Sanjay Pratap Gupta Alias Pappu vs District Magistrate, Mainpuri and Others

Vishnu Sahai, J.

Through this writ petition preferred under Article 226 of the Constitution of India petitionerdetenu Sanjay Pratap Gupta alias Pappu impugns the order dated 23.12.2002 passed by opposite party No.1 Mr. D.N. Lal, District Magistrate, Mainpuri detaining him under Section 3(2) of the National Security Act.

The detention order, alongwith the grounds of detention, which are also dated 23.12.2002, was served on the petitionerdetenu on 23.12.2002 itself and their true copies have been annexed as annexures 1 and 2 respectively to this writ petition.

The prejudicial activities of the petitionerdetenu impelling the opposite party No.1 (District Magistrate, Mainpuri) to issue the impugned detention order against him are contained in the grounds of detention (annexure2). Their perusal shows as under:

"Under Section 8 of the National Security Act I hereby communicate to you (the detenu) the grounds of detention, as under:

The letters of Superintendent of Police, Mainpuri and Additions'' Superintendent of Police, Mainpuri, the report of Station Officer Incharge, Police Station Kotwali, District Mainpuri and the accompanying documents make it manifest that the detenu is a man of criminal tendencies and alongwith his associates has created a fear psychosis amongst businessmen and property dealers. On the point of illicit arms he and his associate illegally realized money from them. Any one who opposed him, is given a beating and silenced. On account of growing criminal tendencies of the detenu people have been rendered terrorstricken.

On 13.10.2002, at about 11.00 A.M., at the main crossing, in front of Safi Hotel, in the market of mainpuri town when Anand Kumar Jain, a propertydealer was going on scooter, on the pillion seat of which was sitting his son Ajay Kumar Jain, the detenu alongwith his associates: fired on him, resulting in his succumbing to his injuries on the spot. They also fired on his son Ajay Kumar Jain but he fortunately escaped unhurt. Apart from Ajay Kumar Jain, this incident was also seen by Naveen Kumar and Satendra Kumar Singh. An F.I.R. in respect of this incident was lodged on 13.10.2002, itself at 11.45 a.m. by Ajai Kumar Jain at Police Station Kotwaii, Mainpuri and on its basis crime No.1475 of 2002, under Sections 307/302 I.P.C. was registered against the detenu and his associates.

The averment is that as a consequence of the said prejudicial act committed by the detenu and his associates, market was closed; the even tempo of life in the area wherein the prejudicial act was committed, was gravely disturbed; and public order was disturbed.

On 17.10.2002, the detenu along with his licenced Webley Scott revolver was arrested. Thereafter the offence under Section 27 of the Arms Act was added in the array of Sections in crime No.1475 of 2002.

In para6 of the grounds of detention, the detaining authority has stated as under He was aware that the detenu was in District jail, Mainpuri in crime No.1475 of 2002, under Section 302/307 I.P.C. and Section 27 Arms Act; was making effort to get himself released on bail, there is imminent likelihood that he would be released on bail; from the report of Station House Officer and life sketch it is manifest that he has criminal tendencies; he was satisfied from the police report that in case he was released on bail, he would go on committing similar criminal offences; there is every possibility that fear psychosis would be created amongst the people and public order would be disturbed; hence there is compelling necessity that he should be detained; and from the aforesaid grounds he was fully satisfied that in order to prevent him from committing similar prejudicial acts and to maintain public order, it was imperative to detain him under Section 3(2) of the National Security Act.

A perusal of the grounds of detention would also show that the detenu has been apprised of his right of making a representation to him (detaining authority), the State Government, Advisory Board and Central Government.

We have heard Mr. Virendra Bhatia, for the petitioner, Mr. Jyotendra Misra, for opposite parties No.1 to 3 and Mr. B.B. Saxena, for opposite party No.4.

Although in this writ petition Mr. Virendra Bhatia has made a number of averments and taken a number of grounds but he only pressed before us the averments contained in paras 9,10,11 and 12 of the petition and ground ''e'' of para25 thereof, which read as under

"9. That thus, subjective satisfaction of the District Magistrate was based on extraneous material.

