Court No. 52 Reserved on 16.05.2019 Delivered on 29.05.2019 Case :- HABEAS CORPUS WRIT PETITION No. - 4011 of 2018 Petitioner :- Basheer @ Phukni Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Nazrul Islam Jafri Counsel for Respondent :- A.S.G.I.,G.A.,Vinay Kumar Singh Chandel
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Rajiv Gupta J.
1. Heard Sri N.I. Jafri along with Sri S.I. Jafri, for the petitioner, Sri Patanjali Mishra, A.G.A. 1st, for State of U.P.
2. This Habeas Corpus Petition has been filed for quashing the orders of District Magistrate (respondent-3) dated 14.09.2018, passed in exercise of powers under Section 3 (3) of National Security Act, 1980 (hereinafter referred to as the Act), directing for detention of the petitioner and State of U.P. (respondent-2) dated 24.09.2018, approving the detention order, 01.11.2018, confirming the detention order for a period of three months, from the date of initial order, 12.12.2018, extending detention order for six months, 12.03.2019, extending detention order for nine months and for mandamus directing the respondents to set the petitioner free at his liberty.
3. SHO Brijesh Kumar received an information on wireless set regarding cow slaughtering at village Nagaliya Aakil, on 24.08.2018 at 10:18 hours. Then he along with other police personals proceeded for Nagaliya Aakil. In the way, P.R.V. 1401, consisting HC Rishal Singh, Constable Kapil Kumar and Constable Driver Amit Kumar met him, who confirmed the news that cow slaughtering was going on at the house of Atiq son of Hasmat Ali at village Nagaliya Aakil. Said information was also confirmed by the police informer. On which they came to village Nagaliya Aakil and parked their vehicles at Sunhari Mosque and raided the alleged house of Atiq, where some persons were found making small pieces of the flesh. Out of them Akhtar @ Chidiya, Idrish, Jaleesh, Bashir @ Tarri and Ishrat @ Chirota were taken into custody along with their weapons. On the spot 2 quintals beef, one electronic weighing machine, 8 hoofs of the cow, 4 horns, etc. were recovered. In the meantime, the arrested persons began to shout and called the Muslim community in the name of Khuda for their help.
Thereafter, several persons attacked the police personnel by resorting to pelting stones, brickbats and used iron rods to get rescued the arrested persons. The crowd also damaged the two vehicles of the police. SI Ram Sundar Yadav, SSI Jitendra Kumar Verma, Constables Ashwani and Vinod Kumar sustained grievous injuries. His police uniform was also torn by the public. Among the miscreants, the police identified 19 persons but could arrest only 3 persons, namely Akhtar son of Abdul Gafoor, Jainul Abdeen son of Akhtar Ali and Ashiq son of Jumma. Arrest and recovery memo was prepared, on which basis, FIR (registered as Case Crime No. 245 of 2018) was lodged, under Section 3/5/8 of U.P. Prevention of Cow Slaughter Act, 1955, Section 147, 148, 149, 323, 353, 224, 307 IPC, Section 7 Criminal Law Amendment Act, 1932 and Section 3, 4 of Prevention of Damages to Public Property Act, 1984 on 24.08.2018 at 20:00 hours, at PS Ajeem Nagar, district Rampur against 24 persons (including the petitioner). The petitioner was arrested on 28.08.2018 in this case and sent to jail.
4. In-charge Inspector, PS Ajeem Nagar submitted a report dated 08.09.2018 to the District Magistrate through Superintendent of Police, Rampur stating therein that the said incident was widely published in newspapers and electronic media, in which nominations of the petitioner and his associates were highlighted. A videography was done by someone on mobile phone of the whole incident and was uploaded on internet. Due to aforesaid acts of the petitioner and his co-accused, a sense of insecurity and terror spread in the whole area. The fallout of the incident had culminated into chaos, disturbing congenial atmosphere, flaring horrific feeling, affecting the maintenance of public order. Due to the act of the petitioner and his associates awful and terrible scene was created in whole of the locality and public order was completely disturbed. The people were avoiding to send their children to the schools. Additional police forces, QRT force and Provincial Arms Constabulary were deployed to maintain public order. The petitioner was detained in jail but was trying to obtain bail from the Chief Judicial Magistrate and he was likely to be enlarged on bail. After being enlarged on bail, he would again indulge in criminal activity of cow slaughtering, which is prejudicial to the maintenance of public order. Superintendent of Police, Rampur forwarded this application to District Magistrate, with his recommendation. On the basis of the reports of Superintendent of Police, and In-charge Inspector, District Magistrate, was satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under the Act and he passed the detention order dated 14.09.2018, which was served upon him in jail on 14.09.2018.
5. District Magistrate forwarded the copies of the detention order, along with grounds of detention and other concerned papers to State of U.P., according to the provisions of Section 3 (4) of the Act, vide his letter dated 14.09.2018, which were received by State Government on 17.09.2018. After examining the papers, State of U.P., by order dated 24.09.2018, approved the detention order, i.e. within 12 days as required under Section 3 (4) of the Act. The order was communicated to the petitioner. State Government forwarded the detention order, grounds of detention and concerned papers to U.P. Advisory Board (Detention) and to Central Government, under Section 3 (5) of the Act on 25.09.2018.
6. U.P. Advisory Board (Detention) fixed 11.10.2018 for personal hearing of the petitioner. After hearing the petitioner, U.P. Advisory Board (Detention) submitted its report dated 27.10.2018 to State Government for confirming the detention order. State Government vide its order dated 01.11.2018 confirmed the detention order for a period of three months. State Government, by order dated 12.12.2018, extended it for a period of six months. Thereafter, by order dated 12.03.2019, extended detention order for nine months.
