Hon'ble Anil Kumar Agarwal, J.
Heard Sri Arun Kumar, learned counsel for the petitioner, Sri Sudhir Mehrotra, learned A.G.A. appearing on behalf of accused-respondents Nos. 2, 3, 4 and 5 and Sri Amit Sinha appearing on behalf of Union of India (respondent No. 1).
This Habeas Corpus Writ Petition has been filed by the petitioner Anshul Bawra with the prayers that :
1)issue a writ, order or direction in the nature of Habeas Corpus directing the respondents to produce corpus of petitioner before this Hon'ble Court and release the petitioner from illegal detention.
2)issue a writ, order or direction in the nature of certiorari calling for the record and quashing the order of prevention detention dated 11.1.2012 passed by the District Magistrate, Gautam Budh Nagar ( Annexure No. 2 to the writ petition)
3)issue or pass any other /further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
4)award cost to the petitioner.
The facts, in brief, of this case are that the District Magistrate, Gautam Budh Nagar passed the order dated 11.1.2012 in exercising the powers conferred under section 3(3) of the National Security Act, 1980 (hereinafter referred to as ' NSA" )by which the petitioner has been detained in district Jail Ghaziabad under section 3(2) of NSA by referring the grounds of detention also under section 8 of NSA. The order of detention and its grounds dated 11.1.2012 were communicated to the petitioner through Superintendent, District Jail Ghaziabad where the petitioner was already admitted in jail on 13.10.2011 in Case Crime No. 682 of 2011 under sections 364A, 120-B, 34 I.P.C., Police Station Sector 20, NOIDA,Gautam Budh Nagar and Case Crime No. 121 of 2011 under section 364A I.P.C., Police Station Sector 39, NOIDA Gautam Budh Nagar and in Case Crime No. 705 of 2011 under section 25A of the Arms Act, Police Station Kasna, District Gautam Budh Nagar through judicial custody warrants. Thereafter judicial custody warrants were issued against the petitioner in Case Crime No. 703 of 2011 under sections 147, 148, 149, 307 I.P.C., Police Station Kasna, District Gautam Budh Nagar and Case Crime No. 259 of 2011 under sections 392, 411 I.P.C., Police Station Mansoorpur, District Muzaffar Nagar.
The order of detention along with its grounds and other relevant papers were received in district jail on 11.1.2012, the same were served upon the petitioner on the same day i.e. on 11.1.2012, the contents of the same were read over and explained to the petitioner. In pursuance of the grounds of the detention the petitioner was duly informed with regard to his right of representation to different authorities as mentioned in the grounds of detention, including the District Magistrate, Gautam Budh Nagar, he was also informed to submit the representation at the earliest and if he desires to submit the representation to the District Magistrate ( Detaining Authority), then he was informed to submit the same within 12 days or before approval of the detention order, whichever was earlier. The petitioner submitted his representation at District Jail Ghaziabad on 19.1.2012 in 12 copies, which was sent to the office of District Magistrate, Gautam Budh Nagar on the same day i.e. on 19.1.2012.
The detention order dated 11.1.2012, grounds of detention and other connected papers were forwarded by the District Magistrate, Gautam Budh Nagar to the State Government vide his letter dated 11.1.2012, the same were received by State Government on 12.1.2012 after examining every aspect of the case of the petitioner, the State Govermnet approved the order of detention on 20.1.2012, the order of approval was communicated to the petitioner through the district authorities by the State Government by sending a radiogram and letter dated 20.1.2012. The copy of detention order, grounds of detention and all connected papers received from District Magistrate, Gautam Budh Nagar were sent by the State Government to Central Government by Speed Post on 23.1.2012.
