Taj and Ors. vs State of U.P.& Ors.

G.P. Mathur, J.—Habeas Corpus Petition No. 5940 of 1996 tiled by Taj and Habeas Corpus Petition No. 5942 of 1996 filed by Masrror Alam are being disposed of by a common order as the grounds of detention of the two petitioners are substantially the same and same arguments have been advanced on their behalf.

The District Magistrate, Moradabad passed an order on 15995 under Section 3(2) of National Security Act (hereinafter referred to as the Act) for detaining the petitionerTaj with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. An identical order was passed with respect to petitionerMasroor Alam on 19895.

The detention order and also the grounds of detention were served upon petitionerTaj on the same day i.e. on 15995 in jail as he was in judicial custody in respect of Case Crime No. 188/95 under Section 307/452, IPC of P.S. Mughalpura in pursuance of an order of remand passed by a Magistrate on 15795. The grounds of detention are as follows :

(i) Causing injury to Dr. Athar Ali on 891993 at about 10 a.m. within own along with Sarvar Alam and Masroor Alam and 3 others on which Crime No. 1019/93 under Section 147/148/149/ 307/342/120B, IPC was registered and chargesheet had been filed on 211093, case is pending in Court.

(ii) Murder of Parvez at 9.15 p.m. on 1041994 by firearm by the petitioner aiongwith Sarvar Alam and Masroor Alam causing injury to Parvez who died. Case Crime No. 146/94 under Section 302, IPC registered, chargesheet submitted 0''n 251994.

(iii) On 321994 at 11.30 a.m. petitioner, Sarvar Alam and Masroor Alam threatened Nasim Khan to pay up Rs. 5,000 on pain of killing him. Case Crime No. 204/94 under Section 386/506^ IPC registered, chargesheet filed, case is pending in the Court.

(iv) On 7121994 at 5.15 p.m. made a murderous attack on Nazim Iqhal witness of Crime No. 1019 of 1993 and Athar Ali by a butt, Case Crime No. 441/94 under Section 307/323, IPC registered.

(v) On 1121994 alongwith Sarwar Alam and Masroor Alam did marpit with Rizwan Khan Crime No. 452/94 under Section 323/504/506, IPC registered, chargesheet filed on 7295, case is pending in the Court.

(vi) On 102 1995 petitioner along with 8 other persons brick batted and fired on the Police Jeep carrying Sri D.P. Jayal, Inspector Incharge Police Station Moghulpura causing injury to vehicle. Crime No. 79/95 u/S. 147/148/149/307/ 336/427/435 and 7, Criminal Law Amendment Act registered. Matter is under investigation.

(vii) On 2951995 alongwith some others entered the house of Sabina and fired with the intention of killing his son Alam. Crime No. 180A/95 under Section 452/307, IPC registered. Investigation pending.

(viii) On the same day 2951995 while subInspector Sri A.K. Verma was going to the house of the petitioner to arrest him in the above crime, the petitioner and others from the roof fired and brick batted on the police party. Crime No. 181/95 under Section 147/148/149/307/ 353/336/407, I.P.C. registered. Investigation is pending.

(ix) On 3151995 Inspector Sri D.P. Jayal, got a case Crime No. 183/95 registered under Section 3(1), U.P. Gangestors Act against the petitioner, under investigation.

(x) On 1461995 while accompanied by 6 others named persons shot dead Dr. Athar Ali at about 5.30 a.m. Crime No. 192/95 under Section 147/148/149/302/120B, IPC is under investigation.

The detention order dated 9895 as well as the grounds of detention were served upon the petitionerMasror Alam on the same day i.e. on 9895 in jail as he was in judicial custody in case Crime No. 188/95 under Section 307/452, IPC of P.S. Mughulpura in pursuance of an order of remand passed by a Magistrate on 15795. The grounds of detention served upon the petitionerMasroor Alam are exactly similar to those which were served upon the petitionerTaj which have already been enumerated above.

