Raju Khan Alias Tyagi vs State Of U.P. And Others on 9 January, 2013

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Allahabad High Court

Raju Khan Alias Tyagi vs State Of U.P. And Others on 9 January, 2013

( Delivered by Hon'ble Anil Kumar Agarwal, J. ) Heard Sri Anil Srivastava, learned counsel for the petitioner, learned A.G.A.for the State of U.P.and Sri Pramod Kumar Rai, appearing on behalf of Union of India.

This writ petition has been preferred by the petitioner Raju Khan alias Tyagi with the following prayers :-

(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 2.7.2012 and 21.8.2012 passed by respondent no. 1 and 2 respectively ( Annexure no. 1 and 2 to the writ petition ).

(b) Issue a writ, order or direction in the nature of mandamus commnading the respondents not to give effect the impugned orders dated 2.7.2012 and 21.8.2012 passed by the respondent no. 1 and 2 respectively ( Annexure no. 1 and 2 to the writ petition).

(c ) Issue a writ, order or direction in the nature of Habeas Corpus commanding the respondents to release the petitioner from illegal detention under the National Security Act and also made an arrangement to release the petitioner from District Jail Budaun.

(d) Issue any such other suitable writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(e) Award costs of the writ petition to the petitioner.

The impugned orders dated 2.7.2012 and 21.8.2012 passed by District Magistrate, Budaun and State of U.P.respectively. The detention of the petitioner under section 3(2) of National Security Act has been challenged on the following grounds that :-

A. Only under the political pressure and dirty village politics certain pressure was made upon the police personnel and the proposal with regard to the detention of the petitioner was sent by the station officer of police station Kotwali, district Budaun under National Security Act, 1980 and subsequently the same was recommended by the Circle Officer, Budaun to the Superintendent of Police, Budaun.

B. While sending proposal of detention of the petitioner under the Act by the station officer, Police Station Civil Lines, Budaun and other authorities only on the ground that the petitioner is approaching to the court concerned for obtaining bail and after obtaining bail he may involve again in criminal activities and no other allegation has been made that there was any type of disturbance of law and order situation.

C. No proper and credible evidence has been collected with regard to the involvement of the petitioner in the said case and admittedly there is no direct or indirect evidence against the petitioner in the present case which is evident from the First Information Report as well as statement of witnesses itself.

D. The allegation and ground on which the detention of the petitioner have been proposed and subsequently sanctioned under the Act is absolutely baseless while neither the petitioner is a criminal nor has invovled himself in a case in any type of criminal activities, the entire prosecution story developed agaiinst the petitioner during investigation is absolutely false, concocted and after thought.

E. So far as the grounds and allegations of the petitioner are concerned the same are absolutely baseless and it cannot be said in any manner that the detention of the petitioner can be made under the Act only on the aforesaid ground.

F. The sole ground of detention of the petitioner is that in case the petitioner is released on bail there may be possibility of repeated the offence by the petitioner while it cannot be said in any manner that after being released on bail the petitioner will involve in other further activities.

G. After receiving the order of detention under the Act in jail, the representations have also made to the respondent no. 1 and 2 through the respondent no.3 but no information with regard to the decision taken by the respondent no. 1 and 2 thereon, has yet not been received by the petitioner.

H. A wireless message was sent by the Ministry of Home Affairs on 8.8.2012 but no information has been given by the aforesaid wireless message on which any decision has been taken by the Central Government on the representation submitted by the petitioner.

I. The recommendation for detention of the petitioner under the Act has been made by the police authority only on the basis of presumption that after being released on bail the petitioner may involve in certain other criminal activities even without any evidence but no such observation has been made that the petitioner may involve in disturbing law and order situation in any manner hence the orders of detention dated 2.7.2012 and 21.8.2012 passed under the Act are liable to be quashed by this Hon'ble Court.

J. The proceedings for detention under the Act was also initiated against co-accused Manav and the detention order was passed by the District Magistrate, Budaun but subsequently aforesaid detention order has been rejected by the Advisory Board, U.P. Lucknow.

