order of detention, therefore, they are distinguishable on their own facts and are not relevant for the purposes of the present controversy. 20. In view of the aforesaid analysis, we find that the impugned order of detention passed against the Petitioner No. 1 cannot be sustained and the same is hereby set aside. The Petitioner No. 1 is in jail. 20. In view of the aforesaid analysis, we find that the impugned order of detention passed against the Petitioner No. 1 cannot be sustained and the same is hereby set aside. The Petitioner No. 1 is in jail. He be released forthwith, if not required in any other offence.