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2013 DIGILAW 873 (MP)

Sheeba v. Union of India

2013-07-29

RAKESH SAKSENA, VIMLA JAIN

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JUDGMENT Petitioner, by this petition under Article 226 of the Constitution of India, has challenged the detention of her husband Mukhtar Malik in consequence of the order dated 15-9-2012 passed by the District Magistrate, Bhopal, the respondent No. 3, which was approved by the State Government and also by the Advisory Board. 2. The facts, as narrated in the petition as well as in the return submitted by the respondents, are that petitioner's husband Mukhtar Malik has been detained by virtue of the order dated 15-9-2012 passed by the District Magistrate, Bhopal in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act (hereinafter referred to as 'the Act'). This order was confirmed by the respondent No. 2/State Government as per the provisions of section 12(1) of the Act. The detention order of Mukhtar Malik has been passed on the grounds enumerated in Annexure P/2, which are as under: XXX XXX XXX 3. Learned counsel for the petitioner has challenged the detention order mainly on three grounds - (1) that the offences registered against the detenu from 7-6-1982 to 27-9-2009 were already the subject-matter of the detenu's earlier detention order dated 9th December, 2009 passed by the District Magistrate which after consideration, High Court quashed by order dated 21-3-2010 passed in Writ Petition (Habeas Corpus) No. 781/2010. Therefore, the grounds taken for detention of detenu for the aforesaid period could not have been repeated in the instant detention order; (2) that the grounds pertaining to offences registered against detenu on 15-8-2012, 2-9-2012 and 4-9-2012 were vague and pertained to merely law and order problem and did not tend to affect the public order of the society; and (3) that at the time when the detention order was passed i.e. on 15-9-2012, the detenu had already been arrested and he was in custody in connection with Crime No. 795/2012 registered against him under section 25/27/35of the Indian Arms Act on 14-9-2012. The detaining authority was not made aware of this fact. As such, the detention order was passed without application of mind. 4. Learned counsel for the respondents have supported the detention order contending that it was made on relevant and valid grounds. 5. The detaining authority was not made aware of this fact. As such, the detention order was passed without application of mind. 4. Learned counsel for the respondents have supported the detention order contending that it was made on relevant and valid grounds. 5. After perusal of the order dated 31-3-2010 passed in Writ Petition (Habeas Corpus) No. 781/2010 we find that the grounds narrated in the instant detention order which pertained to the offences registered against detenu from 7-6-1982 to 27-9-2009 were subject-matter of the earlier detention order passed against detenu on 9th December, 2009. This Court, after consideration of those grounds, concluded that the aforesaid acts of the detenu did not amount to causing disturbance of the public order as the degree and extent thereof did neither result in panic and terror to the persons of the locality nor affected public at large. In view of the above finding recorded by this Court, the aforesaid cases narrated against detenu cannot be held to have made out valid grounds of detention in isolation to other grounds. No doubt the aforesaid incidents can be taken into consideration as a past conduct of detenu for appreciating his future course of conduct. 6. Similarly the fact that detenu was detained under the provisions of National Security Act earlier by passing detention orders against him on 5-7-1995 and 4-2-2002 and further that an externment order passed against him by the District Magistrate on 18-11-2003 can be taken into consideration to contribute the formation of the subjective satisfaction of the detaining authority only if recent grounds on which the detention order is passed prima facie make out a case of the breach of public order. In other terms, previous conduct of a detenu can help detaining authority in reinforcing his satisfaction that without detaining the detenu the disturbance of public order by him cannot be prevented. The instant detention order was passed on the basis of incidents dated 15-8-2012, 2-9-2012 and 4-9-2012. 7. Learned senior counsel for the petitioner submitted that the incidents dated 15-8-2012 and 2-9-2012 are vague and give no particulars about any occurrence. They are general in nature which could have been concocted by the police at their whims. On perusal of record, we find that in respect of these two incidents the police submitted only two Rojnamcha entries. 7. Learned senior counsel for the petitioner submitted that the incidents dated 15-8-2012 and 2-9-2012 are vague and give no particulars about any occurrence. They are general in nature which could have been concocted by the police at their whims. On perusal of record, we find that in respect of these two incidents the police submitted only two Rojnamcha entries. As per Rojnamcha No. 1013 dated 16-8-2012 Sub Inspector Ashok Bharavi reported that during his visit in the area he received information that proclaimed offender Mukhtar Malik was active with his associates and was purchasing and selling the land after frightening the people. He also came to know that after creating terror he was extorting money from the people. People were under his terror, therefore, they were scared of lodging any report. A similar Rojnamcha entry was made in the same police station on 2-9-2012 which revealed that during his round in the area Inspector M. R. Khan received information that proclaimed offender Mukhtar Malik was involved in unsocial activities and was intimidating people by causing terror. He was indulging in deals of land in the neighbouring areas of Bhopal. For earning money illegally, he was indulging in criminal activities. He also used to recover money from the people. Since there was terror of Mukhtar Malik, nobody dared to lodge report. 