The case of the petitioner was referred to the Advisory Board by the State Government along with all the documents on 20.1.2012. The petitioner's representation dated 19.1.2012 was sent to the office of District Magistrate, Gautam Budh Nagar by jail authority on 19.1.2012 which was received in the office of District Magistrate, Gautam Budh Nagar in the evening of 19.1.2012, but the District Magistrate, Gautam Budh Nagar sent the representation by letter dated 20.1.2012 to S.P.Gautam Budh Nagar for providing parawise comments within two days, the comments of S.P.Gautam Budh Nagar were not received within two days then on 24.1.2012 a reminder was sent, a telephonic massage was also given for providing the comments immediately. On 31.1.2012, the DIG of Police and S.S.P.Gautam Budh Nagar were informed about non-receipt of comments and they were directed to provide the comments at the earlier. The comments of sponsoring authorities were received through letter dated 6.2.2012, after receiving the same, the district Magistrate prepared his own comments and sent the same to the State Government through letter dated 7.2.2012, the same was received in the office concerned of the State Government on 9.2.2012. The State Government sent the copies of the representation and parawise comments thereon to the Advisory Board as well as Central Government vide its separate letter dated 10.2.2012. Thereafter, the concerned office of the State Government examined the representation and submitted a detailed note on 13.2.2012, it was examined by Under Secretary, Home and Confidential Department, U.P.Civil Secretariate , Lucknow on 14.2.2012, thereafter it was examined by Special Secretary and Secretary of same Department on 15.2.2012 and it was submitted to higher authorities of the State Government for passing the final order. After due consideration, the said representation was finally rejected by the State Government on 15.2.2012 , the rejection of representation was communicated to the petitioner by the State Government by radiogram dated 16.2.2012.
The case of the petitioner was referred to the Advisory Board by sending all the documents on 20.1.2012, the Advisory Board by its letter dated 18.2.2012 informed the State Government that the case of the petitioner will be taken up for hearing on 22.2.2012 and directed that the petitioner be informed if he desires to attend the hearing before the Advisory Board along with his next friend ( Non Advocate), he could do so and be allowed to take his next friend along with him if he so requires. This fact was accordingly communicated to the petitioner through District Authorities by the State Government by sending radiogram dated 21.2.2012., the petitioner appeared before the Advisory Board on the date fixed, the Advisory Board heard the petitioner in person, considered all the documents including the representation of the petitioner and gave its report by sending its complete record, expressing therein its opinion that there was sufficient cause for detaining the petitioner, it was received in the concerned office in the State Government through Registrar U.P. Advisory Board on 28.2.2012. On receipt of the opinion of the Advisory Board, the State Government once again examined afresh the entire case of the petitioner and took a decision to confirm the detention order and also to keep the petitioner under detention for a period of 12 months on 2.3.2012. According to the order of confirmation and for keeping the petitioner under detention for a period of 12 months from the date of actual detention under the NSA was issued by State Government through radiogram and letter both dated 2.3.2012.
The representation of the petitioner along with parawise comments was forwarded by State of U.P. through its letter dated 10.2.2012, it was received in the concerned section of the Ministry of Home Affairs on 17.2.2012, it was put up for consideration before Union Home Secretary on 27.2.2012. The Union Home Secretary after duly considering the order of detention, its grounds, the petitioner's representation and comments of the detaining Authority thereon, rejected the representation on 2.3.2012 and the record was sent back to the Joint Secretary with receipt on 7.3.2012, accordingly, the wireless massage dated 7.3.2012 was sent to the Home Secretary Government of Uttar Pradesh, Lucknow, Superintendent District Jail Ghaziabad, District Magistrate, Gautam Budh Nagar and petitioner informing him that his representation was considered and rejected by Central Government, the copy of the wireless message was also sent by post on 9.3.2012 to the petitioner (through Superintendent Jail) as well as Superintendent District Jail Ghaziabad with a request to serve the copy to the petitioner and forward the acknowledgement from the petitioner to this Ministry. The report as envisaged under section 3(5) of NSA was sent to the Central Government in the Ministry of Home Affairs by State Government of U.P. through its letter dated 20.1.2012. The said report was received by Central Government in the concerned Section on 30.1.2012.