That a perusal of ground of detention shows that the detention order was passed on the basis of police report, which was considered by the detaining authority. The report mentions the following fact: "Aap Ek Aapradhik Pravarti Ke Vyakti Hain Aur Apne Sathiyon Ke Sath Milkar Vyavsay Karne Wale Logo Va Property Dealero Se Avaidh Shastro Ke Bal Par Bhay Va Aatank Paida Karke Avaidh Vasuli Kiya Karte Hain. Jo Bhi Vyakti Aapke Is Aapradhik Kritya Ka Virodh Karta Hain, Uske Sath Aapradhik Bal Ka Prayog Kar Maarpit Karke Va Anya Aapradhik Krityo Se Use Bhaybhit Kar Apradh Karne Ke Aadi Hain. Aapki Nirantar Badh Rahi Aapradhik Gatividhiyo Ke Karan Janmanas Main Bhay Va Aatank Vyapt Hain."

That no material was placed before the detaining authority in support of the aforesaid allegation.

That thus, subjective satisfaction of detaining authority was based on incorrect facts and extraneous material.

Ground (c) Because, subjective satisfaction of the detaining authority is based on incorrect facts, which were placed before him at the time of passing the detention order.

Mr Bhatia contended that since a perusal of the grounds of detention shows that the subjective satisfaction of the detaining authority, to detain the detenu vide impugned order was based on two grounds namely: (a) his criminal tendencies and general reputation in the form of the report of Mr. M.A. Qazi, Station Officer Incharge of Police Station Kotwali, District Mainpuri and his life sketch; and (b) the prejudicial act committed by him, pertaining to the murder of Anand Kumar Jain which is the basis of C.R. No. 1475 of 2002 under Section 307/302 I.PC. and Section 27 of Arms Act of Police Station Kotwali City, District Mainpuri and no material was placed before the detaining authority in respect of ground (a); the subjective satisfaction of the detaining authority to preventively detain the detenu vide the impugned order would stand vitiated in law.

The averments contained in paras 9, 10, 11 and 12 of the petition and ground ''e'' of para 25 thereof have been replied to in paragraphs 10 and 18 of the return of Mr. D.N. Laf, District Magistrate, Mainpuri (detaining authority) opposite party No.1. Said paras read thus:

"10. That the contents of paragraphs 9 to 12 of the writ petition are misconceived, hence denied. It is stated that as stated in foregoing paragraphs of this counter affidavit that the grounds of detention is based on two counts firstly the criminal tendency and general reputation of the petitioner in the form of report of Inspector Incharge Sri M.A. Qaji and life scatch (sic) of the petitioner. Secondly on the prejudicial act committed by murdering of Sri Anand Kumar Jain on 13.10.2002 relates to C.R. No. 1475/2002 P.S. Kotwali City, Mainpuri.

It is submitted that the contention of the petitioner that the subjective satisfaction of the District Magistrate is based on no material placed before him is wrong. The allegation that it is based on extraneous material is incorrect hence denied. It is further submitted that the subjective satisfaction of the detaining authority on both the counts is independent one on each counts and on the aforesaid two counts subjective satisfaction have been made separately on each of the ground within the meaning of Section 5A of the National Security Act, 1980."

"that in reply to the contents of paragraphs 24 and 25 of the writ petition, it is stated that the detention order of the petitioner is valid and lawfull. The writ petition has no force, deserves to be dismissed."

Mr. Jyotendra Misra, learned public prosecutor strenuously contended that since the grounds of detention and para 10 of the return of the detaining authority make it manifest that the impugned detention order is based on two grounds namely ''(a) criminal tendencies and general reputation of the detenu in the form of the report of Mr. M.A. Qazi, Station Officer Incharge of Police Station Kotwali, District Mainpuri and his life sketch; and (b) the prejudicial act attributed to him, pertaining to the murder of Anand Kumar Jain, which is the basis of C.R. No.1475 of 2002 under Section 307/302 I.P.C. and Section 27 Arms Act of Police Station Kotwali City, District Mainpuri'', the circumstance that no material was placed before the detaining authority in respect of ground (a) would only vitiate the subjective satisfaction of the detaining authority visavis ground (a) and not visavis ground (b). Mr. Misra invited our attention to the provisions contained in Section 5A of the National Security Act and urged that where the detention order is made on two or more grounds; merely because one or some of the grounds is or are (i) vague, (ii) nonexistent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, would not render it infirm/bad in law on other grounds. To bring home his submission, he invited our attention to paras45 to 49 of the decision of Supreme Court, rendered in the case of Attorney General For India and others v. Amratlal Prajivandas, and others (1994) 5 SCC 54 and to the decision rendered by a Division Bench of our Court in the case of Mohammad Suleman v. State of U.P. and otners reported in 2002(1) Allahabad Criminal Rulings page 1006, wherein the decision in Attorney General''s case (supra) has been followed.

