Allahabad High Court
Parvendra Kumar vs Union Of India And 3 Others on 26 April, 2022
Bench: Ashwani Kumar Mishra, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 Case :- HABEAS CORPUS WRIT PETITION No. - 5 of 2022 Petitioner :- Parvendra Kumar Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Ajay Kumar Mishra,Amit Daga Counsel for Respondent :- G.A.,A.S.G.I.,Alok Ranjan Mishra Connected with Case :- HABEAS CORPUS WRIT PETITION No. - 6 of 2022 Petitioner :- Nikhil Kumar Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Ajay Kumar Mishra,Amit Daga Counsel for Respondent :- A.S.G.I.,G.A.,Kameshwar Singh And Case :- HABEAS CORPUS WRIT PETITION No. - 8 of 2022 Petitioner :- Surendra Singh @ Shailendra Singh Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Ajay Kumar Mishra,Amit Daga Counsel for Respondent :- A.S.G.I.,Annapurna Singh,G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Rajnish Kumar,J.
(Per: Ashwani Kumar Mishra, J.)
1. Detention orders of different dates, founded on a common basis, have been passed against three petitioners, which are under challenge in the present bunch of habeas corpus writ petitions. We have heard all three petitions together and are being disposed off by this common judgment.
2. Habeas Corpus Writ Petition No.5 of 2022 is treated as the leading case wherein the order of detention passed by District Magistrate, Bijnor is challenged alongwith the order of the State Government approving it and the order rejecting petitioner's representation. Orders extending the term of detention, from time to time, are also assailed. Similar reliefs are claimed in the other connected petitions, as well.
3. Basis of impugned detention orders in all three cases is the implication of petitioners in the First Information Report dated 19.5.2021, registered as Case Crime No.291 of 2021, under Sections 147, 148, 149, 302, 504, 506, 34 IPC and Section 7 of the Criminal Law Amendment Act, Police Station Chandpur, District Bijnor. This FIR requires a little elaboration at the outset. Informant in the said FIR is one Rajeev son of Chhatrapal, resident of Village Baseda, Police Station Chandpur, District Bijnor, whose brother Sanjay was killed at 8.30 pm on 18.5.2021. The FIR was lodged on 19.5.2021 at 1.44 am. As per the FIR the accused persons namely Ajab Singh, Nikhil Kumar, Shailendra Singh, Parvendra Kumar and Sunil Kumar maintained enmity with the informant and his family, since they had not voted for Ajab Singh,when he contested for the office of Village Pradhan, despite request made in that regard. On 18.5.2021 at about 8.30 pm accused persons armed with country made firearm (Tamancha), gun and other arms attacked the informant's house and Ajab Singh shot dead the informant's brother Sanjay. Other accused including the three petitioners are said to have indiscriminately fired creating an atmosphere of terror in the village. The incident is alleged to have been seen by Brahmapal son of Gangaram, Kalyan son of Atar Singh and Ranpal son of Zileram. It is claimed in the FIR that widespread fear prevailed in the village and people were running helter-skelter. The villagers had locked themselves in their houses by shutting their doors and windows from inside. Specific role of firing in which the deceased died however is attributed to Ajab Singh while all other accused (three petitioners herein) were assigned the role of carrying Tamancha (Country made Pistol) and Bandook (gun) and indiscriminately firing upon the informant's side. All three petitioners were arrested and applied for bail. It is at this stage that the Station House Officer recommended action against the petitioners under the National Security Act, 1980 (hereinafter referred to as the ''Act of 1980') leading to petitioners' detention under the Act of 1980.
