Upendra Singh vs Adhyakcha Janpad Karagar,Ghazipur and Others

G. Malaviya, J.—Petitioner Upendra Singh was detained under Section 3(2) of the National Security Act by an order dated 2691996 passed by the District Magistrate Ghazipur. Translated, the order of detention would read as follows

�Order No. 7 dated 2991996

Because Upendra Singh son of Mahesh Singh r/o Goshandepur, P.S. Karanda, District Ghazipur is acting in prejudicial activities such as relating to antisocial elements, security of state, maintenance of public order and maintenance of services and supplies essential to the community and since keeping in view the prevailing circumstances and the possible circumstances I am satisfied as the District Magistrate, Ghazipur that to prevent Upendra Singh to act in any manner which may be prejudicial to the maintenance of security and services essential to the community and for the maintenance or public order it is necessary so to do hence exercising the powers under Section 3(3) of the National Security Act, I direct that Upendra Singh son of Mahesh Singh r/o Goshandepur, P.S. Karanda, district Ghazipur who is a man of criminal antecedent and is a renowned and dagerous and is at present detailed in the district jail in connection with crime No. 521/96 under Section 302, IPC but is trying to obtain bail wherein he is likely to be released on bail and whereafter he would be disturbing the maintenance of public order hence I direct him to be detained under Section 3(2) of the National Security Act in the district jail Ghazipur as an ordinary prisoner. Issued 29th September, 1996 under my signature and seal.

Sd./ Illegible 29996

(Mamrej Singh)

District Magistrate, Ghazipur�

The only point which has been contended by Sri P.S. Mishra learned Counsel for the petitioner is that whereas in the order of detention the District Magistrate has mentioned two grounds viz. to prevent the petitioners to act in a manner which was likely to affect the security and services essential to community and the maintenance of public order, on which he was satisfied that detention of the petitioner was necessary, in the grounds of detention furnished to the petitioner the District Magistrate had mentioned that detention of the petitioner was necessary only for the maintenance of public order. It is consequently urged that shows casualness on the part of the Detaining Authority in passing the order of detention which vitiates the order of detention passed against the petitioner. In this connection Sri D. S. Mishra has relied on the two cases of the Supreme Court.

The first case on which Sri D.S. Mishra has relied is AIR 1972 SC 1749, Kishori Mohan Bern v. The State of West Bengal. In that case the order of detention was passed against the petition directed the petitioner''s detention over being satisfied that it was necessary to do so with a view to preventing him from acting in a manner prejudicial to the maintenance of the public order or security of the state. Before the Supreme Court learned Counsel for the petitioner raised two contentions. One was that the recital in the impugned order that the District Magistrate was satisfied the necessity of the petitioner''s detention to prevent him from acting in a manner prejudicial to �the maintenance of public order or the security of the state� indicated that he had not applied his mind with any seriousness either to the acts alleged in the grounds of detention against the petitioner or to the question whether they fell sit in the purview of the expression �the security of the state ''or'' the maintenance of public order� or both. The order contention was that ground No. 2 in any case was not germane to the concept of either the security of the state or the maintenance of public order.

Considering the first argument Hon''ble Judges of the Supreme Court towards end of paragraph 7 observed as:

�An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. In such a case the power can be exercised on both the grounds, namely disturbance of public order and danger to the security of the state.�

In paragraph 8 it was however observe as follows :

.�In the instant case, however, that is not so, because the impugned order states that the detaining authority was satisfied that it was necessary to detain (he petitioner to prevent from acting in a manner prejudicial to �the maintenance of public order or security of the State.� The satisfaction of the District Magistrate WPS on the disjunctive and not conjunctive grounds, which means that he was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the ground of danger to the public order or danger to the security of the state.........................But, as the order stands, it would appear that he was either not certain whether the alleged activities of the petitioner endangered public order or the .security of the state, or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely reproduced mechanically the language of Section 3(1) (a) (ii).�

Thereafter in paragraph 10 it was observed as follows:

�There is therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made.�

The other case of the Supreme Court of which learned Counsel for the petitioner has relied is that of Jagannath Misra v. State of Orissa, AIR 1966 SC1140. In the case of Jagannath Misra the order of detention mentioned six grounds on which the order of detention could be based. However, in the counteraffidavit the Home Minister had stated that the order in question was passed on the ground tint the activity of the petitioner was prejudicial to the safety of India and maintenance of public order. Discussing the point of casualness their Lordships of the Supreme Court in paragraph 6 of the said judgment observed as follows:

