Bhoora vs State of U.P. and Others

R.K. Shukla, J.—Bhoora has filed this Habeas Corpus Writ Petition under Article 226 of the Constitution, praying for his release after quashing the order of detention dated 1-7-1988, passed against him by the District Magistrate, Aligarh u/s 3(2) of the National Security Act (hereinafter referred to as the Act).

The aforesaid detention order dated 1-7-88 (Annexure I) along with the grounds of detention (Annexure II) were served on the Petitioner in jail. The relevant portion of the grounds of detention served on the Petitioner reads as under:

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In connection with the aforesaid incident dated 21-6-87 a case Crime No. 159 of 1987 was registered and the Petitioner was arrested on 26-6-87 by the police. The detention order was served while the Petitioner was in jail. It was approved by the State Government u/s 3(4) of the Act on 9-7-87 after due process. The Petitioner made a representation to the State Government which was rejected on 3-8-87. A report to the Central Government as envisaged u/s 3(5) of the Act about the detention of the Petitioner was made by the State Government on 9-7-87, which was received in the Home Department, Government of India on 13-7-87. The Central Government after due examination of the report decided on 15-7-87 that there was no necessity to interfere with the order of detention approved by the State Government.

The main point vehemently urged by Sri Markandey Katju, learned Counsel for the Petitioner is that the copies of the statements recorded u/s 161 Code of Criminal Procedure in the aforesaid case crime No. 159 of 1987 of police station Kotwali were not supplied to the Petitioner along with the grounds of detention. In support of his contentions he has relied on (i) State of U.P. Vs. Kamal Kishore and Another, , (ii) Narendra Singh v. Superintendent, Central Jail, Varanari 1986 ALJ 899 , (iii) Sita Ram Somani Vs. State of Rajasthan and Others, , (iv) Ashadevi v. K. Shivraj AIR 1979 SC 447 and (v) Munni Lal v. Superintendent of Central Jail, Naini, Allahabad 1985 AWC 641 FB.

On the other hand relying on a decision of Supreme Court in the case of Wasi Uddin Ahmad v. The District Magistrate, Aligarh, U.P. AIR 1981 SC 2166, Mr. G. Bhatt, learned Counsel for the State vehemently urged that the detaining authority has not relied upon the statements of witnesses recorded u/s 161 Code of Criminal Procedure therefore, it was not necessary to furnish the copies of the same to the detenu. The detenu had already been supplied with all the documents or relevant extracts on which the detaining authority had relied on. Therefore, according to him there is no force in this argument.

The facts regarding this point are alleged in paragraph 17 of the writ petition, which have been controverted by the District Magistrate, Aligarh in paragraph 12 of his Counter Affidavit. Regarding non-supply of copies of the statements recorded u/s 161 Code of Criminal Procedure the District Magistrate, Aligarh has clearly stated in paragraph 12 of his counter affidavit that he himself did not consider it necessary to go through the statements u/s 161 Code of Criminal Procedure in respect of case crime No. 159 of 1987 for detaining the Petitioner. As he had not relied on the statements recorded u/s 161 Code of Criminal Procedure therefore, there was no question of those statements to be furnished to the Petitioner. Moreover, the Petitioner himself never demanded those statements nor did he apparently consider it necessary for making the representation against the order and grounds of detention.

