MOHAMMAD SARTAJ Vs. STATE OF M P

JUDGEMENT

(1.) In this writ petition, the petitioner has challenged the validity of the order dated 16-8-2007 passed by the District Magistrate, Jabalpur by which the petitioner has been detained under Section 3(2) of the National Security Act (hereinafter referred to as "the Act") as well as the order dated 3-5-2012 by which the representation preferred by him against the order of detention has been rejected by the State Government. Facts leading to filing of the written petition briefly stated are that the Superintendent of Police, Jabalpur vide memo dated 10-8-2007 informed the District Magistrate, Jabalpur about the criminal activities and involvement of the petitioner in several criminal cases which according to the Superintendent of Police were prejudicial to the public order. It was mentioned in the aforesaid memorandum that the petitioner is a habitual offender and has become member of communal organisation namely "SIMI". It was further stated that on account of activities of the petitioner, there is an atmosphere of fear in the locality and the petitioner being the habitual offender, commits the offences publicly which has affected the public order. It was also stated that petitioner is involved in criminal activities since 2002 and various offences have been registered against him which were mentioned in the memorandum. The District Magistrate on being satisfied with the material produced before him, came to the conclusion that the activities of the petitioner were prejudicial to the public order. Accordingly, an order of detention dated 16-8-2007 was passed. It is the case of the petitioner that he learnt about the order of detention sometime in the month of November, 2011. He, therefore, approached this Court by filing a writ petition namely W.P. No. 21227/2011 for quashing the order of detention at the pre-execution stage. This Court vide order dated 23-1-2012 inter alia held that since the petitioner has not surrendered and, therefore, the grounds of detention have not been served upon him. In the absence of grounds of detention, it is not possible to adjudicate the validity of the order of detention. Accordingly, the writ petition was dismissed with liberty to the petitioner to file a fresh writ petition after obtaining the grounds of detention. Thereafter, the petitioner was arrested on 17-3-2012. Being aggrieved by the order of detention, the petitioner submitted a representation on 29-3-2012, which was rejected by the State Government vide order dated 3-5-2012. In the aforesaid factual background, the petitioner has approached this Court.

(2.) Learned Counsel for the petitioner submitted that the petitioner resides in front of Police Station, Badi Omti and was not absconding. Even assuming that the petitioner was absconding, the procedure prescribed under Section 7 of the Act in relation to absconding persons ought to have been resorted to by the respondents. It was further submitted that the order of detention has lost its significance due to efflux of time, as the object of the preventive detention is to prevent a person in anticipation in doing an illegal activity prejudicial to public order. It was further urged that the petitioner was arrested after a period of four years and seven months from the date of passing of the order of detention under the Act. It was further submitted that grounds of detention were not supplied to the petitioner and, therefore, the petitioner was deprived of an opportunity to make an effective representation against the order of detention which constitutes violation of Article 22(5) of the Constitution of India as well as Section 8 of the Act. In support of his submissions, learned Counsel for the petitioner has placed reliance on decisions of the Supreme Court in Fatal Ghosi Vs. State of U.P. and others,1987 2 Crimes 892, Alpesh Navinchandra Shah Vs. State of Maharashtra and others, 2007 2 SCC 777 as well as a decision of this Court in Ravi Tiwari and another Vs. Union of India and others, 2003 3 MPHT 528 .

(3.) On the other hand, learned Additional Advocate General for the respondents while opposing the submissions made by learned Counsel for the petitioner submitted that the grounds of detention were supplied to the petitioner on 21-3-2012. While inviting the attention of this Court to Para 9 of the return as well as Para 7 of the additional return, it was submitted that though warrant of arrest was issued against the petitioner on 16-8-2007, but the same could not be executed upon him as he was given unlawful protection by his father namely Haji Abdul Rajjak. The police authorities made all possible efforts to arrest the petitioner but since the petitioner was given protection by his father, therefore, the warrant of arrest could not be executed on the petitioner. It was further submitted that the order of detention dated 17-3-2012 was passed against the father of the petitioner and he was arrested on 17-3-2012 and immediately thereafter, on 18-3-2012, the petitioner was also arrested. While inviting the attention of this Court to the Ground No. 6 mentioned in the grounds of attention, it was pointed out that the petitioner along with several other persons belonging to a particular community entered into the premises of Central Jail, Jabalpur on 7-8-2007 at 9.30 a.m. and aired the rumour that holy book, namely, "Kuran-a-Sharif" was torn by persons belonging to other community. It was also submitted that the petitioner and his other associates raised provoking slogans as a result of which huge mob gathered at the spot and the mob forcibly attempted to enter into the premises of Collectorate, Jabalpur.