Allahabad High Court
Azad vs State Of U.P. And 5 Others on 10 December, 2019
Bench: Pankaj Naqvi, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No:- 43 HABEAS CORPUS WRIT PETITION No. - 847 of 2019 Petitioner :- Azad Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Fakhruzzaman Counsel for Respondent :- G.A. Hon'ble Pankaj Naqvi,J.
Hon'ble Suresh Kumar Gupta,J.
Rejoinder affidavit filed today is taken on record.
Heard Shri Fakhruzzaman, learned counsel for the petitioner and Shri Deepak Mishra, the learned A.G.A.
This habeas corpus writ petition has been filed by the petitioner challenging his detention dated 20.12.2018, under Section 3(2) & (3) of the National Security Act, 1980 by the District Magistrate, Bulandshahar, for a period of 3 months which was lastly extended on 11.9.2019.
1. The grounds of detention dated 20.12.2018 served on the petitioner same day, while he was in police custody alleged as under:-
(I) On 26.11.2019 at 10:39 A.M, an information was received by the police that near Khusipura Tanki at Mohalla Bahar Orchha Gate, P.S. Nawabad, Jhansi that remnants of 3 cow progenies have been recovered. On said tip off, the officer-incharge, P.S. Nawabad along with his fellow police, reached the scene to find that a large crowd had gathered including that of the Hindu organizations raising slogans and protest to the offensive recoveries, communal atmosphere tensed affecting public order. The protestors demanded immediate arrest and strict action against the culprits. The officer-incharge realising the gravity of the situation apprised his superiors as also the officers-incharge of the other police stations, who arrived at the scene to defuse the situation, but with great difficulty were able to defuse the tension, which had spread in the surrounding area, disrupting the communal harmony and affecting public order. The officer-incharge, PS-Nawabad called for one Dr. Suresh Kumar, a veterinarian, who on physical examination confirmed the remnants to be of cows progeny. He also collected samples of offensive remnants. An FIR in respect of said occurrence as Case Crime no. 680 of 2018, under Section 3/5/8 of the Cow Slaughter Act, 1955 agaisnt unknown. On 26.11.2018 at 3:55 P.M, at PS-Nawabad.
(II) During investigation Golu Gupta, Amit Bajpai and Akhilesh Jha alleged that they have seen Zakir Chirva, Shabbir, Irshad @ Tuttal, Azad (petitioner), Asif, Ikram, his brother Akram, Lambu and Piston, who are hardened criminals of the area. They alleged that all the accused were slaughtering calves and that all of them invariably transport the cows progeny for purposes of slaughtering and also indulged in trade for sale of meat and skin in outside district. Shanu, Bhura @ Saralu, Shahid Katte, Keharban, Rahees and Qureshi are also alleged to be involved in slaughtering.
(III) On 28.11.2018, the I.O, Adya Prasad Verma, on receipt of a tip off, he arrested 4 accused involved in above case at 4 P.M, namely Azad (petitioner), Shabbir, Zakir @ Chirva and Irshad @ Tuttal each along with a sharp knife. The alleged recovery of knives gave rise to an FIR under Section 4/25 of the Arms Act. All of them confessed to have slaughtered the cows progeny near the water tank on 26.11.2018 along with Asif, Ikram and his brother Akram @ Lambu and Lallu Chaudhari. They also confessed the involvement of Piston, Bhura @ Saralu, Shahid Katte, Keharbaan and Raees. They finally alleged that one Zahid along with his vehicles gets the cows progeny at night on the highway, slaughters them and sells the meat and skin.
(IV) The detention order also alleged that the petitioner is desparate to be enlarged on bail as bail application has been filed before the Sessions after rejection of the same by the learned ACJM on 11.12.2018, which fact too created a resentment in the mind of public that in the event petitioner is enlarged on bail, he may again resort to cow slaughtering.
(V) The detention order finally alleged that on account of aforesaid crime, communal harmony and public order were severely affected, resulting in the detention of the petitioner, with a right of representation both to the detaining authority as well as the State Government within 12 days, failing which the detaining authority is not liable to consider the representation, also with the liberty to approach the advisory board, where it shall be referred within 3 weeks from the date of detention.
2. The detention order dated 20.12.2018 was approved by the State Government on 31.12.2018. The petitioner preferred a representation through jail authorities before respondent no.5 / the detaining authorities, which came to be rejected on 2.1.2019. The State and Central Government also rejected his representation on 14.1.2019 and 15.1.2019, respectively. The petitioner appeared before the advisory board on 16.1.2019. The State Government further confirmed the order of detention for 3 months on 29.1.2019 after receipt of the report of the advisory board. The detention order was lastly extended on 11.9.2019.
