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2018 DIGILAW 708 (ALL)

Abdullah v. State of U. P.

2018-03-23

KRISHNA PRATAP SINGH, RAMESH SINHA

body2018
JUDGMENT : 1. Heard Sri Irfan-Ul-Huda and Sri Furquan Ahmad Alvi, learned counsel for the petitioner, Sri Kailash Prakash Pathak, learned counsel for the Union of India, Sri Vikas Sahai, learned Additional Government Advocate for the State and perused the record. 2. By means of this Habeas Corpus Writ Petition the petitioner has challenged the detention order dated 30.08.2017 passed by District Magistrate, Azamgarh-respondent no. 2 which has been passed by him in exercise of his power under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act) by which the petitioner has been directed to be detained under Section 3 (2) of the National Security Act, 1980. 3. The detention order dated 30.08.2017 passed by the District Magistrate, Azamgarh reads as under: “On 23.07.2017 at 6:30 a.m. am information was received from the informer (Mukhbir), the In-charge Inspector police Station Ahraula, District Azamgarh along with other police force were reached at the house of Irfan (co-accused) where some persons were involved in the activity of slaughtering the cow and selling beef and when they saw the police personnel, they attacked on them with 'chapar'. Immediately, the police personnel arrested five persons namely Irfan Quraisi, Mohd. Sabir, Abdullah, Fahad and Shah Alam @ Pradhan and at the same time some unknown persons have fled away from the spot. The police personnel has also recovered weighing machine, weight, blood stained chapar, four quintal and fifteen kilogram beef of cow and a piece of wood from the spot. 4. In addition to the afore-mentioned five persons, some unknown persons have also participated in the incident. It was also mentioned in the order of the District Magistrate that the police took into possession the articles used for slaughtering the cow and prepared the recovery memo. Due to attack by the others on the police party, people started running helter skelter and the situation has become tense. The police party could, somehow manage to escape and arrested the five persons. Due to attack by the others on the police party, people started running helter skelter and the situation has become tense. The police party could, somehow manage to escape and arrested the five persons. Thereafter a case was registered at case Crime No. 312 of 2017, under Sections 307 IPC & Section 3/5/8 Prevention of Cow Slaughter Act & Section 11 Gha Prevention of Animal Cruelty Act, at police station Ahraula, District Azamgarh against Irfan, Mohammad Sabir, Abdullah, Fahad, Irfan Quraishi, Shah Alam @ Pradhan, Farzana, Salman and Shana and some unknown persons on 23.07.2017 by the in incharge, police Station, Ahraula, District Azamgarh. 5. The detention order further indicates that on account of afore-mentioned activities of the petitioner, atmosphere of fear and terror has engulfed the whole vicinity. People started running to reach to a safe place. Due to the atmosphere, people are not attending their day to day work. Due to the act of the petitioner, peace and tranquility of the area and law and order situation was badly disturbed. The petitioner was arrested on 23.07.2017 from the residence of co-accused Irfan. 6. The detention order also indicates that a case against the petitioner is registered at case Crime No. 312 of 2017, under Sections 307 IPC & Section 3/5/8 Prevention of Cow Slaughter Act & Section 11 Gha Prevention of Animal Cruelty Act, at police station Ahraula, District Azamgarh. On the basis of the oral evidence and the report of the newspaper it is clear that the petitioner along with his accomplices have committed this offence, which has adversely affected the law and order problem of the State. 7. The detention order further goes to mention that the petitioner in judicial custody in Case Crime No. 312 of 2017, under Sections 307 IPC & Section 3/5/8 Prevention of Cow Slaughter Act & Section 11 Gha Prevention of Animal Cruelty Act, at police station Ahraula, District Azamgarh. In the detention order it has been mentioned that the petitioner is making endeavour to come out of jail and his bail application was rejected on 29.08.2017 by the Additional Sessions Judge/Special Judge (E.C. Act), Azamgarh and from his filing of the bail application, it is evident that his release is imminent. In the detention order it has been mentioned that the petitioner is making endeavour to come out of jail and his bail application was rejected on 29.08.2017 by the Additional Sessions Judge/Special Judge (E.C. Act), Azamgarh and from his filing of the bail application, it is evident that his release is imminent. In case he comes out of the jail, there is chance of his again indulging in such types of incident due to which law and order situation will be badly affected and that is why this detention is necessary.” 