Santosh Kumar Upadhyay vs District Magistrate and Others

Bhanwar Singh, J.—This petition has been filed for a writ in the nature of habeas corpus directing immediate release of the Petitioner. Another writ in the nature of certiorari seeking for the detention order dated 29.10.2004 (Annexure-1) being quashed is also sought for.

Briefly stated, the Petitioner was detained u/s 3(2) of the National Security Act in District Jail, Gonda, vide order dated 29.10.2004, issued by the District Magistrate, Gonda. By virtue of the detention order and the grounds disclosed therefor, Shri Keshav Ram Yadav, Block Pramukh of Chhapiya was shot dead by the Petitioner at 9.00 a.m. on 13.8.2004. A case u/s 302/427, I.P.C. read with Section 120B, I.P.C. was registered against the Petitioner. The brutal murder of Shri Keshav Ram Yadav in broad day light had caused a wide spread terror in the area. A country-made pistol was recovered on the pointing out of the Petitioner. Prior to this occurrence, the Petitioner along with his associates had made an attempt to eliminate Keshav Ram Yadav''s brother Babu Ram Yadav. In this background, the broad day light assassination of Keshav Ram Yadav had created an environment of terror, tension and hatred as a result of which the public law and order got disturbed. In this way, the activities of the Petitioner had created a threat to the maintenance of public order. It was also alleged that the Petitioner made an endeavour to get him released and if so released, as apprehended, he would have indulged in similar unlawful activities, thereby causing a threat to the maintenance of public order.

The Petitioner challenged the detention order on the grounds inter alia that there was no live-link between the date of incident and the date of passing the detention order. The bail application of the Petitioner had been rejected on 24.9.2004 by the Chief Judicial Magistrate, Gonda and no other bail application was pending. Therefore, there was no material before the District Magistrate on the basis of which he could have acquired knowledge about the possibility of the Petitioner being released on bail. It was a solitary incident of alleged murder by the Petitioner which could not provide a basis so as to pose a danger to public order and tranquility. As a matter of fact, the detention order was the result of non-application of mind. It is on the basis of these grounds that the Petitioner has prayed for a writ in the nature of habeas corpus seeking his release and quashing of the detention order.

In his counter-affidavit, Dr. M. A. A. Khan, the District Magistrate, Gonda, justified the order of detention issued against the Petitioner and asserted that the detention order was passed by him with full application of mind to the material placed before him by the sponsoring officer. Such an order of detention was necessary to prevent the Petitioner from indulging in the activities prejudicial to the maintenance of public order. He was satisfied that the Petitioner had moved an application for bail and was making best possible endeavour to get him released. He was also satisfied that if the Petitioner was released from jail, he would again indulge in the activities prejudicial to the maintenance of public order. The murder of Shri Keshav Ram Yadav by the Petitioner badly disturbed the public order. His involvement in the ghastly offence had created terror and panic in the nearby locality. It was not the solitary incident but earlier also, the Petitioner had made an attempt on the life of Keshav Ram Yadav''s brother Shri Babu Ram Yadav. Since the Petitioner had moved bail application, he (the District Magistrate) had a reasonable apprehension in his mind that he might be released on bail and if set free, he was likely to indulge in similar kind of activities resulting in acts prejudicial to the maintenance of public order.

Shri Babu Lal, Under Secretary, Home and Confidential Department, U. P. Civil Secretariat, Lucknow, stated in his counter-affidavit that the representation of the detenu Petitioner was received by the State Government on 23.11.2004 and after its examination by various authorities on 24.11.2004, it was rejected on 27.11.2004 (there being one holiday in between on 26.11.2004). The rejection order was communicated to the District Magistrate on 29.11.2004. Earlier, the detention order was approved by the Government on 4.11.2004. The case of the Petitioner was referred to the Advisory Board by the State Government and all connected papers were forwarded to it well within time. On receipt of the information regarding rejection of his representation by the Advisory Board, the State Government had a fresh look of the entire case of the Petitioner and eventually confirmed the detention order.

On behalf of the Central Government, a counter-affidavit was filed by Shri Umesh Kalra, Director, Ministry of Home Affairs, Government of India, New Delhi. According to him, the Petitioner''s representation dated 18.11.2004, against the detention order was received on 29.11.2004 and on being considered by the competent authority in the Central Government u/s 14 of the National Security Act, it was rejected on 2.12.2004. The decision of the Central Government was communicated to the detenu through the Home Secretary, Government of U. P. and Superintendent, District Jail, Gonda vide crash wireless message sent on 6.12.2004. There was thus no delay on the part of the Central Government.

We have heard learned Counsel for both the parties and perused the record.

