Ram Rudra Yadav vs The State Of Madhya Pradesh on 10 January, 2022

[Cites 19, Cited by 2]

Madhya Pradesh High Court

Ram Rudra Yadav vs The State Of Madhya Pradesh on 10 January, 2022

The instant writ petition under Article 226 of the Constitution of India preferred by the detenu through his mother assails the impugned order of preventive detention dated 27.05.2021 under Section 3(2) of the National Security Act, 1980 (for short 'the 1980 Act') passed by respondent No.3.

2. Pertinently, the petitioner was already in custody when the impugned order of preventive detention was passed on 27.05.2021 and, therefore, one of the grounds of challenge is that the impugned order of preventive detention does not disclose in express terms that the detaining authority W.P.No.14312/2021 2 knew about the fact of petitioner being in custody when the order of preventive detention was passed. In this regard, it is relevant to point out that this issue has been referred to the larger Bench for adjudication and the decision is awaited since the larger Bench has not yet been constituted. Thus, when this fact was made known to the learned counsel for petitioner, the said ground has not been pressed by the petitioner.

3. The subsequent developments after filing of this petition are that the impugned order of preventive detention dated 27.05.2021 has not only been confirmed by the State on 31.05.2021 but has been affirmed by the Advisory Board on 08.07.2021 whereafter the State by order dated 19.07.2021 has extended the period of detention till 28.08.2021 and by another order dated 11.08.2021 has again extended the period till 28.11.2021 and finally by order dated 22.11.2021 has finally extended the period till 28.02.2022.

4. Learned counsel for rival parties are heard on the question of admission and as well as final disposal.

5. The grounds of detention as served upon the detenu as are evident from the impugned order are pendency of fifteen different offences punishable under the IPC and two proceedings initiated for keeping peace and good behaviour and one proceeding for externment. The further ground relied upon by the detaining authority is that majority of the aforesaid offences are pending consideration before the court of competent criminal jurisdiction, which include serious offences of robbery, murder, attempt to murder, illegal extraction of money, affray and obstructing and assaulting government servants from discharging their official duties. The grounds W.P.No.14312/2021 3 further reveal that despite the aforesaid criminal antecedents since last more than 10 years, the petitioner's conduct and behaviour have not shown any improvement. The grounds further reveal that this criminal proclivity of the detenu sends ripples of fear and terror among the members of general public of the area concerned and, therefore, if personal liberty of the detenu is not curtailed, there is possibility of breach of public order.

6. Learned counsel for petitioner on the other hand submits that out of fifteen cases registered against the petitioner, in seven, the petitioner has been acquitted, while the remaining, involve offence of minor nature. The petitioner also submits that the subjective satisfaction arrived at by the detaining authority are solely based on statement of police personnel, which are therefore partisan in nature and thus having no probative value. The petitioner also submits that the SHO of the concerned police station has admitted that since 2017 no offence against the petitioner has been registered. It is also submitted that there is no reasonable cause of extending the period of preventive detention thrice, which, according to the petitioner, amounts to misusing the extraordinary power conferred upon the District Magistrate, Jabalpur, which can be exercised sparingly only in very rare cases. Learned counsel for petitioner has placed reliance on the decisions of Apex Court in Banka Sneha Sheela Vs. The State of Telangana & others, (2021) 9 SCC 415, Gulab Mehra Vs. State of U.P. and others, (1987) 4 SCC 302 as also the Division Bench decisions of this Court in the case of Mayank Khatri through his wife Smt. Snehlata Korche (Khatri) Vs. The State of Madhya Pradesh and others (W.P. No.3540/2021 decided on W.P.No.14312/2021 4 30.06.2021) and Karandeep Singh Vs. State of M.P. and others (W.P. No.1820/2021 decided on 01.03.2021).

7. On the other hand, learned counsel for the State controverting the petitioner's version submits that all the acquittals are based not on merit but arise out of the fact situation where prosecution witnesses had turned hostile or are outcome of compounding. The State counsel further submits that all the offences were committed by the petitioner in public view with impunity having no fear of law and order thereby disturbing the even tempo of life. The State counsel by pointing out to the contents of the return and the additional return submits that there is enough material to support the subjective satisfaction arrived at by the competent authority for extending the period of detention thrice. The additional return of the State is accompanied by Roznamcha dated 23.09.2021, 01.10.2021, 04.10.2021 to 05.10.2021, 08.10.2021 to 09.10.2021 and 25.10.2021 P.S. Khamariya, District Jabalpur, which reveal that despite the detenu being in custody since passing of the impugned order on 27.05.2021, the aura of terror continues to haunt the members of general public in the area concerned. The letter of the Superintendent of Police, Jabalpur dated 03.11.2021 further reinforces the contents of the Roznamcha. Learned counsel for State has relied upon the decisions of Apex Court in the case of State of Punjab Vs. Sukhpal Singh, (1990) 1 SCC 35 and Fitrat Raza Khan Vs. State of Uttar Pradesh and others, AIR 1982 SC 146 as also the Division Bench decisions of this Court in the case of Tanzeel Khan Vs. State of M.P. and others, 2013(3) MPLJ 490; Kashmir Jat Vs. State of M.P. and others, 2013(2) MPLJ 134; W.P.No.14312/2021 5 Akash Pratap Singh @ Sunny Vs. State of M.P., 2015(2) MPLJ (Cri.) 546; Dhiraj Vs. State of M.P. and others, 2013(4) MPLJ 601; and the Full Bench decision of this Court in the case of Mangal Singh alias Mangu Vs. State of M.P. and others, 2015(4) MPLJ 439.

