Allahabad High Court
Ram Hari vs Union Of India & 3 Others on 17 May, 2018
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. 1 Court No. - 1 Case :- HABEAS CORPUS WRIT PETITION No. - 45131 of 2017 Petitioner :- Ram Hari Respondent :- Union Of India & 3 Others Counsel for Petitioner :- Sanjay Kumar Singh,Pankaj Kumar Asthana Counsel for Respondent :- G.A.,A.S.G.I. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Sanjay Kumar Singh, learned counsel for the petitioner, Sri Vikas Sahai, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
2. None appears on behalf of Union of India though the matter is taken up in the revised list.
3. This Writ Petition of Habeas Corpus has been filed by the petitioner with a prayer to issue direction to the respondents to set him at liberty and the detention order dated 2.6.2017 be set-aside which has been passed under Section 3(2) of the National Security Act, 1980 (hereinafter to be referred as N.S.A.) by respondent no.3.
4. The petitioner is Pradhan of Gram Panchayat, Bhankarpur Basela, Vikaskhand Raya, District, Mathura since 2010 and is a peace loving and law abiding person having no criminal history of any kind prior to 17.02.2017. On 17.02.2017, Virendra Kumar, Manager, T & I Refinery, Mathura lodged an F.I.R. against some unknown persons under Sections 15/16 under Petroleum and Mineral Pipe Lines (Amendment Act) 2011 under Sections 3 and 4 of Prevention of Damages to Public Property Act, 1984 under Sections 3 and 4 of Explosive Substances Act, 1908 and under Sections 379, 427 and 411 I.P.C., registered as Case Crime no. 187 of 2017 at Police Station Highway, District Mathura. In the said F.I.R., it was mentioned that a tunnel was made inside an unknown house through which oil pipeline was passing behind the area of R.K. Puram (A.T.V.) with the purpose of pilferage of petroleum substance (oil). The alleged place of theft came into light in the night of 16.02.2017 and at some distance from the said place of occurrence, an oil filled tanker was also found standing but none was standing nearby the same. Thereafter, taking benefit of this unknown F.I.R., two local political leaders and one anti-social element, Krishna who were harbouring ill-will towards the petitioner and his family tried to implicate the petitioner by exercising their undue influence over police administration. The said Krishna @ Krishna Veer is a hard-core criminal involved in several criminal cases against elder brother of whom, the petitioner had lodged an F.I.R. on 27.03.2013 along with his associates being case crime no. 121 of 2013 at P.S. Raya, District Mathura under Sections 147, 323, 307, 504 and 506 I.P.C. in which charge-sheet was submitted against the accused persons. The uncle of petitioner, Veer Pal had also lodged an F.I.R. on 8.11.2013 against Krishna and his associates being Case Crime No. 515 of 2013 P.S. Raya, District Mathura under Sections 147, 148, 149, 452, 323, 504, 506, 307, 302 and 7 Criminal Law Amendment Act.
5. One Shyam Sunder Sharma, a sitting M.L.A. from Maath District Mathura had contested an election on B.S.P. symbol against whom, the relative of the petitioner Yogesh Noharwar had contested on symbol of Lok Dal, whom the petitioner had supported, which led to Shyam Sunder Sharma having ill-will against the petitioner.
6. One Jagdish Nobhar had also contested an election of M.L.A. from Maath constituency on joint symbols of Samajwadi Party and Congress and since the petitioner did not support him, being pradhan of Gram Panchayat Bhankarpur Basela, he also started having enmity towards him and the above named hard-core criminal Krishna is also tenant of Jagdish Nobhar against whom, the uncle of the petitioner had lodged an F.I.R. of murder case.
7. The aforementioned persons being influential, manipulated and got the name of petitioner inducted as one of the accused in Crime No. 187 of 2017 mentioned above by getting false statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. of some persons.
8. In the wake of this enmity and in collusion with police, the petitioner was lifted from the place where marriage of his niece was being solemnized and was implicated in the aforesaid case falsely showing police-encounter.
9. Apart from the above case, the petitioner has another case registered against him being Crime No. 195 of 2017 under Sections 147, 148, 149, 323, 353 and 307 I.P.C., P.S. Highway, District Mathura wherein he has been bailed out from the court of Sessions on 21.04.2017; in the other case being Crime No. 196 of 2017 under Section 30 of Arms Act at the same police station, he has also been granted bail from the court of Sessions, Mathura.