4. The chronology of events in the leading Habeas Corpus Writ Petition No.5 of 2022 is that the order of detention came to be passed against the petitioner on 27.8.2021 by the District Magistrate, Bijnor on the basis of a recommendation made by the sponsoring authority. This order has also been approved by the State Government on 6.9.2021. It is alleged that a representation was made against the detention order by the petitioner on 6.9.2021. However, an issue was raised about the filing of representation on the said date and consequently we summoned the original records to find that the representation in fact was made only on 8.9.2021 instead of 6.9.2021, as is alleged in the petition. Upon a perusal of original records it transpires that the representation was sent on the same date to the office of District Magistrate, Bijnor and the Additional District Magistrate, Bijnor on behalf of the District Magistrate called for the comments of Superintendent of Police, Bijnor in the matter. The representation was consequently sent to the Station House Officer of the concerned police station for his comments in the matter. The comments were submitted on 13.9.2021 to the office of Superintendent of Police, who forwarded the same to the District Magistrate alongwith his comments on the same date. The District Magistrate rejected the representation on 13.9.2021. The decision was informed to the petitioner through the authorities on the same date. The District Magistrate simultaneously forwarded the copies of representation to the State Government on 14.9.2021. The State Government after due deliberation and examination of records rejected the representation on 21.9.2021, which order has been communicated to the detenue on 22.9.2021. The representation was also forwarded to the Central Government by the District Magistrate on 13.9.2021, which came to be rejected on 22.9.2021. The term of 3 months detention has been extended by subsequent orders dated 23.11.2021 and 15.2.2022, which are also under challenge.
5. In Habeas Corpus Writ Petition No.6 of 2022, filed by Nikhil Kumar, the order of detention came to be passed on 22.10.2021. It has been approved by the State Government on 1.11.2021. The representation against the order of detention was submitted on 8.11.2021, which was rejected by the District Magistrate on 29.11.2021, while the representations made to State Government came to be rejected on 7.12.2021 and the Central Government rejected it on 8.12.2021. Aggrieved by these orders as also the extension of detention vide subsequent orders, the petitioner is before this Court.
6. In Habeas Corpus Writ Petition No.8 of 2022, Surendra Singh @ Shailendra Singh questions the detention order passed by the District Magistrate, Bijnor on 6.9.2021. A representation was made against this order on 30.9.2021. Comments in the matter were called from the office of Superintendent of Police, Bijnor. Comments were submitted in the matter on 4.10.2021 and the District Magistrate after considering such comments rejected the representation on 5.10.2021. The representation made to the State Government was rejected on 7.10.2021 while the Central Government rejected petitioner's representation on 18.10.2021. The detention order was also approved by the State Government on 26.10.2021. The period of detention has been extended for six months vide order dated 23.11.2021 and has further been extended for a period of nine months vide order dated 24.2.2022, which are under challenge.
7. The aforesaid three petitions have been entertained and counter affidavits have been filed by the State Government and its authorities, as also the Union Government, to which rejoinder affidavits have been filed on behalf of the petitioners. The three petitions have thus been heard on different dates and are being disposed off by this common judgment.
8. We have heard Sri Amit Daga, learned counsel for the petitioners, Sri Alok Ranjan Mishra, Sri Kameshwar Singh and Ms. Annapurna Singh for the Union of India and Sri Ali Murtza, learned AGA for the State and its authorities.
9. Learned counsel for the petitioners in support of the writ petitions has made following submissions:-
(i) That the detention order passed by the District Magistrate concerned lacked application of mind on his part inasmuch as the proposals made by Sponsoring Authority have been virtually copied without any satisfaction having been recorded at his own level. The grant of routine approval by the State is also questioned on the ground of it being mechanical in nature.
(ii) The alleged offence, which forms the basis of detention order at best depicts instance of law and order with no trappings of public order involved in it. It is also stated that there is no allegation of panic etc. caused amongst public on account of alleged offence.
(iii) It is then submitted that the apprehension that the detainee would be released or that he would cause similar offence in future is not based on any material brought on record.
(iv) It is lastly contended that there was delay occasioned in disposal of the representation against the order of detention at every level i.e. at the level of District Magistrate; State Government; and also Central Government, which vitiates the order of detention itself.
10. We may record that during the course of arguments original records have been produced by the office of District Magistrate, State Government and also Central Government on various aspects in order to consider the respective submissions advanced by the counsel for the parties. The original records of the concerned Magistrate containing case diaries in Case Crime No. 291 of 2021 have also been produced before us in sealed envelope, on our directions and have been perused.
