Allahabad High Court
Faiyyaz Quraishi vs Union Of India And 4 Others on 17 July, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 324 of 2019 Petitioner :- Faiyyaz Quraishi Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Abida Syed, Kalimurrahman Farooqi Counsel for Respondent :- A.S.G.I., G.A., Jitendra Prasad Mishra Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Dr. Abida Syed for the petitioner; Sri Jitendra Prasad Mishra for the respondent no.1; and Sri Deepak Mishra, learned A.G.A., for the respondents 2 to 5.
This habeas corpus petition questions the detention of the petitioner under the provisions of the National Security Act, 1980 (for short the Act, 1980) pursuant to the detention order dated 04.12.2018 passed by the District Magistrate, Budaun in exercise of its power under section 3(2) read with section 3(3) of the Act, 1980, which has been approved by the State Government, vide order dated 12.12.2018, under Section 3(4) of the Act, 1980, and has been confirmed, vide order dated 22.01.2019, under Section 12(1) of the Act, 1980. Initially, the detention was directed, provisionally, for a period of three months which was extended for a further period of three months, vide order dated 28.02.2019, and, thereafter, extended for a further period of another three months, vide order dated 29.05.2019, and, as on date, is to continue for a period of nine months with effect from 04.12.2018.
Briefly stated, the relevant facts of the case are that while the petitioner was confined in District Jail, Budaun in connection with Case Crime No.258 of 2018, P.S. Usaihat, District Budaun, under Section 3/5/8 of Cow Slaughter (Prevention) Act, he was served with the impugned detention order dated 04.12.2018 passed by the District Magistrate, Budaun along with grounds of detention.
In the grounds of detention, it is stated that, on 18.09.2018, Sub-Inspector Sri Vikram Singh and Constables Neeraj Kumar and Dinesh Kumar received information from an informer that at Kasba Usaihat 4-5 persons were slaughtering cows in the house of one Faeem Quraishi son of Layeek and are selling beef. Upon receipt of that information, the police party reached the house concerned and peeped through the door and walls of the house and saw that the house owner Faeem Quaraishi and three others after slaughtering the animal were selling beef. It is alleged that to apprehend the accused, the Sub-Inspector with his fellow policemen raided the premises upon which the accused persons started running away but one could be apprehended, namely, Faiyyaz Quraishi (petitioner - detenue). On the spot, in two bags, about 40-45 kg of beef, one animal skin and jaw, hoofs and other body parts were recovered along with cutting equipments suggesting that an animal belonging to cow family had been slaughtered. Upon recovery, a veterinary doctor was called who confirmed that the meat recovered was beef. It is stated that the information about slaughter and recovery of beef spread in the Kasba as a consequence whereof Hindu Organizations got agitated and started demonstrations. It is alleged that on account of such agitation, there had been disturbance in public order and shops etc. were closed. It is stated that additional force had to be deployed to control the situation. On 20.09.2018, the incident was reported in the daily news 'Amar Ujala' as well as 'Dainik Jagran' and 'Hindustan'. After narrating the above facts, the district magistrate stated that, at present, though the petitioner is in jail but has applied for bail. The bail application though has been rejected by the Sessions Court but an application for bail has been submitted in the High Court, which is pending and that efforts are on for securing his release on bail, as a consequence whereof, people belonging to the Hindu Organizations are getting agitated and if the petitioner is enlarged on bail, then there is a possibility that he may again indulge in cow slaughter which may result in breach of public order. Hence, to prevent him from doing so, his detention is considered necessary.
The grounds of detention informed the detenue about his right to make representation to the Detaining Authority; the State Government; and the Central Government. He was also advised that if he wishes to make a representation to the Detaining Authority, then the same must be made within 12 days of passing of the detention order because if the detention order is approved by the State Government, then the Detaining Authority would have no surviving right to decide the representation.
The State Government; the Central Government; and the Detaining Authority have all filed their return.
The learned counsel for the petitioner has questioned the detention order only on the ground that the alleged act of the petitioner only breaches law and order and does not breach public order and, therefore, detention under sub-section (2) of Section 3 of the Act, 1980 is not justified.
