Satish vs Union of India (UOI) and Others

O.P. Srivastava, J.—Since the above writ petitions involve common questions of fact and law and common arguments have also been advanced, they are being taken together for disposal by this common judgment.

Through the above writ petitions under Article 226 of the Constitution of India, Satish, Ram Chandra. Yadav and Om Prakash have prayed that detention order dated 24-11-2005 slapped against them by District Magistrate, Lakhimpur-opposite party No. 3 u/s 3(3) of National Security Act (hereafter referred to as ''Act''), be quashed.

Factual matrix impelling opposite party No. 3 to take action under the Act, in brief, is as follows:

On 3-9-2005 at about 10.00 a.m., the petitioners duly armed with Banka and pistol caught hold of deceased Neki at Mohanpurwa Tiraha when he along with his sister Gudiya and brother-in-law Ram Naresh were going on cycles. With an intention to kill Neki, he was attacked by means of Banka. Neki even after sustaining injuries managed to run away from the spot through the field and tried to hide himself in the house of Murli Raidas at a distance of 11/2 2 furlongs but was followed by all the petitioners on motor-cycle. After the petitioners on motor-cycle went ahead the house of Murli Raidas, Gudiya sister of Neki and Ram Naresh his brother-in-law finding Neki seriously injured, in order to save his life, tried to take him to Lakhimpur but soon after they reached on main road near Gurudwara Teg Bahadur Educational Institute in Village Sasauna, petitioners suddenly appeared there. On seeing petitioners when Neki, Gudiya and Ram Naresh ran inside the Gurudwara where children were studying and teachers were teaching, to save themselves, the petitioners without giving any consideration to the fact that it was an educational institute, dragged Neki out of Gurudwara and in most cruel manner repeated Banka blows were given until Neki died. Because of the said act of the petitioners, the children tried to hide themselves under the benches and the teachers in corners of the room. Due to commotion created because of incident even the people working in field ran helter-skelter. Entire public order was disturbed. Report of this incident was lodged on same day at 11.25 a.m. at Police Station Kotwali, Lakhimpur Kheri. The case was investigated by Sri Veer Singh, who after recording of evidence of witnesses and completing investigation submitted charge sheet in the case.

Since District Magistrate was of the view that after release of the petitioners on bail for which the petitioners were making efforts, they could indulge in activities prejudicial to the public order, the impugned orders were passed directing the petitioners'' detention for one year informing them simultaneously of the grounds of detention and that they could make representation to the State Government and Central Government against the impugned orders.

The petitioners have challenged the detention orders on various grounds. The petitions have been contested by filing counter affidavits of District Magistrate respondent No. 3, of Babu Lal on behalf of State Government, of Smt. Reeta Dogra on behalf of Government of India and of Sri Shashi Bhushan Verma, Deputy Superintendent, District Jail, Kheri.

Learned Counsel for the parties have been heard.

Before embarking upon the grounds raised on behalf of petitioners against detention order and its further continuance, it is worth mentioning that law on the subject as laid down by various pronouncements of Hon''ble Supreme Court is amply clear. In case the detaining authority is subjectively satisfied that on the basis of set of facts available with him if he is subjectively of the opinion that after release of the petitioners, they are likely to indulge in activities prejudicial to the public order, he can exercise his power under the Act.

Learned Counsel for the petitioners did not challenge the subjective satisfaction of the respondent No. 3 that alleged act of petitioners amounted to disturbance of public order.

However, learned Counsel for the petitioners argued that the detaining authority failed to record its satisfaction that there was immediate possibility of petitioners being released on bail and therefore, detention order is liable to be quashed. He cited judgments of Hon''ble Supreme Court and this High Court in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, ; N. Meera Rani Vs. Government of Tamil Nadu and Another, ; Dharmendra Suganchand Chelawat and another Vs. Union of India and others, ; Amritlal and Others Vs. Union Govt. Through Secy. Ministry of Finance and Others, and Iqbal v. State of U.P. and Ors. 2005 (53) ACC 895.

On the other hand, the learned State counsel submitted that detaining authority had cogent reasons to come to the conclusion that there was possibility of petitioners being released on bail for the reasons they had already moved an application for bail which was rejected by Magistrate and, therefore, they were free to move any application before the Court of Sessions for bail. He also cited Judgment of Hon''ble Supreme Court in Abdul Sathar Ibrahim Manik Vs. Union of India and others,

We have gone through the impugned order as also the counter-affidavit of the detaining authority filed in the case and have examined the matter in light of the judgments cited before us.