11. First and foremost, it is urged on behalf of petitioners that there is no independent application of mind on part of the District Magistrate to the facts recorded in the proposal of the sponsoring authority with regard to existence of conditions justifying exercise of power under Section 3(3) of the Act of 1980 in as much as the order of detention virtually copies the recommendation of sponsoring authority, line by line, page by page except for his conclusion contained in one sentence, recording his satisfaction.
12. We have perused the recommendation made by the sponsoring authority i.e. the Officiating Inspector, Police Station Chandpur, District Bijnor; the forwarding letter of the Superintendent of Police, Bijnor, as well as the order of detention passed by the District Magistrate, which contains the grounds of detention. Learned counsel for the petitioners has taken us through the recommendation made by the sponsoring authority, as also the grounds of detention accompanying the detention order dated 27.8.2021, in order to submit that the order of detention lacks due application of mind on part of the detaining authority, which renders the order of detention itself bad in law.
13. The recommendation made by the sponsoring authority is contained in Annexure-3 and is addressed to the Superintendent of Police, Bijnor. The recommendation runs into 65 pages. Specific reference is made in it to the incident of 18.5.2021 in which the petitioners alongwith Ajab Singh and other accused persons came to the house of the deceased Sanjay armed with Tamancha (countrymade pistol) and Bandook (gun) and resorted to indiscriminate firing, which allegedly caused an atmosphere of terror in the village and the public order was disturbed. Reference has also been made to the materials collected during the course of investigation, on the basis of which chargesheet has been submitted in the matter against the petitioners. Further materials forming part of the recommendation by the sponsoring authority includes the statements recorded of various persons, even after submission of chargesheet, on the basis of which it is alleged that in the event petitioners are released on bail, they are likely to indulge in activities prejudicial to public order.
14. The orders impugned have been passed in exercise of powers under the Act of 1980. The Act of 1980 came to be introduced with an intent that law and order situation in the country is tackled in a most determined and effective way by containing social and antisocial elements. The object was to ensure security and defence of State as also the public order and ensure that other services essential to the community are not disrupted. The appropriate Government i.e. Central Government or the State Government was thus conferred authority to pass orders of preventive detention against a person with a view to prevent 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. The order of detention purportedly is alleged to have been passed by the District Magistrate exercising his jurisdiction under sub section (3) of Section 3 of the Act of 1980, upon being satisfied that exigency stipulated in sub-section (2) of Section 3 exists in the facts of the case. Section 3(2) and (3) of the Act of 1980 are reproduced hereinafter:-
"3(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."
15. Sub-section (4) of Section 3 of the Act of 1980 is also relevant, which is reproduced hereinafter:-
"3(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."
16. Power of preventive detention, therefore, is conferred on the appropriate Government only to prevent a person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
17. The power under sub-section (3) of Section 3 can also be exercised by the District Magistrate or the Commissioner of Police in respect of areas falling within their limits of jurisdiction. Where such an order is passed by the District Magistrate, he must satisfy himself with regard to existence of conditions referred to in sub-section (2) of Section 3 of the Act of 1980. The exercise of power by the District Magistrate under sub-section (3), therefore, is dependent upon the existence of conditions stipulated in sub-section (2) of Section 3 of the Act of 1980 and such satisfaction has to be of the District Magistrate or the Commissioner of Police, as the case may be. The first argument advanced in the matter is that such satisfaction on part of the authority concerned i.e. detaining authority/District Magistrate, is missing in the facts of the case which initiates the order of detention as well as all other consequential orders challenged in the writ petitions.
18. We have perused the recommendation of the sponsoring authority as also the grounds of detention passed by the District Magistrate and we find substance in the argument advanced on behalf of the petitioners that independent satisfaction with regard to existence of conditions under Section 3(2) of the Act of 1980 is wanted on part of the District Magistrate.