10. Further, it is mentioned that the police has shown to have recovered at his pointing out three empty canes, three empty drums and five pipes on 20.02.2017 despite there being no independent witness only to falsely implicate him in the afore-mentioned Crime Number. Subsequently, he was taken on police remand for four days from 26.02.2017 to 1.3.2017 to fabricate and set-up a concocted story and it was shown that he had confessed his guilt to the effect that he had played role along with co-accused in the aforementioned case. Subsequently it was also falsely alleged that at his pointing out four tankers were identified and recovered despite the fact that they did not belong to the petitioner and the evidence revealed that they belonged to Krishna @ Krishna Veer. Further, it is mentioned that a large number of persons have given affidavits before S.S.P., Mathura to the effect that petitioner had been falsely implicated due to high handedness of the concerned police persons on 25.02.2017. Pursuant to the said affidavits and allegations and high handedness by police personnel in-charge of police station, P.S. Highway, Mathura in order to save his skin, sent a proposal dated 27.5.2017 on wrong facts to the Circle Officer, Refinery, Mathura for detaining the petitioner under N.S.A. who in turn submitted his recommendation on 27.5.2017 to the Additional S.P. City, Mathura. Where-after the A.S.P., City, Mathura also sent his recommendation dated 27.5.2017 to S.S.P., Mathura, who in turn sent his recommendation on 28.5.2017 to the District Magistrate, Mathura. Thereafter, the D.M., Mathura without applying his independent mind, passed the impugned detention order dated 2.6.2017 under Sections 3 (2) of N.S.A. against the petitioner which has annexed with it grounds of detention.
11. It is further mentioned that on 5.06.2017, the petitioner had moved a representation before respondent no.4/Superintendent, District Jail, Mathura for being sent to the District Magistrate and the same was sent to D.M. on 7.6.2017 but the same was illegally rejected vide order dated 12.06.2017. It is further mentioned that petitioner had also given his representation dated 5.6.2016 to be sent to respondent nos. 1 and 2, i.e. Union of India and State of U.P. respectively but no information was given to him as to what orders had been passed on his representations.
12. Further, it is mentioned that on 6.7.2017, the petitioner was produced before Advisory Board, Lucknow for personal hearing but no order of Advisory Board was served upon him and the said Board illegally approved the detention order dated 2.06.2017 and, thereafter, on 17.07.2017, the State Government had passed order for detaining the petitioner for a further period of three months from 2.06.2017 and, thereafter, the State Government further extended the detention for a further period of six months from 2.06.2017 vide order dated 24.08.2017. Further it is mentioned that a joint representation was moved by several Gram Pradhans regarding false implication of the petitioner before the Hon'ble Chief Minister and on 6.09.2017, the father of the petitioner had also sent a representation by registered post regarding petitioner's false implication to the Prime Minister of India, Chairman, Human Rights Commission, Chief Minister, I.G. Lucknow, D.M., Mathura, S.S.P.
13. Further, it is mentioned that on 4.9.2017 during his detention, a case under U.P. Gangster and Anti Social Activities (Prevention) Act was also registered against him with mala-fide intention. The petitioner is under wrongful detention since 2.06.2016 in violation of Section 3(5) of N.S.A. because the detention order dated 2.06.2016 was not communicated by the State Government within 7 days to the Central Government with grounds of detention etc. Further, on approval of the said detention order by State Government on 12.06.2017, the matter was not reported to the Central Government together all the grounds etc. within 7 days from the grant of approval. The detention order dated 2.06.2017 was approved by respondent no.2 after about three and half months from the date of F.I.R. dated 17.02.2017 without applying independent mind in mechanical manner without recording his satisfaction in terms of Section 3 (2) of N.S.A. as sponsoring and recommending authorities did not place the correct facts and materials in respect of petitioner before the respondent no.3 otherwise the subjective satisfaction of respondent no. 3 for the purpose of detention, would have been otherwise. The presumption drawn by respondent no.3 from material evidence on record is wholly perverse and non-sustainable in the eyes of law except containing bald statement that he would repeat criminal activities after coming out of jail. There was no credible information or material or cogent reasons apparent from the face of record to warrant an inference that if the detenu would be enlarged on bail, he would indulge in such criminal activities which would be pre-judicial for the maintenance of supplies of essential commodities, hence, the impugned detention order stand vitiated. It is further submitted that it is also apparent that the said order has been passed for the purpose of circumventing the expected bail order to the petitioner and, therefore, the same is not sustainable and is liable to be set-aside.
14. It is further urged that the detaining authority has not recorded any specific reason or compelling necessity to pass the preventive detention order, even though the petitioner was held in jail. Even this fact was not taken into consideration by the respondent no. 3 that prior to 17.02.2017, no case had been registered against the petitioner and that he has been falsely implicated in Case Crime No. 187 of 2017 pursuant to the F.I.R. dated 17.02.2017 in which his name was not mentioned as an accused. The petitioner is neither owner of the plot (on which house in question is situated) nor owner of the vehicle alleged to be involved in transportation of oil nor is he connected in any other manner.
15. In opposition to the prayer of quashing the detention order, the respondent nos. 2, 3 and 4 have filed counter-affidavits denying any lacuna to be there in passing the impugned order and it is stated that the time period prescribed at each stage has been strictly adhered to in dealing with the matter at hand. Further it would be appropriate to mention the details given in those counter-affidavits avoiding repetition as in all these affidavits, several facts have been repeated.
