Delhi High Court
Joginder @ Danny, Rajinder @ Jinder And ... vs Union Of India (Uoi) And Ors. on 20 December, 2002
Equivalent citations: 2003CRILJ2970, 102(2003)DLT738, 2003(67)DRJ104
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT R.C. Jain, J.
1. In these petitions, the petitioners who are related as brothers have challenge their detention orders dated 30-01-02 passed by the Commissioner of Police, Delhi under Sub-section (2) of Section 3 of the National Security Act, 1980, with a view to prevent them from acting in any manner prejudicial to the maintenance of public order.
2. Brief facts germane to the passing of the impugned detention orders are similar but not identical and, therefore, the need to recapitulate the facts and circumstances relatable to the detention orders in each case. In the petition in writ petition No. 359/02 Joginder @ Danny son of Late Shri Nathu Ram, resident of C-639-40, Mangol Puri, Delhi, it is alleged that he is a desperate and hardened criminal of the area of Police Station Mangol Puri. He belongs to Sansi tribe and his parents and most of his brothers and sisters are registered BCs (Bad Characters) of Police Station, Mangol Puri, Delhi. He committed his first crime i.e. an offence under the N.D.P.S. Act at the young age of 15 years and since then he has been continuously involved in a number of crimes viz. theft, attempt to murder, snatching, robbery, dacoity, house-trespass, criminal intimidation etc. As may as 18 cases were registered against him between the period 20-12-1999 to 24-11-1999 at different police stations within the territory of Delhi, the last three cases being FIR No. 878 dated 27-10-1999 under Sections 395/397/412 IPC, Police Station Punjabi Bagh, FIR No. 389 dated 23-11-1999 under Sections 379/411 IPC, Police Station Lodhi Colony and FIR No. 998 dated 24-11-1999 under Sections 398/395/397/412/506(II) /468/411/120-B/34 IPC, Police Station Paschim Vihar. The trial in respect of these three cases were stated to be pending at the time of passing of the detention order while in rest of the 14 cases the petitioner Joginder is stated to have either been discharged or acquitted after trial. The detaining authority taking note of the above criminal activities of the petitioner more particularly those relatable to the last three criminal cases registered against him concluded that the petitioner Joinder @Danny is a dangerous and desperate criminal, whose activities are prejudicial to the maintenance of public order and his arrest and prosecution in a number of cases has not deterred him from indulging in criminal activities. yet another factor which has weighed with the detaining authority in passing the impugned order is that the petitioner though was lodged in Tihar Jail in case FIR No. 898/99 Police Station Punjab Bagh, Delhi but had been granted bail in that case by Shri Satnam Singh, Additional Sessions Judge, Delhi and therefore, there was every apprehension that he will be released shortly and keeping in view his past criminal activities there was every likelihood that after release from jail, he will again start indulging in heinous crimes.
3. The facts and circumstances relatable to the detention in respect of the Writ Petition No. 359/02 are that Rajinder@Jinder, s/o Late Shri Nathu Ram, r/o C-639-40, Mangol Puri, Delhi he is an active desperate criminal of the area of Police Station Mangol Puri and has a criminal record of indulging in offences like attempt to murder, robbery, dacoity, obstructing the public servants in discharge of official duties, theft, house trespass, criminal intimidation, wrongful restraint, forgery, drug-peddling and hurt. It is alleged that he belongs to Sansi Tribe and his parents and most of his brothers and sisters are registered Bcs of Police Station Mangol Puri. He also remained involved in the cases punishable under the Arms Act. The petitioner Rajinder @ Jinder started his criminal activities in the year 1985 at the age of 15 years. As may as 22 cases were registered against him during the period 30-10-1985 to 24-11-1999 at different police stations within the territory of Delhi. The last four cases being FIR No. 878 dated 27-10-1999 under Sections 395/397/412 IPC, Police Station Punjabi Bagh, FIR No. 998 dated 24-11-1999 under Sections 395/397/398/506(II)/412/468/411/120-B IPC, Police Station Paschim Vihar and FIR No. 1035 dated 13-12-1999 under Section 25 of the Arms Act, Police Station Paschim Vihar. Apart from this he was also involved in DD No. 9 dated 03-07-2000 under Section 103 of the Delhi Police Act, Special Staff(W), Police Station Paschim Vihar. Out of 22 criminal cases registered against him, he has been acquitted in 8 cases, convicted in 3 cases and has been released in 1 case and 10 cases are still pending against him. The detaining authority taking note of the above criminal activities of the petitioner more particularly those relatable to the last four criminal cases registered against him had concluded that the petitioner Rajinder @ Jinder is dangerous and desperate criminal, whose activities are prejudicial to the maintenance of public order and his arrest and prosecution in a number of cases has not deterred him from indulging in criminal activities. Yet another factor which has weighed with the detaining authority in passing the impugned order is that the petitioner though was lodged in Tihar Jail in case FIR 898/99 Police Station Punjabi Bagh, Delhi but had been granted bail in that case by Shri Satnam Singh, Additional Sessions Judge, Delhi and, therefore, there was every likelihood that he will be released shortly and keeping in view his past criminal activities there was every apprehension that after release from jail, he will again start indulging in heinous crimes.
