Hon'ble Krishna Pratap Singh,J.
Delivered by Hon'ble Ramesh Sinha, J.
1. By means of this petition the petitioner has challenged the detention order dated 9.10.2017 passed by District Magistrate, Bulandshahr-respondent no.3 which has been passed by him in exercise of his power under Section 3(3) of the National Security Act, 1990 (hereinafter referred to as the Act) by which the petitioner has been directed to be detained u/s 3(2) of the National Security Act, 1980.
2. The detention order was passed by respondent no.3 on the report forwarded by respondent no.6 i.e. to the respondent no.4 i.e. Senior Superintendent of Police, Bulandshahr who made the recommendation to respondent no.3 District Magistrate, Bulandshahar for detaining the petitioner under the Act vide his report dated 5.10.2017. On the basis of said report, the respondent no.3 District Magistrate, Bulandshahar passed the impugned detention order against the petitioner on the ground which has been mentioned in the ground of detention which has been annexed as Annexure No.6 to the present petition.
3. Against the detention order, the petitioner submitted his representation dated 20.10.2017 to the respondent nos.1, 2 and 3 through respondent no.5 Superintendent District Jail, Bulandshahar for being forwarded to them. The State Government approved the detention order dated 9.10.2017 vide order dated 18.10.2017 in exercise of power u/s 3(4) of the Act. The said representation of the petitioner was rejected by the District Magistrate vide order dated 27.10.2017. The State Government also finally rejected the representation of the petitioner on 3.11.2017 which was communicated to the petitioner through the District Authorities by the State Government vide radiogram and letter dated 7.11.2017. The petitioner was also heard by the U.P. Advisory Board and the petitioner appeared before it on 13.11.2017 which found sufficient cause for detaining the petitioner. Thereafter once again the State Government examined afresh the entire case of the petitioner along with the opinion of the U.P. Advisory Board and took a decision to confirm the detention order and also for keeping the petitioner under detention for a period of three months provisionally from the date of actual detention of the petitioner i.e. since 9.10.2017.
4. From the grounds of detention it is apparent that the petitioner has been detained by respondent no.3, on the basis of two cases which were registered against the petitioner as Case Crime No.1418 of 2017 police station Kotwali Dehat, u/s 3/5A/8 of Cow Slaughter Act registered by one Suresh Village Pradhan of village Adauli district Bulandshahar and Case Crime No.1421 of 2017, police station Kotwali Dehat, u/s 147, 148, 149, 188, 336, 352 IPC and 7 Crl. Law Amendment Act lodged by Sri Akhilesh Kumar, Station House Officer of the said police station. It is stated in the grounds of detention that on 28.8.2017 at 8 a.m. in village Adauli, near the pond of Nawab, the Sugar Cane field is situated where the head of cow was found on account of which the people of the area assembled and from their conversation, it transpired that one Dev Singh, Hukum Singh, Mahipal and Shekhar etc. had gone to attend the call of nature at 5.30 a.m. near the pond, then they saw the petitioner along with his father and other associates namely Hashim, Shaqil, Mursaleen, Amir and Akbar carrying some items in bag near the pond adjacent to the sugar cane field of Mujammil then it was found that the petitioner and his associates in the early hours of the morning have slaughtered the cow and the beef was being carried in the bag from the said place leaving behind the severed head of the cow and it's remains near the pond. The news about slaughtering of the cow spread in the village like fire and the police on receiving the said information from the reporting chauki Nai Mandi and police station Kotwali Dehat, reached in the village at 8.15 a.m. and found the severed head of cow and it's remains in the village. Thereafter the residents of village namely Pawan and 35-40 other people were annoyed and became aggressive which raised communal tension in the village and the police force pacified the people present there assuring them that they should cool down and action would be taken against the culprits. On the spot a veterinary doctor was called who took the severed head of cow and it's remains for post-mortem and when the remains of the cow were tried to be buried in accordance with law, then people started agitation and demonstration and demanded that the culprits for slaughtering the cow should be arrested first and then the remains of the cow be buried on account of which the communal tension prevailed and there was disturbance of public order. The police force tried to reconcile the crowd and requested them later report to register against the accused persons on which some people went to police station for lodging the FIR. After taking the sample of the severed head of the cow and it's remains in the presence of the veterinary doctor, the remains were buried in accordance with law. The persons namely village pradhan Suresh who initially gave the information about the slaughtering of the cow by the petitioner and his father Nawab Khan and his associates Mujammil and Hashim, an FIR was lodged by him as Case Crime No.1418 of 2017 u/s 3/5Ka/8 Cow Slaughter Act at 16.05 hours at the concerned police station on the basis of evidence collected during investigation, same was converted u/s 3/5/8 Cow Slaughter Act.