8. Except the aforesaid Rojnamcha entries there was no material in the record. A bare perusal of these reports indicates vagueness. In our opinion, such type of vague reports made by police officers even against a habitual offender could not have made a ground for subjective satisfaction of the detaining authority for passing an order of detention. Thus, in our opinion, the grounds formulated on the basis of mere Rojnamcha entries dated 15-8-2012 and 2-9-2012, in the absence of other relevant material, have to be held vague and not sufficient for reaching the subjective satisfaction required for passing of a detention order under the Act. 9. The ground pertaining to incident dated 4-9-2012 wherein the allegation against the detenu is that he forcibly called Bal Mukund Vaishnav at Venus Marble Shop and made a demand of Rs. 5 lakhs. When he denied, associates of detenu intimidated him to kill. 9. The ground pertaining to incident dated 4-9-2012 wherein the allegation against the detenu is that he forcibly called Bal Mukund Vaishnav at Venus Marble Shop and made a demand of Rs. 5 lakhs. When he denied, associates of detenu intimidated him to kill. Though it has been stated in the ground that by his aforesaid conduct the people in general got terrorized and an atmosphere of fear and terror was created in the locality causing disruption of public order, but it can be appreciated that this incident pertained to a particular individual and could not have affected the peace and tranquility of public at large. On perusal of the first information report lodged by the complainant Bal Mukund it is apparent that the incident occurred in the course of dealings in business. There was some dispute about the return of money paid by one Amita for purchase of a house. The incident occurred when she cancelled the deal and demanded her money back. Though it is stated in the first information report that the associates of detenu against the wish of complainant took him to the house of detenu where he intimidated him to return the money, but all these facts go to indicate that the criminal act of detenu emanated from business dealing. 10. In case of Subhas Bhandari v. District Magistrate, Lucknow and others, AIR 1988 SC 74 the Apex Court observed that: “In the instant case the alleged act of assault by firearms is confined to the complainant Surya Kumar and not to others. It is an act infringing law and order and the reach and effect of the act is not so extensive as to affect considerable members of the society. In other words, this act does not disturb public tranquility nor does it create any terror or panic in the minds of the people of the locality nor does it affect in any manner the even tempo of the life of the community. This criminal act emanates from business rivalry between the detenus and the complainant, therefore, such an act cannot be the basis for subjective satisfaction of the detaining authority to pass an order of detention on the ground that the impugned act purports to affect public order i.e. the even tempo of the life of the community which is the sole basis for clamping the order or detention.... Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order.” Similarly it was observed in Golam Hussain @ Gama v. The Commissioner of Police, Calcutta and others, (1974) 4 SCC 530 that the nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder. The act cannot be isolated from its public setting but is to be taken with its total effect on the flow of orderly life. It may be a question of the degree and quality of activity of the sensitivity of the situation and the psychic response of the involved people. 11. In view of the above propositions of law, we find that the aforesaid grounds did not amount to causing of disturbance to the public order. As such they could not be held to be valid grounds for passing detention order. 12. Learned senior counsel next submitted that the detaining authority mechanically passed the detention order without taking into consideration that at the time of passing of the order detenu was already in custody since he was arrested on 14-9-2012 itself in Crime No. 795/2012 under section 25/27/35 of the Arms Act. 13. Learned counsel for the State has filed the first information report registered by Inspector Umesh Chauhan wherein it has been mentioned that detenu was arrested while going in his car. At that time he was in possession of a pistol without license. After arrest, he was confined in police station. 14. Learned senior counsel for the petitioner has also filed order sheet dated 15-9-2012 of the Court of Judicial Magistrate First Class, Bhopal wherein it has been mentioned that petitioner was arrested on 14-9-2012 and was produced before him on 15-9-2012. Thus, it is abundantly clear that detenu was already in custody on 15-9-2012 when the detention order was passed. It is also surprising when the matter was placed before the District Magistrate, no first information report in respect of the offence under the Arms Act was produced before him whereby he could have been made aware of the fact that detenu was in custody. It is also surprising when the matter was placed before the District Magistrate, no first information report in respect of the offence under the Arms Act was produced before him whereby he could have been made aware of the fact that detenu was in custody. Since he was not aware that detenu was in custody in connection with a serious offence, the detention order passed by him reveals non-application of mind on its part. True, the detention order could have been passed even if the detenu was in custody, but it was necessary for the District Magistrate to have considered the fact if there was any reasonable probability of detenu's release on bail. 15. The Apex Court in case of Huidrom Konungjao Singh v. State of Manipur and others, (2012) 7 SCC 181 after considering the earlier decisions held: “9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition.” This Court also in case of Chhenu alias Yunus v. State of M.P. and another, 2010(4) MPLJ 253 : 2011 (1) MPHT 208 (DB) quashed the detention of detenu observing: “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.” 16. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order.” 16. In view of the foregoing discussion, we allow this writ petition, quash the impugned detention order dated 15-9-2012 passed by the District Magistrate Bhopal and direct that detenu Mukhtar Malik be released immediately from custody, if he is not required in any other case.