Allahabad High Court
Riyazuddin vs State Of U.P. & 3 Others on 21 February, 2017
Bench: Shashi Kant Gupta, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on: 24.01.2017 Delivered on: 21.02.2017 Court No. - 45 Case :- HABEAS CORPUS WRIT PETITION No. - 24758 of 2016 Petitioner :- Riyazuddin Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Baikunth Nath Singh,Manish Kumar Singh, Santosh Kumar Singh Counsel for Respondent :- G.A.,A.S.G.I.,Umesh Chandra Tripathi Hon'ble Shashi Kant Gupta,J.
Hon'ble Mrs. Rekha Dikshit,J.
(Delivered by Rekha Dikshit, J)
1. This habeas corpus writ petition has been filed with a prayer to quash the impugned order dated 16.03.2016, passed by District Magistrate, Jalaun, District Jalaun at Orai and order dated 22.03.2016 passed by State of U.P. through Home Secretary Government of U.P., Lucknow.
2. The brief facts of the case are that a first information report was lodged at the police station by one Sri C.V. Verma, Sub Inspector, Police Station Kadaura, District Jalaun on 22.01.2016 at 06:30 pm against unknown persons in Case Crime no.27 of 2016, under Section 3/5/8 Cow Slaughter Act. Sri Karan Singh, S.I., the investigating officer in this case, named 16 persons as accused, in which the name of the petitioner figured at serial no.1. The petitioner and his son were arrested on 31.01.2016 and one knife (Chhuri) was recovered from his possession. The Investigating Officer recorded the statements of Ramu Basora and Veeru Yadav on 02.03.2016 and of Ram Roop Singh Yadav and Raj Kumar Vishwakarma on 05.03.2016, all resident of village Mawai Aheer, who mentioned the involvement of the petitioner.
3. The District Magistrate, Jalaun (respondent no.2) vide order dated 16.03.2016 passed an order for detention of the petitioner under Section 3(2) of National Security Act (Act no.65 of 1980) (hereinafter referred to as the 'Act'). The petitioner has neither filed any representation before respondent no.2 u/s 8 of the Act nor any before U.P. State Advisory Board Lucknow under Sections 9 and 10 of the Act. The order dated 16.03.2016 was confirmed by respondent no.1 vide order dated 22.03.2016.
4. The State of U.P. (respondent no.1) has submitted its counter affidavit on 04.08.2016 stating therein that the detention order dated 16.03.2016, provides grounds for detention and all other connected documents, forwarded by the District Magistrate, Jalaun at Orai vide his letter dated 16.03.2016 were received by the State Government on 17.03.2016. After examining every aspect of the case of petitioner in detail, the State Government approved the order of detention on 21.03.2016. The approval of the detention order was communicated to the petitioner through the district authorities by the State Government radiogram and letter, both dated 22.03.2016, i.e., within 12 days from the date of the detention order as required u/s 3(4) of the Act.
5. It is further stated that a copy of detention order, grounds of detention and all other connected documents, received from the District Magistrate, Jalaun at Orai were also sent to the Central Government by speed post dated 22.03.2016 within seven days from the date of approval by the State Government as required u/s 3(5) of the Act.
6. The case of the petitioner was referred to the U.P. Advisory Board (Detentions), Lucknow by the State Government by forwarding the detention order, grounds of detention and all other connected papers on 22.03.2016, well within three weeks from the date of his actual detention as required u/s 10 of the Act, however, the petitioner did not submit any representation to the State Government.
7. The petitioner appeared for hearing before the U.P. Advisory Board on the date fixed as 20.04.2016. The U.P. Advisory Board, on the said date fixed, heard the petitioner in person and gave its report along with the opinion that there is sufficient cause for the preventive detention of the petitioner under the Act, 1980. This report and the records of the case were received in the concerned section of the State Government on 26.04.2016 through the letter of Registrar, U.P. Advisory Board (Detentions) letter dated 26.04.2016 well with in seven weeks from the date of detention of the petitioner, as provided in Section 11(1) of the Act.
8. It is further stated that on receipt thereof, the State Government once again examined afresh the entire case of the petitioner along with the opinion of the U.P. Advisory Board and took a decision to confirm the detention order and also for keeping the petitioner under detention for a period of 12 months from the date of actual detention of the petitioner, i.e., since 16.03.2016.
