Allahabad High Court
Azad Vikram Singh Throu ... vs Union Of India Thru Secy.Ministry Home & ... on 28 January, 2016
Author: Ajai Lamba
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved. Case :- HABEAS CORPUS No. - 54 of 2015 Petitioner :- Azad Vikram Singh Throu Friend/Pairokar/Sister Anshika Singh Respondent :- Union Of India Thru Secy.Ministry Home & Ors. [At:-02:00 Pm] Counsel for Petitioner :- R. P. Mishra Counsel for Respondent :- Govt. Advocate, A.S.G., Ajay Kumar Singh, Hon'ble Ajai Lamba,J.
Hon'ble Aditya Nath Mittal,J.
(Per Hon'ble Aditya Nath Mittal, J)
1. This petition in the nature of Habeas Corpus has been filed with the prayer to declare the impugned detention order dated 30.01.2015 passed under National Security Act, 1980 as illegal and arbitrary with the further prayer to quash the consequential approval order dated 09.02.2015.
2. The facts giving rise to the present petition are that on 25.10.2014 at about 7.35 am, the petitioner along with his other companions had caused murder of one Sri Om Prakash Singh at his brick kiln and had absconded from there. Case Crime No.254 of 2014 under sections 147, 148, 149, 302, 34 Indian Penal Code, Police Station Wazirganj, District Gonda and another Case at Crime No.255 of 2014 under section 3/25 Arms Act in the same police station were registered and the petitioner was arrested.
3. On 26.01.2015, a report was made by the Police Station Wazir Ganj, District Gonda to the Superintendent of Police, Gonda stating therein that there was a serious threat to public law and order and the petitioner is trying to get his release in the aforesaid offences by which the maintenance of public law and order shall be disturbed. Therefore, the petitioner should be detained under Nation Security Act, 1980 (for short 'NSA'). Circle Officer Incharge of Police Station Wazirganj, District Gonda as well as Additional Superintendent of Police Gonda recommended to the District Magistrate Gonda for invoking the provisions of 'NSA'. Upon the recommendation of the police officers, the District Magistrate Gonda, considering all the facts and circumstances of the case, passed the impugned detention order dated 30.01.2015 for detaining the petitioner under section 3(2) of the NSA.
4. Learned counsel for the petitioner has submitted that the incident of murder had taken place on 25.10.2014 and the provisions of 'NSA' have been invoked after a lapse of about 96 days. Therefore, the order is stale. It has also submitted that the application for bail of the petitioner was already rejected on 23.01.2015 and on the date of passing of detention order i.e. 30.01.2015, second application for bail was not pending. Therefore, there was no intention of the petitioner to come out from Jail on 30.01.2015. There was no nexus between the prejudicial activities in the order of detention and the ground of detention was punitive. Therefore, the order is bad in law. It has also been submitted that the said incident of murder was committed by so many persons but the provisions of 'NSA' have been invoked only against the petitioner and no explanation has been furnished as to why the provisions were not invoked against other accused persons. In these circumstances, the order of detention is illegal.
5. Per contra, Sri Ajay Kumar Singh Learned Senior Central Government Counsel appearing on behalf of Union of India and Sri Rishad Murtaza, learned Government Advocate appearing on behalf of respondent State has supported the detention order in view of the grounds mentioned in the detention order.
6. We have heard learned counsel for the parties' and perused the pleadings of petition.
7. Hon'ble the Apex Court in the case of Arun Ghosh vs. State of West Bengal reported at 1970 (1) SCC 98 has held that :
"disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. There is no formula by which one case can be distinguished from another.
In Kanu Vishwas vs. State of West Bengal; (1973) SCC (Cri) 16, Hon'ble the Apex Court has held as under:
"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order is: Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed.
In Rameshwar Shaw vs. District Magistrate, Burdwan and another; AIR 1964 SC 334, Hon'ble the Apex Court has held that:
"if a person is already in jail custody, as a result of a remand order passed by a competent authority, it cannot rationally be postulated that if he is not detained, he would act in a prejudicial manner. At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under section 3(1)(a) and is outside its purview.
