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Madhya Pradesh High Court · body

2012 DIGILAW 1245 (MP)

Mohammad Sartaj v. State of M. P.

2012-12-03

ALOK ARADHE, S.A.BOBDE

body2012
JUDGMENT ALOK ARADHE, J. In this writ petition, the petitioner has challenged the validity of the order dated 16-8-2007 passed by the District Magistrate, Jabalpur by which the petitioner has been detained under Section 3(2) of the National Security Act (hereinafter referred to as the Act) as well as the order dated 3-5-2012 by which the representation preferred by him against the order of detention has been rejected by the State Government. 2. Facts leading to filing of the writ petition briefly stated are that the Superintendent of Police, Jabalpur vide memo dated 10-8-2007 informed the District Magistrate, Jabalpur about the criminal activities and involvement of the petitioner in several criminal cases which according to the Superintendent of Police were prejudicial to the public order. It was mentioned in the aforesaid memorandum that the petitioner is a habitual offender and has become member of communal organisation namely SIMI. It was further stated that on account of activities of the petitioner, there is an atmosphere of fear in the locality and the petitioner being the habitual offender, commits the offences publicly which has affected the public order. It was also stated that petitioner is involved in criminal activities since 2002 and various offences have been registered against him which were mentioned in the memorandum. The District Magistrate on being satisfied with the material produced before him, came to the conclusion that the activities of the petitioner were prejudicial to the public order. Accordingly, an order of detention dated 16-8-2007 was passed. It is the case of the petitioner that he learnt about the order of detention some time in the month of November, 2011. He therefore approached this Court by filing a writ petition namely W. P. No. 21227/2011 for quashing the order of detention at the pre-execution stage. This Court vide order dated 23-1-2012 inter alia held that since the petitioner has not surrendered and therefore the grounds of detention have not been served upon him. In the absence of grounds of detention, it is not possible to adjudicate the validity of the order of detention. Accordingly, the writ petition was dismissed with liberty to the petitioner to file a fresh writ petition after obtaining the grounds of detention. Thereafter, the petitioner was arrested on 17-3-2012. In the absence of grounds of detention, it is not possible to adjudicate the validity of the order of detention. Accordingly, the writ petition was dismissed with liberty to the petitioner to file a fresh writ petition after obtaining the grounds of detention. Thereafter, the petitioner was arrested on 17-3-2012. Being aggrieved by the order of detention, the petitioner submitted a representation on 29-3-2012, which was rejected by the State Government vide order dated 3-5-2012. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner submitted that the petitioner resides, in front of police Station, Badi Omti and was not absconding. Even assuming that the petitioner was absconding, the procedure prescribed under Section 7 of the Act in relation to absconding persons ought to have been resorted to by the respondents. It was further, submitted that the order of detention has lost its significance due to efflux of time, as the object of the preventive detention is to prevent a person in anticipation in doing an illegal activity prejudicial to public order. It was further urged that the petitioner was arrested after a period of four years and seven months from the date of passing of the order of detention under the Act. It was further submitted that grounds of detention were not supplied to the petitioner and therefore, the petitioner was deprived of an opportunity to make an effective representation against the order of detention which constitutes violation of Article 22(5) of the Constitution of India as well as Section 8 of the Act. In support of his submissions, learned counsel for the petitioner has placed reliance on decisions of the Supreme Court in Fazal Ghosi v. State of U. P. and others, 1987 (2) Crimes 892 : ( AIR 1987 SC 1877 ) Alpesh Navinchandra Shah v. State of Maharashtra and others, (2007) 2 SCC 777 : (AIR 2007 SC (Supp) 570) as well as a decision of this Court in Ravi Tiwari and another v. Union of India and others, 2003 (3) MPHT 528 (DB). 4. On the other hand, learned Additional Advocate General for the respondents while opposing the submissions made by the learned counsel for the petitioner submitted that the grounds of detention were supplied to the petitioner on 21-3-2012. 4. On the other hand, learned Additional Advocate General for the respondents while opposing the submissions made by the learned counsel for the petitioner submitted that the grounds of detention were supplied to the petitioner on 21-3-2012. While inviting the attention of this Court to para 9 of the return as well as para 7 of the additional return, it was submitted that though warrant of arrest was issued against the petitioner on 16-8-2007, but the same could not be executed upon him as he was given unlawful protection by his father namely Haji Abdul Rajjak. The Police authorities made all possible efforts to arrest the petitioner but since the petitioner was given protection by his father, therefore, the warrant of arrest could not be executed on the petitioner. It was further submitted that the order of detention dated 17-3-2012 was passed against the father of the petitioner and he was arrested on 17-3-2012 and immediately thereafter, on 18-3-2012, the petitioner was also arrested. While inviting the attention of this Court to the ground No. 6 mentioned in the grounds of attention, it was pointed out that the petitioner along with several other persons belonging to a particular community entered into the premises of Central Jail, Jabalpur on 7-8-2007 at 9:30 a.m. and aired the rumour that holy book, namely, Kuran-a-Sharif was torn by persons belonging to other community. It was also submitted that the petitioner and his other associates raised provoking slogans as a result of which huge mob gathered at the spot and the mob forcibly attempted to enter into the premises of Collectorate, Jabalpur. 5. Thereafter again on the same day, between 5.45 p.m. to 6 p.m. the petitioner and other accused persons proceeded with the mob of a particular community to the office of the Superintendent of Police, Jabalpur and raised provoking slogans against the other community and pelted stones on the government vehicles and the government employees and passersby. Such criminal acts of the petitioner seriously disturbed the even tempo of life. It was further submitted that the petitioner and his associates provoked the communal feelings and caused loss to government property in broad day light at public places and, therefore, the activities of the petitioner were prejudice to public order and the order of detention has rightly been passed against him. It was further submitted that the petitioner and his associates provoked the communal feelings and caused loss to government property in broad day light at public places and, therefore, the activities of the petitioner were prejudice to public order and the order of detention has rightly been passed against him. In support of his submissions, learned Additional Advocae General has placed reliance on decision of Supreme Court in Shafiq Ahmad v. District Magistrate, Meerut and others, AIR 1990 SC 220 . 