Allahabad High Court
Mahadev Prasad Sharma vs Union Of India (Uoi) Through Secretary ... on 11 March, 2003
Equivalent citations: 2003CRILJ3462
Author: U.S. Tripathi
Bench: U.S. Tripathi
JUDGMENT U.S. Tripathi, J.
1. By means of above writ petition the petitioner has challenged the validity of detention order dated 4-5-2002, passed by District Magistrate, Maharajganj, respondent No. 3, under Section 3(2) of the National Security Act.
2. Along with the detention order the petitioner was served with the grounds of detention which stated that on 15-11-2001 at about 2.45 p.m. at village Parsa, P.S. Parsa Malik, district Maharajganj, at a distance of one kilometer from Indo Nepal Border, the police of P.S. Parsa Malik recovered 1100 cartridges of 303 and 450 factory made cartridges of 12 bore from the possession of Pramod Yadav, an associate of the petitioner who was carrying the same on the frame of cycle in a plastic bag. The remaining four associates of the petitioner were successful in carrying cartridges in three bags to Nepal. The above cartridges were being carried for use by Maos in terrorist activities. The above act was being done by an organized gang of the petitioner for monetary and political gain. A case at crime No. 306 of 2001, under Section 25 Arms Act and Section 3(1) of U.P. Gangsters and Prevention of Anti Social Activities Act, 1986 was registered at P.S. Parsa Malik, district Maharajganj against Pramod Yadav, Jai Ram Jaiswal, Barkalla Miyan and two others all associates of the petitioner, on the report of the Station Officer, P.S. Parsa Malik. During investigation on 2-12-2001 the petitioner was arrested and an English magazine entitled "The Himaliyan Wonder Historical Conference" (May, 2001 issue) was recovered from his possession. On page 16 of the above magazine there was an article affecting the unity and integrity of India. During investigation of above noted case it was disclosed that on 10-11-2001 Ajay Misra and Dilip Sharma the associates of the petitioner, negotiated with Amin, the proprietor of Amin Transport at Nandlal Chhapra, P.S. Agam Kuan, district Patna for carrying the above cartridges under the fake names from Patna to Nautanva, district Maharajganj and in this connection on 12-11-2001 Amin had contacted Devendra Singh, the proprietor of National Transport Patna for carrying the above cartridges from Patna to Nautanva in a grey coloured Swaraj Mazda Truck No. U.A. 07-3969 and Tata 709 for Rs. 4000/-. The drivers and cleaners of the above Swaraj Mazda truck were paid Rs. 2000/- each for carrying the above cartridges concealing in banana consignment from Patna to Nautanva. Amin had made forged signatures of driver on the bilty (transport way bill) of the consignment and the above consignment was not entered into booking register. The above truck carrying cartridges in a concealed manner came on 13-11-2001 and stopped in front of the PCO of Santosh Jaiswal, an associate of the petitioner. Under the direction and in presence of the petitioner, Santosh Kumar Jaiswal got the bags of the cartridges unloaded and kept the same in a shop. On 15-11-2001, the above cartridges were sent to village Parsa Malik in Jeep No. UP-53-G-4887 through its driver Wasi Ullah. Out of the above cartridges 1550 cartridges kept in a bag were recovered from Pramod Yadav, the associate of the petitioner and other associates of the petitioner were successful in taking three bags to Nepal. It was also found during investigation that the above cartridges were sent to R.C. Sharma, the Chief of the Mao Terrorist Organization at Butbal (Nepal) from where it was to be sent to the Maos for their terrorist activities. During investigation the above case was altered under Sections 125, 419, 420, 468, 471 and 120B, IPC.
