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Mohd. Alim Vs. the Superintendent, District Jail and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ1429
AppellantMohd. Alim
RespondentThe Superintendent, District Jail and ors.
Excerpt:
.....and thereafter was likely to act in a manner pre-judicial to the maintenance of public order. the district magistrate has deposed that he was fully satisfied that the activity of the petitioner as set out in the grounds of detention that he was a potential threat to the maintenance of public order and that his detention was necessary. the facts of the instant case are clearly distinguishable from the facts on which the aforesaid ruling is based. the district magistrate was satisfied from the police records that the petitioner was a potential threat to the maintenance of public order and admittedly the police records mentioned his age as 19 years. the district magistrate was satisfied that it was necessary to detain the petitioner to prevent him from acting in any manner prejudicial to..........challenge in this petition is the order of detention dated 6th oct., 82 passed by sri b. b. sinha, district magistrate, moradabad whereby sri mohd. alim has been detained in exercise of the powers conferred by section 3(2) of national security act. the object of detention as set out in the order is to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. the impugned order rests on two grounds based on two incidents. the first incident is of 2nd oct., 82 when the detenu mohd. alim or alam along with six others at about 5 p. m. near jama masjid is alleged to have conferred and decided to retaliate and kill one hindu every day in chhattagali where there would be no witnesses other than muslims and to bury the corpse in ram ganga sand and continue this.....
Judgment:

R.A. Misra, J.

1. The subject matter of challenge in this petition is the order of detention dated 6th Oct., 82 passed by Sri B. B. Sinha, District Magistrate, Moradabad whereby Sri Mohd. Alim has been detained in exercise of the powers conferred by Section 3(2) of National Security Act. The object of detention as set out in the order is to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. The impugned order rests on two grounds based on two incidents. The first incident is of 2nd Oct., 82 when the detenu Mohd. Alim or Alam along with six others at about 5 P. M. near Jama Masjid is alleged to have conferred and decided to retaliate and kill one Hindu every day in Chhattagali where there would be no witnesses other than Muslims and to bury the corpse in Ram Ganga sand and continue this activity until the revenge is complete by ten-fold reprisal. This decision was by way of retaliation on the basis of a townwide rumour that a Muslim boy had been murdered on 2nd Oct., 82 in Mahal Sarai Mandi Bans by three Hindu boys and before that also the Hindus had killed Muslims and thrown their corpses in Ram Ganga and the boys of Mohalla Barwala had killed a Mulla near Katghar Pull in broad daylight, a report was lodged at the Police Station by Darbari Singh Sub-Inspector along With constable Sri Surendra Singh at 6.35 P. M. on 2-10-82 against the detenu and six others. The second ground is based on an incident which is alleged to have taken place on 3rd Oct., 82 wherein Puran Chand son of Gori Lal Kumhar is alleged to have been hawking Uplas. He was called by the detenu along with the six other boys who had conspired) on 2nd Oct., 82. Puran Chand was called by these boys in Chhattagali for purchasing Uplas. When Puran Chand went inside the Gali then the detenu caught him from behind and dealt a knife blow on his back saying that one Hindu had fallen in their clutches. The remaining six boys then caught hands and feet of Puran Chand and tried to carry him inside the Gali saying that they would take the revenge by killing a Hindu. The cries of Puran Chand attracted co-hawkers Budha and Leela Dhar who were residents of his own village along with a few others. The detenu and his other six companions then threw Puran in the Maidan and made good their escape. This created panic in the locality and the shops and factories were closed. Men and women began to run towards their homes. This incident created communal tension in the city of Moradabad. A report was lodged at 10.10 A. M. on the same day at Police Station Mughal-pura. The petitioner was arrested on the night between 3rd and 4th Oct., 82. The District Magistrate Moradabad felt satisfied that there was apprehension of the detenu being released on bail and thereafter was likely to act in a manner pre-judicial to the maintenance of public order. He consequently passed the order of detention under Section 3(2) of the National Security Act on 6th Oct. 82. The petitioner's representation dated 18th Oct., 82 was received in the office of the District Magistrate on that very day. It was sent to the Superintendent of police, City, for his comments on that very day and the comments were received on 19th Oct., 82. 20th and 21st Oct., 82 were public holidays so the aforesaid representation along with comments of the District Magistrate were sent to the Government on 23rd Oct., 82. One copy of the representation was sent direct to the Advisory Board on 23rd Oct., 82. 24th Oct., 82 was a public holiday so this representation was delivered to the State Government and Advisory Board on 25th Oct., 82. 26th and 28th were public holidays on account of Dashehra and Moharram and the offices were closed. The joint Secretary and Home Secretary submitted the file along with their comments on 29th Oct., 82 and on 30th Oct., the representation was rejected by the Chief Secretary to Government, The District Magistrate and the Superintendent District Jail, Moradabad were informed by the Radiogram message dated 2nd Nov., 82. The Advisory Board considered the petitioner's case on 10th of Nov., 82 and gave a personal hearing to the petitioner and the State Government on consideration of the report of the Advisory Board confirmed the detention of the petitioner for a period of 12 months vide order dated 23rd Nov., 82. The aforesaid order was communicated to the District Magistrate, Moradabad and the Superintendent District Jail, Moradabad on 23rd Nov., 82 for intimation to the petitioner.

