Bombay High Court
Omprakash Adhyaprasad Singh And Etc. vs Commissioner Of Police And Ors. on 5 July, 2002
Equivalent citations: 2002CRILJ4877
Author: D.G. Deshpande
Bench: D.G. Deshpande, A.S. Aguiar
JUDGMENT D.G. Deshpande, J.
1. Heard learned counsel Mr. Pasbola and Mr. Kocharekar for the petitioners in both these petitions respectively and learned A.P.P. for the respondents in reply thereto. Since the grounds of detention in both these petitions and the grounds of challenge are identical and similar, and since both the counsel for the petitioners have agreed, we are disposing of these petitions by this common order.
2. The detention order in both these petitions is dated 14-2-2002 and the grounds of detention are of the same date. Both these petitioners are detained under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act.
3. The petitioners have challenged their detention on various grounds. However, Mr. Pasbola and Mr. Kocharekar restricted their arguments to two grounds only and, therefore, we are disposing of these petitions on those two grounds.
First ground that was raised by the petitioners was that two co-detenus Suryakant More and Shivnarayan Dube alias Sadhu, who were also detained pursuant to the same detention order and on similar grounds or detention, were released by the State Government on the advise of the Advisory Board; whereas these two petitioners have not been released and their detention was confirmed by the State Government. According to the advocates for the petitioners, this is a case of clear discrimination and violation of Article 14 of the Constitution of India.
Secondly the contention that was raised on behalf of the petitioners was that the detention order is based on extraneous material which is to be found place in reply affidavit on pages 77 and 78, wherein the particulars of 16 pending cases against detenu Omprakash Singh have been given and there is a reference to pending cases against him in the State of Gujarat. It was contended by Mr. Pasbola with reference to these pending cases that the detention order is influenced by extraneous material as quoted in reply affidavit on pages 77 and 78 and, therefore, on both these grounds the detention Order is liable to be quashed.
Mr. Pasbola relied upon the following authorities in support of his contentions :-
(1) 1997 Cri LJ 276 (Anil v. State of U.P.), a judgment of Allahabad High Court which was subsequently followed by the Division Bench of this Court in 2002 All MR (Cri) 1334 (Mukhtar alias Pappu Abdul v. M.N. Singh) (2) 1993 Cri LJ 1220 (Wazir Yadav v. State of U.P.).
The learned A. P. P. for the respondents relied upon the judgment of Supreme Court in Yogendra Murari v. State of U.P. and, of the Allahabad High Court in 1992 Cri LJ 214 (Bhagwat Dayal v. State of U.P.).
4. The case of the Allahabad High Court in Anil v. State of U.P. 1977 Cri LJ 276 the detention order was quashed against a person who was an accused of murdering a child. Along with him, his father and brother were the co-detenue. The detention order was quashed by Allahabad High Court on two grounds viz. that killing of a child was an act of detenu directed against individual and not against public in general and, there was no nexus of the detention order with the public order and; secondly on the ground that when the detention of the father and brother of Anil, the detenu in the aforesaid reported Case, was quashed or they were released, then there was no ground to make discrimination against detenu Anil. This judgment was followed by this Court in 2002 All MR (Cri) 1334 (Mukhtar alias Pappu Abdul v. M.N. Singh) as referred to above. The Division Bench of this Court while relying upon the aforesaid Judgment of the Allahabad High 'Court also found that the detention order against the detenu in that case was confirmed on the ground of 12 criminal cases pending against him. In that background of the matter, this Division Bench held that pendency of 12 cases against the detenu did not place him in a separate class because there was no nexus between those 12 cases and the detention order. In 1993 Cri LJ 1220 (Wazir Yadav v. State of U.P.) the Allahabad High Court came to the conclusion in pages 29 and 30 that equality before law envisages that; all the citizens are treated equally, particularly in detention matters.
5. As against these three cases, learned A.P.P. Ms. Kamat relied upon the judgment of the Allahabad High Court in 1992 Cri LJ 214 (Bhagwat Dayal v. State of U.P.) and also the judgments of the Supreme Court in AIR 1988 SC 1835 : 1988 Cri LJ 1825 (Yogender Murari v. State of U.P.) and in 1990 Supp SCC 141 (District Magistrate v. Kulbir Chand).