5. On account of the said incident, some further incident took place on the same day at 11.30 a.m. in which it is alleged that the petitioner's group entered into the house of one Subhash resident of the same village at 11.30 a.m. on the same very day and also broken the doors of his house and tried to outrage the modesty of his minor daughter but on the alarm raised by Subhash, people of nearby area assembled and saved him. Some people in the crowd also fired in the air on account of which the associates of the petitioner had left the place. The daughter of Subhash was also sent for medical examination on 25.8.2017 at 16.30 hours. Subhash also lodged an FIR against Tahseem and other persons which was registered as Case Crime No.1419 of 2017 u/s 147, 148, 149, 354A, 427, 452 IPC and Section 8 of POCSO Act.
6. Due to the two incidents which has taken place on 25.8.2017 in the morning between the short intervals, there was anguish between the two communities and some persons belonging to the petitioner's group who were present at two mosques at 11.30. a.m., where the persons of other community went and started demonstration and agitation. From both the sides, provocative slogans were raised on account of which the crowd took a violence shape and other persons of the community started pelting brick-bats and damaged the mosque with lathi and danda on account of which the public order was badly disturbed. With respect to the said incident, one Zakir lodged FIR against Pawan and 35 persons along with 100 other persons which was registered as Case Crime No.1420 of 2017 Police Station Kanpur Kotwali Dehat, u/s 395, 397, 295 IPC. On the basis of statements of informant Zakir along with other persons recorded u/s 161 Cr.P.C., the offence u/s 395, 397 IPC was not disclosed, hence the offence was found u/s 147, 148, 295, 427 IPC only.
7. In spite of the police force continuously present in the village and other places where the police force could not reach, such incident of communal disharmony took place at it's peak. On 25.8.2017 when the police force were patrolling in village Adauli, at 12 noon reached near the dairy of Manoj, S/o Mahendra Lodhi, then the petitioner along with his father and associates Mujammil, Hashim, Tahseem, Mudassar, Afaq, Aas Mohammad, Saleem, Shakir, Khijar, Amir and 30-40 other persons and persons of other community namely Pawan and other persons were demonstrating and agitating against slaughtering of cow and both the communities were agitating against each other on account of which there was turmoil and disturbance of public tranquility and after pacifying the people of two communities which were getting beyond control the higher officials were informed on R.T. Set by police force and they were informed of the situation and additional police force was demanded during which the members of both the community became aggressive and started abusing language against each other and also threatened to kill each other and also fired shot in the air by their illegal weapons and also bricks-bats were thrown against each other on account of which there was violence and disturbance of public order and people started running for taking shelter. In the meanwhile In-Charge Inspector of police station Kotwali City and Station Officer of Aurangabad along with their respective force and higher police officials were informed and taking into account the situation, P.A.C was called and deployed. Thereafter situation brought to control. With respect to the said incident, an FIR was lodged by Akhilesh Kumar, the then In-Charge of police station Kotwali Dehat. The said FIR was registered as Case Crime No.1421 of 2017 u/s 147, 148, 149, 188, 336, 352 IPC and 7 Crl. Law Amendment Act.
8. It has been further stated in the grounds of detention that the District Magistrate taking into account the aforesaid incident which took place on 25.8.2017, has stated that the petitioner for his wrongful gain along with his associates in a pre-planned manner has committed the incident of cow slaughtering in order to hurt the religious feeling of the other community as people of other community worship the cow and treat the cow to be their mother. The District Magistrate who also reached on the spot and took stain of the situation and also made conversation with the people of the village and after pacifying them and gaining their confidence, persons responsible for the slaughtering of the cow action would be taken against the culprits and no such incident would further take place. It has been further stated in the ground of detention by the District Magistrate that three persons of group of the petitioner namely Aas Mohammad, Shakir and Saleem were arrested on 27.8.2017 in case Crime No.1421 of 2017, from the house of Aas Mohammad in village Adauli and accused Mujammil involved in Case Crime No.1418 of 2017 was also arrested on 5.9.2017 at 12.30 hours in village Adauli who has confessed his guilt that on 25.8.2017 in the morning, the petitioner along with his father Nawab Khan and co-accused Hashim, Shakil, Mursaleen and Amir together have slaughtered the cow and Hashim was arrested on 6.9.2017 and petitioner was arrested on 9.9.2017 at 10.45 hours from his house.
9. One of the associate of the petitioner who was involved in the slaughtering of cow namely Akbar was arrested on 11.9.2017 at 10.10 hours who has confessed his guilt and has stated that the petitioner along with his father and his associates have slaughtered the cow near the sugar cane field of Mujammil and has stated that the petitioner is indulged in the sale of beef after slaughtering of the cow is divided in equal proportion and after sale it get handsome amount and from the pointing out of Akbar, an axe and knife and other items were recovered from the sugar cane field of Mujammil.
