Court No. 52
Reserved on 24.05.2019 Delivered on 31.05.2019 Case :- HABEAS CORPUS WRIT PETITION No. - 319 of 2019 Petitioner :- Mehboob Ali Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Gaurav Kakkar Counsel for Respondent :-A.S.G.I.,Govt. Advocate,Sanjeev Kumar Pandey
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Rajiv Gupta J.
1. Heard Sri Gaurav Kakkar along with Sri Saurabh Kesarwani, for the petitioner, Sri Patanjali Mishra, A.G.A. 1st, for State of U.P. and Sri Sanjeev Kumar Pandey, Additional Standing Counsel, for Union of India.
2. This Habeas Corpus Petition has been filed for quashing the orders of District Magistrate (respondent-3) dated 14.01.2019, 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 23.01.2019, approving the detention order, 22.02.2019, confirming the detention order for a period of three months, from the date of initial order, 10.04.2019, extending detention order for six months and for mandamus directing the respondents to set the petitioner at liberty forthwith.
3. The brief facts which necessitated, action of preventive detention are as follows:-
(a) On 03.12.2018, in morning, In-charge Inspector Subodh Kumar Singh, police station Syana received an information that some parts of the body of cow were found in the sugarcane field of Ex-Pradhan Raj Kumar in jungle of village Mahav. He directed Constable Subham Saini, posted at the police outpost Chingerawathi to go on the spot and verify it on 03.12.2018 at 10:00 hours. Constables Subham Saini and Pradeep Kumar reached the spot and confirmed the news. Then In-charge Inspector Subodh Kumar Singh, SI Subhash Chand along with other police personnels reached the spot. By that time various persons had collected there and began to raise protest against the illegal act of cow slaughtering. The police anyhow pacified them at that place. On the written complaint of one Yogesh Raj, FIR of Case Crime No.
582 of 2018 was lodged, under Section 3/5/8 of U.P. Prevention of Cow Slaughter Act, 1955 and Section 295-A IPC, on 03.12.2018 at 12:43 hour, against Sudaif Chaudhary and six others, relating to this incident.
(b) However, the agitated crowd collected the body parts of the cows in a tractor-trolley, came to police outpost Chingerawathi, started raising protest and also blocked the road. Looking to the unusual circumstance created by the violent mob, information in this respect was given to higher administrative and police officers. Sub-Divisional Magistrate, Syana and Circle Officer of police reached there. They tried to assure the crowd on loudhailer that rigorous action would be taken against guilty persons and asked them to remove road blockade as the members of Muslim community had organized three days i.e. from 01.12.2018 to 03.12.2018, a Islamic congregation “Tableegi Iztema” at Buland Shahar, where about 12-13 lakhs people had assembled and after conclusion of that congregation, large number of Muslim persons were returning through that road on their vehicles and road jam was likely to create communal tension. But instead of pacifying, the unruly crowd became violent, started firing and attacked on the police personnels by wielding lathi danda. In this firing In-charge Inspector Subhodh Kumar Singh and one Sumit, among the protesters received fatal injury. The mob snatched his licensed pistol and three mobile phones of Subhodh Kumar Singh. The mob broke government wireless and the police outpost and the vehicles of the administration and police were set ablaze. SI Subhash Chand, SI Suresh Kumar, HCP Driver Ram Asre, HCP Shees Ram Singh, Constables Prem Pal Singh, Satya Praksh Sharma, Deepak, Sandeep Singh Bhadauria, Kapil Kumar, Home Guards Virendra Singh, Prem Prakash and Rajendra Singh received grievous injuries. On the written complaint of SI Subhash Chand FIR of Case Crime No. 583 of 2018 was registered under Section 147, 148, 149, 124-A, 332, 333, 353, 341, 336, 307, 302, 427, 436, 395 IPC, Section 7 Criminal Law Amendment Act, 1932 and Section 3, 4 of Prevention of Damages to Public Property Act, 1984 on 04.12.2018 at 2:51 hours.
(c) Remains of cow slaughter were again found in the sugarcane field of Sheeshpal son of Khumani on 04.12.2018 at about 8:00 AM at village Naya- gaon, hamlet of village Sahanpur. On written complaint of Jitendra Kumar, FIR of Case Crime No. 584 of 2018 was lodged, under Section 3/5/8 of U.P.
