Allahabad High Court
Mohammad Suleman vs State Of U.P. And Ors. on 21 March, 2002
Equivalent citations: 2002CRILJ2725
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. The petitioner-Mohd Suleman has been detained under Section 3(2) of the National Security Act, 1980, hereinafter referred to as 'NSA', on the basis of order dated 8-4-2001 passed by Shri B.S. Bhullar, the then District Magistrate Kanpur Nagar which was served upon the petitioner along with the grounds of detention. The grounds of detention were based upon a number of incidents in respect of which cases have been registered at different police stations. They were Crime Nos. 91 of 2000, 7 of 2001, 20 of 2001,39 of 2001 and 92 of 2001. in the grounds of detention after narrating the facts relating to the aforesaid crime numbers, the District Magistrate recorded his subjective satisfaction that on account of criminal activities of the petitioner and his associates public order of the entire Kanpur District has been disturbed. in the said order it has been also stated that the petitioner was already detained in jail in connection with case crime No. 91 of 2000 under Sections 147, 323, 336, 427 I.P.C. 7 Criminal Law Amendment Act and 6 United Provinces Special Power Act police station Kotwali, Kanpur Nagar and in case crime No. 20 of 2001 under Sections 147, 148, 149, 307, 332, 353, 436, 338, 427, 295 I.P.C. and 7 Criminal Law Amendment Act police station Bekanganj and in case crime No. 39 of 2001 under Section 153A/153B I.P.C. and 7 Criminal Law Amendment Act police station Chamanganj, Kanpur Nagar and whereas the petitioner has filed applications for bail in those cases whose copies have been annexed as Annexures 26 to 28 and whereas in case crime No. 91 of 2000 the petitioner has already succeeded in obtaining order of bail in his favour from the Court of District Judge, Kanpur Nagar on 4-4-2001 and since the detenu was likely to be released on bail in other cases, it was necessary to detain the petitioner under the NSA because if he was released on bail the petitioner would repeat the criminal activities prejudicial to the maintenance of public order. It was further stated in the order that hearing of bail applications in case crime No. 20 of 2001 was fixed in respective Courts for 9-4-2001 and 10-4-2001. The grounds of detention were duly served upon the petitioner mentioning therein that the detenu may make representation to the State Government against the said order of detention and the same would be placed before the Advisory Board and before it, the detenu would be afforded opportunity of personal hearing.
2. The order of detention has been challenged mainly on following grounds:
1) that the order of detention suffers from virus of casualness showing that there was no real subjective satisfaction for detaining the petitioner under the NSA;
2) that vital and relevant materials relied upon in the grounds of detention were not placed before the detaining authority and the impugned order of detention was passed in a routine manner without application of mind;
3) that relevant and basic material relied upon in the grounds of detention were also not supplied to the petitioner which has resulted in denial of petitioner's right of making an effective representation and therefore, Article 22(5) of the Constitution of India has been violated; and
4) that the order of detention is based upon extraneous consideration.
3. The detaining authority, respondent No. 3 as well as other respondents have filed counter affidavits. On behalf of the petitioner rejoinder affidavit was filed and since it contained some new facts the respondents were given opportunity of filing supplementary counter affidavit. Accordingly respondent No. 3 has filed his own supplementary counter affidavit.
4. We have heard Shri Daya Shanker Mshra, learned counsel for the petitioner and Shri Mahendra Pratap, learned A.G.A. for the respondents.