Similarly in Alijan Mian vs. District Magistrate, Dhanbad and others; 1983 SCC (Cri.) 840, Hon'ble the Apex Court has held as under :
"It may be pointed out at the very outset that the detaining authority was alive to the fact that the petitioners were in jail custody on the date of the passing of the detention orders as will be clear from the following statement in the grounds of detention:
"The subject is in jail and is likely to be released on bail. In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order."
The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of 'public order' from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, it was necessary to prevent them from acting in a manner prejudicial to public order."
8. Learned counsel for the petitioner has also drawn our attention towards Rabindra Kumar Ghosel @ Buli vs. State of West Bengal; 1975 SCC (Cri) 365 in which Hon'ble the Apex Court has held as under:
"We find that the actual order of detention was passed only around three months thereafter. The whole purpose and object of the Maintenance of Internal Security Act is that persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity. We cannot understand the District Magistrate sleeping over the matter for well nigh three months and then claiming that there is a real and imminent danger of prejudicial activity affecting public order. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by this long and unexplained delay. If there were some tenable explanation for this gap we would have been reluctant to interfere with the detention order but none has been stated in the counter affidavit filed to-day many months after time was taken for filing a return. In these circumstances, we are not satisfied that there is any justification for the claim of subjective satisfaction put forward by the District Magistrate. The petition is allowed, the rule nisi confirmed and the petitioner directed to be set at liberty."
9. The petitioner Azad Vikram Singh alleged to have committed crime under sections 147, 148, 149, 302/34 Indian Penal Code on 25.10.2014 at 7.35 am regarding which the First Information Report at Case Crime No.254 of 2014 was lodged on 25.10.2014 at 8.30 am against the petitioner and four other companions. The petitioner was arrested by the local police on 25.10.2014 itself and upon his pointing out, a pistol is said to have been recovered on 26.10.2014. The detention order has been passed on 30.01.2015. It is admitted case of the prosecution also that on the date of detention order i.e. 30.01.2015, the second application for bail was not pending before any authority. However, the second application for bail has been rejected on 14.05.2015.
10. After passing of the impugned order dated 30.01.2015, the petitioner had moved his first representation to District Magistrate, Gonda on 06.02.2015, which was rejected on 11.02.2015. Second representation has also been rejected by order dated 15.02.2015 while representations made to Union of India on 11.02.2015 and 09.02.2015, have also been rejected by Union of India by order dated 24.02.2015. The aforesaid facts make it clear that on the date of passing of the impugned order dated 30.01.2015, the first application for bail was already rejected and the second application for bail was not pending.
11. Hon'ble the Apex Court in a case reported at (1989) SCC 22 [Abdul Razak Abdul Wahab Sheikh vs. S. N. Sinha, Commissioner of Police, Ahmedabad and another] after considering the law laid down in Rameshwar Shaw vs. District Magistrate, Burdwan and another [AIR 1964 SC 334]; Alijan Mian vs. District Magistrate, Dhanbad and others [1983 (4) SCC 301]; Ramesh Yadav vs. District Magistrate Etah [(1985) 4 SCC 232]; Suraj Pal Sahu vs. State of Maharashtra [1986 (4) SCC 378]; Vijay Narain Singh vs. State of Bihar [(1984) 3 SCC 14]; Raj Kumar Singh vs. State of Bihar [(1986) 4 SCC 407]; Binod Singh vs. District Magistrate Dhanbad [(1986) 4 SCC 416]; Poonam Lata vs. M. L. Wadhawan [(1987) 4 SCC 48] ; and Smt. Shashi Aggarwal vs. State of U.P. [(1988) 1 SCC 436 has held as under:
"On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on 13th May, 1988. It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on 23rd May, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also." This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is non-existent. This fact of non-awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials."
12. In the present case also, it appears that the detaining authority was completely unaware of the fact that any application for bail was not pending before any competent court and, as such, there was no possibility of coming out of bail. It goes to show that the aforesaid subjective satisfaction as provided in Section 3(2) of the 'NSA' was not arrived at by the detaining authority.
13. Learned counsel for the petitioner has also placed reliance on various Division Bench judgments of this Court in which the same view has been taken that if there was no apprehension on the part of the detenue to get release on bail, the factum of subjective satisfaction was not proved and the detention order becomes vitiated.