4. Whereas in Writ Petition No. 361/02 it is alleged that the Petitioner Vinod Kumar s/o Late Shri Nathu Ram, r/o B-6A, Slum Quarters, F Block, Shivangi Kunj, Madi Pur, Delhi belongs to Sansi Tribe and his parents and most of his brothers and sisters are registered Bcs of Police Station, Mangol Puri, Delhi. It is alleged that he is a notorious gangster and an active criminal and his presence in the area became prejudicial to the maintenance of public order. The general public feels terrorised on account of his criminal activities, which has caused feeling of insecurity among the people of the area. It is alleged that he was first time arrested in the year 1976 at the age of 12 years and was convicted under the provisions of Excise Act. Again in the year 1987 he was arrested and prosecuted under the provisions of NDPS Act. Since then he is continuously involved in a number of cases which include attempt to murder, robbery, dacoity, obstructing the public servants in discharge of official duties, theft, house-trespass, criminal intimidation, forgery and drug-peddling. As many as 17 cases were registered against him during the period 20-07-1976 to 13-12-1999. The last three cases being FIR No. 878 dated 27-10-1999, under Section 395-397-412 IPC, Delhi Station Punjabi Bagh, FIR No. 998 dated 24-11-1999, under Section 395/397/398/506-II- /412/468/411/120-B IPC, Police Station Paschim Vihar, FIR No. 1037 dated 13-12-1999, Under Section 25 Arms Act, Police Station Paschim Vihar. Apart from this he is also involved in a DD No. 9 dated 03-07-2000 under Section 103 of the Delhi Police Act by the Special Staff (W). Out of 17 cases he has been acquitted in 7 cases, convicted in 3 case and 7 cases are their pending trial. His arrest and prosecution in a number of cases has not deterred him from indulging in criminal activities. yet another factor which has weighed with the detaining authority in passing the impugned order is that the petitioner though was lodge din Tihar Jail in case FIR No. 898/99, Police Station Punjab Bagh, Delhi but had been granted bail in that case by Shri Satnam Singh, Additional Sessions Judge, Delhi and, therefore, there was every likelihood that he will be released shortly and keeping in view his past criminal activities there was every apprehension that after release from jail, he will again start indulging in heinous crimes.
5. Though various grounds have been taken up in the writ petitions in order to assail the detention orders but during the course of arguments, learned counsel appearing for the petitioners has confined her attack on the following common grounds:-
1) There was undue delay in passing the detention orders and there was no nexus in the point of time between the period to which the alleged criminal activities of the petitioners relate and the passing of the detention orders.
2) The detention orders are punitive in nature as the same have been passed solely with a view to frustrate the release order dated 29.01.2001 of the petitioners on bail passed by the Additional Sessions Judge, Delhi; and
3) All the relevant material/documents, evidence of various witnesses was not placed before the detaining authority.
