Sami Khan vs Jail Superintendent, District Jail, Bareilly and Others

This is a habeas corpus writ petition of one Sami Khan from Bareilly who has been detained under Section 3(2), (3) of the National Security Act, 1980 (hereinafter referred to as the ''Act''). The grounds of detention, according to respondent Nos. 2 and 3 are as follows:

(i) That on 13.2.2005 while Tazia procession in Mohalla Shahabad, Bareilly, was proceeding, it tried to proceed on a specified route on which there was a Mandirand house of members of Hindu community, and on being stopped by the police, a crowed of 100150 persons indulged in violence and threw stones injuring men and a vehicle causing damage to the temple and houses of the Hindu community. Some police personnel were also injured. It is alleged that the petitioner was one of the persons involved in the farces.

(ii)That on being released on bail, the detenu is likely to disturb public order and tranquility.

As regards ground No.(i), it will be seen that the only allegation against the petitioner is that he alongwith mob was indulging in throwing stones at the temple and the houses of persons of Hindu community and injuring other persons including the police personnel as also the passing vehicles, and all that communal tension.

The grounds on which a person can be detained under the Act have been enumerated in Section 3 of the Act which are as follows:

"3(1): The Central Government or the State Government, may

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation: for the purpose of this subsection, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to subsection (1) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of police may also, if satisfied as provided in subsection (2), exercise the powers conferred by the said subsection:

Subsections (2) and (3) of Section 3 are relevant to the case.

Even if we assume that the petitioner was involved along with mob in throwing stones, it cannot be categorized as something disturbing public order. It will amount to an offence under the Indian Penal Code for which he has already been prosecuted, but it is not possible to say that it amount to Disturb Public order.

It has also to be noticed that the involvement of the petitioner in this episode of stone throwing cannot be said to have been established. He was not named in the first Information Report lodged the same day at P.S. Premnager, Bareilly. His name app ears to have cropped up after about 29 days of the incident. It has also to be seen that no specific act has been assigned to him. He was just one of those Hundreds of persons who were allegedly involved in pelting stones, and it would not be just and fair to single him out for any such Preventive Action. It has also to be noted that Junaid alias Lucky was named in the first Information Report but he was not proceeded against because of the report of Advisory Board. It was suggested from the side of the respondent State that his detention order was revoked because he was a juvenile. The law does not provide for exoneration of Juveniles if they commit an offence or commit an act allegedly prejudicial to the maintenance of public order. There is a particularprocedure of proceeding against accomplice and even if Junaid was Juvenile he could have been proceeded against in accordance with law.

That report of the District Magistrate seeking detention of the petitioner under the Act refers to an earlier incident of murder in the area, which took place one and half year prior to the incident, but there is no mention about involvement of the petitioner in that case, and reference to that incident is, therefore, redundant.

It has been suggested from the side of the State that the area where the incident took place is prone to communal tensions, and this is sought, to provide as one of the justifications for the detention of the petitioner under the Act. The mere fact that a particular area is communally sensitive will not be itself provide justification for detention under the Act. The proper course for the police was to proceed under the relevant provisions of the Indian Penal Code and the Criminal Procedure Code. The provisions of the National Security Act are not supposed to be a substitute or an extension of the provisions of the Indian Penal Code and Criminal Procedure Code. It is only when a person indulges in such activities which have the potentiality of being prejudicial to the maintenance of public order, the provisions of the Act can be invoked.

One of the arguments propounded by the learned counsel for the State is that as mentioned by the District Magistrate in his report, the release of the petitioner is likely to lead to communal tension. A bald statement to the effect cannot be sufficient for invoking provisions of the Act. The grounds and reasons have to be enumerated as to how and why, release of the petitioner is likely to lead to communal Tension. In this connection, it is also relevant to note that no such thing is mentioned in the first .information report. There is no mention of the fact that there is pelting of stones on the temple or the houses of the people of Hindu community. The First Information Report does not give, therefore, date for any such inference.

ORDER

The petition, therefore, succeeds and is allowed. The detention of the petitioner (detenue) under the Act is set aside and he shall accordingly be set at liberty forthwith unless wanted in some other case. The Registrar General is directed to communicate this order to the State Government immediately.

A certified copy of this order be issued to the learned counsel for the parties by the office within a period of 24 hours on payment of usual copying charges.

(Petition allowed)