14. Hon'ble the Apex Court in Smt. Sashi Agarwal vs. State of U.P.; 1988 (1) SCC 436 has further held that mere possibility of release on bail of the detenue is not enough for preventive detention. There must also be credible information or cogent reasons apparent on the record that the detenue, if released on bail, is likely to commit activities prejudicial to the maintenance of public order.
In the instant case, there is no other criminal history of the petitioner except the aforesaid two cases, out of which the second case is of recovery of country made pistol arising out of first case of murder.
15. The detention order of the petitioner has been served upon him when he is already in jail. Therefore, there should be a real possibility of his being bailed out provided he has moved a bail application, which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail and therefore, the detention order shall be illegal. However, an exception to this rule is that where a co-accused whose case stands on the same footing had been granted bail, in such circumstances, the detaining authority can reasonably conclude that there is likelihood of the detenue being released on bail even though no bail application of his, is pending since most courts normally grant bail on the ground of parity.
In the present case, the petitioner and his father are named in the first information report and three unknown persons have been shown accompanying the petitioner. Admittedly, the father of the petitioner has also not been released on bail.
16. We have taken notice of the fact that in the impugned order dated 30.1.2015, it has been mentioned that the petitioner is making endeavour to come out on bail. One of the grounds taken for invoking provisions of the National Security Act is that after dismissal of application for bail by Chief Judicial Magistrate, Gonda, the application for bail of the petitioner is pending adjudication in Case Crime No.254 of 2014 (supra) in the Court of Sessions Judge, Gonda. Admittedly, the said fact has been wrongly recorded in the impugned order. Application for bail of the petitioner had been dismissed on 23.1.2015. As on the date when the proceedings under the National Security Act were initiated, application for bail on behalf of the petitioner in the murder case was not even pending. Thus, a non-existent circumstance has been taken into account for invoking the provisions of National Security Act. It is evident that the order has been passed without application of mind.
The apprehension of the detaining authority that the petitioner shall be released on bail appears to be without any cogent material and it appears to have been passed on mere ipse dixit of the detaining authority. In these circumstances, the order of detention is not based on sufficient material as well as subjective satisfaction of the detaining authority.
17. As far as the delay in passing the detention order is concerned, there is delay of almost 96 days. The incident took place at a brick kiln, which is admittedly situated far away from the Abadi. Therefore, there cannot be a ground to invoke the provisions of 'NSA' on the ground that the shopkeepers in panic, downed their shutters or it amounted to disturbances of public order by such incident. At the most, there may be temporary disturbances at the place of incident, which is far away from the township. Therefore, the shorter life of such disturbance would be of lower potential to disturb the even tempo of the life of the society. The said incident may be said to be related to law and order problem and it certainly not the public order. The detaining authority in exercise of power under 'NSA' must act strictly within the limitations provided under the Act, so that grant of liberty is not imperilled beyond the Constitution. Individual liberty is a cherished right, one of the most valuable fundamental rights provided by our Constitution to the citizens of this country. Such right may be envied only strictly in accordance with law. The authorities cannot be expected to deal with the liberty of individual in a causal manner.
As per the statement of the complainant recorded under section 161 Code of Criminal Procedure, there was enmity between the parties due to election of Pradhani. Therefore, it was an individual act on the part of the petitioner, which cannot be said to have affected the public order.
18. In the present case, the petitioner and his father are named in the first information report but admittedly, no detention order has been passed against the father of the petitioner, which establishes the discrimination with the petitioner.
19. In view of the aforesaid discussions, we are of the view that on the date of passing of the detention order, there was no subjective satisfaction of the District Magistrate Gonda and there was no possibility of being released on bail because on the date of passing of the detention order, any application for bail was not pending and even the bail of the similarly placed named co-accused, who is the father of the petitioner had also not been granted. The delay of 96 days in passing the impugned detention order also looses its importance. There is no explanation to this inordinate delay and no such evidence is there that after lapse of 96 days of arrest, the petitioner was trying to disturb the public order again by any of his overt action. Therefore, the chain of connection between the dangerous activities relied on and the detention order passed is snapped by this long and unexplained delay. In these peculiar facts and circumstances of this case, the detention order dated 30.01.2015 is liable to be quashed.
20. Thus, the detention order dated 30.01.2015 and the consequential approval order dated 09.02.2015 passed under National Security Act, 1980 are hereby quashed.
21. The petition is allowed.
Order Date :- 28th January, 2016 VNP/-