Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 389 (ALL)

DINESH JAISWAL v. UNION OF INDIA

2018-02-13

DEVENDRA KUMAR UPADHYAYA, DINESH KUMAR SINGH

body2018
JUDGMENT Hon’ble Dinesh Kumar Singh, J.—The present petition has been filed praying for quashing of order dated 14.8.2017 passed by District Magistrate, Bababanki, Uttar Pradesh in exercise of power under Section 3(3) of the National Security Act, 1980 (hereinafter referred to as ‘’the Act’) directing to detain the detenue/petitioner under Section 3(2) of the Act in the District Prison, Barabanki and the consequential order dated 26.9.2017 whereby on the basis of report submitted by the ‘’Advisory Board’ with respect to the detention of the detenue/petitioner, the Governor exercising the power under Section 12(1) of the Act directed the detenue/petitioner to be detained for a period of 3 months with effect from 14.8.2017. The detenue/petitioner has also challenged the order dated 8.11.2017 whereby the Governor on the basis of reports submitted by ‘’Advisory Board’ and District Magistrate extended the detention period of the detenue/petitioner for a further period of three months. The detenue/petitioner has also prayed for a writ in the nature of Habeas Corpus to release the detenue/petitioner from the detention forthwith. 2. The detenue/petitioner is an accused in a substantive offence bearing Case Crime No. 43 of 2017 under Sections 147/148/149/302/506/120B I.P.C., Police Station Kotwali Nagar, District Barabanki. According to the respondents this heinous incident has created a turmoil, disharmony, hatred and insecurity amongst the residents and public in general and public order got disturbed. It is alleged that even the tempo of life was disturbed and the police and administration had to put in serious efforts to control the situation and restore normal life in the city which got disrupted. 3. Alongwith detention order dated 14.8.2017, grounds of detention were also made available to the detenue/petitioner. In the grounds of detention it is said that on 17.1.2017 at around 8:40 p.m., the detenue/petitioner alongwith other accused caused death of one Akash Jaiswal by resorting to indiscriminate firing by deadly fire arms. The murder was committed for enmity out of business rivalry in respect of tender auction for hemp shops. It has been stated that because of this incident people got terrified and the public order got disturbed. The people closed their windows and doors and ran helter-skelter to save their lives. The murder was committed for enmity out of business rivalry in respect of tender auction for hemp shops. It has been stated that because of this incident people got terrified and the public order got disturbed. The people closed their windows and doors and ran helter-skelter to save their lives. The sensational murder of a business man of the city in the manner described above brought the anger of the business community of the city to the fore and the shops and the establishments were closed in protest. The incident had affected the normal life of the people and disturbed the peace and harmony. To maintain public order, the police and administration had to take several measures including patrolling and was required to keep vigil on law and order situation. 4. One of the grounds of detention was that the detenue/petitioner was apprehended on 4.2.2017 after the crime in an encounter. It was further said that the detenue/petitioner was trying to get bail from the High Court where his bail petition was pending and the matter was likely to be heard soon. It was apprehended that once he would be out of the jail, he might again commit heinous crime and disturb the public order, peace and tranquility of the society. 5. The District Magistrate on the basis of aforesaid grounds concluded that it was expedient in order to maintain public order to detain the detenue/petitioner as there was every likelihood of committing such crimes by the detenue/petitioner again, if he was released and public order would get adversely affected. 6. Heard Shri Siddhartha Sinha, learned counsel for the detenue/petitioner, Shri R.K. Dwivedi learned AGA for the State of U.P. and Shri Ashok Kumar Singh, Advocate appearing for respondent No. 1, Union of India. 7. Learned counsel for the detenue/petitioner submits that the grounds of detention are factually incorrect inasmuch as the detenue/petitioner was not arrested in encounter on 4.2.2017 but he surrendered himself on 21.1.2017 after he found his name mentioned in the F.I.R. He further submits that to record his satisfactions for invoking the provisions of the Act against the detenue/petitioner, the District Magistrate had not taken into account the material placed before him in its correct perspective and completely misread the material placed and made available to him. He further submits that other co-accused were granted bail by the High Court and to prevent the detenue/petitioner to come out of the jail, the impugned order was passed so as to keep the detenue/petitioner inside the jail. 8. Learned counsel also submits that if the allegations in F.I.R. are perused, it would be apparent that the detenue/petitioner cannot be said to be the main accused of the offence. The petitioner/detenue after he surrendered on 21.1.2017 had been implicated in a case registered at Case Crime No. 539 of 2017, under Sections 3(1) of the U.P. Gangster Act, and in a Case Crime No. 214/2017, under Section 3/25 of the Arms Act, Police Station Kotwali Nagar, District Barabanki. 