Allahabad High Court
Shamsher Yadav vs Union Of India (Uoi) And Ors. on 11 November, 2005
Equivalent citations: 2006CRILJ708
Author: Vinod Prasad
Bench: M.C. Jain, Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. The petitioner has filed the present habeas corpus petition challenging the detention order 25.3.2005 (Annexure 1 to the writ petition) passed by the District Magistrate, Mau, exercising power under Section 3(3) of the National Security Act, 1980 (hereinafter referred to as the Act'). The grounds of detention under Section 8 of the Act as perceptible from Annexure 2 to the writ petition are -
1. Sangram Singh was found roaming with the licensed D.B.B.L. gun and cartridges, which stood in the name of petitioner on 3.3.2004 and he was arrested by Aftab Ahmad Khan, Incharge Inspector, P.S. Mohammadabad Gohana, District Mau. On the basis of the said activity case crime No. 122 of 2004 under Section 25/30 Arms Act was registered against him in which the charge-sheet was submitted on 2.3.2005
2. Chandra Bhushan Singh @ Bhushan Singh and Rudal Singh @ Rudra Pratap Singh, both residents of village Kyampur have organized a gang, because of land rivalry and on 26.9.2004 at 9 p.m. Shamsher Yadav (petitioner) along with his associates Vipul Singh @ Parveen Singh, Chandra Bhushan Singh, Shiv Vachan Yadav, Ram Kasher Yadav, armed with rifle and country made pistol committed the murder of Rudal Singh @ Rudra Pratap Singh (Village Pradhan) Manoj Kumar Singh and Munna Singh @ Tej Pratap Singh and injured an old lady Smt. Nageshari Devi'. When these people were sitting at the door of Rudal Singh @ Rudra Pratap Singh. Regarding the murder a first information report was lodged by Manjeet Singh, younger brother of Rudal Singh @ Rudra Pratap Singh in the same night at 9.45 p.m. at the police station and case crime No. 667 of 2004, under Sections 147, 148, 307, 302 I.P.C. was registered against Shamsher Yadav (petitioner) and his associates and later on Section 504/34 1.P.C. was also added. The charge-sheet No. 122 dated 19.12.2004 has been submitted against the accused persons. The crime resulted in a lot of commotion in the village as a result of which an air of fear and terror prevailed and many people left the village Kyampur. Because of the said act public order was disturbed. The petitioner surrendered in the said crime number on 1.10.2004 and since then he is in jail.
3. It is further mentioned in the ground that the petitioner, who is detained in District Jail has filed a bail application before the C.J.M. Mau and he is likely to be released on bail and after his release, he is likely to indulge in activities prejudicial to the maintenance of public order.
2. On these grounds the detention order was passed to desist the petitioner from indulging in any activity prejudicial to maintenance of public order. The petitioner was served with the grounds of detention on the same day i.e. 25.3.2005 by Deputy Jailor, District Jail, Mau. The petitioner was also informed by the detaining authority, respondent No. 3 that he has got a right to make a representation to the detaining authority and the State Government, Advisory Board arid Union of India under Sections 9, 10 and 14 of the Act. The detention of the petitioner was approved by the State Government on 3.4.2005 under Section 3(4) of the Act and the approval was sent to the Central Government on 5.4.2005 through speed post as is provided under Section 3(5) of the Act. The petitioner made representation on 4.4.2005 to various authorities through Jailor, received in the office of the District Magistrate on the same day.
3. The District Magistrate sought certain clarification on the said report from the Superintendent of Police who, in his turn, after collecting the information from S.O. concerned submitted a report to the District Magistrate on 8.4.2005. The District Magistrate, however, sent the said representation along with his parawise comments to the State Government through special messenger on 21.4.2005. which was received in Home Department, U.P. Government Lucknow, on 25.4.2005. The concerned section of the State Government prepared a detailed note on 26.4.2005 and Sri Babu Lal, under Secretary Home (Confidential Department) U.P., who has filed a counter-affidavit on behalf of State respondent No. 2 in the present habeas corpus petition, examined it on 27.4. 2005 and submitted it to the Secretary. The Secretary examined it on 27.4.2005 and submitted it to the higher authorities for final orders of the State Government and State Government rejected the representation on 28.4.2005, which was communicated to the detenu on 2.5.2005. The State Government also referred the case of the petitioner to the Advisory Board along with the grounds of detention and all connected papers on 4.4.2005 in accordance with Section 10 of the Act. On 25.4.2005 the petitioner was produced before the Advisory Board and the Advisory Board vide its letter dated 6.5.2005 opined that there was sufficient ground for detention of the petitioner. The said letter was received by the State Government, on 9.5.2005. Thereafter the State Government considered the matter de-novo and finally confirmed the detention order for the period of twelve months from the date of his detention. The said confirmation dated 13.5.2005 was received on 27.5.2005, in jail and the same was communicated to the detenu.
4. The Union Government respondent no. I, received representation of the detenu on 4.4.2005 along with parawise comments of the detaining authority on 2.5.2005. The Under Secretary in the Ministry of Home Affairs examined it On 4.5.2005 and placed it before the Joint Secretary, who examined it on 5.5.2005 and the Additional Secretary also examined it on the same day and ultimately the Union Home Secretary (who have delegated the power to decide the representation) considered and rejected the same on 5.5.2005 which was communicated to the detenu vide crash wireless message dated 9.5.2005 through Secretary Government of U.P. Lucknow and Superintendent District Jail, Mau.
