Anil Pal vs Superintendent, District Jail and Others

R.K. Rastogi, J.—This habeas corpus petition has been filed by the Petitioner for quashing the order dated 1.5.2008 passed by the District Magistrate, Basti against him u/s 3(2) of the National Security Act and for his release from detention.

It has been alleged in the petition that the Petitioner is a peace loving and law abiding citizen and he has not been convicted in any case so far. On 16.2.08 at about 9.30 a.m. an F.I.R. was lodged by Sri Yashwant Chaudhary against him and other co-accused persons under Sections 147, 148, 149 and 302, I.P.C. at Police Station, Lalganj District Basti and on the basis of that report Case Crime No. 63/08 was registered against him. On the basis of this report the District Magistrate, Basti, the Respondent No. 2, passed an order against him for his detention u/s 3(2) of the National Security Act on 1.5.08. The Petitioner has challenged the validity of this order on several grounds in the present habeas corpus petition.

Separate counter-affidavit have been filed on behalf of the Respondents No. 1, 2, 3 and 4 and the Petitioner has filed rejoinder-affidavits also in reply to those counter-affidavits.

We have heard the learned Counsel for both the parties and have gone through the record.

Learned Counsel for the Petitioner first of all submitted before us that the District Magistrate, Basti, Respondent No. 2 did not apply his mind before passing the impugned order and he simply signed the detention order in a mechanical manner. He further submitted that a perusal of the grounds of detention contained in the order dated 1.5.08 (Annexure-2) shows that these are verbatim reproduction of the report of the Inspector of Police Station Lalganj dated 30.4.2008 (Annexure-4).

In support of this contention he cited before us a Division Bench ruling of this Court in Tunnu v. Superintendent, District Jail, Ballia and others, 2000 (1) ACR 611 . In this case also in the grounds of detention, there was almost verbatim reproduction of the report submitted by Sponsoring Authority with this charge only that the name of the Petitioner in the report was substituted by word ''Aap'' in the grounds of the detention order. The Court, relying upon a ruling of the Hon''ble Apex Court in Jai Singh and Others Vs. State of Jammu and Kashmir, held that apparently the detention order had been passed in mechanical manner, casually and without application of mind and so it stood vitiated. He also cited before us another ruling of Hon''ble Supreme Court in Rajesh Vashdev Adnani v. State of Maharashtra and Ors. (2006) 1 SCC 61. This was a case in which the detention order was passed u/s 3(1)(i)(iii), C.O.F.E.P.O.S.A. and the detention order was verbatim reproduction of the proposal of the sponsoring authority except use of the word ''Aap'' in the order for the word ''he'' in the proposal. It was held that such a detention order suffers from non-application of mind on the part of the detaining authority at the time of actual preparation of the detention order and grounds thereof and so it was not sustainable.

We have gone through the proposal for detention of the Petitioner submitted by the Inspector of P. S. Lalganj (Annexure-4) and the grounds for detention furnished to the Petitioner on 1.5.08 alongwith the detention order which is Annexure-2. A comparative reading of both these documents reveals that the contents of Paras 1 and 2 of Annexure-4 have been almost virtually reproduced in Paras 1 and 2 of Annexure-2 with this change only that the word ''Aap'' has been used in the grounds (Annexure-2) in place of reference to the Petitioner either by name or by pronoun in the report. It was submitted by the learned Counsel for the Petitioner that the aforesaid facts go to show that there was no application of mind on the part of the District Magistrate at the time of passing the order of detention so he simply signed the order casually in a mechanical manner and therefore, the order stands vitiated. We agree with this contention in view of the discussion attempted above.

Learned Counsel for the Petitioner further submitted that in Para 2 of the report of the Inspector (Annexure-4) as well as in the grounds of detention furnished by the District Magistrate (Annexure-2), there is reference of case Crime No. 69/88, P. S. Lalganj under Sections 302, 307 and 394, I.P.C. and it has been stated in it that the charge-sheet was submitted against the Petitioner and his colleagues in that case and this fact has also been taken into consideration for passing the detention order against the Petitioner.

Learned Counsel for the Petitioner submitted that the above case was tried in the Court of Sessions at Basti as S.T. No. 193/88 and the Petitioner was acquitted in this case vide judgment and order dated 18.9.90. He has asserted this fact in Para 28 of the petition. He pointed out that no reply to this assertion made in Para 28 of the petition has been given by Respondents No. 1, 3 and 4 in their counter-affidavits, and in the counter-affidavit filed on behalf of the District Magistrate, Respondent No. 2 the following reply has been given in its Para 14:

That the contents of paragraphs No. 27 and 28 of the writ petition, as stated, are not admitted. In reply thereto, it is submitted that the detention order has been passed on the basis of the incident relating to the Case Crime No. 63 of 2008 under Sections 147, 148, 149, 302, 506 and 34, I.P.C., P. S. Lalganj, District Basti.

Learned Counsel for the Petitioner submitted that this reply is vague. He further submitted that the District Magistrate could not deny this fact that the Petitioner had been acquitted in the above case, and he has simply taken a plea that it was not taken as a basis for passing the detention order he pointed out that it is clear from the report of the Inspector as well as from the order passed by the District Magistrate that the above case in which the Petitioner has been acquitted has also been taken into consideration for passing the detention order mentioning this fact that the charge-sheet had been submitted against the Petitioner and other co-accused persons but the acquittal order passed in favour of the Petitioner has not been considered by the authorities and so the detention order is vitiated. In support of this contention, the learned Counsel for the Petitioner cited before us a ruling of the Hon''ble Supreme Court dated 22.11.1985 in Ashok Kumar Dixit v. State of U.P. and others, Criminal Appeal No. 72 of 1985arising out of SLP (Crl) No. 3068 of 1985. In this case it was held that where the rival version, which was certainly a vital circumstance to be considered by the detaining authority before passing any order of detention was not taken into account and was ignored, it is a circumstance that vitiates the order of detention. The acquittal order passed in favour of the Petitioner in the above case has not been taken into account and so the detention order stands vitiated on this ground also.

Learned Counsel for the Petitioner challenged the order of detention on several other grounds also, but since the detention order has been found by us to be invalid on the above grounds of verbatim reproduction of the report of the Inspector in the grounds of detention and for non-consideration of the acquittal order of the Petitioner in the above Case Crime No. 69/88 as well as for non-application of mind by the detaining authority, in view of the law laid down in the rulings referred to above, we need not consider those other points and we are allowing this petition on these grounds only.

Hence, for the reasons aforementioned, this habeas corpus petition is allowed. The impugned detention order dated 1.5.2008 passed by the District Magistrate, Agra u/s 3(2) of National Security Act is hereby quashed. Let the Petitioner be set at liberty forthwith if he is not required to be detained in connection with any other case.