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Masroor Vs. District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1984CriLJ1505
AppellantMasroor
RespondentDistrict Magistrate and anr.
Excerpt:
.....that there was every possibility that the petitioner would move his bail application when the district magistrate would be out of district headquarters so as to enable the petitioner to avoid the service of the detention order which might be passed against him that the detaining authority felt satisfied that it was necessary to pass the impugned detention order. the argument is that unless and until identification parade of the petitioner as well as the identification proceedings regarding the looted property were held out so as to afford some evidence about the participation of the detenu in those dacoities there could not be any material on the basis of which the detaining authority could form his subjective satisfaction against the detenu. this court has only to be satisfied that..........from the application, affidavit of the petitioner and the counter affidavits of shri vijai sharma, district magistrate, moradabad and shri jagdish narain yadav, u.d.a. confidential section vi, u.p. secretariat lucknow are as follows:on 7.7.83, s.o.p.s. majhola, district moradabad through s.s.p. moradabad submitted a report to the district magistrate to the effect that in the night of 28.5.83 within p.s. mundha pande, government roadways bus was looted by armed dacoits. similarly in the night of 12.6.83 another u.p. roadways bus was looted within p.s. majhola by the armed dacoits. f.i. rs. of both the incidents were lodged at the police stations concerned, copies of which were submitted along with the said report. the said f.i. rs. did not mention the names of the dacoits. it was.....
Judgment:

I.P. Singh, J.

1. Masroor alias Kalia who has been detained Under Section 3(2) of the National Security Act (65 of 1980)(hereinafter referred to as the Act) by order of District Magistrate, Moradabad of 27.8.83, has preferred this writ petition under Article 226 of the Constitution, challenging the validity of the said order.

The brief facts appearing from the application, affidavit of the petitioner and the counter affidavits of Shri Vijai Sharma, District Magistrate, Moradabad and Shri Jagdish Narain Yadav, U.D.A. Confidential Section VI, U.P. Secretariat Lucknow are as follows:

On 7.7.83, S.O.P.S. Majhola, District Moradabad through S.S.P. Moradabad submitted a report to the District Magistrate to the effect that in the night of 28.5.83 within P.S. Mundha Pande, Government Roadways Bus was looted by armed dacoits. Similarly in the night of 12.6.83 another U.P. Roadways bus was looted within P.S. Majhola by the armed dacoits. F.I. Rs. of both the incidents were lodged at the police stations concerned, copies of which were submitted along with the said report. The said F.I. Rs. did not mention the names of the dacoits. It was mentioned in the said report that the abovementioned highway robberies had created a feeling of fear and terror in the minds of the public and they were hesitant to travel in the said buses even during daytime and that the said activities of the dacoits were prejudicial to the maintenance of public order.

2. It was further reported that on 15.6.83 accused Kaisal Malik was arrested in connection with the said dacoities. His interrogation revealed the complicity of seven other persons including the petitioner in the said dacoities. This resulted in the arrest of the petitioner on 3.7.83.

3. The said report of the S.O. was sent by the S.S.P., Moradabad to the District Magistrate Moradabad recommending detention of the petitioner under the Act, mentioning that the petitioner was in jail. The District Magistrate did not feel the necessity of passing the detention order, inasmuch as the petitioner was confined in jail and was not in a position to indulge in similar activities prejudicial to the maintenance of the public order. Nonetheless he received a report through S.D. Majhola dated 25.8.83 that the said S.O. had received information through an informer that bail application of Masroor petitioner will be moved when the District Magistrate will be out of District headquarters so that after getting the bail the detention order may not be served on the petitioner. Feeling satisfied that the petitioner could succeed in getting the bail the District Magistrate on 27.8.83 passed the impugned detention order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order.

4. The detention order was served on the petitioner on 27.8.83 in District Jail, Moradabad, Copies of the relevant documents were also supplied, to him on that very day. The representation of the petitioner dt. 13.9.83 was received by the District Magistrate on that very date. The District Magistrate sent that representation on 13.9.83, through special messenger to the Advisory Board which was received there on 16.9.83. The representations of the petitioner was also sent by the District Magistrate to the police authorities for their comments on that very day. This comment and report was submitted on 14.9.83 and received by District Magistrate on 15.9.83. The District Magistrate then forwarded the said representation of the petitioner with his comments to the State Government which was received there on 17.9.83, which was duly considered by the State Government and finally rejected on 22.9.83. The intimation of the rejection of the representation was communicated to the petitioner on 23.9.83 which he received on 30.9.83. Herein it may also be mentioned that the detention order dt. 27.8.83 was also communicated to the State Government which approved the same on 6.9.83 (within 12 days) as required Under Section 3(4) of the Act. The State Government also reported the detention of the petitioner to the Central Government on 6.9.83 as required Under Section 3(5) of the Act.

5. The impugned order is challenged on the ground that the activities mentioned in the grounds of detention order pertain to a problem of law and order and not to public order and as such the detaining authority was not competent to pass the detention order under the Act. It is well settled that activity of the nature of dacoity especially when it is a highway dacoity and looting of the bus etc loses its mischief as a problem of law and order only but assumes the problem of public order inasmuch as it has a tendency to create the sense of fear and terror in the society at large. The even tempo of the life of the society is disturbed thereby. This is, therefore, certainly a matter of disturbance of public order and the detention order which aims at preventing the detent from acting in any manner prejudicial to the maintenance of public order is certainly within the scope of the Act. The above argument, therefore, has no force.