8. After hearing learned counsel for rival parties and having gone through the record and testing the factual matrix on the anvil of the statutory provisions under the National Security Act and the exposition of law laid down in various decisions of Apex Court and as well as this Court, we are of the considered view that the order impugned herein deserves to be upheld for the reasons infra.

(i) It is trite law that the extraordinary and exceptional power of preventive detention which is an anathema to the concept of personal liberty is permissible by the provisions of Article 22 of the Constitution of India which find manifestation in shape of National Security Act, 1980. Since this power is to be sparingly exercised being an exception to the general rule of personal liberty, the procedure prescribed under the 1980 Act is to be strictly adhered to.

(ii) None of the procedural requirements and compulsions under the 1980 Act are breached in the present case as the learned counsel for petitioner could not point out that because of any violation of any procedural provision laid down in the 1980 Act, the detenu was prejudiced. The District Magistrate has promptly forwarded the case to the State Government after passing the impugned order of preventive detention, which, in turn, has been affirmed by the State within three days of its passing. The case of detention W.P.No.14312/2021 6 has also been forwarded to the Central Government within the time prescribed and the matter has also been confirmed by the Advisory Board.

9. As regards the material demonstrated by the State in support of the impugned order of preventive detention, this Court cannot go into the sufficiency of the same. The satisfaction to be arrived at is subjective in nature and, therefore, this Court is precluded from entering into the sufficiency of the grounds taken for preventive detention. So long as cogent material exists to support the subjective satisfaction as is the case herein, the power of judicial review under Article 226 cannot be exercised in favour of the detenu.

10. The Apex Court time and again has laid down that interference by way of judicial review in the matter of preventive detention is permissible in rare circumstances where there is no material at all to support the subjective satisfaction of the detaining authority or the ground of malafide is raised or there is blatant denial of opportunity of being heard to the detenu. Relevant extract of some of these pronouncements are reproduced below:

20. Testing the case at hand on the touchstone of the principles laid down in the decisions noted above, we find that the subjective satisfaction arrived at by the detaining authority in the case is based on consideration of all the relevant materials placed before it by the sponsoring authority. It is not the case of the appellant that the sponsoring authority did not place before the detaining authority any material in its possession which is relevant and material for the purpose and such material, if considered by the detaining authority, might have resulted in taking a different view in the matter. All that is contended on behalf of the detenu is that the detaining authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. Whether the detention order suffers from W.P.No.14312/2021 7 non-application of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority.

Gurdev Singh v. Union of India, (2002) 1 SCC 545

14. It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.

Subramanian v. State of T.N., (2012) 4 SCC 699

40. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that detenu Nisar Aliyar has been indulging W.P.No.14312/2021 8 in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua detenu Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and his relatives. The High Court, in our view, erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenus being released on bail which is in violation of the principles laid down in Kamarunnissa [Kamarunnissa v. Union of India, (1991) 1 SCC 128 : 1991 SCC (Cri) 88] and other judgments and Guideline 24. The order of the High Court quashing the detention orders on those grounds cannot be sustained.

Union of India v. Dimple Happy Dhakad, (2019) 20 SCC 609

11. In the instant case, the material made available by the State as reflected from the return and the additional return reveals that though the detenu was acquitted in number of criminal cases but the said acquittals were not honourable and clean for being based on technical ground of PW's turning hostile. Some of the acquittals are secured by way of compounding of offences. These glaring facts reveal that witnesses declined to depose before the court against the petitioner, obviously due to the spell of fear caste by the detenu around the PW's. The compounding was also ensured in all probability by subjecting the complainant to undue influence and coercion. Thus, the acquittal in seven out of fifteen cases is of no avail to the detenu.

12. The citations of the Apex Court and this Court relied upon by the petitioner are of no avail since this case neither demonstrates breach of any procedural provisions of the National Security Act nor this Court finds W.P.No.14312/2021 9 absence of cogent material to support the subjective satisfaction arrived at by the detaining authority.

13. The other material to support the extension of preventive detention appended to the additional return are various Roznamchas revealing the state of mind of the general public in the area concerned. The fear psychosis continued to exist in the mind of members of the general public. Thus, it cannot be said that the detaining authority did not have any objective material to support the subjective satisfaction arrived at by the District Magistrate and as well as the State Government.

14. It is reiterated that the sufficiency and adequacy of the material behind the subjective satisfaction cannot be gone into by this Court while exercising the power of judicial review under Article 226. The very fact that the reasons exist and the reasons appear to be such which can reasonably lead to the conclusion as arrived at by the detaining authority, is sufficient for this Court to refrain from exercising its extraordinary jurisdiction under Article 226 of the Constitution of India.

15. In view of above discussion, this Court thus finds no scope for interference in the impugned order and its extension.

16. Accordingly, the writ petition stands dismissed. Sans cost.

               (SHEEL NAGU)                          (PURUSHAINDRA KUMAR KAURAV)
                   JUDGE                                       JUDGE



DV

Digitally signed by
DINESH VERMA
Date: 2022.01.11
12:54:44 +05'30'

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Madhya Pradesh High Court