K. The first information report was lodged abgainst seven persons including main accused Fahim and Nadeem but except the petitioner neither any recommendation for detention of the other accsued has been made by any of police authority nor any such detention order under the Act has been passed by the District Magistrate, Budaun and this fact shows that the proceeding under the Act has been initiated against the petitioner only under great pressure or the persons having vested interest against the petitioner.

L. The order of detention of the petitioner under the Act is absolutely illegal and also in violation of Article 14 of the Constitution of India.

M. The entire proceeding of the detention of the petitioner and the orders of detention of the petitioner dated 2.7.2012 and 21.8.2012 are the violation of Articles 14 , 19 , 21 , 22(5) of the Constitution of India.

N. The petitioner has not been afforded any opportunity of hearing before passed the impugned order against the petitioner which is also in violation of principles of natural justice and the same is liable to be quashed by this Hon'ble Court.

O. In view of several pronouncement made by the Apex Court as well as this Hon'ble Court the order of detention issued on solitary ground has been held to be illegal and unjustified.

P. The petitioner has submitted his representation to the State of Uttar Pradesh through this Chief Home Secretary, Govt. of Uttar Pradesh, Lucknow. The District Magistrate, Budaun and Union of India through Home Secretary, Central Ministry of Home ( Internal Security), North Block, New Delhi through the Superintendent of Jail, District Budaun but till date has not been decided and the same is still pending for consideration.

The facts, in brief, of this case are that the impugned order dated 2.7.2012 has been passed by District Magistrate, Budaun in exercise of powers conferred under section 3(3) of National Security Act 1980 ( hereinafter referred to as 'NSA') and the petitioner has been detained in district Jail Budaun as an ordinary prisoner in exercise of powers conferred under section 3(2) of the NSA. The copy of the impugned order, its grounds and other relevant materials were sent to the District Jail Budaun where the petitioner was detained since 26.5.2012, the same were received on the same day in District Jail Budaun and on the same day served upon the petitioner. All the relevant information, as mentioned in the grounds of detention, was given to the petitioner. The District Magistrate, Budaun sent the copy of the detention order, its grounds along with all relevant material to the Government vide letter dated 2.7.2012, the same was received by the State Government on 4.7.2012, after examining every aspect of the case, the State government approved the order of detention on 6.7.2012. The letter approving the detention order was communicated to the petitioner through district authorities by the State Government's radiogram and letter, both dated 9.7.2012. A copy of the detention order, grounds of detention and all other connected papers received from the District Magistrate, Budaun were also sent to the Central Government by Speed Post on 10.7.2012. The petitioner submitted a representation dated 9.7.2012 before the jail authority, the same was sent to the District Magistrate Budaun on 9.7.2012, after receiving the same it was rejected by District Magistrate, Budaun on 9.7.2012, its copy was communicated to the petitioner through Jail authority on the same day and on the same day it was served upon the petitioner. The District Magistrate, Budaun sent the representation along with his comments to the State Government through Special Messenger on 10.7.2012, similarly, it was sent to Central Government through special messenger and to Registrar of Advisory Board. The representation dated 9.7.2012, its grounds and parawise comments forwarded by the District Magistrate, Budaun vide his letter dated 10.7.2012, were received in the concerned Section of the State Government on 11.7.2012. The State Government sent its copies to the Uttar Pradesh Advisory Board and Central Government vide separate letters, both dated 12.7.2012. In the office of the State Government it was examined on 13.7.2012 and submitted it with a detailed note dated 13.7.2012 to higher authority, thereafter it was examined by Under Secretary on 16.7.2012 ( 14.7.2012, 15.7.2012 were holidays on account of Saturday and Sunday), thereafter it was examined by Special Secretary on 17.7.2012 and forwarded to the Secretary who examined it on 18.7.2012, after examining , it was sent to higher authority of the State Government who after due consideration rejected the representation on 18.7.2012. The rejection of the representation was communicated to the petitioner through District Authorities by the State Government's radiogram dated 19.7.2012. The case of the petitioner was referred to the Advisory Board by the State Government. The Advisory Board vide its letter dated 19.7.2012 informed the State Government that the case of the petitioner will be taken up for hearing on 25.7.2012 and directed that the petitioner be informed that if he desired to attend the hearing before the Advisory Board along with his next friend ( non-advocate), he could do so and be allowed to take his next friend along with him, if he had so requested, it was accordingly communicated to the petitioner through district authorities by State Government radiogram dated 20.7.2012. The petitioner appeared for hearing before Advisory board on the date fixed, Advisory Board, on that day heard the petitioner in person, considered his representation and gave its opinion that there was sufficient cause for detention of the petitioner. This report along with the record of case was received in the concerned Section of the State Government on 14.8.2012 sent by Registrar, U.P.Advisory Board (detentions) vide letter dated 14.8.2012. On receipt thereof the State Government once again examined afresh the entire case of the petitioner along with opinion of the Advisory Board and took a decision to confirm the 'detention order' on 21.8.2012 and also keeping the petitioner under detention for a period of 12 months from the date of his actual detention in the present case, the copy of the order dated 21.8.2012 was communicated to the petitioner through the State Government's radiogram and letter both dated 21.8.2012 whereas the Advisory Board did not find sufficient cause for the detention of the co-accused Manu alias Manav Kumar Gupta, therefore, State Government under section 12(2) of NSA revoked the detention order dated 21.8.2012. The representation of the petitioner alongwith parawise comments was received by the Ministry of Home Affairs sent by the State Government through letter dated 12.7.2012 on 24.7.2012. The representation was put up for consideration before the Union Home Secretary (who has been delegated by the Central Government to decide such cases) on 31.7.2012 during this period of 24th to 31st July, 2012, and 28th and 29th July, 2012 were weekly holidays, apart from this, concerned dealing assistant was also hospitalised, during the period from 17th to 28th July, 2012 who subsequently cleared his work after his joining, due to heavy work load, it could not be permitted to reallocate the work as the Section deals with section 3(5) reports and representation of the detenu from the entire country. The representation of the petitioner was rejected on 6.8.2012, thereafter, the file was sent back to the Joint Secretary, the file reached to the section through under secretary NSA on 8.8.2012. Accordingly the wireless message dated 8.8.2012 was sent to the Home Secretary, Government of U.P. Lucknow, Superintendent of District Jail, Budaun, District Magistrate, Budaun and the detenu informing that the representation of Raju Khan alias Tyagi was considered and rejected by the Central Government, the copy of this wireless message was also sent to the detenu by post on 9.8.2012.