5. With regard to the first ground it has been argued by Shri Mishra that the grounds mentioned in the detention order are verbatim reproduction of the dossier forwarded by the sponsoring authority to the detaining authority. He submitted that even spelling and grammatical mistakes which occurred in the dossier have been repeated in the grounds of detention that itself shows how casually the detaining authority dealt with the matter without applying his own mind independently. Mistakes such of verbs, construction of sentences etc. have been repeated. in support of his submission Shri Mishra placed reliance upon the decisions in Jai Singh v. State of Jammu and Kashmir, 1985 SCC (Criminal) 125, Billav. Supdt. District Jail (2001) 42 All Cri C 995: (2001 All LJ 2822 and Tunnu v. Superintendent District Jail, Ballia (2000) 40 All Cri C 729:2000 All L-J 1428 Per contra, Shri Mahendra Pratap submitted before the Court that if we go through the dossier of the sponsoring authority and the detention order carefully it cannot be inferred conclusively that the detaining authority has not applied his own mind to the facts of the case. in the dossier the sponsoring authority had given life history of the petitioner. However, the detaining authority in the grounds of detention has not mentioned the facts pertaining to the life history of the petitioner, obviously for the reason that those facts were not relevant for the subjective satisfaction of the detaining authority. Only those facts were reproduced which were contained in the report of Officer incharge of the police station and the mere fact, that the facts giving rise to the activities of the petitioner which were mentioned in the dossier have been repeated in the impugned detention order by the detaining authority would not lead to the conclusion that there was total non application of mind. What the detaining authority repeated, were the facts mentioned in the report, of the Officer Incharge of the police station Kanpur. We ourselves have gone through the dossier which was sent by the sponsoring authority to the detaining authority as well as the grounds of detention and we find that it cannot be said that the detaining authority has in the detention order reproduced verbatim the language of dossier without applying his own mind. in the dossier no satisfaction was recorded whereas in the detention order the District Magistrate has recorded his own satisfaction regarding the activities of the petitioner which were prejudicial to the maintenance of public order. The above referred cases which have been relied upon by the petitioner lend some assurance to the contention of the petitioner's counsel but by reason of the factual situation being different, are clearly distinguishable from the facts of the present case because in all those cases the Court had recorded a categorical finding that the detaining authority had reproduced the language of the dossier verbatim in the detention order without applying his own mind whereas in the present case such an inference is not deducible.
6. We now take up second and third grounds together. It was argued by Shri Mishra that admittedly in relation to crime No. 7 of 2001 and 92 of 2001, copies of F.I.R. of those cases were neither placed before the detaining authority nor were furnished to the petitioner while serving the detention order and accordingly the order of detention is vitiated on this ground alone. Reliance was placed on the decisions in Tushar Thakkar v. Union of India, 1981 SCC (Criminal) 13 : AIR 1981 SC 436 Sardar Gurdeep Singh v. Union of India AIR 1981 SC 362, State of U.P. v. Kamal Krishna Saini, 1988 SCC (Cri.) 107 (2): AIR 1988 SC 208, M. Ahamedkutty v. Union of India 1990 SCC (Cri.) 258; Ahmad Nassar v. State of Tamil Nadu (1999) 8 JT (SC) 232: AIR 1999 SC 3897; V.C. Mohan v. Union of India (2002)2 J.T. (SC) 365:2002 AIR SCW 984 and Sitaram Somani v. State of Rajasthan 1986 SCC (Cri.) 104: AIR 1986 SC 1072. From the above decisions it emerges that the requisite subjective satisfaction on the part of the detaining authority the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are either with held or suppressed by the sponsoring authority and not considered by the detaining authority before issuing the detention order. It is also clear from the aforesaid decisions that the detenu has a right to be furnished with the grounds of detention along with the documents relied on in order to enable him to make an effective representation guaranteed under Article 22(5) of the Constitution of India. If copies of vital and material documents which would be having a bearing on the satisfaction of the detaining authority were not. furnished to the detenu, that would be violative of Article 22(5) of the Constitution of India and continued detention of the detenu is vitiated. in the counter affidavit it could not be disputed that as far as crime No. 92 of 2001 is concerned no document such as FIR copies of statement of witnesses recorded under Section 161 Cr. P.C. or charge- sheet were either placed before the detaining authority or were furnished to the petitioner along with the detention order. It also could not be denied that no copy of F.I.R. of case crime No. 7 of 2001 was placed before the detaining authority nor the same was furnished to the petitioner.
7. Shri Mahendra Pratap, learned A.G.A. appearing for the respondents, however, submitted that in the present case the impugned detention order is based on five distinct and separate grounds relating to five different crime numbers, therefore, the entire detention order will not stand vitiated even if it be held that relevant and material documents pertaining to crime No. 7 of 2001 and 92 of 2001 were neither placed before the detaining authority nor were supplied to the petitioner, because each ground of detention partakes the character of a separate detention order and in view of Section 5A of NSA the detention order could still be maintained on other grounds. in support of his submission Shri Mahendra Pratap placed reliance upon a Nine Judges decision of the Apex Court in Attorney General for India v. Amratlal Prajivandas 1994 SCC (Criminal) 1325:AIR 1994 SC 2179. in the aforesaid decision it was held that Section 5A is in two parts. Where the order of detention is based on more than one ground, the first part creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word 'accordingly' apart from the fact that it is joined to the first part by the word 'and'. As a result, if it is found that the ground of detention in support of some of the deemed orders is vague or irrelevant, the same would be quashed but the remaining deemed order supported by the relevant ground would stand. Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. Parliament is competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are grounds. If this creation of a legal fiction is competent, then no question of any inconsistency between the section and Article 22(5) can arise. Had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5).