2. learned Counsel for the petitioner has urged that the order of detention is illegal for following reasons:-

1. Because the petitioner being a child below 16 years cannot be drained under Section 3 of the National Security Act and that the District Magistrate has not applied his mind on the fact that being a minor below 16 years of age the petitioner is incapable of acting in any manner prejudicial to the maintenance of public order.

2. Because the incident mentioned in ground No. 1 is a concoction and no reasonable person can believe the facts stated therein.

3. Because the incident mentioned in ground No. 2 does not relate to public order. It even if believed relates to law and order problem.

3. The petitioner's father has admitted in his affidavit that the petitioner's date of birth as recorded in the school records is incorrect. In School records his date of birth has been given as 15th Dec, 69 and accordingly his age comes to about 13 years. The petitioner's father admits in the affidavit that this is an under-estimate and according to him the real age of the petitioner is about 15 years and a few months. He has not given the exact age of the petitioner. The petitioner's father has further admitted that according to Police records the petitioner's age is about 19 years but according to him that is wholly incorrect, He admits that the petitioner appeared before the Advisory Board on 10th of Nov., 82. A photograph of the petitioner has been filed as Annexure to the petition but it is not possible to find out the exact age of the petitioner on the basis of the photograph. The petitioner undoubtedly appears to be a young boy aged in between 16 to 18 years. We find no material on the record to give a definite finding that the petitioner is below 16 years of age. We find no. substance in the contention raised on behalf of the petitioner that he is not capable of acting in any manner prejudicial to the maintenance of public order. As we have observed above the petitioner appears to be a young boy aged between 16 to 18 years. The District Magistrate has deposed that he was fully satisfied that the activity of the petitioner as set out in the grounds of detention that he was a potential threat to the maintenance of public order and that his detention was necessary. The order of detention against the petitioner has thus been passed by the District Magistrate after full application of mind in respect of the alleged activities of the petitioner including the fact that he was a young boy aged about 18 to 19 years. We see no substance in the petitioner's contention that he could not be detained under the National Security Act simply because he happens to be a young boy. The ratio of the decision in Jaya Mala v. Home Secretary, Govt. of Jammu and Kashmir : 1982CriLJ1777 is not that a young boy aged about 16 to 18 years would not be capable of indulging in any activity prejudicial to maintenance of public order. The provisions of U.P. Children Act 1952 also do not in any way bar the detention of a minor under preventive laws. The facts of the instant case are clearly distinguishable from the facts on which the aforesaid ruling is based. Reliance has been placed by the learned Counsel for the petitioner on Section 27 of the Act but the 'proviso to Section 27 provides that a child who is 12 years of age or upward may be committed to prison when the court certifies that he is of so unruly or of a depraved character that he is not fit to be sent to an approved School and that none of the other methods in which the case may legally be dealt with is suitable'. 'In the instant case the petitioner is not below 12 years of age and as discussed above there is no convincing evidence to show that he is even below 16 years of age. The District Magistrate was satisfied from the Police Records that the petitioner was a potential threat to the maintenance of public order and admittedly the police records mentioned his age as 19 years. Hence it cannot be said that the satisfaction of the detaining authority was not based on adequate material or that the case suffers from non-application of mind to the relevant material.'

4. In ground No. 1 it has been stated that on 2nd Oct.. 82 the petitioner along of Bihar : 1966CriLJ608 it has been observed that if on the face an order of detention is in terms of the rule, ordinarily a court is bound to stay its hand and uphold the order, In the instant case the satisfaction of the detaining authority is based on adequate material and we see no illegality in the order of detention so passed against the detenu.

5. It has been mentioned in ground No. 2 that the petitioner along with six others made an attempt to kill Pur an Chand who was hawking uplas and the incident created communal tension in the city of Moradabad. The District Magistrate was satisfied that it was necessary to detain the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order in future. The apprehention that the petitioner was likely to act in future in a manner prejudicial to the maintenance of public order was based on the two incidents mentioned in grounds Nos. 1 and 2. The District Magistrate has deposed that he had no reason to doubt the correctness of the allegations contained in the material placed before him and on the basis of the grounds mentioned above he was fully satisfied that the petitioner was a potential threat to the maintenance of public order and his detention consequently was necessary. The satisfaction of the District Magistrate is based on adequate material. It is by now well settled that if it is found that the order of detention has been based by the detaining authority on materials on record, the court cannot go further and examine whether the material was adequate or not which is the function of an appellate authority or court. In Ram Manohar Lohia v. State

6. In the result we see no substance in this petition. The order of detention is in terms of the rule. The petition, therefore, fails and is dismissed with six others conferred to kill one Hindu daily because there was a rumour in the town that a Muslim boy had been killed in Mandi Bans by three Hindu boys. We see no substance in the contention raised on behalf of the learned Counsel for the petitioner that this incident is unworthy of belief and shall be brushed aside as non-existent. First information report has been lodged promptly at 6.35 P. M. at Police station Mughalpura by Sub-Inspector Darbari Singh and the incident is alleged to have taken place at about 5 P. M. The District Magistrate had no reason to disbelieve the report of the Sub-Inspector and say that such an incident could not occur in the district of Moradabad or that young boys aged between 16 to 18 or 19 years are not capable of entering into any such conspiracy. We, therefore, see no substance in the contention raised by the learned Counsel for the petitioner that the incident mentioned in ground No. 1 should be taken as non-existent because young boys are not capable of entering into any such conspiracy.


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