Allahabad High Court
Wasi Thru. Mohd. Rafi vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 3 July, 2017
Bench: Ramesh Sinha, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 9 Case :- HABEAS CORPUS No. - 26537 of 2016 Petitioner :- Wasi Thru. Mohd. Rafi Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, & Ors. Counsel for Petitioner :- Rajendra Singh Chauhan Counsel for Respondent :- Govt. Advocate,A.S.G,Shreeprakash Singh With Case :- HABEAS CORPUS No. - 26542 of 2016 Petitioner :- Shafi Thru. His Brother Moh. Rafi Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, & Ors. Counsel for Petitioner :- Rajendra Singh Chauhan Counsel for Respondent :- Govt. Advocate,A.S.G.,Shreeprakash Singh Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Rekha Dikshit,J.
1. The above-mentioned writ petitions are directed against the detention order No.1667 and 1668 dated 14.07.2016 passed by District Magistrate, Sambhal arising out of the same incident dated 19.06.2016, hence, both the petitions are being considered and dealt with simultaneously.
2. Heard Sri Rajendra Singh Chauhan, learned counsel for the petitioner, Sri R.K.Dwivedi, learned AGA for the State and Sri Shreeprakash Singh, learned counsel appearing for respondent nos. 2,3 & 4.
2. Counter and rejoinder affidavits have been exchanged between the parties.
3. This habeas corpus writ petition has been filed with a prayer to issue a writ, order or direction in the nature of Habeas Corpus commanding and directing the opposite parties to release the petitioner forthwith and quash impugned order dated 14.7.2016 passed by the District Magistrate, Sambhal, approval orders dated 25.7.2016, 30.8.2016, 27.7.2016 and 6.10.2016 passed by the State Government rejecting the representation of the petitioner.
4. The brief facts of the case are that the complainant Sub-Inspector- Brijpal Singh received an information on telephone that some persons are slaughtering cow or its progeny near the temple situated at main road in village Dehva and there is apprehension of communal riots amongst the people present on the spot whereupon the police rushed to the place of alleged occurrence where the police personnel witnessed that some persons were slaughtering the cow or its progeny. Police personnel apprehended three persons including Wasi and Safi while other four persons fled away from the scene of occurrence. On search being made upon the allegedly accused persons the police recovered one knife from the possession of both the petitioners. Thereafter a First Information Report was lodged at the police station Nakhas, District Sambhal on 19.6.2016 by the Sub-Inspector, Brijpal Singh against the petitioners Wasi and Safi in case crime no.382 of 2016 under sections 147, 148, 149, 307 I.P.C.
5. The District Magistrate, Sambhal (respondent No.2) vide order dated 14.7.2016 passed an order of detention of the petitioner under section 3(2) of the National Security Act, 1980 (Act no.65 of 1980) (hereinafter referred to as the 'Act') which was approved by the State Government vide its order dated 30.8.2016 and detenue is detained in jail for three months and subsequent order dated 6.10.2016 passed by the State Government extending the period of detention for six months and the order dated 14.7.2016 Passed by the District Magistrate, Sambhal and the order dated 6.10.2016 passed by the Central Government rejecting the representation of the petitioner.
6. The State Government (respondent No.1) approved the order of detention on 30.8.2016.
7. The State of U.P. (respondent no.1) has submitted its counter affidavit on 19.11.2016/23.11.2016 stating therein that the detention order dated 14.7.2016, provides grounds for detention and all other connected documents, forwarded by the District Magistrate,Sambhal. After examining every aspect of the case of petitioner in detail, the State Government approved the order of detention on 30.8.2016. The approval of the detention order was communicated to the petitioner through the district authorities by the State Government as required under section 3(4) of the Act.
8. It is further stated that a copy of detention order, grounds of detention and all other connected documents, received from the District Magistrate, Sambhal were also sent to the Central Government from the date of approval by the State Government as required u/s 3(5) of the Act.
9. The case of the petitioner was referred to the U.P. Advisory Board (Detentions), Lucknow by the State Government by forwarding the detention order, grounds of detention and all other connected papers well within three weeks from the date of his actual detention as required u/s 10 of the Act.
