Court No. 52 Reserved on 09.04.2019 Delivered on 26.04.2019 Case :- HABEAS CORPUS WRIT PETITION No. - 116 of 2019 Petitioner :- Chhotu @ Ramkaran Singh Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Sanjeev Kumar Singh, Ajay Pratap Singh, Shashank Shekhar Counsel for Respondent :-A.S.G.I., Govt. Advocate, Alok Ranjan Mishra
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Rajiv Gupta J.
1. Heard Sri Sanjeev Kumar Singh, for the petitioner, Sri Patanjali Mishra, A.G.A. 1st, for State of U.P. and Sri Alok Ranjan Mishra, Additional Standing Counsel, for Union Of India.
2. This Habeas Corpus Writ Petition has been filed for quashing the order of District Magistrate (respondent-3) dated 06.08.2018, 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 the orders of State of U.P. (respondent-2) dated 14.08.2018, approving the detention order, 25.09.2018, confirming the detention order and 31.10.2018 and 31.01.2019, extending the detention order and Union of India (respondent-1) dated 13.09.2018, rejecting the representation of the petitioner.
3. On the complaint of one Lakshmi Narain Singh, an FIR of Case Crime No. 0039 of 2018 was registered on 13.02.2018 at 0705 hours, against Ashutosh Bhatt, Deepak Singh, Nikki and two unnamed persons, under Section 302, 394 IPC, at police station Gorakhnath, district Gorakhpur. It has been stated in the FIR that on 12.02.2018, the informant, his son Arvind Kumar Singh and daughter-in-law Mamta Singh had gone to attend a tilak ceremony of his friend Sunil and Abhishek, which was arranged at Jashn Marriage Lawn, Bargadwa, near R.K.B.K. Maruti Showroom. At about 23:00 hours, while they were taking meal, the accused came there and attacked his son. They began to assault his son by kicks and fists and snatched his licensed revolver. The accused Ashutosh took out his pistol and fired upon his son, which caused injury to him, due to which he died on the spot. The accused thereafter fled away waving their firearms. During investigation, additional statement of Lakshmi Narain Singh was recorded on 15.02.2018, in which, he named the unknown accused as Chhotu @ Ramkaran Singh and Teenu Sonkar. It is stated that during investigation, Chhotu @ Ramkaran Singh was arrested and on his pointing out looted revolver of the deceased Arvind Kumar Singh was recovered on 07.03.2018.
4. During investigation, the Investigating Officer found that the petitioner was a hardened criminal and involved in (i) Case Crime No. 365 of 2007 under Section 302, 323, 504, 427 IPC, PS Shahpur, district Gorakhpur, (ii) Case Crime No. 248 of 2010 under Section 394 IPC, PS Shahpur, district Gorakhpur, (iii) Case No. 194 of 2012, under Section 3/4 U.P. Control of Goondas Act, 1970 and (iv) Case Crime No. 0039 of 2018, under Section 302, 396, 412 IPC, Section 30 Arms Act, 1959 and Section 7 Criminal Laws Amendment Act, 1932, P.S. Gorakhnath. The petitioner has formed a gang and was involved in extortion of money from the businessmen, shopkeepers, marriage hall owners etc. terrorizing them. Due to terror of the petitioner and his gang, usually nobody dared to lodge FIR against them. The activities of the petitioner and his gang were prejudicial to maintain public order in the city. Due to incident dated 12.02.2018, a panic was created in general public as well as marriage hall owners. Inspector, therefore, submitted a report to Senior Superintendent of Police, Gorakhpur to initiate proceeding for preventive detention of the petitioner. It has been mentioned in this letter that although bail application of the petitioner was rejected by District Judge, Gorakhpur on 29.06.2018, but the petitioner has applied before High Court for bail. Senior Superintendent of Police, Gorakhpur, forwarded the letter of Inspector to District Magistrate with his recommendation, through his letter dated 05.08.2008. On the basis of aforementioned criminal antecedents and the report of Senior Superintendent of Police, Gorakhpur dated 05.08.2018, District Magistrate, was satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the security of the State and to the maintenance of public order, it is necessary to detain the petitioner and he passed detention order dated 06.08.2018, which was served upon him in jail.
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 06.08.2018 which were received by the State Government on 07.08.2018. After examining the papers, State of U.P., by order dated 14.08.2018, 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 on 16.08.2018. State Government forwarded the detention order, along with grounds of detention and other concerned papers to Central Government under Section 3 (5) of the Act on 16.08.2018, i.e. within seven days.
6. The petitioner submitted his representation dated 20.08.2018 through District Jail Authorities, to the authorities, who forwarded the representation of the petitioner to District Magistrate. District Magistrate rejected the representation by order dated 28.08.2018. District Magistrate forwarded the representation along with parawise comments, detention order, ground of detention and all other concerned papers to State Government on 28.08.2018, which was received in concerned section on 29.08.2018. Concerned section examined the representation on 30.08.2018. Under Secretary examined the representation of the petitioner on 31.08.2018. Special Secretary examined the representation on 04.09.2018 as 01.09.2018 to 03.09.2018 were public holidays. The Secretary examined the representation on 05.09.2018. State Government rejected it on 06.09.2018. The order was communicated to the petitioner through Jail Authorities on 06.09.2018.
