Allahabad High Court
Kamalveer Singh vs Adhikshak Janpad Karagar And 3 Others on 28 February, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:37742-DB AFR Court No. - 43 Case :- HABEAS CORPUS WRIT PETITION No. - 47 of 2024 Petitioner :- Kamalveer Singh Respondent :- Adhikshak Janpad Karagar And 3 Others Counsel for Petitioner :- Abhishek Kumar Mishra,Chandrakesh Mishra Counsel for Respondent :- A.S.G.I.,G.A. Hon'ble Siddhartha Varma,J.
Hon'ble Ram Manohar Narayan Mishra,J.
1. This writ petition has been filed for the release of the petitioner - Kamalveer Singh, by issuing a writ of habeas corpus.
2. Brief background of the case is that on 10.8.2023 an incident took place whereby one Anuj Chaudhary was killed and a First Information Report was lodged on the same day which gave rise to Case Crime No. 598 of 2023 registered under Sections 302 and 307 IPC. There were four named accused in the case being Amit Kumar, Pushpendra, Aniket and Prabhakar and it was also alleged that there were some other persons who were not known to the First Informant. The First Information Report was got lodged by one Sandeep Singh.
3. Thereafter on 01.11.2023 on the basis of an added Section, namely, section 120B IPC, the petitioner was also implicated in the Case Crime No.598 of 2023 in a conspiratorial role. Further on 07.11.2023 in Case Crime No.818 of 2023, under Section 7/25 of the Arms Act, the petitioner was named in the crime. Still further, on 28.11.2023, the petitioner was implicated in Case Crime No.861 of 2023, under Section 3(1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. He was thereafter in jail.
4. Thereafter, on a report / proposal of the Police dated 30.11.2023, an order under Section 3(2) of the National Security Act, 1980, was passed wherein an order of detention was passed on 3.12.2023 by the District Magistrate for preventive detention of the petitioner.
5. Learned counsel for the petitioner has drawn the attention of the Court to the fact that the petitioner was not named in the First Information Report and only when there was a communication of the brother-in-law of the deceased, namely, Neeraj Khatri the name of the petitioner had surfaced. Thereafter in pursuance of the provisions under Section 3(4) of the National Security Act, 1980, on 12.12.2023 the order of approval was passed by the State Government. The order of preventive detention dated 3.12.2023 was also accompanied by the grounds of detention which were of the same date and they gave reasons on the basis of which detention had been made. In the order dated 3.12.2023 it was also provided that the petitioner could represent before the Advisory Board as is provided under Section 10 of the National Security Act, 1980. Simultaneously the petitioner was also given the opportunity to represent to the Union of India under Section 3(4) of the National Security Act. The petitioner thereafter on the order dated 3.12.2023 being approved under Section 3(4) of the National Security Act, 1980, represented to the Advisory Board by a representation dated 13.12.2023 and also sent his representation to the Union of India through the State Government on the very same date.
6. Thereafter on 16.12.2023 an alleged hearing was undergone and on 3.1.2024 the order of the State Government was passed by which the petitioner's detention order dated 3.12.2023 was confirmed in view of the report of the Advisory Board. The order dated 3.1.2024 provided the preventive detention of the detenue for a period of 3 months, tentatively, from the date of detention.
7. The representation which was sent to the Union of India on 13.12.2023 was received by the Union of India on 22.12.2023 and, thereafter, it was rejected on 23.12.2023 and the communication of the rejection order was sent to the petitioner on 26.12.2023.
8. Learned counsel for the petitioner has submitted that the mere submission of the petitioner that the preventive detention was illegal was sufficient enough for the petitioner to approach this Court and that the State ought to have justified its stand in passing orders. It was sufficient for him to state that the detention order dated 3.12.2023 which was confirmed by the order dated 3.1.2024 was illegally passed and be set aside.
9. In this regard learned counsel for the petitioner relied upon the decisions of the Supreme Court in Icchu Devi Choraria vs. Union of India reported in AIR 1980 SC 1983 and Mohinuddin @ Moin Master vs. District Magistrate, Beed and others reported in AIR 1987 SC 1977.