5. On the factual matrix stated above, the detenu has challenged his detention order through his wife Smt. Jyoti Yadav in the instant petition.
6. We have heard Sri P.C. Srivastava, learned Counsel for the petitioner, Sri A.K. Tripathi on behalf of the State of U.P respondent no. 2, District Magistrate, respondent no. 3 and Jail Superintendent, District Jail Mau, respondent no. 4. We have also heard the counsel for the Union of India, respondent no. 1
7. Learned Counsel for the petitioner raised many submissions but ultimately confined himself only on two of them, the first being that it is a case of law and order and not a public order and therefore, the exercise of power under Section 3(3) of the Act by the respondent no. 3 was not in accordance with the Act and was bad in law and, therefore, be quashed. Secondly, he submitted that the representation, which was submitted by him to the District Magistrate, respondent no. 3 was not considered and disposed of by him at all. He further submitted that there was unexplained delay in submission of representation of the detenu by the detaining authority to the State and Central Government from 8.4.2005 till 21.4.2005. He further contended that the non-consideration of the representation by the detaining authority by itself is negation of the right of the detenu to get his representation considered by the detaining authority at the earliest without any delay and once that having not been done the detention order becomes illegal and deserves to be quashed.
8. The learned A.G.A and the learned standing counsel for the Union Government however, refuted the arguments of the learned Counsel for the petitioner and submitted to the contrary
9. We have considered the arguments of the learned Counsel for the petitioner as well as learned A.G.A. and the learned standing counsel for the Union of India and have ourselves perused the petition counter and rejoinder affidavits. So far as the first ground relating to law and order is concerned the same has been pleaded in paragraphs nos. 10.13.15 of the writ petition. From the perusal of the grounds of detention (Annexure 2 to the writ petition), which has not been challenged by the detaining authority and other respondents, it is clear that the two grounds on which the petitioner has been detained are relatable only to law and order and not to public order. Let us make our meaning clear. So far as the ground no. 1 is concerned only this much is stated that Sangram Singh was roaming with D.B.B.L. gun and some cartridges alleged to be belonging to the petitioner. Besides this, nothing is mentioned in ground no. 1. This ground can not at all be said to be concerned with public order in any manner whatsoever.
10. So far as the second ground is concerned, the same is based on an incident, which was the outcome of the personal animosity between two factions. The said incident had taken place at 9 p.m. at the door of the persons of rival faction. The incident was not related to any element of public order. In the month of September at 9 p.m. in the village generally people are inside the houses and there are very few people out on the streets and in the open, consequently the public tempo being disturbed by the complained activity is not comprehensible, which in fact was the outcome of village rivalry. We do not mean to say that there cannot be any element of public order in any crime but what to impress upon is the fact that there is no evidence to show in this particular case that any public order was involved. It is to be recalled that the said incident was of 26-9-2004 and the petitioner surrendered in the Court on 1-10-2004 and since then he was continuously in jail. It was after a lapse of five months (25.3.2005) that the detention order was passed. It is also relevant to point out, from annexure 3 writ petition that dossier from the police station Mohammadabad, Gohana, District Mau is dated 24.3.2005 meaning thereby that there was no recommendation for taking preventive action on or before 24.3.2005 a gap of more than five and a half months. It is also relevant to note that during this period of five and a half months the petitioner was continuously languishing in jail and was not granted bail, we are of the opinion that it was a case of law and order and not public order . So, the detention order in question is bad in law.
11. So far as the second submission of the learned Counsel for the petitioner is concerned that there has been no consideration of the representation of the petitioner by the detaining authority and that there is absolutely no explanation for the delay occasioned by the inaction of the detaining authority from 8.4.2005 till 21.4.2005 in not sending the representation to the various authorities and, therefore, also the detention order is bad in law and deserves to be quashed. This submission is also not without force. We have carefully perused the counter-affidavit filed by Sri Navdeep Renav, District Magistrate, Mau. In paragraph 6 of his counter affidavit he has, replied in paragraphs 9 and 12 of the writ petition. In paragraph 9 of the writ petition, it is averred that the representation was made by the detenu to the various authorities and in paragraph 12 it is said that there has been an unexplained delay on the part of the detaining authority, State Government and Central Government in dealing with the petitioner's representation. In paragraph 6 of the counter-affidavit filed by the detaining authority, there is no averment at all as to what he had done of the representation submitted by the petitioner to him. There is nothing on record to show as to whether his representation had been disposed of by the detaining authority or not. It has been reiterated by this Court and by the Apex Court in number of decisions that it is the mandate of law and of the Constitution that the detaining authority has to consider the representation of the detenu and that he must do it at the earliest opportunity and if he fails in his responsibility of deciding the representation filed by the detenu, then the detention order is bad in law. Moreover, there is absolutely no explanation forthcoming as to what the respondent no. 3 the detaining authority was doing since 8.4.2005 till 21.4.2005. This lack lustre attitude of the detaining authority and his insensibility towards the liberty of the citizen cannot be ignored lightly. This unexplained delay on the part of the detaining authority further renders the detention of the petitioner illegal and bad in law
12. For the aforesaid reasons, the detention order dated 25.3.2005 (Annexure 1 to the writ petition) cannot be sustained and is liable to be quashed. The writ petition is accordingly allowed. The detention order of the petitioner dated 25.3.2005 under the Act (Annexure 1) is quashed. The petitioner be set at liberty forthwith.