Allahabad High Court
Mahesh Tyagi vs State Of U.P. And Ors. on 3 May, 1991
Equivalent citations: 1992CRILJ779
JUDGMENT S.H.A. Raza, J.
1. By means of this writ petition the petitioner who has been detained under 3(iii) of the National Security Act by the District Magistrate, Ghaziabad, has assailed his detention order.
2. In the grounds of detention furnished to the petitioner it was alleged that on 7-7-90 one Arun Kumar, son of Sri Dhara Singh, resident of L-36, Sanjai Nagar, Sector 23, Raj Nagar, Ghaziabad, lodged a F.I.R. at police station Kavri Nagar to the effect that his son Yatin Kumar went to attend his classes in the school at 7.30 a.m. but 7-7-90 being Saturday the school was closed earlier than 1.30 p.m. which was the usual time for closure of the school but Yatindra Kumar did not return to his house. The report was lodged at 14.15 hours and the case was registered and investigation commenced. On 10-7-90 the said Arun Kumar visited the police station and filed a letter alleged to have been written by the accused in which it was stated that Yatindra Kumar was in his custody and would be released only on payment of rupees two lacs as ransom and in case the matter would be reported to the police the boy would be killed. As a result of it a case bearing Crime No. 327 under Section 365, I.P.C. was registered and the police started making efforts to recover the said boy.
3. It was further mentioned in the grounds of detention that on the same day i.e. 10-7-90, after encounter with the police accused Ishwar, son of Om Prakash, resident of Shahpur Bamhaita Morta, police station Muradnagar, was arrested and one CMP and cartridges were recovered from his possession. On interrogation and pointing out of said accused Ishwar on 11-7-90 at 4.00 a.m. after encounter with the police, the petitioner along with Dhiraj Tyagi, Ashok Tyagi and Yamin were arrested along with illicit arms and ammunition at the tubewell of Ashok situate in village Didauli, police station Muradnagar. The boy Yatindra Kumar who was kidnapped by accused persons was recovered and accused who were arrested were sent to jail. It was averred that the petitioner along with other co-accused abducted the boy Yatindra Kumar as a result of which an atmosphere of terror and fear spread out and public order was jeopardised.
4. It was further averred in the grounds of detention that the petitioner preferred an application for grant of bail before the Additional Chief Judicial Magistrate which was dismissed on 17-7-90. Thereafter, the petitioner preferred an application for grant of bail before the learned Sessions Judge which was pending at the time the grounds of detention were served upon the petitioner.
5. It was further averred in the grounds of detention that on 11-7-90 Sri R.D. Gaur, Inspector-in-charge, Muradnagar lodged a F.I.R. to the effect that on the pointing out of accused Ishwar, son of Om Prakash, when he along with the police party reached at the tube-well of Ashok situate in village Didauli, accused persons with intent to kill, fired upon the police party and from their possession illicit arms were recovered as a result of which an atmosphere of fear and terror spread out and public order was disrupted. Pertaining to this incident, a case at Crime No. 252 under Section 307, I.P.C., was registered against the petitioner. It was also averred that the petitioner had preferred an application for bail before the court of Sessions Judge, Ghaziabad and 7-8-90 was fixed for disposal. On the basis of the aforesaid ground, the detaining authority was satisfied that there existed an apprehension that the petitioner would be engaging in prejudicial activities that would be against the public order, hence, to prevent the petitioner from indulging into such prejudicial activities, it was found necessary that he should be detained and kept in custody.
6. It was averred in the writ petition that the petitioner has been confined in District Jail in pursuance of the order passed by the District Magistrate on 5-8-90 in exercise of the powers under Section 3(iii) of the National Security Act, 1980 and was detained on 8-8-90. The order of detention along with the grounds and other documents was supplied to the petitioner. On 27-9-90 the State Government has approved the detention of the petitioner and the said order was confirmed by the State Government after the receipt of the report of the Advisory Board.