9. Learned counsel for the detenue/petitioner submits that the District Magistrate on the basis of the reports submitted by the Additional Superintendent of Police, District Barabanki and the Circle Officer Barabanki had recorded the satisfaction for invoking the Act against the detenue/petitioner. These reports were based on the detailed report dated 4.8.2017 submitted by the Station House Officer of Police Station Kotwali Nagar, District Barabanki, wherein it was said that the detenue/petitioner had committed murder of one Akash Jaiswal out of enmity because of business rivalry. The crime was committed to finish the competition in tendering process for hemp. This would adversely affect the economy of the State and if the accused is released, this could lead commission of such offences in tendering processes and, therefore, his detention was utmost required. It was further said that since the other accused had been granted bail, the detenue/petitioner could also very well be released soon on bail by this Court. 10. Learned counsel for the detenue/petitioner submits that the satisfaction arrived at by the learned Magistrate is based on misreading of the material and, therefore, the detention order is to be quashed. He further submits that the detenue/petitioner is allegedly involved only in one crime. The other co-accused had already been granted bail and they are out of jail. The detention order in respect of the detenue/petitioner is wholly illegal and is liable to be set aside. 11. Learned counsel for the detenue/petitioner submits that there is a considerable delay in passing the detention order inasmuch as he surrendered before the Court on 21.1.2017 and the detention order was passed on 14.8.2017. The detention order in respect of the detenue/petitioner is wholly illegal and is liable to be set aside. 11. Learned counsel for the detenue/petitioner submits that there is a considerable delay in passing the detention order inasmuch as he surrendered before the Court on 21.1.2017 and the detention order was passed on 14.8.2017. The ground taken by the District Magistrate for passing the detention order is that because of firing by the accused including the detenue/petitioner, the people shut their doors, closed their windows and there was panic and disturbance to the public order by this incident. He submits that it was a temporary disturbance at the place of incident. The incident of the alleged crime related to law and order and not to public order as was sought to be projected in the grounds of detention order. The detaining authority in exercise of power under the Act must act strictly within the limits provided under the Act so that the most valuable fundamental right of a citizen i.e. right to life and personal liberty is not imperilled except by the procedure established by law and the procedure must be just, fair and reasonable. 12. Learned counsel further submits that the grounds of detention specifically mention that the detenue/petitioner was apprehended after an encounter and this itself is suffice to show that the District Magistrate while invoking the provisions of the Act against detenue/petitioner dealt the matter casually and passed the impugned detention order on a non-existent ground. Such an order is wholly untenable and is liable to be quashed. 13. In support of aforesaid submissions learned counsel has placed reliance on the judgment of the Supreme Court in the Case of Pebam Ningol Mikoi Devi v. State of Manipur and others, (2010) 9 SCC 618 . Para 26 of the said judgment is extracted herein below : “26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be two fold. The Court is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be two fold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting” 14. Whether the grounds stated in the order of detention are sufficient or not is not within the ambit of the discretion of the Court and it is to the subjective satisfaction of the detaining authority. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the Act is non-existent or misconceived or irrelevant, the order of detention would be invalid. 15. Learned counsel further submits that if the grounds of detention in the present case are tested on the aforesaid touchstone, it would be evident that the learned District Magistrate had atleast relied on one of grounds which was non-existent. It was said that the detenue/petitioner was arrested in an encounter on 4.12.2017 whereas the fact remains that he surrendered on 21.1.2017 and he was not arrested in an encounter, therefore, the order becomes untenable and is liable to be quashed. 16. Learned counsel also placed reliance on the judgment of this Court in the case of Writ Petition No. 54(HC) of 2015, (Ajad Vikram Singh v. Union of India and others) to contend that delay of more than seven months in invoking the Act against the detenue/petitioner and coupled with the fact of failure to place on record any evidence that while he was in custody, the detenue/petitioner was trying to disturb the public order by his covert or overt act, would itself be suffice to quash the detention order against the detenue/petitioner. Under these circumstances, the chain of connection between the dangerous activities relied on and the detention order passed is snapped by this long and unexplained delay and, therefore, the detention order is liable to be quashed. He has placed reliance on para 19 of the aforesaid judgment which reads as under : “19. Under these