19. The order of the District Magistrate is in two parts. The first part is the operative portion which directs the petitioners to be detained in District Jail Bijnor, by invoking his jurisdiction under sub-section (3) of Section 3 as conditions exists for exercise of power under sub-section (2) of Section 3 of the Act of 1980. This part of order is contained in the standard format in which the only details of detenue as also the date of order varies. It is the second part of the order that contains the grounds of detention and contains the satisfaction of detaining authority about existence of conditions referred to in sub-section (2) of Section 3 of the Act of 1980 so as to justify his order passed under sub-section (3). The grounds of detention starts at page 121-A of the paper book by mentioning that the petitioner is a man of desperate and cunning nature and goes on to refer to the incident of 18.5.2021 in respect of which FIR is registered as Case Crime No. 291 of 2021. The order then proceeds to virtually copy, page by page, line by line the contents of the proposal of the sponsoring authority. Page 1 to 55 of the grounds of detention, therefore, are copied from the recommendations of the sponsoring authority. The contribution of District Magistrate in the entire 55 pages is his satisfaction that petitioners release is detrimental to maintenance of public order and his preventive detention is required.
20. Contentions are advanced by respective counsels on the aspect relating to application of mind on part of the District Magistrate, as also the manner of its ascertainment, for the purposes of arriving at his independent satisfaction with regard to existence of conditions referred to in sub-section (2) of Section 3 of the Act of 1980 so as to justify invocation of jurisdiction under sub-section (3).
21. Sri Ali Murtaza, learned AGA submits that the material on the basis of which such satisfaction is to be recorded by the District Magistrate remains the same, as is referred to by the sponsoring authority in his report and, therefore, the District Magistrate has done no wrong while copying facts from the recommendation of the sponsoring authority.
22. While we do agree that facts and circumstances which have led to the recommendation by the sponsoring authority for preventing detention of petitioners remains the same on which satisfaction of the District Magistrate is to be based, but from the phraseology of the order and reference of material relied upon by the District Magistrate in the order of detention the application of mind on part of the District Magistrate must be reflected or else the satisfaction itself of the detaining authority would be vitiated.
23. Page by page we are shown that grounds of detention contained in the order of the District Magistrate is virtual copy of the recital contained in the recommendation of the sponsoring authority. Language as well as phraseology of facts remains unaltered and clearly suggests lack of independent application of mind on part of the District Magistrate.
24. Except for the satisfaction recorded by the District Magistrate in one sentence that on the basis of materials referred to in the grounds of detention, he is satisfied about existence of conditions warranting petitioners' preventive detention there is nothing on record which may even remotely suggest that District Magistrate has cared to read the recommendation of the sponsoring authority or satisfy himself about existence of conditions which justify the passing of order of preventive detention.
25. The satisfaction that conditions exist to detain a citizen with a view to preventing him from acting in any manner prejudicial to the maintenance of public order has to be of the District Magistrate or the Commissioner of Police, as the case may be. Such satisfaction on part of the sponsoring authority would not suffice. While District Magistrate is entitled to go through the recommendation made by the sponsoring authority for exercise of power under sub-section (3) of Section 3, but the satisfaction with regard to existence of necessary conditions has to be of the designated authority i.e. District Magistrate alone, which must be reflected in his own order.
26. The satisfaction of the detaining authority is sine qua non for exercise of jurisdiction under sub-section (3) of Section 3 of the Act of 1980. Recording of satisfaction by the District Magistrate/detaining authority in his own language would be necessary to indicate application of mind on part of the detaining authority. The satisfaction of the detaining authority may not be as exhaustive as is contained in the proposal of the sponsoring authority but he must record his independent satisfaction with regard to existence of conditions justifying invocation of power under Section 3(3) of the Act of 1980. His satisfaction need not be a virtual reproduction of all facts narrated in the recommendation of the sponsoring authority but must concisely refer to the materials on record on the basis of which he has come to the conclusion about existence of conditions justifying preventive detention of the detenue.
