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1991 Supreme(All) 463
IN THE HIGH COURT OF ALLAHABAD
S. H. A. RAZA, DEV KANT TRIVEDI
MAHESH TYAGI - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
W. P. 12221 Of 1990
Decided On : 05/03/1991
R.N.Shukla
Headnote:
NATIONAL SECURITY ACT - DETENTION - GROUNDS - VALIDITY - REVIEW: 1. Non-supply of vital documents like statements recorded under Section 161 CrPC, seizure memo, etc., to the detenu prejudices his right to make an effective representation and renders the detention order invalid. 2. Non-production of relevant materials like statements of undertrial prisoners alleging false implication of the detenu, police report thereon, etc., before the detaining authority renders the detention order invalid. 3. Passing a detention order based on extraneous and irrelevant materials like police reports mentioning the detenu as a hardened criminal, without furnishing particulars or details thereof to the detenu, vitiates the validity of the order. 4. Detention under the National Security Act is not justified where the alleged activities relate to law and order problems and do not endanger the even tempo of community life.
Fact of the Case:
The petitioner, detained under Section 3(iii) of the National Security Act, 1980, challenged his detention order on various grounds, including non-supply of vital documents, non-production of relevant materials before the detaining authority, reliance on extraneous and irrelevant materials, and the nature of the alleged activities not being prejudicial to public order.
Finding of the Court:
1. The non-supply of vital documents like statements recorded under Section 161 CrPC, seizure memo, etc., to the detenu prejudiced his right to make an effective representation and rendered the detention order invalid. 2. The non-production of relevant materials like statements of undertrial prisoners alleging false implication of the detenu, police report thereon, etc., before the detaining authority rendered the detention order invalid. 3. Passing a detention order based on extraneous and irrelevant materials like police reports mentioning the detenu as a hardened criminal, without furnishing particulars or details thereof to the detenu, vitiated the validity of the order. 4. Detention under the National Security Act was not justified where the alleged activities related to law and order problems and did not endanger the even tempo of community life.
Issues: 1. Whether the non-supply of vital documents to the detenu prejudiced his right to make an effective representation and rendered the detention order invalid? 2. Whether the non-production of relevant materials before the detaining authority rendered the detention order invalid? 3. Whether passing a detention order based on extraneous and irrelevant materials vitiated the validity of the order? 4. Whether detention under the National Security Act was justified where the alleged activities related to law and order problems and did not endanger the even tempo of community life?
Ratio Decidendi: 1. The right to make an effective representation under Article 22(5) of the Constitution of India includes the right to be furnished with all relevant and vital materials that have been taken into account by the detaining authority in reaching the requisite subjective satisfaction for passing the detention order. 2. The detaining authority must consider all relevant materials and cannot rely on extraneous and irrelevant materials in passing a detention order. 3. Detention under the National Security Act is justified only when the alleged activities are prejudicial to public order and not merely law and order problems.
Final Decision: The writ petition was allowed, the detention order was quashed, and a writ of mandamus was issued directing the release of the petitioner.
( 1 ) BY means of this writ petition the petitioner who has been detained under Section 3 (iii) of the National Security Act by the District Magistrate, Ghaziabad, has assailed his detention order.
( 2 ) IN the grounds of detention furnished to the petitioner it was alleged that on 7-7-90 one Arun Kumar, son of Sri Dhara Singh, resident of L-36, Sanjai Nagar, Sector 23, Raj Nagar, Ghaziabad, lodged a F. I. R. at police station Kavri Nagar to the effect that his son Yatin Kumar went to attend his classes in the school at 7. 30 a. m. but 7-7-90 being Saturday the school was closed earlier than 1. 30 p. m. which was the usual time for closure of the school but Yatindra Kumar did not return to his house. The report was lodged at 14. 15 hours and the case was registered and investigation commenced. On 10-7-90 the said Arun Kumar visited the police station and filed a letter alleged to have been written by the accused in which it was stated that Yatindra Kumar was in his custody and would be released only on payment of rupees two lacs as ransom and in case the matter would be reported to the police the boy would be killed. As a result of it a case bearing Crime No. 327 under Section 365, I. P. C. was registered and the police started making efforts to recover the said boy.
( 3 ) IT was further mentioned in the grounds of detention that on the same day i. e. 10-7-90, after encounter with the police accused Ishwar, son of Om Prakash, resident of Shahpur Bamhaita Morta, police station Muradnagar, was arrested and one CMP and cartridges were recovered from his possession. On interrogation and pointing out of said accused Ishwar on 11-7-90 at 4. 00 a. m. after encounter with the police, the petitioner along with Dhiraj Tyagi, Ashok Tyagi and Yamin were arrested along with illicit arms and ammunition at the tubewell of Ashok situate in village Didauli, police station Muradnagar. The boy Yatindra Kumar who was kidnapped by accused persons was recovered and accused who were arrested were sent to jail. It was averred that the petitioner along with other co-accused abducted the boy Yatindra Kumar as a result of which an atmosphere of terror and fear spread out and public order was jeopardised.
( 4 ) IT was further averred in the grounds of detention that the petitioner preferred an application for grant of bail before the Additional Chief Judicial Magistrate which was dismissed on 17-7-90. Thereafter, the petitioner preferred an application for grant of bail before the learned Sessions Judge which was pending at the time the grounds of detention were served upon the petitioner.
( 5 ) IT was further averred in the grounds of detention that on 11-7-90 Sri R. D. Gaur, inspector-in-charge, Muradnagar lodged a F. I. R. to the effect that on the pointing out of accused Ishwar, son of Om Prakash, when he along with the police party reached at the tube-well of Ashok situate in village Didauli, accused persons with intent to kill, fired upon the police party and from their possession illicit arms were recovered as a result of which an atmosphere of fear and terror spread out and public order was disrupted. Pertaining to this incident, a case at Crime No. 252 under Section 307, I. P. C. , was registered against the petitioner. It was also averred that the petitioner had preferred an application for bail before the court of Sessions Judge, Ghaziabad and 7-8-90 was fixed for disposal. On the basis of the aforesaid ground, the detaining authority was satisfied that there existed an apprehension that the petitioner would be engaging in prejudicial activities that would be against the public order, hence, to prevent the petitioner from indulging into such prejudicial activities, it was found necessary that he should be detained and kept in custody.
( 6 ) IT was averred in the writ petition that the petitioner has been confined in District Jail in pursuance of the order passed by the District Magistrate on 5-8-90 in exercise of the powers u