The question remains for our consideration is whether sufficient particulars of the first instance of the ground of detention were furnished to the Petitioner so as to enable him to exercise effectively his constitutional right of making representation against the order of detention. Obligation which rests on the detaining authority in this behalf admits of no explanation and its rigour cannot be relaxed under any circumstances. The first instance of grounds of detention with which we are concerned in this writ petition mentions each and every one of the material particulars which the Petitioner was entitled to know in order to be able to make a full and effective representation against the order of detention in dispute. That ground mentions the place, date and time of the alleged occurrence. It describes the occasion and manner how the Petitioner led the crowd in the police station illegally making provocative slogans against one Aqil and how he started throwing brick bats and set fire to the shops in the vicinity. When the police force was called to maintain public order, knife injuries were caused to Head Constable, Ram Babu with intent to kill him. Company Commander of Home Guard, Sri Ashok Kumar Pathak was also injured. At the same time the companions of the Petitioner killed Asha Varshney aged about 20 years mercilessly near Chhatari Wali Masjid within the police station Kotwali. As a result of which market was closed for two days and public order was disturbed. It also mentions the approximate number of persons who participated in the incident along with the Petitioner. The aforesaid particulars mentioned in the grounds of detention comprised the entire gamut of facts, which was necessary for the Petitioner to know in order to make a well informed representation. There is no complaint on behalf of the Petitioner that there was anything in the statements of witnesses recorded u/s 161 Code of Criminal Procedure which mitigates the allegation against the Petitioner made in the grounds supplied to him. There is nothing on the record, nor the learned Counsel for the Petitioner could point out anything which introduced obscurity in the facts stated in that instance of ground of detention or detract from the substance of the allegations mentioned in that ground. No argument has been advanced before us that due to non-supply of the statements recorded u/s 161 Code of Criminal Procedure the Petitioner could not make an effective representation regarding that ground. However, we asked the learned Deputy Government Advocate to produce before us the statements of the witnesses recorded u/s 161 Code of Criminal Procedure in case crime No. 159 of 1987. Mr. Markandey Katju himself examined them in detail but could not point out anything which could prove fatal in this case. After careful scrutiny of the aforesaid statements, we find that there is nothing in it which has caused any prejudice to the Petitioner or could have adversely effected the passing of the impugned detention order. The ground of detention mentions every conceivable detail which was necessary to mention in order to enable the Petitioner to make a proper representation against the order of detention. It is, therefore, not possible to accept the argument that the order of detention is bad because the detaining authority did not apply its mind to the question as to whether there was material on the basis of which the Petitioner could be detained.

It is very well settled by a decision of five Judge''s Constitutional Bench of the Supreme Court in the case of Wasiuddin Ahmed Vs. District Magistrate, Aligarh, U.P. and Others, that it is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him. Explaining the relevant passage in the judgment of Khudiram Das Vs. The State of West Bengal and Others, in support of the contention that the entire material which was before the detaining authority including the evidence gathered by him must be furnished to the detenu, the Supreme Court has held in para 24 of Jagdev Singh Talwandi''s case (supra) as under:

These observations cannot be construed as meaning that the evidence which was collected by the detaining authority must also be furnished to the detenu. As the very same paragraph of the judgment AIR 839 (SCR) 554 of of the report shows, what was meant was that the basic facts and the material particulars which form the foundation of the order of detention must be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised of the same, the detenu cannot possibly make an effective representation".

In the instant case name of the Petitioner and detail of his activities are given in the grounds as mentioned above. It cannot be said that any relevant vital material has not been considered before arriving at the satisfaction by the detaining authority. Therefore, we find no force in this point and reject it.

All the aforesaid cases relied on by Mr. Markandey Katju, learned Counsel for the Petitioner in support of his contention on this point are distinguishable on facts and it is not necessary to discuss them in detail. Only this will suffice to say that in State of U.P. v. Kamal Kishore Saini''s case (supra) the names of detenus were not mentioned in the FIR. In respect of the incident and the basis of their complicity came to be known only in the material found in the course of investigation. The detenus were supplied only with the copies of the FIR and also extract of the charge sheet and not the statements u/s 161 Code of Criminal Procedure. Secondly, application of co-accused as well as statement made in the bail application that they had been falsely implicated in the same case and the police reports thereon were also not produced before the detaining authority before passing of the detention order. In the instant case there are no such lapses.

In Narendra Singh''s case (supra) in the statement of the complainant no role was assigned to the detenu except that he came armed with other accused. The complainant''s mother''s statement u/s 161 Code of Criminal Procedure did not give the details as she had not seen whole of the incident. The Reporting Officer of that case did not include the statement of the complainant u/s 161 Code of Criminal Procedure in the documents submitted to the detaining authority, whereas the statement of complainant''s mother was included. Under these circumstances the statement of the complainant u/s 161 Code of Criminal Procedure was extremely material and should have been placed before the detaining authority, particularly when the complainant''s mother''s statement was placed before him. In this case no such variation has been pointed out or alleged. Therefore, this case is also of no help to the Petitioner.

In Sita Ram Somani''s case (supra) the documents revealing that detenu of that case and co-accused were granted bail and that they had retracted their confession, were not placed before the detaining authority, though might have been placed before the Screeing Committee. In such situation it was held by the Supreme Court that the relevant material was not placed before the detaining authority and it was not considered by him. Thus there was non-application of mind by him to the relevant material and, therefore, the detention was illegal. There is nothing like this in the instant case.

In Ashadevi''s case (supra) the confessional statements had been squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody-all of which had a material bearing and would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority before passing the detention order on January 4, 1978. Therefore, the impugned order was liable to be set aside. This situation is also not present in the instant case.