3. Witnesses Chandra Badan Yadav, Akeloo Yadav, Vinod Jaiswal, Rajan Jaiswal, Lakkhi, Shri Krishna Singh and Sub-Inspectors Rama Shankar Yadav, Shyam Bihari Dubey and Ramjeet Yadav were interrogated during investigation. From the materials on record the District Magistrate was satisfied that the petitioner was indulged in the activities of organizing Mao Terrorist activities in India and instigating the Nepalese, living in India to join the same. Not only this the petitioner was also Cashier of Indo Nepal Ekta Samaj and his aim was to assist Mao Terrorist to capture power in Nepal and the petitioner also organized the activities of Mao Terrorists in India, through RC Sharma, the Chief of Nepal Mao Organization. The petitioner had also connection with the terrorist activities of Mao. MCC, ULFA and JKLF terrorist organizations which had committed mass murders in various States of India. A sense of terror, panic and insecurity was also created in the people of Indo Nepal Border due to Mao terrorists activities and supply of arms to the above organizations by the petitioner and his associates.
4. The petitioner was detained in connection with case crime No. 306 of 2001 and his bail application was pending before the Special Judge, (Gangsters Act), Gorakhpur. There was real possibility of the petitioner being released on bail and after release on bail there was also real possibility of indulging the petitioner in similar activities prejudicial to the security of State and relations of India with foreign powers. Therefore, the detention of the petitioner was necessary for security of State and relations of India with foreign powers.
5. Heard Shri A.B. Singh, learned counsel for the petitioner, learned AGA and learned Standing Counsel for the respondents and perused the record.
6. Learned counsel for the petitioner challenged the detention order on the following grounds :--
(i) The incident in question related to single act which was only law and order problem and it had no effect on the public order;
(ii) There was no material for recording subjective satisfaction of the detaining authority that the petitioner if released on bail would indulge in similar activities prejudicial to the security of State;
(iii) There was no compliance of the provisions of Section 3(5) of the National Security Act as the State Government has not reported the fact of the detention to the Central Government within seven days.
7. Regarding ground No. 1 the learned counsel for the petitioner contended that according to the grounds of detention there was solitary incident in which the petitioner was involved and the above incident related to only law and order problem and, therefore, his detention under National Security Act was not proper. Reliance was also placed on the Apex Court decision in Aidal Singh v. State of M.P. (1981) 4 SCC 428. In the said decision the order of detention recited that the District Magistrate was satisfied that Aidal Singh should be detained "with an intention to protect him from commission of any act in contravention with maintenance of the public security." Grounds of detention were served on the detenu. Certain incidents which appeared to relate to law and order were mentioned therein and the detaining authority concluded the grounds with the statement "from the aforesaid facts it is clear that you are involved in such activities by which a terror and panic is created in the mind of general public which has caused a danger to law and order". On the above fact it was held by the Apex Court that perusal of the order of detention and the grounds of detention reveals that the detaining authority has not applied its mind to the provisions of Section 3 of the National Security Act which authorises detention of a person 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 public security nor maintenance of law and order can justify the detention of a person under Section 3(2) of the National Security Act.
8. There is no dispute regarding above proposition of law and it is also settled that for detention under the provisions of National Security Act a person may be detained with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any mariner 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. In the instant case the order of detention as well as grounds of detention clearly indicate that the detaining authority passed order of detention of the petitioner with a view to preventing him from acting in any manner prejudicial to the security of the State. There were also materials before the detaining authority to satisfy him that the petitioner was office bearer (Cashier) of Indo Nepal Ekta Samaj, the purpose of which was to organize Mao Terrorist activities in Nepal and motivate the Nepalese living in India to participate in the above activities which was prejudicial to the security of State. Therefore, the facts of the case of Aidal Singh were entirely different and the above decision is not applicable to the facts of the present case.
It is also well settled that even a single act or incident is sufficient for detention under the National Security Act, provided it has effect of disturbing the public order or security of State. Perusal of grounds of detention as well as materials before the Detaining Authority which was contained in the record of the case, which was summoned and perused by us show that the petitioner was active worker of Mao Terrorist Organization and was supplying cartridges to the above organization, which created disturbance in Nepal to uproot the existing Government. The above act of the petitioner i.e. supply of cartridges to Mao Terrorist Organization as well as provoking the Nepalese living in India to join the above activities as the petitioner was also original resident of Nepal clearly indicated that the incident in question and the activities of the petitioner were prejudicial to the security of the State. Therefore, the incident in question was sufficient to record satisfaction by the detaining authority that it was essential to detain the petitioner under National Security Act with a view of preventing him from acting in any manner prejudicial to the security of the State. We find no force in the above contention.