10. Learned counsel for the petitioner submitted that the petitioner is a labourer and is not involved in the alleged incident. It is only due to local party politics he has been falsely implicated in the present case. It is next contended that the alleged incident has taken place on 19.6.2017 whereas th impugned detention order was passed on 14.7.2016 which was approved by the State Government on 30.8.2016 beyond the limitation period prescribed under section 3(4) of the National Security Act. There is no explanation for the delay of about one month in passing the order on 14.7.2016. and further delay of about one and half months in passing the approval order dated 30.8.2016.
11. The petitioner was granted bail by the court below on 19.7.2016 in case crime no.382 of 2016. The petitioner was also granted bail by this Court in case crime no.384 of 2016 on 1.9.2016. It is also stated that there is no public witness of the alleged occurrence except the hearsay witnesses. The petitioner has no criminal antecedent.
12. A counter affidavit has been filed on behalf of District Magistrate, Sambhal (respondent no.2) stating therein that on the basis of report, forwarded by Dy. Superintendent of Jail, Sambhal, after being subjectively satisfied upon due consideration over all the facts and circumstances and the said report as well as other materials placed before him, he took preventive action against the petitioner under Section 3(2) of the Act on 14.7.2016. The respondent no.2 also considered immense possibility of petitioner being released on bail and upon release, his further indulgence in similar type of activities, which will be prejudicial to the public order, with a view to prevent the petitioner from acting in any manner prejudicial to maintenance of public order, the petitioner is detained under Section 3(2) of the Act and there is no violation of any fundamental right as provided in Constitution of India.
13. A counter affidavit has been filed on behalf of Dy. Superintendent of Jail (respondent no.3)stating therein that the detention order dated 14.7.2016 along with grounds of the detention with all relevant materials was served to the petitioner through the jail authorities.
14. A counter affidavit has been filed on behalf of Union of India (respondent no.4) stating therein that a report as envisaged u/s 3(5) of the Act was made to the Central Government, i.e., Ministry of Home Affairs by the Government of Uttar Pradesh. The said report was received and considered by the Joint Secretary (Internal Security-II), who has been delegated power under sub section 5 of Section 3 of the Act by the Union Home Minister for the same and found no reason to interfere with the said detention order.
15. The scope of judicial review, where the provisions of Section 3(2) of the Act is involved, is only to the extent that as to whether the subjective satisfaction arrived at by the District Magistrate in passing the detention order, is based on relevant material or not. With this prelude, we have to examine the case of the petitioner.
16. To challenge the order of detention three points have been canvassed before this Court, they are:
(I) Firstly, it is urged that the impugned order dated 14.7.2016 has been passed in an arbitrary manner without application of mind by the detaining authority. He has been falsely implicated in the present case The detention order has been signed in mechanical manner and the grounds mentioned are nothing but exact reproduction of the report of the sponsoring authority except with minor and insignificant changes.
(ii) Secondly, it is further argued that the detention order is discriminatory in the sense that out of several persons alleged to be involved in the aforesaid case, only petitioner, i.e., detenue has been selected to be detained under the Act.
(iii) Thirdly, it has been submitted that on the basis of information furnished by the informer to the Investigating Officer. He was neither arrested on the spot nor any incriminating article was recovered from his possession but for one knife. It is apparent from the detention order that the case registered against the petitioner does not affect any public order and it is only law and order situation, as such, the impugned order is liable to be quashed.
17. We have considered the submissions advanced by the learned counsel for the parties and perused the record.
18. The first contention of learned counsel for the petitioner pertains to non application of mind by the detaining authority while passing detention order against him.
19. The argument regarding non-application of mind by the detaining authority, while passing detention order against the detenue, is to be considered by comparing the dossier submitted by the sponsoring authority and the detention order passed by the detaining authority. To substantiate this submission learned counsel for the petitioner has placed before us the report of the sponsoring authority and the grounds served on the petitioner and submitted that grounds are nothing but exact reproduction of the report of the sponsoring authority except with minor and insignificant changes.
20. Learned AGA, on the other hand, has submitted that there is no question of any casual exercise or non-application of mind in passing the detention order by the detaining authority. The grounds are also not carbon copy of the dossier. The detaining authority has though to some extent borrowed the language for narrating the incident, there are changes which indicate that he considered the whole incident and its implications before passing the impugned order.
