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Azmad Khan Vs. the District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1985CriLJ223
AppellantAzmad Khan
RespondentThe District Magistrate and anr.
Excerpt:
..... hence, the district authorities headed by the respondent 1 reached the conclusion that action for detention of the detenu became necessary for maintenance of the public order and, therefore, for maintaining the peace, the detenu must be detained under section 3(2) of the national security act 1980. 4. the respondent 1, while passing the order of detention dt/-31-3-1984, has complied with the provisions of national security act 1980 and as such, the detenu was supplied with the relevant documents along with the grounds of detention dt/- 31-3- 1984. 5. the respondent 1 after going through the documents was fully satisfied that action under the national security act 1980 was imminent to maintain the public peace and order. 12. as the allegations have been made against the detenu that he..........annu son of afzal ahmad resident of moudhapara, police station city kotwali, raipur, tahsil and district raipur has been detained under section 3(2) of the national security act, 1980 in the central jail raipur by the order of shri ranbirsingh, district magistrate, raipur, respondent 1 vide, order no. o/d.m/1984, dt. 31st mar., 1984, which is annexed to this petition as annexure-a.2. this petition under article 226 and 227 of the constitution has been filed by one azmad khan s/o ahmad khan, resident of phootatal jablapur who, according to the averments in the petition, is the uncle of the detenu. he prays for issuance of a writ of habeas corpus quashing the order of confirmation of detention passed by the respondent 2, dt. 16-5-1984 contained in annexure- d and ordering the detenu's.....
Judgment:

B.M. Lal, J.

1. The detenu Anwar alias Annu son of Afzal Ahmad resident of Moudhapara, Police Station City Kotwali, Raipur, tahsil and district Raipur has been detained Under Section 3(2) of the National Security Act, 1980 in the Central Jail Raipur by the order of Shri Ranbirsingh, District Magistrate, Raipur, respondent 1 vide, Order No. O/D.M/1984, dt. 31st Mar., 1984, which is annexed to this petition as Annexure-A.

2. This petition under Article 226 and 227 of the Constitution has been filed by one Azmad Khan s/o Ahmad Khan, resident of Phootatal Jablapur who, according to the averments in the petition, is the uncle of the detenu. He prays for issuance of a writ of habeas corpus quashing the order of confirmation of detention passed by the respondent 2, dt. 16-5-1984 contained in Annexure- D and ordering the detenu's release forthwith.

3. In short, according to the various first information reports lodged by various persons in the City Kotwali Raipur, against the detenu, he was found in the habit of terrorising the people of Raipur by his criminal activities. At times, he was also found using a sword and other lethal weapons, As such, within a short span of time i.e. in one year commencing from Jan 1983 to 29-3-84, about 8 complaints have been lodged against the detenu relating to cognizable offences but because of the terror of the detenu, the witnesses of the incidents were not ready to depose the truth before the Court of law. Hence, the district authorities headed by the respondent 1 reached the conclusion that action for detention of the detenu became necessary for maintenance of the public order and, therefore, for maintaining the peace, the detenu must be detained Under Section 3(2) of the National Security Act 1980.

4. The respondent 1, while passing the order of detention dt/-31-3-1984, has complied with the provisions of National Security Act 1980 and as such, the detenu was supplied with the relevant documents along with the grounds of detention dt/- 31-3- 1984.

5. The respondent 1 after going through the documents was fully satisfied that action under the National Security Act 1980 was imminent to maintain the public peace and order. The detention order was communicated to the respondent 2 on 5-4-1984 and the same was approved by the respondent on 11-4-1984 and accordingly, the information was sent to the Government of India on 17-4-1984.

6. Immediately thereafter, the matter was referred to the Advisory Board on 17-4-1984 within the stipulated period of limitation as envisaged Under Section 10 of the National Security Act, 1980. The Advisory Board gave a personal hearing to the detenu and after considering the record of the detenu, sent their opinion to the Home Department Government of Madhya Pradesh, Bhopal which was received by the Home Department on 9-5-1984 and the order of detention was confirmed for one year i.e. up to 1-4-1985. By the order dt/- 10-5-1984, the detenu was communicated the order of confirmation of detention on 16-5-1984 vide, Annex-D.

