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PRADEEP SINGH versus ADHIKSHAK MANDAL/JANPAD KARAGAR GORAKHPUR AND OTHERS

High Court of Judicature at Allahabad

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Pradeep Singh v. Adhikshak Mandal/Janpad Karagar Gorakhpur And Others - HABEAS CORPUS WRIT PETITION No. 33688 of 2006 [2007] RD-AH 1704 (2 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Habeas Corpus Writ Petition No. 33688 of 2006

Pradeep Singh

Vs.

Adhikshak Mandal/Janpad Karagar,

                Gorakhpur & Others.

Hon'ble Sushil Harkauli, J.

Hon'ble Pankaj Mithal, J.

(By Hon'ble Pankaj Mithal,J.)

An order of preventive detention has been clamped upon petitioner  by the District Magistrate, Gorakhpur on 21.4.2006 under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act) while he was in jail in connection with other crimes.

The said detention order has been impugned in the writ petition and a prayer has been made to set him at liberty as his continued detention is bad in law.

The District Magistrate while passing the detention order on the basis of the police reports dated 7.4.2006 and 11.4.2006 was fully satisfied that the petitioner is involved in not less than six heinous crimes of murder, attempt to murder and of extortion of money  and that his activities are prejudicial to the maintenance of the public order, therefore, it is necessary to put him in preventive detention. The petitioner is said to be earning his livelihood by his aforesaid illegal activities.

The detention order was served upon the petitioner on the same date along with grounds of the detention and other relevant documents. The petitioner submitted his representation on 1.5.2006 with several copies to the jail authorities with the prayer to forward the same to the detaining authority, advisory board, State Government and Central Government for setting aside the detention order.

The representation of the petitioner was rejected by the detaining authority i.e. the District Magistrate as well as by the State Government.

The representation of the petitioner was simultaneously forwarded to the Central Government along with the necessary documents directly by the District Magistrate vide his letter dated 3.5.2006 and by the State Government by speed post vide letter dated 4.5.2006. The representation of the petitioner, both ways as aforesaid, was received by the Ministry of Home Affairs on 15.5.2006. The representation was finally rejected on 13.7.2006 and its rejection was duly communicated to the petitioner.

Learned counsel for the petitioner submitted that the offences or the incidents which forms the basis of detention are old incidents and the preventive detention on such stale matters is not justified.

In a series of decisions the Supreme Court has provided that even if there is some delay in passing the order of detention the same would not be fatal so as to enable the Court to struck down the order of detention. The time of passing the detention order in relation to the incident or incidents is not very material while ordering preventive detention and what is more relevant and important is the prejudicial activities of a person necessitating the passing of the order of preventive detention. In Yogendra Murari Vs. State of U.P. & Ors. AIR 1988 SC 1835, it has been held that an order of detention cannot be mechanically struck down if it has been passed after some delay. In such a case it is necessary to consider the circumstances in each case and find out whether the delay had been satisfactorily explained or not. In the said case the detention order was passed four months after the incident and it was held that the order is not bad on account of the delay in passing the same. In another case of Abdul Salim Vs. Union of India & Ors. AIR 1990 SC 1446, it was observed by the Supreme Court that mere delay in passing the detention order cannot be a ground for quashing it. The activities of the detenu and likelihood of the repetition of the said activities by him and the nature of the activities are relevant and should also be taken into consideration. The mere fact that the incident or incidents have taken place some time back does not necessarily mean that the nexus gets severed and that the grounds of detention have become stale and illusory.

In the present case, the petitioner has been detained on account of his criminal activities which adversely affect the maintenance of public order. The last of the said offence is said to have been committed by the petitioner on 5.4.2006 and one of the main offence in connection with which he was in jail is said to have been committed on 15.12.2005. The petitioner had been making all possible efforts for his bail in the offence alleged to have been committed on 15.12.2005 and in fact had applied for bail which was said to be pending but in fact was granted on 14.3.2006. It was apprehending the release of the petitioner on bail in the said case and the possibility of  repetition of the same activities that the detention order was passed against him on 21.4.2006. Apparently the petitioner was not released from jail till 21.4.2006 despite bail order dated 14.3.2006. Therefore, the cause for detention which arose due to the possibility of the petitioner indulging in the same kind of activities on being released was very much proximate in time to the order of detention and it cannot be said that the nexus between the said incident or incidents and of possibility of the petitioner to repeat the same activities was broken due to this lapse of time. In view of the above, there is no delay or unexplained delay on part of the detaining authority in passing the impugned order. The submission, therefore, fails.

Learned counsel for the petitioner next urged that the petitioner had already been granted bail in case crime No. 1675 of 2005 by the Court of Special Judge, Anti Corruption, Gorakhpur by a detailed order dated 14.3.2006. This order running into six typed pages enlarging the petitioner on bail, was not placed before the detaining authority at the time of passing of the detention order and as such the detention order stand vitiated. He further argued that in the detention order no satisfaction has been recorded by the detaining authority that the petitioner, who is in jail is likely to be released on bail. The satisfaction recorded in this regard is incorrect as the petitioner had already been ordered to be released on bail.