16. From the side of respondent no.2, it is stated that the detention order dated 2.06.2017 along with grounds of detention and other connected documents were forwarded by the D.M., Mathura vide letter dated 2.06.2017, which was received by the State Government on 5.06.2017 and after examining every aspects of the case, the State Government approved detention order on 9.06.2017 which was communicated to the petitioner through District Authorities through radiogram and letter both dated 12.06.2017 within a period of 12 days from the date of detention order as required under Section 3(4) of the Act. It is further stated that a copy of the said detention order along with grounds of detention and connected documents received from D.M. were also sent to the Central Government by Speed Post on 14.06.2017 within 7 days from the date of approval by the State Government in consonance with Section 3(5) of the Act. Further it is mentioned that the petitioner was detained under the Act on 2.06.2017 i.e. on the date of service of detention order upon him and his case was referred to U.P. Advisory Board (Detentions), Lucknow by the State Government by forwarding the detention order and all connected papers on 12.06.2017 well within three weeks' time from the date of his actual detention in consonance with Section 10 of the Act. Further it is mentioned that a copy of the petitioner's representation dated 7.6.2017 along with para-wise comments were received by the State Government on 14.06.2017 along with a letter of D.M., Mathura dated 12.06.2017 and State Government had sent copies of the representation with para-wise comments there-on to Central Government, New Delhi and also to U.P. Advisory Board (Detentions) vide its separate letters dated 15.06.2017 and thereafter, the State Government examined the representation on 16.06.2017 (17.06.2017 and 18.06.2017 being holidays), thereafter, the Under Secretary had examined representation on 19.06.2017, Special Secretary examined it on 20.06.2017 and submitted it to the Secretary. Secretary, Government of U.P. examined it on 21.06.2017 and, thereafter file was submitted to higher authorities for final orders of the State Government and after due consideration, the said representation was finally rejected by State Government on 21.06.2017. Further, It is mentioned that the information of the rejection of the representation was communicated to the petitioner through District Authorities and by the State Government through radiogram dated 22.06.2017. It is further submitted that U.P. Advisory Board, Lucknow vide letter dated 3.7.2017 informed the State Government that the cases of the petitioner would be taken up for hearing on 6.7.2017 and directed the petitioner to be informed that if he desired to attend the hearing along with his next friends, he could do so and the said fact was, accordingly, communicated to the petitioner through District Authorities by the State Government by the radiogram dated 4.7.2017. Pursuant to the same, the petitioner appeared for hearing before U.P. Advisory Board on 6.7.2017 on which date the petitioner was given personal hearing and its report along with opinion that there was sufficient cause for his preventive detention under the Act was rendered. The said report and record of the case were received by the State Government on 13.07.2017 through letter of Registry, U.P. Advisory Board being letter dated 12.07.2017 well within seven weeks time from the date of detention of the petitioner as provided under Section 11(1) of the Act. It is further mentioned that on receipt of the matter, the State Government once again examined afresh the entire case of the petitioner along with opinion of U.P. Advisory Board and took a decision to confirm the detention order and also for keeping him under detention for a period of three months at first instance from the date of actual detention of the petitioner i.e. since 2.6.2017. The orders of the first detention were issued by the State Government through radiogram & letter both dated 17.7.2017. Further, it is mentioned that on the report / recommendation dated 9.8.2017 received from the District Magistrate, Mathura and after consideration of the facts and circumstances of the case, the State Government was satisfied that it was necessary to extend the above detention period of three months. The State Government amended the above order by extending the detention for six months since 2.6.2017. Accordingly, the above detention order dated 24.08.2017 was passed extending the detention for six months from the actual date of detention i.e. since 2.06.2017. Further it is mentioned that on the report/recommendation dated 9.11.2017 received from D.M., Mathura and after consideration of facts and circumstances of the case, the State Government was satisfied that it was necessary to extend above detention period for six months and, therefore, vide order dated 14.11.2017, petitioner's detention was extended for nine months from the date of actual detention i.e. since 2.06.2017.
17. In counter-affidavit filed by respondent no.3, D.M., Mathura, it is mentioned that the detention order dated 2.6.2017 passed on the basis of grounds of detention annexed there-with, was passed by him after going through entire matter available on record and recorded his subjective satisfaction in respect of the grounds of detention. As per the report of Sponsoring Authority, the activities of the petitioner/detenu were prejudicial to the maintenance of public order, therefore, he was required to be detained under the Act. There were three criminal cases pending against the petitioner and he is a man of criminal nature. Thorough investigation was made by the Investigating Officers of Case Crime nos. 187 of 2017, 195 of 2017, 196 of 2017, however, in case crime no. 195 of 2017, the petitioner was enlarged on bail from Sessions Court on 21.04.2017 and in Crime no. 196 of 2017, he was enlarged on bail from Sessions Court on 25.04.2017, while charge-sheet was submitted in Crime no. 187 of 2017. He had received a report dated 27.05.2017 through proper channel from sponsoring authority / S.H.O., P.S. Highway, District Mathura in initiating proceedings under the Act against the petitioner in which it was specifically stated that the appeal of the petitioner was pending before High Court in Crime no. 187 of 2017 under sections 15/16 of Petroleum and Mineral Pipelines (Amendment Act) 2011, under section 3 & 4 Prevention of Damage to Public Property Act, 1984, under Section 3 & 4 Explosive Substances Act, 1908 and Sections 379, 427 and 411 I.P.C., P.S. Highway District Mathura.