10. In both the decisions learned counsel for the petitioner specifically relied upon paragraph no. 4. The paragraph no. 4 of Icchu Devi Choraria vs. Union of India reported in AIR 1980 SC 1983 is being reproduced here as under:-
"4. It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: Vide Naranjan Singh v. State of Madhya Pradesh; Sheikh Hanif, Gudma Majhi & Kamal Saha v. State of West Bengal, and Dulal Roy v. The District Magistrate, Burdwan & Ors. It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition. Vide Nazamuddin v. The State of West Bengal. Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam v. State of West Bengal and Khudiram Das v. State of West Bengal & Ors.
11. Similarly the paragraph no. 4 of Mohinuddin @ Moin Master vs. District Magistrate, Beed and others reported in AIR 1987 SC 1977 is being reproduced here as under:-
4. It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under Art. 166 of the Constitution to pass orders on behalf of the Government in such matters: Niranjan Singh v. State of Madhya Pradesh, [1973] 1 SCR 691; Habibullah Khan v. State of West Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State of Bihar & Anr., [1974] 4 SCC 455 and Mohd. Alam v. State of West Bengal, [1974] 4 SCC 463. "
12. Learned counsel for the petitioner has however argued on the merits of the case and has submitted that the provisions of National Security Act had been illegally invoked and that the petitioner was thus under the illegal detention.
13. Learned counsel for the petitioner submitted that:-
(i) The Central Government or the State Government could have detained the petitioner for the maintenance of public order and he has submitted that there was a difference between Public Order and a problem of law and order. Learned counsel for the petitioner has explained the difference between a law and order problem and the difficulty in maintaining public order and has submitted that, if there was a disturbance to public order, then the tempo of life of the community as a whole was disturbed. He has submitted that every assault in a public place like a public road which culminates in the death of any particular victim is definitely likely to cause horror and create panic and terror to those who are spectators, but it does not mean that all such incident necessarily cause disturbance or dislocation of the community life of the localities in which they are committed to such an extent that the State has to work towards maintenance of public order. He further submits that an act which is so grave or intense which would jeopardize the maintenance of public order only then would the State invoke the provisions of the National Security Act, 1980 and would prevent a person from acting in a manner which would be prejudicial to maintenance of public order. In the instant case he has submitted that Anuj Chaudhary, as per the allegations made in the FIR and as per the letter written by his brother-in-law was having some money transactions between the parties and because of that the murder had taken place.
Learned counsel for the petitioner, therefore relying upon 1985 ALJ 1222 (Sheshdhar Misra v. Superintendent, Central Jail, Naini and others); 1966 1 SCR 709 (Dr. Ram Manohar Lohia v. State of Bihar); 1970 1 SCC 98 (Arun Ghosh v. State of West Bengal); 2023 LiveLaw (SC) (Yusuf Malik vs. Union of India & Ors.); 2023 0 Supreme (SC) 825 (Ameena Begum vs. The State of Telangana and others); 1972 2 SC 2686 (Dipak Bose v. State of West Bengal) and (1990) 2 SCC 456 (Mrs. T. Devaki vs. Government Of Tamil Nadu and Ors.) has submitted that just because of any disorderly behaviour of a person in the public or just because of the commission of a certain criminal offence which would affect the law and order, lead a Government to take such actions which would result in the preventive detention of any individual, who according to the Government was indulging in acts which were prejudicial to maintenance of public order. He submits that not all law and order problems would affect the maintenance of public order.
Learned counsel for the petitioner has since heavily relied upon paragraph No. 18 of the Judgment in Mrs. T. Devaki vs Government Of Tamil Nadu And Ors (supra) the same is being reproduced as under:-
"18. The question which falls for consideration is whether single incident of murderous assault by the detenu and his associates on the Minister at the Seminar held at Dry Chilly Merchants Association Kalai Arangam Hall was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. There is basic difference between law and order and public order, this aspect has been considered by this Court in a number of decisions, see: Dr. Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709: (AIR 1966 SC 740); Pushkar Mukherjee v. State of West Bengal (1969) 2 SCR 635 : (AIR 1970 SC 852) and Shymal Chakraborty v. Commr. of Police Calcutta, (1970) 1 SCR 762: (AIR 1970 SC 269). In these cases it was emphasised that an act disturbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquility. It is the degree of disturbance and its effect upon the life of the community in the locality which determines the nature and character of breach of public order. In Arun Ghosh v. State of West Bengal (1970) 3 SCR 288 : (AIR 1970 SC 1228), the Court held that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Mondal v. State of West Bengal (1972) 1 SCC 498 : (AIR 1972 SC 665); Sudhir Kumar Saha v. Commr. of Police, Calcutta (1970) 3 SCR 360 : (AIR 1970 SC 814); S. K. Kadar v. State of West Bengal (1972) 3 SCC 816 : AIR 1972 SC 1647; Kanu Biswas v. State of West Bengal (1972) 3 SCC 831 : (AIR 1972 SC 1656); Kishori Mohan v. State of West Bengal (1972) 3 SCC 845 : (AIR 1972 SC 1749) and Amiya Kumar Karmakar v. State of West Bengal (1972) 2 SCC 672 (AIR 1972 SC 2259)."
