Sartaj Ali and Ors. vs State of U.P.& Ors.

I. M. Quddusi,J.

We have heard Sri Virendra Bhatia for the petitioners, learned Additional Standing Counsel for Central Government Shri K.D. Nag and Sri H.B.Singh.

Since the petitions are knil together by reasons of common question of law being involved therein and also by reasons of facts being identical, these petitions are grouped together and heard accordingly for convenient disposal by a common judgment.

The petitioners were served with order of detention dated 17 1999 alongwith the grounds of detention and other supporting materials. At that lime, the petitioners were in jail in connection with case crime No. 101 of 1999 under Sections 147, 148, 149, 302, IPC, PS Ganj Dundwara District Elan. It has been averred in the petition that the petitioners had preferred representations on 1671999 to the State Government as well as to the Union of India. When the writ petitions were filed, the representations were not disposed of by the State Government. However, in the counteraffidavit filed by the District Magistrate, Etah, it has been averred thatThe petitioners submitled rep resentations signed and dated 1971999 addressed to Home Secretary, State Government and to the Chairman, Advisory Beard. It was not addressed to the Union of India. The representations were received in the office of the District Magistrate, Etah from the Superintendent, District Jail, Etah the same day and the District Magistrate called for the comments from the Senior Supdt. of Police, Elah which were received on 20th July, 1999. Thereafter, The represeniations and the comments of the Senior Supdt. of Police were sent to the Principal Secretary, (Home), U.P. Government on 2271999. The copies of the representations and the comments were also sent to the Registrar, Advisory Beard, High Court, Lucknow Bench, Lucknow as well as Secretary, Home Ministry, Internal Security Department, Government of India, North Btock, New Delhi from the perusal of the counteraffidavit filed by the Under Secretary, Home & Confidential Department, U.P, Lucknow, it appears that the representation was received by the State Government on 2371999 and the parawise comments alongwith the representation was sent to the Advisory Beard vide letter dated 2471999.2571999 was hofiday on account of Sunday. Thereafter, a copy of the representalion which was retained in the file by the State Government was considered on 2661999 and thereafter, the representations moved by the petitioners were rejected by the State Government on 3171999. The rejection orders passed on the represeniations of the petitioners were communicated to the petitioners through the District authorities by The State Government vide Radiogram dated 381999. The opinion of the Advisory Beard was received by the State Government on 1381999, a copy of which was sent to the Government of India. The Advisory Beard found sufficient cause for detention of the petitioners and the detention order was confirmed. According to the opposite parties, there is no delay in deciding the representations.

The main contention raised through the aforesaid petitions is that in the grounds of detention signed by the District Magistrate, Etah, it has been indicated that the petitioners and their companions are influential and are of men of criminal tendency (Apradhik Prayriti) as per the report of the SHO of Police Station Ganjdundwara Districl, Elah, but no material was placed before The detaining authority to show that the petilioners had any criminal nalure. The malerial was not supplied in this regard to thepeliiioners. It was also submitted thatThe petitioners were never involved in any case except the case indicated above and that incident againsl them was a sofitary one. Besides, this, it is also alleged that The pelitioners were falsely implicated because Smt. Jameela mother of The deccased has senl a reporl slaling differenl version 10 the Senior Supdt. of Police through the registered post dated 11 51999, according to which, the petilioners were noi The accused and when The police did not take any action, she moved an application before the Judicial Magistrale slaling Therein that a false reporl had been lodged againsl some persons and she as well as one Mohd.Shafiqwanlfairinvesligalioninthe mailer. Befh of Them had also filed affidaviis in The Court on which the Court directed that the copies of the applicant and the affidavils be senl to the Investigating Officer. When no action was taken by the Invesligaling Officer, Smt. Jameela aforesaid moved another applicalion on 2361999 staling Therein that on the basis of her report FIR be lodged and proper investigation be made in the mailer. The same was also senl to The Investigating Officer concerned. In the counteraffidavit of the Districl Magislrale, Elah Sri Mahesh Kumar Gupia, it has been sialed thatthe stalemenl of Smt. Jameela Begum was recorded on 2251999 i.e. much after the date when the detention order was passed. She had stated in her statement that she is an illiterate lady and at that time when the application was written, it was not known to her as to what has been written. She had also stated that she is a poor illiterate lady and Nawab and others told her that she should put left thumb impression there. She had further stated that the correct facts was that her son Meer Ahmed wasmurdered by Zahid Ali and others and she had no doubt that Zahid Ali, Zamid Ali, Niyamat Ali, Rahmat Ali, Ahmed Ali and Sartaj Ali are involved in the incident.