We have considered the rival submissions and make no bones in observing that in our view this writ petition deserves to be allowed.

A perusal of the grounds of detention, which we have extracted in detail earlier and para10 of the return of the detaining authority would make it manifest that the subjective satisfaction of the detaining authority to detain the petitionerdetenu vide the impugned order is based on two grounds, namely: (a) his criminal tendencies and general reputation in the form of the report of Mr. M.A. Qazi, Station Officei Incharge of Police Station Kotwali, District Mainpuri and his life sketch; and (b) the prejudicial act attributed to him, pertaining to the murder of Anand Kumar Jain, which is the basis of C.R. No. 1475 of 2002 under Section 307/302 I.P.C. and Section 27 Arms Act of Police Station Kotwali City, District Mainpuri.

A perusal of para6 of the grounds of detention makes it crystal clear that the subjective satisfaction of the detaining authority to detain the detenu vide the impugned order is cumulatively based on or arrived at on both the grounds namely (a) and (b).

It is pertinent to mention that in no uncertain terms the detaining authority has stated in para6 that "Uprokt Aadharo Par Mera Yeh Samadhan Ho Gaya HainKiAapk.e Dwara Aisi Kisi Bhi Riti Main Karyawahi Kive Jane Ki Sambhavana Hain Jo Lok Vyavastha Banaye Rakhne Ke Pratikul Ho. Aapko Lok Vyavastha KgAnurakshan Ke Pratikul Karyavahiyo Main Sanlagan Hone Se Rokne Ke Uddeshya Se Aavashyak Ho Gaya Hain Ki Aapko Rashtriya Suraksha Adhiniyam 1980 (Yatha Sanshodh.itAdhiniyamSankhya 65/1980) Ki Dhara 3(2) Ke Antargat Nirudh Kiya Jaye," Translated in English these lines would mean that on the basis of the above grounds, I am subjectively satisfied that there is imminent possibility of your committing similar prejudicial activities, which would be antagonistic to the maintenance of the public order. Consequently it is imperative to detain you under Section 3(2) of the National Security Act.

In our judgment since para6 of the grounds of detention makes it manifest that the subjective satisfaction of the detaining authority was cumulatively based on both the grounds namely (a) his criminal tendencies and general reputation in the form of the report of Mr. M.A. Qazi, Station Officer Incharge of Police Station Kotwali, District Mainpuri and his life sketch; and (b) the prejudicial act attributed to him, pertaining to the murder of Anand Kumar Jain, which is the basis of C.R. No.1475 of 2002 under Section 307/302 I.P.C. and Section 27 Arms Act of Police Station Kotwali City, District Mainpuri and no material was placed before the detaining authority in respect of ground (a) his subjective satisfaction would not only be vitiated in respect of the said ground but also in respect of ground (b).

In this connection, we would like to advert to two decisions of the Supreme Court; (i) Dharamdas Shamlal A.garwal v. Police Commissioner and anothei (1989 SCC (Crl.) 378); and (ii) P. Saravanan v. State of T.N. and others (2002 SCC(Crl.) 1438).

In Dharamdas''s case (supra) the detenu was detained under Section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985 as a dangerous person in terms of Section 2(c) of the said Act on the basis of:

SI.No. Police Station Offence Regd. No. Section Decision

Sabarmati 140/81 324, 114IPC Compromised

February 16,1982.

Sherkotda 411/82 332,323, 114 IPC P.T.

Sherkotda 412/82 IPC 147, 148,149, 307 BP Act 135(1) P.T.

Sherkotda 452/85 IPC 302,201,34 Not proved.

Sabarmati 346/87 IPC 302, 109,34 In the court

From the side of the petitioner it was contended before the Apex Court that the detenu had been detained in offences at serial Nos.2 and 3 and the factum of his acquittal therein was not brought to the notice of the detaining authority by the sponsoring authority, and no material in respect of it, which was likely to influence his subjective satisfaction to preventively detain the detenu, was placed before him.

