Hon'ble Suresh Kumar Gupta,J.
(Delivered by Pankaj Naqvi, J.) Heard Shri Sunil Kumar, learned counsel for the petitioners, Shri Thakur Azad Singh and Sri Prahlad Kumar Khare, for the Union of India and Shri Deepak Mishra, the learned A.G.A.
These habeas corpus writ petitions have been filed by the petitioners challenging their detentions dated 4.4.2019, under Section 3(2) & (3) of the National Security Act, 1980 by the District Magistrate, Bulandshahar, for a period of 3 months which was extended twice.
1. The grounds of detention dated 4.4.2019 served on the petitioners on 4.4.2019 alleged the following:-
(I) Bulandshahar was a host to a Muslim congregation called, "Tabligi Ijatma" from 1.12.2018 to 3.12.2018 wherein lakhs had come from all over the country for which elaborate security arrangements had been made. The congregation came to an end in the evening of 3.12.2018.
(II) Sri Subodh Kumar Singh, In-charge Inspector, P.S. Sayana on 3.12.2018 at about 10 am received information that remnants of cow's progeny have been found in the jungles of Mahav at the sugarcane fields of Raj Kumar, Pradhan. The In-charge Inspector immediately directed Constable 924 Shubham Saini, at Police Chauki, Chingrawathi to reach the scene as he too would be reaching shortly. On above information, Con. Shubham Saini and Con. 1245 Pradeep Kumar left on motorcycle to the scene who intimated the In-charge Inspector on mobile regarding recovery of the remnants of cows progeny. The Inspector along with force, soon thereafter reached the scene in their official vehicles wherein they came across a large crowd protesting to the recoveries of remnants of cows progeny, communal tension in the air, the Inspector In-charge attempted to assuage the members of the majority community that strict action would be taken against the offenders. One Yogesh Raj alleged to be present at the scene, lodged a report at P.S. Sayana at 12.43 P.M, against Sudaif Chaudhary @ Iliyas, Sharafat, Anas, Sajid, Parvez and Sarfuddin as Case Crime No.582/2018, under Section 3/5/8 of the Cow Slaughter Act and Section 295-A of the IPC.
(III) Large number of persons came from village Mahav on their tractors and trolleys towards Sayana - Bulandshahar Link Road to arrive at Police Chauki, Chingrawathi at 13.35 hrs carrying remnants of the cows progeny in their hands and raising slogans. The crowd turned violent, blocked the road, sought to be countered by public announcements by the police on loudspeakers to clear road as members of the congregation were also returning towards Garh- Amroha - Moradabad and other districts.
(IV) A challenging situation emerged before the administration as on the one hand they had to assuage the feeling of the protestors against cow slaughtering who were indulging in stone pelting, use of fire-arms, sharp weapons and lathi / danda at the police on the other they had to maintain free flow of traffic. The police personnel with a view to save their lives, attempted to hide themselves. Meanwhile, a firearm shot hit one Sunil Kumar and the crowd went beserk. One of the members of the agitated crowd attacked Inspector In-charge Subodh Kumar Singh with an axe, assaulted him with lathi / dandas, followed by fire-arm shots as a result of which he sustained grievous injuries. His licenced pistol and 3 mobile phones were snatched. The crowd also damaged the property of Police Chauki Chingrawathi by damaging wireless sets including the other properties, being set on fire. The road was littered with shoes and chappals and people running helter - skelter. The private vehicles were also set on fire. The mob did not even spare the Circle Officer who ran for his life inside the premises of Police Chauki Sayana but the mob forcibly entered the room shouting that he be also not spared. The Police Chauki, Sayana was also set on fire. Large number of persons suffered injuries, an atmosphere of fear had developed, nearby Girls school was closed as also doors of the neighbouring houses. The injured Inspector Subodh Kumar Singh was taken to C.H.C., Lakhawati, where he was declared brought dead. On above allegations, an FIR as Case Crime No.583/2018, under Section 147/148/149/124-A/ 332/ 333/ 353/ 341/ 336/ 307/ 302/ 427/ 436/ 395 IPC, 7 of the Criminal Law Amendment Act and ¾ of the Prevention of Damage to Public Property Act was registered against 27 named and 50-60 unnamed accused on 4.12.2018 at 2.51 P.M.