Shri Bhatia, learned Counsel for the petitioners contended that at the time of passing detention order, there was no material before the detaining authority to the effect that Smt. Jameela Begum put per thumbimpression due to any pressure. She had also filed affidavits in the Court of learned Magistrate. Those applications and affidavits were moved much before the detention order was passed. The relevant materials/documents were not placed before the detaining authority and the subjective satisfaction of the detaining authority was vitiated. Shri K.D. Nath had filed counteraffidavit on behalf of the Union of India in which, it has been stated that the representations were not addressed to the Central Government. However, when the copy of the representation was received by the Central Government in the concerned desk of Ministry of Home Affairs, the same were considered and rejected by the Central Government within tour days excluding the hofidays. The representations were received on 2871999 and they were rejected on 281999, 3171999 and 18 1999 were hofidays. Hence, the representations were decided by the Central Government without delay and information was sent through the quickest mode of communication viz. a crash wireless message of 381999 through the Home Secretary, Government of U.P. and Supdt. District Jail, Etah.

Shri Bhatia has further contended that the detention order was passed on single ground. Learned Government Advocate on the other hand was submitted that the documents which have not been supplied to the petitioners were not in fact necessary documents and they were not relevant for the consideration and hence, neither they were liable to be considered nor supplied to the petitioners. The act of the petitioner was a clear case of disturbing public order.

We have perused the detention order dated 171999 passed by the District Magistrate, Etah and also the grounds attached therewith together with the recommendation of the SSP Etah in respect of the detention under the National Security Act (in short NSA) on the petitioner as made on 2961999. The recommendation of the Circle Officer for such detention was made on 2861999. The report of the Officcrincharge of the Police Station, Ganjdundwara district, Etah is undated. However, the same was forwarded by the Circle Officer of the Police and the Senior Police Supdl. of Police vide their letters mentioned above. In the said report of the Officerinchargc of the Police Station concerned, it is mentioned that the accused persons including the petitioners are influential and or criminal tendency. However, in the report no material except the case crime No. 101/99 has been mentioned against the petitioners. The District Magistrate, Etah had also in the ground of detention order mentioned that the petitioners and their companions are influential and are of criminal tendency, but we have not found any material in support of this ground which is a material ground for detention and the order has been passed taking into consideration that the petitioners are influential and are of criminal tendency. There is sofitary incident mentioned in the detention order. No other incident has been mentioned in the detention order and no material in support of this ground has been indicated nor enctosed with the detention order or with the ground of detention. Hence, it is clear that the ground of detention that the petitioners are influential and are of criminal tendency is the material ground for passing the detention order. It is always presumed that the District Magistrate after making his subjective satisfaction and application of mind has passed the detention order but in the absence of any material in support of this ground, we have no hesitation in holding that this ground is without any basis and material and the allegation as such is vague and the detaining authority got influenced by the report of the Station House Officer, PS. Ganjdundwara, district Elah regarding their character and passed order of detention on that basis while in fact, there was no material against the petitioners to support that ground. Since, no material was placed before the detaining authority in support of the said ground, it cannot be ruledout that the detention order is passedonstrenuous material.

In the matter of Vashishth Narain Karwaria v. State of U.P. and others, 1990 SCC (Crl.) 372, the SHO, P.S. Cofonelganj, Allahabad reported the Senior Superintendent of Police that Vashishth Narain Karvaria alms Bhukkal, was hardened criminal and has a gang. In this gang, his son Kapil and two other big offenders Ram Chandra Tripathi and Santosh Kumar Tripathi son of Gaya Prasad, are included. These people often used to commit heinous crimes, by which terror and fear prevails in the people. Many crimes are registered against Vashishth Narain Karvaria in many police stations. But these averments were not mentioned in the grounds of detention. Inspite of that, the Hon''ble Supreme Court has held as under:

"The above averments which are extraneous touching the character of the detenu, though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of the detenu. Had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order. The detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order."

While deciding theaforesaid case viz. Vashishth Narain Kan''aria (supra), a number of case laws were considered by the Hon''ble Supreme Court. In the case of Vashishth Narain Karvaria (supra), one of the documents was copy of chick No. 199 crime No. 221 of 1988 under Section 307/506, IPC, P.S. Cofonelganj, Allahabad and no other incident except that was indicated. The Hon''ble Supreme Court in this regards has held as under:

"It is not a case that this impugned order has been made on two or more grounds covering various activities of the detenu but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5A(a)."

The appeal was allowed by Hon''ble Supreme Court as the writ petition filed before this Court at Allahabad by the detenu was dismissed.

In the instant case also, a single incident i.e. case crime No. 101 of 1999 under Sections 147,148,149,302, IPC, P.S. Ganjdundwara, district Etah has been indicated and no other incident has been mentioned in the ground of detention. Hence, we have no hitch to hold that the impugned detention order is suffering from vice of extraneous consideration of material which vitiates the validity of the detention order.

In the result, the writ petition succeeds and is hereby allowed. The impugned detention order dated 171999 passed by the District Magistrate, Etah is quashed. The respondents are directed to set the petitioners namely Sartaj Ali, Rahmat Ali and Zahid Ali at liberty forthwith unless they are wanted in any other case.

Let a copy of this order shall be sent to the Superintendent of District Jail, Etah as well as to the State Government and other necessary parties for compliance without delay.

Judgment delivered under Chapter VII, Rule 1 (2) of the Rules of Court, 1952. Petitions allowed.