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Sayeed v/s State of U.P.

    Civil Misc. Habeaus Corpus Writ Petition No. 26834 of 2013

    Decided On, 26 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SHASHI KANT & THE HONOURABLE MR. JUSTICE RAVINDRA SINGH

    For the Appellant: Apul Misra, Advocate. For the Respondent: Amit Sinha, A.S.G.I.



Judgment Text

Ravindra Singh & Shashi Kant, JJ.

1. Heard Sri Apul Misra, learned Counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri Amit Sinha, learned Counsel for Union of India. This habeas corpus petition has been filed on behalf of the petitioner Sayeed with the prayers that:

(i) issue a writ, order or direction in the nature of Habeas Corpus commanding the opposite parties to produce the petitioner in the Court and set him at liberty forthwith unless wanted in other cases.

(ii) Issue a writ, order or direction in the nature of certiorari quashing the order dated 2.3.2013 (Annexure No. 1) passed by the opposite party No. 3 and as approved by the State Government and the Advisory Board;

(iii) Issue any other writ order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the case;

(iv) Award the cost to the petitioner.

2. The above mentioned prayer has been made on the following grounds:

I. That the detention order is vitiated as the mandatory procedure prescribed by

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the Act have not been followed by the opposite parties.

II. That the Detaining Authority has failed to place before the Advisory Board the details of date and time on which the procedure prescribed by the Act, were followed.

III. That the incident in connection with which the detention order has been passed involves the problem of law and order and not the maintenance of public order.

IV. That no material was placed before the Detaining Authority which may show that the petitioner was actually involved in any inflammatory communication which flared up disaffection between the two communities.

V. That all the three first information reports lodged in connection with the incident and the statement of witnesses u/s 161 Cr.P.C. does not allege that the petitioner was responsible for causing any communal clash.

VI. That under the circumstances the satisfaction of the Detaining Authority has been vitiated.

VII. That the satisfaction of the Detaining Authority to pass the detention order would be vitiated if the same is passed only on the ground that the petitioner was trying to obtain bail from the High Court.

VIII. That the order of detention was passed after a long delay of the incident and hence the detention order is vitiated as no material was placed before the Detaining Authority to satisfy him that the cause for detention has not become stale and detention of the petitioner is still required to avoid any communal flare up.

IX. That the placing of the case diary before the Detaining Authority is an extraneous material as it gives a false impression that the petitioner was the only person responsible for the communal clashes.

X. That the Sponsoring Authorities have failed to disclose to the Detaining Authority as to what extent the use of loud speaker by the mosque was prohibited by the administration, at the relevant time.

XI. That it was not disclosed to the Detaining Authority that the use of loud speaker was not banned for transmitting Azaan of the mosque.

XII. That evidence of the participation of both the communities equally, in the flare up is borne out from the newspaper reports submitted along with sponsoring reports to the Detaining Authority.

XIII. That proceeding under National Security Act has not been initiated against any member of the rival community shows the bias nature of the authorities against the Muslims. Hence, the detention of the petitioner is vitiated on the grounds of bias.

XIV. That under the circumstances the detention of the petitioner is against the constitutional rights and liberty guaranteed to the petitioner under Part III of the Constitution of India and is liable to be quashed.

3. The facts, in brief, of this case are that the impugned order dated 2.3.2013 in exercise of powers conferred u/s 3(3) of the National Security Act (hereinafter referred to as 'NSA') has been passed by District Magistrate, Bulandshahar by which the petitioner has been directed to detain in District Jail Bulandshahar as an ordinary prisoner on the grounds which have been supplied to the petitioner in pursuance of the provisions of section 8 of NSA. After perusing and considering the reports submitted by S.H.O. of Police Station Khurja Nagar, Circle Officer Khurja, Additional Superintendent of Police (Rural) Khurja and S.S.P. Bulandshahar and the documents submitted, the Detaining Authority passed the impugned order after being satisfied that the petitioner was involved in spreading disaffection between the two communities and it was a case of disturbance of public order. In this regard, the FIR has been lodged in case crime No. 556-A of 2012 under sections 147, 148, 504, 336 and 286 I.P.C. and the case crime No. 556-B of 2012 under sections 147, 148, 336, 286, 395 and 153-A I.P.C. were registered and the FIR in case crime No. 556 of 2012 under sections 147, 148, 149, 302, 307, 323 and 436 I.P.C. were registered. The FIR in case crime No. 567 of 2012 u/s 25/27 Arms Act was also registered against the petitioner subsequently.