27. Importance of application of mind on part of the detaining authority and his independent satisfaction about existence of necessary conditions has been emphasised by the Supreme Court in Jai Singh and Others Vs. State of Jammu & Kashmir, (1985) 1 SCC 561, wherein the Supreme Court has observed as under:-
"These seven writ petitions under Article 32 of the Constitution have to be allowed on the sole ground that there has been a total non-application of the mind by the detaining authority, the District Magistrate of Udhampur. We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of village Bharakh, Tensil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in, the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner. We also notice that in the petition filed by the detenu, he had expressly alleged that he and the others had already been taken into custody in connection with a criminal case on July 6, 1984 itself and all of them were in custody since then. The detenu has given details of where he was taken and when. He has also referred to the circumstance that an application for bail was moved on his behalf on the 18th before the High Court and it was only thereafter that the order of detention was made. These facts have not been denied in the counter-affidavit filed by the respondents. In fact we are unable to find anything in the records produced before us, either in the police dossier submitted to the District Magistrate for action or in any other document forming part of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases."
28. Judgment in Jai Singh (supra) has been followed in Rajesh Vashdev Adnani Vs. State of Maharashtra and others, (2005) 8 SCC 390, wherein the Supreme Court observed as under in para 9 to 13:-
"9. Perusal of the proposal made by the sponsoring authority and the order of detention passed by the detaining authority would show that except by substituting word "he" by "you" no other change was effected.
10. But for the said change the proposal and the order of detention is verbatim the same.
11. Mr Naphade, learned Senior Counsel appearing for the respondent submitted that from the records produced before us it would be evident that there had been due application of mind on the part of Respondent 2 in passing the order of detention. This may be so but keeping in view the safeguards envisaged under Article 22 of the Constitution it was absolutely essential for the second respondent herein to apply her mind not only at the time of grant of approval to the proposal for detention but also when the actual order of detention and grounds thereof are prepared. To the aforementioned extent there has been no application of mind on the part of the second respondent herein, and, thus, we are of the opinion that the impugned order of detention dated 3-11-2004 cannot be sustained.
12. The views we have taken derive support from the judgment of this Court in Jai Singh v. State of J&K, (1985) 1 SCC 561, wherein the Division Bench held: (SCC pp. 561-62, para 1) "We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited ''The subject is an important member of....' Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate, has done is to change the first three words ''the subject is' into ''you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi'. Thereafter word for word the police dossier is repeated and the word ''he' wherever it occurs referring to Jai Singh in the dossier is changed into ''you' in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
13. For the reasons aforementioned the order of detention passed against the detenu Vashdev Gobardhan as also the impugned judgment cannot be sustained. It is quashed accordingly. He is directed to be released if not wanted in connection with any other case."
29. Constitutional safeguards and legislative scheme of the Act of 1980 has been referred to in a recent judgment of the Supreme Court in Sarabjeet Singh Mokha Vs. District Magistrate, Jabalpur and others, 2021 SCC OnLine SC 1019. Though the aspect for examination was distinct there i.e. delay in disposal of representation, but the constitutional safeguards in such matters have been emphasised by the Court in following words:-
"17. Article 22 of the Constitution provides specific protections to undertrials and detainees in India. The framers of the Constitution, who were also our freedom fighters, were conscious of founding a polity that secured civil and political freedoms to its citizens. Dr. B R Ambedkar, while proposing the article, noted the necessity of retaining the concept of preventive detention "in the present circumstances of the country". However, the discontinuity from the colonial regime lay in the introduction of strict countervailing measures that ensured that "exigency of liberty of the individual [is not] placed above the interests of the State" in all cases.
18. The specific provisions relating to preventive detention under Article 22 were framed in the following terms:
"(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe-
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)."