21. Perusal of the proposal made by the sponsoring authority and the detention order passed by the detaining authority would show that in the detention order the matter appears to be the same. This has been emphatically pointed out by learned counsel for the petitioner alleging that the matter is verbatim reproduction of the proposal of sponsoring authority. The opinion of the detaining authority clarifies his application of mind in considering the facts and circumstances of the case, mere similarity of language and expression do not amount to non application of mind. The bare perusal of both the documents do not indicate the verbatim reproduction of dossier in the detention order.
22. It is evident from the perusal of impugned order that the language has been borrowed at number of places but the changes at different places indicate proper application of mind, after consideration of the facts and circumstances of the case and it cannot be said that the detaining authority has passed the order in a mechanical manner in a casual exercise. The contention of learned counsel for the petitioner appears to be misconceived, vis-a-vis, the facts and circumstances of the present case.
23. The second ground relates to the discriminatory approach of the detaining authority while passing detention order against the detenue.
24. The learned AGA has referred number of decisions on the issue of parity to be claimed by the detenue.
(i) In the case of Chandresh Paswan Vs. State of U.P. and others, (ACC) Habeas Corpus Writ Petition No.10215 of 1998, wherein it has been observed that the order of preventive detention cannot be challenged on the ground of parity.
(ii) In the case of Vinay Kumar Sahu Vs. Sate of U.P. and others, 2003 (46) ACC 1012, Criminal Misc. Habeas Corpus Petition No. 5837 of 2003 with 6804 of 2003 and 6807, 6809 & 6811 of 2003, wherein it has been observed:
"Therefore, it is for the detaining authority to satisfy to which of the particular person out of those involved in an incident is liable to be detained under preventive detention and if he is satisfied that detention of a particular accused is essential for maintenance of public order etc., he may pass detention order against that particular accused alone. And if he is satisfied that there was no real possibility of indulging co-accused in similar activities prejudicial to the maintenance of public order etc. he is not under obligation to pass detention order against them. Preventive measures can be adopted against a particular person and it is not necessary to take it against all accused of a particular case. Therefore, the persons against whom detention order was passed on satisfaction of the detaining authority as narrated above cannot claim parity with those against whom no such order was passed."
(iii) In the case of Suresh Chandra Katare Vs. Sate of U.P. and others, (ACC) 2001 Cri. L. J. 4777, Habeas Corpus Petition No. 2884 of 2001, wherein it has been observed:
"The first ground that the order of detention of the petitioner is required to be revoked on the ground of parity is not available to the petitioner. It is well established proposition of law that in a case of detention, the plea of parity cannot be canvassed as sometimes, the grounds of detention may be entirely different or revocation of detention order is necessitated on account of the fact that the Advisory Board has not found sufficient ground for the detention. On this point, there is a Full Bench decision of this Court in Chandresh Paswan Vs. State of U.P. 1999 A.J.C. 327 (1999 All. L.J. 1167)."
25. It is apparent from the foregoing discussions that in the case of detention, parity cannot be canvassed, as ground for detention made is entirely different in different cases. It is the subjective satisfaction of the detaining authority that the detention of the petitioner was essential for maintenance of public order and has nothing to do with the parity of other person.
26. Therefore, it is for the detaining authority to satisfy to each of the particular person, out of those involved in an incident, is liable to be detained under preventive detention. If he is satisfied with detention of a particular accused is essential for maintenance of public order, he may pass detention order against that particular accused alone and if he is satisfied with, there is no real possibility of indulging co-accused in similar activities prejudicial to the maintenance of the public order etc., he is not under obligation to pass detention order against them. Preventive measures can be adopted against a particular person and it is not necessary to take it against all accused of a particular case, therefore, the person against whom detention order was passed on satisfaction and the detaining authority has narrated the same, he cannot claim parity with those against whom no such order was passed.
27. The third ground assailed before us refers to false implication of the petitioner in the case registered against him under Cow Slaughter Act and also on the premise that it does not affect any public order but it relates only to law and order. Now the concept of public order and law and order is to be applied on the facts and circumstances of the present case, in which number of cows were slaughtered in an open place in public view. This issue has been dealt with in the following referred decisions:
In the case of Kanu Biswas Vs. State of West Bengal, (1972) 3 SCC 831, Writ Petition No.46 of 1972, wherein it has been observed:
"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 tranquility of the society undisturbed."
