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Case Number

W.P No. 1233 of 1996

Attorney(S)

Z.A Khan
G. Desai, Govt. Advocate

Judges

R.D Shukla
J.G Chitre, JJ.

Acts

provisions of ss. 8/10 of m. P. Agricultural cattle preservation act 1959.

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Smart Summary

Structured Summary of Opinion: Detention under National Security Act (Shamim)

Factual and Procedural Background

The petitioner challenged the correctness, propriety and legality of an order dated 24-7-96 (case no. 12/96/NSA) detaining his younger brother, Shamim, under the National Security Act, 1980 (NSA). The detention order, dated 24-7-96, was confirmed by the State on 29-8-96 after approval by the advisory board and provided for detention for a period of 12 months commencing 24-7-96.

The respondents alleged that on 13 and 14 July 1996 police raided Shamim's residence in village Jhokar and found slaughtered portions of cows and sheep, skins of 76 killed cows, and 16 live cows that were alleged to be intended for slaughtering at night. The respondents asserted that these activities had seriously annoyed members of the Hindu community in the locality, created tension likely to cause a communal outbreak and made people afraid to lodge complaints against the detenu. On the basis of a representation dated 21-7-96 by the Superintendent of Police, Shajapur, detention proceedings were initiated.

The record shows the district magistrate, Shajapur, passed the detention order on 24-7-96 and the detenu was detained on 25-7-96. Documents before the court indicate that Shamim had been in detention since 14-7-96 in relation to alleged offences punishable under sections 8 and 10 of the M.P. Agricultural Cattle Preservation Act, 1959, and that the detention order under NSA was served on him on 25-7-96.

Legal Issues Presented

Whether the subjective "satisfaction" of the detaining authority was legally valid where the detenu was already in custody at the time the detention order was made and/or served.
Whether there were sufficient grounds in the material before the detaining authority to conclude that the presence of the detenu in society posed a danger to public order and would likely provoke communal violence.
Whether the detention order adequately recorded the detaining authority's application of mind to relevant material — in particular, that the detenu was already in jail and whether there was a real possibility of his release on bail followed by repetition of the alleged illegal activities.

Arguments of the Parties

Petitioner's Arguments (counsel Shri Z. A. Khan)

The detaining authority's "satisfaction" was not legal because when the order was served the detenu was already in jail; therefore the authority could not have had the requisite subjective awareness to form the satisfaction lawfully.
There were no sufficient grounds to conclude that the presence of the detenu in society endangered public peace and order.
Relied on authorities: Ajay v. State of M.P. (1990), Girdhar Nagar v. State of M.P. (1991) and Surya Prakash Sharma v. State of U.P. (1995).

Respondent's Arguments (State; counsel Shri G. Desai)

The respondents relied on the reasoning in Smt. Bimla Rani v. Union of India (1989) 4 SCC 509 to justify detention where an incident creates communal tension and the authorities apprehend a communal riot.
The respondents advanced factual allegations regarding extensive cow slaughter and possession of skins and live cattle, and contended these facts justified preventive detention to maintain public peace and order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Matter
Ajay v. State of M.P., 1990 (39) JLJ 82 : (1990 Cri LJ 1738) (Full Bench of High Court)	Held that if the detaining authority was not aware that the detenu was in confinement on the date of the detention order, the order is vitiated because the authority's jurisdictional competence to pass the order is affected.	The court relied on this principle to emphasize that the detaining authority's awareness of the detenu's custody is a jurisdictional requirement and that lack of such awareness vitiates the order. The present order did not show consideration of the detenu's existing custody.
Girdhar Nagar v. State of M.P., 1991 Cri LJ 2477 (Division Bench of this Court)	Held that detention formed on the mistaken backdrop of communal riots (where such situation did not exist) cannot be sustained.	The court noted that subjective satisfaction formed on non-existent communal conditions is impermissible; it used this principle to assess whether the alleged communal tension in the present case was properly established and considered.
Surya Prakash Sharma v. State of U.P., 1995 Cri LJ 2657 (Supreme Court)	Where the detaining authority knew the detenu was already in custody at time of the detention order but there were no cogent materials showing the detenu would likely commit serious offences if released, the detention is liable to be quashed. Also, the detaining authority must be aware of custody and have compelling reasons to justify detention despite existing custody.	The court applied this principle to conclude that if the authority had a legal satisfaction it should have recorded awareness of custody and cogent reasons why detention under NSA was necessary despite that custody. The present order lacked such articulation.
Smt. Bimla Rani v. Union of India, (1989) 4 SCC 509 (Supreme Court)	Held that an incident creating communal tension may itself justify detention to prevent public disorder even without antecedent bad acts, but the detaining authority must have and record a lawful subjective satisfaction showing it applied its mind to the material.	The court accepted the principle that communal tension can justify detention, but emphasized Bimla Rani's additional requirement that the satisfaction must be legally sound, subjective yet properly recorded. The present detention order did not meet that requirement because it failed to show that the authority considered the detenu's existing custody or the possibility of bail and consequent risk.