The learned counsel for the petitioner has submitted that from the grounds of detention it is clear that the act of slaughter was within the secrecy of one's house; and that the animal parts or the beef was not taken out of the house for sale at a public place. It has been submitted that alleged demonstrations, if any, was not a direct consequence of the alleged act but was on account of spreading of rumors by vested interests. Otherwise, no violence of any kind, resulting in death or injury to any member of the public, has been reported or alleged. It is urged that the slaughter was not done in the public gaze and certainly not to incite members belonging to the Hindu community. Even the police force did not witness the slaughter. They only saw the body parts and the meat that remained. Whether a dead animal was cut into pieces or a live animal was slaughtered is not discernible from what the police party saw. Therefore, it cannot be said that the act had potentiality to incite the feelings and sentiments of the Hindu community. It has been submitted that when an act of slaughter is within the confines of one's house and not in public view and there is nothing that it was done with an intent to challenge the members of the other community, the act affects only law and order and does not have the potentiality to breach public order. It has also been urged that it is not a case where beef was being distributed / sold outside the house or to the members of the public so as to hurt the feelings of the other community. The thrust of the argument thus is that the act as alleged is simply an infraction of law and order and does not have potentiality to affect public order.
In support of the submission that such an act would amount to breach of law and order and not public order, the learned counsel for the petitioner cited a Division Bench decision of this Court in the case of Saeed Vs. State of U.P. and others: 2007 (67) All LR 4: 2007 (1) ACR 481: MANU/UP/2320/2006.
Per contra, learned A.G.A. has submitted that an act of slaughtering a cow by itself has potentiality to breach public order regardless of the slaughter being within the confines of one's house. That apart, there are reports that Hindu organizations staged demonstrations. Therefore, it can safely be assumed that there had been breach of public order by the act of the petitioner. Hence, detention order is justified. He placed reliance on a decision of a Division Bench of this Court in the case of Riyazuddin Vs. State of U.P. and others: 2017 (5) ADJ 316: 2017(2) All CrR 1979: 2017 LawSuit (All) 265.
We have considered the rival submissions and have perused the record carefully.
From a perusal of the record, we find that there is no material on record to suggest that the act of slaughter took place outside the four walls of one's house or that the animal parts, beef, etc were taken out of the house for sale to members of public. There is no allegation that the members of public had collected at the house of the accused and in their presence or to their knowledge slaughter took place. There is also no material to suggest that in that village or locality communal violence broke out resulting in injury to any one. It appears to us that when the news of slaughter leaked, demonstrations started. Who spread the news, with what motive, is not known. But the alleged act by itself was not such which could have come to the notice or knowledge of any one except those who were within the four walls of that house. Interestingly, the police party also had to peep through the door and the wall to discover what was being done there. The act was a well secreted act. Obviously, to ensure that it does not come to the notice of others.
In Saeed's case (Supra) a Division Bench of this Court had taken a view that when a few men clandestinely slaughter a cow in the secrecy of their home away from the public eye in the dark hours, perhaps for survival or for consumption of meat, such action may not by itself amount to breach of public order but when the slaughter is done in public gaze with a view to strike terror in the minds of public and to disturb communal peace, then it may amount to breach of public order.
In Riyazuddin's case (Supra), which has been cited by the learned A.G.A., from a perusal of paragraph 20 of that judgment, as reported, it appears, the act of slaughter was in public gaze and the beef was being transported in vehicles for the purpose of its disposal. Further, from paragraph 27 of the judgment, as reported, it appears that number of cows were slaughtered and their body parts were scattered all around in an open place in public view. Therefore, the court, after considering all aspects, upheld the order of detention upon finding it to be a case of breach of public order.
In the instant case, a solitary cow appears to have been slaughtered within the confines of one's house. Body parts including beef were not taken out for sale and apparently secrecy was maintained so as to avoid public gaze. The demonstrations, if any, appear to be a consequence of spread of information and rumors, not a direct consequence of the act. Such demonstrations are often fanned by vested interests for oblique purposes which, by itself, would not convert an act constituting a mere infraction of law and order into one which breaches public order. Under the circumstances, we find that the judgment cited by the learned A.G.A. is distinguishable on the facts of the present case. Rather, we are of the considered view, the facts of this case are more less covered by the law laid down by this Court in Saeed's case (Supra) wherein it was held that cow slaughter within the secrecy of one's house by itself does not have potentiality to breach public order. We are therefore of the considered view that the solitary act of the petitioner, referred to in the grounds of detention, did not have the potentiality to breach the public order and it was just a case of breach of law and order. Hence, the detention of the petitioner under the provisions of the National Security Act, 1980 is not warranted.
For the reasons recorded above, the habeas corpus petition is allowed. The detention order dated 04.12.2018 passed by the District Magistrate, Budaun is hereby quashed. The petitioner shall be set at liberty forthwith, unless wanted in any other case.
Order Date :- 17.7.2019 AKShukla/-