It is contended by the learned counsel for the petitioner that :-

i.The detaining authority was not satisfied that there was a real possibility of the detenu of being released on bail that is why in the grounds of detention, it has not been mentioned, but it is mentioned that the petitioner was detained in case crime no. 455 of 2012, under sections 147,148,149,307,302,506 I.P.C. and 7 Criminal Law Amendment Act, in district Jail Budaun, in the said offence for releasing on bail, he moved the bail application in the court of learned C.J.M. Budaun, which has been rejected on 28.5.2012, thereafter, he moved a bail application in the court of District and Sessions Judge, Budaun in which 4.7.2012 was fixed for hearing. In case, he releases on bail, there was real possibility of his indulging in such prejudicial activities, which would jeopardise the public order. The sponsoring authority, i.e. Officer- in- Charge of P.S. Civil Lines Budaun has reported that the petitioner was making efforts for releasing on bail and there was real possibility of his releasing on bail, the same was endorsed by the S.P. City Budaun and S.S.P. Budaun recommending the detention of the petitioner under NSA but the detaining authority was not satisfied that there was real possibility of releasing the petitioner on bail, in such a circumstance, the impugned detention order was not required to be passed, which vitiates the impugned order.

ii.The representation of the petitioner was decided by the State Government and the Central Government in a casual manner without giving any proper explanation of delay in deciding the representation.

iii.The criminal act for which the petitioner is allegedly named as accused in the FIR is not affecting the public order, at the most it may be a case of law and order. The detaining authority passed the impugned order in a routine manner without going through the record and the grounds for passing the detention order were not proper.