7. It was further submitted that the detention order was served upon him while the petitioner was already in jail.
8. The main thrust of the argument of the learned counsel for the petitioner to assail the detention order is as under :--
(a) The statement made by the co-accused Ishwar in case Crime No. 327/90 under Section 365, I.P.C., the copy of the F.I.R., recovery memo pertaining to recovery of the child and the F.I.R. of Crime No. 252/90 under Section 307, I.P.C. and the statement of the witnesses under Section 161, Cr.P.C. were not supplied to the petitioner and there existed no material before the detaining authority to pass order for detention of the petitioner;
(b) In absence of the aforesaid material, the petitioner could not make effective representation to the State Government;
(c) The comments made by the prosecution for disposal of the bail application of the petitioner in Crime No. 327/90 under Section 365, I.P.C. were not placed before the detaining authority and were not supplied to the petitioner as a result of which he could not make an effective representation;
(d) Crime No. 327/90 under Section 365, I.P.C., was registered only on the basis of a letter given by the father of the child but there existed no other material before the detaining authority as to among the accused persons has written the said letter;
(e) Accused Ishwar as well as the petitioner were ordered to be released on bail on 9-8-90;
(f) The averments made in the ground of detention that the bail application of the petitioner was rejected on 17-7-90 is contrary to the record as his bail application was allowed on 9-8-90;
(g) It was indicated in the report, submitted by the police officers to the District Magistrate that the petitioner is a hardened criminal and a Criminal Goonda and he used to receive money by abducting persons and possess illicit weapons which are utilised for kidnapping persons. There existed no material before the detaining authority in support of the said contention and the detaining authority passed the detention order on the basis of incorrect reports;
(h) The District Magistrate, Ghaziabad, relied upon the news items published in certain newspapers which did not mention that the petitioner was involved in the said incidents;
(i) The detaining authority failed to consider that the petitioner was already in jail in Crime No. 327/90 under Section 365, I.P.C., and there was no likelihood of his being released on bail;
(j) Although in the report made by the Station Officer, police station Kavi Nagar, dated 25-7-90, it was pointed out that the petitioner and other accused persons opened fire upon the police party but it was not reported to the detaining authority that no body sustained any injury and no incriminating article was found or recovered from the possession of the petitioner. The incidents involved the maintenance of law and order and did not pertain to maintenance of public order and the appropriate action having been initiated by the police does not require the detention of the petitioner.
9. In para 10 of the counter affidavit filed by the District Magistrate, Ghaziabad it was stated that a copy of the report on the basis of which case Crime No. 327 of 90 under Section 365, I.P.C. Police Station, Kavi Nagar, district Ghaziabad was registered and report No. 29 dated 7-7-90 and a copy of the report No. 10 dated 10-7-90 were supplied to the petitioner. In para 16 of the said counter affidavit it was averred that chik report Nos. 255, 253 and 254 dated 11-7-90 were supplied to the petitioner on the basis of which case Crime No. 252 under Section 307, I.P.C., police station, Muradnagar, District Ghaziabad was registered. It was denied that there was no material before the deponent in support of the said case. In para 9 of the said counter affidavit it was stated that the recovery of the abducted boy Yatindra Kumar was not supplied to the petitioner. There was other independent, adequate and sufficient material before the deponent on the basis of which he was subjectively satisfied that the detention of the petitioner was necessary. Copies of all such material were provided to the petitioner including the report No. 10 dated 10-7-1990 on the basis of which case Crime No. 327, under Section 365, I.P.C. was registered.
10. In reply to the contents of para 13 of the writ petition that the comments made by the prosecution for disposal of the bail application in Crime No. 327 of 90 under Section 365, I.P.C. were not placed before the detaining authority, it was submitted in para 10 of the counter affidavit that mere fact that the abducted boy was recovered from the possession of the petitioner and other co-accused after an encounter with the police on 11-7-90 in which the petitioner was arrested at the spot was itself sufficient to be subjectively satisfied that the detention of the petitioner under the provisions of National Security Act was necessary and copies of all such material on the basis of which the detention order was passed were supplied to the petitioner.
11. In reply to the averments contained in para 14 of the writ petition in which it was alleged that crime No 327 of 90 under Section 365 was registered only on the basis of the letter given by the father of the child but there existed no material before the detaining authority as to who among the accused persons had written the said letter. It was submitted in para 11 of the counter-affidavit that it was neither necessary nor required to enter into enquiry as to whether the letter received by the father of the abducted boy was written in the handwriting of the petitioner or any other co-accused, as the fact that the abducted boy was recovered from the possession of the petitioner and other co-accused after encounter with the police was itself sufficient ground on the basis of which the deponent was subjectively satisfied that the detention of the petitioner under the provisions of National Security Act was necessary.