9. A counter affidavit and a short counter affidavit have been filed on behalf of District Magistrate, Jalaun (respondent no.2) on 04.08.2016 and 08.12.2016 stating therein that on the basis of report, forwarded by Superintendent of Police, Jalaun at Orai, after being subjectively satisfied upon due consideration over all the facts and circumstances and the said report as well as other materials placed before him, he took preventive action against the petitioner under Section 3(2) of the Act on 16.03.2016. The respondent no.2 also considered immense possibility of petitioner being released on bail and upon release, his further indulgence in similar type of activities, which will be prejudicial to the public order, with a view to prevent the petitioner from acting in any manner prejudicial to maintenance of public order, the petitioner is detained under Section 3(2) of the Act and there is no violation of any fundamental right as provided in Constitution of India.
10. A counter affidavit has been filed on behalf of Superintendent of Police (respondent no.3) on 04.08.2016 stating therein that the detention order dated 16.03.2016 along with grounds of the detention with all relevant materials was served to the petitioner through the jail authorities as the detention order was received in the office of the District Jail, Jalaun on the same day, i.e., on 16.03.2016.
11. A counter affidavit has been filed on behalf of Union of India (respondent no.4) on 10.07.2016 stating therein that a report as envisaged u/s 3(5) of the Act was made to the Central Government, i.e., Ministry of Home Affairs by the Government of Uttar Pradesh vide its letter no. 82/2/03/2016-CX-5 dated 22.03.2016. The said report was received by the Central Government in the concerned section on 04.04.2016. The same was put up for consideration of the Joint Secretary (Internal Security-II), an officer senior in rank to DS/Director, who has been delegated power under sub section 5 of Section 3 of the Act to take note of the report received from the State Government (vide order no. II/15011/14/07-NSA) dated 11.11.2013 by the Union Home Minister) on 05.04.2016, who took note of the report u/s 3(5) of NSA, 1980 and felt that there was no reason to interfere with the said detention order.
12. Heard Sri B. N. Singh, learned counsel for the petitioner, Sri Rajeev Gupta, learned AGA for the State, Sri Umesh Chandra Tripathi, learned counsel for Union of India and perused the record.
13. The scope of judicial review, where the provisions of Section 3(2) of the Act is involved, is only to the extent that as to whether the subjective satisfaction arrived at by the District Magistrate in passing the detention order, is based on relevant material or not. With this prelude, we have to examine the case of the petitioner.
14. To challenge the order of detention three points have been convassed before this Court, they are:
(i) Firstly, it is urged that the impugned order dated 16.03.2016 has been passed in an arbitrary manner without application of mind by the detaining authority. He has been falsely implicated in the present case only on the basis of his criminal history as mentioned in the ground of detention at serial nos. 1, 2, 5 and 6. There is no specific allegation levelled against him in the cases shown under 3/5/8 Cow Slaughter Act, in which he has been falsely implicated. The detention order has been signed in mechanical manner and the grounds mentioned are nothing but exact reproduction of the report of the sponsoring authority except with minor and insignificant changes.
(ii) Secondly, it is further argued that the detention order is discriminatory in the sense that out of several persons alleged to be involved in the aforesaid case, only one, i.e., detenue has been selected to be detained under the Act.
(iii) Thirdly, it has been submitted that the petitioner is not named in the first information report and his name surfaced for the first time in GD on 24.01.2016 on the basis of information furnished by the informer to the Investigating Officer and later on he was named by witnesses in their statements. He was neither arrested on the spot nor any incriminating article was recovered from his possession but for one knife. It is apparent from the detention order that the case registered against the petitioner does not affect any public order and it is only law and order situation, as such, the impugned order is liable to be quashed.
15. We have considered the submissions advanced by the learned counsel for the parties and perused the record.
16. The first contention of learned counsel for the petitioner pertains to non application of mind by the detaining authority while passing detention order against him. He has placed upon several decisions of the High Court as well as the Hon'ble Supreme Court and submitted that the present case is squarely covered by the following decisions:
(i) In the case of Jay Singh and others Vs. State of Jammu & Kashmir, (1985) 1 (SCC) 561, Writ Petition (Criminal) Nos.1571-1577 of 1984 wherein it has been observed:
"Non application of mind - Detention order verbatim reproduction of dossier submitted by SSP to the detaining authority (D.M.) requesting detention of the petitioner-detenu. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
(ii) In the case of Rajesh Vashdev Adnani Vs. State of Maharashtra and others, (2005) 8 SCC 390, Criminal Appeal No. 1337 of 2005 wherein it has been observed:
"The verbatim reproduction of proposal for detention in detention order, to the extent that whereas the proposal referred to the intended detenu as "he", the detention order referred to him as "you" - Such detention order, suffered from non-application of mind on the part of the detaining authority at the time of actual preparation of the detention order and grounds thereof, is not sustainable."