The case of petitionerTaj was referred to Advisory Board on 25995 in. accordance with Section 10 of the Act. The Advisory Board heard the matter on 271095 in which the petitioner also appeared. The Advisory Board gave a report that there was sufficient cause to detain the petitioner and a report was forwarded on 301095 which was received by the State Government on 311095. The State Government after examining the matter afresh and also the report of the Advisory Board passed an order under Section 12(i) of the Act on 61195 confirming the order for keeping the petitioner under detention for a period of 12 months.

The case of the petitionerMasroor Alam was referred to the Advisory Board by the State Government on 2191995 in which petitionerMasroor Alam also appeared. The Advisory Board gave a report that there was sufficient cause to detain the petitioner and the report was forwarded to the State Government on 19995 which was received by it on 20995. Thereafter the State Government again examined the entire matter and taking into consideration the report of the Advisory Board passed an order under Section 12(i) of the Act on 22995 confirming the order for detaining the petitionerMasroor Alam for a period of 12 months.

The principle submission of Shri Murlidhar learned Senior Counsel is that both the petitionersTaj and Masroor Alam were already in custody in case Crime No. 188/95 under Section 307/452, IPC since 15795 and consequently they were not in a position to act in any manner prejudicial to the maintenance of public order and therefore the detention order passed against them was wholly illegal. Learned Counsel further submitted that the subjective satisfaction of the detaining authority was completely vitiated as the same was not arrived at on consideration of relevant materials. In support of his submission, learned Counsel has placed reliance on Ramesh Yadav v. D.M., AIR 1989 SC 315 ; Surajpal Sahu v. State of Maharashtra, AIR 1986 SC 2177; Binod Singh v. DM., AIR 1986 SC 2090 and Abdul Razak v. S.N. Sinha, AIR 1989 SC 2265.

The question as to whether a detention order can be passed against a person who is already in custody in .respect of a criminal offence has been recently considered in a series of decisions by the Apex Court. In Sanjiv Kumar Agrawal v. Union of India, AIR 1990 SC 1202, after reviewing all earlier cases including those cited by learned Counsel for the petitioner, it was held as follows :

"It could not be said that no order of detention can validly be passed against a person in custody under any circumstances. Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. In the instant case the detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods. Therefore the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail. Therefore the detention order could not be quashed merely on the ground that the detenu was in jail."

In Smt. Azra Fatma v. Union of India, 1990 Crl LJ 1731 : 1990 JIC 611(SC) the view expressed in Sanjiv Kumar Agrawal (Supra) was reiterated and it was held that it cannot be said that no order of detention can validly be passed against a person in custody under any circumstance. The facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention in the case of a detenu who is already in jail. In this case, though the bail application filed by the detenu had already been rejected, the order of detention was upheld. In Kamarunnissa v. Union of India, AIR 1991 SC 1640, Ahmadi, J. (as his lordship then was) after reviewing the earlier authorities held as follows :

"In the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing."

In Abdul Sathar Ibrahim Manik v. Union of India, AIR 1991 SC 2261 : 1991 JIC 771 (SC), it was held as follows :

"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 nonapplication 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."

The same question was again considered in Bijendra Kumar Rai v. Union of India, AIR 1993 SC 962: 1993 JIC 322(SC) and it was held that if sufficient material was placed before the detaining authority and he is satisfied that there was compelling necessity for detaining the detenu in order to prevent him from indulging in offending activities, the Court is not entitled to interfere with the detention order merely on the ground that detenu was already in custody in respect of a criminal offence.