It is manifest from paragraphs 8 and 9 of the judgment that from side of the respondents it was urged that the detenu was detained on five separate grounds and since he was acquitted in two of them, in view of the provisions contained in Section 6 of the Gujarat Prevention of Anti Social Activities Act, 1985 (they are analogous to those of Section 5A of the National Security Act) only the subjective satisfaction in respect of them would be rendered bad but that in relation to the other three grounds would not be vitiated.

A perusal of para11 of the said decision would show that the Supreme Court referred to a number of decisions wherein it had taken the view that if a vital piece of evidence, which was likely to effect the subjective satisfaction of the detaining authority, was not placed before the detaining authority, the detention order would be vitiated.

In para12 the Supreme Court repelling the submission on behalf of respondents laid down that if vita facts which would influence the subjective satisfaction of the detaining authority one way or the other are not placed then the subjective satisfaction to detain the detenu vide detention order would get vitiated. To borrow the words of Supreme Court:

"12. From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case numbers mentioned at serial Nos.2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the nonplacing of the material fact namely the acquittal of detenu in the abovesaid two cases resulting in nonapplication of minds of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid."

(emphasis supplied)

In P. Saravanan v. State of T.N. and others (supra) the detenu was detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred as COFEPOSA Act). His detention arose from the following factual matrix:

On 2.6.1999, one Prabhakaran and Mohamed Ibrahim Abbas were arrested on the allegation that they tried to smuggle foreign exchange to the tune of Rs.72.00 Lakh outside India. When they were questioned they revealed that the detenu was also involved. Consequently, on 7.11.1999 the detenu was arrested and he confessed having been associated with the aforesaid persons and also with one Sowkath Ali. The detaining authority detained the detenu on the basis of the confessional statement made by him on 7.11.1999; though later on retracted by him. It also relied on the confession made by Sowkath Ali on 27.11.99, which was later on twice retracted. The sponsoring authority placed before the detaining authority the confession and the retracted confession made by the detenu, as also confession made by Sowkath Ali. However, it did not place before it the two retractions of Sowkath Ali.

Before the Supreme Court it was contended on behalf of the petitioner that the retractions of Sowkath Ali were vital documents, which could have influenced the subjective satisfaction of the detaining authority either way, and the failure on the part of the sponsoring authority to place them before the detaining authority would vitiate the detention order.

From the side of the respondents it was urged that the detention of the detenu was based on two grounds, namely, his retracted confession made on 17.11.99 and the retracted confession made by Sowkath Ali and since the own confession of the detenu was sufficient for the detaining authority to arrive at the subjective satisfaction to preventively detain the detenu, the failure to place the two retractions made by Sowkath All would be inconsequential in view of the provisions contained in Section 5A of the COFEPOSA Act and would not vitiate the detention of the detenu under the COFEPOSA Act.

The Supreme Court, as would become manifest from paras 7 and 8, rejected the said submission and held that a perusal of the grounds of detention shows that the subjective satisfaction of the detaining authority was the cumulative result of all the grounds mentioned therein and therefore Section 5A of the COFEPOSA Act cannot be applied. In order to appreciate the ratio laid down by Supreme Court it is necessary to reproduce paras 7 and 8 of the said decision. They read thus:

"7. When we went through the grounds of detention enumerated by the detaining authority we noticed that there is no escape from the conclusion that the subjective satisfaction arrived at by the detaining authority was the cumulative result of all the grounds mentioned therein. It is difficult for us to say that the detaining authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated 7.11.1999, particularly because it was retracted by him. It is possible to presume that the confession made by the coaccused Sowkath Ali would also have contributed to the final opinion that the confession made by the petitioner on 7.11.1999 can safely be relied on. What would have been the position if the detaining authority was apprised of the fact that Sowkath Ali had retracted his confession, is not for us to make a retrospective judgment at this distance of time.

8.the second contention that nonplacement of the retraction made by Sowkath Ali would not have affected the conclusion as the petitioner''s confession stood unsullied, cannot be accepted by us. The detaining authority had relied on different materials and it was a cumulative effect from those materials which led him to his subjective satisfaction. What is enumerated in Section 5A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case."