The first ground on the basis of which the detention order is said to be vitiated is that no bail application moved on behalf of the Petitioner was pending disposal in any Court. The Petitioner, no doubt, filed one bail application in the Court of Chief Judicial Magistrate, Gonda, but it had been rejected on 24.9.2004, i.e., more than a month before the detention order was issued on 29.10.2004. In this context, another limb of argument pressed into service is that the sponsoring authority concealed the fact of the Petitioner''s bail plea being turned down by the Chief Judicial Magistrate, Gonda and since it was vital information required to be placed before the detaining authority so that the latter could apply his mind to the said important order, it would be deemed that with the suppression of the said significant information, the detention order would stand vitiated. The contention carries weight as it is not borne out from the reasonings on the basis of which the detention order was issued that either the bail application was pending in the Sessions Court or in the Court of Chief Judicial Magistrate. Had the sponsoring authority communicated to the District Magistrate about the rejection order passed on the bail application of the Petitioner, the detaining authority would have probably been convinced that no detention order was required. In these circumstances, the natural outcome of such a situation would be that not only an important information was suppressed from being conveyed to the detaining authority but the District Magistrate also did not apply his mind to the vital material, i.e., the rejection order. It also flows out of this that there was no convincing material before the detaining authority on the basis of which he would have passed the detention order. As a matter of fact, there was no imminent likelihood of the Petitioner being released on bail in near future and indeed, it manifests non-application of mind on the part of the detaining authority.

Learned Additional Government Advocate citing an Apex Court decision, Abdul Sathar Ibrahim Manik v. Union of India and Ors. 1992 SCC 1, contended that the subjective satisfaction of the detaining authority that there was likelihood of the Petitioner being set free on bail was a rational basis for issuance of the detention order. First of all, it may be observed that the facts of the above referred citation were entirely different. In that case, the detenus were detained under COFEPOSA. Secondly, the sponsoring authority was not aware of the order whereby the bail was refused. Moreover, the detenu who was a foreigner was held with smuggled gold biscuits. It was in the particular circumstances of the said case that the subjective satisfaction of the detaining authority about there being possibility of the release on bail in near future was held sustainable. In addition to that, there was material before the detaining authority which had convinced him to rationalise that the detenu was likely to indulge in such activities again if released and therefore, it was considered necessary to detain him in order to prevent him from engaging in smuggling activities. Therefore, this citation will not be of any help to the learned Additional Government Advocate while arguing in support of the detention order.

The other ground put forward on behalf of the Petitioner is that there was no live-link between the detention order and the offence alleged to have been committed by the Petitioner on 13.8.2004. The other offence alleged to have been committed by the Petitioner was about a decade old story. The said other act alleged to be prejudicial to the maintenance of public order was stated to have been done in the year 1995. It appears that there was enmity between the families of the Petitioner and the victim of occurrence. The Petitioner was on bail in that case of an attempt to commit culpable homicide. There being animosity between the two families, neither the commission of the said offence nor the one committed on 13.8.2004 can be said to be acts prejudicial to the maintenance of public order. Ill will or spite between the two families unless shown to be extended to the community or public at large cannot be assumed or presumed to provide a justifiable base for invoking detention powers under the National Security Act. There is no incrimination in the case in hand that the enmity of the kind referred to had spread beyond the two families to the two groups, tribes, castes or village residents of the area. As said above, no doubt, every crime, particularly a serious offence like murder or even attempt to murder must be severely dealt with but in accordance with law. Indian Penal Code suitably deals with such crimes and unless the commission of such a heinous offence is calculated to be as an act prejudicial to the maintenance of the public order, powers under National Security Act must not be invoked.

Learned Counsel for the Petitioner relied upon a citation of this Court in Waseem v. State of U. P. and Ors. 2003 (1) ACR 22: L 2004 ACC 931 and contended that an unexplained delay of 3-1/2 months in the issuance of the detention order was considered as having no live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him.

In the case in hand, the offence u/s 302, I.P.C. was committed on 13.8.2004, while the detention order was issued on 29.10.2004, i.e., more than 2-1/2 months after. No doubt, this was a heinous offence which might be said to have been committed but such act was not immediately considered to be as prejudicial to the maintenance of public order. Neither the detaining authority nor the learned Counsel for the State could explain as to why there was a long delay of 2-1/2 months in issuing the detention order, if the act of the Petitioner was prejudicial to the public safety and security in the vicinity. Therefore, we are of the considered view that the detention order is not based on sound rationale and as such, it stands vitiated.

So far as the disposal of the Petitioner''s representation by the State Government as well as the Central Government is concerned, we find that the competent authority of both the Governments has decided his representation within reasonable time.

Keeping all aspects of the matter in view, we are of the decisive opinion that the impugned detention order passed by the District Magistrate, Gonda, deserves to be set aside. Accordingly, the said detention order (Annexure-l with enclosure Annexure-2) is quashed and a writ of certiorari issued to this effect. He will be released forthwith unless wanted in some other case.