9. The next contention of the learned counsel for the petitioner was that at the time of passing of the detention order the petitioner was detained in Jail. There were no compelling necessity or materials before the detaining authority to record his satisfaction that after release on bail the petitioner would indulge in similar activities prejudicial to the security of the State or maintenance of public order. Reliance was placed on Apex Court decision in Biru Mahato v. District Magistrate, Dhanbad, (1982) 3 SCC 322 : (AIR 1982 SC 1539 : 1982 Cri LJ 2354) and Vashisht Narain Karwaria v. State of U.P., (1990) 2 SCC 629 : (1990 All LJ 296 : AIR 1990 SC 1272 : 1990 Cri LJ 1311).
10. In Biru Mahate's case the Apex Court relying on the decision of Rameshwar Shaw v. D. M. Burdwan, AIR 1964 SC 334, held that in a given case a preventive detention order is required to be made even against a person, who is already in jail or under detention and that the detaining authority shows its awareness of the fact, situation and yet passes detention order. The detention order must show on the face of it that the detaining authority was aware of the situation. Otherwise the detention order would suffer from vice of non-application of mind. The awareness must be of the fact that the person against whom detention order is being made is already in detention or in Jail in respect of some offence. This would show that such a person is not a free person to indulge into prejudicial activity which is required to be prevented by a detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. In absence of it, it would appear that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non-application of mind to the relevant facts and any order of such serious consequence when mechanically passed without application of mind is liable to be set aside as invalid.
11. In the said case the detenue was in Jail in connection with a case and his first bail application was rejected by the Sessions Judge, Dhanbad. In the mean time the District Magistrate, Dhanbad made an order in exercise of his power conferred by Sub-section (2) of Section 3 of National Security Act, directing that the detenue be detained so as to prevent him from acting in any manner prejudicial to the maintenance of public order. There was not even a whisper of the detenue being in jail nearly three weeks prior to the date on which the detention order was made. In view of the above facts and circumstances the detention order of the petitioner was quashed.
12. It was held by Apex Court in the case of Kamrunnisa v. Union of India, AIR 1991 SC 1640 : (1991 Cri LJ 2058) that if the detaining authority has reason to believe on the basis of reliable material placed before him that on being so released on bail, the detenue would in all probability indulge in prejudicial activity and if the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down.
13. Perusal of the grounds of detention in the instant case show that the detaining authority has recorded his subjective satisfaction that the petitioner was detained in jail in connection with crime No. 306/2001, under Section 3/25 Arms Act, 125/419/420/467/468/471/120B, I.P.C. and Section 3(1) of U.P. Gangsters and Anti Social Activities Act, relating to P.S. Parasa Malik, District Maharajganj and his bail application in the said case was pending before the Special Judges (Gangsters' Act), Gorakhpur and that the petitioner was attempting to get him released on bail and he was personally satisfied that there was real possibility that after release on bail the petitioner would indulge in similar activities prejudicial to the maintenance of security of the State.
14. Coming to the point whether there was compelling necessity and material before the detaining authority to record his satisfaction that after release on bail the petitioner would again indulge in similar activities prejudicial to the maintenance of security of State, we have perused the detention order and the record of the case. In the grounds of detention the detaining authority has referred the statement of Chandra Badan Yadav, Akeloo, Vinod Jaiswal, Rajan Jaiswal, Lakkhi, Shri Krishna Singh, S. I. Rameshwar Yadav, Shyam Bihari Dubey and Ramjeet Yadav and has mentioned that on perusal of material before him he was satisfied that the petitioner was active member of Mao Terrorist Organization and the activities of Mao Terrorists Organization were being organized by the petitioner in India and he was motivating Nepalese living in India to join the above organization. The object of the above organization was to uproot the existing Government of Nepal by terrorist activities and the petitioner was also supplying ammunitions to the said organization.