17. The learned counsel for the petitioner has also referred the decisions of Allahabad High Court, namely, Billa alias Birla Vs. Superintendent, District Jail, 2001 Law Suit (All) 228, Habeas Corpus Writ Petition Nos. 2462, 2464, 4379, 4397 of 2001, Rajiv Yadav Vs. Superintendent, District Jail and others, 2009 Law Suit (All) 1996, Habeas Corpus Writ Petition No. 42264 of 2008, Tunnu Vs. Superintendent, District Jail, 2000 Law Suit (All) 193, Habeas Corpus Writ Petition Nos. 47031 and 47036 of 1999, all these decisions deal with the issue of application of mind by the detaininng authority while passing detention order and are based on the observations of Hon'ble Supreme Court.
18. The argument regarding non-application of mind by the detaining authority, while passing detention order against the detenue, is to be considered by comparing the dossier submitted by the sponsoring authority and the detention order passed by the detaining authority. To substantiate this submission learned counsel for the petitioner has placed before us the report of the sponsoring authority and the grounds served on the petitioner and submitted that grounds are nothing but exact reproduction of the report of the sponsoring authority except with minor and insignificant changes.
19. Learned AGA, on the other hand, has submitted that there is no question of any casual exercise or non-application of mind in passing the detention order by the detaining authority. The grounds are also not carbon copy of the dossier. The detaining authority has though to some extent borrowed the language for narrating the incident, there are changes which indicate that he considered the whole incident and its implications before passing the impugned order.
20. With a view to appreciate the aforementioned contention of the petitioner, we may extract the following from the order of detention:
"D;ksafd] vki }kjk vius vU; lg;ksfx;ksa ds lkFk fnukad% 21@22&01&2016 dh jkf= esa dnkSjk {ks=kUrxZr xzke eksgkjh esa datM+ ukyk ds ikl egs'ojh nhu ds [ksr esa 48 xkSoa'k dk o/k dj muds flj] iSj o eyok dks ogha NksM+dj xkSekWl dks fcdzh djus ds mn~ns'; ls xkfM+;ksa esa Hkjdj ys tk;k x;kA ekSds ij 48 xksoa'k ds flj lhax lfgr o jfgr] isV esa fodflr gksrs uotkr cPPks o vkWrsa ,oa QsQM+s iM+s gksus ds g`n; fonkjd n`'; dks ns[kdj xk; dks ekrk ekuus okys fgUnw oxZ ds yksx vkdzksf'kr gks x;sA blh chp fgUnwoknh laxBuksa ds usrkvksa ds igWqp tkus ij fLFkfr dkQh rukoiw.kZ gks x;h rFkk vklikl ds xkWoksa esa Hk; o ng'kr dk ekgkSy cu x;kA vklikl ds xkWoksa ds yksx brus Hk;kdzkUr Fks vius&vius ?kjksa ds njokts cUn dj fy;sA ftyk ,oa iqfyl iz'kklu ds mPPkkf/kdkfj;ksa o fofHkUu Fkkuksa ds iqfyl QksLkZ ds ekSds ij igWqpus ij fLFkfr dks lWHkkyk x;k] vU;Fkk lkEiznkf;d naxk tSlh fLFkfr cu xbZ FkhA mDr ?kVuk esa vkidh eq[; Hkwfedk jgh gS] ftldk mYys[k vkxs ds izLrjksa esa fd;k x;k gSA "
21. Perusal of the proposal made by the sponsoring authority and the detention order passed by the detaining authority would show that in para 1 of detention order, the word 'Abhiyukt' in the proposal has been replaced by word 'Aap' in the detention order and rest of the matter appears to be the same. This has been emphatically pointed out by learned counsel for the petitioner alleging that it is the only change and rest of the matter is verbatim reproduction of the proposal of sponsoring authority. Last conclusive line of the aforesaid para indicates the opinion of the detaining authority clarifying his application of mind in considering the facts and circumstances of the case, mere similarity of language and expression do not amount to non application of mind. The bare perusal of both the documents do not indicate the verbatim reproduction of dossier in the detention order, though at places the word 'Abhiyukt' has been replaced by word "Aap" in the detention order, but it does not show that mere such replacement amounts to non application of mind.
