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2016 DIGILAW 1077 (ALL)

Jameel Alias Kubra v. State of U. P.

2016-03-28

BALA KRISHNA NARAYANA, SHASHI KANT

body2016
JUDGMENT Bala Krishna Narayana and Shashi Kant,JJ. Heard the learned counsel for the petitioner Sri Irfanul Huda, Sri Jitendra Prasad Mishra, learned counsel for the respondent no. 3 and the learned A.G.A. for the State, Sri J.K. Upadhyay. 2. The instant petition has been filed by the petitioner to issue a writ, order or direction in the nature of habeas corpus commanding the respondents to produce the petitioner in court and set him at liberty forthwith and further prayed to issue a writ order or direction in the nature of certiorari quashing the detention order dated 15.10.2015 passed by the District Magistrate, Hathras the respondent no. 2 (copy whereof has been enclosed as Annexure-1 to the writ petition) whereby the petitioner has been ordered to be detained in captivity for 12 months in exercise of power under Section 3 (2) of the National Security Act, 1980 (hereinafter to as the Act). 3. The emanation of fact unfolded compendiously is that the ground of detention dated 15.10.2015 was served upon the petitioner while he was in judicial custody pursuant to the first information report registered against him and other persons vide case Crime No. 531 of 2015, under Section 3/5/8 of U.P. Prevention of Cow Slaughter Act and Section 11 of Prevention of Cruelty to Animals Act and Case Crime No. 533 of 2015, under Section 4/25 of the Arms Act, police station Sikandra Rao, district Hathras. The first information report was lodged at 7.30 P.M. on 27.7.2015 by Inspector-in-Charge Sikandra Rao, Hathras that when the police party went on routine checking one informer informed him that some persons are involved in slaughtering cow within the premises of one Munnan situated near Jalesar Road Railway Gate. The police raided the aforesaid premises on such information along with other police personnel. They found that the petitioner along with four other persons were cutting beef with their knives and axe at about 4.40 A.M. The petitioner was apprehended who was carrying knife and other associates were also having knives. An axe and a peace of wood for the purposes of cutting meat were being used. Apart from the aforesaid articles one quintal of beef, skin, slaughtered feet were found. Besides this in a Tata Sumo four buffaloes were found, which were tied for the purposes of slaughtering. An axe and a peace of wood for the purposes of cutting meat were being used. Apart from the aforesaid articles one quintal of beef, skin, slaughtered feet were found. Besides this in a Tata Sumo four buffaloes were found, which were tied for the purposes of slaughtering. As a result of huge recovery of beef from the premises communal harmony of the locality was disturbed. It developed panic stricken scene as it took a wild form and the people came out demanding to punish them. The police personnel of various police stations were directed to be deployed through R.T. set by the Inspector-in-Charge. The people protested unleashing a reign of terror causing great rampage. The agitated and irate melee gathered before the police station. The police officials tried their best to assuage and pacify their wrath and anguish but the unruly mob instead of receding from igniting communal feeling developed awful and terrible scene. The mob was raising slogan against the police administration and the shopkeepers also shut their shutters closing the shop. The said incident was published in the newspaper and highlighted the petitioner as the main architect of the crime. The petitioner was in district jail Hathras on account of the aforesaid case registered against him as case Crime No. 531 of 2015, under Section 3/5/8 of U.P. Prevention of Cow Slaughter Act, Section 11 of Prevention of Animal to Cruelty Act and Case Crime No. 533 of 2015, under Section 4/25 Arms Act. The detention order along with ground of detention was served upon him vide impugned order dated 15.10.2015 passed by the respondent no. 2 with a view to prevent him from indulging in such activities, which are prejudicial to the interest of the public welfare. The petitioner has challenged the validity of the aforesaid detention order by means of the present petition. 4. The main thrust mooted from the side of the petitioner is that the petitioner cannot be made accountable in any manner with regard to disruption of public order as alleged in the impugned ground of detention order. The petitioner has been implicated in the aforesaid case, which is an offshoot of political vendetta. The order impugned passed by the respondent no. 2 suffers from material perversity as the District Magistrate has put his signature without scrutinizing the material, which was submitted incorrectly by the police officials. The petitioner has been implicated in the aforesaid case, which is an offshoot of political vendetta. The order impugned passed by the respondent no. 2 suffers from material perversity as the District Magistrate has put his signature without scrutinizing the material, which was submitted incorrectly by the police officials. The petitioner cannot be made responsible for the act of the unruly mob while passing the detention order. The detaining authority has failed to record any satisfaction that there was strong possibility of the detenue being released on bail from the judicial custody. The petitioner was already in captivity in the aforesaid case whose bail application was rejected by the Judicial Magistrate, Hathras and his bail application was pending before the District & Sessions Judge, Hathras when the detention order was passed. The respondent no. 2 while passing the detention order has only recorded his satisfaction that on the release of the petitioner in all probability he would indulge in prejudicial activity. There was no material placed before the detaining authority for recording his satisfaction about the release of the petitioner from the jail in near future. The detaining authority has made only speculation that the