10. It has been further stated by the detaining authority that though there appears to be no previous antecedents of the petitioner but the manner in which the offence has been committed by the petitioner along with his father and his associates, for their wrongful gain who sell beef and distributes them shows that he is habitual offender in slaughtering of Cow. On the basis of grounds of detention, the District Magistrate-respondent no.3 has recorded subject of satisfaction for detaining the petitioner under the Act. It has been further stated by her that the petitioner has moved bail application in Case Crime No.1418 of 2017 u/s 3/5/8 of Cow Slaughter Act and Case Crime No.1421 of 2017 u/s 147, 148, 149, 188, 336, 352 IPC and 7 Crl. Law Amendment Act and making efforts for his release along with his associates and after his bail application has been rejected by the sub-ordinate court, he has moved bail application before the District and Sessions Judge, Bulandshahar for which early date is fixed for hearing and orders and after being released on bail in the main case, he would moved bail application in the second case also and in one day after getting it allowed, he is trying to release from jail.
11. Heard Sri Ankit Agarwal, learned counsel for the petitioner, Sri Jitendra Prasad Mishra, learned counsel for the Union of India and Sri Vikas Sahai, learned A.G.A. for the State and perused the impugned order as well as material brought on record.
12. It has been argued by learned counsel for the petitioner that the petitioner is only named in two criminal cases i.e. Case Crime No.1418 of 2017 u/s 3/5A/8 of Cow Slaughter Act and Case Crime No.1421 of 2017 u/s 147, 148, 149, 188, 336, 352 IPC and 7 Crl. Law Amendment Act. He further argued that the detention order which has been passed by the detaining authority against the petitioner shows that the same is based on non-application of mind as she only on the recommendation of respondent no.6 In charge Inspector, Police Station Kanpur Dehat, Bulandshahar on 5.10.2017 submitted to S.S.P, Bulandshahar respondent no.4 who on the same very date reported to the District Magistrate, Bulandshahar respondent no.3 recommending the detention of the petitioner under the Act. He further urged that Case Crime No.1418 of 2017 was lodged by one Suresh, Village Pradhan who was the first person to report about the incident dated 25.8.2017 regarding the slaughtering of cow of which head was severed and found near the pond of Nawab adjacent to sugar cane field of Mujammil is highly inimical to the petitioner as the wife of the petitioner namely Shabana conducted the election for village pradhan against him and the wife of the petitioner though lost in the election but said Suresh in collusion with the police has registered FIR against the petitioner and his father Nawab Khan and two other accused Hashim and Mujammil which is a false and frivolous allegation. He further argued that the name of the petitioner has been disclosed by the co-accused in the confessional statement of the co-accused Mujammil who was arrested by the police on 5.9.2017 and Akbar was arrested on 11.9.2017 and except their confessional statement before the police, there is no evidence against the petitioner. Moreover no recovery of any incriminating article was made at his pointing out or from his possession. He argued that the detaining authority had only chosen to detain the petitioner under the Act and no other accused named in the FIR registered as Case Crime No.1418 of 2017 and Case Crime No.1421 of 2017 which was lodged against the members of both the communities. It was only on account of some political motive, the FIR has been registered against the petitioner. The other three FIR which have been referred in the grounds of detention by the detaining authority, i.e. Case Crime No.1418 of 2017, Case Crime No.1419 of 2017 and Case Crime No.1421 of 2017, the petitioner is not named in the FIR and the detaining authority has taken the accused of the said case to be the associates of the petitioner without there being any material on record to show that the petitioner was having any association with the said persons. The detention order is liable to be set-aside by this Court as the same is only arbitrary and illegal. He further submitted that though the detention order mentions that there was disturbance of public tranquility and anguish between two communities and assault by bricks-bats by the either sides but no single person has received injuries in the incident dated 25.8.2017 and the injury to the daughter of Subhash who lodged the FIR as Case Crime No.1419 of 2017 u/s 147, 148, 149, 354A, 427, 452 IPC and 8 POCSO Act, no medical examination has been annexed. Moreover, the petitioner was also not named in the said FIR simply because the severed head of cow and it's remains were found near the Sugar Cane field of Mujammil of Case Crime No.1418 of 2017 in which the petitioner along with his father has also been named shows that it was a case of law and order problem and not disturbance of public order and police was deployed in the area because of anguish of the other community and further higher official were informed and the District Magistrate also arrived on the spot may not be sufficient to detain the petitioner under the Act as there has been no loss of life even no person has received any injury or there was any damage to the public property.