12. In para 18 of the counter affidavit it was submitted that one bail application on behalf of the petitioner was moved before the Second Additional Chief Judicial Magistrate was rejected on 17-2-90 and thereafter the petitioner moved another bail application before the District and Sessions Judge which was listed for hearing on 7-8-90. It was further submitted that the petitioner annexed a copy of the order passed by the learned Sessions Judge, Ghaziabad dated 9-8-90 under Section 355, I.P.C. a perusal of which indicates that the said bail application was allowed on 9-8-90 and the petitioner was ordered to be released on bail on furnishing personal bond and resuisite sureties. It was further averred in para 4 to the supplementary counter-affidavit filed in reply to rejoinder affidavit that in crime No. 252 of 90 under Section 307, I.P.C. the bail application of the petitioner was accepted on 17-7-90 by the Sessions Judge Ghaziabad. It was further averred that in the counter-affidavit filed earlier it was mentioned by mistake that the bail application in the aforesaid crime was rejected on 15-7-90 when actually it was allowed. The mistake had occurred for the reason of the fact that the petitioner was wanted in cases of two crime numbers and in one crime number his bail application was rejected and in one it was under consideration. The District Magistrate has expressed regret for the said mistake.
13. In reply to paras 24, 25 and 26 of the writ petition it was submitted in para 21 of the counter-affidavit that in the report of the S.S.P. Ghaziabad and the S.O. Kavi Nagar it was mentioned that the petitioner was a hardened criminal.
14. In para 15 of the counter affidavit it was alleged that the abducted boy Yatindra Kumar was recovered from the possession of the petitioner and other co-accused persons after encounter with the police party even though there was no injury on either side and no weapon was recovered from the possession of the petitioner.
15. It was vehemently urged by the learned Chief Public Prosecutor that one co-accused Ashok who was also involved in crime No. 327 of 90 under Section 365, I.P.C. and crime No. 252 of 90 under Section 307, I.P.C. and was detained under National Security Act, had preferred a habeas corpus writ petition No. 10568 of 90 which was dismissed, hence this writ petition preferred by the petitioner also deserved to be dismissed. The learned counsel for the petitioner had submitted that certain grounds which were not taken by the petitioner of writ petition No. 10568 of 90 had been taken by the present petitioner. However, the dismissal of the earlier writ petition of the habeas corpus will not operate as a bar to the maintainability of this writ petition and in this connection our attention was drawn to the case of Sunil Dutt v. Union of India, reported in AIR 1982 SC 53 : 1982 Cri LJ 193, in which it was indicated that it was well settled that the dismissal of earlier writ petition of habeas corpus on September 24, 1980 would not operate as a bar to the maintainability of the present writ petition and no point in that behalf was raised before the Court by counsel for the respondents.
16. The learned counsel for the petitioner has further relied on the case of Gurmej Singh v. State of Punjab, reported in 1990 Criminal Law Journal 1413, in which Punjab and Haryana High Court ruled (at page 1415):
It was frankly conceded by the learned counsel for the petitioner that only those points which had not been dealt with in the earlier writ petition can be taken into consideration for the decision of the present writ petition. The preliminary objection raised on behalf of the State that no second writ petition is maintainable, in the instant case, because the objections now being raised by the petitioner were not specifically raised earlier in his first writ petition, cannot be legally sustained inasmuch as principle of constructive resjudicata would not be applicable to the present petition, as this petition relates to the valuable rights of liberty of the petitioner who is already under detention under the COFEPOSA Act and obviously may not be in a position either to receive proper leagal advice, or, to communicate all the necessary facts or circumstances to his counsel. Thus mere fact that specific plea has not been raised into earlier petition by a detenu under the COFEPOSA Act, in my view, would not operate as bar for raising such plea in his subsequent petition. Nor, in the facts and circumstances of the present case, the detenu can be penalised or debarred from raising an additional plea which has not been specifically dealt with in the earlier writ petition filed by him.
This is the first habeas corpus petition by the petitioner. Earlier writ petition which was dismissed was filed by a co-accused. Although the principle of constructive resjudicata is not applicable in the case of habeas corpus writ petition as indicated in the aforesaid case, present writ petition is maintainable also for the reason that the petitioner had not filed any other writ petition which was dismissed, hence the argument of the learned Chief Public Prosecutor regarding maintainability of the present writ petition fails.
