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2019 Supreme(All) 392
HIGH COURT OF JUDICATURE AT ALLAHABAD
Vipin Sinha, Ajit Singh, JJ.
Deepak Singh – Appellant
Vs.
Union of India and Others – Respondent
Habeas Corpus Writ Petition No. 3513 of 2018
Decided On : 27-03-2019
Sanjeev Kumar Singh, Adv., Narendra Deo Rai, Adv.
Headnote:
National Security Act, 1980 – Section 3(2) – Seeking release of petitioner from alleged illegal detention and quashing impugned order passed by District Magistrate, under Section 3(2) of Act, 1980 – Challenged – Whether person should be detained, he would naturally expect that evidence on which said conclusion is ultimately going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally justifies conclusion that if said person is not detained, he may indulge in prejudicial activities – Held, On record which show that it was necessary to pass detention order when normal criminal prosecution would have been enough, even otherwise there is nothing to show that there was every likelihood of petitioner after being released on bail indulge in prejudicial activities affecting public order – There is only solitary FIR for which petitioner was arrested and sent to jail and thus, it cannot be said that circumstances so demanded on basis of solitary case which too has been instituted as alleged on account of some political enmity – Petition allowed. (Para, 14 & 17)
Facts of the case:
Seeking release of petitioner from alleged illegal detention and quashing impugned order passed by District Magistrate, under Section 3(2) of Act, 1980 – Challenged – Whether person should be detained, he would naturally expect that evidence on which said conclusion is ultimately going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally justifies conclusion that if said person is not detained, he may indulge in prejudicial activities.
Findings of the court:
On record which show that it was necessary to pass detention order when normal criminal prosecution would have been enough, even otherwise there is nothing to show that there was every likelihood of petitioner after being released on bail indulge in prejudicial activities affecting public order – There is only solitary FIR for which petitioner was arrested and sent to jail and thus, it cannot be said that circumstances so demanded on basis of solitary case which too has been instituted as alleged on account of some political enmity.
Result: Petition allowed
Ajit Singh, J.
Heard Sri Sanjeev Kumar Singh, learned counsel for the petitioner, Sri N.D. Rai, learned counsel for the Union of Indian and Sri Patanjali Mishra, learned AGA appearing for the State.
2. The present is a habeas corpus writ petition seeking release of the petitioner from the alleged illegal detention and for quashing the impugned order dated 26.4.2018 passed by District Magistrate, Gorakhpur under Section 3(2) of the National Security Act, 1980.
3. The order under challenge is the detention order dated 26.4.2018 passed by the State-respondent, which was subsequently approved on 29.5.2018 and confirmed on 5.6.2018. The said order was thereafter extended vide order dated 5.6.2018 (Annexure-1) to the counter affidavit filed on behalf of State [Deputy Secretary of Uttar Pradesh Home (Confidential) Department, U.P. Civil Secretariat, Lucknow]. This extension was made for a period of three months.
4. Learned counsel for the petitioner contends that the detention order as passed is the logical conclusion of the FIR dated 13.2.2018 registered as Case Crime No. 89 of 2018, U/s 302, 394 IPC. In the first information report general allegation of assaulting the deceased with fists and kicks has been made against three named and three unknown persons including the petitioner. The specific role of firing has been assigned to the co-accused Ashutosh Bhatt. No incriminating article or material has been recovered either from the petitioner or on his pointing out. Learned counsel has challenged the detention order on two grounds; first is that the prosecution case as set up in the FIR itself clearly shows that it is a case which falls within the law and order and not a public order and thus the provision of NSA could not have been invoked in the present case under the garb of which the petitioner has been detained; second ground is that the provision of NSA could not have been invoked solely on the basis of solitary incident. It has been categorically stated that apart from the present case, there is no other case pending against the petitioner and the petitioner is not a history-sheeter and the petitioner has got no criminal history. It has been further contended that the detaining authority has passed the detention order in a mechanical and cavalier manner which clearly shows that the detaining authority has not even applied its mind to the facts and circumstances of the case especially in view of the fact that on the date when the detention order was passed i.e. 26.4.2018, the petitioner was already in jail in pursuance of an FIR dated 13.2.2018. The petitioner has moved an application for bail before Chief Judicial Magistrate and the same was rejected on 19.3.2018 and thereafter he filed his bail application before District & Sessions Judge, Gorakhpur and the same is pending. It has been very vehemently contended that the order impugned clearly shows that it has been passed in a cyclostyle form and without non application of mind. The detaining authority has not considered legal parameters fixed in this regard regarding non existence of any criminal history of the petitioner. The satisfaction, as recorded, does not also demonstrate as to what was the basis for detaining authority on the basis of which it has been concluded that after being released on bail, the petitioner would again indulge in similar activities. Learned counsel for the petitioner has placed reliance upon a division Bench judgments of this Court rendered in Habeas Corpus Writ Petition Nos. 9950 of 2017 (Satyendra Singh A Dablu Singh v Union of India and others), 3094 of 2018 (Istakaar and another v. Union of India and others) and 3279 of 2018 ( Noorey Alam v. Union of India and others). In support of his contention, the learned counsel for the petitioner has also placed reliance upon the judgments passed by various Division Benches of this Court in Habeas Corpus Writ Petition No.55685 of 2017 Haji Akhlakh vs. Union of India and others (decided on 30.3.2