13. Learned AGA on the other hand has opposed the prayer for quashing of the detention order and submitted that the grounds of detention mentioned on the basis of which the petitioner has been detained under the Act shows that because of the involvement of the petitioner in Case Crime No.1418 of 2017 registered under the Cow Slaughter Act, detention prevailed in the area and there was anguish between the people of the other community and four other incidents also took place at short intervals and one Case Crime No.1421 of 2017 was registered against the petitioner and other accused persons who belong to both the communities but he could not point out that the act of the petitioner was prejudicial to disturbance of public order as no person has received any injury in the incident nor there has been loss of life to public property or private property etc. Moreover, nothing was recovered at the pointing out or from the possession of the petitioner and the name of the petitioner has come into light in the confessional statement of the co-accused Mujammil and Akbar.
14. We have given thoughtful consideration to the submissions advanced by learned counsel for the parties.
15. It is an admitted fact that the petitioner was involved in two cases i.e. Case Crime No.1418 of 2017 u/s 3/5A/8 of Cow Slaughter Act and Case Crime No.1421 of 2017 u/s 147, 148, 149, 188, 336, 352 IPC and 7 Crl. Law Amendment Act. The severed head of the cow was found near the pond situated adjacent to the sugar cane field of Mujammil from where the said items were recovered. No one has seen the petitioner or his father on the spot and only some people who had gone to attend the call of nature at 5.30 a.m. in the early morning when saw the severed head of the Cow and it's remains on the spot and had only seen the petitioner and his father and other accused persons carrying something in a bag. Thereafter the news spread in the village about the said incident and Suresh who was Village Pradhan of the village had lodged FIR of the present case against the petitioner, his father and two other accused persons at the concerned police station. During the course of investigation when the accused Mujammil and Akbar of Case Crime No.1418 of 2017 were arrested and in their confessional statement, the name of the petitioner has come into light on account of which the petitioner was arrested and sent to jail. So far as Case Crime No.1421 of 2017 is concerned, the petitioner was named in the FIR along with his father and 22 other named and 60-80 unknown persons who belong to both the communities which is stated to be off-suit of Case Crime1418 of 2017 and the detention order was passed against the petitioner only by the detaining authority and no other person either of case crime no.1418 of 2017 nor 1421 of 2017. Though from the grounds of detention it has been stated that there were three other cases registered as Case Crime No.1419 of 2017, 1420 of 2017 and 1513 of 2017. The petitioner was not named in the said FIRs and it has been stated that the said incident were committed by the associates of the petitioner. The grounds of detention further does not disclose any material to show that the other three cases mentioned in the detention order alleges that the offence which were committed by the associates of the petitioner where they actually connected with him or not and only bald and vague averment made by the detaining authority. Therefore the detention order cannot be justified on this ground.
16. 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.1418 of 2017 and Case Crime No.1421 of 2017 and he has moved bail application before the Sessions Judge, Bulandshahar and he is making effort to get himself released from jail in Case Crime No.1418 of 2017 and would get bailed out in other case i.e. Case Crime No.1421 of 2017 that her subjection satisfaction is not based on cogent material as it has not been shown whether the petitioner was granted bail by the Sessions Judge in any of the case while passing the detention order which necessitated his preventive detention so that the apprehension of her 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."
17. Thus, the instant case of the petitioner is squarely covered by the aforesaid judgment of the Apex Court. The detention of the petitioner as has been argued by the learned counsel for the petitioner and referred above has substance that the detaining authority has passed the detention order of the petitioner without application of mind and subject satisfaction is not based on cogent material. It is only on the recommendation of the In-Charge Inspector and S.S.P, Bulandshahar to District Magistrate who without application of mind has recommended that the petitioner be detained under the Act which vitiates her satisfaction.
18. The argument of the learned counsel for the petitioner that the petitioner has no previous antecedents also goes to show that he was not habitual offender for committing the offence under the Cow Slaughter Act. Simply because the incident dated 25.8.2017 which had taken place in early hours of the morning and some persons of the village had seen the severed head of Cow and it's remains lying near the Sugar Cane Field of Mujammil near the pond of Nawab Khan and seen the petitioner, his father and other accused persons, the tension in the area may have prevailed but the said act of the petitioner cannot be said to be detrimental to the disturbance of public tranquility as there was neither any loss or damage to any property or any person received injury or there was loss of life of anyone and it can at the most be law and order problem, hence detention order also vitiates on the said ground also.
19. In view of the above discussions, the detention order passed by the detaining authority along with all consequential orders are liable to be quashed and are accordingly quashed.
20. The petitioner is directed to be released forthwith unless otherwise wanted in any other case by the Court.
21. The present Habeas Corpus Petition is, accordingly, Allowed.
(Krishna Pratap Singh, J.) (Ramesh Sinha, J.) Order Date :- 30.3.2018 Gaurav