8. From the aforesaid decision and from a plain language of Section 5A of NSA it is thus clear that where detention order is based on two or more grounds each of such ground is an independent detention order. While examining the validity of the detention order which is based on more than one ground, the Court has to examine if detention order is vitiated on account of legal infirmity of each ground. in a given case the Court would not quash the detention of the detenu where it finds that the detention is in accordance with law on any of the several grounds upon which detention order has been passed. For example A is detained on three separate and independent grounds 1,2 and 3. in respect of grounds Nos. 1 and 2 the Court finds that relevant and vital documents were not placed before the detaining authority by the sponsoring authority but at the same time comes to the conclusion that all relevant material had been placed before the detaining authority in relation to ground No. 3 and copies thereof had also been furnished to the detenu and no prejudice of any kind whatsoever was caused to the detenu, the Court can still maintain the detention of the detenu though the same was not maintainable as far as grounds Nos. 1 and 2 are concerned.
9. Since in the present case the detention order is based on five separate grounds relating to five different crime numbers it has to be seen and find out if the detention order stands vitiated or continued detention of detenu is illegal for the reason that relevant and material documents relating to each crime numbers were not placed before the detaining authority or were not supplied to the petitioner thereby depriving him of his right of representation, enshrined under Article 22(5) of the Constitution of India.
10. We now propose to examine the material placed on record of this writ petition to find out if the detention order stands vitiated on the basis of the above submission made by learned counsel for the petitioner.
11. The impugned detention order is based on five separate and independent grounds. Each ground contained facts of a particular crime number giving rise to the activities of the petitioner, which in the opinion of the detaining authority were prejudicial to the maintenance of the public order. Those crime numbers were 91 of 2000, 7 of 2001, 20 of 2001, 39 of 2001, and 92 of 2001.
12. As far as grounds pertaining to crime No. 7 of 2001 and 92 of 2001 are concerned undoubtedly they cannot be sustained as admittedly no copies of the first information report of these crime numbers were either placed before the detaining authority or supplied to the petitioner.
13. In the detention order it has been stated that the petitioner is in jail in connection with crime No. 91 of 2000, 20 of 2001 and 39 of 2001 and he has already obtained bail in crime No. 91 of 2000 and the petitioner has moved bail applications in other crime Nos. i.e. 20 of 2001 and 39 of 2001 and he was likely to be released on bail in these cases also. We now take up these crime numbers separately.
14. As far as crime No. 91 of 2000 and 20 of 2001 are concerned it has been stated in the detention order that the copies of the bail applications moved by the petitioner are annexed as Annexures 28 and 29. It is, however, noteworthy that instead of supplying copies of bail applications moved by the petitioner before the Sessions Judge, Kanpur Nagar, the sponsoring authority had placed before the detaining authority the copies of bail application moved by co-accused Mohd. Anwar and copies of the same were furnished to the petitioner along with the grounds of detention. This fact is admitted in the supplementary rejoinder affidavit filed by respondent No. 3 that the sponsoring authority had placed before him only the copies of bail applications moved on behalf of co-accused Mohd. Anwar and copies of bail applications moved on behalf of the petitioner before the Sessions Judge, Kanpur Nagar in the aforesaid crime numbers were neither placed before him nor were supplied to the petitioner. However, it was claimed that as the grounds raised in the application of Mohd. Anwar were almost identical and similar to the grounds of bail raised in the application of the petitioner, non-consideration of his bail applications and their non supply to the petitioner would not make any difference as far as satisfaction of the detaining authority is concerned. We have ourselves gone through both the applications which have been brought on record and find that it cannot be said that the grounds raised in the bail applications of the petitioner were identical to the grounds raised in the bail application of co-accused Mohd. Anwar. Once it was mentioned in the report submitted by the sponsoring authority that copies of bail application moved on behalf of the petitioner in the aforesaid crime numbers are annexed but those copies were in fact of the bail applications of co-accused Mohd. Anwar and not of the petitioner that fact itself shows how casually the matter was dealt with by the detaining authority without application of his own mind. Had there been application of mind, the detaining authority would have certainly asked for the bail applications of the petitioner. Admittedly the petitioner was only supplied with the copies of bail applications moved on behalf of the co-accused Mohd. Anwar and he was not supplied the copies of his own bail applications moved before the Sessions Judge. We have already found above that the grounds for bail raised in the bail application of Mohd. Anwar were different from those raised by the petitioner in his own application. in the absence of copies of petitioner's bail applications and the comments of police thereon the petitioner was certainly denied the right of making an effective representation and accordingly Article 22(5) of the Constitution of India has been violated. in the case of Nandgopal Saha v. Union of India 1998 SCC (Cri) 107(1) copies of statement of Mrs. Jhunu Rani Saha, the statement of the petitioner and the documents which accompanied handwriting expert's opinion were held to be vital to enable the detenu to make a proper representation. It was held that the detenu was denied a fair opportunity of making effective representation and accordingly detention order was quashed.