In the grounds of detention served upon petitionerTaj, it is clearly mentioned that the detaining authority, namely, the District Magistrate was satisfied that in the event of release from jail, the petitioner was likely to act in a manner prejudicial to the maintenance of public order and therefore, in order to prevent him from acting in such a manner it was necessary to pass the detention order. There is exactly similar recitation in the grounds of detention served upon the petitionerMasroor Alam. Thus there can be no doubt that the detaining authority was fully aware of the fact that both the petitioners were in custody in jail at the lime when he passed the detention order. It is not a case where detaining authority was either unaware of the fact that the petitioners were already in jail in connection with a criminal case or the relevant materials in that regard had not been placed before him. It is true that the detention order cannot be passed for the purpose of circumventing a bail order which may be passed in future. The object of detention is to prevent a detenu from indulging in activities prejudicial to the maintenance of public order and not to facilitates trial in a criminal case nor as a punitive measure. We have carefully examined the grounds of detention. Out of ten criminal cases referred to in the ground nine were committed by petitionerTaj and Masroor Alam in a short span of 14 months between 1041994 and 1461995. The petitioners are involved in four cases under Section 307, IPC and two cases under Section 302. IPC. The grounds further show that the petitioners along with their companions fired upon Dr. Athar Ali at 10.00 a.m. on 9993 on Makbara Road in the city in which he received serious injuries in which chargesheet was submitted under Section 307, IPC besides other offences on 211093 and then on 14695, the petitioners alongwith their companions again fired upon Dr. Athar Ali due to which he died and a case was registered under Section 302, IPC. This shows that having not succeeded in killing Dr. Athar Ali in the first instance, the petitioners made a second attempt to achieve their object. The petitioners alongwith their companions fired upon Parvez and killed him on 10494. They fired upon Khalid Iqbal on 71294 who was a witness in the incident of 9993 in which Dr. Athar Ali received injuries and they also fired upon one Alam on 29595. Besides this on two different dates, the petitioners alongwith their companions resorted to firing upon police party regarding which cases under Section 307, IPC were registered. The facts mentioned above show that the petitioners have tried to eliminate even those who are witnesses against them and have tried to deter law enforcing agency by resorting to firing upon police party. In the words of Mukherjee, J. (as his Lordship then was) in Surajpal Sahu v. State of Maharashtra, AIR 1986 SC 2177, the offences in respect of which the two petitioners are accused of are "so interlinked and continuous in character and are of such nature" that they fully justify the detention order. In these circumstances, we are fully satisfied that the detaining authority bona fidefy arrived at the satisfaction to pass an order of detention against the petitioners and the order is not vitiated in any manner.

Learned Counsel has urged that the police report which was relied upon by the District Magistrate for arriving at the satisfaction that if the petitioners were released from jail, they would again indulge in the activities prejudicial to the maintenance of public order was not supplied to the petitioners and consequently the petitioners were deprived of their right of making an effective representation against the detention order and therefore the same is liable to be quashed. Reliance in support of this submission is placed upon a decision of this Court in Habeas Corpus Petition No. 28450/95 (Sarvar Alam v. State of U.P.) decided on 4196 where also the detenu had been detained by the District Magistrate, Moradabad in pursuance of an order dated 9895. We are unable to accept the submission made by the learned Counsel for the petitioners. In the grounds of detention which was served upon both the petitioners, the complete detail of ten criminal cases has been mentioned. Thereafter, there is a statement to the following effect :

This shows that from the ten criminal cases, details of which had been given earlier, the detaining authority was satisfied that after being released from jail, the petitioners are likely to indulge in such activities which will be prejudicial to public order. It is, therefore, apparent that the satisfaction of the District Magistrate is basically founded upon earlier activities of the petitioners which had been enumerated in the grounds and not upon the report of the police. It is not the case of petitioners that relevant material in support of the grounds had not been furnished to them. The satisfaction of the District Magistrate having been based upon their past activities detailed in the grounds of detention (ten criminal cases) it was not at all necessary to supply the copy of the police report to the petitioners. It is well settled that the copies of only those documents on which the order of detention is primarily based has to be supplied to the detenu and the detention order would not be vitiated merely on the grounds that the copies of non material documents were not furnished. See Madan Lal Anand v. Union of India, AIR 1990 SC 176 : 1990 JIC 315(SC), M. Mohd. Sulthan v. Joint Secretary, AIR 1990 SC 2222; Syed Farooq Mohd. v. Union of India, AIR 1990 SC 1597 : 1990 JIC 507 (SC) and Kamarunnissa v. Union of India, AIR 1991 SC 1640.

No other point was urged.

For the reasons mentioned above, the petitions lack merit and are hereby dismissed.

Petitions dismissed.