28. Learned A.G.A. placed reliance on following cases dealing with the issue of public order and law and order:
(i) In the case of Guddu Panchhi Vs. District Magistrate, Kanpur Nagar and others, 2004 (49) ACC 660, Habeas Corpus Petition No. 45176 of 2003, wherein it has been observed:
"Obviously, it is the reaction or fall out of an incident in the society which is determinative as to whether it was only disturbance of law and order or that of public order. In the present case, there was a live link between the alleged criminal activity of the petitioner of cow slaughtering and the purpose of detention. The act was clearly prejudicial to public order as is borne out from the grounds of detention reiterated by respondent No.1 District Magistrate, Kanpur Nagar in his counter affidavit. The act of the petitioner offended the religious feelings of a sect of society venerating cow and its progeny, besides being in contravention of U.P. Prevention of Cow Slaughter Act. The incident disturbed the even tempo of the life of the society."
(ii) In the case of Tauqeer Vs. State of U.P. and others, 2002 (44) ACC 1088, Writ Petition (Habeas Corpus) No.4470 of 2002, wherein it has been observed:
"Under our Constitution freedom of religion has been guaranteed as a fundamental right. However the U.P. Prevention of Cow Slaughter Act bans the slaughter of cows and calves. The petitioner has no right to break the law and violate the above Act. It may be mentioned that nobody has right to do anything which may lead to communal tension in the country."
(iii) In the case of Shaukat Ali Vs. Union of India and others, 2002(45) ACC 1121, wherein it has been observed that cow slaughter affects public order because it is likely to incite communal tension. Hence, it is not merely a case of law and order.
29. Learned counsel for the petitioner has emphatically argued that the place of incident where cow was slaughtered is not a public place, as such, it cannot be treated as an issue of public order. It is the reaction or fall out of an incident in the society which is determinative, as to whether, it was only disturbance of law and order or that of public order. Admittedly, the cow slaughter in an open place may have offended the religious feeling of a society, it is, therefore, important to see the proportionality of the response to the act complained of and in view of this, the gravity of the act may be given a thought where the body parts of cow were lying open in public view. Where cattle has been slaughtered in public view, which may definitely lead to disturbance of the current life of the community, so as to amount to a disturbance of a public order, communal amity and harmony. Slaughter of cow hurts the sentiments of the Hindus which affects public order because it is likely to incite communal tension, hence, it is not merely a case of law and order but that of public order.
30. Learned counsel for the petitioner has referred following case laws:
(i) Bablu alias Kaunain through his friend Sikander Warsi vs. State of U.P. through its Pincipal Secretary, Department of Home, Lucknow & Orthers; (Habeas Corpus No. 5918 of 2016) order dated 19.10.2016.
(ii) Kamlesh Tiwari through its wife Smt. Kiran Tiwari vs. Union of India through Secretary Ministry of Home Affairs & Others (Habeas Corpus No.5369 of 2016) order dated 30.09.2016.
(iii) Cherukuri Mani wife of Narendra Chowdari vs. Chief Secretary, Government of Andhra Pradesh and others; (2015) 13 SCC 722 wherein it has been observed:
"Period of detention that may be imposed at one go - Mandatory review by Advisory Board to continue detention beyond first spell of three months - State Government, does not have power to pass a detention order to detain a person at a stretch for a period of 12 months."
In the instant case the detention order was approved by State Government vide order dated 30.08.2016 and the subsequent order extending the period of detention for six months is dated 06.10.2016 which do not conform with the view of the case law referred above.
31. For the reasons stated above, we conclude that, it cannot be said that there existed no sufficient material before the District Magistrate and he passed impugned order without application of mind in an arbitrary manner and casual exercise. Further, it is the subjective satisfaction of the detaining authority in passing detention order against a person and it is not incumbent upon him to pass the same order against all the accused. Lastly, it is the reaction of an incident in the society which is determinative of public order.
32. From the foregoing discussion, it is evident that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent it from doing so, it is not passed to punish a person for the act committed by him. The preventive decision is not punitive but it's purpose is to protect the person from repeating similar activities, which would be prejudicial to the maintenance of public order.
33. In view of what we have indicated hereinabove, we find no merits in the writ petition.
34. It is accordingly dismissed.
(Rekha Dikshit, J.) (Ramesh Sinha, J.)
Order Date :- 3.7.2017
Nitin Verma