bail application, which was moved on 14.10.2015 before the District & Sessions Judge. The detention order sans of any reason that there was every possibility of the petitioner being released on bail and in case of release the petitioner would indulge in prejudicial activities unless the satisfaction is recorded it cannot be said that the detaining authority has applied his mind. It is further submitted by the learned counsel for the petitioner that the satisfaction must reach on the basis of the cogent material that there is real possibility of the petitioner being released on bail, the petitioner would indulge in activities if not detained. Such detention order merely on the satisfaction of the detaining authority amounts to circumventing the enlargement on bail, which is in contravention of fundamental right of life and liberty enshrined under Article 21 of the Constitution of India. The detaining authority had completely failed to consider whether the alleged activity of the petitioner falls within the realm of maintaining of public order or law and order. The petitioner's bail application has already been rejected by the two courts below and after the detention order was passed he was granted bail by this Court. The detaining authority had completely failed to consider whether the alleged activity of the petitioner falls within the realm of maintaining of public order or law and order. The petitioner's bail application has already been rejected by the two courts below and after the detention order was passed he was granted bail by this Court. On account of the passing of detention order the life and liberty of the petitioner is being abridged on account of wrongful captivity, hence the detention order is not valid in the eye of law and deserves to be vitiated. 5. Per contra learned A.G.A. Sri J.K. Upadhyay and the learned counsel Sri Jitendra Prasad Mishra appearing on behalf of the respondent no. 3 have supported the impugned order passed by the respondent no. 2 and submitted that normally the court should not interfere with the subjective satisfaction reached by the detaining authority except in peculiar and altered circumstances. The detaining authority has perceived that detention of the petitioner with a view to prevent him from indulging in any manner prejudicial to the public order, which is only preventive and not punitive and hence the detention order as a precautionary measure based on reasonable prognosis of the future behaviour of the petitioner resting all his past conduct, hence the court should keep off from substituting its own finding petering out the order of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. The purposes of preventive detention and prosecution are different. The authorities are different and the nature of proceedings are different. The respondent no. 3 after taking into account the facts and circumstances of the case in its entirety that the fallout of the said incident had culminated into chaos disturbing the congenial atmosphere, flaring communal feeling, effecting the maintenance of public order passed the detention order. Moreover, when the petitioner is likely to come out on bail then it cannot be said that there is perversity of law on the part of the respondent authorities in passing the detention order. Moreover, when the petitioner is likely to come out on bail then it cannot be said that there is perversity of law on the part of the respondent authorities in passing the detention order. The petitioner will be tried in a criminal court for the commission of the criminal offenses but it will not debar the preventing authority from taking action under the Act as on being released on bail there was every likelihood of the petitioner indulging in prejudicial activity, which would imperil the maintenance of law and order under ordinary circumstances. There is no illegality in the order impugned. The detention order has been passed following the provision of law and the same has already been approved by the competent authority. The detaining authority has taken into account that the bail application moved on behalf of the petitioner for which a date was fixed for hearing as such there was all likelihood that in case the petitioner would be released on bail, he would again indulge in similar activities prejudicial to the maintenance of the public order. There is live link between the date of detention order and the date of incident and hence the writ petition sans merit and may be dismissed and the detention order may be affirmed. 6. We have given our anxious consideration to the submission advanced by the learned counsel for the parties. 7. From the bare perusal of the ground of detention supplied to the petitioner under Section 8 of the Act along with detention order dated 15.10.2015 filed as Annexure-1 to the writ petition clearly reveals that when the detention order was passed the petitioner was in district jail Hathras in connection with the case registered against him on 27.7.2015 as case Crime No. 531 of 2015, under Section 3/5/8 of U.P. Cow Slaughter Act and under Section 11 of Animal Cruelty Act and in a case Crime No. 533 of 2015, under Section 4/25 Arms Act registered at police station Simandra Rao, district Hathras. The detention order has been passed so as to highlight the harshness of the incident occurred on the same day at about 4.40 A.M. The objection of the detention is not to punish a person but to prevent him from indulging in such activities causing jeopardy to the security and maintenance of the public order. 8. The detention order has been passed so as to highlight the harshness of the incident occurred on the same day at about 4.40 A.M. The objection of the detention is not to punish a person but to prevent him from indulging in such activities causing jeopardy to the security and maintenance of the public order. 