SANJAY MITTAL Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) SANJAY Mittal has challenged the validity of his detention in jail in pursuance of an order dated 31 -3 -1991 passed by the District Magistrate, Bulandshahar under Section 3(2) of the National Security Act. The allegation in the grounds of detention, as served on the petitioner, are that he along with his associates abducted one Mool Chandra alias Brij Behari from near the flour mill in the town of Bulandshahar at about 9.15 a.m. on 11 -3 -1991 when he was going on rickshaw to his shop. The abduction was made by the persons who had come in a white Maruti Van bearing No. B.A.E. 7489. It is alleged that ultimately on an information the police recovered Mool Chandra in village Kamali from the tube -well of the farm of Intermediate College, Kamali on 15 -3 -1991 at about 7 p.m. by the Officer Incharge of the Police Station, Sri Manohar Singh. At the time of arrest the petitioner was also present with Mool Chandra and he is also alleged to have been arrested on 15 -3 -1991 along with the abducted person. The grounds of detention further went on to say that on interrogation it was found that the white Maruti Van, which was used in the abduction belonged to the petitioner and the same, on their pointing out, ultimately, was recovered from the house, of one Yashpal in the city of Meerut. The grounds of detention further say that on interrogation of the petitioner, he admitted his involvement in the said crime.

(2.) LEARNED counsel for the petitioner has urged only one point before us in support of his case. The petitioner in paragraph 5 of the writ petition had categorically asserted that he was arrested on 15 -3 -1991 at about 6 p.m. from his shop when his brother's car had been taken into custody by the police. It is further alleged that soon after the arrest telegrams to this effect had been sent by Brij Lal Mittal, father of the petitioner, and Krishna Kumar, brother -in -law of the petitioner, to the D.I.G., Meerut and S.S.P., Bulandshahar, respectively. The certified copies of these telegrams which were booked from Bulandshahar Telegraph Office on 15 -3 -1991 at 10.20 and 11.00 p.m., respectively, have been annexed as Annexures 2 and 3 to the Habeas Corpus Petition. On the strength of these telegrams learned counsel for the petitioner has contended that if this aspect of the matter bad been placed before the detaining authority when he was examining the case of the petitioner for preventively detaining him, it could be possible that the detaining authority would have then not considered the detention of the petitioner to be desirable.

(3.) WE have heard learned counsel for the parties and have given our consideration to the contention raised in various paragraphs of the affidavits. Once the fact is not disputed that telegrams were sent to the police authorities alleging therein that the petitioner had been taken away by the police along with his vehicle on the evening of 15 -3 -1991 it was incumbent for the police authorities to have placed this fact before the detaining authority. It, at that stage, the detaining authority would have thought that the telegrams were really by way of peshbandi and would still have passed the order of detention against the petitioner then the satisfaction so arrived at by the detaining authority could not be questioned before a court of law However, these telegrams as they gave a different date of arrest and recovery of the Van, were certainly relevant while considering the case of the petitioner. As they were not placed before the detaining authority the satisfaction of the detaining authority got vitiated in the eyes of law. Reference may be made to the case of Asha Devi v. K. Shivraj, : AIR 1979 SC 447 wherein the Supreme Court has clearly held that non -furnishing the information to the detaining authority relating to the tact that the petitioner had retracted his confession did render the satisfaction vitiated in the eyes of law.