Learned counsel for the petitioner has also relied upon paragraphs no. 54 and 55 of the judgment in the case of Dr. Ram Manohar Lohiya Vs. State of Bihar reported in AIR 1966 SC 740 and the same are being reproduced as under:-
"54....... Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are.
55. It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and Order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
(Emphasis supplied)"
Learned counsel for the petitioner has, therefore, submitted that simply by saying that the murder of Anuj Chaudhary had caused disturbance of law and order and, therefore, public order was prejudiced was not the correct stand of the State Government. A comprehensive examination of the event and all the chain reactions that event had would have to be looked into.
(ii) Learned counsel for the petitioner has thereafter submitted that action under the National Security Act could have been taken only if there was a possibility of the petitioner being released on bail. In this regard learned counsel for the petitioner has relied upon the decisions of the Supreme Court in Kamarunnissa vs. Union of India & Anr. : (1991) 1 SCC 128; Baby Devassy Chully @ Bobby vs. Union of India & Ors. : (2013) 4 SCC 531 and on the decisions this Court in Abhayraj Gupta vs. Superintendent, Central Jail, Bareilly : 2022 (1) ADJ 451.
Learned counsel for the petitioner has relied upon the averments made in the writ petition and has stated that it was very categorically stated in paragraph No. 28 of the writ petition that the petitioner's bail in Case Crime No. 598 of 2023, which was registered under Sections 302, 307 and 120B IPC was rejected and that there was yet no bail application moved in the Arms Act and in the Gangsters Act. These allegations, in the counter affidavit have not been successfully rebutted.
Learned counsel for the petitioner, therefore, submits that when there was absolutely no reason for the respondents to believe that petitioner would be moving out of the imprisonment then the provisions of the National Security Act ought not to have been invoked. While relying upon a decision of this court reported in 2022 (1) ADJ 451 : Abhayraj Gupta v. Superintendent, Central Jail, Bareilly, learned counsel for the petitioner has stated that under the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986, a bail order was not granted as is granted for just any other offence under the IPC. Section 19 of the aforesaid act provides that public prosecutor shall be given an opportunity to oppose the bail application for such release and also when the public prosecutor opposes the bail application, the Court shall have to be satisfied that there were reasonable grounds for believing that the applicant was not guilty of the offence and that he was not likely to commit any offence while he was on bail. Learned counsel for the petitioner therefore submits that when there was absolutely no reason for the State to believe that the petitioner would be bailed out from jail in any of the three crimes he was involved in there, the invocations of the provisions of National Security Act was done without any application of mind.
Leaned counsel for the petitioner here has relied upon a judgment of the Supreme Court reported in 2011 (5) SCC 244 : Rekha v. State of T. Nadu TR. SEC.TO.GOVT. & Anr. and has submitted that preventive detention is by nature repugnant to democratic ideas and an anathema to the rule of law. He submits that when by the ordinary law of the land the petitioner was already under a punitive detention then was not at all required.
Learned counsel for the petitioner has relied upon paragraphs No. 27, 29 and 30 of the above noted judgment reported in 2011 (5) SCC 244 : Rekha v. State of T. Nadu TR. SEC.TO.GOVT. & Anr and the same are being reproduced here as under:-
" 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.
...........
29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."
Concluding this argument learned counsel for the petitioner submitted that when there was absolutely no chance of the petitioner being bailed out in the cases where he was punitively detained then there was no doubt about the fact that the petitioner should not have been preventively detained.
