Habeas Corpus Writ Petition Nos. 35555 and 44741 of 2002. Case: 1. Km. Indu Mishra, 2. Meharban Vs 1. Union of India (UOI) and Ors., [Alongwith Habeas Corpus Writ Petition Nos. 38506, 38508 and 38509 of 2002], 2. State of U.P. and Ors.. High Court of Allahabad (India)

Case NumberHabeas Corpus Writ Petition Nos. 35555 and 44741 of 2002
CounselFor Petitioners: Prem Prakash, Adv. and For Respondent: A.G.A., A.S.G.I. B.N. Singh, C.S.C, D. S. Lal and S.C. Srivastava, Adv.
JudgesSunil Ambwani, Imtiyaz Murtaza and Kashi Nath Pandey, JJ.
IssueNational Security Act, 1980 - Sections 3(2), 3(3), 3(4), 8(1), 10, 14; General Clauses Act, 1987 - Section 21; Prevention of Dangerous Activities of Boottleggers, Drugg Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982; Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1950 - ...
Citation2011 CriLJ 4499
Judgement DateNovember 26, 2010
CourtHigh Court of Allahabad (India)

Judgment:

  1. A Division Bench of this Court noticed a conflict of opinion in the judgments of the Court delivered in Ram Lal v. State of U.P. 2000 (41) ACC 1715 and in Idrish v. Secretary, Ministry of Home Affairs, Government of India, New Delhi and Ors. 2002 (44) ACC 1117 and has referred the following questions to be considered by a Larger Bench:

    (1) Whether the District Magistrate/Detaining Authority acting under Section 3 (2) of the National Security Act is required to communicate to the person detained, regarding right of making representation to him in view of Apex Court's decision in Kamlesh Kumar's case (supra)? If so, non communication would infringe fundamental right guaranteed under Article 22 (5) of the Constitution?

    (2) If the answer of question No. 1 is in the affirmative, whether there is obligation on the District Magistrate (Detaining Authority) to communicate the detenu's right within which the detenu is required to make representation to him i.e. before approval of the detention order by the State Government or before 12 days? If so non communication of above period will render the detention order invalid?

    (3) Whether the District Magistrate/Detaining Authority has power to revoke or modify the detention order passed by him after its approval by the State Government?

    (4) Whether there is obligation on the District Magistrate/Detaining Authority to consider and decide the representation of the detenu even after approval of the detention order by the State Government.

  2. The maximum period of detention of the petitioners has long expired and thus the questions raised before us so far as the petitioners are concerned have become academic in nature. We are, however, deciding them as these questions may arise, in the habeas corpus petitions to be decided in future.

  3. The relevant facts giving rise to the questions posed before us, as narrated by the Division Bench in referring the order dated 22.4.2003 are as follows:

    The grounds of detention served upon each of the petitioner separately along with order of detention common in all the writ petitions, stated that on the night of 22/23-1-2002 at about 10.10 p.m. Dr. Deepak Agrawal, Child Specialist was going to his residence from his clinic situate at Mohalla Unchamandi, P.S. Muthiganj, Allahabad, along with his security guard Kamlesh Narain Mishra, in his Maruti Zen Car. The petitioner Ashok Mishra along with his associates Ashok Singh, Dinesh Tewari @ Pappu Shooter, Sandeep Singh, Amit @ Brijesh Singh and others in order to carry out their criminal conspiracy, kidnapped him (Dr. Deepak Agarwal) along with his Maruti Car at about 10.30 p.m. for ransom. The petitioner Ashok Mishra and his associates kept kidnappees Dr. Agrawal and his Security Guard Kamlesh Narain Mishra, at the official residence of petitioner Km. Indu Mishra (Constable) at Police Lines Sultanpur. Her associates demanded Rs. 50 lacs as ransom from the family members of Dr. Agrawal and his relatives on telephone. On the report of Smt. Savita Agrawal, wife of Dr. Deepak Agarwal a case at crime No. 18 of 2002 was registered under Section 364 IPC at 3.10 a.m. on 23.1.2002 at P.S. Muthiganj, Allahabad. The matter was negotiated at Rs. 30,00,000/-, on payment of Rs. 15,10,000/- and promise to pay remaining Rs. 14,90,000/- later on. Dr. Agarwal and his Security Guard were released on the night of 26/27-10-2002 at 11.00 p.m. on Sultanpur - Pratapgarh road. Shocks, belt and buckle of Security Guard Kamlesh Narain Mishra were recovered from official residence of petitioner Km. Indu Mishra. On 3.2.2002 on the pointing out of petitioner Indu Mishra, a sum of Rs. One lac, share of ransom money, was recovered by the Investigating Officer. A sum of Rs. 8,800/-, share of ransom money, was recovered from petitioner Jagdamba Prasad Pande and he told that he had spent Rs. 1200/-.