6. The next point raised by the learned Counsel for the petitioner is that the copies of all the documents on the basis of which the detaining authority had formed his subjective satisfaction to detain the detenu had not been supplied to him which was in violation to Article 22(5) of the Constitution inasmuch as the detenu had been deprived of making an effective representation against the detention order. It is admitted that the grounds of detention served upon the detenu were accompanied by the reports of the S.S.P. and S.O. concerned submitted through the S.P.S. and the copies of the two F.I. Rs. which related to the two incidents in question which formed the subject matter of the activity of the detenu were supplied to him. The only grievance is that the copy of the report of the S.O. concerned dt. 25.8.83 in which the S.O. had reported that he had received a credible information that the bail application would be moved by the petitioner at such time when the District Magistrate, i.e. the detaining authority would be out of station so as to enable him to defeat the service of the detention order on him was not supplied to him. This plea is taken on the basis of the fact vouched in the counter affidavit by the District Magistrate that this was the last report which necessitated the passing of the impugned detention order dt. 27.8.83. In the background of the activities of the petitioner already brought to his notice by the S.S.P. on 19.7.83. However, we do not find any force in this contention as well. It is admitted fact that the detenu was already in jail on the date the said order was passed against him. The activities of the petitioner were reported to the detaining authority on 19.7.83 and as the detenu was in jail at that time it might as well be that the detaining authority might not have considered it necessary to pass the detention order, hoping that the petitioner being in jail was automatically prevented from acting in any manner prejudicial to the maintenance of public order. The period of almost five weeks went by and it was only when the S.O. concerned reported on 25.8.83 that there was every possibility that the petitioner would move his bail application when the District Magistrate would be out of district headquarters so as to enable the petitioner to avoid the service of the detention order which might be passed against him that the detaining authority felt satisfied that it was necessary to pass the impugned detention order. It cannot be said that the said report of the S.O. dt. 25.8.83 related to the prejudicial activities of the detenu. It therefore did not form ground for the subjective satisfaction of the detaining authority to pass the detention order. His subjective satisfaction was based on the prejudicial activities of the petitioner which had already been reported to him by the S.S.P. on 19.7.83. In this background it was not necessary for the detaining authority to supply the copy of the said I report of the S.O. dt. 25.8.83 to the detenu. The above argument, therefore, in our opinion, has no force.

7. It is further argued that the impugned detention order had been passed on such ground which did not exist. The argument is that mere recording of the F.I. Rs. that two buses had been looted at two different places on two different nights on the highway did not point out that the petitioner was involved in those dacoities. Both the F.I. Rs. did not contain the name of the petitioner as one of the dacoits. The argument is that unless and until identification parade of the petitioner as well as the identification proceedings regarding the looted property were held out so as to afford some evidence about the participation of the detenu in those dacoities there could not be any material on the basis of which the detaining authority could form his subjective satisfaction against the detenu. However, we do not find any force in this contention as such evidence in the form of the result of identification parade of the accused or the identification proceedings of the property may be relevant as a cogent piece of evidence to be considered in a criminal trial but that course is not open in this writ jurisdiction. There was material before the detaining authority in the shape of the report of the S.O. forwarded by the S.S.P. to him that the subsequent investigation had revealed the participation of the detenu as one of the accused involved in those two highway dacoities. On the basis of that material the District Magistrate passed the detention order. This Court is not concerned with the truth or sufficiency of the material on the basis of which the detaining authority formed his subjective satisfaction. This Court has only to be satisfied that there did exist some material before the detaining authority to enable him to form his subjective satisfaction. In our opinion the said report of the S.O. forwarded by the S.S.P. to the District Magistrate provided the so called material on the basis of which he was able to form his subjective satisfaction, calling for the necessity to pass the detention order I against the petitioner.

8. Connected with the above argument is the submission of the learned Counsel for the petitioner that the copy of the statement of the co-accused on the basis of which complicity of the detenu in the said two bus dacoities was assumed, was also not supplied to the detenu. We do not agree with the above argument that that copy must have been supplied to the detenu. The reason being that said statement was not before the District Magistrate when he passed the detention order. The perusal of the record of District Magistrate confirms it. However, the fact that the complicity of the detenu in the said two bus dacoities came to light through the statement of the co-accused, was mentioned in the report of the S.O. concerned forwarded by the S.S.P. to the detaining authority. This fact was, therefore, before the detaining authority contained in the said report when he passed the detention order. The copy of the said report having been supplied to the detenu it was sufficient to bring to his notice that the statement of the co-accused involving him in the two bus dacoities was there.

9. Here it may be pointed out that the fact that the detenu was in jail at the time the detention order was passed, is not mentioned in the detention order itself but the counter affidavit of the District Magistrate vouches that he was aware of the said fact at the time of passing the detention order and it was only after the receipt of the report of the S.O. concerned that there was every likelihood of the detenu moving out of jail on bail when the detaining authority would be out of district headquarters. This indicates that the detaining authority was aware of the fact that the detenu was in jail and as already pointed out above the said report had necessitated the detaining authority to pass the detention order in question. The above point too, therefore, has no force.

10. In view of the above discussion, we see no force in this writ petition. It is hereby dismissed.


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