17. A perusal of the counter affidavit indicates that the statement made by the co-accused Ishwar on the basis of which the petitioner was accused in Crime No. 327 of 90 under Section 365, I.P.C. was not furnished to the petitioner. It is also clear that the copies of the statement recorded under Section 161, Cr. P.C. in the aforesaid case were also not furnished to the petitioner. It was also admitted that the recovery memo pertaining to recovery of the boy was not furnished to the petitioner and aforesaid documents were not placed before the detaining authority. The argument of the learned counsel for the petitioner is two-fold firstly that as the aforesaid documents were very material for the purposes of making an effective representation and as they were not furnished the petitioner could not make an effective representation and secondly as the aforesaid documents were not placed before the detaining authority there existed no material or substantial material before the District Magistrate to make an order for detention of the petitioner and in absence of the aforesaid documents the order passed by the detaining authority was without application of mind.
18. In support of his contention, the learned counsel for the petitioner relied upon the case of Gopal Bauri v. The District Magistrate, Burdwan, AIR 1975 SC 781 : 1975 Cri LJ 643, wherein it was indicated that (at page 644 & 645 of Cri LJ 1975) :
We, however, find from paragraph 5 of the counter-affidavit submitted by the Deputy Secretary, Ministry of Commerce, Government of India, who was the District Magistrate of Burdwan at the relevant time the following statement :--
I further say that having regard to the nature of the acts committed by the detenu (as disclosed in the grounds furnished to the detenu), I was bona fide satisfied that the said acts were sufficient for making the detention order. Both the acts stated in the grounds of detention were committed by the detenu along with his associates in quick succession in course of three successive days....
The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely, 20/21-3-1973. Even giving some allowance to the affidavit of the District Magistrate it may be that the "three" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of "one of your associates on 23-3-1973" mentioned in the second ground. Even so, it was absolutely necessary to communicate to the detenu the name of the particular associate from whose possession the recovery of the stolen articles, the subject matter of the thefts disclosed in the two grounds, was made. Since it is clear from the District Magistrate's affidavit that the recovery of the stolen articles from one of the detenu's associates weighed with him in making the impugned order, the petitioner should have been apprised of that material fact in a specific manner the least of which was to furnish the name of the associate. It may be that omission to give names of indeterminate associates who run away after committing illegal acts at dead of night may not be of consequence but here the name of the associates from whom the stolen ball bearings were recovered was a definite fact known to the authority in order to connect the detenu with the particular thefts. Since the sin of the recovery from 'one of your associates' visits the detenu against whom a prejudicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. For this infirmity in the grounds the petitioner is denied the constitutional protection under Article 22(5) of the Constitution. It is submitted on behalf of the respondents that even a disclosure of the name of the associate would have evoked the same plea of denial by the detenu and, therefore, would be inconsequential. We are unable to accept such a submission. In case of preventive detention the duty to furnish the relevant material particulars in the grounds which reasonably influence the subjective satisfaction in making the order of detention is not to be judged by what the answer the detenu will make but whether the detenu will be able to make an effective representation against the order. The possibility or probability of detenu's ultimate denial of the allegations is not relevant in that context.
In this case either the District Magistrate did not know the name of the associate for which alone it was not possible for him to disclose it to the detenu or knowing the same he has refrained from furnishing it to the detenu. In the first case his subjective satisfaction was influenced by an unreal and non-existent material circumstance, the District Magistrate not having considered whether the associate could be in fact an associate to the detenu. In the second case a reasonable opportunity has not been given to the detenu to know a very relevant and material particular in the ground to afford making an effective representation against the order. In either case the order will be reckoned as invalid under the law.
19. In the case of Thokchom Gosai Singh v. State of Manipur, reported in 1985 Cri LJ 553 their Lordships of Gauhati High Court held (at page 556) :
The Court is entitled to examine what are the basic facts and materials which actually weighed with the detaining authority in reaching the requisite subjective satisfaction; and if the grounds of the order of detention reflected the existence of a document which has been taken into account by the detaining authority in reaching the requisite satisfaction. Such a document falls within the concept of the basic fact and it must be furnished to the detenu so as to enable him to make an effective representation under Article 22(5) of the Constitution.
Where one of the grounds of detention was the seizure of incriminating articles from possession of the detenu; then the factum of seizure of such articles was taken into consideration by the detaining authority in reaching the subjective satisfaction and non-supply of the copy of the seizure memo introduced a serious infirmity in the order of detention and hence the order is void. It cannot be said that the seizure list was not relied upon in reaching the subjective satisfaction.