18. Criminal Misc Bail Application no. 16555 of 2017, Ram Hari Vs. State of U.P. has been filed by the petitioner before the High Court on 30.05.2017. It is further mentioned by him that approval was not granted by the State Government on 12.06.2017 within 30 days from the date of passing of detention order. His representation was received in the office of respondent no.3 on 7.06.2017 and the same was rejected on 12.06.2017. His representation was also considered by the respondent no.1, Union of India and it was rejected on 28.06.2017 which was informed through jail authorities to the petitioner on 29.06.2017. Further it is mentioned that the detention order has been passed to circumvent the bail orders dated 21.04.2017 and 25.04.2017 which were passed by the lower court. In-fact, the detention order has been passed, though, bail application of the petitioner in Case Crime no. 187 of 2017 had been filed before the High Court.
19. Respondent no. 4, Superintendent District Jail, District Mathura has also filed counter-affidavit in which the same facts have been repeated which have already been mentioned above in the affidavit of the two respondents.
20. From the side of petitioner, four rejoinder-affidavits have been filed, against three counter-affidavits filed by the respondent nos. 2 to 4 and in all of these rejoinder-affidavits, the same facts have been reiterated which have been stated in the petition.
21. Before making analysis of the respondent's contentions, it would be pertinent to refer here the grounds which have been annexed with the impugned detention order:-
22. The petitioner is a notorious theft of oil who earlier was a driver and at present is Pradhan and because of his being of criminal disposition with a view to earning illegal money, he formed an organized gang of criminal minded persons namely Tarvinder Jeet Singh, Manoj Goel, Kuldeep, Ravi alias Ravindra, Ravi alias Bicchi, Suresh Pradhan, Devujat, Krishna, Mistri, Ram alias Sonu, Chetan, Gaima, Ajay, Gopal, Sujit Pradhan, Vinod Gurjar, Rajesh and Vishnu, which was indulging in obstructing supplies of petroleum substances by laying a pipeline which passed through a house which was embedded 15 ft. deep and was passing through a tunnel of 70 metres and the same was tapped by installing valve in the said pipeline. The said theft caused irreparable loss to the National Economy which hindered supplies of Petroleum substances not only to the transportation of the land but also to the transportation of air and other machineries. Sri Virendra Kumar, Manager of Tea and I Refinery, Mathura noticed on 17.2.2017 that the northern side of piplenine of Mathura Refinery by which the petrolium substances were transmitted from Mathura to Jalandhar, which was going behind Ram Krishna Vihar Colony (ATB), a tunnel of 9.1 Km. was made to go through an unknown house and in the pipeline, a valve was fitted for pilferage of the oil. On the spot, oil tanker was also standing. This information was passed on by him to P.S. Highway, pursuant to that Case Crime No. 187 of 2017 was registered and after investigation having been made sufficient evidence was collected against the petitioner. He was arrested during investigation and when he was interrogated he revealed that he is Gram Pradhan and had built the said tunnel with the help of his companions with a view to pilfering the oil from the said pipeline which comprised the above-mentioned persons. The plan of said conspiracy was hatched two years back concerning which he had got a sale deed of plot executed in the name of Ravi s/o Bhagwan Das whereon after raising the boundary wall, a room was built and inside that 15 Ft. deep and 17 meters long tunnel was built and by calling a mechanic by the name Imran and a valve was got fitted and in this entire operation an amount of Rs. 18 Lacs approximately was spent. The said petroleum substance was transported in tankers and used to be sold by at various petroleums pumps through Oil Mafia who owned various petroleum pumps. The petitioner had admitted his guilt that the police had recovered two containers of 50 litre, each filled with oil, from his vehicle and from another vehicle also belonging to him, also two other containers, having 50 litres of oil each were recovered. In this manner, the accused made a theft of Rs. 379.22 kilo-litres of petroleum substance which amounted to Rs. three crores and because of this theft, the said precious petroleum substance could not reach the consumers and caused tremendous loss to the State Exchequer.
