MOHMADMIYA NAZIRMIYA SINDHI Vs. DISTRICT MAGISTRATE PALANPUR

JUDGEMENT

(1.) The petitioner who is detained under the National Security Act 1980 (NASA for short) has brought in challenge the order of his preventive detention. The impugned order is dated 4-4-1986. It is at annexure A to the petition. The District Magistrate Banaskantha who has passed this order has recited in the said order that he is satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary to make the order of detention against him. The grounds of detention of even date were supplied to the petitioner both in English as well as in Gujarati. Both these versions have been signed by the detaining authority. We therefore can treat these as original grounds of detention. ... ... ...

(2.) Mr. H. L. Patel for the petitioner raised various contentions in support of the petition. However it is not necessary to refer to them as in our view this petition is required to be allowed on the short ground that there is no material whatsoever which can be legally relied upon by the detaining authority for supporting the detention order on the allegation that the detenus activities have affected public order at the relevant time and on the basis of which he was required to be preventively detained under the NASA. So far as the aforesaid ground is concerned it becomes necessary to have a look at the grounds of detention in support of the detention order which were supplied to the detenu with a view to finding out whether any legally permissible material in this connection can be traced from these grounds of detention. The first six paras of the grounds of detention refer to individual cases of assault and other crimes alleged to have been committed by the petitioner in company of his associates under different provisions of I. P. Code. The involvement of the petitioner has been inferred from these criminal acts committed from time to time either by the alleged associates of the petitioner through his instigation or upon by the petitioner in company of his associates. But none of them indicates any concrete instance where the public order was affected by any of the alleged crimes committed by the petitioner and/or his associates. However incident No. 6 mentioned in the grounds of detention refers to an assault mounted by the petitioner and his associates at 10 Oclock on the night of 30-3-1986 on complainant Shantilal and his associates for which a criminal case was registered being Sl. No. 68 of 1986 under secs. 307 147 148 and 149 of the I. P. Code and sec. 130 of the Bombay Police Act. The said complaint was registered with the Palanpur City Police Station. It could have been urged with some emphasis that when at 10 O clock night on 30-3-1986 the petitioner and his associates assaulted at a public place rival group of Hindus and assistance of bomb was also taken and it was hurled on the group of victims public order in the locality would certainly have been adversely affected. However so far as the detaining authority is concerned he has not considered this incident to be one on the basis of which he was satisfied that public order was affected by that incident itself. On the contrary in his view it was not the incident which affected the public order but what transpired subsequent to this incident only furnished the basis for his satisfaction underlying the detention order. The English version of the grounds in this connection which is also as noted earlier is the original grounds of detention supplied to the detenu under the signature of the detaining authority is worth nothing at this stage. For the incident of 30-3-1986 this is what the detaining authority has mentioned in the grounds of detention in English furnished to the detenu under his signature: 9 On 30-3-1986 at 22.00 hrs. you and your gang members had assaulted on Shri Kantilal Kachoriya and Shri Lalitbhai Devchandbhai Padhiar by throwing an allegedly explosive material and beat Shri Lalitbhai Padhiar by iron pipe and caused him inquiry. For which offence under secs. 307 147 148 149 of I. P. Code and under sec. 135 of B. P. Act has been registered vide Palanpur Police Station C. R. Ns. 68 of 1986 against you and your companion. Consequent to these incidents of assault and riot on Hindu people have occurred Soon after the 30th March night incident a series of incidents have taken place endangering public safety and the fire of commudal frenzy is raging the town. You have thus disturbed the public order and public peace of society by your communal excitements.

(3.) The aforesaid version regarding incident of night of 30-3-1986 as put up by the detaining authority himself shows that he had passed the order of detention on being satisfied about the disturbance of public order by the petitioners nefarious activities not or account of incident of night of 30-3-1986 but on account of subsequent incidents or assault and rioting on Hindu people that occurred soon after 30-3-1986. A question therefore immediately arises as to whether there is any material on record of the detaining authority about the petitioners involvement in any of the incidents that might have taken place after night of 30-3-1986 which would have affected public order and public safety. So far as this most important question is concerned we requested Mr. Dave learned P. P. to point out from the record before the detaining authority any material which suggests or shows that any incident had taken place involving the petitioner after the night of 30 which had disturbed public order and whether any riot had taken place subsequent to 30-3-1986 wherein the petitioner was involved. He candidly stated by after looking at the relevant record. that there is no other material on record to show that after the incident of night of 30-3-1986 wherein the petitioner was involved any other incident had taken place which had affected public order and it had let loose the communal riots showing involvement of the petitioner in any of these incidents consequently it must be held that the subjective satisfaction arrived at by the detaining authority for passing the impugned order of detention against the petitioner on the basis that the petitioner was involved in series of incidents soon after 30-3-1986 night incident which had disturbed public safety and had let loose wild fire of communal frenzy was based on no material whatsoever.