In our judgment, since in the instant case a perusal of the grounds of detention shows that the subjective satisfaction of the detaining authority to preventively (detain) the detenu vide the impugned order has been cumulatively arrived at on two grounds, namely, (a) his criminal tendencies and general reputation in the form of the report of Mr. M.A.Qazi, Station Officer Incharge of Police Station Kotwali, District Mainpuri and his life sketch; and (b) the prejudicial act attributed to him pertaining to the murder of Anand Kumar Jain, which is the basis of C.R. No.1475 of 2002 under Section 307/302 IPC and Section 27 Arms Act of Police Station Kotwali City, District Mainpuri, the failure of the sponsoring authority to place before the detaining authority material in respect of ground (a) would vitiate the subjective satisfaction of the detaining authority not only in respect of ground (a) but also in respect of ground (b)

We make no bones in observing that the ratio laid down in the case of Attorney General for India and others v. Amratial Prajivandas and others, reported in (1994) 5 Supreme Court Cases 54, which was forcefully cited by learned Public Prosecutor would not be applicable in the instant case. A perusal of paras 45 to 49 would make it manifest that the Supreme Court while construing Section 5A of the COFEPOSA Act, which read:

"5A. Grounds of detention severable Where a person has been detained in pursuance of an order of detention [whether made before or after the commencement of the National Security (Second Amendment) Act, 1984] under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly

(a)such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are

(i) vague,

(ii) nonexistent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v)invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds."

held that where the detention order is based on more than one ground by a legal fiction it would be deemed that they are as many orders of detention as there are grounds, which means that each such order is independent one. In the said decision, the Supreme Court has laid down that if one of the grounds falls it would not vitiate the detention on other grounds.

We are not oblivious to the fact that since provisions contained in Section 5A of the National Security Act, which read:

"5A. Grounds of detention severable Where a person has been detained in pursuance of an order of detention [whether made before or after the commencement of the National Security (Second Amendment) Act, 1984] under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly

(c)such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are

(vi) vague,

(vii) nonexistent,

(vii) not relevant,

(ix) not connected or not proximately connected with such person, or

(x) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds."

are paramateria to Section 5A of the COFEPOSA Act the ratio laid down in Attorney General''s case (supra) would be equally applicable to our case.

But we make no bones in observing that the ratio laid down in Attorney General''s case (supra) would only be applicable if a perusal of the grounds of detention makes it clear that the subjective satisfaction of the detaining authority to preventively detain a detenu has been separately arrived on each ground. In that situation on the principle of severability, if the subjective satisfaction is vitiated on one ground, it would not be vitiated on the other grounds. However, we have no reservations in observing that where the subjective satisfaction of the detaining authority to detain the detenu is cumulatively based or has been cumulatively arrived at on the basis of all the grounds, as is the case here the principle of severability, contained in Section 5A of the National Security Act and applied in Attorney General''s case (supra) would not be applicable.

We have carefully gone through the judgment in Attorney General''s case (supra) and we do not find that the Apex Court has laid down therein that even if the subjective satisfaction of the detaining authority has been cumulatively arrived at on a number of grounds and one ground or some grounds fall, then it would remain intact in respect of other grounds. It is in such a situation we feel that Attorney General''s case and the case reported in 2002 (1) Allahabad Criminal Rulings page 1006 (supra) which is based on it would have no application and it would be appropriate to rely on ratio laid down in Dharamdas Shamlal Agarwal''s case and P. Saravanan''s case (supra).

In our view, since in the instant case the impugned detention order is based on two grounds namely: (a) the criminal tendencies and general reputation of petitionerdetenu in the form of the report of Mr. M.A. Qazi, Station Officer Incharge of Police Station Kotwali, District Mainpuri and his life sketch; and (b) the prejudicial act attributed to him pertaining to the murder of Anand Kumar Jain, which is the basis of C.R. No.1475 of 2002 under Section 307/302 IPC and Section 27 Arms Act of Police Station Kotwali City, District Mainpuri and no material was placed before the detaining authority in support of ground (a); the subjective satisfaction of the detaining authority which has been cumulatively arrived at in respect of both the grounds would be vitiated and the detention order would have to be struck down.

In the result, we allow this writ petition; quash and set aside the impugned detention order; and direct that petitionerdetenu Sanjay Pratap Gupta alias Pappu be released forthwith unless wanted in some other case.

(Petition allowed)