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2012 DIGILAW 24 (MP)

Chandan S/o Ramchandra Dagoriya v. State of M. P.

2012-01-05

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2012
JUDGMENT : The petitioner being aggrieved with the orders dated 7th July, 2011 and 30th August, 2011 passed by the respondent No. 1 and 2 under the provisions of the National Security Act, 1980 (for short "the Act") has filed the present Writ Petition. 2. In brief, the petitioner's case is that an FIR was registered against the petitioner on 12-4-2011 on the basis of which the petitioner was arrested on 2-7-2011 and was kept in Bherugarh Jail, Ujjain. When the petitioner was in custody, the order dated 7-7-2011 was passed by the respondent No. 2, District Magistrate, Ujjain under section 3(2) read with (3) of the Act, directing the detention of the petitioner. The petitioner was supplied the grounds of detention showing that said detention order was passed on the basis of the FIR registered on 12-4-2011 and three rojnamcha entries dated 16-6-2011, 29-6-2011 and 30-6-2011. The petitioner had submitted the representation before the Advisory Board constituted under section 9 of the Act and on the basis of the report of the Advisory Board, the respondent No. 1 has passed the order dated 30-8-2011, confirming the order of detention passed by respondent No. 2 and directing the detention of the petitioner for a period of 12 months till 6-7-2012. 3. A reply has been filed by the respondents taking the plea that the petitioner has criminal background and is involved in the anti social activities thereby causing fear and terror to the general public. It has further been stated that various FIRs have been lodged against the petitioner, his brother and other co-accused persons since 2006 and cases are pending against them and though reports have been received in respect of the commission of offence by the petitioner but due to his terror general public is afraid to lodge FIR against him. The order of detention is sought to be justified on the ground that the activities of the petitioner had led to the problem of public order. 4. Learned counsel appearing for the petitioner has attacked the order of detention primarily and substantially on the ground that the impugned detention order has been passed without considering the fact that at the time of passing of the detention order, the petitioner was already in custody, therefore, such a detention order cannot be upheld in view of the judgments of the Supreme Court as well as of this Court. 5. 5. Learned counsel for respondents has supported the impugned detention order by submitting that the sufficiency of the material on the basis of which the order of detention has been passed cannot be gone into by this Court and that since the activities of the petitioner had created the problem of public order, therefore, the order of detention has rightly been passed. 6. We have heard the learned counsel for parties and perused the record. 7. The arrest memo (Annexure P.6) filed along with the Writ Petition indicates that the petitioner was arrested on 2-7-2011 in connection with the FIR No. 216/2011 dated 12-4-2011 for alleged commission of offence under section 307/120-B/34 of the Penal Code and 25/27 of the Arms Act. In the Writ Petition, a clear averment has been made that the petitioner was arrested during investigation of Crime No. 216/2011 on 2-7-2011 and since then he is suffering incarceration in Bherugarh Jail, Ujjain and that the impugned detention order has been passed when the petitioner was already in jail. The said fact has not been disputed by the respondents in their reply. A perusal of the impugned order also indicate that the respondents have not taken into account the fact that the petitioner was already in custody when the impugned detention orders were passed. Therefore, the sole question which arises for consideration is as to whether the impugned detention order could have been passed by the respondents without considering the fact and the effect of the petitioner being in jail at the time of passing of the impugned detention order?. 8. The law in this regard is well settled by various pronouncements of the Supreme Court as well as of this Court that if at the time of passing of the detention order, the detenu is already in jail in connection with some criminal offence, the detaining authority can pass the detention order but the detention authority is required to be aware of the fact that the detenu is already in jail and he must apply his mind to the possibility of the detenu being released on bail and his probability of indulging in the activities, disturbing the public order. While recording the satisfaction, the detaining authority in such cases must apply his mind to the aforesaid aspect of the matter. 9. While recording the satisfaction, the detaining authority in such cases must apply his mind to the aforesaid aspect of the matter. 9. The Supreme Court in the matter of Vijay Kumar vs. State of Jammu and Kashmir and another, reported in 1982(2) SCC 43 has held :- "10...............................................Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order". 