ASHU Vs. SUPERINTENDENT DISTRICT JAIL MUZAFFAR NAGAR

JUDGEMENT

(1.) PETITIONER detenu Aashu son of Iqram, resident of Mohalla Quraishiyan, Town Baghra, P.S. Titavi, district Muzaffar Nagar has been detained by District Magistrate, Muzaffar Nagar under the National Security Act, 1980 (hereinafter referred to as the 'Act') vide his order dated 17.10.2008 wielding his power under Section 3(3) of the said Act vide Annexure No.1, which detention order has been questioned by the detenu petitioner through the instant Habeas Corpus Petition with the prayer that the same be quashed and he be set at liberty. The grounds on which the petitioner has been detained, as was supplied to him under Section 8 of the Act and contained in Annexure No.2, indicates that, on 29.9.2008 police station Titavi was informed on telephone that the petitioner along with Jishan and Sadab are slaughtering cows in village Baghra and thereafter will transport the beef to be sold in an open market. Ravindra Pal Singh Sengar, S.O., P.S. Titavi along with S.I. Gyanendra Singh and other police personnels rushed for village Baghra on the said information making a vain attempt to join independent persons from the way. After reaching detenu's house at 11.40 a.m. the said S.O. and other police personnels found that a Cello Car No. UP-15 G 8526 was parked in front of his house and inside the house, the petitioner along with his brothers Jishan and Sadab were chopping off beef and were loading it in the said car. Looking to the police personnels the petitioner and his two sibling associates escaped from the roof, albeit, they were fully identified by the raiding party. From the the parked Cello Car 150 K.g. of beef, 30 K.g. of cow fat were recovered. From the open space inside the house (Aagan) 150 K.g. of beef, a wood log, two small choppers and two butcher knives were recovered. Near by the car an Eterno scooter UP-14-W 7034, was also parked. The chopped off beefs and other choppers were taken possession by the raiding party, which were sealed at the spot after preparation of the recovery memo. Information of day light cow slaughtering conglomerated protesters belonging to Vishwa Hindu Parishad and Bajrang Dal and other Hindu organisations at the spot and blockaded Highway from Muzaffarnagar to Shamli resulting in total disruption of transport and traffic for four hours. Because of the activity of the detenu petitioner, religious and sentimental feelings of Hindu community were hurt and public order was clouded with communal tension which had griped the locality. The incident of cow slaughtering was prominently reported in News Papers on 30.9.2008 which information was also conveyed by S.O. Titavi to his superior officers on mobile phones. Additional police force from village Charthawal and Rapid Action Force were deployed in the locality in village Baghra for maintaining public order. Above crime committed by the petitioner and his associates resulted in lodging of FIR by Ravindra Pal Singh Sengar, S.O. Titavi at his police station vide Crime No.712/08 for offences under Sections 3/5/8 of Prevention of Cow Slaughter's Act against the petitioner and his associates. Seized and recovered articles were also deposited at the police station. Recovered flesh was sent for testing to veterinary doctor, whose report confirmed of it being beefs. Investigation of the crime was enturested to S.I. Radhyashyam, who conducted the spot inspection, prepared spot inspection notes, recorded the statements of informant and other police personnels which broughtforth that the activity of the petitioner had the reach and potentiality of disturbing even tempo of public life and had destroyed peace and tranquillity of society. On 4.10.2008, Dharm Veer Singh, HCP while on beat duty also reported that on 29.9.2008 the petitioners were slaughtering the cows and were putting beefs in a cello car but on arrival by the police they made their escape good and therefore if released from jail, they will again indulge in cow slaughtering which will foment communal tension and because of detenu's activity tension has gripped the locality. The said beat information was registered by S.I. Gyanendra Singh and the same was found to be correct on inquiry. Similar information was again brought to the knowledge of S.O. Titavi on 4.10.2008 when he was on a picket duty. Many organizations including Arya Samaj Sugar Mill, Mansoorpur (Khanpur), Bhartiya Kashyap Jagriti Sangathan district Muzaffarnagar and President Bhartiya Janta Party, village region, also gave representations in this respect. From the above facts, District Magistrate, Muzaffarnagar became satisfied that the activity of the detenu petitioner had destroyed communal harmony and had created disturbance of public order. District Magistrate was also informed that earlier also the petitioner was found indulging in cow slaughtering and in that respect FIR of Crime No.374/08 for offences under Sections 3/5/8 of the Cow Slaughter Act also was registered at the Police Station Titavi on 21.5.2008 in which crime the petitioner was released on bail and while on bail he had again indulged in the said offending activity on 29.9.2008. The detenu petitioner was detained in jail in Crime No.712/08, under Sections 3/5/8 of Cow Slaughter Act and he had moved an application for bail before the Sessions Court in which 17.10.2008 was the date fixed. District Magistrate, respondent no.2 was also of the opinion that there was every likelihood of the bail prayer of the petitioner being allowed and chances of his repeating the earlier activity was very eminent, therefore, he (respondent no.2) formed an opinion that it is not safe to keep the petitioner free, as his activities had disturbed the public order and public communal harmony. On