20. In the case of Nandagopal Saha v. Union of India, reported in 1988 Supreme Court (Cri) 107(I) it was indicated :
We are afraid we have to allow the petition on the sole ground that copies of vital documents were not furnished to the detenu and thereby he was denied a fair opportunity of making a representation. We conider that the statement of Mrs. Jhunu Rani Saha, the statement of the petitioner dated February 19, 1986 and the documents which accompanied handwriting expert's opinion were vital to enable the detenu to make a proper representation. In that view of the matter, the petitioner is directed to be set at liberty forthwith. The writ petition is allowed accordingly.
21. In the case of State of U. P. v. Kamal Kishore Saini, 1988 SCC (Cri) 107 (II) : 1988 Cri LJ 405, it was indicated (at page 408) :
Against this order the instant appeal has been filed on special leave. The learned counsel appearing on behalf of the State-appellant, did not question before us the validity and legality of the finding of the High Court insofar as it relates to the non-supply of the relevant and vital materials, that is, the statements recorded under Section 161 of the Code of Criminal Procedure so far as ground No. 1 of the order of detention is concerned, to the detenus and also of the non-placement of the application made by the co-accused before the Judicial Magistrate to the effect that the detenus were falsely implicated in the said case as Vijai Pratap Singh was fired at by some unknown assailants and this fact was also mentioned in the bail application made by the detenus before the Court and the police report submitted thereon. The only challenge made on behalf of the appellant is to the finding of the High Court to the effect that the incidents referred to in the grounds Nos. 1 and 2 created only and order problem and it did not affect public order. In other words, the even tempo of the life of the community has not at all been affected by the said, incident. It is relevant to mention in this connection that the names of the detenus were, not mentioned in the FIR 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 FIR and also extract of the charge sheet and not the statements under Section 161 of the Code of Criminal Procedure. It is undisputed that the charge sheet was subsequently submitted in the court and the respondents were furnishd with the copies of the statements recorded under Section 161 of Cr. P.C. 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 bail 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 High Court, therefore, 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 a correct proposition of law. It is incumbent 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. This finding of the High Court is quite in accordance with the decisions of this Court in the case of Asha Devi v. K. Shivraj and S. Gurdip Singh v. Union of India. The impugned order of detention was clamped on November 28, 1985 and the period of one year as provided in Section 13 Of the National Security Act has also expired. Moreover, we have already upheld the finding of the High Court that the order of detention is illegal and bad for non-supply of vital documents to the detenus to enable them to make an effective representation against the grounds of detention and as such their right to make an effective representation as contemplated under Article 22(5) of the Constitution of India has been infringed rendering the impugned order as illegal and bad. Furthermore, the non-production of relevant materials i.e. the statement of the undertrial prisoners in their application in the Court that the detenus had been falsely implicated in the Crime Case No. 450 of 1985 under Section 307/34, I.P.C. as mentioned in ground No. 3 and also the statement to that effect in the bail petition and the police report thereon, before the detaining authority for his consideration before passing the order of detention, renders the order of detention invalid and illegal. It is relevant to mention here that the name of the petitioner was not mentioned in the F.I.R. in respect of the incident mentioned in Grounds Nos. 1 and 2 and the complicity came to be known only when co-accused Ishwar was arrested.
22. The statement of Ashok, a co-accused in case crime No. 327 under Section 365 on the basis of which the aforesaid case was instituted against the petitioner, the recovery memo pertaining to recovery of child Yatindra Kumar as well as the statement of the witnesses under Section 161, Cr. P.C. were vital material and their non-supply along with the grounds of detention to the petitioner to enable him to make an effective representation against grounds of detention amounted to infringment of his right under Article 22(5) of the Constitution of India. In absence of the aforesaid material the petitioner was undoubtedly prejudiced in making an effective representation to the State Government and renders the order of detention invalid and illegal.
23. Regarding the allegation of the petitioner that the comments made by the prosecution for disposal of the bail application of the petitioner in case Crime No. 327 of 90 under Section 365, I.P.C. were not produced before the detaining authority and not supplied to the petitioner, there is only a cryptic denial in the counter affidavit filed by the District Magistrate.