    During investigation of above case evidence was collected that telephone (mobile) No. 9838095939 belonged to Dinesh Tewari @ Pappu Shooter and telephone No. 9838054138 belonged to petitioner Ashok Mishra who talked on said phones after kidnapping and before release of Dr. Agarwal on telephone (mobile) No. 9838067646 purchased from Allahabad, communication was sent to relatives of Dr. Agarwal on mobile phone No. 9038057095 and amount of ransom was settled. Petitioner Indu Mishra talked with petitioner Ashok Mishra from telephone No. 27348 on mobile phone No. 9838054138, time and again.

    Dr. Agarwal recognized the petitioner Indu Mishra and her associates Dinesh Tewari @ Pappu Shooter, Sandeep Singh @ Guddu @ Dabboo, Amit @ Brijesh Singh. He also disclosed that threats were extended to him by the petitioners to kill him in case he gave evidence against them. The dare devil incident of kidnapping of a doctor for ransom was committed during Assembly Election period. On account of said incident a sense of terror and fear prevailed in doctors, traders and respectable citizens of Allahabad. The doctors resorted to the strike due to which public order was adversely affected. The news of kidnapping was published in daily newspapers on various dates which again affected public order.

    The petitioners were detained in Central Jail, Naini and attempt was being made by pairokars of the petitioners to get them released on bail. There was real possibility of petitioners being released on bail and on release on bail of indulging them in similar activities prejudicial to the maintenance of public order.

    On account of above the detaining authority was satisfied that detention of petitioner under the Act was essential for preventing the petitioners from indulging in activities prejudicial to maintenance of public order.

    Each of the petitioner was separately communicated that in case he wanted to make representation against detention order before detaining authority, he may do so, at the earliest through jail authorities where they were detained. In case representation was received after approval of detention order by the State Government then the detaining authority would not consider it.

    Each of the petitioner was further informed that in case he wanted to make representation to State Government he could do so addressing to Home Secretary, Government of U.P. through jail authority. They were further informed that detention order would be referred to the Advisory Board within 3 weeks for approval under Section 10 of the Act and in case petitioners wanted to send representation to the Advisory Board they could do so. Representation received after approval by Advisory Board would not be considered.

    It was again informed to each of the petitioner that in case he wanted to make representation to His Excellency President of India or Central Government, he could do so addressing to Secretary, Home and Internal Security Department, Government of India, North Block, New Delhi though jail authorities.

  4. We have heard Shri Prem Prakash Yadav, learned Counsel appearing for the petitioner. Shri Sudhir Mehrotra, learned Addl. Government Advocate appears for the State.

  5. Article 22 (4) to (7) of the Constitution of India provides:

    (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-

    (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

    Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or

    (b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7).

    (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

    (6) Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

    (7) Parliament may by law prescribe-

    (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4);

    (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

    (c) the procedure to be followed by an Advisory Board in an inquiry under subclause (a) of Clause (4).

  6. Section 3 (2) of the National Security Act, 1980 authorizes the Central or State Government to pass an order of detention:

    3 (2). The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

  7. Section 3 (3) of the Act authorizes District Magistrate or Commissioner of Police to exercise power under Section 3 (2)

    3 (3). If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct...

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