(V) On 4.12.2018 at about 8 AM at village Nayabans, P.S. Sayana, remnants of a dead cow were recovered from the sugarcane fields of one Sheeshpal which on forensic examination, was found to be of cow's progeny, in respect of which an FIR as Case Crime No.584/2018, under Section 3/5/8 of the Cow Slaughter Act was registered against unknown.
(VI)
(a) During investigation of Case Crime no. 582 of 2018, 3 accused namely Nadim @ Nadimuddin, Raees and Kala Qureshi were arrested. They jointly and voluntarily stated that they along with one Haroon and others, on the night of 1.12.2018 and 2/3.12.2018 had slaughtered 1 and 3 progencies of cow in the jungles of Nayabans & Mahav and had carried its meat in their vehicle.
(b) On 5.12.2018, accused Sajid, Sarfuddin, Banne Khan and Asif Khan came to be arrested in Case Crime No.582/2018. During investigation, it transpired that informant Yogesh Raj falsely implicated 7 named accused and two others, namely, Banne Khan and Asif in view of ongoing dispute with the local matter relating to the use of loudspeaker in a Masjid. All the accused stood exonerated.
(c) Yunus @ Bol and Gulfam came to be arrested on 23.12.2018 and 26.12.2018 respectively. They also confessed that on the intervening night of 2/3.12.2018, they were present at the jungles of Mahav along with their accomplices Nadeem @ Nadimuddin, Raees, Kala Qureshi, Haroon and others, had slaughtered 3 prohibited progenies, meat distributed amongst them and remaining meat was handed over to Haroon while the left over remnants were left at the scene. They also confessed that on the intervening of 1.12.2018 a cow was slaughtered, meat taken, remnants left at the scene. Gulfam also stated that accused Haroon is aware of the names of other accused.
(d) On 29.12.2018, co-accused Haroon came to be arrested in an open jeep with DBBL guns and cartridges. He confessed that the jeep belongs to one Mehboob Ali. He further confessed his involvement along with Nadeem @ Nadimuddin, Kala Qureshi, Raees, Azhar, Gulfam, Yunus @ Bol, Rashid Qureshi and petitioners (real brothers) of slaughtering of prohibited progenies in the jungles of Nayabans on the night of 1.12.2018 and on the intervening night of 2/3.12.2018 in the jungles of Mahav, animals skinned, meat distributed amongst themselves, left over meat was given to Shahid Maimber (petitioner) who was running a camp for the attendees of the congregation.
(e) Petitioner- Imran Quershi surrendered before the court on 1.4.2019. He alleged that hunting is his hobby, in which he along with his brother-Shahid Qureshi (co-petitioner), Raees, Nadeem @ Nadimuddin, Rashid, Haroon, Mehboob Ali, Kala Qureshi, Azhar, Yunus @ Bol and Gulfam, often indulged in hunting for cows at night, thereafter meat sold in the market. He also confessed that on the night of 2.12.2018, he along with his brother Shahid, Rashid and Mehboob Ali remained in the tents of Sanskar Farm House for hosting the attendees of cogregation, rest accused went for hunting. At about 2-3 A.M, on 3.12.2018, other accused returned at the farm house with prohibited progenies, wherein they chopped the meat with the help of knives in order to serve as "keema" & "biryani" to the guests. Shahid (co-petitioner) also made a similar confessional statement.
(VII) The grounds finally alleged that although the petitioners had no previous criminal history, but in view of their confessional statements that they did indulge in cow slaughtering in an organized and clandestine manner, deeply hurting the religious sentiments of the majority community. The LIU also alleged in its reports dated 9.12.2018, 10.1.2019 and 25.2.2019 that the incident dated 3.12.2018 was a fall out of the alleged slaughtering on 2/3.12.2018.