�Now we have pointed that the order of detention in this case refers to six out of eight possible grounds on which a person can be detained under Section 3(2)(15). Of these eight grounds under Section 3(2)(15) one refer to foreigners i.e. of being of hostile origin. Therefore in (he present case the order really mentions six out seven possible grounds which can apply to an Indian whose detention is ordered . under Section 3(2)(15). We do not say that it is not possible to detain a citizen on six out of seven possible grounds under Section 3(2)(15); but if that is done it is necessary that the authority detaining a citizen should be satisfied about each one of the grounds that the detention is necessary there. But if it appears that though the order of detention mentions a large number of grounds the authority concerned did not apply its mind to all these grounds before passing the order, there can in our opinion be no doubt in such a case that the order was passed without applying the mind of the authority concerned to the real necessity of detention. In the present case as we have already pointed out six grounds out of possible seven grounds on which a citizen can be detained have been mentioned in the order, but in the affidavit of the Minister we find mention of only two of those, grounds, namely safety of India (which may be assumed to be the same as public safety) and the maintenance of public order. In these circumstances there can be little doubt that the authority concerned did not apply its mind properly before the order in question was passed in the present case. Such discrepancy between the grounds mentioned in the order and the grounds stated in the affidavit of the authority concerned can only show an amount of casualness in passing the order of detention against the provisions of Section 44 of the Act. This casualness also shows that the mind of the authority concerned was really not applied to the question of detention of the petitioner in the present case. In this view of the matter we are of the opinion (hat the petitioner is entitled to release as the order by which he was detained is no order under the Rules for it was passed without the application of the mind of the authority concerned.�

On the strength of the above mentioned two cases Sri D. S. Mishra learned Counsel for the petitioner has contended that in the instant case also the satisfaction of the District Magistrate is demonstrated to be suffering with the vice of casualness who had apparently passed the order of detention in a mechanical manner.

However Sri Arvind Kumar Tripathi learned Addl. Govt. Advocate contended that the allegation of casualness cannot be found in the instant case. He has relied on paragraph 3 of the counteraffidavit of Sri Manraj Singh the Detaining Authority which is a composite reply to the contents of paragraphs 1,2,3, 4,5,6,8,10 and 38 of the petition wherein meeting the allegation paragraph 6 of the petition in which it had been specifically averred that the order as mentioned above passed by the detaining authority was a result of his casual and mechanical exercise of power the District Magistrate had made the following reply �................However, in the order due to mistake it has been typed out that with a view to prevent the petitioner from acting in the manner prejudicial to the maintenance of supplies and services essential to the community and public order it is necessary to pass the detention order against the petitioner. It should have been only with a view to prevent the petitioner from acting in the manner prejudicial to the maintenance of public order. This error, occurred in the order, is highly regretted. The deponent has not passed the detention order against the petitioner for preventing the detention order against the petitioner for preventing him from acting in the manner prejudicial to the supplies and services essential to the community, as there was no material placed before the deponent regarding this fact.�

On the strength of this reply in the counteraffidavit Sri A. K. Tripathi learned AGA contended that the order of detention could be read to be passed only for the maintenance of police order. He also contended that in the order detention the word ''Aur Sevayan'' (and Services) have been typed by mistake and the District Magistrate while signing the order of detention could not notice it and hence there should be no discrepancy in the order of detention and also in the ground of detention.

It is just what is being complained of by the petitioner which is demonstrated by counteraffidavit and it is just the same casualness which is being complained be the petitioner which is demonstrated by the casual manner in which the counteraffidavit of the District Magistrate has been filed. The District Magistrate in a way conceded that while issuing the order of detention he had not even carefully prepared the order of detention and even while issuing it, he had not cared to make any correction in it. He that as it may, since in the order of detention he has mentioned two reasons for detaining the detanu and in the grounds of detention he has considered only one reason to justify the detention, the order would suffer from casualness as has been held by the Supreme Court in the case of Jagannath Misra (supra). Consequently it is to be held that the order of detention passed against the petitioner suffers from the vice of casualness on the part of the Detaining Authority, who at the time of passing the order of detaining was not certain on that ground he was passing the order of detention against the petitioner. This casualness has affected the genuineness of the satisfaction of the Detaining authority which has resulted in the detention order to be bad in the eyes of law.

The petition is accordingly allowed.

Petitioner Upendra Singh is to be set at liberty forthwith, unless he is wanted in any other case. Petition allowed.