(iii). Learned counsel for the petitioner, thereafter has submitted that when the petitioner had been served with the order dated 03.12.2023 and when he was asked by that order to represent before the Advisory Board, then the petitioner had through the jail authorities represented on 13.12.2023. The hearing was fixed for 16.12.2023. On that date, learned counsel for the petitioner has stated that even though the State Authorities were given the assistance of lawyers, the petitioners were deprived of any legal assistance. This statement has been made in paragraph 43 of the writ petition. This paragraph has been replied to in paragraph no. 30 the counter affidavit filed by the District Magistrate wherein he has stated that the contents of paragraph No. 43 of the writ petition do not pertain to the answering respondent. Further it is submitted that State has not given any parawise reply to the contents of the writ petition. This, learned counsel for the petitioner states would mean that though the State had the privilege of legal assistance, the petitioner was deprived of the same.
Learned counsel for the petitioner therefore, submits that the petitioner's interest was greatly prejudiced. He submits that as per the law laid down in the judgment of Najar Quraishi Vs. Superintendent and three others passed on 19.09.2018 in Habeas Corpus Petition No.3293 of 2018, assistance of legal advisors when had been extended in the form of Government Officials to the State, then the petitioner also ought to have been given the assistance of lawyers/Amicus Curiae etc. The judgment in Najar Quraishi has relied upon the judgment of the Supreme Court in A.K. Roy Vs. Union of India and another, reported in (1982) 1 SCC 271 and on the judgement of Choith Nanikram Harchandani v. State of Maharashtra and Others reported in (2018) 2 SCC (Cri) 403. Since learned counsel for the petitioner has specifically relied upon paragraph No.93 of the judgment of A.K. Roy Vs. Union of India and another, the same is being reproduced herein as under:-
"93. We must therefore hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22 (3) (b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not 'legal practitioners' or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely 'qualified to be appointed' as High Court Judges may have to do a little homework in order to appreciate it."
Similarly the Apex Court in the case of Choith Nanikram Harchandani (supra) in paragraph 15 as held as hereunder :-
"15. In our considered opinion, since the detaining authority was represented by the officers at the time of hearing of the petitioner's case before the Advisory Board, the petitioner too was entitled to be represented through legal practitioner. Since no such opportunity was afforded to the petitioner though claimed by him, he was denied an opportunity of a fair hearing before the Advisory Board, which eventually resulted in passing an adverse order."
Therefore learned counsel submitted that when the petitioner was not granted any opportunity to have legal assistance and the State had then as per the law laid down by the Supreme Court, the detention becomes illegal.
(iv). Learned counsel for the petitioner has thereafter submitted that when the event which was taken into account for the invocation of the provisions of National Security Act had occurred on 10.08.2023 and the preventive detention order under Section 3(2) of the National Security Act was passed on 03.12.2023, the cause of action which formed the basis of the action taken under the NSA had become absolutely stale and, therefore, the provisions of National Security Act could not be evoked. For this purpose the learned counsel for the petitioner has relied upon the judgments of the Supreme Court in Alijan Mian vs. District Magistrate, Dhanbad and others : 1983 (4) SCC 301; Md. Sahabuddin vs. District Magistrate, 24 Parganas and others : 1975 (4) SCC 114. When the Division Bench of this Court in the case of Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly reported in 2022 (1) ADJ 451 had passed the judgment on the basis of the fact that staleness could be a ground for releasing of detenu detained under the National Security Act, the judgments of the Supreme Court cited above had been dealt with in extenso. Paragraphs No. 36, 37, 38, 39, 40 and 41 of that judgment are relevant for the purposes of this case and these were the paragraphs which were relied upon by the learned counsel for the petitioner Sri Daya Shankar Mishra and they are being reproduced as under:-
"36. Now we proceed to examine the second ground of challenge, i.e. that the incident which took place on 02-12-2019 is a stale incident which is not proximate to the time when the detention order was passed on 23-01-2021 and there was no live link between the alleged prejudicial activity and the purpose of detention and for this reason, the invocation of the provisions of the NSA, 1980 after a long delay of about 14 months was neither warranted nor justified.
37. Sri D. S. Misra, learned Senior Advocate appearing for the petitioner has placed reliance on the following dictum of the Hon'ble Supreme Court in the case Ali Jaan Miyan Vs. District Magistrate, Dhanbad, (1983) 4 SCC 301:-
".......when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily explained such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case.
39. In the instant case, the last offence was committed on 3-6-1993 and the detention order was passed on 4-5-1994. No explanation is forthcoming in the return. It is argued that the S.P.'s report states that the detenu was absconding and case was filed under S. 299, Cr.P.C. The period during which he was allegedly absconding is not disclosed. In these circumstances, we are of the opinion that the live link between the alleged incident or the series of incidence and the detention order is snapped and there is no proximity between the crime committed and the order of detention."
