Santosh vs Union of India and Others

Vishnu Sahai, J.

Through this writ petition, preferred under Article 226 of the Constitution of India, the petitionerdetenu Santosh has impugned the order dated 31S| July, 2003, passed by Mr. B.B. Singh, District Magistrate, Unnao (opposite party No.3), detaining him under Section 3(2) of the National Security Act, 1980.

The detention order, along with the grounds of detention, which are also dated 31th July, 2003, was served on the petitionerdetenu on 1st August, 2003 and their true copies have been annexed as Annexure Nos. 1 and 2, respectively to the writ petition.

A perusal of grounds of detention (Annexure No.2) would make it manifest that the impugned detention order is founded on two C.Rs., namely, C.R. No.97 of 2003, under Sections 302/323/504/506/452 I.P.C. of police station Auras, district Unnao, registered on the basis of a complaint dated 1.4.2003 lodged by Ajay kumar at police station Auras and C.R.. No. 156 of 1991, under Sections 147/148/149/364/302/201 I.P.C. of police station Auras, registered on the basis of a complaint dated 25.11.1991, lodged by Sarju at police station Auras.

As a reference to the prejudicial activities of the petitionerdetenu pertaining to the said C.Rs. is not necessary for the adjudication of the pleadings contained in paragraph 16 of the writ petition and ground (B) of para40 thereof, on which alone this writ petition deserves to succeed, we are not adverting to them.

We have heard learned counsel for the parties.

At the very outset, Mr. Janardan Singh, learned Additional Public Prosecutor, appearing for opposite party Nos.2 to 7, prayed for further time for filing the counter affidavit of the detaining authority. Since on 11.11.2003 we had granted him four weeks'' time to file it; on 12.12.2003 had granted him two weeks'' further time to file it; on 12.1.2004 had granted him further time till 20.1.2004 to file it; and on 20.1.2004 had granted him further time till today to file it and this being a preventive detention matter, wherein the personal liberty of the petitionerdetenu was involved, we rejected his prayer.

The pleadings contained in paragraph16 of the writ petition and ground B of para40 thereof are as under:

"Para16: That the police while sponsoring the petitioner''s detention had not placed the correct facts before the detaining authority; the detaining authority too did not apply its mind and mechanically signed the impugned detention order. The fact of the matter is that the above referred case registered at Crime No.156 of 1991 referred to hereinabove had already ended in acquittal as back as in the year, 1995 but this vital information was maliciously suppressed and with held by the police while sponsoring the petitioner''s detention."

"Ground B of Para40: Because the information concerning the acquittal of the petitioner detenu in the criminal case i.e. Crime No.156 of 1991 made basis of the petitioner''s detention had sufficient potentiality to influence the detaining authority''s discretion to pass or not to pass the impugned detention order. The detaining authority had taken the pendency of the above referred criminal case against the petitioner detenu into consideration while passing the impugned detention order."

The burden of song of the learned counsel for the petitionerdetenu is that since the petitionerdetenu had been acquitted in Crime No.156 of 1991 and his acquittal thereunder was a vital piece of evidence, which could have influenced the mind of the detaining authority in passing the impugned detention order and the said fact was not placed by the sponsoring authority before the detaining authority, the impugned detention order was vitiated by the vice of nonapplication of mind.

To lend force to his submission, learned counsel for the petitionerdetenu also invited our attention to paragraph2 of the grounds of detention, wherein there is an averment that the case registered vide C.R. No.156 of 1991 (referred to above) was pending in the Trial Court; the chargesheet having been submitted in it on 25.1.1992. He also placed before us a certified copy of the judgment dated 15.5.1995, passed by the II Additional Sessions''Judge, Unnao, whereby the petitionerdetenu was acquitted in the said C.R.

When we asked Mr. Janardan Singh, learned counsel for opposite party Nos.2 to 7, as to what his instructions were with regard to the averments contained in paragraph16 of the writ petition, he replied as under:

In English, the said lines would read thus:

"It is denied.

The averment of the detenu that C.R. No.156 of 1991 ended in acquittal in 1995, does not establish that the detenu is innocent and the details of cases registered and pending against the detenu have been given."

A perusal of the above would show that the sponsoring authority has given instructions of a evasive nature to Mr. Janardan Singh, learned Additional Public Prosecutor.

In our judgment, since the averments contained in paragraph16 of the writ petition are supported by an affidavit and a certified copy of the judgment of the Trial Court and no counter affidavit of the detaining authority has been filed by the A.P.P. despite repeated opportunities given to him, it has to be accepted that when on 31SI July, 2003, the detaining authority had passed the impugned detention order, the petitionerdetenu stood acquitted in C.R. No.156 of 1991 of police station Auras.

We are also of the view that since the factum of acquittal of the petitionerdetenu in the said C.R. was not brought to the notice of the detaining authority, when he passed the impugned detention order and formulated the grounds of detention and the said factum was a vital fact which could have influenced his subjective satisfaction either way, the impugned detention order would be vitiated by the vice of nonapplication of mind.

In this connection, we feel it necessary to advert to the decision of the Apex Court rendered in the case of Ayya alias Ayub, Petitioner v. State of U.P., and another. Respondent, (AIR 1989 Supreme Court 364), wherein a vital piece of evidence, i.e. a telegram, pertaining to the time of the arrest of the petitionerdetenu had not been placed by the sponsoring authority before the detaining authority and the Supreme Court in paragraph13 took the view that since the telegram was a vital piece of evidence, which could have reasonably influenced the subjective satisfaction of the detaining authority one way or the other, the failure of the sponsoring authority to have placed a copy of the telegram before the detaining authority would vitiate the detention order on the vice of nonapplication of mind.

We feel it pertinent to extract the relevant part of paragraph13, which reads thus:

"............What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of nonapplication of mind if a piece of evidence, which was relevant though not binding had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detainingauthority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality." (emphasis supplied)

We are not oblivious to the fact that a perusal of the grounds of detention shows that the detenu was also detained on the basis of another C.R. namely, C.R. No. 97 of 2003 of police station Auras, but, in our view, since a perusal of the grounds of detention shows that the subjective satisfaction of the detaining authority to detain the detenu vide the impugned detention order was cumulatively arrived at on the basis of both the C.Rs. namely, C.R. No.97 of 2003 and C.R.No.156 of 1991 and the detenu was acquitted in the case arising out of C.R. No.156 of 1991 and the factum of his acquittal in the said C.R. was not placed by the sponsoring authority before the detaining authority the subjective satisfaction of the detaining authority would stand vitiated as a whole i.e. even in respect of C.R. No.97 of 2003.

In the result, we allow this writ petition; quash and setaside the impugned detention order; and direct that petitionerdetenu Santosh be released forthwith unless wanted in some other case.

(Petition allowed)