KAMLA PANDEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This is habeas corpus petition under Art. 226 of the Constitution of India on behalf of the detenu Omprakash alias Bhola who has been detained by an order dated 31-3-1995 passed under Section 3(2) of the National Security Act, 1980 (for short 'the Act'), by the District Magistrate Sarguja, at Ambikapur.

(2.) The facts giving rise to this petition are these. A report (Annexure R.1) to the return date 31-3-1995 by the Superintendent of Police was submitted to the District Magistrate, Sarguja wherein after stating the instances of activities of the detenu a prayer was made that an order under Section 3(2) of the Act be passed with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. Along with the report copies of Rojnamcha San has right from 11th June, 1989 were also enclosed. The detaining Authority on his subjective satisfaction in relation to the activities which were prejudicial to the maintenance of public order, passed the order of detention (Annexure R. 2) on the same day, which was served upon the petitioner along with the grounds of detention (Annexure R. 3) on 7-4-1995. The detention order was sent for approval of the State Government vide Annexure R. 4A dated 31st March, 1995, 10th April, 1995. The State Government vide Annexure R. 5 dated 12-4-1995 passed the order of approval of detention under Section 3(4) of the Act. An information along with report in the Pro forma No. 1 was also sent to the Central Government under Section 3(5) of the Act. The record of the proceedings of the detention was sent to the Advisory Board which after giving an opportunity of the representation and hearing to the petitioner-detenu in accordance with Section 11 of the Act opined on 12-5-1995 (Annexure R. 7) that there is sufficient cause for detention of Omprakash alias Bhola. After the receipt of the opinion, the State Government in exercise of its powers under Section 12(1) of the Act, vide order dated 16-5-1995 (Annexure R.10) confirmed the order of detention and continued the detention for a period of 12 months from the date of detention that is up to 6-4-1996, which was communicated to the detenu through Jail authorities.

(3.) Shri Arvind Shrivastava, learned counsel for the petitioner contended that the grounds of detention and the order of detention clearly shows that the detaining authority has not applied its mind for arriving at a subjective satisfaction for passing an order of detention under Section 3 of the Act. A look to the grounds of detention shows that grounds are stale and has no relevance with Public order but to law and order. Grounds Nos. 1 to 16 are stale from the year 1988 to 1991 pertaining to commission of penal offences like theft, trespass, wrongful confinement, causing hurt and of threatening or are of preventing acts under Section 107/116, Cr. P.C. which relates to law and order and not public order. Ground No. 16 relates to a quarrel with one Lachand Gupta on 6-3-1992 and another quarrel with Ganesh Shukla on 21-5-1992 of which complaint was made in the police station, Ground No. 17 relates to an offence registered at Crime No. 220/92 under Section 302 of the Indian Penal Code which is pending in the Court. Ground No. 18 relates to an offence alleged to have been committed by the detenu under Sections 307, 452 of the Indian Penal Code of which offence was registered vide Crime No. 40/94. Ground No. 19 relates to Crime No. 47/94 under Sections 279, 337 registered against the detenu of which challan has been filed in court. Ground No. 20 relates to an offence registered in Crime No. 40/94 due to which proceedings under Section 107/116, Cr. P.C. were initiated in court on 30-3-1995. It was submitted that for the offence under Sections 307 and 452 of the Indian Penal Code, the detenu was in custody from 26-1-1993 to 30-3-1995 and when he was released on bail, preventive action was taken under Section 107/116, Cr. P.C. that is next day of his release. It was submitted the Superintendent of Police in his report did not stays the fact that the detenu is in jail for the offence under Section 307/452 of the Indian Penal Code in Crime No. 40/94 registered. Superintendent of Police also did not report that for the offence under Section 302 of the Indian Penal Code registered at Crime No. 220/92 the detenu was discharged vide order dated 30-9-1993 passed in Sessions Trial No. 213/93 by the Additional Sessions Judge, Manendragarh. The Superintendent of Police also did not state the fact that so far as the ground No. 8 is concerned, the detenu was prosecuted under Section 411 and not under Section 447 and 380 of the Indian Penal Code which resulted into acquittal of the detenu the judgement of which was passed on 30th Dec. 1993 in Case No. 2181/88 by the Judicial Magistrate First Class Manendragarh. The report was sent by the Superintendent of Police, to the District Magistrate on 31st March, 1995 as the detenu was to be released on bail on the same day. Without considering the relevant facts and circumstances the District Magistrate passed the order mechanically without considering whether the activities of detenu are against the Public Order or not. As the activities were not prejudicial to the maintenance of Public order, the order passed under Section 3(2) of the Act deserves to be quashed, reliance was placed on Ramesh v. State of Gujarat, AIR 1989 SC 1881 : (1989 Cri LJ 2094), State of M.P. v. Kamal Kishore, AIR 1988 SC 208 : (1988 Cri LJ 405), Mohinuddin v. District Magistrate, AIR 1987 SC 1977, Smt. Shashi Agarwal v. State of U.P., (1988) 1 SCC 436 : (1988 Cri LJ 839), State of U.P. v. Harishankar Tiwari, AIR 1987 SC 998 : (1987 Cri LJ 840), Merugu Satyanarayan v. State of Andhra Pradesh, AIR 1982 SC 1543 : (1982 Cri LJ 2357), Ayya alias Ayub v. State of U.P. AIR 1989 SC 364 : (1989 Cri LJ 991), Biru Mehta v. District Magistrate Dhandbad, AIR 1982 SC 1539 : (1982 Cri LJ 2354), M. Satyanarayana v. State of M.P., AIR 1982 SC 2351 (sic), Nandlal v. State of Punjab, 1981 Cri LJ 1501 : (AIR 1981 SC 2041) and Raisuddin alias Babu Tamchi v. State of Uttar Pradesh, (1983) 4 SCC 537.