As it would appear from the various judgments cited on behalf of the learned Counsel for the petitioners also, if there is cogent material before the detaining author ity to come to the conclusion that there was likelihood of petitioners getting themselves released on bail it is open to him to take action under the Act.

From the facts of Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, supra, it is clear that detention order was passed before the petitioner was taken into custody. As appears from page 494 after the order of detention was passed and before actual service of order of detention, petitioner was taken into custody. In the back drop of the these facts the Hon''ble Supreme Court found that from the affidavit of detaining authority, it did not appear that either the prospect of immediate release of detenu or other factors which could justify the detention, were properly considered in light of principles noted in the aforesaid case. Therefore, the said detention order was passed on facts different from the facts of the case in N. Meera Rani Vs. Government of Tamil Nadu and Another, cited from the side of the State. As it appears from the facts narrated in Meera Rani''s case (supra) only remand was granted and there was no material to show that any effort was made by detenu of the said case to get himself released. Similarly in Dharmendra Suganchand Chelawat and another Vs. Union of India and others, the detaining authority had not shown his apprehension about detenu''s release. In Chelawat''s case (supra), Hon''ble Supreme Court has provided guidelines for the detaining authority in such matters.

Similarly, Amritlal and Others Vs. Union Govt. Through Secy. Ministry of Finance and Others, does not help the petitioners in any way for the reason that in the said case also it has been held by Hon''ble Supreme Court that detaining authority must be satisfied on the basis of cogent material about likelihood of the detenu being released on bail and not merely about likelihood of moving any application for bail. Since there was cogent material as discussed above, it was open to the detaining authority to take action under the Act.

In the case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, cited on behalf of the State also application for bail was moved and the same was rejected by the Magistrate. As mentioned above, the facts of the said case in this regard were also identical to the facts of the case in hand. As discussed above, after dealing with law laid down in N. Meera Rani Vs. Government of Tamil Nadu and Another, and Dharmendra Suganchand Chelawat and another Vs. Union of India and others, Hon''ble Supreme Court laid down the following conclusions

A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.

When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court.

If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu''s right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.

When the detaining authority has merely referred to them, in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.

In a case where detenu is released on ball and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.

On the basis of principles laid down by Hon''ble Supreme Court, on examination of the matter in hand, we do not find any substance in the contention of learned Counsel for petitioners.

It is not disputed that petitioners were in Jail when the impugned detention orders were slapped against them. The detaining authority has testified in his counter-affidavit that the petitioners had already taken steps towards their release by moving applications before Judicial Magistrate for their release but the said applications were rejected, meaning thereby, it was always open to the petitioners to apply for bail before the Court of Sessions. From the facts stated in the counter-affidavit of detaining authority, it is clear that intention of the petitioners for getting them released was not only disclosed but step was also taken towards that by moving applications for bail before the Magistrate. Their bail applications were rejected, therefore, it was always open to them to move bail applications at any time before the Court of Sessions for getting themselves released. Therefore, it cannot be said that in the instant case there was no cogent material before the detaining authority for arriving at. an apprehension that there was possibility of release of the petitioners from jail. Therefore, there is no substance in this contention of learned Counsel and the order cannot be said to be vitiated on this ground.

The next argument of the learned Counsel for the petitioners is that non-placing of bail application of accused-Om Prakash and affidavit-in-support of the same and also police comments thereon which contained vital facts, before the detaining authority, rendered the detention order invalid. On this point also, he cited judgments in State of U.P. Vs. Kamal Kishore and Another, ; M. Ahamed Kutti v. Union of India 1990 SCC 258 and Sunila Jain v. Union of India (2006) 2 SCC 90 : AIR 2006 SCW 1062.

Learned Counsel for the petitioners has not placed before the Court copy of the said bail applications to show that it contained any vital material necessitating its consideration by detaining authority before taking any action under the Act. Moreover, in the case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, Hon''ble Supreme Court has held that if the detenu had moved bail application then the application and the order thereon refusing bail even if not placed before the detaining authority, it did not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody. It was only in a case where the detenu is released on bail and is at liberty at the time of passing the order of detention, detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. The relevant portions of the above judgment are reproduced herebelow to facilitate consideration of question raised by counsel for petitioners.

If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.