(emphasis supplied)
19. The text of Article 22 enshrines certain procedural safeguards, many of which are otherwise available in the CrPC. In elevating these safeguards to a constitutional status, the framers imposed a specific "limitation upon the authority both of Parliament as well as [State] Legislature [to] not abrogate" rights that are fundamental to India's constitution. Dr Bakshi Tek Chand, a conscientious dissenter to preventive detention in peaceful times, proposed a further safeguard in the provision of a right to make representation to the detenu, which was eventually accepted by the Constituent Assembly as a reasonable compromise43 Therefore, preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.
20. This history of the framing of Article 22 is critical for the judiciary's evaluation of a detenu's writ petition alleging, inter alia, a denial of the timely consideration of his representation. While several arguments have been preferred by the appellant to argue for his release from preventive detention, we are confining our analysis to the most clinching aspect of this case - the failure of the Central Government and the State Government to consider his representation dated 18 May 2021 in a timely manner."
30. Whether the material referred to in the communication of the sponsoring authority depicts concerns of law and order vis-a-vis public order or that possibility exists of detenue indulging in acts prejudicial to maintenance of public order or that he is likely to be released etc. are issues that directly affect the liberty of citizens and cannot be allowed to be dealt with in a cursory manner. Routine exercise of power in that regard or passing of formatted orders where recommendations made by the sponsoring authority are physically lifted and included in the body of the grounds of detention cannot be approved of. Unless it is shown from the order that the detaining authority has independently applied his mind upon the materials placed before him, to come to a conclusion with regard to existence of material justifying invocation of power under Section 3(3) of the Act of 1980, the order itself would be rendered invalid. One of the surest ways to ascertain application of mind on part of the detaining authority is the independent recording of reasons/satisfaction by the detaining authority in the grounds of detention.
31. At this juncture, we would like to emphasis one of the main factors which has persuaded us to accept petitioner's contention that there is no independent application of mind on part of the detaining authority with regard to existence of conditions justifying the order of preventive detention. The petitioner in leading case is nominated as accused in two cases i.e. Case Crime No. 291 of 2021, under Sections 147, 148, 149, 302, 504, 506, 34 IPC and Section 7 of the Criminal Law Amendment Act as also in Case Crime No. 333 of 2021, under Section 3/25 Arms Act, Police Station Chandpur, District Bijnor. The sponsoring authority has mentioned that the detenue has applied for bail in Case Crime No. 291 of 2021, but there is no disclosure of any bail application having been filed in Case Crime No. 333 of 2021. The possibility of likely release of detenue would arise only when he is enlarged on bail in both the cases. There is nothing on record to show in the recommendation of the sponsoring authority that detenue has applied for bail in Case Crime No. 333 of 2021 or that there exists material to show that he would be enlarged on bail in the other case.
32. The omission of aforesaid fact in the recommendation of the sponsoring authority is virtually dittoed in the grounds of detention also, passed by the detaining authority. His order also refers to filing of bail application by the petitioner in Case Crime No. 291 of 2021 only and completely omits to consider the import of non filing of bail application in other case i.e. 333 of 2021.
33. The fact that petitioner had not applied for bail in other case i.e. Case Crime No. 333 of 2021 was an extremely important fact and its non consideration would vitiate the satisfaction warranted for exercise of jurisdiction under Section 3(3) of the Act of 1980. We are reminded of the observations made by the Supreme Court in Ayya Alias Ayub vs State Of U.P. & Another, (1989) 1 SCC 374 highlighting the need of protection of personal liberty in Constitution as also the observance of procedural safeguards in paragraphs 11 to 21 of the judgment, which are reproduced hereinafter:-
"11. Personal liberty protected under Article 21 of the Constitution is held so sacrosant and so high in the scale of constitutional values that this Court has shown great anxiety for its protection and wherever a petition for writ of habeas corpus is brought up, it has been held that the obligation of the detaining authority is not confined just to meet the specific grounds of challenge but is one of showing that the impugned detention meticulously accords with the procedure established by law. Indeed the English courts a century ago echoed the stringency and concern of this judicial vigilance in matters of personal liberty in the following words: [Thomas Pelham Dales case, (1881) 6 QBD 376, 461] "Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue."