8. The detention order dated 30.08.2017 was served upon the petitioner on the very same at the jail on 30.08.2017. Against the detention order, the petitioner has handed over his representation to the Superintendent of Jail, Azamgarh on 06.09.2017 and the same was forwarded to State Government which was approved by the State Government on 26.10.2017. The State Government sent the copies of the representation along with comments to the Central Government, New Delhi and to the U.P. Advisory Board (Detentions) through separate letters both dated 13.10.2017. The State Government finally rejected the representation of the petitioner on 23.10.2017 and the communication through radiogram sent by the State Government was received by the jail authorities on 25.10.2017 and the petitioner was informed of the same on the very same day i.e. 25.10.2017. The aforesaid representation was rejected by the Central Government on 27.10.2017 and the radiogram was sent by the Central Government to the jail authorities was received by the jail authorities on 31.10.2017 and the petitioner was informed on the same day. After the report of the Advisory Board the said detention order was confirmed on 26.10.2017 by the State Government for a period of initially three months from the date of detention order i.e. 30.08.2017. Further after the report of the Advisory Board the detention order was confirmed on 22.11.2017 by the State Government for a period of six months from the date of detention. 9. The representation of the petitioner addressed to the Central Government was sent by the State Government on 13.10.2017, which was received by the Central Government on 23.10.2017. The representation of the petitioner was rejected by the Central Government on 27.10.2017. 10. Learned counsel for the petitioner has submitted that the detention order was passed by the District Magistrate, Azamgarh (respondent no. The representation of the petitioner was rejected by the Central Government on 27.10.2017. 10. Learned counsel for the petitioner has submitted that the detention order was passed by the District Magistrate, Azamgarh (respondent no. 2) on 30.08.2017 stating that the petitioner had moved an application for bail in the solitary case Crime No. 312 of 2017, under Sections 307 I.P.C. & Section 3/5/8 Prevention of Cow Slaughter Act & Section 11 Prevention of Cruelty to Animal Act, Police Station Ahraula, District Azamgarh. On this basis it was alleged that the petitioner is making efforts to bail out and is likely to be released. The satisfaction of the detaining authority for detaining the petitioner is without any material as no bail application is pending before any Court of law on 30.08.2017. The bail application of the petitioner in the aforesaid case was already rejected by the Court below on 29.08.2017. The said fact has been mentioned in para-13 of the writ petition to which reply has been submitted does not appear to be satisfactory one. It was further submitted that the detaining authority, i.e. the District Magistrate, Azamgarh has passed the impugned detention order in a routine manner without application of mind on the report submitted to him by the police authority and that the District Magistrate has failed to record any real subjective satisfaction in the impugned order that there was real possibility of the petitioner, who was in judicial custody to be released on bail. It is further submitted that moreover the material before the detaining authority was not cogent and sufficient to satisfy him that after being released on bail, the petitioner shall again indulge in activities prejudicial to the public order and, therefore, the impugned order being bad in law be set aside and petitioner may be set at liberty forthwith. 11. It is further submitted that moreover the material before the detaining authority was not cogent and sufficient to satisfy him that after being released on bail, the petitioner shall again indulge in activities prejudicial to the public order and, therefore, the impugned order being bad in law be set aside and petitioner may be set at liberty forthwith. 11. Learned A.G.A. on the other hand has opposed the prayer for quashing of the detention order and submitted that the grounds of detention on the basis of which the petitioner has been detained under the Act because of the involvement of the petitioner in case Crime No. 312 of 2017 registered under the Cow Slaughter Act, due to this case peace and tranquility of the area was badly disturbed and there was anguish between the people of the other community but he could not point out that the act of the petitioner was prejudicial to disturbance of public order. 12. It is further contended by Shri Kailash Prakash Pathak learned counsel for Union of India and Shri Vikas Sahai, learned Additional Government Advocate that detaining authority had passed the impugned detention order after being fully satisfied on the basis of material produced before him that after his release on bail, the petitioner shall again indulge in such activities and pose a threat to the maintenance of law and order in the vicinity. 13. In regard of aforesaid submissions of the parties, we have perused the para-13 of the writ petition as well as para-8 of the counter affidavit filed on behalf of the District Magistrate, Azamgarh and after examining the same, we see substance in the argument of the learned counsel for the petitioner as the bail application moved on behalf of the petitioner in the said crime has already been rejected on 29.08.2017 and there was no occasion that the appellant was likely to be released on bail as has been ordered by the District Magistrate, Azamgarh by passing the detention order on 30.08.2017 and satisfaction of the District Magistrate vitiates. 