The detention of the petitioner has been challenged on the following grounds by submitting that detention of the petitioner is illegal :- A) because Order of Preventive Detention dated 11.1.2012 passed by the District Magistrate, Gautam Budh Nagar under Sub Section (3) of Section 3, of the National Security Act, 1980 and confirmed by the State Government allegedly on the Report of State Advisory Board has been passed on wholly illegal manner and in violation of statutory and mandatory provisions of the National Security Act 1980 at each and every stage and as such the same amounts to infringement of petitioner's fundamental rights conferred under the Constitution of India.
B) because petitioner was initially arrested on 12.10.2011 and was sent to District Jail, Ghaziabad in Case Crime No. 682 of 2011, under sections 364A, 34, 120-B I.P.C., PS Sector-20, NOIDA, Gautam Budh Nagar, Case Crime No. 703 of 2011 under sections 147, 148, 307, 482, 420, 411, 424 I.P.C. PS Sector 20 NOIDA, Gautam Budh Nagar and Case Crime No. 705 of 2011 under section 25 Arms Act.
C) because District Magistrate, Gautam Budh Nagar, on 11.1.2012 passed Order of Preventive Detention under Sub section (3) of Section 3, of The National Security Act, 1980.
D) because Order of Preventive Detention dated 11.1.2012 was approved by the State Government 20.1.2012.
E) because State Government by means of Order dated 2.3.2012 passed under Sub-Section (1) of Section 12 of the Act, 1980, allegedly on the basis of Report of the State Advisory Board confirmed the Order of Preventive Detention dated 11.1.2012 for the period of twelve month from the date of Order of Preventive Detention.
F) because the Central Government has failed to discharge its duty under Section 14 of the Act, 1980 in as much as it has considered petitioner's Representation dated 19.1.2012 against order preventive detention with inordinate delay therefore impugned order of preventive detention is not sustainable in the eyes of law and is liable to be set aside by this Hon'ble Court.
G) because as stated in the grounds of preventive detention, petitioner has alleged to be involved in the kidnapping of one Kapil Gupta and basis of alleged involvement of petitioner in the aforesaid offence is statement of one Kapil Gupta.
H) because petitioner is wholly innocent person and he has not committed any offence as alleged in aforesaid FIRs and that he has been falsely implicated by the police and the victim of kidnapping for some ulterior motive and that petitioner is not having any criminal history.
I) because impugned order of preventive detention has been passed in sheer violation of the provisions of the National Security Act 1980.
J) because there must be a reasonable basis for the passing of detention order and there must be relevant material to support the same, however, in the present case there was no relevant material on which the detention order could have been passed.
K) because grounds of detention as stated in the Report of the District Magistrate, Gautam Budh Nagar are wholly vague, indefinite, irrelevant, extraneous, non-existent and conditions precedent of exercise of power under provisions of the National Security Act 1980 did not exit.
L) because impugned order of preventive detention has been passed without application of mind and defence of the petitioner vide his representation was not considered and approval and confirmation of the detention order was done in mechanical manner.
M) because act/offence attributed to the petitioner at the best related to law and order and not to public order.
N) because cases affecting public order are those which have great potentiality to disturb peace and tranquillity of a particular locality or disturb the even tempo of the life of the community or that specified locality.
O) because a solitary case of kidnapping for ransom by no stretch of imagination can be said to affect public order necessitating passing of order of preventive detention.
P) because in the present case the petitioner has never appliled for bail and someone in wholly fraudulent manner filed bail application before court below and the same was rejected, thereafter fresh Bail Application No. 3144 of 2011 has been filed before the Sessions Judge, Gautam Budh Nagar.
Q) because after having come to know about this fraud, Application dated 10.1.2012 was filed on behalf of the petitioner supported with Affidavit of his father to the effect that petitioner has not filed Bail Application No. 3144 of 2011 and therefore the same may be rejected.