38. In Jagan Nath Biswas v. State of W.B., (1975) 4 SCC 115, the Hon'ble Supreme Court quashed the detention order holding that "2. The incidents themselves look rather serious but also stale, having regard to the long gap between the occurrences and the order of detention. One should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at."
39. In Mohd. Sahabuddin v. Distt. Magistrate, 24 Parganas, (1975) 4 SCC 114, the Hon'ble Supreme Court quashed the order of preventive detention on the sole ground that the order of preventive detention was passed nearly seven months after the criminal incident.
40. In Shalini Soni v. Union of India, (1980) 4 SCC 544, the Hon'ble Supreme Court while examining the validity of a détention order held as follow:-
".....It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote...."
(emphasis supplied)
41. In the present case, the incident in question took place on 02-12-2019, the petitioner was arrested on 22-12-2021, he was lodged in jail on 23-12-2021 and he was continuing to be in custody till 23-01-2021 - the date on which the impugned order of prevention was passed. The incident which occurred on 02-12-2019, i.e. about 14 months prior to passing of the detention order, is certainly a stale incident which is not proximate to the time when the detention order dated 23-01-2021 was passed and there was no live link between the alleged prejudicial activity and the purpose of detention and the invocation of the provisions of the NSA, 1980 against the petitioner after a long delay of about fourteen months was neither warranted nor justified."
(v). Learned counsel for the petitioner while relying upon the judgment of the Supreme Court in 2011 (5) SCC 244 : Smt. Rekha Vs. State of Tamil Nadu and another has submitted that preventive detention was an extreme action which a State takes. This preventive detention is done in addition to the punitive detention which is done in the actual case which gives rise to the preventive detention and therefore, the State should be circumspect in taking action under the National Security Act, 1980. He therefore, submits that when the representation is made to the Advisory Board, simultaneously representation is also provided for being made to the Central Government (as an added handle to the detenue to place his/her case before the Central Government).
Learned counsel for the petitioner, therefore, has submitted that when the petitioner had represented to the Central Government on 13.12.2023 from Moradabad Jail, then the representation ought to have reached the Central Government in Delhi within a few hours, but in the instant case, as has been stated in the counter affidavit filed by the Union of India, the representation which started from its initial place of origin on 13.12.2023 reached the Ministry of Home Affairs on 22.12.2023 and after the matter was looked into by the Central Government, the Joint Secretary of the Central Government, rejected the same on 23.12.2023 and the information of the rejection reached the petitioner on 26.12.2023.
Learned counsel for the petitioner relying upon 1999 (1) SCC 417 : Rajammal vs. State Of Tamil Nadu And Another has submitted the very fact that the representation was looked into in a most tardy manner and the decision was taken after almost 10 days renders the preventive detention illegal as has been held in the case of Rajammal Vs. State of Tamil Nadu and another (supra). The delay in that case was of 5 days and the Supreme Court on that basis had released the detenu considering the preventive detention as illegal. Paragraph No.11 of the judgment Rajammal Vs. State of Tamil Nadu and another (supra) is being reproduced herein as under:-
"11. We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed. We therefore allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith."
Apart from the above, arguments learned counsel for the petitioner has submitted that petitioner was given only a conspiratorial role. He was not present at the spot when the actual event had taken place and he has submitted that the provisions of the National Security Act had not been invoked against the named assailants in the first information report.
14. Sri P.C. Srivastava, learned Additional Advocate General, assisted by Sri Amit Sinha, however, has opposed the writ petition and has submitted that if the grounds of detention are seen then it becomes evident that the incident which had occurred on 10.08.2023 was such an incident which had disturbed public order of the area. It was not just a law and order problem. He further submits that the chronology of events becomes important. On 10.08.2023 the incident had occurred and thereafter when the petitioner was jailed on 1.11.2023 in pursuance of the addition of Section 120B IPC in Case Crime No.598 of 2023 and thereafter on 04.11.2023 itself a bail application was moved for the release of the petitioner in Case Crime No.598 of 2023.
15. Learned counsel for the State has further stated that as per Section 11(4) of the NSA, there was absolutely no entitlement for the petitioner to be represented through any legal practitioner.