12. It has been said that the history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right is stressed in the words of Lord Denning: [Freedom Under The Law, Hamlyn Lectures, 1949] "Whenever one of the King's Judges takes his seat, there is one application which by long tradition has priority over all others. counsel has but to say ''My Lord, I have an application which concerns the liberty of the subject' and forthwith the Judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail, but, whatever form it takes, it is heard first."
13. Personal liberty, is by every reckoning, the greatest of human freedoms and the laws of preventive detention are strictly construed and a meticulous compliance with the procedural safeguards, however technical, is strictly insisted upon by the courts. The law on the matter did not start on a clean slate. The power of courts against the harsh incongruities and unpredictabilities of preventive detention is not merely "a page of history" but a whole volume. The compulsions of the primordial need to maintain order in society, without which the enjoyment of all rights, including the right to personal liberty, would lose all their meaning are the true justifications for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might, it is true, require the sacrifice of the personal liberty of individuals. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State provides grounds for a satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion; but the compulsions of the very preservation of the values of freedom, or democratic society and of social order might compel a curtailment of individual liberty. "To lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to be lose the law itself, with life, liberty and all those who are enjoying with us; thus absurdly sacrificing the end to the means". This is, no doubt, the theoretical justification for the law enabling preventive detention.
14. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other. But the realities of executive excesses in the actual enforcement of the law have put the courts on the alert, ever-ready to intervene and confine the power within strict limits of the law both substantive and procedural. The paradigms and value judgments of the maintenance of a right balance are not static but vary according as the "pressures of the day" and according as the intensity of the imperatives that justify both the need for and the extent of the curtailment of individual liberty. Adjustments and readjustments are constantly to be made and reviewed. No law is an end in itself. The "inn that shelters for the night is not journey's end and the law, like the traveller, must be ready for the morrow".
15. As to the approach to such laws which deprive personal liberty without trial, the libertarian judicial faith has made its choice between the pragmatic view and the idealistic or doctrinaire view. The approach to the curtailment of personal liberty which is an axiom of democratic faith and of all civilised life is an idealistic one, for, loss of personal liberty deprives a man of all that is worth living for and builds up deep resentments. Liberty belongs what correspond to man's inmost self. Of this idealistic view in the judicial traditions of the free world, Justice Douglas said: [See "On Misconception of the Judicial Function and the Responsibility of the Bar", Columbia Law Review, Vol. 59, p. 232] "Faith in America is faith in her free institutions or it is nothing. The Constitution we adopted launched a daring and bold experiment. Under that compact we agreed to tolerate even ideas we despise. We also agreed never to prosecute people merely for their ideas or beliefs...."
16. Judge Stanley H. Fuld of the New York Court of Appeals said: [ Quoted by Justice Douglas, id. at p. 233] "It is a delusion to think that the nation's security is advanced by the sacrifice of the individual's basic-liberty. The fears and doubts of the moment may loom large, but we lose more than we gain if we counter with a resort to alien procedures or with a denial of essential constitutional guarantees."
It was a part of the American judicial faith that the Constitution and Nation are one and that it was not possible to believe that national security did require what the Constitution appeared to condemn.
17. Under our Constitution also the mandate is clear and the envoy is left under no dilemma. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State's security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions.
18. In Icchu Devi Choraria v. Union of India [(1980) 4 SCC 531 : 1981 SCC (Cri) 25 : AIR 1980 SC 1983] Bhagwati J. spoke of this judicial commitment: [AIR p. 1988 : SCC p. 538, SCC (Cri) p. 32, para 5] "The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.
This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention..."
(emphasis supplied)
19. In Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14 : 1984 SCC (Cri) 361 : AIR 1984 SC 1334] Justice Chinnappa Reddy, J. in his concurring majority view said : [AIR p. 1336 : SCC p. 19, SCC (Cri) p. 366, para 1] "... I do not agree with the view that ''those who are responsible for the national security or for the maintenance of public order must be the sole Judges of what the national security or public order requires'. It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters ... There are two sentinels, one at either end. The legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have been transgressed."