6. In the last judgment quoted above i.e. District Magistrate v. Kulbir Chand 1990 Supp SCC 141 the Supreme Court observed that the detention orders cannot be quashed merely on the ground that the detention orders in similar cases have been revoked. According to Supreme Court, "Each case has to be decided on its own facts." The same view was taken by the Allahabad High Court Bench in its judgment of Bhagwat Dayal v. State of U.P. 1992 Cri LJ 214 in para 19 of the said judgment the Division Bench of the Allahabad High Court observed as under:-
the proceedings of the Advisory Board being confidential, we cannot know what prevailed upon the Advisory Board to hold that there was no sufficient cause to detain Aas Mohammad and Raj Kumar but the Advisory Board had found that there was sufficient material available on the record to detain the petitioner. The scheme of the Act clearly postulates that if the Advisory ' Board reports to the Government that there is not sufficient ground to detain a particular person under the National Security Act, the State Government has no option but to revoke the order of detention. It is not. disputed that the Advisory Board after hearing the detenus had found that in its opinion there was no sufficient material to direct detention of the other law persons but there was sufficient material to approve detention of the petitioner. In view of the special nature of the proceedings of the Advisory Board, we have therefore, to submit to the wisdom of the Advisory Board and come to the conclusion that the material against the petitioner was found to be of a clinching nature by the Board but similar matter was wanting against the other co-detenus. In any case the decision being that of the Advisory Board which confirmed the detention of the petitioner and not of the co-accused, it cannot be said that the detention of the petitioner is also to be revoked despite the fact that the Advisory Board had found it to be fustified after it had perused the material against the petitioner and heard the petitioner also in support of his contentions. Consequently this ground of learned counsel for the petitioner also fails.
The learned A.P.P. also relied upon judgment of the Supreme Court in AIR 1988 SC 1835 : 1988 Cri LJ 1825 (Yogendra Murari v. State of U.P.) wherein in para 9 of the Supreme Court laid down the same principle i.e. the role of the petitioner and that of others can be the criteria for making distinction and discrimination or coming to different findings. The exact findings of the Supreme Court are as under :-
The role of the petitioner and that of the others are not identical and the reasonable apprehension as to their future conduct must depend on the relevant facts and circumstances which differ from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision in this regard only on the ground that the persons concerned are all joined together as accused in a criminal case.
7. In view of this background we have to consider the facts of the present case. However, at this juncture it can be clarified that we are not convinced by the submission made by Mr. Pasbola and Mr. Kocharekar and the case laws relied upon by them. We are adopting the view of the Allahabad High Court in 1992 Cri LJ 214 and that of the Supreme Court as relied upon by the learned A.P.P. Merely because two detenus have been discharged by the State Government, the present petitioners cannot contend that they have been discriminated against by the State Government while confirming their detention order.
8. So far as two detenus, who are released, are concerned, the learned A.P.P. pointed out from the documents and record available with her that even though only one C.R. and three in-carnera statements were there against all the four detenus including two petitioners and two released detenus, the role played by discharged detenus Suryakant More and Shivnarayan Sadhu was altogether different. What weighted with the .Advisory Board, we are not going into that aspect considering the observations of the Allahabad High Court quoted above.
9. However, what was pointed out to us regarding the role of the present two detenus is altogether from what is alleged against two released detenu. So far as detenu Omprakash Singh is concerned, there are clear cut allegations in the complaint lodged by the complainant in C.R.No. 39 of 2002 that detenu Omprakash Singh is running a gang for and on behalf of Chhota and also has his own gang. He is, what is as reflected in C.R. No. 39 of 2002 and three in-camera statements, a person who runs a gang and controls the activities of his subordinates and, in C.R. No. 39 of 2002 and three in-camera statements, it was he at whose instance the robbery were committed at the point of weapons. So far as other detenu Sanjay Singh is concerned, his role-is more serious because he was directly involved in the robbery case, that he has used the weapon. The learned counsel for the petitioners could not point out that the roles of discharged or released detenus Suryakant More and Shivnarayan Sadhu were identical. They have nothing to contradict the contention of the learned A.P.P. in that regard.
10. Since the Supreme Court, in the two judgments referred to above and, the Allahabad High Court in its judgment referred to above, have taken the view with which we are concurring that the roles of the detenus play a vital part in coming to the conclusion regarding necessity of detention, we do not find that the case of the petitioners is discriminated against them by the State Government. So far as second contention is concerned it was argued by Mr. Pasbola and supported by Mr. Kocharekar that while passing the detention order the detaining authority has taken into consideration extraneous materials as is reflected in affidavit-in-reply on pages 77 and 78. On these two pages particulars of 16 pendin; cases against detenu Omprakash Singh have been given. The learned A.P.P. pointed out that similar information and particulars of the documents pertaining to the same was given to the detenu Omprakash Singh. She further pointed out. from the affidavit that the detaining authority has clarified, specifically and clearly, that he has not relied upon these antecedents or 16 pending similar cases and he arrived at subjective satisfaction on the basis of one C.R. and there, in-camera statements to which there is clean. cut reference in the grounds of detention We do not find any reason to disbelieve the, aforesaid statement of the detaining authority. Consequently, we do not find any merits in these petitions. Hence, the order :-
ORDER Petitions are dismissed.
Rule discharged in both the petitions.