24. It has been averred in the report of the S.S.P. Ghaziabad that the petitioner was a hardned criminal and at that time he was lodged in detention but in case he would be released the public order would be disturbed and hence he deserved to be detained under the National Security Act. The petitioner after his arrest in the aforesaid two criminal cases preferred bail application. It is the general practice that the copy of the hail application is given to the Public Prosecutor and he obtains comments on the merits of the bail application. It was submitted by the petitioner that neither the comments made earlier were placed before the detaining authority nor its copy was furnished to the petitioner. The Senior Supreintendent of Police Ghaziabad had reported to the District Magistrate that the petitioner was a hardened criminal and deserved to be detained under the National Security Act. It was essential that the comments made by the police on this vital question must have been furnished to the petitioner to enable him to make an effective representation. This vital information that the petitioner was hardened criminal must have considerable importance for the District Magistrate Ghaziabad to have passed such an order. The comments of the police must have indicated as to whether the petitioner was convicted or wanted in any Case or not. This vital material was withheld. He only relied upon the report of the S.S.P. that the petitioner was a hardened criminal while passing the order of detention. The comments on the bail were all important material for the petitioner to make an effective representation to the State Government. Inspite of clear and categorical assertion made by the petitioner that the comments of the police on his bail application were not furnished to him there is only a cryptic denial by the District Magistrate. This denial cannot be said to be a proper reply. We do not consider it necessary to give our finding on this question for the reason that on certain other grounds raised by the petitioner this writ petition may be disposed of.
25. It is admitted fact that case crime No. 327 of 90 was registered against the petitioner only on the basis of letter given by the father of the child demanding ransom for the release of the child. There existed no material before the detaining authority as to who among the accused persons had written the said letter. The District Magistrate in his counter affidavit has stated that it was hot necessary to enter into with the enquiry as to whether the letter received by the father of the abducted boy was in the hand writing of the petitioner or the other accused, for the reason that the abducted boy was recovered from the possession of the petitioner and other co-accused after encounter with the police was itself sufficient ground on the basis of which he was subjectively satisfied that the detention of the petitioner under the provisions of the National Security Act was necessary in view of the fact that the abducted boy was recovered from the possession of the petitioner as well as the other accused persons certainty it was not necessary for the District Magistrate to enter into the enquiry as to who among the accused persons had written the said letter.
26. In the ground No. 1 of the detention order it was mentioned that the bail application preferred by the petitioner was rejected on 17-7-90 and thereafter the petitioner preferred the bail application before the District and Sessions Judge which was pending. In Ground No. 2 it was mentioned that in Crime Case No. 252 of 90 under Section 307, I.P.C. bail application was preferred by the petitioner on 7-8-90 which is pending in which 7-8-90 was fixed for hearing. The petitioner has averred in para 21 of his petition that the averment in grounds of detention that the bail application of the petitioner was pending and was fixed for hearing on 7-8-90 before the learned Sessions Judge Ghaziabad is contrary to record. The bail application was allowed on 17-7-90 by the learned Sessions Judge, Although in the counter affidavit-filed by the District Magistrate this fact was denied. In the rejoinder affidavit the petitioner again asserted that his bail application in case crime No. 252 of 90 was granted on 17-7-90 by the learned Sessions Judge, Ghaziabad and in this connection he annexed the order dated 17-7-90 passed by the Sessions Judge, Ghaziabad which reads as under :--
Heard the applicant's counter and the learned D.G.C. On the basis of the copy of the FIR annexed, it has been pointed out that none was injured. Let the applicant be enlarged on bail on his executing a personal bond in the sum of Rs. 4000/- and furnishing two sureties each in the like amount to the satisfaction of the Magistrate concerned.
27. In the supplementary counter affidavit filed by the District Magistrate this assertion on the part of the petitioner was admitted and the mistake occurring in the counter affidavit was regretted. It is pertinent to mention here that although the bail application was allowed on 17-7-90 but the ground of detention indicated that it was dismissed on 17-7-90. It is worthwhile to mention here also that the detention order was passed by the District Magistrate on 5-8-90.
28. In the case of Leena Anant Raut v. State of Maharashtra, AIR 1987 SC 137 : 1987 Cri LJ 323, a Division Bench of the Hon'ble Supreme Court indicated :
We do not think it necessary to look into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 and 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.
We hold that there was clear non-application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith. The appeal and the writ petition are allowed without any order as to costs.
29. In the case of Brahma Sakharam Patil v. N.C. Venkatachalam, Crime V-1987(2), page 4, their lordships of the Bombay High Court held that where the detention order is passed in ignorance of bail orders, there was clear non-application of mind on the part of the detaining authority and the same is liable to be set aside on this.
30. A similar view was taken in the case of G.K. Newar v. Union of India, reported in 1990 Criminal Law Journal NOC 101 (Delhi) 43.