Prevention of Cow Slaughter Act, 1955.
(d) During investigation, Nadeem son of Babu Khan, Rahees son of Iliyas and Kala son of Babu Qureshi were arrested on 18.12.2018 at 7:00 hour. They confessed their guilt in Case Crime No. 582 of 2018 and in Case Crime no. 584 of 2018. From possession of Nadeem one DBBL gun, from possession of Kala one gadasa, one chhuri and one wooden chunk were recovered. They disclosed that Harun son of Khan Mohammad and Mehboob Ali son of Abdul Maruf were also in their group. On 18.12.2018 and 19.12.2018, Investigating Officer recorded statements of Afsar Khan, Mukeed Khan, Sirajuddin and Mohd. Nafees Qureshi, from their statements offence of cow slaughtering by the aforementioned persons was clinchingly established. Investigating Officer obtained mobile call detail reports of Kala, Harun Qureshi, Rahees and Nadeem, in which their location in the area where cows remains were found was revealed in the night of 02/03.12.2018. It was also came in light that the petitioner through his mobile phone no. 9456840786 contacted Kala on his mobile no. 8393835591 at about 19:29 and 21:27 hours and Harun Qureshi on his mobile no. 9837436016 at 18:19, 19:05, 19:10, on 02.12.2018 and at 2:17, 2:18, 12:00 and 12:20 hours on 03.12.2018. On 23.12.2018 one Yunus @ Bale son of Qadeer Khan were interrogated. On 26.12.2018, Gulfam son of Yakoob, Mehboob Ali (the petitioner) and Arvind Kumar Sharma were arrested. On 29.12.2018 Mohd. Haroon son of Khan Mohammad was arrested along with Jeep No. UTC 915, one DBBL gun and cartridges, who informed that jeep belonged to Mehboob Ali.
4. In-charge Inspector, PS Shyana submitted a report dated 10.01.2019 to District Magistrate through Superintendent of Police, Buland Shahar that in retaliation of cow slaughtering, a large number of people had collected on the road in front of police outpost Chingerawathi on 03.12.2018. They parked tractor-trolley in which body parts of cows were put, on road. They also put cut trees, electric poles, boulders etc. and blocked the road. When the administrative and police authorities tried to pacify them, then the unruly crowd became violent, started firing on the police personnels and attacked by lathi-danda. In this firing In-charge Inspector Subhodh Kumar Singh and one Sumit, among the protesters received fatal injury. The mob snatched licensed pistol and three mobile phones of Subhodh Kumar Singh. The mob broke government wireless set and the police outpost and the vehicles of the administration and police were set ablaze. SI Subhash Chand, SI Suresh Kumar, HCP Driver Ram Asre, HCP Shees Ram Singh, Constables Prem Pal Singh, Satya Praksh Sharma, Deepak, Sandeep Singh Bhadauria, Kapil Kumar, Home Gaurds Virendra Singh, Prem Prakash and Rajendra Singh received grievous injuries. A girls school situate near the police outpost of Chingerawathi where the students, teachers and office bearers were terrorized due to the incident which created panic. They closed the doors and windows of the school and hid themselves inside the school. In residential colony also, the people closed the door and windows of their houses and remained inside. In order to avoid communal riot, the people were diverted on other roads. Public order was badly disturbed. In order to maintain public order, 5 companies of Rapid Action Force, 9 battalions Provincial Arms Constabulary were deployed in the locality. The said incident was widely published in newspapers and electronic media. The petitioner has criminal history of 6 cases i.e. (i) Case Crime No. 62 of 2014, under Section 379 IPC and Section 4/10 Forest Act, 1927, (ii) Case Crime No. 26 of 2014, under Section 379 IPC and Section 4/10 Forest Act, 1927, (iii) Case Crime No. 152 of 2015, under Section 147, 148, 149, 332, 353, 504, 506 IPC, (v) Case Crime No. 367 of 2016, under Section 4/10 Forest Act, 1927, (v) Case Crime No. 582 of 2018, under Section 3/5/8 of U.P. Prevention of Cow Slaughter Act, 1955 and Section 295-A IPC and (vi) Case Crime No. 584 of 2018, under Section 3/5/8 of U.P. Prevention of Cow Slaughter Act, 1955. It has been mentioned that due to aforesaid acts of the petitioner and his co-accused, the sense of insecurity and terror had 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. The petitioner was detained in jail but was trying to obtain bail and he was likely to be enlarged on bail. The petitioner has moved Criminal Bail Application Nos. 12 and 13 of 2019, before Session's Judge, in which 15.01.2019 was fixed. After being enlarged on bail, he would again indulge in criminal activity of cow slaughtering, which is prejudicial to public order. Superintendent of Police, Rampur forwarded this report to District Magistrate, with his recommendation. Local Intelligence Unit has also submitted its reports dated 09.12.2018 and 01.01.2019. On the basis of the reports of Superintendent of Police, In-charge Inspector and Local Intelligence Unit, District Magistrate, was satisfied that with a view to prevent 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 detention order dated 14.01.2019, which was served upon him in jail on 14.01.2019.