23. It is also mentioned in the grounds that because of danger of leakage of oil being pilfered in this manner, there were heavy chances of big explosion and of the said pipeline catching fire which not only would result in loss of human life but also entail huge loss of state property. Because of this pilferage, the supply of the petroleum products / oil could be badly affected in Delhi, N.C.R., Haryana and Punjab regions which in-turn could adversely affect the common man's life. It is mentioned in the grounds that the accused, who was detained in district jail, was making efforts to come out on bail as he had moved bail application before this Court. In case he succeeds in getting bail, he could again indulge in theft which would badly affect the supply of petroleum substances, hence, it was essential to detain him in custody. It was also mentioned in the said grounds that he could move a representation in case he so desired within 12 days and also apprised of other legal provisions under which he could seek relief and could seek opportunity of hearing.
24 It would be pertinent to refer here the relevant provision of the N.S.A. Act:-
3. Power to make orders detaining certain persons-
(1) The Central Government or the State Government may,--
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation.--For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
25. We would like to rely on Yumman Ongbli Lembi Leima vs State of Manipur and others , (2012) 2 Supreme Court Cases 176, the order of detention dated 31/1/2011 passed by the District Magistrate approved by the Governor on 7/02/2011, in exercise of powers under sections 3 (4) of National Security Act, 1980 issued on the subjective satisfaction of the detaining authority that the detenu was likely to be released on bail by normal criminal courts in near future came up for challenge before the Supreme Court and the Court observed that the subjective satisfaction of the detaining authority was found to be the belief that after having availed the bail facility, the appellant's husband/detenu could indulge in commission of further prejudicial activities, hence after careful consideration of the matter it held that the exercise of extraordinary powers of detaining an individual in contravention of the provisions of Articles 22 (2) of the Constitution was not warranted in this case, where the grounds of detention did not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of the detenu being released on bail in connection with the cases is in respect of which he had been arrested. The Article 21 of the Constitution enjoins "no person shall be deprived of his life or personal liberty except according to procedure established by law." Therefore despite the fact that power is vested in the authority concerned, unless the same is invoked in a justifiable manner, such an action of detaining authority cannot be sustained, inasmuch as, such detention order is an exception to the provisions of Articles 21 and 22 (2) of the Constitution. It was further held that when the courts thought it fit to release the detenu on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail is a ground of his detention, was not justified. It was further held in this case that in various cases of similar nature the Supreme Court has observed that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution and the State has been granted power to curb such rights under criminal laws and also under the laws of preventive detention, which are required to be exercised with due caution as well as upon proper appreciation of the facts as to whether such acts were in anyway prejudicial to the interests of the security of the State and its citizen or would seek to disturb public law and order warranting issuance of such an order. An individual incident of an offence under Penal Code, howsoever heinous, was not sufficient to make out a case for issuance of an order of preventive detention. Therefore, it was held that the detaining authority acted rather casually in this case in issuing the order of detention and the High Court also missed the right to liberty as contained in Articles 21 and 22 (2) of the Constitution as well as the provisions of sections 167 of the Criminal Procedure Code. Consequently the appeal was allowed.
26. In Huidrom Konungjao Singh vs State of Manipur and others, (2012) 7 Supreme Court Cases 181, pursuant to an F.I.R. lodged against unknown persons for offences committed under sections 302 IPC read with section 25 (1 - A) of the Arms Act, the detenu was arrested for the said offences on 19/6/2011. Subsequently, detention order dated 30/6/2011 was passed by the District Magistrate under sections 3 (2) of the National Security Act against the detenu, inter-alia, on the ground that he was involved in extortion of money and giving shelter to underground members of an unlawful association and his activities were prejudicial to the security of the State and maintenance of public order. In support of the detention order, several documents have been relied on and supplied to the detenu including the copy of F.I.R. under sections 17/20 of the Unlawful Assembly (Prevention) Act, 1967 and copy of another FIR under sections 20 of the said Act and the release orders on bail passed in those cases on 13/12/2010 and 1/6/2011 respectively. It was held by the court that the detenu was arrested on 14/6/2011. The F.I.R. had been lodged against unknown persons; however, the detenu was arrested on 19/6/2011 in respect of the said offences. Subsequently the detention order dated 30/6/2011 was passed by the District Magistrate under NSA on various grounds, inter-alia, that the detenu was involved in extortion of money and giving shelter to underground members of unlawful association, namely, Kangleipak Communist Party vide Notification published in Gazette of India on 13/11/2009 and in activities prejudicial to the security of the State and maintenance of public order. In support of the detention order, a large number of documents had been relied upon and supplied to the detenu including the copy of F.I.R. No. 254 (1) of 2010 under sections 17/20 of the Unlawful Assemblies (Prevention) Act, 1967 and Section 20 of UA (P) Act and release orders in those cases dated 13/12/2010 and 1/6/2011 respectively had been passed. It was held that admittedly, the said bail orders did not relate to the co-accused in the same case. The accused released in those Cases on bail had no concerned with the present case. Merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case, had the detenu applied for bail, could have been released on bail. Thus, as the detenu in the instant case had not moved the bail application and no other accused, if any, had been enlarged on bail, resorting to the provisions of the Act was not permissible, therefore the impugned order of detention was based merely on ipse dixit statement in the grounds of detention which could not be sustained in the eye of law. In this case the point whether a person who is in jail can be detained under detention law was discussed threadbare and the answer was in the affirmative subject to certain conditions being fulfilled. The relevant paragraphs are being quoted herein below:
"6. Whether a person who is in jail can be detained under detention law has been the subject matter of consideration before this court time and again. In the Dharmendra Suganchand Chelawat vs Union of India, (1990) 1 SCC 746, this court while considering the same issue has reconsidered its earlier judgements on the point in Rameshwar Shaw vs District Magistrate, Burdwan, AIR 1964 SC 334, Masood Alam vs Union of India, (1973) 1 SCC 551, Dulal Roy vs District Magistrate, Burdwan, (1975) 1 SCC 837, Alijan Mian vs District Magistrate Dhanbad, (1983) 4 SCC 301, Ramesh Yadav vs District Magistrate, Etah, (1985) 4 SCC 232, Suraj Pal Sahu vs State of Maharastra, (1986) 4 SCC 378, Binod Singh vs District Magistrate, Dhanbad, (1986) 4 SCC 416 and Shashi Aggarwal vs State of U.P., (1988) 1 SCC 436 and came to the following conclusion: (Chelawat case, (1990) 1 SCC 746, SCC p. 754, para 21) "21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression ''compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
7. In Amratlal vs Union Government, (2001) 1 SCC 341, a similar issue arose as the detaining authority recorded its satisfaction for detention under the Act, in view of the fact that the person, who was already in jail, was going to move a bail application. In the grounds of detention it had been mentioned that there was "likelihood of the detenu moving an application for bail" and hence detention was necessary. The court held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. (See also N. Meera Rani vs Government of T.N., (1989) 4 SCC 418, Kamarunnissa Vs. Union of India (1991) 1 SCC 128 and Union of India vs Paul Manickam, (2003) 8 SCC 342.
8. This court while deciding the case in A Geetha vs State of T.N., (2006) 7 SCC 603, relied upon its earlier judgements in Rajesh Gulati vs Government of NCT of Delhi, (2002) 7 SCC 129, Ibrahim Nazeer vs State of T.N., (2006) 6 SCC 64, & Senthamilselvi vs State of T.N., (2006) 5 SCC 676 and held (A. Geetha case, (2006) 7 SCC 603 p. 606, para 10)
10. ... that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority ."
Its subjective satisfaction based on materials, normally, should not be interfered with.
9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the court the following facts:
(1) The authority was fully aware of the fact that the detenu was actually in custody.
(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.
(3) In view of above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.
In case either of these facts does not exist the detention order would stand vitiated."
27. Another important ruling which is being relied upon by us is Pebam Ningol Mikoi Devi vs State of Manipur and others, (2010) 9 Supreme Court cases 618 which lays down the law that judicial review may be made of the subjective satisfaction of the detaining authority on the basis of which it has passed detention order, the relevant paragraphs are as follows:
"21. To decide the correctness or otherwise of detention order, 2 issues of importance arise before this court. The first is regarding the documents and material on which reliance was placed by the detaining authority in passing the detention order. Secondly, with those materials, the defendant party was justified in arriving at a finding that the detenu should be detained under the National Security Act without any trial. In matters of this nature, this court normally will not go into the correctness of the decision as such but will only look into the decision-making process. Judicial review, it may be noted, is not an appeal from a decision but the review of the manner in which the decision was made. The purpose of review is to ensure that the individual receives a fair treatment.
22. Some of the decisions of this court may be of relevance in determining in what manner such subjective satisfaction of the authority must be arrived at, in particular on sanction 3 (2) of the National Security Act. In Fazal Ghoshi vs State of U.P., (1987) 3 SCC 502, this court observed that: (SCC p. 505, para 3) "3. ... the District Magistrate, it is proved, has stated that the detention of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially is the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all." (emphasis supplied)
23. In Shafi Ahmad vs District Magistrate, Meerut, (1989) 4 SCC 556, this Court opined (SCC p. 562, Para 5) "5. .... Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and manner of such detention must, therefore, be subject to closest of scrutiny and examination by the courts."
(emphasis supplied) This court further added: (Shafi Ahmad case , SCC p. 561, Para 5) "5. .... there must be conduct relevant to the formation of the satisfaction of having reasonable nexus with the action of the petitioner which are prejudicial to the maintenance of public order. Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct ''it is necessary' to make an order ''detaining' such person, are subject to judicial review." (emphasis supplied)
24. In the State of Punjab vs Sukhpal Singh, (1990) 1 SCC 35 this court held: (SCC p. 43, Para 9) "9. ..... the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities have crept in."
(emphasis supplied)
25. The State of Rajasthan vs Talib Khan , (1996) 11 SCC 393, this court observed that: (SCC p. 398 para 8) "8. ... what is material to and mandatory is the communication of the grounds of detention to the detenu together with documents in support of subjective satisfaction reached by the detaining authority."