In M. Ahamedkutti''s case (supra) cited by learned Counsel for the petitioners the petitioners were released on bail and, therefore, the facts of the said case being different are not applicable to the present case. Sunita Jain''s case AIR 2006 SCW 1062 (supra) is in regard to furnishing copy of bail application. In the said case it has been held that copies need to be supplied only in cases where the bail application contained material facts which the detaining authority was required to take into consideration and if the application for bail is for a vital document non-furnishing of copy of bail application to the detaining authority in such case would not be said to have impaired subjective satisfaction of the detaining authority. Thus, we come to the conclusion that learned Counsel for the petitioners could not satisfy this Court that there was any vital material in the bail application of Om Prakash requiring same to be considered by the detaining authority before the detention order was passed nor there was any need of supply of copy of said application and the police report thereon along with detention order.

Learned Counsel for petitioners further contended that the petitioners were not informed by detaining authority of their right to make representation against the detention order to the authorities who were competent to revoke said detention order, within 12 days. He further submitted that only communication of option to make representation was not sufficient. He submitted that because of this lack on the part of the detaining authority has rendered detention order vitiated. On this point also he cited decisions in Kamleshkumar Ishwardas Patel v. Union of India 1995 SCC 643 ; State of Maharashtra and Others Vs. Santosh Shankar Acharya, Ravindra Singh v. Supdt. District Jail, Bulandshahr Mohammad Jaid v. District Magistrate, Sitapur and Jai Prakash v. District Magistrate Rampur 22. We have given a careful consideration to the arguments of learned Counsel for the parties and have gone through various judgments cited by him. No doubt it has been emphasised through various judgments of Hon''ble Supreme Court that a person who is detained without trial, has a right to make representation against the said detention to the authority competent to revoke it. Hon''ble Supreme Court in Kamleshkumar Ishwardas Patel''s case (supra) has held that Article 22(5) of the Constitution of India imposes dual obligation on the authority making the order of preventive detention (i) to communicate the person detained, as soon as may be, the grounds on which order of detention has been made and to afford the person detained the earliest opportunity of making a representation against the order of detention. However, neither in the Judgment of Hon''ble Supreme Court nor in the relevant provisions any form is prescribed about the communication of this right to the petitioner. On perusal of detention order we find that the detaining authority referring Section 8 of the Act informed the petitioners that they could make representation against the detention order to the State Government as well as the Central Government. It is also mentioned that through whom these representations were to be made. In response to this information the petitioners exercised their right also of making representation. There is nothing either in Article 22(5) or Section 8 of the Act or in the judgment of Hon''ble Supreme Court cited that this right to be exercised ought to have been informed in any particular form. Once the petitioners were informed through grounds of detention itself that they could make representation to the State Government as also the Central Government and names of the concerned authorities through whom representation could be made, were also disclosed and in response to this information, the petitioners made representations also, detention order cannot be said to be liable to be quashed on this ground. As it appears from the record that the petitioners appeared before Advisory Board also to plead their case and it appears that they wanted to make representation only after knowing the result of their pleas before the Advisory Board and it was because of this reason that representations were made after the matter was decided against them by Advisory Board also. Therefore, in absence of any specific form prescribed anywhere communication of the detaining authority in the form it was done in the grounds communicated to the petitioners on the same day along with detention order, did not render detention order illegal. We, therefore, do not find any substance in this ground also.

Lastly, learned Counsel for the petitioners submitted that no explanation has been offered for delay in deciding representations of the petitioners against the order of detention. On this point also he cited a number of decisions of Hon''ble Supreme Court and this Court.

In catena of judgments, Hon''ble Supreme Court has held that the representation against the preventive detention should be decided as expeditiously as possible and that although no time frame is fixed for disposal of representation but it is a constitutional obligation on the concerned authorities to deal with representation with promptness and continuity and any callousness and unexplained delay will render the detention order itself invalid for the reason that the fundamental right of detenu stands infringed because of such acts on the part of the revoking authority.