R) because in view of the fact that petitioner has not filed any bail application , the apprehension /finding of the District Magistrate to the effect that there is imminent probability of the petitioner coming out on bail is wholly non-existent.
S) because petitioner was in custody since 12.10.2011 therefore passing of order of preventive detention dated 11.1.2011 was wholly unwarranted.
T) because grounds of detention were not disclosed to the detenu/petitioner within time as prescribed under Sub-Section (1) of Section 8 of the National Security Act 1980 thereby denying him the earliest opportunity of making Representation against the order of preventive detention.
U) because reference of the matter of preventive detention of petitioner to the State Advisory Board was belated and as such the impugned order of preventive detention is liable to be set aside on this ground alone.
V) because state Government has not sent Report of the order of preventive detention of petitioner to the Central Government thereby violating the mandatory provision of Sub-Section (5) of Section 3 of the National Security Act 1980.
W) because Article 22(5) of the Constitution of India mandates that all the procedural requirements contemplated thereby are required to be strictly complied with in a case of preventive detention.
X) because to prevent abuse of potentially dangerous power, law of preventive detention must be strictly construed and confined to narrow limit of rare and exceptional cases and meticulous compliance with procedural safeguards should be made mandatory, however, in the present case law of preventive detention has been abused for some ulterior motive and the petitioner has been deprived off of his liberty for no fault on his part.
Y) because detention of petitioner under preventive detention law is not bonafide and he has been deprived off his personal liberty otherwise than in accordance with the procedure established by law.
Z) because impugned order of preventive detention is malafide with malice in law in as much as the same is made contrary to the objects and purpose of the National Security Act 1980 and for considerations which are outside the scope of the Act 1980.
In reply of the above contention, it is submitted by learned A.G.A.that the District Magistrate Gautam Budh Nagar has not committed any error in passing the order of detention dated 11.1.2012 under the NSA. The State Government has approved the order of detention after considering the order of detention and all other relevant documents sent by District Magistrate. There is no delay on the part of the Government in referring the matter to the Advisory Board and Central Government. The State Government has duly sent the representation to the Advisory Board as well as Central Government. There is no delay on the part of District Magistrate in rejecting the representation sent by the petitioner, the comments have been sent by the District Magistrate without making any delay to the State Government, the State Government has not committed any error in rejecting the representation of the petitioner. The Advisory Board has also not committed any error in recording its opinion. Again the State Government has not committed any error in confirming the order of detention. There is no delay on the part of the authority concerned in sending the representation to the Authority concerned for taking the decision and there was no delay on the part of any Authority in communicating the appropriate orders to the petitioner, the Central Government has also not committed any error in rejecting the representation of the petitioner. It is submitted by Sri Amit Sinha, learned counsel appearing on behalf of Union of India that there was no delay on the part of the Central Government in deciding the representation, it was duly considered and rejected on 2.3.2012, thereafter it was properly communicated to the petitioner and other relevant authorities. The District Magistrate has not committed any error in passing the order of detention dated 11.1.2012, thereafter the proper procedure has been followed as provided by the NSA. The State Government after receiving the parawise comments considered the representation of the petitioner and rejected the same on 15.2.2012. The period taken for passing the order of representation has been properly explained by the State Government, the order of detention has been approved by the Government within a period of 12 days as required under section 3(4) of the NSA. The copy of detention order and other connected papers were sent to the Central Government by the State Government within 7 days from the date of approval as required under section 3(5) of NSA. The provisions of Section 3(4) and 3 ( 5) of NSA have been fully complied with. The case of the petitioner was referred to the Advisory Board along with all the documents within a period of 3 weeks from the date of his actual detention as required under section 10 of the NSA. The report of Advisory Board has been received by the State Government within 7 weeks as provided under section 11 (1) of NSA. There is no violation of any provision of the NSA. The act committed by the petitioner is affecting the public order, the present petition is devoid of merit, the same may be dismissed.