16. Sri Arvind Singh, learned counsel appearing on behalf of the Union of India submitted that there was no delay in the decision taken by the Union of India.
17. Having heard Sri Daya Shankar Mishra, learned Senior Advocate assisted by Sri Chandrakesh Mishra and Sri Abhishek Kumar Mishra, learned counsel for the petitioner; Sri P.C. Srivastava, learned Additional Advocate General assisted by Sri Amit Sinha, learned A.G.A. for the State and Sri Arvind Singh learned counsel for the Union of India, we are of the view that the writ petition deserves to be allowed and the petitioner be released from preventive detention.
18. From the arguments, which have been placed before us, we find that the grounds of detention were absolutely vague. No specific grounds had been taken as to how public order was being disturbed and only bald statements have been given out in the grounds of detention that when the incident had taken place, the locality had got disturbed. If the law as has been laid down by our Courts is perused, it becomes clear that a distinction has to be drawn between what is a law and order problem and what exactly is a disturbance of public order.
19. In 1985 All LJ 1222 : Sheshdhar Misra vs. Superintendent, Central Jail Naini and Ors., which is a Full Bench decision of this Court, the High Court has said that the order of detention could not be passed in a mechanical manner without any application of mind. The Authority concerned had to compulsorily look into the fact as to whether the disorder created by the event was a temporary disorder or whether it was such a disorder which would absolutely put the society out of gear and there would be difficulty in maintaining of public order.
20. The Judgment of the Supreme Court in Dr. Ram Manohar Lohia vs. State of Bihar reported in AIR 1966 SC 740 has held that public order was set to embrace more of the community than just the law and order of the area. Public order is an even tempo of the life of a community taking the country as a whole or even a specific locality. Disturbance of public order is to be distinguished from the acts directed against the individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. In that judgment, it has been stated that degree of disturbance and its effect upon the life of the community in a locality determines whether the disturbance amounts only to a breach of law and order or whether there was a problem of maintenance of public order. In the instant case, we find that the event of murdering of Anuj Chaudhary had happened on 10.08.2023; the case was registered as Case Crime No. 598 of 2023 under Section 302/307 of IPC and only Amit Kumar, Pushpendra, Aniket and Prabhaker were the named assailants. The F.I.R. had further mentioned about certain unknown assailants. The petitioner, however, was involved only when the brother-in-law of the deceased had mentioned the name of the petitioner in a letter written to the Superintendent of Police on 29.08.2023 and thereafter the petitioner was arrested on 01.11.2023 and that too in a conspiratorial role. Further we find that under the Arms Act, the crime of which was numbered as Case Crime No. 818 of 2023, the petitioner was jailed on 07.11.2023 and with regard to the Gangster's Act, the petitioner's arrest took place on 28.11.2023. The grounds of detention have only mentioned that the petitioner's relatives, after the arrest of the petitioner in Case Crime No. 598 of 2023 on 01.11.2023, had moved a bail application on 04.11.2023. No ground in the "Grounds of Detention" has been mentioned that any bail was moved with regard to the Arms Act and the Gangsters Act. It may be mentioned over here that the bail in the Gangsters Act cannot be obtained without a service of notice on the Public Prosecutor and without the Court being satisfied that the accused would be on the culmination of trial, acquitted.
21. We are, therefore, of the view that the grounds taken in the "Grounds of Detention" which accompanied the detention order dated 03.12.2023 were absolutely vague and that there was no definite conclusion that maintenance of public order was being endangered. Still further, we are of the view that when there was absolutely no chance of the petitioner being released on bail, the provisions of National Security Act, 1980 ought not to have been invoked. The petitioner was jailed on 01.11.2023 in Case Crime No. 598 of 2023 and the bail application as was moved in Case Crime No. 598 of 2023 only after the inclusion of Section 120-B of IPC. This application was rejected on 17.11.2023 by the Sessions Court. There was, on that particular date, no further bail application pending with regard to the Case Crime No. 818 of 2023 under the Arms Act and in the Case Crime No. 861 of 2023 under the Gangsters Act.
22. We are thus of the view that when there was no possibility of the petitioner being released on bail and the petitioner was continuing under punitive detention, then as per the judgments of the Supreme Court passed in Kamarunnissa vs. Union of India & Anr. : (1991) 1 SCC 128; Baby Devassy Chully @ Bobby vs. Union of India & Ors. : (2013) 4 SCC 531 and of this Court in Abhayraj Gupta vs. Superintendent, Central Jail, Bareilly : 2022 (1) ADJ 451 the petitioner could not be detained under the preventive detention laws.