It is well settled that even in case where a person is in custody, if the facts and circumstances so demand, resort can be had to preventive detention.  In Kamarunnissa Vs. Union of India & Anr., AIR 1991 SC 1640, general guidelines have been laid down for passing a valid detention order when a person is in custody. The guidelines are- (i) The authority passing the order of detention must be aware of the fact that the person is actually in custody; (ii) The detaining authority has a reason to believe on the basis of reliable material placed before him that there is a real possibility of his being released on bail; (iii) that on being so released on bail he would in all probability indulge in activities prejudicial to the maintenance of the public order or to the maintenance of supplies and services essential to the community; and (iv) it is considered essential to detain him to prevent him from so doing. Therefore, if the detaining authority had passed the order of preventive detention recording his satisfaction on the above points, such an order cannot be struck down on mere technicalities.

A bare perusal of the detention order (Annexure 2 to the writ petition) reveals that the detaining authority had full knowledge of the fact that the petitioner was in custody. The detaining authority on the basis of the material placed before him was fully satisfied that there is a real possibility of the petitioner being released on bail as the petitioner had been granted bail in almost all the cases and was making all possible serious efforts for getting bail even in case crime No. 1670 of 2005, wherein he had already moved an application for bail before the Sessions Court. The satisfaction of the detaining authority that there is a real possibility of the petitioner being enlarged on bail in the above case had came true as in fact an order of bail had been passed on 14.3.2006. Therefore, the submission that no satisfaction had  been recorded by the detaining authority that the petitioner is likely to be released on bail loses significance and becomes immaterial. The recording of the satisfaction that the petitioner is seriously pursuing his bail application and is making all efforts for being enlarged on bail coupled with the fact that an order of bail has already been passed in his favour is sufficient satisfaction of the real possibility of the petitioner being released from jail. The detaining authority has further recorded a categorical satisfaction that the livelihood of the petitioner is dependent upon his criminal activities such as murder, attempt to murder and extortion and, therefore, there is all probability that on being released on bail he would repeat the said activities and would involve himself in acts which are likely to disrupt the maintenance of public order. Therefore, the preventive detention of the petitioner is necessary. In view of the satisfaction recorded by the detaining authority on all the above necessary ingredients as laid down in the case of Kamarunnissa (supra) we are not inclined to interfere with the detention order on the above score.  

We have also perused the bail order dated 14.3.2006 (Annexure RA-18). It only contains the submission made by the learned counsel for the petitioner in support of his bail application and records very briefly the argument of the A.D.G.C. (Criminal) but fails to record any reasons for granting the bail. Surprisingly enough the order records that the bail is being granted without considering the matter on merits. The said order as such does not help  the petitioner and it does not contain any finding, or prima facie finding or even an observation in favour of the petitioner. Needless to add that all material including the bail application of the petitioner in the above case crime number with the comments of the police, were before the District Magistrate, who has recorded his satisfaction on the above points after considering the same. The non-placement of the bail order dated 14.3.2006, therefore, in no way caused any prejudice to the petitioner in as much as despite the said order being running into six pages it contains no finding or observation favourable to the petitioner. The petitioner cannot succeed in assailing the detention order on a mere technicality that the bail order which was in existence had not been placed before the detaining authority.

Sri Arvind Tripathi, learned Standing Counsel in this connection has placed reliance upon K. Varadharaj Vs. State of Tamilnadu JT 2002 (6) SC 189. The said case is squarely applicable to the field and fortifies the view take above. It lays down that the placement of the bail order is not always mandatory but would depend upon the nature of the order. Where the bail was not opposed by the State and was granted, the non-placement or non-consideration of the bail order would not vitiate the detention order. In the case of Sri Abdul Sathar Ibrahim Manik Vs. Union of India JT 1991 (4) SC 103, it has been held by the Apex Court that due to non-placement of the bail application and order refusing bail or the non consideration of the above two documents it cannot be inferred that there was non-application of mind or that subjective satisfaction was impaired. A similar view has been expressed by the Supreme Court in its recent decision in the case of Sunila Jain Vs. Union of India & Anr. JT 2006(2) SC 612. In this case also the bail application and the order granting bail were not placed before the detaining authority but the Court held that it in no way impaired the subjective satisfaction of the detaining authority and has caused no prejudice to the detenu.

The two decisions cited by the learned counsel for the petitioner i.e. A. Shanti Vs. Govt. of Tamil Nadu (2006) 3 SCC (Cri.) 371 and T.V. Sravanan Vs. State (2006) 1 SCC (Cri) 593 to the effect that apprehension of the detaining authority must be based on cogent material and not on mere ipse dixit are not applicable to the facts and circumstances of this case. Here, the  imminent possibility of the petitioner getting out of jail  could not have been overruled as he had already obtained a bail order and only its execution had remained.