2. The petitioners preferred representation against their detentions dated 4.4.2019 on 16.4.2019 before the State Government through the Jail Superintendent, which came to be rejected by the State Government on 1.5.2019. The last extension is dated 1.10.2019, i.e., for 9 months from the order of detention dated 4.4.2019.
3. Learned counsel for the petitioners assailed the detention order on the following grounds-
i)The detention suffers from the vice of non-application of mind as the only material against the petitioners is the confessional statements, which too indicates that they were not present at the time of slaughtering as they were only alleged to have served the prohibited meat to the attendees of the congregation (members of the minority community) in the camp of Shahid Member (co-petitioner) at Sanskar Farm House.
ii) Petitioners are only alleged to be involved in Case Crime no. 582 of 2018. They are neither accused nor suspects in Case Crime no.s 583 and 584, both of 2018 yet the detaining authority considered the cumulative effect of all 3 cases, while passing the detention order which also displays non-application of mind.
4. Learned A.G.A opposed the submissions on the ground that the mode and manner of the occurrence indicates that it was a well organized activity as the petitioners' often indulged in cow slaughtering which coincided with the conclusion of the conclave with a view to disturb public order so as to incite communal passion / feelings. He further submitted that once detention is based on relevant considerations, detention being a matter of subjective satisfaction, is not open to judicial review.
5. Section 3(2) of the National Security Act, 1980 enables the appropriate government to detain any person if it is satisfied that with a view to prevent such a person from acting in any manner prejudicial to or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary to do so, make an order directing that such person be detained.
6. It is well settled that the satisfaction recorded by the detaining authority in respect of the breach of public order is subjective, but the same is to be based on relevant materials. Once relevant materials are existing, the courts are refrained from examining the legality / propriety of the same. Thus, the scope of judicial review in such matters is only confined to examining the existence of relevant materials upon which a person is detained for breaching of public order.
7. The detention order refers to three FIR's as Case Crime Nos. 582; 583 & 584 all of 2018. The petitioners are neither named accused in Case Crime No.583 & 584, both of 2018 nor the I.O's of Case Crime Nos.583 & 584 ever obtained any statement of the petitioners nor till date any charge-sheet has been submitted against them. Thus, the detention of the petitioners is based only on Case Crime No.582/2018.
8. The FIR in Case Crime No.582/2018 lodged by one Yogesh Raj against 7 named accused, namely, Sudaif Chaudhary, Ilyas, Sharaful, Anas, Sajid, Parvez & Sarfuddin, alleged that the said accused were slaughtering cows on 3.12.2018 at 9 AM in the jungles of village Mahav. During investigation, names of all the 7 accused came to be exonerated as their false implication was established in view of previous animosity of the informant with the Maulvi of a local Masjid over use of loudspeakers. On 18.12.2018, one Nadeem @ Nadeemuddin, Raees & Kala Qureshi were arrested from whom certain recoveries of DBBL gun, gandasa, knife and a wooden chopping board was made. They confessed that they along with co-accused Haroon had slaughtered a cow in the night of 1.12.2018 in the jungle of Nayabans, remains thrown in the sugarcane field as also the slaughtering of 3 cows on the intervening night of 2.12.2018 in the jungles of Mahav of which the meat was taken by them. Thus, even the 3 arrested accused, namely, Nadeem @ Nadeemuddin, Raees and Kala Qureshi were not implicating the petitioners. Co-accused Yunus @ Bol and Gulfam came to be arrested on 23.12.2018 and 26.12.2018 respectively. They also confirmed the participation of Nadeem @ Nadeemuddin and Haroon in the alleged occurrence dated 2/3.12.2018 (night). These two accused, i.e., Yunus @ Bol and Gulfam also did not disclose the involvement of the petitioners. On 29.12.2018, accused Haroon came to be arrested in an open jeep. He confessed that the jeep belongs to one Mehboob Ali and admitted his involvement along with petitioners, Nadeem, Yunus @ Bol, Rashid, Raees and others in respect of occurrence in the night of 1.12.2018 in the village of Nayabans and that of 2/3.12.2018 in the village of Mahav as they were fond of hunting; meat was distributed amongst them and the rest was given to the petitioners.
