MOHAMMAD SALIM Vs. DIST MAGISTRATE ALLAHABAD

JUDGEMENT

(1.) Petitioner Mohd. Salim challenges his detention in pursuance of an order dated 12-4-1989 passed by the District Magistrate, Allahabad u/S.3(2) of the National Security Act. The ground in support of the order of detention alleged that on the night of 10-3-1989 at about 3 a.m. the petitioner along with his associates went to the Octroi check post at Reewa Road within the limits of Nagar Mahapalika, Allahabad where Chhedilal Yadav, Octroi Clerk, Bhagwati Prasad Dubey, Assistant Octroi Clerk, Ramanand Clerk, Anoop Kumar and Ishtiyaq Ahmed peons were on duty. Three miscreants were armed with country made pistols and one was empty handed after entering the octroi room they threatened the persons on duty not to move lest they shall be shot dead. Thereafter one of the associates of the petitioner viz. Asharaf alias Pappu took away about Rs. 3,000/- which was placed near the desk on the carpet as also the revenue stamps and the receipts which he kept in his pocket. While coming out, out of the two of his associates who were holding bombs in their hand standing in front of the counter window, one Tasleam asked the petitioner to check the cash box as there could be money in it. On this the petitioner opened the cash box and he took away Rs. 26,000/- from it. After threatening the octroi staff not to raise any alarm lest they would be shot dead they went out of the octroi post. However on the alarm raised by the Clerks of the octroi post the peons and the other persons ran after the miscreants. The persons chasing the miscreants were also threatened with country made pistols and bombs. While escaping the miscreants also snatched away the watch of Anoop Kumar peon and Rs. 1,400/- from the pocket of a truck driver who was attacked with the butt of the country made pistol. At that stage S.I.S.K. Singh Sengar and S.I.B.P. Singh along with some other police constables arrived on the spot and chased the miscreants. After chasing them for a short distance the police party managed to catch hold of one of the associates of the petitioner viz. Ashraf alias Pappu but the petitioner and other associates managed to escape. From the search of Ashraf alias Pappu Rs. 3,100.10 p. and few revenue stamps were recovered. It was mentioned in the ground that in connection with the said crime, case crime No. 104 of 1989, u/S.395, 397 and 412, I.P.C. had been registered at police station Naini and was pending investigation. The detaining authority on the said activity of the petitioner and his associates mentioned in the ground that the said act of the petitioner and his associates had caused terror on the spot and the truck drivers who were waiting outside on their trucks began to run away in their trucks; the entire traffic was disrupted and the persons posted at the octroi check post were so scared that they got themselves transferred from the said check post which resulted in disruption of the entire normal activity resulting in the disruption of the public order. The detention order further mentioned that the petitioner who was confined in Central Jail, Naini, Allahabad had obtained bail from the Court from where he was likely to be released from the jail shortly. It was further mentioned that there was every possibility that after coming out from jail the petitioner might again indulge in similar criminal activity which may affect the maintenance of the public order. Hence being satisfied that the activity of the petitioner was of a nature which was likely to affect the maintenance of public order, the District Magistrate, Allahabad who was the detaining authority, was of the view that to maintain the public order it was necessary to detain the petitioner and hence the order of detention on the grounds mentioned above was passed.

(2.) Learned counsel for the petitioner has raised three points in challenging the legality of the detention order. The first point raised by him is that since the police report dated 10-4-1989 sent by the police station concerned which was also before the detaining authority, mentioned that the bail application of the petitioner has been allowed and he was likely to be released from jail, and since this fact had been again mentioned in the grounds of detention of the petitioner, the real object of the detaining authority was to prevent the petitioner from coming out of jail. According to learned counsel for the petitioner this was a colourable exercise of power of detention, the sole object of which was to nullify the effect of the order of bail. Learned counsel for the petitioner thus contended that the real object of the detaining authority was not to detain the petitioner with a view to prevent him from acting in any manner which could be prejudicial to the maintenance of the public order. This aspect of the contention of the petitioner also covers the second point taken by him that the activity of the petitioner was not such as could be termed to be one involving the maintenance of public order. According to the learned counsel for the petitioner the activity of the petitioner and his associates at the best was one concerning law and order. The third contention of the learned counsel is that in any case the activity of the petitioner being only a solitary activity, it could not be validly taken up into account by the detaining authority for detaining the petitioner under the provisions of the National Security Act, as according to him a solitary incident could not give rise to an apprehension that the petitioner had tendency to act in the similar fashion again.

(3.) In support of the first contention learned counsel for the petitioner relied upon the case of Ramesh Yadav v. District Magistrate, Etah reported in AIR 1966 SC 315. In the said case the Supreme Court had quoted the five grounds of detention which were concerning some activities on the basis of certain criminal cases registered against the petitioner. Thereafter the Supreme Court had quoted a passage of the detention order which read as under (Para 4) : "At this time you were detained in the District Jail, Mainpuri and you have filed an application for bail in the Court of law which is fixed for hearing on September 17, 1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after-being released on bail you will indulge in activities prejudicial to the maintenance of public order". While disposing of the case the Supreme Court in paragraph 5 found that out of the four incidents three were of 1980 which were prior to making of previous detention order. Thus they were found to be stale. The only other activity was found to be of 1983 in which the Supreme Court noted that the petitioner had been acquitted and as such that too was also not available to be used. Thereafter the Supreme Court took note of the passage quoted above and then held that the only ground to detain the petitioner which remained in the case was the fact of the petitioner being released on bail whereafter it was mentioned that if the petitioner was released on bail he would again carry on his criminal activity in the area. It was in that background that the Supreme Court observed that if the apprehension of the detaining authority was true, the bail application had to be opposed. It was further observed that merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail, an order of detention under the National Security Act could not ordinarily be passed.