8. From the perusal of the grounds of detention it emerges out that peace and tranquility was disturbed on account of lackadaisical and insouciant attitude of the administrative authority for which the petitioner alone cannot be held responsible. No doubt that the petitioner is shown to be involved in some offense, the criminal court would hold the trial on the basis of legal evidence justifying his complicity but the captivity of the petitioner merely on the so called subjective satisfaction of the detaining authority would constitute an infraction of valuable right of the detenue under Article 22 (5) of the Constitution of India. If the family members of the petitioner were trying him to be released on bail as mentioned in the detention order, then a proper course open to the authority was to oppose the bail application or to challenge the order if granted bail in the proper forum and not to curtail his right to move bail application to pre-empt or circumvent the orders granting bail if he is granted bail. The cases which are essentially criminal in nature can be dealt with under the ordinary law. Prosecution in a criminal court is conducted by a trial and proof of guilt is based on the basis of legal evidence and the standard of proof is beyond reasonable doubt whereas preventive detention is an action to prevent the act justifying the satisfaction that there is an imminent danger and the detenue would indulge in similar activities if set at liberty putting in jeopardy the security and safety of the entire society. 9. The procedural safeguards were completely given go bye by the detaining authority for which the petitioner alone has been held to be responsible for causing annoyance and breach of normal tempo of life. 9. The procedural safeguards were completely given go bye by the detaining authority for which the petitioner alone has been held to be responsible for causing annoyance and breach of normal tempo of life. The detaining authority must satisfy himself that there is a real possibility of causing jeopardy and imminent danger to the safety and security of the society at large or the State or the welfare of the nation otherwise it would be an easy tool in the hands of police to lodge a first information report against unruly mob and then recommend the name of any person against whom a case was already registered previously to be detained under the National Security Act. It is conspicuous that the detention order has been passed by the detaining authority without his subjective satisfaction and without any legal proof justifying the detention that if the petitioner is not kept in custody there is possibility of causing imminent danger to the public at large to the State or the welfare of nation. The power given to the detaining authority must be exercised in exceptional cases with great deal of circumspection failing which it would defeat the objects and reasons for enacting the Act. The Hon'ble Apex Court in the Huidrom Konungjao Singh Vs. State of Manipur and others 2012 (78) ACC 120 (SC) has visited the entire law on the subject of real possibility of detenue's release on bail and it has been 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 at the same time if the detention order is based on mere ipse dixit statement in the grounds of detention cannot be sustained in the eyes of law. Whether a person who is in jail can be detained under detention law on the possibility and probability of bail being granted. 9. The aforesaid issue has been engaging the attention of the Hon'ble Apex Court time and again and the leading case on the point is Kamarunnisa Vs. Union of India reported in 1990 (27), ACC 621. Whether a person who is in jail can be detained under detention law on the possibility and probability of bail being granted. 9. The aforesaid issue has been engaging the attention of the Hon'ble Apex Court time and again and the leading case on the point is Kamarunnisa Vs. Union of India reported in 1990 (27), ACC 621. wherein Apex Court has proceeded to take a view that even in cases of person in custody a detention order can validly be passed but in such a situation the detaining authority has to record his satisfaction on following matters (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. 10. The judgment of Kamarunnissa (Supra), thereafter, has been followed by the Apex Court in the case of T.V. Sravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State (through Secretary) and another 2006 (2) SCC 664 . In the said case also Apex Court reiterated that once detenu is already in jail or custody, the detention order can be passed but conditions laid down in the case of Kamarunnissa (Supra) has to be fulfilled and the possibility of his release on bail should be imminent and apprehension of detaining authority regarding the same must be based on cogent material and in absence of such material, detention order based on mere ipse dixit of detaining authority regarding imminent possibility of detenu's prayer for bail being granted cannot be sustained. Relevant extract of the said judgment is hereby quoted below; "We are satisfied that for the same reason the order of detention cannot be upheld in this case. Relevant extract of the said judgment is hereby quoted below; "We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13.12. 2005." 11. Having regard to the over all facts and circumstances and also settled legal position, we hold that the detaining authority was not conscious of all the relevant aspect of the case and merely on the basis of the report of the police passed the order in a mechanical way sensing about the alleged activity of the petitioner to be prejudicial and deleterious to the society, if not detained and made speculation that there is all prejudicial and imminent danger to the public at large in case of the petitioner being released on bail is not at all based on relevant cogent material, which aberration on the part of the detaining authority renders the impugned detention nugatory and the same is liable to be vitiated. 12. Resultantly, the writ petition succeeds and is accordingly allowed. The impugned order dated 15.10.2015 passed by the respondent no. 2 District Magistrate, Hathras is hereby quashed. The petitioner Jameel@Kubra be released from jail forthwith, if he is not wanted in any other case. No order as to costs.