In Munni Lal''s case (supra) also the Petitioner was neither named in the FIR nor was identified by any person in the identification parade. In that case the police however did not place identification memo before the District Magistrate and merely reported to him that his complicity became known during investigation and was confirmed by the recovery of aluminium wire to the tune of Rs. 75,000/- from his godown. In such situation withholding of the identification memo, which was a vital fact, detention order was quashed by a Full Bench of this Court. There is no such withholding of any vital fact which could influence the mind of the detaining authority.

Thus the facts of the instant case are distinguishable from the facts of the aforesaid cases and they are of no help to the Petitioner on this point.

The second point urged by Sri Markandey Katju, learned Counsel for the Petitioner is that the Advisory Board did not send the record of the case to the State Government along with its report. Therefore, the State Government while confirming the impugned detention order did not apply its mind to the material on record. This is a serious infirmity in the case which makes the continuous detention of the detenu illegal. In support of his contention he relied on a decision of the Supreme Court in the case of Nand Lal Bajaj Vs. State of Punjab and Another, .

The facts relating to this point are alleged in paragraph 16 of the writ petition, which have been fully controverted in paragraph 5 of the counter affidavit of Sri B.L. Yadav, P.A. to the Registrar, U.P. Advisory Board (Detentions), High Court Lucknow Bench, filed on behalf of the Respondent No. 4, U.P. Advisory Board wherein it is stated that all the documents and materials whichever available before the Advisory Board (Detentions) were made available to the State Government vide covering letter No. 178 dated 14-8-87. The entire record of the Advisory Board (Detentions) were sent to the State Government and a copy of the same was retained by the Advisory Board. Sri P.N. Tiwari has also corroborated the aforesaid statement of Mr. Yadav in paragraph 5 of his counter affidavit filed on behalf of the State Govt. that after receiving the record of the State Government together with the covering letter dated 14-8-87 the State Government once again examined afresh the entire matter of the Petitioner in detail. Under these circumstances, we find no force in this point also, consequently we reject it. The case of Nand Lal Bajaj (supra) relied on by the learned Counsel for the Petitioner is distinguishable on facts and it is not necessary to discuss it here in detail.

Lastly it was urged by the learned Counsel for the Petitioner, that Bhoora (Petitioner) is not an accused in case crime No. 208 of 1984 under Sections 324/323 IPC of police station Kotwali, District Aligarh, mentioned in the grounds of detention. It is also stated that the accused in the said case is also named as Bhoora son of Kalwa but he is different from the Petitioner. The Petitioner is a resident of Mohalla Khaidwara, police station Kotwali while the other Bhoora son of Kalwa, implicated in case crime No. 208 of 1984 is a resident of Mohalla Delhi Gate, police station Delhi Gate, Aligarh. Therefore, it is non-application of the mind by the detaining authority which vitiates the impugned detention order.

The facts regarding this point are given in paragraph 9 of the writ petition, which have been controverted in paragraph 6 of the counter affidavit of Sri Lalit Srivastava, District Magistrate, Aligarh, wherein he has stated that he did not consider the said activity to be at all relevant for the purposes of public order and as such the facts of case crime No. 208 of 1984 under Sections 324/323 IPC were not considered as a ground for detaining the Petitioner. Since this fact was mentioned in the police report the District Magistrate has just incorporated it in the grounds of detention; but as it was wholly irrelevant for purposes of detaining the Petitioner, it was not made a ground for detaining the Petitioner. This activity had not at all been made the basis for the detention of the Petitioner nor had it been relied upon by the detaining authority at the time of his satisfaction for detaining the Petitioner. After careful scrutiny of the grounds of detention, we find that the incident dated 21-6-1987, the subject matter of case crime No. 159 of 1987 under Sections 147/332/427/436/188 IPC, case crime No. 160 of 1987 under Sections 302/147/188 IPC and case crime No. 161 of 1987 u/s 302 IPC of police station Kotwali, Aligarh is the main of detention. There is no such dispute about these alleged criminal acts against this Petitioner. In view of addition of new Section 5-A of the Act the detention of the Petitioner cannot be declared to be illegal due to wrong mentioning of case crime No. 208 of 1984 under Sections 324/323 IPC. Even after discarding the allegations of case crime No. 208 of 1984 the aforesaid incident dated 21-6-1987 and case crime Nos. 159 of 1987, 160 of 1987 and 161 of 1987 under aforesaid various sections of the IPC are sufficient for the satisfaction of the detaining authority that the said activity of the Petitioner disturbed the public order and tranquility of the specified area. Hence, the impugned detention order against the Petitioner is fully justified and it needs no interference by this Court.

In the result this Habeas Corpus writ petition fails and is dismissed.