22. It is evident from the aforesaid discussion and perusal of impugned order that the language has been borrowed at number of places but the changes at different places indicate proper application of mind, after consideration of the facts and circumstances of the case and it cannot be said that the detaining authority has passed the order in a mechanical manner in a casual exercise. The contention of learned counsel for the petitioner appears to be misconceived, vis-a-vis, the facts and circumstances of the present case.
23. The second ground relates to the discriminatory approach of the detaining authority while passing detention order against the detenue. In this context, the decision of Allahabad High Court in the case of Jang Bahadur Yadav Vs. State of U.P. And others, 2012 Law Suit (All) 2242, Habeas Corpus Writ Petition No.17098 of 2012, has been referred in which the issue of discrimination has been dealt with.
24. On the contrary, learned AGA has referred number of decisions on the issue of parity to be claimed by the detenue.
(i) In the case of Chandresh Paswan Vs. State of U.P. and others, (ACC) Habeas Corpus Writ Petition No.10215 of 1998, wherein it has been observed that the order of preventive detention cannot be challenged on the ground of parity.
(ii) In the case of Vinay Kumar Sahu Vs. Sate of U.P. and others, 2003 (46) ACC 1012, Criminal Misc. Habeas Corpus Petition No. 5837 of 2003 with 6804 of 2003 and 6807, 6809 & 6811 of 2003, wherein it has been observed:
"Therefore, it is for the detaining authority to satisfy to which of the particular person out of those involved in an incident is liable to be detained under preventive detention and if he is satisfied that detention of a particular accused is essential for maintenance of public order etc., he may pass detention order against that particular accused alone. And if he is satisfied that there was no real possibility of indulging co-accused in similar activities prejudicial to the maintenance of public order etc. he is not under obligation to pass detention order against them. Preventive measures can be adopted against a particular person and it is not necessary to take it against all accused of a particular case. Therefore, the persons against whom detention order was passed on satisfaction of the detaining authority as narrated above cannot claim parity with those against whom no such order was passed."
(iii) In the case of Suresh Chandra Katare Vs. Sate of U.P. and others, (ACC) 2001 Cri. L. J. 4777, Habeas Corpus Petition No. 2884 of 2001, wherein it has been observed:
"The first ground that the order of detention of the petitioner is required to be revoked on the ground of parity is not available to the petitioner. It is well established proposition of law that in a case of detention, the plea of parity cannot be canvassed as sometimes, the grounds of detention may be entirely different or revocation of detention order is necessitated on account of the fact that the Advisory Board has not found sufficient ground for the detention. On this point, there is a Full Bench decision of this Court in Chandresh Paswan Vs. State of U.P. 1999 A.J.C. 327 (1999 All. L.J. 1167)."
25. It is apparent from the foregoing discussions that in the case of detention, parity cannot be canvassed, as ground for detention made is entirely different in different cases. It is the subjective satisfaction of the detaining authority that the detention of the petitioner was essential for maintenance of public order and has nothing to do with the parity of other person.
26. Therefore, it is for the detaining authority to satisfy to each of the particular person, out of those involved in an incident, is liable to be detained under preventive detention. If he is satisfied with detention of a particular accused is essential for maintenance of public order, he may pass detention order against that particular accused alone and if he is satisfied with, there is no real possibility of indulging co-accused in similar activities prejudicial to the maintenance of the public order etc., he is not under obligation to pass detention order against them. Preventive measures can be adopted against a particular person and it is not necessary to take it against all accused of a particular case, therefore, the person against whom detention order was passed on satisfaction and the detaining authority has narrated the same, he cannot claim parity with those against whom no such order was passed.
27. The third ground assailed before us refers to false implication of the petitioner in the case registered against him under Cow Slaughter Act and also on the premise that it does not affect any public order but it relates only to law and order. Now the concept of public order and law and order is to be applied on the facts and circumstances of the present case, in which number of cows were slaughtered and their body parts were scattered all around in an open place in public view. This issue has been dealt with in the following referred decisions:
(i) In the case of Kanu Biswas Vs. State of West Bengal, (1972) 3 SCC 831, Writ Petition No.46 of 1972, wherein it has been observed:
"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order is: Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed."