the aforementioned reasons, respondent no.2 Detaining Authority, ordered petitioner's under the Act vide his order dated 17.10.2008, the legality of which has now been questioned in the instant Habeas Corpus Petition. The dossier and the grounds of detention which were submitted to the Detaining Authority by the sponsoring police authorities has been appended as Annexure no.2. In the instant Habeas Corpus Petition respondents have filed their counter affidavits to which rejoinder affidavits have also been filed. Detaining authority/District Magistrate, in his counter affidavit took the stand that he had considered the facts and circumstances of the dossier placed before him by the sponsoring police and finding the activities of the petitioner and his associates prejudicial to the maintenance of public order that he had passed detention order. Detaining authority further mentioned that because of the activities of the petitioner and his associates public order problem cropped up. Hindu organizations had blocked the Highway in protest demonstrations because of which there was total disruption of highway traffic for four hours. Communal tension gripped the area and the incident was prominently reported in the newspapers on 30.9.2008. Additional police force was deployed from neighbouring police stations to bring the social harmonial situation under control. District Magistrate further averred that earlier also the petitioner detenu had indulged into similar activities and he was on bail in one of such offence and therefore, he was convenienced that the activity of the detenu petitioner was detrimental to the maintenance of public order and therefore, he had ordered to preventively detain the petitioner on 17.10.2008. The Detaining Authority has further averred that alongwith detention order relevant materials were served to the detenu petitioner while he was in side jail the same day. It has further been averred that all relevant materials were considered by him and after being fully satisfied that the detenu will further indulge in the same anti social activity after being released from jail, for which he was making all efforts to come out, that he had passed the detention order. Affidavit of the Detaining Authority further reveals that the detenu was also informed regarding his rights to make representations to the State Government, Advisory Board and Union of India and the manner in which those representations were to be made. Counter affidavit of Detaining Authority further mentions that he was subjectively satisfied that the activities of the petitioner detenu was detrimental to the maintenance public order and therefore, he had implanted the detention order. District Magistrate further mentioned that the case of the detenu petitioner was reported to the State Government, which was approved by it on 27.10.2008. The case of the detenu petitioner was also placed before the Advisory Board before whom the petitioner was also given a personal hearing on 15.11.2008 and finding sufficient cause for detention that the Advisory Board had furnished such an opinion to the State Government, who thereafter had confirmed the detention of the petitioner for 12 months, on 12.12.2008, from the date of petitioner's actual detention. State of U.P. , respondent no.4 in its counter affidavit took a stand that the detention order along with the grounds and connected papers were forwarded to it by the District Magistrate, Muzaffarnagar vide his letter dated 17.10.2008, which was received to the State Government on 20.10.2008. After examining every aspect of the detention, State Government had approved it on 25.10.2008, which approval was communicated to the petitioner through district authorities by a radiogram and letter, both of even date 27.10.2008 well within twelve days, as is required under Section 3(4) of the Act. State has further dispatched the grounds of detention and other connected papers to the Union of India, respondent no.5, by speed post on 31.10.2008, as is required under Section 3(5) of the Act and hence, the provisions of Section 3(4) and Section 3(5) of the Act have been fully complied with by it. State further took the stand that the case of the petitioner was referred to the Advisory Board on 27.10.2008, as is required under Section 10 of the Act. Advisory Board vide its letter dated 12.11.2008 informed the State the case of the detenu petitioner shall be considered by it on 15.11.2008 and the detenu be informed accordingly. The detenu was therefore informed that if he wants he can attend the hearing before the Advisory Board along with his next Friend (non-advocate) if he had so desire. The aforesaid fact was communicated vide radiogram dated 12.11.2008 to the petitioner detenu. On 15.11.2008 petitioner was heard in person by the Advisory Board, which had also considered his representation and finding sufficient cause, that the Advisory Board gave its opinion favouring the detention through a letter dated 4.12.2008 addressed to the State Government well within time stipulated under the Act. After receiving the opinion of the Advisory Board the State Government considered the case of the detenu afresh and finding sufficient reasons for detaining the petitioner that it had confirmed the detention order for detaining him from the date of his actual detention for a period of twelve months, which decision was communicated to the petitioner detenu through radiogram and letter dated 12.12.2008. Respondent no.1, Superintendent Jail, Muzaffar Nagar in his counter affidavit averred that the petitioner was detained in jail since 3.10.2008 in pursuance of the remand and custody warrant issued by C.J.M., Muzaffar Nagar in relation to Crime No.712/08, under Section 3/5/8 of Cow Slaughter Act, Police