15. Perusal of the statement of above persons also indicated that the petitioner was collecting ammunitions from different sources and was supplying to Mao Terrorist Organization. The associates of the petitioner were also talking and conspiring that Raja Gyanendra Singh and Paras Shah of Nepal Royal Family would be sent to the place where Raja Virendra Vikram Shah, the King of Nepal was sent. The above talks were heard by Lakkhi. Kishan Singh disclosed before the I.O. that the petitioner was the active member of Mao Terrorist Organization. Recovery of huge quantity of ammunitions of 303 cartridges and 12 bore cartridges were made from the possession of the person through whom the petitioner was sending ammunitions to Nepal. The above materials on record were sufficient to record subjective satisfaction of the detaining authority that there was compelling necessity to detain the petitioner under National Security Act, as there was real possibility that after release on bail he would indulge in similar activities prejudicial to the maintenance of security of State.
16. Regarding third and last contention the learned counsel for the petitioner contended that there was no compliance of provisions of Section 3(5) of the National Security Act. He pointed out that the requirement of Section 3(5) of National Security Act is that when the order of detention is made or approved by the State Government it shall report the fact to the Central Government together with grounds on which order has been made within 7 days. In the instant case the detention order was approved by the State Government on 12-5-2002, but the matter was not reported to the Central Government within seven days and, therefore, the order of detention was in violation of Section 3(5) of the Act and invalid.
17. In paragraph 4 of his counter-affidavit Shri C. P. Singh, Deputy Secretary, Home and Confidential Department U.P. Civil Secretariat, Lucknow disclosed that the State Government approved the order of detention of the petitioner on 12-5-2002 and on 14-5-2002, a copy of the detention order, grounds of detention and connected papers received from the District Magistrate, Maharajganj were sent to Central Government, which were received by the Secretary, Ministry of Home Affairs on 19-5-2002. Counter-affidavit of Sri Ramesh Kumar, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi disclosed that the report as envisaged by Section 3(5) of National Security Act, 1980 about detention of the petitioner was made by the Government of U.P. to the Central Government in the Ministry of Home Affairs, vide letter dated 14-5-2002. The said report was received by the Central Government in the Ministry of Home Affairs on 20-5-2002 (after 8 days).
18. Section 3(5) of the National Security Act reads as under :--
"3(5). When any order is made or approved by the State Government under this Section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order."
19. The question arose whether obligation on the State Government as required by Section 3(5) of the National Security Act can be said to have been fully discharged, if the report in question is forwarded to the Central Government within the prescribed period of seven days or the said report should reach the Central Government within the prescribed period of seven days. There were divergent opinions of this Court and other High Courts like, Bombay, Patna and Gujarat. The question finally came up for consideration before the Apex Court in the case of State of Manipur v. Sanasam Ongvi, (1999) 8 JT (SC) 228 : (AIR 1999 SC 3862 : (2000 Cri LJ 23) in which the Apex Court on considering the various judgments of the different High Courts including of this Court in Guru Charan Singh v. Supdt. Central Jail, Bareilly, 1986 All LJ 1172 held as below:--
"Having examined the divergent views of different High Courts as noticed above as well as on a construction of Sub-section (5) of Section 3 of the Act we have no hesitation to hold that the expression "report the fact to the Central Government" cannot be equated with the fact that the "report should reach the Central Government" within the period of seven days as provided in Sub-section (5) of Section 3. We are in respectful agreement with the views expressed by the Full Bench of the Bombay High Court as well as the Division Bench of Patna and Orissa High Courts and we hold that the law laid down by the Allahabad High Court and Gujarat High Court is not correct."
20. In this way if the report as required by Section 3(5) of the Act is sent within seven days from the date of order or approval to the Central Government within seven days there is full compliance of the requirements of the Section. In this case undisputedly detention order was approved by the State Government on 12-5-2002 and report was sent to the Central Government on 14-5-2002 i.e. within three days from the date of approval and, therefore, there was full compliance of the provisions of Section 3(5) of the National Security Act and the detention order cannot be said to be invalid on this score.
21. No other point was pressed.
22. In view of our above discussion and observations, we find ho force in this writ petition.
23. The writ petition is accordingly dismissed.