6. In support of the first ground that there was delay in passing the detention orders, learned counsel for the petitioners has urged that the last criminal activity alleged against the petitioners related to the crimes stated to have been committed by them up till the end of the year 1999 while the impugned orders were passed on 30.01.2002 i.e. after more than 25 months of the last registered case and, therefore, the detention orders are vitiated on the ground that there is no nexus between the dates of the detention orders and those crimes which would show non-application of mind of the part of the detaining authority. The contention appears to be attractive at the first sight because of the apparent delay in passing the impugned detention orders but when we go deeper into this aspect it would appear that the contention does not hold any water. The Apex Court in a catena of judgment has held that delay ipso facto is not fatal in passing the detention order. There can be no hard and fast rule regarding the length of the time which can be regarded as sufficient to snap the nexus. It will not correct to assume that an order of detention has to be mechanically struck down if there has been delay in passing the same and the Court is called upon to consider the circumstances in each case as to whether the delay had been satisfactorily explained or not. In support of his contention, learned counsel for the petitioners has placed reliance on a Supreme Court decision in the case of V.C. Mohan v. Union of India and Ors., . In this case the Court considered the question of detention of a detenu under Section 3 of the COFEPOSA Act, 1974; the detention order having been passed after seven months from the time the incident took place, the Court held as under:-
"The constitutional sanction for preventive detention cannot be said to be without any limitation and apprehending such a conduct of the concerned officials, the founding fathers probably laid down its safeguards from the misuse of the powers as conferred. The hallmark of the concept of justice, as is available in the justice delivery system of the country, is that the conduct of the detaining authority or as a matter of fact, any governmental authority ought to be fair and reasonable. The accepted methodology of governmental working should always be in tune with the concept of fairness and not decors the same a person is being placed under detention without trial and there is neither any scope for overzealous nor acting in a manner without due and proper application of mind in either of the situation, law courts should be able to protect the individual from the administrative ipse dixit. The Draconian concept of law has had its departure quite some time back and rule of law is the order of the day. It is this rule of law which should prompt the law courts to act in a manner fair and reasonable, having due regard to the nature of the offences and vis-a-vis the liberty of the citizens. The order as passed by the settlement commission on 15th February, 2001 directing the detenu to make payment of the additional duty as noticed above, cannot but be termed to be a very relevant material having a direct impact on the issue and in the event of non-placement of the same before the detaining authority, question of affirmation of the detention order would not arise."
7. Reliance is then placed on a Supreme Court judgment in the case of Kimti Lal Sethi v. Lt. Governor of National Capital Territory of Delhi and Ors. where in regard to the delay in passing of the second detention order the Court held as under:-
"The first detention order was passed in September, 1992 requiring the petitioner to be detained for a period of one year. He was detained on 18.1.1997 but after the said detention order was quashed, he was released on 23.11.1994. The petitioner had, by then, been in detention for a period of more than 10 months. The passing of the new detention order on 25.4.1995 only for a period of one month & twenty five days clearly shows that the intention was to see that the petitioner remained under preventive detention for a total period of one year, which was a period in respect of which the fist detention order had been passed. Therefore, there is merit in the contention of the counsel for the petitioner that in the present case the fresh order of detention appears to be punitive in nature and has not been passed in order to prevent the petitioner from indulging in prejudicial activities in future. Where the detention takes the character of punitive rather than preventive action, the said order can be quashed as was done in the case of Harnek Singh v. State of Punjab, . In the present case also the passing of a fresh detention order on 25.4.1995, relating to the incident which had occurred in 1992, and for a period of only one month and twenty five days clearly appears to be punitive in nature and, therefore, vitiated.
On the other hand learned Counsel for the respondents has placed reliance upon a Supreme Court decision in the case of Yougendra Murari v. State of U.P. and Ors. where the court held as under:
"We also do not find any merit in the plea that the impugned order is bad on account of delay. It is true that the ground which led the District Magistrate to pass the detention order became available in July and the order was passed only in December but it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay. (See K. Aruna Kumari v. Govt. of Andhra Pradesh, and the cases mentioned there). It is necessary to consider the circumstances in each individual came to find out whether the delay has been satisfactorily explained or not. In the present case the petitioner was in custody and there could not be any apprehension of his indulging in illegal activities requiring his detention until the grant of bail by the Criminal Court became imminent. Besides, enquiry was also proceeding. This aspect has been explained in the detention order itself as also by the District Magistrate in his affidavit and it is clear that there has been no undue delay on his part in taking action. Besides, the distinction between such delay and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution as pointed out in Rajendrakumar Natvarlal Shoal v. State of Gujarat, is also relevant here especially because of the background of the petitioner's antecedents taken into account by the detaining authority showing his propensity for acts which were likely to disturb public order. We do not see any objection to the District Magistrate referring the first two incidents in this context, specially when the first incident related to disturbance of public order."
Reliance is also placed on the case of Rajendrakumar Natvarlal Shah v. State of Gujarat and Ors. where the Supreme Court held as under:-
"A distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. The rule as to unexplained delay in taking action is not inflexible. In cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay, is not satisfactorily explained, must necessarily given rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was no genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are "stale" or illusory or that there is no real nexus between the grounds and the impugned order of detention."