Station Titavi, District Muzaffar Nagar. While in custody the detention order dated 17.10.2008 passed by District Magistrate was received and was served on the detenu along with all the relevant materials received with detention order. Contents were read over and explained to the detenu. He was also informed regarding his rights to make representations to the various authorities and the mode and the manner in which such representations is to be made. It is also averred that the detenu was also informed that he has to make his representation within a period of twelve days before his case is considered by the State Government. It is further averred that detention was approved by the State Government on 27.10.2008, which communication was received on 28.10.2008 and on the same day the detenu was informed regarding the said approval. It is further averred that the radiogram was received on 12.11.2008 in continuation of which petitioner was informed regarding the date, time and place of the meeting of Advisory Board and his right to have personal hearing along with his next friend before it. It is also averred that even though the petitioner did not make any specific request for personal hearing but even then he was produced before the Advisory Board on 15.11.2008, the date fixed for hearing of his case. It is further mentioned in the counter affidavit that confirmation of the detention order was received through radiogram dated 15.12.2008 and the petitioner was informed on the same date. Union of India, respondent no.5 in its counter affidavit averred that the report under Section 3(5) of the Act sent by the State Government was received to the Central Government in the concerned desk in the Ministry of Home Affairs vide letter dated 27.10.2008 on 7.11.2008. It was placed before Under Secretary (NSA) on 11.11.2008 and was carefully considered by him and thereafter it was submitted to Director (S), who completed the examination and submitted it before the proper authority for orders. In rejoinder affidavit filed by the detenu petitioner the stand taken by the respondent authorities have been refuted and the averments made in the writ petition have been reiterated. We have heard Sri S.K. Pandey, learned counsel for the petitioner in support of this Habeas Corpus Petition as well as Sri Sudhir Mehrotra, learned AGA and Sri R.A. Shukla, learned counsel for Union of India. Sri S.K. Pandey, learned counsel for the petitioner urged that the detention order of the petitioner is bad in law and deserves to be set aside, as it is a matter, which false within the realm of law and order and not public order. Learned counsel submitted that no public order was disturbed by the activity of the detenu petitioner and therefore, clamping of N.S.A. on the petitioner is a vindictive exercise. He submitted that Union of India has not considered the case of the detenu petitioner independently and therefore, also the detention of the petitioner is unlawful. He further argued that on similar facts and circumstances this Court has taken a view that the detention order cannot be sustained and deserves to be set aside and in support learned counsel for the petitioner relied upon the judgement of Saeed Vs. State of U.P and others, 2007(1) JIC 230 (All). Learned AGA as well as learned counsel for Union of India hotly contested the argument of learned counsel for the petitioner and submitted that the activity of the detenu petitioner had potentially effect on the public peace and tranquillity. It had tarnished the social harmony and had hurted the religious sentiments of a large section of society, which has demonstrated against such illegal activity. Both the counsels contended that normal life was thrown out of gear by blocking the highway thereby creating public order. They submitted that the judgement of Saeed (supra) has been rendered on altogether different facts and does not apply at all. Both counsels further submitted general observations made by the Division Bench, in the said judgement of Saeed (supra) does not apply on all facts and circumstances and is not the ratio decedendi. Learned counsel further contended that the petitioner has been repeating the crime of cow slaughtering intentionally and knowingly with full consciousness of its outcome and import on society. Both the counsels, therefore, submitted that the present writ petition is bereft of merit and deserves to be rejected. They relied upon a decision of this Court rendered in Raees Vs. District Magistrate, Kanpur Nagar and others, 2004(49) ACC 657. We have given our anxious consideration on rival contentions and have been gone through the writ petition, counter affidavits and rejoinder affidavits. The reasons for detaining the petitioner under the Act, as is mentioned in the grounds, clearly makes out a case for disturbance of public order. Detnu petitioner was indulging in criminal activity of cow slaughtering since quite a long time. Earlier also he was arrested and was sent to jail. At the time when he was detained by the District Magistrate, there were sufficient material before the detaining authority that the detenu petitioner was repeating the crime time and again. It is specifically averred in the grounds that on 29.9.2008 the detenu was indulging in cow slaughtering during day time at 11.40 a.m. The enormous quantity of beef recovered from his house, which was the place of slaughtering, clearly indicates that the petitioner was indulging in such activity, which had the import of disturbing public peace and tranquillity and creating communal disharmony. Grounds of detention further mentions that for maintaining public order additional police force along with the Rapid Action Force were deployed. The ground further indicates that subsequent