(emphasis supplied)
26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.
27. In light of these decisions, to determine the validity of detention order, it is necessary to go into the materials relied on by detaining authority in passing the detention order. The documents relied upon by the District Magistrate, West Imphal , as mentioned in the grounds of detention dated 28/9/2009 are:
(a) Statement of the detenu given before the IO on 18/9/2009.
(b) Statement of S I T. Khogen Singh CTO/IW recorded under section 161 Cr. P.C. in connection with FIR No. 183 (9) 09 SJM - PS under sections 17/20 of the Unlawful Activities (Prevention) Act, 1967.
(c) Statement of Rfm. No. 15007038 L Rajen Singh of CDO/IW recorded under sections 161 Cr. P.C. in connection with FIR No. 183 (9) 09 SJM - PS under sections 17/20 Unlawful Activities (Prevention) Act, 1967.
(d) Statement of constable No. 0601193 S. Khomei Singh recorded under sections 161 Cr. P.C. in connection with FIR No. 183 (9) 09 SJM - PS under sections 17/20 of the Unlawful Activities (Prevention) Act, 1967.
(e) Copy of arrest memo dated 17/9/2009.
(f) Copy of seizure memo dated 17/9/2009
(g) Copy of Manipur local daily the Poknapham dated 8/3/1999.
(h) Copy of Notification under No. S. O. 1922 (E) dated 13/11/2007.
28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the N S Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid.
29. Keeping in view these well settled legal principles, we have perused the grounds of detention and the documents relied on by the detaining authority while passing the order of detention. In our considered view, the grounds on which the detention order is passed has no probative value and were extraneous to the scope , purpose and object of the National Security Act. This court in Mohd. Yusuf Rather vs State of J & K (1979) 4 SCC 370 has observed that under Article 22 (5), a detenu has two rights (1) to be informed, as soon as may be, of the grounds on which his detention is based and (2) to be afforded the earliest opportunity of making representation against his detention.
The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and "grounds" as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid.
30. Insofar as the documents on which reliance is placed, in our opinion none of these documents provide any reasonable basis for passing the detention order. The primary reliance has been on the accused's own statement made to an investigating officer. This cannot be said to be sufficient to form subjective satisfaction of the detaining authority. The statements under sections 161, Code of Criminal Procedure, 1973 (hereinafter Cr. P.C.) cannot be taken as sufficient grounds in the absence of any supportive or corroborating grounds. Section 161 statements are not considered substantive evidence, but can only be used to contradict the witness in the course of a trial. The same is clear from the wording of sections 162 (1) Cr. P.C. and has been so held time and again by this court.
31. In Rajendra Singh vs State of U.P., (2007) 7 SCC 378, this court laid down that: (SCC p. 385 para 7) "7. .... A statement under sections 161 Cr. P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 162 Cr. P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence...."
(emphasis supplied)
32. Furthermore, none of the other documents substantiate the involvement of the detenu in unlawful activities as alleged in the detention order. Thus, it is clear that there was no pertinent to relevant material on the basis of which the detention order could be passed."
28. In view of above position of law the present case requires to be examined in the light of aforesaid settled legal proposition.
29. A perusal of the detention order in question would reveal that the sole emphasis for detaining the petitioner under NSA has been disclosed to be that he was involved in theft of petroleum substances/oil and had formed a gang to give effect to such theft by raising construction over a piece of land, through which a pipeline was laid with a volve fitted in the said pipeline to tap/pilfer the oil which was meant to be supplied from Mathura Refinery to Jalandhar, regarding which the complaint was made by Manager, Mathura Refinery Shri Virendra Kumar on 17/02/2017 at PS Highway registered as case crime No. 187/17 under sections 15/16 Petroleum and Mineral Pipelines (Amendment Act) 2011, sections 3 and 4 of Prevention of Damage to Public Property Act 1 1984, under sections 3 and 4 of Explosive Substances Act, 1908 and sections 379, 427, 411 IPC. It is noteworthy that in the said F.I.R. petitioner was not named but his name has come to light during course of investigation by police. It is also mentioned in the grounds that the said stolen oil used to be carried for sale to various patrol pumps being owned by one oil mafia Manoj Goel. The entire infrastructure which was built for such organised theft of oil entailed an expenditure of about 18 lakhs which involved purchase of land as well. Some call details are also reported to have been collected during investigation showing inter-se phone calls among the accused persons and also several containers of empty as well as filled with oil are alleged to have been recovered from the house of the petitioner. An assessment is also shown to have been made that this act entailed pilferage of the 379.22 kilolitres of petroleum substances amounting to Rs. 3 crores approx, which otherwise would have gone to the consumers had the same not been stolen and that it badly affected supply of oil to the Delhi - NCR region and in areas of Haryana and Punjab which not only badly affected the supplies to ground transportation but also to air transport. Further it was mentioned that this act also could have led to conflagration breaking out because the oil is highly inflammable substance and its leakage during such pilferage was extremely dangerous which could entail huge loss of life and properties. Besides the above-mentioned crime number, there are two other crime numbers which have been mentioned in the detention order i.e. crime No. 195/2017 under sections 147/148/149/332/353/307 IPC in which the petitioner along with his ten companions is alleged to be accused and the other crime No. 196/17 under