Court's Reasoning and Analysis

The court proceeded by first establishing the timeline: the district magistrate passed the NSA detention order on 24-7-96; the detenu was detained on 25-7-96; the State approved the order on 31-7-96. Documentary evidence showed the detenu had been in custody since 14-7-96 in respect of offences allegedly under sections 8 and 10 of the M.P. Agricultural Cattle Preservation Act, 1959, and that the NSA order was served on 25-7-96.

The court reviewed binding and persuasive authorities. It noted Ajay v. State of M.P. to establish that a detaining authority's unawareness of a detenu's confinement at the time of making an order vitiates jurisdiction. It noted Girdhar Nagar for the proposition that detention founded upon a non-existent communal backdrop cannot stand. It relied on Surya Prakash Sharma for the proposition that where the detaining authority knows the detenu is already in custody, there must be cogent reasons to justify a further preventive detention; otherwise the order is liable to be quashed. The court also examined Bimla Rani which permits detention where an incident creates communal tension but stresses that the authority must have applied its mind and that the subjective satisfaction must be legally sound and recorded.

Applying those principles, the court found the impugned order deficient in key respects set out by the precedents:

The detention order did not show that the district magistrate considered that the detenu was already in Shajapur district jail on 24-7-96, or that he was attempting to secure release on bail in relation to the agricultural cattle preservation offence.
The order did not state any basis for concluding that if released on bail the detenu would certainly or probably resume the alleged slaughtering activities which would provoke communal violence. The order lacked particulars addressing the likelihood of recurrence after release.
Although Bimla Rani permits preventive detention where communal tension exists, that case also requires the detaining authority's satisfaction to be legally sound and recorded. The court found the subjective satisfaction in the present order was not sufficiently expressed in the order or supporting record.
Given the possibility that the detenu might lawfully abandon the alleged activities upon release (or otherwise not repeat them), the authority had not demonstrated compelling reasons to detain under NSA despite the detenu's existing custody under a separate prosecution.

On that basis, the court concluded the detaining authority had not manifested the requisite legal satisfaction or applied its mind adequately to the relevant facts and materials, rendering the detention order bad in law.

The court nevertheless recorded that the detaining authority remains competent to detain in future if good grounds are shown and a reasonable conclusion can be drawn that the detenu's activities are likely to provoke communal riot and endanger peace and order.

Holding and Implications

Core Ruling: The court quashed the detention order dated 24-7-96 passed by the District Magistrate, Shajapur, detaining Shamim under the National Security Act, 1980, and allowed the petition. The detenu was ordered to be set at liberty forthwith.

Consequences and implications:

Direct effect: The specific NSA detention order against Shamim was declared invalid and the detenu was to be released immediately.
Scope for future action: The court made clear that the detaining authority is not precluded from taking appropriate preventive action in future if it can demonstrate good grounds and reach a reasonable conclusion that the detenu's illegal activities are likely to cause communal riot and endanger public peace and order.
Precedential effect: The court's decision rests on application of existing precedents and the statutory requirements for lawful subjective satisfaction; the opinion addresses proper application of those authorities to the facts and does not purport to lay down a novel legal principle beyond the principles applied from the cited cases.