9. A perusal of the confessional statement of accused Haroon as alleged in para-11 of the grounds of detention, nowhere alleges that the petitioners were physically present at the time of alleged slaughtering on the night of 1.12.2018 at the jungles of village Nayabans or on the night of 2.12.2018 at the jungles of village Mahav. On the contrary, it only alleges that the meat of the prohibited progeny after having been distributed between them, rest was handed over to petitioners.
10. The petitioners in their confessional statements admitted that the prohibited meat was handed over to them by Raees, Nadeem, Haroon, Kala, Azhar, Yunus @ Bol and Gulfam which after cooking were served as "keema" and "briyani" to the attendees of the conclave in the tent of co-petitioner Shahid Member installed at Sanskar Farm House.
11. There is no material to indicate that the petitioners were either physically present at the time of slaughtering on the intervening night of 2/3.12.2018 at the jungles of village Mahav. On the contrary, the only material against the petitioners is the confessional statement of accused Haroon, indicating that the left over meat was given to the petitioners which after cooking was served by them to the guests of the conclave (exclusively belonging to the members of the minority community) in a camp installed by Shahid Member (co-petitioner) at Sanskar Farm House. The material nowhere indicates that while the prohibited meat was being served, any member of the majority community was present who could claim to be a witness to the serving of the prohibited meat. The alleged disruption of public order on 3.12.2018 was only subsequent to the recovery of the remnants of the cow's progeny in the jungles of village Mahav, resulting in the loss of 2 lives one that of Inspector In-charge Subodh Kumar Singh and the other of one Sunil Kumar along with damage to public property in Case Crime No.583/2018. It is not the case set up in the grounds of detention that the disruption of public order on 3.12.2018 was on account of the prohibited meat being served to the guests of the conclave as at that point of time, no one had any inkling other than the guests that the meat which was served belonged to the prohibited category which came to be known only after the confessional statements of petitioners which recorded after more than 4 months of the alleged occurrence.
12. Slaughtering and consumption of beef per se, cannot attract the provisions of the National Security Act, 1980, it would be an offence under the provisions of the Cow Slaughter Act.
13. The resulting scenario from the above discussion is as under:
(i) There is no material on record to remotely suggest / infer that the petitioner was physically present at the jungles of Mahav at the time of slaughtering:
(ii) The only role assigned to the petitioners is that after they were handed over the left over meat, same was cooked and served as "keema" and "biryani" in an enclosed tent at Sanskar Farm House which was restricted to the members of the minority community only.
(iii) The petitioners have no concern with Case Crime Nos. 583 & 584, both of 2018.
(iv) Once the name of the petitioners surfaced in Case Crime No.582 of 2018 on the basis of extra judicial confession of accused Haroon as well as the petitioners indicting the petitioners of serving prohibited meat to the members of the congregation (minority community alone) in a tent installed at Sanskar Farm House, yet the detaining authority cumulatively considers the impact of Case Crime Nos. 583 & 584, both of 2018 while passing the orders of detention, displays absolute non-application of mind.
(v) The alleged disturbance of public order on 3.12.2018, resulting in an unfortunate death of Inspector In-charge Subodh Kumar and one Sunil Kumar is not attributable to petitioners as the same was a sequel to the information disclosed by one Yogesh Raj, an informant of Case Crime No. 582 of 2018, who claimed to be a witness of slaughtering of 6 cows by 7 named accused, who stood exonerated.
14. We, in the light of above discussion, are of the considered view that the detaining authority and the State Government displayed absolute non-application of mind while issuing and approving the order of detention. Consequently, the order dated 4.4.2019 cannot be sustained, is liable to be set aside and the petitioners be set at liberty forthwith.
15. The Habeas Corpus Writ Petitions are allowed. The impugned order dated 4.4.2019 is quashed. The petitioners are set at liberty forthwith unless detained in any other case.
Order Date:17.12.2019 Chandra (Suresh Kumar Gupta, J) (Pankaj Naqvi, J)