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 14.01.2019, which were received by the State Government on 18.01.2019. After examining the papers, State of U.P., by order dated 23.01.2019, 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 25.01.2019.
6. U.P. Advisory Board (Detention) fixed 11.02.2019 for personal hearing of the petitioner. After hearing the petitioner, U.P. Advisory Board (Detention) submitted its report dated 18.02.2019 to State Government for confirming the detention order. State Government vide its order dated 22.02.2019 confirmed the detention order for a period of three months. State Government, by order dated 10.04.2019, extended it for a period of six months.
7. The petitioner submitted his representation on 25.01.2019 to the various authorities. District Magistrate after considering the representation rejected it on 07.02.2019. District Magistrate forwarded the representation of the petitioner to State Government, along with parawise comments through his letter dated 07.02.2019. It was received in the concerned section on 11.02.2019. The concerned section examined it on 12.02.2019 and forwarded it to Under Secretary along with his comments. Under Secretary examined it on 13.02.2019 and forwarded with his noting to Special Secretary, who examined it on 14.02.2019. Special Secretary forwarded it on 14.02.2019, with his noting. The Secretary examined it on 15.02.2019 and submitted to the Government with his noting. State Government rejected it on 16.02.2019. The order was communicated to the petitioner through radiogram on 18.02.2019.
8. Central Government received the representation of the petitioner on 12.02.2019. The concerned section processed and forwarded it to Under Secretary (NSA) on 14.02.2019, who examined and forwarded to Deputy Legal Advisor on 14.02.2019. Deputy Legal Advisor forwarded it to Joint Secretary (Internal Security-II) on the same day. Joint Secretary (Internal Security-II) called for some further information in the matter, which was received on 27.03.2019. Joint Secretary (Internal Security-II) along with her comments forwarded it to Union Home Secretary, who rejected the representation of the petitioner on 30.03.2019. The order was communicated to the petitioner through wireless message on 01.04.2019.
9. The counsel for the petitioner submitted that in Case Crime No. 582 of 2018, initially Sudaif Chaudhary and six others were named. In Case Crime No. 584 of 2018 also different persons were named. During investigation, the police found implication of Sudaif Chaudhary and others was false. During investigation, the police arrested Nadeem son of Babu Khan, Rahees son of Iliyas and Kala son of Babu Qureshi. From their confessional statements, the name of the petitioner had allegedly surfaced. The call details reports shows that conversation on mobile phones were between Nadeem, Rahees, Harun and Kala. The open Jeep No. UTC 915 did not belong to the petitioner. Apart from statements of co-accused, there is no evidence on record to prove the complicity of the petitioner in the aforesaid offences. The criminal history of the petitioner are not of the offences of the nature of cow slaughtering. The petitioner has been falsely implicated in Case Crime Nos. 582 and 584 of 2018. The petitioner was not involved in the protest dated 03.12.2018. There was no material to draw a conclusion that the petitioner would again indulge in the activities prejudicial to public order after enlargement on bail. Preventive detention order was mechanically passed and is liable to be set aside. He relied upon judgments of Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan AIR 1964 SC 334, in which it has been held that 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. Shashi Aggarwal Vs. State of U.P. and others, (1988) 1 SCC 436, in which it has been held that mere possibility that the detenu would be released on bail was no ground to direct his detention under preventive laws. Surinder Kumar Khanna v. Directorate of Revenue Intelligence, (2018) 8 SCC 271, in which it has been held that statements of co-accused is not admissible in evidence. Division Benches of this Court in HCP No. 31614 of 2006, Saeed Vs. State of U.P. and others (decided on 15.12.2006), HCP No. 55685 of 2017, Akhlakh Vs. Union Of India, (decided on 30.03.2018) and HCP No. 284 of 2018, Laiq Vs. Union of India and others 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. Fall out of the recovery of cow's remains on 03.12.2018 resulted into a violent protest at the police outpost Chingerawathi on that very