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Pappu Shafiuddin Qureshi v. State Of M.P And Another

(1) Speaking for the bench. The petitioner is hereby assailing correctness, propriety and legality of the order passed by the respondent more particularly by resp. No. 2, dtd. 24 - 7 - 96, detaining his younger brother shamim under national security act 1980 (hereinunder referred to as nasa for brief). The detention order has been passed in case no. 12/96/nsa on 24 - 7 - 96 and that has been confirmed on 29 - 8 - 96 by the state government after approval of the advisory board. By the said order shamim has been detained for a period of 12 months, commencing from 24 - 7 - 96.

(2) Few facts need to be stated for understanding the matter. It has been alleged by the respondents that on 13th and 14th july 96 the officers of police thana, maxi raided the residential house of detenu shamim at village jhokar and during that raid they found that detenue was slaughtering sheeps and cows. The raiding party found slaughtered portion of the cows with flesh, the skins of 76 killed cows, 16 alive cows. The respondents alleged that those 16 cows which were found alive were for slaughtering which used to be in the night. The respondents felt that on account of such activities of detenu the members of public belonging to hindu religion were seriously annoyed and there was tension prevalent in the locality which was likely to cause communal outbreak dangering the maintenance of public peace and order. The respondents alleged that the members of public form that locality were afraid to detenu and, therefore, none was daring to report complaint against detenu in the police station. Thus, on this back ground the respondents felt the necessity of detaining the detenu and, therefore, relying on representation of s. P. Shajapur dtd. 21 - 7 - 96, the action of detention was taken.

(3) So far as present petition is concerned shri z. A. Khan has been heard for the detenu and shri g. Desai, g. A. Has been heard for the respondents - state.

(4) Shri z. A. Khan, counsel for the petitioner placed reliance on following judgments : (i) 1990 (39) jlj 82 : (1990 cri lj 1738) ajay v. State of m. P. (ii) 1991 cri lj 2477 girdhar nagar v. State of m. P. (iii) 1995 cr lj 2657 surya prakash sharma v. State of m. P.

(5) The main contention of shri z. A. Khan is that the 'satisfaction' of the detaining authority could not be treated to be legal because when the order was served on the detenu, he was in jail. He further argued that there was no sufficient grounds for coming to the conclusion that there was danger to public peace and order by presence of the petitioner in the society. Shri desai, g. A. For the respondents placed reliance on the judgment of supreme court in the matter of smt. Bimla rani v. Union of india reported (1989) 4 scc 509.

(6) In the matter of ajay v. State of m. P. (supra) the full bench of this high court has held that (at page 1740) (of cri lj) -

"law, according to us, appears to be well settled that when detaining authority's subjective satisfaction is challenged on the ground of his non - awareness of the detenu being held in confinement on the date of detention order, the order is vitiated on the ground alone as jurisdictional competence of the authority to pass the order is vitiated."

(7) It has been held by the division bench of this court in the matter of girdhar nagar v. State of m. P. (supra) that -

"the detaining authority appears to have formed the subjective satisfaction in the backdrop of communal riots, which situation is non - existence. The detention order can not be sustained."

(8) The supreme court held in the matter of surya prakash sharma v. State of u. P. (supra) :"

Where the detaining authority was though aware of the fact that the detenu was already in custody at the time of passing of detention order but there were no cogent material on the basis of which the detaining authority was satisfied that the detenu might indulge in serious offence causing threat in public order, if he released on bail, the order of detention would be liable to be quashed. "

(9) In the matter of smt. Bimla rani v. Union of india (supra) the supreme court held that -

"when an incident was such that it created communal tension and the authorities were apprehensive of the breaking of a communal riot, such incident in itself may be sufficient and may afford justification for the satisfaction of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to public order even though there are no antecedent acts of similar nature or past history of commission of crime by the detenu."

(10) In the present matter, the record shows that the detention order was passed on 24 - 7 - 96 by the district magistrate, shajapur and detenu was detained on 25 - 7 - 96. The said order was approved on 31 - 7 - 96 by the state.

(11) It has been argued on behalf of petitioner by his counsel that when said detention order was served on detenu, he was already in jail for an offence which is punishable under provisions of ss. 8/10 of the act m. P. Agricultural cattle preservation act 1959 and he pointed out the order of this court by which detenu was released on bail in the matter of that crime. The documents produced on behalf of respondents show that the detention order was served on him on 25 - 7 - 96 vide annx. R/1. It means that when detention order was served on the detenu he was already in detention in respect of a crime which has been alleged against him, punishable under provisions of ss. 8/10 of m. P. Agricultural cattle preservation act 1959. Not only that but he was in detention for that crime right from 14 - 7 - 96.

