Siraj Ahmad vs Superintendent Divisional/District Jail,Azamgarh and Others

A. N. Gupta, J.—The petitioner has challenged his order of detention dated 2041997 passed by District Magistrate, Mau under Section 3(2) of the National Security Act, 1980.

The detention order is based on several grounds; first ground is that on 951990 at about 7.00 p.m. petitioner beat Sravan Kumar aged about 15 years son of Smt. Sripati Devi in Mohalla Ghora Dalai of Mau Town with kicks and fists. He also tried to strangulate him. However, on an alarm raised by Sravan Kumar, his elder brother and other witnesses reached there and relieved Sravan Kumar from the clutches of the petitioner and ran away after giving him threats. Smt. Sripati Devi got registered an FIR being case crime No. 334/90 under Sections 323/504/506, IPC. After investigation, chargesheet was submitted and the case is pending in the court in which the petitioner is no bail.

The second ground mentioned in the detention order is that on 26111991 at about 10.00 a.m. petitioner threatened Hari Charan Yadav with dire consequences in Mohalla Mirza Hadipura Chowk of Mau town regarding which crime No. 813/91 under Sections 504/506, IPC was registered. After investigation, chargesheet was submitted and the case is pending in the Court in which petitioner is on bail.

According to third ground, on 2131997 at about 2.50 p.m. Imam Ali, Station Officer of Dakshin Tola lodged a report at the policestation that when he alongwith other police personnel was on petrol duty at the time of Holi festival and was present in Mirza Hadipura, at about 10.00 a.m. the people belonging to Hindu community were playing Holi and sprinkling colours. At that time about 5060 persons belonging to Muslim community started throwing stones at them in which one Inspector of Police and some persons belonging to Hindu of community were injured. By the time, the Station Officer could do something, the Senior Officers also reached there and about 500600 persons collected there and started throwing stones again on the people belonging to Hindu Community. This could be stopped after great efforts''. It was� also learnt that the people belonging to Muslim community were beatinging persons of Hindu community when later were escaping towards Aurangabad. On the arrival of force it could be stopped. It was again learnt that some people of mohalla Dakshin Tola belong to Muslim community were throwing stones on the persons belonging to Hindu community. The police force reached there and chased them away. Due to stone throwing an electric pole fell down and other Government properties were destroyed. In this connection, case crime No. 140/97 under Sections 147/336/153A (2)/427, IPC was registered which is under investigation during which the name of the petitioner had come to light and the petitioner is bail in this case.

5, In the forth ground, it was mentioned that on 2431997 at about 10.00 a.m. when Gyan Shyam Das Gupta and other persons of Hindu Community reached mohalla Mirza Hadipura Mosque in a Holi procession, at that time near Mirza Hadipura Mosque, the petitioner and several other persons belonging to Muslim community were present there in preplanned manner, armed with lathis and Stones. On exhortation of the petitioner and other persons some people belonging to Muslim community started throwing stones at the Hindu Procession due to which procession was seriously disturbed and Ghanshyan Das Gupta and several others belonging to Hindu community were injured. Injured Ghanshyam Das Gupta was taken by Santosh and Sravan at his house and when Sravan and Santosh were coming back, several persons belonging to Muslim community armed with Daggers, Knives and dandas surrounded Santosh and attacked him due to which he was seriously injured. On the report of Ghanshyam Das Gupta case crime No. 140E/97 under Sections 147/148/149/323/324/504/153A, IPC was registered. Petitioner was arrested in the said offence and has been released on bail.

In the fifth last ground, it has been mentioned that on 243 1997 at about 11.00 a.m. when Kedar washerman was pressing cloth in his house situated in mohalla Mirza Hadipura, the petitioner alongwith 34 friends reached there, armed with Bricks, Stones, Lathis and Dandas and started chasing Kedar who tried to run for safety. The petitioner and his friends destroyed his hut, took away bamboos etc. Of the hut and also took away the cloths of the customers regarding which Kedar lodged an FIR of case crime No. 140A''97 under Section 395, IPC and Section 3(1) (x) of the SCandST Act which is under investigation. The petitioner is in jail in connection with the said offences and his bail application is pending for disposal before the Sessions Judge, Mau and in all likelihood petitioner was likely to be granted bail.

It is not disputed that the petitioner handed over 9 copies of his representation dated 651997 to the Superintendent, District Jail, Azamagarh where the petitioner was lodged in pursuance of the detention order which was forwarded by the Superintendent, District Jail, Azamgarh on the same day and was received in the Office of the District Magistrate on the same day. The District Magistrate called for comments from the Superintendent of Police, Mau which were received on 851997 and on the same day, the District Magistrate sent the representation of the petitioner to the State Government with his comments. The State Government rejected the same vide its order dated 1551997 which was communicated to the petitioner on 1651997.

The said representation of the petitioner was addressed to �Home Secretary�. In the representation, it was not mentioned clearly whether it was meant for Home Secretary of the State Government or for the Home Secretary of Union of India or for both. A counteraffidavit has been filed on behalf of the Union of India by the Under Secretary Ministry of Home Affairs in which it has been mentioned that the representation of the petitioner was not received by the Central Government.

Although, in the writ petition several grounds have been raised to assail the detention order but the learned Counsel for the petitioner confined his arguments to only one ground. He contended that although the petitioner had not mentioned in the representation as to whether

it was meant for Home Secretary of the State Government or for the Home Secretary of the Central Government or for both but since he had given 9 copies of his representation, the Superintendent of Jail as well as the State Government were bound to send a copy of it to the Central Government for disposal because under Section 14 of the National Security Act, 1980, the Central Government has a power to revoke the detention order in question. In the case of Jai Prakash v. District Magistrate, Bulandshahr, U.P. and others, 1993 SCC (Cri.) 121, Hon''ble the Supreme Court has held that when the detenu gave 9 copies of his representation addressing it only to �Home Secretary� without specifying State or Central Government, it was the duty of the Superintendent of Jail to send a copy of it to the Central Government for disposal and failure to send the same to the Central Government vitiates the order of detention. In the above case of Jai Prakash detenu had given 9 copies of the representation to the Superintendent of Jail who retained one copy in his office, sent one copy to the Advisory Board and remaining copies to the State Government and no copy was sent to the Central Government. In these circumstances, it was held that if sufficient number of copies of the representation are given without specifying whether they are meant for the Central Government or the State Government, the Superintendent of Jail was bound to send a copy of the representation to the Central Government also and failure to do so rendered the detention order as illegal. Since in this case, the petitioner had given 9 copies of his representation to the Superintendent of Jail who did not send a copy of it to the Central Government and the State Government also did not send a copy of it to Central Government, the petitioner was deprived of his valuable right of his representation being considered by the Central Government. It renders the order of detention invalid.

In view of the above, writ petition is allowed. The detention order in question passed against the petitioner under the National Security Act is hereby quashed. The petitioner shall be set at liberty forthwith unless wanted in some other cases. Petition allowed.