4. In the grounds of detention, the Detaining Authority has clearly mentioned that in a case of the murder, the petitioner had moved the bail application which was pending in the High Court and there was real possibility of releasing him on bail and on releasing on bail, there was all probability that he may indulge in prejudicial activities. The impugned order, the grounds of detention and all other relevant documents were served upon the petitioner through the Jail Authority on 2.3.2013, to afford him the earliest opportunity for making an effective representation. The detention order was approved by the State Government on 8.3.2013, its communication was duly made to the petitioner. There was no delay in approving the detention order. The copy of the detention order, the grounds of detention and all other connected papers received from the District Magistrate, Bulandshahar were sent to the Central Government by Speed Post and letter dated 11.3.2013 within time as required u/s 3(5) of NSA. The case of the petitioner was referred to the Advisory Board by the State Government on 11.3.2013 well within time as required u/s 10 of the NSA. The Advisory Board by its letter dated 16.3.2013 informed the State Government that the case of the petitioner will be taken up for hearing on 21.3.2013 and directed that the petitioner be informed that if he desires to attend the hearing before the Advisory Board, along with his next friend (non-advocate), he could do so and be allowed to take his next friend along with him, if he had so requested. It was also duly communicated to the petitioner.

5. The petitioner appeared before the Advisory Board on the date fixed, who after hearing the petitioner and considering all the records, gave a report, the same was received in the concerned section of the State Government through Registrar U.P. Advisory Board (detention letter dated 8.4.2013) on 9.4.2013, according to the report there was sufficient cause for detention of the petitioner. After receiving the report of the Advisory Board, the State Government once again examined the case of the petitioner as a fresh and took the decision to confirm the detention order and also for keeping the petitioner under detention for a period of 12 months, the same was also communicated to the petitioner. The representation of the petitioner dated 18.3.2013 was received in the office of District Magistrate on 18.3.2013, on which the comments were sought from the S.S.P. Bulandshahar on 18.3.2013, the comments were received on 19.3.2013, after considering the representation of the detenu, the same was rejected by the District Magistrate, Bulandshahar on 19.3.2013, thereafter the representation of the petitioner along with the comments was sent to the State Government as well as Central Government on 19.3.2013. The representation of the petitioner was rejected by the State Government on 25.3.2013 and by the Central Government on 4.4.2013.

6. From the perusal of counter affidavits filed on behalf of the State Government, by the Jail Authority and by District Magistrate, show that the communication of the papers and order passed were made in accordance with the provisions of the NSA. There is no violation of any of the provisions of NSA. The counter affidavit filed on behalf of Union of India also shows that representation of the petitioner was duly considered and was decided well within time. The submission made by learned Counsel for the petitioner that the representation was not placed before the Advisory Board, such ground has not been taken in the writ petition. The submission has been made on the basis of the rejoinder affidavit, the opportunity to controvert the same could not be availed by the State Government, in such a circumstance, this submission made by learned Counsel for the petitioner may not be considered to test the impugned order and further detention of the petitioner. The next submission made by Counsel for the petitioner is that the detaining authority was not having the proper material for coming to the conclusion that the petitioner was involved in any inflammatory communication which flared up disaffection between the two communities, the grounds of detention and the documents sent by sponsoring authority were sufficient to come to the conclusion that the petitioner was involved in-inflammatory communication flaring up disaffection between the two communities. The next submission made by learned Counsel for the petitioner is that impugned order has been passed only because petitioner was trying to obtain bail from the High Court but the grounds of detention show that the detaining authority was satisfied that there was real possibility of releasing the petitioner on bail, it does not vitiate the impugned order.

7. In the last, it is submitted by learned Counsel for the petitioner that the act done by the petitioner does not come within the category of disturbing the public order, it may be at the most in the category of law and order. The submission made by learned Counsel for the petitioner is having no substance because due to the act done by the petitioner, the tempo of life of the society has been disturbed, it comes under the category of disturbance of the public order.

8. The other grounds taken in the petition with regard to the perusal of the statements of the witnesses recorded u/s 161 Cr.P.C. and the impugned order has been passed on the extraneous material or detaining authority has not applied his mind in passing the impugned order are having no substance. The impugned order is not suffering from any illegality or irregularity. There is no reason to vitiate the impugned order passed by the District Magistrate, Bulandshahar, therefore, the prayer for quashing the same is refused. Accordingly, this petition is dismissed.
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