9. Having considered the respective contentions we are of the view that the delay in passing the impugned orders is not fatal and does not vitiate the detention orders; firstly for the reason that the petitioners were in custody soon after the commission of the last crime by them in November, 1999 and, therefore, there was no likelihood of their indulging into criminal activities prejudicial to the maintenance of the public order during the period of their detention. Such an eventuality had eminently arisen on the passing of the order of release of the petitioners on bail by the learned Additional Sessions Judge on 29-01-2002 and it became apparent to the detaining authority that the appellant were likely to be released forthwith and on their release they were likely to indulge in criminal activities again which would be prejudicial to the maintenance of public order. On the basis of this factual material we are of the considered opinion that despite the delay in passing the impugned orders, the orders were justified having regard to the track of the past criminal activities of the petitioners in which they were allegedly involved. It cannot, therefore, be said that the detention orders are the result of non-application of mind on the part of the detaining authority.
10. Learned counsel for the petitioners next submitted before us that the relevant materials viz. document/evidence of hostile witnesses etc., were not produced before the detaining authority and had it been produced, perhaps the detaining authority would have come to a different conclusion and may not have recorded its satisfaction that it was necessary to detain the petitioners from acting in any manner prejudicial to the maintenance of public order. This contention we are noting just to be rejected because in the grounds of detention it is clearly stated that due to the desperate image of the petitioners, the prosecution witnesses were scared to depose against them as was evident from the acquittal of the petitioner Joginder @ Danny in case FIR No. 5/97 in which even the injured/complainant and his mother, who were material witnesses, turned hostile. It, therefore, follows that the detaining authority had adequate material and had gone through the the statements of hostile witnesses and the judgment of the learned trial court acquitting the petitioners. Reliance is placed by the learned counsel for the petitioners to a Supreme Court decision reported as 1990 Crl.L.J. 1974 in the case of Ayub v. State of U.P. Does not advance the case of the petitioners in any way inasmuch as the facts and circumstances noted in those case were quite different and it could be shown there that certain relevant materials particularly which were necessary were not placed before the detaining authority and, therefore, the order was vitiated. Learned counsel for the petitioners also urged that even the bail order granted to the petitioners was not placed before the detaining authority and, therefore, the detaining authority was not in a position to apply its mind to the facts and circumstances and the grounds which had weighed with the learned Additional Sessions Judge admitting the petitioners to bail. The factum of the petitioners having been admitted to bail is very much noticed by the detaining authority in the ground of detention and, therefore, it cannot be said that the detaining authority was not aware of the bail orders or the grounds on which the release of the petitioners on bail was ordered by the learned Additional Sessions Judge. We are, therefore, of the view that the impugned detention orders are not vitiated on the ground that the relevant material was not placed before the detaining authority at the time of the consideration of the question of detention.
11. The last ground pressed for on behalf of the petitioners is that the detention orders are punitive in nature having been passed at a time when the petitioners were already in judicial custody and simply with a view to frustrate the bail order passed by the learned Additional Sessions Judge. In this connection, learned counsel for the the petitioners has heavily relied upon a Supreme Court decision in the case of Anand Prakash v. State of U.P. and Ors. 1990 SCC (Criminal) 96 wherein the Supreme Court has held as under:-
"(1) The detaining authority though can take into account the possibility of the detenu being released on bail in the criminal proceedings, has to be satisfied, having regard to his past activities or by reason of the credible information or cogent reasons, that if he is enlarged on bail, he would indulge in such criminal activities. In the present case except the bald statement that the detenu would repeat his criminal activities after coming out of jain, there is no credible information or material or cogent reasons apparent on the record to warrant an inference that the detenu if enlarged on bail would indulge in such criminal activities which are prejudicial to the maintenance of essential services. There must be something more than what if sound in the record here to come to the conclusion that this is not a case of solitary incident but a case of the detenu indulging in business of receiving stolen electric wires. On the other hand it appears that the detention order had been made in order of supplant the criminal prosecution which is not permitted."
In our view this authority is of no help to the petitioners inasmuch as the facts and circumstances in the said case were quit distinguishable from the facts and circumstances of the present case. In the case in hand in view of the order of the learned Additional Sessions Judge admitting the petitioners, there was every possibility of the petitioners being released from the jail on furnishing the bail bonds and surety bond so it cannot be said that there was not enough material before the detaining authority to warrant an inference that the petitioners were likely to be released and also to record an inference that the detenu if enlarged on bail would indulge in such criminal activities which were prejudicial to the maintenance of public order. No other material relating to the activities of the detenu could perhaps be brought before the detaining authority relating to the period from the date they were arrested and lodged in jail because during this period they remained in custody an could not possibly indulge in any criminal activities. We, therefore, see no merit in this contention as well. No other ground was pressed before us.
On a consideration of the entire matter we are of the considered view that the impugned detention orders do not suffer from any illegality or infirmity on the strength of which the same are liable to be quashed. The writ petitions being without any merits are accordingly dismissed.