7. The petitioner submitted his representation on 24.09.2018 to the various authorities. District Magistrate after considering the representation rejected it on 26.09.2018. District Magistrate forwarded the representation of the petitioner to State Government, along with parawise comments through its letter dated 26.09.2018. It was received in the concerned section on 28.09.2018. The concerned section examined it on 03.10.2018 and forwarded to Under Secretary along with his comments. Under Secretary examined it on 04.10.2018 and forwarded with his noting to Special Secretary, who examined it on 05.10.2018. Special Secretary forwarded it on 08.10.2018, with his noting (06.10.2018 and 07.10.2018 were public holidays on account of Saturday and Sunday). The Secretary examined it on 08.10.2018 and submitted to the Government with his noting. State Government rejected it on 09.10.2018. The order was communicated to the petitioner through radiogram on 10.10.2018.
8. Central Government received the representation of the petitioner on 03.10.2018. The concerned section processed and forwarded it to Under Secretary (NSA), who examined and forwarded to Deputy Legal Advisor. Deputy Legal Advisor forwarded it to Joint Secretary (Internal Security-II). Joint Secretary (Internal Security-II) along with her comments forwarded it to Union Home Secretary, who rejected the representation of the petitioner on 11.10.2018. The order was communicated to the petitioner through radiogram.
9. The counsel for the petitioner submitted that this incident took place on 24.08.2018 at 12:00 noon while the FIR was lodged at 20:00 hour. Distance of police station from the place of occurrence was only 1.5 KM. This shows that the police has given exaggerated version of the occurrence after due deliberation. In the FIR itself, it has been mentioned that due to incident of attack by the mob on the police, situation relating to maintenance of law and order had arisen. There was nothing on record to show that public order was disturbed. District Magistrate has mechanically recorded his satisfaction. The petitioner has no criminal history. Except the present case, no other case was registered against him. The petitioner has been falsely implicated in this case although from the alleged video, his presence on the spot was not found. There was no material to draw a conclusion that the petitioner would indulge in the activities prejudicial to public order after enlargement on bail. The bail application of the petitioner was rejected by Additional Chief Judicial Magistrate on 05.09.2018 and Session's Judge on 19.09.2018. The petitioner was in jail. District Magistrate has not recorded his satisfaction that the petitioner would be released on bail. Preventive detention order was mechanically passed and is liable to be set aside. He relied upon judgments of Supreme Court in Kamarunnissa v. Union Of India, (1991) 1 SCC 128, in which it has been held that 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 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. What this Court stated was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. Division Bench of this Court in Sanjay Singh Vs. Union Of India, 2015 (9) ADJ 11 (DB) and Vijay Vs. Union Of India, 2017 (5) All LJ 214 (DB) in which it has been held that there should be real possibility of the detenu to be released on bail. Failure of detaining authority to record in the impugned order regarding strong possibility of release of the petitioner on bail, vitiates detention order.
10. We have considered the arguments of the counsel for the parties and examined the record. In the FIR, the situation as arose at the time of arrest of the accused on the spot, had been mentioned. Fall out of the incident dated 24.08.2018 has been a different situations, which have been given in the report of In-charge Inspector dated 08.09.2018. District Magistrate found that after the incident dated 24.08.2018, a panic was created and public order in the locality was disturbed. In order to maintain public order, additional police forces, QRT forces and Provincial Arms Constabulary were deployed in the locality to maintain public order. Satisfaction of District Magistrate in this respect is based upon police report, electronic media and newspapers reports etc. It was subjective satisfaction of District Magistrate under the Act, this Court has no jurisdiction to interfere with the subjective satisfaction.
11. Constitution Bench of Supreme Court in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, has held that the satisfaction of the Government which justifies the order under the rule is a subjective satisfaction. A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If that is so — and that indeed is what the respondent State contends — it seems to me that when an order is on the face of it not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say, irrespective of what is stated in it, in terms of the rule. In other words, in such a case the State cannot be heard to say or prove that the order was in fact made, for example, to prevent Acts the prejudicial to public order which would bring it within the rule though the order does not say so. In Ayya v. State of U.P., (1989) 1 SCC 374, it has been held that there are well-recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the detaining authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public law and the public law courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the degree of probative criteria for the satisfaction for detention is of course in the domain of the detaining authority. To lose sight of the real and clear distinction between the “public order” and “law and order” might lead, in the process of obliteration of their outlines, to the impermissible engrafting of the latter on the former. In Subramanian v. State of T.N., (2012) 4 SCC 699, has held that it is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.
12. So far as the arguments that the petitioner was in jail on the date of detention order dated 14.09.2018; The bail application of the petitioner was rejected by Additional Chief Judicial Magistrate on 05.09.2018 and District Magistrate has not recorded his subjective satisfaction considering the facts that the petitioner would be enlarged on bail application, is concerned, under the law, the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release on bail, detention order can be passed. In the present case, the materials have been placed before the District Magistrate that the petitioner was in jail and was likely to be released on bail. While passing the impugned order, District Magistrate was aware of these facts. Constitution Bench of Supreme Court in Rameshwar Shaw v. D.M., Burdwan, AIR 1964 SC 334, has held that as abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. A three Judges Bench in N. Meera Rani v. Govt. of T.N., (1989) 4 SCC 418, has held that we may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position.
13. Supreme Court in Sama Aruna v. State of Telangana, (2018) 12 SCC 150, has held that the detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case.
14. Supreme Court in Subhash Bhandari Vs. District Magistrate, AIR 1988 SC 74 and State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591, has held that the stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact.
15. In view of aforesaid discussions, the writ petition has no merit and is dismissed.
Order Date :- 29.5.2019 Jaideep/-
(Rajiv Gupta) [Ram Surat Ram (Maurya)]