circumstances, the chain of connection between the dangerous activities relied on and the detention order passed is snapped by this long and unexplained delay and, therefore, the detention order is liable to be quashed. He has placed reliance on para 19 of the aforesaid judgment which reads as under : “19. In view of the aforesaid discussions, we are of the view that on the date of passing of the detention order, there was no subjective satisfaction of the District Magistrate Gonda and there was no possibility of being released on bail because on the date of passing of the detention order, any application for bail was not pending and even the bail of the similarly placed named co-accused, who is the father of the petitioner had also not been granted. The delay of 96 days in passing the impugned detention order also looses its importance. There is no explanation to this inordinate delay and no such evidence is there that after lapse of 96 days of arrest, the petitioner was trying to disturb the public order again by any of his overt action. Therefore, the chain of connection between the dangerous activities relied on and the detention order passed is snapped by this long and unexplained delay. In these peculiar facts and circumstances of this case, the detention order dated 30.1.2015 is liable to be quashed.” 17. Learned counsel has further placed reliance on the judgment of the Supreme Court in the case of V. Shantha v. State of Telangana and others, (2017) 14 SCC 577 , to contend that the order of preventive detention affects the life and personal liberty of citizens under Articles 14, 19, 20 and 21 of the Constitution of India and therefore, it is a very serious matter. The power to pass the order of preventive detention being a statutory power must be exercised within the limitation of the statute and must be a exercise for the purposes for which the power is conferred. Learned counsel has also placed reliance on para 10 of the aforesaid judgment which is extracted hereinbelow: ‘’10. An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen under articles 14, 19, 21 and 22 of the constitution. Learned counsel has also placed reliance on para 10 of the aforesaid judgment which is extracted hereinbelow: ‘’10. An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen under articles 14, 19, 21 and 22 of the constitution. The power being statutory in nature, its exercise has to be within the limitations of the statute, and must be exercised for the purpose the power is conferred. If the power is misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.’ 18. On the other hand, learned counsel appearing for the State, Shir. R.K. Dwivedi and Shri Ashok Kumar Singh, learned counsel appearing for the Union of India support the detention order. However, learned AGA fairly submits that the detenue/petitioner surrendered and he was not apprehended after encounter as stated in one of the grounds of detention. He further submits that the public order got disturbed because of the terror caused in the society by causing death of the businessman of the city by the detenue/petitioner and other accused in the manner described in the F.I.R. and it disturbed the peace and public order. The shops were closed in protest of killing and the police had to undertake patrolling and keep vigil to maintain the public order. 19. Subjective satisfaction of the detaining authority is based on relevant considerations inasmuch as after receiving the reports from different authorities, the Magistrate had passed the detention order which cannot be said to be illegal or based on irrelevant considerations or for extraneous purposes. He submits that the other co-accused were granted bail and the detenue/petitioner in all likelihood was to get bail by this Court and in fact he was granted bail and, therefore, considering the facts and circumstances of this case, the detaining authority, on the basis of the material placed before him, passed the detention order which is just, proper and reasonable and, therefore, the petition should be dismissed. 20. We have considered the rival submissions of the parties. It is evident that one of the grounds of detention that the detenue/petitioner was apprehended after encounter on 4.2.2017 is factually incorrect. 20. We have considered the rival submissions of the parties. It is evident that one of the grounds of detention that the detenue/petitioner was apprehended after encounter on 4.2.2017 is factually incorrect. The Supreme Court in the case of Pebam Ningol Mikoi Devi (supra) has specifically said that if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the Act is non-existent, the order of detention would be invalid. The right to life and individual liberty being the most cherished fundamental right in every civilised society governed by the rule of law cannot be taken away unless and until there are reasons to justify it by the procedure established by law which should be just, fair and reasonable. 21. Considering the fact that the detaining authority considered one non-existent ground of detention i.e. the detenue/petitioner was apprehended in an encounter itself vitiates the detention order. We are of the view that the subjective satisfaction of the authority to pass the impugned detention order is incorrect and misconceived. We hereby quash the detention orders dated 14.8.2017 and 8.11.2017. 22. The petitioner/detenue is to be released forthwith unless his detention is required in some other case(s). 23. The petition is allowed.