3. Learned counsel for the petitioner submitted that petitioner stands bailed out in Case Crime no.680 and 687 both of 2018, the only material against him is his confessional statement, NSA has been invoked at the behest of local politician, which has no rational or probative value.
4. Learned A.G.A opposed the submission on the premise that an order of preventive detention can be based on subjective satisfaction of detaining authorities, provided the same is based on relevant materials. He further submitted that once the detention is based on relevant materials having rational and probative value, there is no scope for judicial authority to interfere with the order of detention.
The Apex Court in Anil Dey vs. State of West Bengal, (1974) 4 SCC 514, held that the law of preventive detention is a different field of criminology which has its own guidelines, and the Courts have to go without telescoping into them what a criminal Court expects in a trial of an accused brought before it. The key fact at the core of the statute is that given subjective satisfaction of the appropriate authority, judicial review is excluded except within a narrow area. Within that area the Court, of course, is the sentinel on the qui viva, but beyond it is out of bounds for the forensic exploration. The Court's jurisdiction, therefore, is confined to the examination of violations of those guidelines which have been woven into a consistent fabric by the decisions of the Apex Court over the years. Though, the veil of subjective satisfaction of the detaining authority cannot be lifted by the Courts with a view to appreciate its objective sufficiency. Nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the, opinion necessary to justify detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated to the statute, no nexus exists and the order in bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities., it should not be too trivial in substance nor too stale in point of time as to snap the rational link that. must exist between the vicious episode and the prejudicial activity sought to be interdicted.
The Apex Court in K. Aruna Kumari vs. Government of A.P, (1988) 1 SCC 296, held that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of the detention can be made, namely, the grounds of detention constitute the foundation for the exercise of the power of detention and the court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining is based. Nor can the court on a review of the grounds, substitute its own opinion for that of the authority.
The Apex Court in State of Maharashtra vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613, held that subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. The Court must be conscious and mindful that the satisfaction of the Detaining Authority is 'subjective' in nature and the Court cannot substitute its 'objective' opinion for the subjective satisfaction of Detaining Authority for coming to the conclusion whether the activities of the detenu were or were not prejudicial to the public interest. A Court cannot go into correctness or otherwise of the facts stated or allegations leveled in the grounds in support of detention. That, however, does not mean that the subjective satisfaction of Detaining Authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially.
5. We in the light of above legal position proceed to evaluate the order of detention dated 20.12.2018.
6. It is well settled that an order of detention can be based on the subjective satisfaction of the detaining authorities. The grounds of detention alleged that after receipt of information of the recoveries of remnants of progenies of cows, near water tank at Mohalla Bahar Orchha gate, the police reached the site, wherein people belonging to the majority community were raising protest and slogans against the offensive recoveries, which not only affected the communal harmony but also affected public order. The veterinary confirmed the remnants to be of cow's progeny. An FIR as Case Crime no. 680 of 2018, under Section 3/5/8 of the Cow Slaughter Act, 1955 came to be lodged on 26.11.2018 at 3:55 P.M. During investigation, name of the petitioner along with other co-accused, i.e, Zakir @ Chirva, Shabbir, Irshad @ Tuttal, Azad (petitioner), Asif, Ikram, his brother Akram, Lambu and Piston, who were alleged to be responsible not only in slaughtering but also in trade of sale of meat and skin outside the district along with Shanu, Bhura @ Saralu, Shahid Katte, Keharbaan, Raees and Zahid. On 28.11.2018, the I.O, on a tip-off at about 4 P.M, arrested the petitioner Shabbir, Zakir @ Chirva and Irshad @ Tuttal; each of them with a sharp knife, which gave rise to an FIR as Case Crime no. 687 of 2018, under Sections 4/25 Arms Act, P.S. Nawabad, District Jhansi. All of them confessed to their involvement in slaughtering the cows near the water tank. They also disclosed the modus operandi relating to slaughtering and its trade.
7. Name of the petitioner along with other co-accused surfaced during investigation along with recovery of knife, coupled with his confessional statement. Once there are relevant materials in the form of recoveries of remnants of cows progeny and that of knife as also the confessional statement of the petitioner and other co-accused, the order of detention cannot be questioned on the grounds contested before us, as this Court is not expected to minutely examine the subjective satisfaction of the detaining authorities, as long as it is based on relevant materials.
No other plea is urged.
This Habeas Corpus Petition is dismissed.
Order Date:10.12.2019 N.S.Rathour (Suresh Kumar Gupta, J) (Pankaj Naqvi, J)