day. In the firing by the unruly mob, In-charge Inspector Subhodh Kumar Singh and one Sumit, among the protesters received fatal injury and died. The mob snatched licensed pistol and three mobile phones of Subhodh Kumar Singh. The mob broke government wireless set and the police outpost and the vehicles of the administration and police were set ablaze. SI Subhash Chand, SI Suresh Kumar, HCP Driver Ram Asre, HCP Shees Ram Singh, Constables Prem Pal Singh, Satya Praksh Sharma, Deepak, Sandeep Singh Bhadauria, Kapil Kumar, Home Guards Virendra Singh, Prem Prakash and Rajendra Singh received grievous injuries. A girls school situates near the police outpost of Chingerawathi where students, teachers and office bearers were terrorized due to the incident which created panic. They closed the doors and windows of the school and confined themselves inside the school. In residential colony also, the people closed the door and windows of their houses and remained inside. In order to avoid break of communal riots, the people of Muslim community, who were returning from Islamic congregation “Tableegi Iztema” were diverted on other roads. Public order was badly disturbed. In order to maintain public order, 5 companies of Rapid Action Force, 9 battalions Provincial Arms Constabulary were deployed in the locality. The said incident was widely published in print and electronic media. 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. So far as the arguments of the counsel for the petitioner that apart from, confessional statements of co-accused, there is no evidence to prove complicity of the petitioner, is concerned, District Magistrate in his counter affidavit has stated that it has also been disclosed that the petitioner through his mobile phone no. 9456840786 contacted Kala on his mobile no. 8393835591 at about 19:29 and 21:27 hours and Harun Qureshi on his mobile no. 9837436016 at 18:19, 19:05, 19:10, on 02.12.2018 and at 2:17, 2:18, 12:00 and 12:20 hours on 03.12.2018. On 29.12.2018 Mohd. Haroon son of Khan Mohammad was arrested along with Jeep No. UTC 915, one DBBL gun and cartridges. All the accused informed that jeep belonged to Mehboob Ali. From these evidence complicity of the petitioner in the act of cow slaughtering is prima facie established. Through out the incident of cow slaughtering, the petitioner was contacting/monitoring the accused on their mobile phones. The petitioner has supplied his Jeep No. UTC 915 to the accused, which was used for hunting the cows and carrying flesh from the place of slaughtering to the market. For the purposes of preventive action, it is not necessary for District Magistrate to ascertain as to who is registered owner of the jeep.
12. Supreme Court in Ayya v. State of U.P., (1989) 1 SCC 374, has held that the compulsions of the primordial need to maintain order in society, without which the enjoyment of all rights, including the right to personal liberty, would lose all their meaning are the true justifications for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might, it is true, require the sacrifice of the personal liberty of individuals. Laws that provide for preventive detention posit that an individual’s conduct prejudicial to the maintenance of public order or to the security of State provides grounds for a satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion; but the compulsions of the very preservation of the values of freedom, or democratic society and of social order might compel a curtailment of individual liberty.
13. 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, it has been 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.
14. So far as the arguments that the petitioner was in jail on the date of detention order dated 14.01.2019 and District Magistrate has not recorded his subjective satisfaction considering the facts that the petitioner would be enlarged on bail application and after bail, he would indulge in the activities prejudicial to public order, 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. In Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181, it has been held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which it could have reasons 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.(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.
15. 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.
16. 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.
17. In view of aforesaid discussions, writ petition has no merit and is dismissed.
Order Date :- 31.5.2019 Rahul Dwivedi/-
[Rajiv Gupta,J.] [Ram Surat Ram (Maurya), J.]