7. Central Government received the representation of the petitioner on 07.09.2018. The concerned section forwarded it to Under Secretary (NSA) on 10.09.2018 as 08.09.2018 and 09.09.2018 were holidays. Under Secretary (NSA) examined it on 10.09.2018 and forwarded it with his comments on the same day to Deputy Legal Advisor. Deputy Legal Advisor examined it and with his comments forwarded the records to Joint Secretary (Internal Security- II) on 10.09.2018, who after examining it forwarded to Union Home Secretary on 11.09.2018. Union Home Secretary after considering the material on record, rejected the representation of the petitioner by order dated 12.09.2018. The order was communicated to the petitioner on 13.09.2018.
8. U.P. Advisory Board (Detention) fixed 13.09.2018 for personal hearing of the petitioner. After hearing the petitioner, U.P. Advisory Board (Detention) submitted its report dated 17.09.2018, to State Government for confirming the detention order. State Government vide its order dated 25.09.2018 confirmed the detention order for a period of three months. State Government, by order dated 31.10.2018, extended it for a period of six months and thereafter, by order dated 31.01.2019, extended it for a period of nine months.
9. We have considered the arguments of counsel for the parties and examined the record. Supreme Court in Shafiq Ahmad v. D.M., (1989) 4 SCC 556, has held that the difference between public order and law and order is a matter of degree. If the morale of the police force or of the people is shaken by making them lose their faith in the law enforcing machinery of the State then prejudice is occasioned to maintenance of public order. Such attempts or actions which undermine the public faith in the police administration at a time when tensions are high, affects maintenance of public order and as such conduct is prejudicial. In Amanulla Khan Kudeatalla Khan Pathan v. State of Gujarat, (1999) 5 SCC 613, has held that it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of “law and order” or it amounts to breach of “public order”. Applying the ratio of the aforesaid decision to the facts of the present case we find that the activities of the detenu by trying to extort money from ordinary citizens by putting them to fear of death and on their refusal to part with the money to drag them and torture them on public road undoubtedly affected the even tempo of life of the society and, therefore such activities cannot be said to be a mere disturbance of law and order. In Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 9 SCC 618, has held that 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 scrutinise 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 twofold. 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. 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.
10. Counsel for the petitioner relied upon the judgments in Habeas Corpus Writ Petition No. 3094 of 2018 (Istakaar and Another vs. Union of India and 5 Others) dated 4.9.2018, in which it has been held that there was no material to prove that by the act of the accused, even tempo of life of public has been disturbed or it was prejudicial to maintenance of public order. In this case, the cow slaughter was done in jungle area; Habeas Corpus Writ Petition No. 3279 of 2018 (Noorey Alam vs. Union of India and 5 Others) dated 8.10.2018, in which it has been held that on the basis of registration of criminal cases u/s 147, 148, 323, 307 I.P.C. and Section 7 of Criminal Law Amendment Act, no inference can be drawn that the detenue would indulge in activities prejudicial to maintaining public order; Habeas Corpus Writ Petition No. 3513 of 2018 (Deepak Singh vs. Union of India and 4 Others) dated 27.3.2019 and Habeas Corpus Writ Petition No. 3656 of 2018 (Satish Sonkar @ Tinu Sonkar vs.
Union of India and 3 Others) dated 23.1.2019, in which also it has been held that on the basis of registration of a case u/s 302, 394 I.P.C., no inference can be drawn that there is likelihood of the petitioner after being released on bail to indulge in activities prejudicial to public order.
11. In the present case, four cases were registered against the petitioner. So far as the fourth case is concerned, in this case, the murder has been committed in the marriage hall, in the presence of huge crowd. Due to the act of petitioner and the co-accused, awful and terrible scene had developed and public order in the whole of the locality was disturbed. Additional police forces were deployed to control the situation. It has also come in the light that the petitioner had formed a gang for extortion of money from the businessmen, owners of marriage halls, etc. and this was an organized act and profession of the petitioner. In all likelihood, when the petitioner would be released on bail, he would again indulge in same activities of extortion of money from the businessmen, commit murder, etc. The subjective satisfaction recorded by the District Magistrate is based upon material on record, which cannot be set aside by this Court.
12. Constitution Bench of Supreme Court in K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 and in Abdul Nasar Adam Ismail v. State of Maharashtra, (2013) 4 SCC 435, held that the representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be” occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
13. In the present case, the petitioner submitted his representation on 20.08.2018 to the Jail Authorities. District Magistrate rejected the representation on 28.08.2018. District Magistrate forwarded the representation, along with parawise comments, as well as other materials to State Government on 28.8.2018, which was received in the concerned section on 29.8.2018. Various authorities have examined the representation of the petitioner and made their endorsements and ultimately, the State Government rejected it on 6.9.2018. Representation of the petitioner was received by Central Government on 7.9.2018. As 8.9.2018 and 9.9.2018 were holidays, the Under Secretary (NSA) examined it on 10.9.2018 and thereafter, other authorities examined it and ultimately it was considered by Union Home Secretary on 12.9.2018 and was rejected on that very day. So far as the report of U.P. Advisory Board is concerned, U.P. Advisory Board (Detention) provided personal hearing to the petitioner on 13.9.23018 and submitted its report dated 17.9.2018. On its basis, the State Government confirmed the detention order on 25.9.2018, i.e. within 7 weeks, as provided u/s 11 of the Act. Thus, there was no undue delay in disposal of the representation of the petitioner and it was promptly attended and decided by the authorities.
13. In view of aforesaid discussions, writ petition has no merit and is dismissed.
Order Date :- 26.4.2019 Jaideep/-
(Rajiv Gupta) [R.S.R. (Maurya)]