31. In this case it is admitted position that the orders granting bail to the petitioner were passed on 17-7-90 and it is also more or less admitted that the orders of bail were not placed before the detaining authority. There is absolutely no mention in the grounds of detention order about the fact that the petitioner was undertrial prisoner as he was arrested in connection with two cases and he was released on bail on 17-7-90. The ground shows that the bail application was rejected on 17-7-90 which indicates total absence of application of mind on the part of the detaining authority while passing the detention order.
32. It was vehemently argued on behalf of the petitioner that the detaining authority passed the detention order after consideration of the communication received from the S.S.P. Ghazaibad in which the S.S.P. reported that the petitioner was a hardened criminal and the said fact was mentioned in the police report dated 27-7-90 and the same was also mentioned in the report dated 26-7-90 submitted by the C.O. The aforesaid reports were passed on the information received by the Station Officer of police station Kavi Nagar dated 25-7-90 in which he stated in column No. 9 that accused was a goonda and hardened criminal. He further averred that he indulged himself to the criminal activities and used to give shelter to criminals. It was further reported that the petitioner used to get money by kidnapping and it was his main business. It was also mentioned that the petitioner was a man of criminal habits. He committed gruesome acts. It was mentioned in the rejoinder affidavit that the aforesaid averments were extreneous touching the character of the detenu although they were not referred to in the grounds of detention but the same might have influenced the mind of the detaining authority to some extent one way or the other in arriving at subjective satisfaction to detain the petitioner. If those extreneous materials would not have been placed before the detaining authority, he would or would not have passed the order of detention.
33. In the case of Vashisht Narain Karwaria v. State of U.P. reported in 1990 A Cr R 325 : 1990 Cri LJ 1311, their lordships of the Hon'ble Supreme Court held (at page 1313) :
Mr. R.K. Jain the learned Sr. Counsel appearing on behalf of the appellant made a number of submissions at the hearing, one of which being that the sponsoring authority had placed certain irrelevant and extraneous matters before the detaining authority which should have influenced the mind of the detaining authority and stealthily crept into the decision of the said authority directing detention of the detenu and as such the impugned order is liable to be quashed. This argument was resisted by Shri Dalveer Bhandari, the learned counsel appearing on behalf of the respondents that the detaining authority had not considered any other material save the material referred to in the grounds of detention. Therefore, the short question for our consideration is whether the sponsoring authority has placed before the detaining authority any extreneous and irrelevant material which might have influenced the mind of the detaining authority. It cannot be disputed indeed there is none that the four documents referred to above, copies of which were furnished to the detenu have been placed before the detaining authority. It follows that the detaining authority passed this order only on consideration of the above said materials. In the confidential letter dated 31st March 1988 sent by the Senior Superintendent of Police, Allahabad to the detaining authority it is stated thus :
It is stated that the accused is a hardened criminal and has a gang. Such persons are committing henious crimes often which adversely affects the public order. There are many cases/offences against accused Vashishta Narayan registered in various police stations. It has become his habit to commit offences.... Hence I recommend that an order for at least 12 months detention be passed against Shri Bashishta Narayan Karvaria alias Bhukkhal son of late Shri Jagat Narayan Karvaria, aforesaid accused under Section 3(2) of the above mentioned Act.
The preamble of the letter submitted by the Station House Officer of Colonelganj, Allahabad dated 31-3-1988 to the Senior Superintendent of Police, Allahabad, reads as follows :--
It is submitted that Shri Vashishta Narayan Karvaria alias Bhukkal, the aforesaid accused is hardened criminal and has a gang. In his gang his son Kapil and two other big offenders Ram Chandra Tripathi and Santosh Kumar Tripathi son Gaya Prasad, resident of Ganspur, P.S. Pooramufti, District Allahabad, are included. These people often used to commit henious crimes, by which terror and fear prevails in the people. Many crimes are registered against Vashishta Narayan Karvaria in many Police Station.
The above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is as a hardened criminal, having a gang under his control of then committing henious crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences. No doubt, these averments are not made mention of into the grounds of detention. But can it be said that these materials placed before the authority might not have influenced the mind of the detaining authority in taking the decision of detaining the detenu? In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of the detenu. As rightly pointed out by Mr. Jain, had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order. Therefore, we have to hold that the detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order. There are several pronouncements of this Court, on this point, of which we will make mention of the following decisions :
Ram Krishna Paul v. The Government of West Bengal, 1972(1) SCC 570 : AIR 1972 SC 863, Smt. Pushpa v. Union of India, 1980 (Supp) SCC 391 : 1979 Cri LJ 1314, Merugu Satuanarayana v. State of Andhra Pradesh, 1982(3) SCC 301 : 1982 Cri LJ 2357, Mehboob Khan Nawab Khan Pathan v. Police Commissioner, Ahmdabad, 1989 (3) SCC 568 : 1989 Cri LJ 2111.