So far factual aspects are concerned, representations were made on 27th December, 2005. The detaining authority after calling for report from Senior Superintendent Of Police, who in its turn submitted report after having comments from the police station concerned. The detaining authority by letter dated 3-1-2006 forwarded the same to the State Government as well as to the Central Government. Counter-affidavit of Babu Lal, Under-Secretary shows that the representation dated 27-12-2005 forwarded by letter dated 3-1-2006 reached the concerned section of the State Government on 10-1 -2006 i.e. after seven days from the date of dispatch. Similarly, the said representation sent vide letter dated 3-1-2006 of the detaining authority reached the concerned desk of the Ministry of Home Affairs on 6-1 -2006 i.e. after about 13 days. Although the detaining authority Sri S. P. Tripathi has explained day to day dealing of the representation from 27-12-2005 to 3-1-2006 but has failed to state any reason as to why the representations sent by letter dated 3-1-2006 reached State Government in concerned section on 10-1-2006 and concerned desk of the Ministry of Home Affairs of Government of India even 6 days later i.e. on 16-1-2006. Detaining authority has not stated mode of sending representations. In absence of any averment in the affidavit of detaining authority, the only conclusion that can be drawn is that there was delay in communicating representation to the concerned authority. Furthermore, although according to statement of Babu Lal, Under-Secretary, the representation was dealt with and examined by Secretary to the concerned department on 12-1-2006 and final orders were passed on 16-1-2006. 14th and 15th January are stated to be holidays but there is no explanation for 13th January. Thus, there is no proper explanation for three days. Even if two holidays are excluded there is no explanation regarding 13th January, 2006. Absence of any explanation regarding 13th January, 2006. Absence of any explanation in dealing with the representation on 13th January can lead to an impression that the said representation on that date remained unattended and it is because of this reason that no explanation towards dealing with the representation has been offered for that date. Similarly, in the affidavit of Smt. Rita Dogra although day to day dealing of representation from its receipt on 16-1-2006 till 18-1-2006 has been offered but there is no explanation for six days i.e. from 19 to 24th January, 2006 i.e. till a day before the representation was finally disposed of on 25-1-2006. Thus, there is no explanation of six days i.e. from 19th to 24th January, 2006 offered on behalf of the Central Government. Even if 21st and 22nd January. 2006 which were Saturday and Sunday are excluded, there is no explanation for remaining four days i.e. for January, 19 and 20 and January, 23 and 24, 2006. Similarly, there is no explanation whatsoever in the counter-affidavit regarding 17th January, 2006. On the other hand, it is apparent from the facts stated above that while there was unexplained delay in communicating the representation by detaining authority to the State Government as also the Central Government for the reason that they are said to have reached the said Governments respectively after 7 days and 13 days, which shows the callousness of the detaining authority who did not explain in his affidavit as to by what mode their representations were sent to as to take such long time to reach the State Government and the Central Government. Besides this, in the affidavit of the State Government as also Central Government, no explanation what to say satisfactory, regarding dealing of representation on certain particular dates, has been offered. In absence of said explanation, the only inference that can be drawn is that the representations were not dealt with on the said dates with continuity towards the disposal of representation as expeditiously as possible. Thus, apparently there was callousness and negligence at all three levels in dealing with representation and also offering the explanation as stated above.

Hon''ble Supreme Court right from Harish Pahwa Vs. State of U. P. and Others, has laid emphasis on the disposal of the representation as expeditiously as possible, failing which, a valuable right of a person who is under preventive detention without trial, stands infringed. No time frame although is prescribed for disposal of such representations but while dealing with such representations, each and every day''s explanation has to be offered to show that there was no callousness or negligence on the part of the concerned authorities in dealing with the representations with promptness and continuity. It has also been held that in case of any default in discharge of this constitutional obligation by concerned authority detention order is itself rendered vitiated. Hon''ble Supreme Court in Rajammal Vs. State of Tamil Nadu and Another, found the absence of Minister at headquarter not a satisfactory ground for not passing orders on the representation for five days. It is really unfortunate that in spite of repeated decisions of Hon''ble Supreme Court the concerned authorities are not dealing with the matter with promptness so as to fulfill the constitutional obligation, thereby rendering the detention order even in such case invalid only for this reason. A Division Bench of this Court in Syed Mahtab Alam v. Superintendent Central Jail, Naini Allahabad found non-explanation of not dealing representation from 27th November to 30th November by Government of India, fatal. Similarly, in Bachau Yadav v. District Magistrate, Gazipur (detaining authority) also a Division Bench of this Court held that the respondent having failed to give any explanation for 10th, 1lth, 16th, 17th and 18th June, 2003 continued detention of the petitioner was vitiated.

In view of the law of the land, we have no option except to quash the detention order on this sort of callousness and negligence on the part of the concerned authorities.

Therefore, on the ground of non-assigning of any reason for not dealing with the representations on various dates, the detention order stands vitiated and deserves to be quashed on this score.

The writ petitions are, therefore, allowed and further detention of petitioners is hereby quashed. They shall be set at liberty if not wanted in any other case.