We are pained to note the manner in which the bail order in the above case has been passed by the Court below. We are conscious that in considering the bail application though a detailed examination of the evidence or elaborate consideration of the documents on merits is not required but nonetheless it is necessary to give reasons for prima facie coming to the conclusion for granting bail more particularly when the offence is  of a serious nature i.e. of murder.  The Court below no doubt has passed a detailed order but in effect the said order is nothing but an empty formality as it only records the arguments of the learned counsel and give no reasons whatsoever for granting bail. The order as such is apparently cryptic in nature (Ref: 2005 (7) SCC 327 Anvari Begum Vs. Sher Mohammad and 2005 (5) SCC 507 Ajay Kumar Sharma Vs. State of U.P. & Ors.). Therefore, we consider it proper that the bail order dated 14.3.2006 in bail application no. 187 of 2006 Pradeep Singh Vs. State of U.P. in case crime no. 1676 of 2005 passed by Sri K.M.L. Srivastava, Special Judge, Anti Corruption, Gorakhpur be placed before the administrative committee for appropriate action, if deemed fit and necessary.

The last and next submission of Sri D.S. Mishra, learned counsel appearing for the petitioner is that the continued detention of the petitioner is totally illegal as the petitioner's representation was not considered expeditiously and there is unexplained delay for the period 15.5.2006 to 13.7.2006 on part of the respondent No. 4 in attending to the representation.

By virtue of Article 22(5) of the Constitution of India read with Section 8 of the Act, the right to provide an earliest opportunity to make a representation against an order of detention includes within its ambit a corresponding duty on part of the authorities to decide the representation with the same sense of urgency failing which the very purpose of the Constitutional mandate of providing an early opportunity of making a representation would stand frustrated and defeated. What would be a reasonable time for deciding a representation has not been laid down specifically anywhere and, therefore, the delay in deciding the representation has to be judged on the facts and circumstances of the each case. Even if, there is a delay and the delay has been explained properly, it would not be open for the Court to declare the continued detention to be illegal.

It may be kept in mind that in the matters of preventive detention, it is imperative upon the detaining authority, State Government as well as the Central Government to file a complete return as one unit which utmost precision and complete details. The vague and general reply would not serve any purpose.

Admittedly the representation of the petitioner was received by the Central Government on 15.5.2006 and it was decided on 13.7.2006. Thus, apparently there is a time lag  of about two months in deciding the representation of the petitioner. In the counter affidavit of Smt. L.P. Srivastava, Under Secretary, Ministry of Home Affairs, New Delhi, which has been filed on behalf of the respondent No.4 Union of India, a vague and a general statement has been made that from the period 15th April to 30th May 2006, there was unprecedented influx of representations by about 250 detenus from all over the country. These representations were mostly in local languages. Generally, the translated copies of these representations were not available. Therefore, it required much effort to understand and to decide the same. In the counter affidavit there is no averment that the representation of the petitioner and the documents annexed thereto were not legible or typed or that even their translated copies were needed as the officers of the Central Government dealing with such representations were not able to read and understand Hindi. It is also not the case of the respondent No. 4 that any letter was issued to the State Government or the detaining authority for sending the English translation of the said representation and the documents or that the decision of the representation was delayed actually on account of non availability of the English translation of the representation. The Supreme Court by a series of decision beginning from S. K. Rashid Vs. State of W.B. 1973 SCC (Cri) 376 has held that, the explanation stating in a general way that during the relevant time there was spate of antisocial activities giving rise to sudden increase of detention cases which delayed the movement of files, is not sufficient. On the contrary the representation of the petitioner received by the Central Government had been decided on 13.7.2006 without waiting for the translated version of the representation. There is nothing on record to establish that before deciding the representation any translated copy of the representation was made available or supplied to the Central Government. Thus, ex-facie no delay has been caused in deciding the representation due to the representation being in Hindi. The counter affidavit further does not contain any other explanation for not taking any action on the petitioner's representation earlier to 13.7.2006 or immediately on the receipt of the representation on 15.5.2006. It is not even the case that the officers concerned had remained pre-occupied during this period with some other important work or in considering or deciding the representations of the other detenus which were received prior in time to the petitioner's representation in as much as nothing has been said about the actual number of representations of the detenu, which were actually decided by the Central Government during the above period. The decision in the case of D. Anuradha Vs. Joint Secretary & Anr. (2006) 2 SCC (Cri) 432 cited on behalf of the respondents to the effect that the delay caused due to non-availability of the translated copies of the documents in deciding the representation is of no help to the respondents. In the present case the delay in deciding the representation cannot be attributed to the non-availability of the translated copies of the representations and the documents.

From the facts of the present case, what transpires is that the representation of the petitioner, which was received by the Ministry of Home Affairs, Central Government on 15.5.2006 remained unattended for the period of two months and was finally rejected on 13.7.2006. There is nothing in the counter affidavit of the respondent No.4 to indicate the action which was taken during this period on the petitioner's representation. Therefore, it is a clear case where there is no explanation for the delay in deciding the representation. Thus, the delay in deciding the representation of the petitioner is due to negligence and the callous attitude on part of the respondent No.4 which could have been easily avoided with little care on part of the officers of the respondent No.4. Therefore, under the facts and circumstances the further continued detention of the petitioner is held to be illegal only on account of the unexplained delay in deciding his representation.

Accordingly, we allow the petition and direct to set at liberty the petitioner if not otherwise wanted in any other case.

Dt.  2.2.2007

S.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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