Mr. Dalver Bhandari relying on Section 5A of the Act urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extraneous materials were placed before the detaining authority since those alleged extraneous materials have no bearing on the validity of this impugned order which can be sustained on the material set out in the grounds of detention itself. Placing reliance on decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Govt. of Kerala, 1985 (Suppl) SCC 144 : 1986 Cri LJ 786, wherein it has been observed that the grounds under Article 22(5) of the Constitution do not mean mere factual inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. We are unable to see any force in the above submission. What Section 5A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, non-existence, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention. It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5(1)(a).
The next submission made by Mr. Jain on behalf of the detenu is on the basis of Ground Nos. VIII and VIII of the Special Leave Petition in which the appellant has expressed his grievance that he had been deprived of making an effective and purposeful representation as envisaged under Article 22(5) of the Constitution of India since no particulars or details are given in documents I and II enclosed with the grounds of detention in regard to the alleged 'many cases/offences' said to have been registered in various police stations against him and in regard to the allegations that he was hardened criminal and had a gang often committing henious crimes and that it had become the habit of the detenu to commit offences. In support of this contention reference was made to the decision in Mahboob Khan Nawab Khan Pathan's case (Ibid). No denial is made in the counter filed on behalf of the first respondent. This latter submission, in our opinion, cannot be rejected as having no force.
In the result, we without going into the merits of the other contentions allow this appeal, quash the detention order and direct the detenu to be set at liberty forthwith.
34. In the present case allegation against the petitioner is that the he is a hardened criminal and 'goonda' and used to collect ransom by kidnapping persons and possess illicit arms which he uses in the crime was totally incorrect and there existed no material before the detaining authority in support of the afore mentioned facts; and the detaining authority passed the detention order on the basis of the aforesaid facts. In para 21 of the counter-affidavit filed by the District Magistrate it was submitted that in the report of the S.S.F. Ghaziabad and S.O. Kavi Nagar it was mentioned that the petitioner was a hardened criminal. This it is evident that while passing the detention order against the petitioner the detaining authority relied upon the reports of the aforesaid police officers. From the aforesaid averments it is clear that the police authorities have placed before the detaining authority the aforesaid extraneous and irrelevant materials which might have influenced the mind of the detaining authority while passing the detention order. There is no denial of the fact that while passing the order of detention the detaining authority has not relied upon the aforesaid materials. If the aforesaid extraneous materials would not have been placed before the detaining authority he might or might not have passed the detention order. The order of detention thus suffers from the vice of consideration of extraneous materials which has vitiated the validity of the order. The petitioner was not furnished with the particulars or details of the aforesaid police reports. The aforesaid police reports are also too vague and do not provide particulars or details of the cases in which either the petitioner was convicted or wanted or which have been registered against him by the police. If any such material or details ever existed, it was incumbent upon the detaining authority to have furnished to the petitioner the particulars thereof to enable him to make an effective representation. Admittedly no such material, particulars or details were ever furnished to the petitioner as a result of which he was prejudiced in making an effective representation to the authorities. The order of detention suffers from the vice of the consideration of extraneous material and thus the validity of the detention order is totally vitiated.
35. Relying upon several cases of this Court as well as of 'Hon'ble Supreme Court it was next urged by the learned counsel for the petitioner that the case did not relate to the maintenance of public order, for the only reason that a boy was abducted and assault was directed against the police officers who went to free the boy from the custody of the petitioner and his accomplices. It was purely a law and order problem and the same could not said to be an activity prejudicial to maintenance of public order. The allegations in the ground of detention do not lead to apprehension that even the law of community would be endangered and hence the detention of the petitioner under the National Security Act was not justified.
36. In view of what has been said above we have already held that the detention of the petitioner under the National Security Act was vitiated, there existed no reason for us to express our opinion on this point.
37. In view of what we have indicated hereinabove the writ petition deserves to be allowed and is accordingly allowed and a writ in the nature of certiorari is issued quashing the detention order dated 5-8-90 contained in annexure No. 1 passed by the District Magistrate, Ghazaibad against the petitioner. A writ in the nature of mandamus is also issued directing the opposite parties to release the petitioner forthwith if not required in any other case.