In reply to the above contention it is submitted by the learned A.G.A. and the learned counsel appearing on behalf of the Union of India that the impugned order is not suffering from any illegality or irregularity. The criminal act done by the petitioner is affecting the public order also. The District Magistrate after going through the record and after applying his judicial mind and with his full satisfaction passed the impugned order. The representation of the petitioner has been properly decided by the State Government as well as the Central Government, without any undue delay, the delay in deciding the representation has been properly explained. So far as the satisfaction of the detaining authority with regard to the ''real possibility of releasing the petitioner on bail' is concerned, it has been brought to his knowledge, after considering the same it has been recorded by the detaining authority that in case the petitioner releases on bail, there was real possibility of his indulging in such prejudicial activities but it appears that due to clerical mistake the sentence " there was real possibility of his releasing on bail, could not be mentioned in the grounds of detention, which do not vitiate the satisfaction of the detaining. The present writ petition is devoid of merits, the same may be dismissed.

Considering the facts, circumstances of the case, submissions made by the learned counsel for the petitioner, the learned A.G.A., the learned counsel appearing on behalf of the Union of India and from the perusal of the record, it appears that the District Magistrate Budaun passed the impugned order dated 2.7.2012 in exercise of the power conferred under section 3(3) of NSA, the grounds for passing the impugned order have already been supplied to the petitioner, the impugned order has been passed mainly on the ground that the petitioner is indulged in case crime no. 455 of 2012 under sections 147,148,149,307,302,506 I.P.C. and 7 Criminal Law Amendment Act P.S.Civil Lines district Budaun in which he was making attempts to release on bail, his bail application was rejected by the learned C.J.M. Budaun, but his bail application was pending in the court of District and Sessions Judge, Budaun and there was real possibility of indulging in such prejudicial activities, which would jeopardise the public order but in the ground of detention, the detaining authority has not mentioned that there was real possibility of his releasing on bail whereas it was reported by the Station Officer of P.S. Civil Lines district Budaun it shows that the detaining authority was not satisfied with the report submitted by the sponsoring authority and the detaining authority was not satisfied that there was any real possibility of releasing the petitioner on bail. In case of Kamarunnissa Vs. Union of India and another - (1991) 1 SCC 128 , the Supreme Court of India has laid down the principles as to when such detention order can be passed. The view taken by the Apex Court in the case of Kamarunnissa Vs. Union of India and another has been followed in the cases of Veeramani Vs. State of Tamil Nadu- JT 1994 (1) SC 350, TV Sravanan alias SAR Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and another -(2006) 2 SCC 664, Union of India v. Paul Manickam and another - JT 2003(Suppl 2) SC 503.

In the case of Kamarunnissa Vs. Union of India and another, the relevant paragraph no. 13 reads as under :-

" From the catena of decisions referred to above, it seems clear to us that even 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 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 his behalf, such an order can not 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 if before a higher court."

The above mentioned conditions should be satisfied for passing a valid detention order against a person in custody, in which one of the conditions is that there should be ''real possibility of a person being released on bail', but in the present case this condition is not fulfilled. The fact that there was a real possibility of the petitioner of being released on bail, has not been mentioned in the grounds of detention, whereas it was brought to the notice of the detaining authority by the sponsoring authority. It is the settled position of law that either of the conditions mentioned in the paragrpah 13 of the judgement passed by the Apex Court in the case of Kamarunnissa Vs. Union of India and another, if does not exist, the detention order would stand vitiated. In the present case, in grounds of the detention the condition that there was a real possibility of releasing the petitioner on bail is lacking which vitiates the impugned order dated 2.7.2012 passed by the District Magistrate, Budaun, therefore, the impugned order dated 2.7.2012 is illegal and hereby set aside.

The petitioner shall be released from District Jail Budaun forthwith, if he is not wanted in some other case.

Accordingly this Habeas Corpus petition is allowed.

Dated : January 9, 2013.

Su/NA

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Allahabad High Court