7. The only point urged by the learned Counsel appearing for the petitioner, Shri P.N. Singh, was that the representation of the detenu, dt/- 3-5-1984, Annex-C made to the respondent 2 through the Superintendent Central Jail Raipur was not at all sent to the Home Department of respondent 2 and as such, it was not considered at any point of time. Therefore, the detenu's valuable constitutional rights guaranteed under Art 22 of the Constitution have been infringed.

8. The framers of our Constitution have safeguarded the interest of the person when has been deprived of the personal liberty. As such, all the requirements which are guaranteed under the Constitution and the relevant law i.e. in the case in hand, the National Security Act, 1980, must be complied with strictly so as to say, every bit of procedure which is of imperative nature must be complied with, before a person can be legally detained.

9. Applying this principle, we have to, decide whether in the instant case, the representation which was submitted to the Jail authority, Raipur for being sent to the Home Department, Govt. of Madhya Pradesh, respondent 2, was ever sent and considered by the respondent 2 so as to fulfil the mandatory requirement of the provision of Article 22(5) of the Constitution.

10. In this connection, the District Magistrate, Raipur, Shri Ranbirsingh and Under Secretary, Home Dept., Shri A.V. Ganguli have filed their affidavits to the effect that they have not received any representation, i.e. Annexure-C. The District Magistrate, Raipur, Shri Ranbirsingh, vide para 6 of his affidavit stated as under :

6. That no representation dt./- 3-5-84 made to Government of Madhya Pradesh from the detenu was received in the office of District Magistrate, Raipur.

However, to the reply of para 3(c) of the petition, the respondents in their return have stated that a representation made to the Advisory Board by the detenu through jail authorities on 3-5-1984 was received in the office of the Collectorate on 3-5-1984 but it was wrongly marked to the section which does not deal with this matter. Subsequently, it was re-directed and was received in the correct section of the office on 17-5-1984. But by this time, the meeting of the Advisory Board was already over on 7-5-1984. In their reply, the respondents have regretted for the alleged lapse on their part.

11. The respondents have not taken any care to file any affidavit of jail authorities of Raipur to this effect that they had neither received any representation nor sent the same to the respondents to rebut the averments made in para 3(c) of the petition. On the other hand, the respondents have very boldly filed their affidavits denying the receipt of the representation dt/- 3-5-1984. But a perusal of the affidavits and the reply in the return in which in so many words the respondents have regretted on this count, shows that the respondents have no respect for the truth.

12. As the allegations have been made against the detenu that he was in the habit of terrorising the people, it appears by the conduct of the respondent 1 that either the entire office of the Collectorate worked under the terror of the detenu with the result that the office of the Collectorate wasted time in shunting the respondent's representation from section to section, or for obvious reason or reasons, best known to the respondent No. 1 he failed to forward the representation to the respondent 2 to fulfil the legal obligation of Article 22(5) of the Constitution.

13. Be as it may it is really a matter of regret that in such a serious matter as it appears from the record, by committing such patent mistake by the senior district head, they allow to open the avenues for the culprits to become free from the clutches of law. The instant case is one of them.

14. We must not forget that the Courts of law are meant to extend administration of justice in accordance with law enacted by the legislative bodies but if, in such type of case, the real culprit is acquitted or released on account of legal flaw committed by the executive or administrative heads, the citizens talk about the Court's Judgment but they forget that acquittal in such cases is based on the laches and the incompetence of the administrator or executive district heads.

15. Article 22(5) of the Constitution lays a mandatory obligation on the detaining authority to afford the detenu an opportunity of making a representation against the order and it must be considered in its right perspective keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned. Infringement of the constitutional right invalidates the detention order. The representation to the Government carries, with it impliedly a right that it must be disposed of as early as possible and any delay in this respect violates the constitutional right guaranteed under Article 22(5) of the Constitution.

16. In the instant case, the detenu has been deprived of his constitutional right as stated above and, therefore, we are left with no option but to order for release of the detenu.

17. We, therefore, quash the order dt/- 16-5-1984, contained in Annexure-D, passed by the respondent 2 and direct that the detenu Anwar alias Annu s/o Afzal Ahmad be set at liberty forthwith. The petition is allowed. No order as to costs of this petition.


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