KALI CHARAN Vs. STATE OF U P

JUDGEMENT

(1.) These two writ petitions have been filed under Article 226 of the Constitution of India with a prayer that a writ in the nature of Habeas Corpus directing the respondents to set the petitioners at liberty, be issued.

(2.) The petitioners have been detained under Section 3(2) of the National Security Act, 1980 (for short N.S.A.) The grounds given to the petitioners are as under:-( 1) On 13-10-1991 at about 9 p.m. the petitioners and others were cutting wire of transformer and putting the same inside to a bag. The police party arrived. The said persons tried to escape. Two of them succeeded in escaping. However, the petitioners were arrested on the spot. First Information Report under Section 379/411, I.P.C. was registered at police station Makhnupur, district Firozabad (vide Annexure 2 to the writ petition). In that case the petitioners were not named.

(3.) While the petitioners were in jail, the disputed order was served upon them. They made a representation which has been rejected. It has been alleged in the petitions that no statement of any person of electricity department was recorded to confirm the allegations made in the disputed First Information Report. It has been wrongly mentioned therein that at any time the petitioners confessed their guilt of having committed similar crimes within the jurisdiction of police station Makhnupur, district Firozabad. It is stated that no "Public order" has been disturbed. The alleged confessional statement which was relied upon by the District Magistrate was never recorded nor any such record was produced before the District Magistrate. The District Magistrate passed a mechanical order which shows that he did not apply his mind before passing the detention order. In the First Information Reports the petitioner have not been named, therefore, their participation has not been established even prima facie. So this incident would not have weighed with the District Magistrate. At the worst, it may be a case of "disturbance of law and order" as distinct from "disturbance of public order" and, therefore, the detention of the petitioners is illegal.