14. A similar question whether the detaining authority has properly applied its mind in such cases where the persons sought to be detained are already in judicial custody, has cropped up before the Constitution Bench of Apex Court in Rameshwar Shaw Vs. District Magistrate, Burdwan, AIR 1964 SC 334 . 14. A similar question whether the detaining authority has properly applied its mind in such cases where the persons sought to be detained are already in judicial custody, has cropped up before the Constitution Bench of Apex Court in Rameshwar Shaw Vs. District Magistrate, Burdwan, AIR 1964 SC 334 . The Court observed thus: "The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under s. 3(1)(a), and this basis is clearly absent in the case of the petitioner. 15. In Haradhan Saha Vs. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under s. 3(1)(a), and this basis is clearly absent in the case of the petitioner. 15. In Haradhan Saha Vs. State of Bengal, (1975) 3 SCC 198 , the Apex Court has held that "where the concerned person is actually in jail custody at the time when the order of detention is passed against him and is not likely to be released for a fair long time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in the activities which would jeopardise the security of the State or the public order." 16. In Shashi Aggarwal Vs. State of Uttar Pradesh, (1988) SCC 436, it was emphasized that the possibility of the Court granting bail is not sufficient nor is a bald statement that the detenu would repeat his criminal activities enough to pass an order of detention unless there is credible information and cogent reason apparent on the record that the detenu, if enlarged on bail, would act prejudicially. 17. In Vijay Narain Singh Vs. State of Bihar, (1984)3 SCC 14 , the Apex Court has stated that the law of preventive detention being a drastic and hard law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice. 18. In Ramesh Yadav Vs. District Magistrate, (1985) 4 SCC 232 , the Apex Court stated that ordinarily a detention order should not be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail. In such cases the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum, but not circumvent it by passing an order of detention merely to supersede the bail order. 19. In such cases the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum, but not circumvent it by passing an order of detention merely to supersede the bail order. 19. Moreover from the grounds of detention, the detaining authority has stated that the petitioner has been trying to get himself bailed out in Case Crime No. 312 of 2017, under Sections 307 I.P.C. & Section 3/5/8 Prevention of Cow Slaughter Act & Section 11 Prevention of Cruelty to Animal Act, Police Station Ahraula, District Azamgarh and he is making effort to get himself released from jail and there is apprehension of his that he would repeat such instances again if he is released on bail. In this regard the Apex Court in the case of Rekha Vs. State of Tamilnadu through Secretary to Government and another (2011) 2 SCC 596 in paragraph no.27 of the report has held as under:- "27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed." 20. In Kamarunnissa Vs. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed." 20. In Kamarunnissa Vs. Union of India and another 1990 SCR Suppl(1) 457 relied upon by the learned counsel for the petitioner, Apex Court after referring catena of judgments held thus: “From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (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 real possibility of his being released on bail and, 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 his 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 the same before a higher Court." 21. The view taken by the Apex Court in Kamarunnissa Vs. Union of India and another (Supra), was followed by Apex Court as well as High Courts in catena of judgments. 22. From the perusal of aforesaid pronouncements of Supreme Court, it is clear that an order of detention passed in respect of a person under judicial custody must satisfy the three conditions spelt out by the Apex Court in the case of Kamarunnissa (Supra) and one of such conditions is that the authority passing the order of detention in respect of a person in custody should have the reason 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. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus, the basis of the order under section 3 (2) of the National Security Act and this basis is clearly absent in the present case. 23. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus, the basis of the order under section 3 (2) of the National Security Act and this basis is clearly absent in the present case. 23. In view of what has been indicated herein above, the impugned order dated 30.8.2017 passed by the District Magistrate, Azamgarh along with all consequential orders are hereby quashed. The respondents are directed to release the petitioner forthwith unless detained in any other case. 24. This Habeas Corpus Writ Petition is allowed as above.