(ii) In the case of Saeed Vs. State of U.P., 2006 Law Suit (All) 2149, wherein it has been observed:
"Whilst the Court is interested in preventing infractions of public order, but it must guard against an oversensitive reaction by an increasingly intolerant public, the Court must exercise a balance and differentiate between situations where the prosecution under the normal criminal law could suffice and where nothing less than keeping a person in detention without trial under the preventive law was necessitated. It is, therefore, important to see the proportionality of the response to the act complained of. An act of slaughtering a cow in the secrecy of one own house in the dark hours probably because of poverty or lack of employment or hunger, would perhaps only involve a law and order issue and could not be said to stand on the same footing as a situation where a number of cattle have been slaughtered outside in public view and the public transport of their flesh or an incident where aggressive attack is made by the slaughterers against the complaining public, which may involve infractions of public order."
28. Learned A.G.A. placed reliance on following cases dealing with the issue of public order and law and order:
(i) In the case of Guddu Panchhi Vs. District Magistrate, Kanpur Nagar and others, 2004 (49) ACC 660, Habeas Corpus Petition No. 45176 of 2003, wherein it has been observed:
"Obviously, it is the reaction or fall out of an incident in the society which is determinative as to whether it was only disturbance of law and order or that of public order. In the present case, there was a live link between the alleged criminal activity of the petitioner of cow slaughtering and the purpose of detention. The act was clearly prejudicial to public order as is borne out from the grounds of detention reiterated by respondent No.1 District Magistrate, Kanpur Nagar in his counter affidavit. The act of the petitioner offended the religious feelings of a sect of society venerating cow and its progeny, besides being in contravention of U.P. Prevention of Cow Slaughter Act. The incident disturbed the even tempo of the life of the society."
(ii) In the case of Tauqeer Vs. State of U.P. and others, 2002 (44) ACC 1088, Writ Petition (Habeas Corpus) No.4470 of 2002, wherein it has been observed:
"Under our Constitution freedom of religion has been guaranteed as a fundamental right. However the U.P. Prevention of Cow Slaughter Act bans the slaughter of cows and calves. The petitioner has no right to break the law and violate the above Act. It may be mentioned that nobody has right to do anything which may lead to communal tension in the country."
(iii) In the case of Shaukat Ali Vs. Union of India and others, 2002(45) ACC 1121, wherein it has been observed that cow slaughter affects public order because it is likely to incite communal tension. Hence, it is not merely a case of law and order.
29. Learned counsel for the petitioner has emphatically argued that the place of incident where cows were slaughtered is not a public place, as such, it cannot be treated as an issue of public order. It is the reaction or fall out of an incident in the society which is determinative, as to whether, it was only disturbance of law and order or that of public order. Admittedly, the segregated body parts of the cows were lying in an open place, in a large number, which may have offended the religious feeling of a society, it is, therefore, important to see the proportionality of the response to the act complained of and in view of this, the gravity of the act may be given a thought where the body parts of number of cows were lying open in public view. Where a number of cattle have been slaughtered in public view, which may definitely lead to disturbance of the current life of the community, so as to amount to a disturbance of a public order, communal amity and harmony. Slaughter of cow hurts the sentiments of the Hindus which affects public order because it is likely to incite communal tension, hence, it is not merely a case of law and order but that of public order.
30. For the reasons stated above, we conclude that, it cannot be said that there existed no sufficient material before the District Magistrate and he passed impugned order without application of mind in an arbitrary manner and casual exercise. Further, it is the subjective satisfaction of the detaining authority in passing detention order against a person and it is not incumbent upon him to pass the same order against all the accused. Lastly, it is the reaction of an incident in the society which is determinative of public order.
31. From the foregoing discussion, it is evident that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent it from doing so, it is not passed to punish a person for the act committed by him. The preventive decision is not punitive but it's purpose is to protect the person from repeating similar activities, which would be prejudicial to the maintenance of public order.
32. In view of what we have indicated hereinabove, we find no merits in the writ petition.
33. It is accordingly dismissed.
(Mrs. Rekha Dikshit, J.) (Shashi Kant Gupta, J.)
Order Date :- 21.02.2017
Nitin Verma