to the slaughtering incident dated 29.9.2008, petitioner again indulged in the said illegal activity on 4.10.2008, which fact was informed by Dharam Veer Sigh, Head Constable. The said information relayed by Dharam Veer Singh was found to be correct by S.I. Gyanendra Singh. The same information was also communicated to the Station Officer, P.S. Titavi. Grounds further refer that even after being release on bail, detenu petitioner was indulging in his criminal activity. The aforesaid fact clearly indicates repetition of crime totally uncared for the religious sentiments of the other community, which time and again flared up communal tension. Earlier detenu petitioner was even sent to jail and albeit even on bail, indulged in his said illegal activities. The grounds further mentioned that every time the police raided the house of the detenu petitioner, he made his escape good to indulge again in the said crime. Thus, from the materials place before respondent no.2 it was absolutely clear that there were sufficient material before him to come to a subjective satisfaction that the activity of the petitioner was prejudicial to the maintenance of the public order and he was a recidivist. The activity of the detenu was not a liceri nor it was a licet. He was acting against Cow Slaughter Act to disturb public harmony. In such a view, the opinion of the District Magistrate that the activity of the detenu was hazardous for maintaining harmony in social life was well founded. In this respect, we would like to observe that the contentions of the learned counsel for the petitioner that the activity of the detenu was only a law and order problem is not acceptable to us. It is not essential for detention under the Act that there should be disturbance of public order immediately when the activity was done. It is sufficient that the activity had the potentiality of affecting even tempo of life immediately or after some times. Act no where require that simultaneous with activity, public life should be disturbed. Attaching such conditions will squeeze the ambit of the Act and will chain it's scope in it's application which was never intended by the legislature. The only thing in this respect to be observed is that there should not be snapped link so as to cogitate that the grounds for detention has become stale and live link has been broken. If the activity has the potentiality to dislocate public order, then some delay in passing the detention order will not render it illegal. It is reach, import and effect of the activity, which is the real test anvil on which legality of the detention order has to be judged. Carrying out such activity in a closed door, in a lane, is not the real test but the effect of the activity is yard stick on which detention is to be looked into. We don't desire to venture into hypothetical realm of suppositions but observe only this much that most of anti national, anti social activities are carried out is secrecy at deserted time but, that no ground not to take recourse to the Act. A detention order had to be judged within the periphery of the enactment without travelling beyond it's scope. Reasons to set aside a valid detention order can not be stretched to such an extent that it makes the Act itself otiose. While deciding Habeas corpus petitions aims and objects of the statute has to be kept in mind which is anticipatory preventive in it's nature and not punitive. The object is to intercept a person from repeating his activities hazardous to the maintenance of public order and social harmony. It is not essential for passing a detention order under the Act that there should be disturbance of public order immediately when the activity was done. It is sufficient that the activity had the potentiality of affecting even tempo of public life immediately or after some times. Act no where requires that simultaneous with activity, public life should be disturbed. Attaching such conditions will squeeze the ambit of the Act and will chain it's scope in it's application which was never intended by the legislature. The only thing in this respect to be remembered is that there should not be snapped link so as to cogitate that the grounds for detention has become stale and live link has been broken. If the activity has the potentiality to dislocate public order, then some delay in passing the detention order will not render it illegal. It is reach, import and effect of the activity, which is the real test anvil on which legality of the detention order has to be judged. Carrying out such activity in a closed door, in a lane, is not the real test but the effect of the activity on the society is the real yard stick on which detention is to be looked into. We don't desire to venture into hypothetical realm of suppositions but observe only this much that most of anti national, anti social activities are carried out is secrecy at deserted time but, that no ground not to take recourse to the Act. A detention order had to be judged within the periphery of the enactment without travelling beyond it's scope. Reasons to set aside a valid detention order can not be stretched to such an extent that it makes the Act itself otiose. While deciding Habeas corpus petitions aims and objects of the statute has to be kept in mind which is anticipatory preventive in it's nature and not punitive. The object is to intercept a person from repeating his activities hazardous to the maintenance of public order and social harmony. Another aspect with which we would like to deal here is as to whether socio economic condition of an individual can be applied to justify his anti social activities? Individual hardships are more related with individual persons rather that society. A personal interest has to give way to a