23. Still further, we are of the view that when the State had taken the legal help of Law Officers then as per the case of Najar Quraishi vs. Superintendent & Ors. (Habeas Corpus Writ Petition No.3293 of 2018 decided on 19.9.2018) which relied upon the decision of the Supreme Court in A.K. Roy vs. Union of India : (1982) 1 SCC 271 and Choith Nanikram Harchandani vs. State of Maharashtra & Ors. : 2018 2 SCC (Crl.) 403, the petitioner ought to have compulsorily been given the legal assistance, specially when the petitioner in his representation had asked for one. This having not been done, we are of the view that the detention order becomes unsustainable in the eyes of law. This is what has also been held by this Court in Niyaz Ansari vs. Adhikshak, Janapad Karagar, Chitrakoot & Ors.; Habeas Corpus Petition No.622 of 2023 decided on 19.1.2024
24. The next argument, which the petitioner's counsel had made was that action which was taken under the National Security Act was stale one. Learned counsel for the petitioner had relied upon a judgment of this Court in Abhayraj Gupta vs. Superintendent, Central Jail, Bareilly : 2022 (1) ADJ 451 and has submitted that there was absolutely no live link between the event which occurred on 10.08.2023 and the detention order which was passed on 03.12.2023. As has been argued by learned counsel for the petitioner, the judgments of Ali Jaan Miyan vs. District Magistrate, Dhanbad : (1983) 4 SCC 301 ; Jagan Nath Biswas vs. State of West Bengal : (1975) 4 SCC 115 ; Mohd. Sahabuddin vs. District Magistrate, 24 Parganas : (1975) 4 SCC 114 and Shalini Soni vs. Union of India : (1980) 4 SCC Page 544 become relevant for the decision of this issue.
25. We definitely find that after 10.08.2023, when the incident took place, there was some ruffle in the society but subsequently everything had quietened down. The order under the National Security Act for detaining the petitioner under preventive detention was passed 03.12.2023. By that time, definitely the upheaval in the society, if there was any, had quietened down and, therefore, a stale event ought not to, definitely, have been used for the purposes of the invocation of the National Security Act.
26. We also find that the representation which was sent by the petitioner on 13.12.2013 to the Union of India had for reasons best known to the Authorities concerned reached the Authority of the Central Government on 22.12.2023 and it was subsequently rejected thereafter on 23.12.2023 and the rejection order was communicated to the petitioner only as late as on 26.12.2023. In view of the decision of the Supreme Court in Rajammal vs. State of Tamil Nadu & Anr. : (1999) 1 SCC 417 also the detention order therefore becomes bad in the eyes of law.
27. Having considered all the arguments of the learned counsel for the parties, we are definitely of the view that the petitioner ought to be released after having found that the order dated 03.12.2023 could not be sustained in the eyes of law.
28. Before parting with the case, we may mention that the law of habeas corpus is dealt with in a most technical manner. The writ of habeas corpus could have been issued upon finding :-
(i) the authorities had invoked National Security Act despite the fact that there was no requirement of preventively detaining the detenue for the maintenance of public order;
(ii) there was no chance of the petitioner/detenue being released on bail in the cases in which he was punitively detained;
(iii) the petitioner was not given the assistance of lawyers/amicus curiae when the State was given the assistance of law officers;
(iv) a stale event was taken into consideration for the invocation of the provisions of National Security Act; and
(v) the Union of India had delayed the decision on the representation sent by the petitioner.
29. However, we have dealt with all the issues raised in the case as were argued at length by learned counsel for the petitioner and also we felt that a decision on all the points had to be given.
30. We may reiterate that a finding on just any of the above issues in favour of the detenue would have resulted in the issuing of a writ of habeas corpus and thereafter the release of the detenue.
31. The writ petition is, accordingly, allowed. The order dated 03.12.2023 which was confirmed on 03.01.2024, for the reasons stated above is, therefore, set aside. The petitioner-Kamalveer Singh (detenue) be set at liberty unless he is required in any other case.
Order Date :- 28.2.2024 PK/Ashish/GS (Siddhartha Varma, J.) (Ram Manohar Narayan Mishra, J.)