Afzal Ahmad vs State of U.P. and Others

G. Malviya, J.—The Petitioner Atzal Ahmad has been detained in pursuance of an order dated 15-1-1991 passed by the District Magistrate Aligarh u/s 3(2) of the National Security Act. The grounds of detention which were served on him have also been annexed with the present petition by which the Petitioner has challenged the validity of his detention in pursuance of the said order and grounds.

Briefly stated the grounds on which the Petitioner has been detained read as follows:

On 8-12-1990 at about 3.00 p.m. in Qazba Atrauli you Afzal Ahmad son of Maqbool Khan aged about 20 years with a view to create communal tension and terror in the said qasba threw a bomb in the shop of Chetan Swarup son of Chaturbhuj Dayal. The said bomb got exploded in your hands with the result you got injured. On account of the bomb blast, people started running away after closing their shops and the entire market was closed. People hid themselves in their houses. The Hindus in the locality started feeling insecure and on account of the said conduct of yours, the public order got disturbed. A first information report bearing crime No. 370/90 u/s 307 IPC read with Section 4/5 of the Explosive Substance Act and 7 Criminal Law Amendment Act was registered at police station Atrauli which was pending investigation. You are in jail but are likely to be released in near future.

On your release from jail, there is every possibility that you would again indulge in similar activity and cause disturbance of public order not only in the qasba put in the entire district. Consequently with a view to prevent you from acting in such similar manner, it is necessary to preventively detain you.

In the present petition, the Petitioner asserted that he was a lad of about 16 years and that it could not be expected that he could indulge in an activity which could disturb the public order of the locality. In support of his claim about being 16 years old, the Petitioner had annexed his school leaving certificate as annexure-5 to the petition, in which his date of birth was shown to be 20-5-74. If this school leaving certificate is correct, it is obvious that on the date of the alleged incident i.e. 8-12-1990 the Petitioner would have been about 16 1/2 years old.

In para 8 of the counter affidavit filed by the detaining authority, para 10 of the petition in which asserted the Petitioner to be 16 years old, annexing the transfer certificate, has been replied as follows:

that the contents of para 10 of the petition are incorrect and denied. The age of the Petitioner is 20 years according to G.D. entry No. 25 dated 8-12-90 and it is wrong to say that the age of the Petitioner is 16 years.

It would be seen that the genuineness of the transfer--certificate annexed with the petition has not been doubted and he age has been denied only on the basis of the general diary entry. It is obvious that the Head constable of the police station who might have recorded the age of the Petitioner in the G.D. could not be personally aware about the age of the Petitioner. Once the genuineness of the transfer-certificate has not been challenged by the counter affidavit, it is to be found that the Petitioner was hardly 16 1/2 years at the time of the alleged incident.

Learned Counsel for the Petitioner contended and in view of the judgment of the Supreme Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, , it cannot be expected that the Petitioner who was aged about 16 1/2 years at the time of the incident could indulge into an activity which could be a serious threat to the maintenance of public order.

Before we advert to the said judgment of the Supreme Court it appears necessary to look into the other facts which have come to light on the basis of the material which has been supplied to the Petitioner along with the detention order to see what was the real role played by the Petitioner giving rise to his detention under National Security Act.

The Petitioner has annexed along with the writ petition the true copy of the FIR of crime No. 370/90 and the copy of the statements of Banwari Lal and Om Prakash Jauhari recorded u/s 161 Code of Criminal Procedure which according to him had been supplied to him along with the order and grounds of detention. A perusal of the statements of Banwari Lal and Om Prakash Jauhari which have been annexed as annexures-3 and 4 to the petition, demonstrate that the Petitioner was apprehended on the spot after the bomb had exploded in his hands when he had attempted to throw it in the shop of Chetan Swarup. The statements reveal that on being apprehended the Petitioner disclosed his name as Afzal and admitting his guilt. He disclosed the names of his associates as Akbar and Babar and he further stated that the said Akbar and Babar had just told him to hurl the bomb by saying that rest of the affair was to be managed by them.