larger interest of society. Social order, in a democratic polity like our's is more sacrosanct than individual difficulties. No individual can be allowed to ripped through social harmony and tranquillity because of his personal gains and difficulties. The Act itself is an embodiment of this reasoning. If social order is made subservient to individual problems then fragmentation of the society will be the rule of the day and hence individuals have been made subject to social orders. We are, therefore, unable to accept the contention of learned counsel for the petitioner that the activity of the petitioner detenu was only a law and order problem. Slaughtering a cow in day time knowingly and consciously was bound to outrage the religious sentiments of other communities creating public order problems. Turning towards the judgement of Saeed (Supra) relied upon by learned counsel for the petitioner, we find that the said case is distinguishable on facts. It does not laid down an absolute preposition of law. That was a decision, which was rendered on the particular facts of that petition. That was a case in which there was a solitary incident and the activity was conducted on 5.45 a.m. in the morning that in a wintry season. The activity was carried out in secrecy inside the home. There were extraneous materials, which were considered by the detaining authority in passing the detention order. The said judgement does not help the case of the detenu petitioner at all. Contrarily, in the present case there was ample materials to show the recurrence of illegal activity of the petitioner knowingly and intentionally, time and again to dislocated the even tempo of public life and breach social harmony. It is not a case of a solitary incident in a remote secrecy. In the present case the activity was done during the day time in the month of September and October. The incident adversely affected the social ethos and harmony, created communal tension and disturbed public order for controlling of which additional police force was deployed. In view of the above discussion, it can well be concluded that the activity of the detenu petitioner falls within the perview of disturbance of public order and it is not a case of law and order at all. In this respect, we find that the law laid down by this court in the case of Raees (supra) relied upon by learned AGA applies with full force. We cannot go beyond the satisfaction of the Detaining Authority. There was materials before him to be subjectively satisfied and hence the order of detention passed by him cannot be nullified. Venerating and slaughtering cows is not only a offence under the Prevention of Cow Slaughter Act but is also an anti social, anti harmonial activity, having the potential to disturb public tranquillities and flair a communal tension and hence, such a activity pertains to public order problem and not law and order. We in our aforesaid view, we are also fortified by the judgement of our own Court in Nebulal versus District Magistrate, Basti and others, 2002 (45) ACC 869 wherein paragraph 8 this Court has been please to observe thus; Coming to the ground No.1 that the impugned incident does not give rise to any public disturbance or does not put in peril public order and tranquillity of the area as such we are of the opinion that even this ground, once we scrutinise ground No.2 as mentioned in the grounds of detention we find no force in it. 0 The activity of the petitioner in as much as in purchasing a cow bringing it in the village, tying it stealthily at another villager's house amongst his cattle and thereafter steadily taking it away, allowing it's slaughter by his Muslim companions who were nominated subsequently during the investigation is an act which would possibly inflict serious damage to public order of the area. It would certainly disturb public tranquillity of the area. Existence of harmony between people of two divergent section of the society would be shattered. The tempers would run high. It's publication in the news papers must have added fuel to the fire. The sentiment of the members of Hindu community was bound to be hurt. Throwing the carcass in well with some flesh stung to it clearly indicates their malicious intention. It was done to hurt the religious feelings of Hindu. His act, therefore, would fall squarely under clause 'disturbance to public order.' The same view that slaughtering of Cow falls within the purview of public order has been taken in another judgement of this Court in Tauqeer versus State of U.P. and others, 2002 (44) ACC 1088 wherein paragraph 3 of the aforesaid judgement observed thus; We have carefully perused the detention order and find that the matter certainly pertains to public order and not to law and order. Under our Constitution freedom of religion has been guaranteed as a fundamental right. However the U.P. Prevention of Cow slaughter Act bans the slaughter of cows and calves. The petitioners has no right to break the law and violate the above Act. It may be mentioned that nobody has right to do anything which may lead to communal tension in the country. In case we permit such activities a situation like in Gujarat may recur again Hindus, rightly or wrongly venerate cows. The Muslims should also respect the sentiments of the Hindus and nothing should be done which may provoke communal riots. The last thing which country can afford today is inflammation of communal feelings in the society. The petitioner with his associate could slaughter any other animal but certainly not slaughter cows against the provisions of the Prevention of Cow Slaughter Act as that may create communal tension. In view of what we have said above, we do not find any merit in this Habeas Corpus Petition, which stands dismissed.