10. The similar issue had come up before the Division Bench of this Court in the matter of Chhenu @ Yunus vs. State of M.P. and another, reported in 2010(4) MPLJ 253 = 2011(1) MPHT 208 wherein after taking note of the judgment of the Supreme Court in the matter of Sanjay Kumar Agarwal vs. Union of India, reported in (1990) 3 SCC 309 , N. Meera Rani vs. Government of Tamil Nadu, reported in (1989) 4 SCC 418 , Dharmendra Suganchand Chelawat vs. Union of India, reported in AIR 1990 SC 1196 , Kamarunnissa vs. Union of India, reported in AIR 1991 SC 1640 , Abdul Sathar Ibrahim Manik vs. Union of India, reported in (1992) 1 SCC 1 , Veeramani vs. State of Tamil Nadu, reported in JT 1994(1) SC 350, the Division Bench of this Court held thus :- "9. From the catena of decisions of Supreme Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody: if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down ". 11. In the matter of Chhenu @ Yunus (supra), the Division Bench of this Court found that nothing was produced to show that the detaining authority was aware of the fact that the detenu was already in jail, therefore, the detention order was held to be invalid by observing :- "12. The impugned detention order does not give the slightest indication that the Detaining Authority was aware that the detenu was already in jail and yet on the material placed before him he was satisfied that a detention order ought to be made. There is nothing in the order to show that to the knowledge of the Detaining Authority the detenu was already in jail before the date on which he passed the order and that such detention in the opinion of the Detaining Authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State, and, therefore, power under section 3(2) of the Act is required to be exercised. The reply and affidavit of the District Magistrate does not throw any light on the vexed question whether the Detaining Authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail. There is nothing to indicate the awareness of the Detaining Authority that detenu was already in jail and yet the impugned order was made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. 13. There is nothing to indicate the awareness of the Detaining Authority that detenu was already in jail and yet the impugned order was made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. 13. In view of the foregoing discussion we allow this writ petition and quash the detention order dated March 3, 2010 and the subsequent confirmation order dated April 19, 2010 and direct that the detenu Chhenu alias Yunus be released immediately from the custody if he is not required in any other cause. Order accordingly ". 12. In the matter of Sanjay Yadav and another vs. State of M. P. and another, reported in 2077(2) MPLJ 277 = 2011(1) MPHT 332 , the another Division Bench of this Court reiterated the said settled position in law by observing thus :- "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 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 vs. S. N. Sinha, Commissioner of Police, Ahmedabad and anr., reported in (1989) 2 SCC 222 ; in the matter of N. Meera Rani vs. Government of Tamil Nadu and anr., reported in (1989) 4 SCC 418 ; and in the matter of Dharmendra Suganchand Chelawat vs. Union of India and ors., reported in (1990)1 SCC 746 ". 13. In the present case, we have minutely perused the impugned order dated 7-7-2011 passed by the respondent No. 2. 13. In the present case, we have minutely perused the impugned order dated 7-7-2011 passed by the respondent No. 2. In the said impugned order, there is no mention of the fact that the petitioner was in jail at the time of the passing of the said order. It is not reflected from the said order that the detaining authority was aware of the fact that the petitioner was in jail at the time of passing of the said order nor any such material has been produced before this Court to establish such a fact. The impugned order clearly indicates the non-application of mind by the detaining authority on this relevant aspect of the matter. Same is the position in respect of the order dated 30-8-2011 (Annexure P. 12) passed by the respondent No. 1. Since the detaining authority was not made aware of the fact that the petitioner was in custody in relation to the investigation in a criminal case, therefore, the detaining authority had no occasion to apply his mind in respect of the possibility of the petitioner being released on bail and the probability of his involvement in such activities after releasing on bail. 14. Learned counsel for respondents has placed reliance upon the judgment of the Supreme Court in the matter of Rekha vs. State of Tamil Nadu through Secretary to Government and another, reported in (2011) 5 SCC 244 but in the said judgment also the position in law in respect of passing of the detention order when the detenu is already in jail as noted above has been reiterated. 15. 15. Learned counsel for respondents has placed reliance upon the judgment of the Supreme Court in the matter of State of M. P. and another vs. Sanjai Pratap Gupta alias Pappu and others, reported in AIR 2004 SC 4703 , State of Punjab vs. Sukhpal Singh, reported in (1990) 1 SCC 35 and the Division Bench judgment of this Court in the matter of Sobransingh Rajaram Goojar vs. State of M. P. and others, reported in 1982 MPLJ 363 in support of her submission that High Court cannot substitute its subjective satisfaction for subjective satisfaction of the District Magistrate and that single act affecting public order can also be considered but these judgments are not relevant while dealing with the ground which has been put forth by the counsel for the petitioner and which has been discussed above. 16. Therefore, keeping in view the settled position in law noted above, the impugned detention orders (Annexure P. 10 and P. 12) cannot be sustained and are hereby set aside. The respondents are directed to set the petitioner free if he is not apprehended in any other matter. 17. The Writ Petition is allowed to the extent indicated above. Petition allowed.