On the basis of the statements of Banwari Lal and Om Prakash Jauhari, learned Counsel for the Petitioner has contended that obviously Akbar and Babar had taken advantage of the youthful and immature age of the Petitioner and had persuaded him to throw a bomb by wrongly influencing his innocent mind. It is contended that, may be, the Petitioner was coaxed to do this act either for some reward or was forced to do so under some threat etc. It is further said that being immature, the Petitioner merely carried out the instructions; and the fact that in his attempt to hurl the bomb he got the bomb exploded in his hands, indicates that he was not a person who was an expert in doing this type of work at any point of time earlier. According to the learned Counsel for the Petitioner, in the similar circumstances the Supreme Court in the case of Jaimala (supra) was pleased to hold that Ayaz Khan, who was a lad of 17 years, could not be validly detained under the provisions of the preventive detention law.

Learned State counsel has tried to distinguish the case of Jaimala (supra). His contention is that Ayaz Khan who was the detenue in the case before the Supreme Court was admittedly a student. The two activities assigned to Ayaz Khan were that on the bus conductor of a Mini Bus, in which he was traveling, asking him to pay the fare, he refused to pay and left the bus after administering threats. Later, on the same day, he along with seven other persons stopped the Mini Bus and attacked the conductor with a dagger with an intention to kill him which caused injuries to his person. The second activity assigned to Ayaz Khan was that, he in the company of three/four of his associates took lemon water from a vendor at Mubarak Mandi and refused to pay for the same. On him further demanding the price for the lemon-water he took out a dagger and threatened him by saying that by demanding money he was inviting his death. According to learned state counsel, it was these child-like activities of the Petitioner which prompted their Lordships of the Supreme Court to make the following observations in that judgment.

Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and the circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.

Learned Counsel for the state contends that in the instant case before us, it was not any child-like-activity but it was the activity of a young boy who had agreed to be a party to create fresh commnal tension in the locality, and as such even if the Petitioner was a lad of about 17 years he on the facts and circumstances of this case should not be permitted to get the benefit of the judgment of the Supreme Court in Jai Mala''s case.

Having heard the arguments of the learned Counsel for the respective parties we find that the judgment of the Supreme Court in Jai Mala''s case covers the case of the present Petitioner also. It would be relevant to notice that the Supreme Court in Jai Mala''s case had found that "Ayaz Khan on two different dates had marginally crossed the bounds of law. The Supreme Court in that back ground had said that one could not treat such slightly misdirected, may be little more enthusiastic young person with sledge hammer and observed that in the facts arid circumstances of that case the detention order was wholly unwarranted and thereafter the Supreme Court had quashed the order.

In the instant case, although there is clear material furnished to the Petitioner indicating that after the communal riots, it was the very first day when the curfew was being relaxed and there were many people who had come to the market when this incident of hurling bomb by a muslim youth in a Hindu market was resorted to, but the question to be considered is whether the Petitioner could be held to be aware of the fact that his hurling of the bomb in a Hindu market was likely to affect the even tempo of life of the community, or not.

We have given our anxious consideration to this aspect of the matter. It is not the case of the detaining authority that the Petitioner was a hard core fanatic who even at this young age had associated himself in some communal activities with undesirable and unsocial elements. All that is gathered is that Akbar and Babar had asked him to hurl the bomb. The Petitioner could not carry out even that task successfully as the bomb blasted in his hands itself when his hand had struck the wall from where he was hurling it. Viewed in this back ground, we find ourselves to be bound by the observations of the Hon''ble Judges of the Supreme Court in the case of Jai Mala. It is worthwhile noting that in para 8 of the judgment of Jai Mala, their Lordships were pleased to observe that ''it was difficult to even concede that a school going minor boy would indulge into such activities as to be a serious threat to the maintenance of public order. "Consequently even if we find that the Petitioner who was a lad of 16 1/2 years took part in an activity, which if indulged by some other person could certainly be a clear case of disturbing the even tempo of life of the community, yet on the facts and circumstances of this case, we find that the detention order against this boy of about 16 1/2 years was wholly unwarranted and the same deserves to be quashed.

The petition is accordingly allowed. The Petitioner Afzal Ahmad shall be set at liberty forthwith unless he is wanted in any other case.