TAHSEEN Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Sri Samit Gopal, learned counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri Amit Sinha, learned counsel appearing on behalf of Union of India. This petition has been filed by Tahseen son of Yasin Kabadi with the prayers that:

(2.) The facts, in brief, of this case are that the detention order dated 10.2.2012 has been passed by District Magistrate, J.P. Nagar in exercise of powers conferred under section 3 (3) of the National Security Act (hereinafter referred to as NSA) and the petitioner has been detained in a jail as an ordinary prisoner under section 3(2) of NSA. The impugned order has been passed on the report submitted by Officer-in-Charge of Police Station, Amroha Nagar, District J.P. Nagar. The report submitted by sponsoring authorities. Such report was sent by Officer-in-Charge of Police Station, Amroha Nagar to S.P. J.P. Nagar through Circle Officer, Amroha Nagar and Additional S.P. J.P. Nagar. The Circle Officer, Amroha Nagar, District J.P. Nagar and Additional S.P. J.P. Nagar approved the report submitted by Officer-in-Charge of Police Station Amroha, District J.P. Nagar. The S.P. J.P. Nagar considered the report of SHO, Police Station Amroha Nagar, Circle Officer, Amroha Nagar and Additional S.P. J.P. Nagar. He was satisfied with the report submitted by above mentioned officers and made the request to S.P. J.P. Nagar to detain the petitioner under NSA. The District Magistrate, J.P. Nagar, after considering the documents submitted by the sponsoring authority passed the impugned order dated 10.2.2012 by showing that the grounds of the detention, the copy of detention order, grounds of detention and all other connected documents were communicated to the petitioner through Superintendent, District Jail, Moradabad which was served upon the petitioner on 10.2.2012, the copy of order dated 10.2.2012 along with the grounds and connected papers was sent by the District Magistrate to the State Government on 10.2.2012 which was received by the State Government on 13.2.2012, the impugned order of detention was approved by State Government on 18.2.2012. The order of approval of detention was communicated to the petitioner through the District Authority by State Government by radiogram and letter, both dated 21.2.2012, a copy of detention order, grounds of detention and all other connected papers were also sent to the Central Government by Speed Post on 22.2.2012 and same documents were sent to Advisory Board by the State Government on 21.2.2012. The petitioner sent the representation dated 16.2.2012 through Superintendent District Jail, Moradabad in 12 copies, which was sent to District Magistrate, J.P. Nagar on 16.2.2012. The District Magistrate, J.P. Nagar sought the parawise comments from S.P. J.P. Nagar through his letter dated 16.2.2012, the same was sent by S.P. J.P. Nagar through his letter dated 18.2.2012. The representation sent by the petitioner was rejected by District Magistrate on 23.2.2012. Thereafter, the copy of representation dated 16.2.2012 along with the comments was sent by the District Magistrate, J.P. Nagar to Home Secretary, State of U.P. and Union of India on 23.2.2012, the same was received by the State Government in its concerned Section on 24.2.2012, thereafter, the State Government sent the copy of representation and parawise comments thereon to State Advisory Board and to Central Government vide its separate letter dated 27.2.2012. The State Government examined the representation and submitted a detailed note on 28.2.2012, thereafter it was examined by Deputy Secretary on 29.2.2012, by the Special Secretary on 1.3.2012 and thereafter it was submitted to the Secretary. The Secretary examined it on 1.3.2012, the same was rejected by the State Government on 1.3.2012. The rejection of the representation was communicated to the petitioner through district authority by State radiogram dated 2.3.2012. The case of the petitioner was referred to the State Advisory Board on 21.2.2012, the Advisory Board by its letter dated 14.3.2012 informed the State Government that the case of the petitioner will be taken up for hearing on 19.3.2012 and directed that the petitioner be informed that if he desires to attend the hearing before the Advisory Board along with his next friend (Non Advocate), he would do so be allowed to his next friend along with him, if he had so requested. It was communicated to the petitioner through district authorities by State Government Radiogram dated 14.3.2012. The petitioner appeared before the Advisory Board on the date fixed. The Advisory Board after hearing the petitioner in person, considered his representation and gave its reply expressing therein its opinion that there was sufficient cause for detention of the petitioner and the records of the case were sent by Registrar, (J.P. Advisory Board through letter dated 26.3.2012 on 27.3.2012. On receipt thereof, the State Government once again examined afresh the entire case of the petitioner along with the cases of the Advisory Board and took a decision to confirm the detention order and also for keeping the petitioner under detention for 12 months, this order was passed on 2.4.2012 and it was communicated to the petitioner through district authorities by radiogram dated 2.4.2012 and 3.4.2012. The representation of the petitioner which was communicated to the Central Government was received in the concerned section in the Ministry of Home Affairs on 1.3.2012. After due process, it was put up for consideration before Union Home Secretary on 5.3.2012. The Union Home Secretary after considering the order of the detention, the grounds of detention to the representation of the detenu and the comments of the detaining authority thereon rejected the representation on 12.3.2012 and sent back the file to the Joint Secretary which reached in the section through Director on 19.3.2012. Accordingly, the wireless message dated 20.3.2012 was sent to Home Secretary, Govt. of U.P., Superintendent, District Jail, Moradabad; District Magistrate, J.P. Nagar and detenu informing that the representation of the petitioner was considered and rejected by the Central Government. A copy of wireless message was also sent on 20.3.2012 by post to detenu through Superintendent, District Jail, Moradabad with the request to serve the same upon the petitioner. The petitioner has challenged the detention on the following grounds:

(3.) It is contended by the learned counsel for the petitioner that the impugned order under the N.S.A. has been passed by the District Magistrate, J.P. Nagar on solitary incident whereas its cross case was also registered, the same has not been referred by the sponsoring authority by considering the material facts because the petitioner has been sponsoring authority to the District Magistrate for passing the impugned order. The District Magistrate has also not considered the cross case registered from the side of the petitioner, from the side of the petitioner Sarfuddin alias Sunni, has sustained three injuries caused by firearm, he was medically examined on 28.9.2011 at 2.15 p.m. in District Hospital, J.P. Nagar, he had sustained three firearm injuries on the back chest, all the injuries were having the blackening and tattooing. According to the x-ray report, red opaque shadow on metallic density was seen. The co-accused Salim had also sustained gunshot injury on the right thigh. In x-ray report, multi red opaque shadow on metallic density was seen, cross F.I.R. in case crime No. 504-A under sections 147, 148, 149, 307, 395, I.P.C. was registered on 28.11.2011 at 9.15 p.m. in respect of the incident allegedly occurred on 24.9.2011 at about 9.30 p.m. on the basis of the alleged offence committed by the petitioner and others co-accused persons registered as case crime No. 504 of 2011 under sections 147, 148, 149, 307 and 302, I.P.C., the impugned order under the N.S.A. may not be passed because the alleged offence may be dealt with under the common law, it was not affecting the public order, it may be a case relating to law and order.