Considering the facts, circumstances of the case, submission made by learned counsel for the petitioner, learned A.G.A.and Sri Amit Sinha, learned counsel appearing on behalf of Union of India, it appears that the order of detention dated 11.1.2012 has been passed by District Magistrate,Gautam Budh Nagar mainly on the basis of the involvement of the petitioner in Case Crime No. 682 of 2011 under section 364A I.P.C., Police Station Sector 20 NOIDA, District Gautam Budh Nagar, its information was given to the police station concerned on 22.9.2011 at 1.45 P.M.in respect of the incident allegedly occurred on 21.9.2011 at about 7.00 P.M. alleging therein that one Kapil Gupta who had left his office at about 7.00 P.M. on 21.9.2011 did not reach to his house, its information of missing was converted in an offence punishable under section 364-A on 24.9.2011 at 9.15 A.M. on the basis of report submitted to the Police Station that Kapil Gupta was abducted for ransom. The petitioner and his two associate were arrested on 11.10.2011 at 10.30 P.M.by the police of Police Station Kasna, its FIR was lodged on 12.10.2011 at 1.45 A.M. The firing was made by the petitioner and his associates at the police party but fortunately the police party did not sustain any injury and petitioner was apprehended on spot. From his possession a USA made pistol 32 bore along with 2 live cartridges was recovered. Along with the petitioner , co-accused Kapil son of Narendra Singh and Vinjay Kumar were also arrested. From the possession of co-accused Kapil one Italy made automatic pistol 9 mm along with 4 live cartridges were recovered and from the possession of co-accused Vinay Kumar one 38 bore revolver along with 5 live cartridges and one empty cartridge were recovered and from the place of incident, two empty cartridges of 9 mm and one empty cartridge of 32 bore were recovered. After making the arrest of the petitioner and his two associates, the police came to their car No. UP 16 AB 7464 SWIFT DEZIRE, in their presence the search was made, from its diggi Rs. Two crores were recovered. The petitioner and his associates made confessional statements before the police that they had abducted Kapil Gupta who was in Mercedes Car on 21.9.2011 and the amount of Rs. 5 crores was realised from his family members as ransom for releasing Kapil Gupta. The petitioner and his associates disclose the name of other co-accused Monu Gujar, Sunny and Sumit @ Gajni, it was also confessed by the petitioner and his associates that the recovered Car was also looted by them from District Muzaffar Nagar, they also confessed that they had abducted one Saurabh Jain, who was working in the office of Kapil Gupta on 23.2.2011, he was released after realising the amount of Rs. 25 lakhs from the wife of Saurabh Jain, out of which, the amount of Rs. 10 lakhs was spent and remaining amount of 15 lakhs was kept at the house of the petitioner Anshul Bawra and they assured the police to recover the remaining amount of ransom.
At the pointing out of the petitioner and his associates the amount of Rs. One crore was recovered from the double bed of co-accused Kapil , on interrogation it was disclosed that aforesaid amount of money was taken as a ransom. Thereafter at the pointing out of the petitioner and his associates the amount of Rs. 15 lakhs, which was realised as ransom in an abduction of Saurabh Jain, was recovered from the kitchen of the petitioner, thereafter at the pointing out of petitioner and his associates the amount of Rs. one crore and 10 lakh was recovered from the house of Vinay Kumar. The petitioner and his associates also confessed about the abduction of Saurabh Jain and disclosed the fact that one Hundai Car was used in commission of above offence,which was also looted by them. The involvement of the petitioner as shown in the grounds of detention is affecting the public order.