6. We have considered the submissions made on both sides. We have carefully perused the grounds of detention. The ground numbers 6 and 7 mentioned in the grounds of detention clearly show that the activities of the petitioner were prejudicial to public order. However, the concept of preventive detention is to prevent a person concerned in anticipation of doing an illegal activity prejudicial to public order. (See : Dropati Devi and another v. Union of India and others (2012) 7 SCC 499 : ( AIR 2012 SC 2550 ). In Saeed Zakir Hussain Malik v. State of Maharashtra and othes, (2012) 8 SCC 233 : ( AIR 2012 SC 3235 ) the Supreme Court has held that if the detenu is absconding there has to be material on record to show that since effort was made to apprehend him. It has also been held that if no satisfactory explanation is furnished for inordinate delay in execution of order of detention, the order of detention stands vitiated by reason of non-execution thereof within the reasonable time. In Shafiq Ahmad ( AIR 1990 SC 220 ) (supra), also the Supreme Court has held that if there is delay in arresting the detenu pursuant to an order of detention, the delay has to be satisfactorily explained. In the absence of any satisfactory and cogent explanation for delay in arresting the detenu, the detention would be vitiated in law. Similarly, in Mukesh Tikaji Bora v. Union of India and others, (2007) 9 SCC 28 , it has been held that if there is a delay in execution, the material has to be placed on record to show that all possible efforts were made to take the detenu into custody, but he successfully managed to evade. 7. Similarly, in Mukesh Tikaji Bora v. Union of India and others, (2007) 9 SCC 28 , it has been held that if there is a delay in execution, the material has to be placed on record to show that all possible efforts were made to take the detenu into custody, but he successfully managed to evade. 7. In the backdrop of aforesaid well settled legal position, we may examine the explanation which has been furnished on behalf of the respondents for the delay in executing the order of detention. The relevant extract of paragraph 9 of the return reads as under: That the order although passed in the year 2007 but could not be served upon the petitioner as he was absconding and was not traceable. The Police authorities despite their sincere endeavour failed to locate him so as to execute the order of the District Magistrate but not executing the order at that time when it was passed and it could be executed only after arrest of petitioner in the year 2012, the delay in execution cannot be a ground for declaring the order vitiated or invalid. Paragraph 7 of the additional return reads as under : That the warrant of arrest was issued against the petitioner on 16-8-2007 but the same could not be executed against the petitioner as he was given unlawful protection by his father namely Haji Abdul Rajjak. The police authorities have initiated all possible efforts to arrest the petitioner but he was harboured by his father. On various occasions, the police conducted search and various effective steps were taken by the warrant of arrest issued on 16-8-2007 could not be executed. It is respectfully submitted that Crime No. 490/2011 relating to offences punishable under Sections 212 and 216 of Indian Penal Code was registered against father of petitioner namely Haji Abdul Rajjak at Police Station Omti, Jabalpur. It is humbly submitted that even father of petitioner has been detained under Act, 1980 in pursuance to the order of detention dated 17-3-2012 immediately thereafter within 24 hourse on 18-3-2012 petitioner was also arrested by Police Station, Kareli, District Narsinghpur and long awaited warrant of arrest could be executed against the petitioner. 8. Apparently, the activities of the petitioner were prejudicial to public order. 8. Apparently, the activities of the petitioner were prejudicial to public order. The petitioner in the writ petition has disclosed his address as resident of in front of Badi Omti Police Station, Jabalpur which has not been controverted on behalf of the respondent. We are rather shocked and surprised to note that no effective steps were taken by the respondents for executing the order of detention for a long period of four years and seven months. The inordinate delay in execution of the order of detention is obviously for extraneous reasons which are easy to infer but difficult to understand. The conduct of the police authorities compels us to infer that in fact the police officers were acting in hand and gloves with the petitioner and were protecting him rather than his father. The inordinate delay of four years and seven months in executing the order of detention has not been explained inasmuch as, no details of the attempts made by the Police authorities to arrest the petitioner have been disclosed either in the return or in the additional return. The return as well as additional return is conspicuously silent as to why the procedure prescribed under Section 7 of the Act was not resorted to. We are conscious of the fact that the Division Bench of this Court has upheld the order of detention which was passed against the father of the petitioner in W. P. No. 4551/2012. However, in the case of the father of the petitioner, there was no delay in executing the order of detention. The order of detention against the father of the petitioner was passed on 17-3-2012 and the same day the father of the petitioner was arrested whereas in the case of the petitioner, as stated supra, there is inordinate delay. We are, therefore, left with no option but to hold that the order of detention is vitiated in law only on the ground of delay in executing the order of detention as the respondents have failed to offer any satisfactory explanation for non-excution of the order of detention for a long period of four years and seven months. In the facts of the case, if the order of detention is upheld, it would be against the object of preventive detention. 9. In the result, the writ petition is allowed. In the facts of the case, if the order of detention is upheld, it would be against the object of preventive detention. 9. In the result, the writ petition is allowed. The order of detention dated 16-8-2007 and the order dated 3-5-2012 are hereby quashed. If the petitioners detention is not required in any other case, he be set at liberty forthwith. The rule is made absolute in terms of paragraph 7.1 of the writ petition. Petition allowed.