(12) In view of the observations of the supreme court in the matter of smt. Bimla rani v. Union of india (supra) 'when an incident was such that it created communal tension and the authorities were apprehensive of the breaking of a communal riot, it is sufficient to enable the authorities to take appropriate action for detention of such person in view of the provisions of nasa. The authorities would be justified in taking appropriate steps towards detention of such persons for the purpose of preventing the breach of peace and for maintaining the order. However, it is necessary for the authorities to have 'satisfaction' legally that presence of such person in the society would by prejudicial to public order and for that it is utmost necessary for the authority to show that it had applied its mind at the time of perusing the material placed before it. It is true that the 'satisfaction' should be subjective but it should be a legal one and should not be lacking in any relevant important aspect. That subjective satisfaction should be eloquently expressed by the order which has been passed by the authority and the record connected with the matter.

(13) In the present matter the order of the authority (district magistrate, shajapur) does not show that he had taken into consideration that the detenu was in shajapur district jail on 24 - 7 - 96 and was trying to get released on bail. It has not been mentioned in the said order or record connected with it that the court had passed the order by which on paper detenu was released on bail in the matter of a crime which was registeredagainst him in view of the provisions of ss. 8/10 of m. P. Agricultural cattle preservation act, 1959. It has not been mentioned any wherein the impugned order that after getting released on bail the detenu would be again engaging himself in cow slaughtering which would be detrimental to peace and order of the locality where he resides or does such activities. In the matter of smt. Bimla rani v. Union of india (supra) in paragraphs 2 and 3, the supreme court pointed out that in the said matter 'the detention order was specifying that the detenu was in jail and was trying to get released on bail and there was every possibility of detenu getting released on bail. In paragraph 3 it has been pointed out that 'it was apparent from the grounds of detention that a crime was registered against detenu u/s. 307, ipc and he was arrested and detained in jail. '

(14) In the present case the detention order is not any way detailed answering the situation prevelent, so far as detenu is concerned and his detention already in the jail was concerned.

(15) In the matter of surya prakash sharma v. State of u. P. (supra) , the supreme court held that

"the detaining authority while passing the detention order should be aware of the fact that detenu is already in detention and there are compelling reasons to justify such detention despite the fact that the detenu is already in detention."

(16) So far as the present matter is concerned had there been a legal 'satisfaction' of the detaining authority, the detention order would have specified that the detenu was facing a prosecution for the offence punishable under ss. 8/10 of m. P. Agricultural cattle preservation act 1959 and he was likely to be released on bail and after getting released on bail he was sure to indulge himself in the same activities of cow slaughtering which was likely to provoke the neighbouring hindu persons, causing communal riot, endangering the public peace and order. The present detention order is not speaking any word about this. Further more, it is to be noted that there was every possibility of detenu abandoning his activities of cow slaughtering (which was likely to provoke the neighbouring hindu persons and out breaking communal riot). The detenu may after releasing, follow the legal way and would restrain himself from such activities. In that case how there could be possibility of danger to public peace and order endangering a communal riot.

(17) Thus, summing up all we come to the conclusion that present detention order which has been assailed by this petition, is bad in law and detenu deserves to be released forthwith. However, we make it clear that the detaining authority is competent to take appropriate steps in future if there are good grounds for the purpose of coming to reasonable conclusion that by illegal activities of the detenu there is likelihood of communal riot endangering the peace and order of the society/locality.

(18) Thus, order passed by the district magistrate, shajapur dt. 24 - 7 - 96 detaining the detenu shamim is hereby quashed. The detenu be set a liberty. Petition allowed.

Pappu Shafiuddin Qureshi v. State Of M.P And Another

Structured Summary of Opinion: Detention under National Security Act (Shamim)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (counsel Shri Z. A. Khan)

Respondent's Arguments (State; counsel Shri G. Desai)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pappu Shafiuddin Qureshi v. State Of M.P And Another

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