According to the grounds of detention, the petitioner and his associates made confessional statement showing their involvement in the commission of case crime no. 682 of 2011 under section 364-A I.P.C. P.S. Sector 20 Noida, District Gautam Budh Nagar in which one Kapil Gupta, was abducted on 21.9.2011 at about 7.00 p.m. He was released after realising an amount of Rs. 5 crores, out of which some of the amount has been recovered, at the pointing out of the petitioner and his two associates prior to that the petitioner and other co-accused persons had committed the offence of abduction in which one Saurabh Jain, who was working in the company of Kapil Gupta was abducted and after realising an amount of 25 lakhs, he was released. From the amount of ransom, it was admitted by the petitioner and other co-accused persons that an amount of Rs. 10 lakhs were spent and remaining amount of Rs. 15 lakhs were kept in the house of the petitioner, the same was recovered from the kitchen of the petitioner, he has been made the accused in the case of abduction in case crime no. 121 of 2011, under section 364-A I.P.C. P.S. Sector 39 district Gautam Budh Nagar, it was also confessed by the petitioner that for making abduction of Saurabh Jain one Hundai car was used, the same was looted by them, thereafter, it was left toward Roorkee, prior to the arrest of the petitioner, he fired at the police party with the intention of committing murder of the police personnel, its F.I.R. was lodged against the petitioner in case crime no. 703 of 2011 under sections 147,148,149,307,482,420,411 and 414 I.P.C. From the possession of the petitioner one pistol of 32 bore made in U.S.A. was recovered, from its magazine two live cartridges were also recovered, which shows that the submission made by the learned counsel for the petitioner that the impugned order of detention has been passed on the basis of solitary incident, is having no substance because two cases of abduction firing on the police party and recovery of pistol made in U.S.A. have been considered by the detaining authority. It has also been revealed from the ground of detention that on account of the abduction made by the petitioner and other accused persons, people in general and the persons of corporate sector gave a representation for providing security and to create a new office of the C.O. (Industries). The abduction case of Kapil Gupta was taken by the media and it was printed in the National News Papers due to which the people in general have been deeply affected because the petitioner and his associates, in a preplanned manner, abducted the respected people and realised heavy amount of money as ransom. The detaining authority was fully satisfied that in case petitioner is not detained under the National Security Act, he may commit such other offence also. Due to the aforesaid case of abduction, in which after realising heavy amount of money as ransom, the abductee was released, it has disturbed the tempo of life. The detaining authority has not committed any error in holding that due to the act done by the petitioner the public order has been adversely affected. The detaining authority has not committed any error in passing the order. Thereafter, proper procedure has been followed in communicating to the petitioner in respect of the detention order. The petitioner was duly apprised about his right with regard to the representation etc. The State Government has not committed any error in approving the order of detention and well within time the order of detention was communicated and documents of representation were sent to the Advisory Board. The State Government has rejected the representation of the petitioner after following proper procedure and without making any delay. The advisory board also followed proper procedure in calling the petitioner, thereafter, advisory board recorded finding against the petitioner, which was duly communicated to the State Government, thereafter, the State Government again reconsidered the matter in the light of the opinion expressed by the advisory board and affirmed the order of detention for a period of 12 months, on the part of the Central Government also there was no delay in deciding the representation and there was no fault on the part of the State Government in referring the matter to the Central Government. The Central Government rejected the representation well within time and the same was communicated to the petitioner also. In such circumstances we are of the view that the grounds on which the order of detention of the petitioner has been passed, are having no substance and the petitioner has failed to establish that the detention of the petitioner, is illegal. The impugned order of detention dated 11.1.2012 is not suffering from any illegality or irregularity. In pursuance of the order dated 11.1.2012 proper procedure has been followed to keep the petitioner under detention. There is no violation of any mandatory provision of N.S.A., therefore, the prayer for quashing the impugned order dated 11.1.2012 is refused. The detention of the petitioner is not illegal, therefore, the prayer for releasing the petitioner without serving the period of detention is refused. Since the detention of the petitioner is not illegal, therefore the prayer for awarding the cost is also refused.
Accordingly this petition is dismissed.