20. In Hem Lall Bhandari v. State of Sikkim [(1987) 2 SCC 9 : 1987 SCC (Cri) 262 : AIR 1987 SC 762, 766] it was observed: [SCC p. 14, SCC (Cri) p. 267, para 12] "It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers."
21.There are well-recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the detaining authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public law and the public law courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the degree of probative criteria for the satisfaction for detention is of course in the domain of the detaining authority"
34. In light of the discussions aforesaid as also the law settled in the matter, we are of the considered opinion that the satisfaction of the detaining authority with regard to existence of reasons justifying the order of preventive detention against the petitioner suffers from lack of independent application of mind, which renders the subjective satisfaction of the authority vitiated in the eyes of law. The order of detention, therefore, cannot be sustained. Subsequent orders passed on the basis of such order, therefore, must also fail. Writ Petition No. 5 of 2022 is, therefore, allowed.
35. So far as the writ petition filed by petitioner Nikhil Kumar (Habeas Corpus Writ Petition No. 6 of 2022) is concerned, detention order refers to the facts about the detenue having been arrested on 19.5.2021 in Case Crime No. 291 of 2021, under Sections 147, 148, 149, 302, 504, 506, 34 IPC and Section 7 of the Criminal Law Amendment Act, Police Station Chandpur, District Bijnor as also his implication in Case Crime No. 292 of 2021, under Section 3/25 Arms Act and in Case Crime No. 374 of 2021, under Section 3(1) of U.P. Gangsters Act, Police Station Chandpur, District Bijnor. However, the grounds of detention merely refers to the fact that the petitioner Nikhil Kumar has applied for grant of bail in Case Crime No. 291 of 2021 alone. There is no reference of filing of any bail application in the grounds of detention in the other two cases i.e. Case Crime No. 292 of 2021 and Case Crime No. 374 of 2021. This important omission appears to be a direct consequence of failure contained in the recommendation of the sponsoring authority about non filing of bail application in Case Crime no. 292 of 2021 and Case Crime No. 374 of 2021. We are, therefore, of the view that the order of detention passed against the petitioner Nikhil Kumar also suffers from the same jurisdictional infirmity on account of which we have allowed the leading writ petition. The detention orders passed as against the petitioner Nikhil Kumar also stands quashed for the same reasons.
36. In the writ petition filed by petitioner Surendra Singh @ Shailendra Singh (Habeas Corpus Writ Petition No. 8 of 2022) detention order refers to the fact that the detenue has been arrested on 7.6.2021 in Case Crime No. 291 of 2021, under Sections 147, 148, 149, 302, 504, 506, 34 IPC and Section 7 of the Criminal Law Amendment Act, Police Station Chandpur, District Bijnor as also in Case Crime No. 332 of 2021, under Section 3/25 Arms Act, Police Station Chandpur, District Bijnor. Here also the grounds of detention merely refers to the fact that the petitioner Surendra Singh @ Shailendra Singh has applied for grant of bail in Case Crime No. 291 of 2021 alone. There is no reference of filing of any bail application in the grounds of detention in the other case i.e. Case Crime No. 332 of 2021. This important omission appears to be a direct consequence of failure in that regard contained in the recommendation of the sponsoring authority wherein also no fact about filing of bail application in Case Crime no. 332 of 2021 are recorded. We are, therefore, of the view that the order of detention passed against the petitioner Surendra Singh @ Shailendra Singh also suffers from the same jurisdictional infirmity on account of which we have allowed the leading writ petition. The detention orders passed as against the petitioner Surendra Singh @ Shailendra Singh also stands quashed for the same reasons.
37. Since the writ petitions succeed on the first argument itself, we are not required to examine other grounds urged in support of the writ petition. This bunch of writ petitions, accordingly, is allowed. No order is, however, passed as to costs.
Order Date :- 26.4.2022 Anil (Rajnish Kumar, J.) (Ashwani Kumar Mishra, J.)