15. in the case of State of U.P. v. Kamal Kishore Saini AIR 1988 SC 208(supra) names of the detenus were not mentioned in the F.I.R. in respect of incident in ground No. 1 and the basis of their complicity came to be known only in the material found in the course of the investigation. The detenus were supplied only with the copy of the F.I.R. and also extract of the charge-sheet and not the statements of the witnesses recorded under Section 161 Cr.P.C. It was undisputed that the charge-sheet was subsequently submitted in the Court. and accused persons were furnished with the copies of the statements of the witnesses long after the passing of the order of detention communicating the grounds of detention. Similarly with regard to ground No. 3 the application of the co-accused as well as the statement made in the hail application filed on behalf of the detenus alleging that, they had been falsely implicated in the same case and the police report thereon were not produced before the detaining authority before passing of the detention order. The Apex Court held that the High Court was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority he would not have changed the subjective satisfaction as this has never been accepted as correct proposition of law. It is incurmbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. in this view of the matter Ihe contention of Shri Mahendra Pratap, learned A.G.A. cannot be accepted that even if bail applications of the petitioner in the aforesaid crime numbers had been placed before the detaining authority instead of the bail applications of co-accused Mohd. Anwar that would not have made any difference so far as the subjective satisfaction of the detaining authority was concerned. At a subsequent stage it cannot be shown that Ihe subjective satisfaction would not have changed even if vital, relevant, and correct material would have been placed before the detaining authority. in the aforesaid Apex Court decision it was further held that the order of detention becomes illegal and bad for non supply of vital documents to the detenu to enable him to make an effective representation against the grounds of detention and as such his right to make a representation as contemplated under Article 22(5) of the Constitution of India is infringed rendering his continued detention illegal and bad.
16. in the present, case as far as detention order based upon grounds relating to crime Nos. 7 of 2001, 92 of 2001, 20 of 2001 and 91 of 2000 is concerned the same cannot be sustained for the above mentioned illegalities, namely, non placement of relevant and material documents before the detaining authority and their non supply to the petitioner.
17. We are now left with the sole ground which is based upon facts relating to crime No. 39 of 2001. It is true that if no infirmity or illegality is found viz a viz this ground, still the detention order could be maintained but on facts again we find that in this case neither the police report with parwise comments relating to the grounds raised in the bail application ol the petitioner were placed before the detaining authority nor were they supplied to the petitioner. We further find that the allegations which have been disclosed in respect of crime No. 39 of 2001 do not amount to disturbance of public order. The impugned detention order was passed for maintenance of public order and not for preventing from acting in any manner prejudicial to the security of the State. Even as per the detention order bail application moved on behalf of the petitioner in crime No. 39 of 2001 was pending before the concerned Sessions Judge when the impugned order of detention was passed. However, there was no material before the detaining authority to apply his mind and consider whether the grounds raised in the bail application moved on behalf of the petitioner had any truth therein as police report with parawisc comments with regard to the grounds raised in the bail application had not been placed before the detaining authority by the sponsoring authority. Not only this, bail application in case crime No. 39 of 2001 of co-accused Mohd. Anwar had also been not placed before the detaining authority. Since vital and relevant documents had not been placed before; the detaining authority, the order ol detention stands vitiated on the ground that there was no proper sub-jective satisfaction of the detaining authority.
18. Therefore, for the above reasons we find that, the impugned order of detention is not sustainable on account of vital and relevant material having been not placed before the detaining authority viz-a-viz each of the live grounds on the basis of which the impugned detention order was made. The continued detention of the petitioner also stands vitiated on account of the fact that even if each ground of detention is taken as a separate order of detention, the petitioner was not supplied with the relevant: documents to enable him to make an effective representation against each of the grounds of detention and thereby the right conferred upon him under Article 22(5) of the Constitution of India has been infringed.
19. In view of what has been discussed above, this writ petition succeeds. The impugned detention order dated 8-4-2001 stands quashed and set aside and it is directed that the petitioner shall be set at liberty forthwith unless required to be detained in jail in connection with any other offence in addition to the impugned detention order.
20. In the circumstances no order as to costs is made.