sections 30 of Arms Act registered only against the petitioner and both these crime numbers are alleged to be written in respect of the same occurrence which has been mentioned above. It is also mentioned in the impugned detention order that the petitioner was detained in District jail, Mathura and that he was making efforts to get out of jail after seeking bail as his bail application is pending before the High Court, Allahabad, therefore if he was released on bail in the aforesaid crime number there would be strong possibility that he would again indulge in theft of petroleum substances by which the public life as well as national security would be adversely affected, hence his detention was necessary under NSA under sections 3 (2) of the said Act. It appears that the petitioner has annexed the impugned detention order as annexure 10, with which the grounds of detention have also been enclosed and along with the grounds there are Annexures which include a letter dated 28/5/2017 of SSP, Mathura addressed to the District Magistrate, Mathura making reference therein of the crime No. 187/2017, mentioned above and that the petitioner was making efforts to get out on bail by moving an application before Allahabad High Court and that there was a strong possibility of his coming out on bail and again indulging in the same activities of theft of petroleum products, which necessitated his detention under NSA, with the said letter the report of Incharge PS Highway, recommendation of Circle Officer, Refinery and the recommendation of Additional Superintendent of Police, Mathura are annexed.
30. Therefore, it is revealed from the impugned order that there is no such documentary evidence annexed with the detention order which is alleged to have been provided to the petitioner for making his representation which may disclose any concrete piece of evidence that he was involved in the alleged theft of petroleum substances. It does not entail any recovery memo with respect to recovery of containers of oil, empty as well as filled, which are alleged to have been recovered from the house of the accused; the statement of 164 Cr. P.C. is being alleged to have been recorded, in which the petitioner is alleged to have admitted that he was indulging in this kind of theft, but as noted above the Apex court has held that such kind of statement would have no evidentiary value till the same is corroborated by other piece of evidence. It also appears that some vague allegations have also been incorporated in the grounds to the effect that the so stolen oil used to be sold to an oil mafia who owned various patrol pumps, where this stolen oil used to be carried in tankers as one of the tankers was found to be standing in the vicinity of the place of occurrence, but no such documentary evidence of sale having been made to such a person or some documents with regard to the tanker being owned by accused /petitioner or some of his close aide has been gathered nor any such material has been provided with the grounds which form basis of passing the impugned detention order. Therefore, in view of the position of law as laid down in Pebam Ningol's case (supra) that even a slight vagueness or extraneous material which could not have formed the basis of passing a detention order under NSA, could vitiate the detention order, we are of the view that in the case at hand the impugned detention order suffers from vagueness and hence the same stands vitiated on this count.
31. Next, the ground that the petitioner is likely to be bailed out as he has moved an application for bail before this court, hence in case he was released on bail he would again indulge in the similar kind of activities ''prejudicial to the maintenance of supplies of commodities essential to the community', which would lead to breach of public order or would be a threat to national security, it may be submitted that there is no sound basis of the said apprehension because it is not stated that any of the co-accused has already been granted bail in the said crime number, therefore there could be strong possibility of the accused/petitioner also being bailed out.
32. It also be mentioned here that no such criminal antecedents have been shown of the petitioner which might lead the Competent Authority to conclude that he could indulge in the same kind of activities which are alleged above to have been committed if the petitioner is released on bail, the offence which has been alleged to have been committed seems to be the solitary occurrence/offence against the petitioner. Even while passing bail orders it is often seen that the courts normally impose very rigorous terms and conditions which might not allow the accused a free hand in committing offences as the same would expose them to cancellation of bail. It would be necessary to mention here that NSA has the provision of detaining a person without trial in case there is apprehension that he would indulge in such activity which are prejudicial to the security of the State and maintenance of law and order and supplies of essential commodities, therefore the court has to ensure that balance is maintained between effecting curtailment of personal liberty which would otherwise be violative of Article 21 and 22 of the Constitution of India, therefore extreme caution is required to be observed while passing a detention order by the Competent Authority.
33. We are of the view that in the case at hand such precautions have not been observed while passing the impugned detention order as it contains vagueness and no sound basis of the conclusion that the petitioner is going to be released on bail and that after his release he would indulge in similar kind of activities which are prejudicial to the supply of essential commodities to the community and prejudicial to the maintaining law and order and national security, is found to be there. Therefore this petition deserves to be allowed and the impugned order deserves to be quashed, accordingly this petition is allowed and the impugned order is quashed.
34. The petitioner shall be released forthwith by the respondents if not wanted in any other criminal case.
(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.)
Order Date :- 17.5.2018
A. Mandhani