Shri Rajumar Singh Kushwaha, Advocate, for petitioner. Shri Vivek Khedkar, Government Advocate, for the respondent/State.

Heard.

2. Petitioner has filed this writ petition challenging the order of detention, Annexure P-l dated 22nd April, 2009.

3. The Superintendent of Police submitted a memorandum dated 2-4-2009 to the District Magistrate, Morena for detention of the petitioner under the provisions of National Security Act, 1980 (hereinafter called as the. 'Act of 1980'). It has been mentioned by the Superintendent of Police in the memorandum that the petitioner was a notorious criminal and he had been involved in number of criminal offences. Due to the criminal activities of the petitioner, the persons were not willing to come forward to record their evidence in criminal cases and due to the activities of the petitioner, the peace of the area was in danger. The Superintendent of Police has mentioned details of nine criminal cases registered against the petitioner under different sections of the Indian Penal Code which are as under: -

@ at Table-----------------

Sr. No. Crime No. Offence Under sections Police Station

1. 158/94 147, 148, 149, 323, 336, 294, 451, Porsa, District

506-B, 307, Indian Penal Code Morena, (M.P.)

2. 24/95 25, 27 Arms Act Porsa, District

Morena, (M.P.)

3. 99/96 382, 452, 147, 148, 149, 307, Indian Porsa, District

Penal Code " Morena, (M.P.)

4. 10/03 324, 323, 34, Indian Penal Code Porsa, District

V Morena, (M.P.)

5. 265/05 457, 380, Indian Penal Code Porsa, District

Morena, (M.P.)

6. 270/05 294, 341, 323, 506-B, 34, Indian Porsa, District

Penal Code Morena, (M.P.)

7. 323/05 365, 34, Indian Penal Code 11, 13 Porsa, District

MPDVPK Act and 114, Indian

8. 13/06 365, Indian Penal Code, 11, 13 MPDVPK Act 212, 216, Indian Penal Code Porsa, District Morena, (M.P.)

9. 279/08 368, Indian Penal Code 392, 34, Indian Penal Code 11, 13 Porsa, District Morena, (M.P.)

4. The District Magistrate as per the memorandum of the Superintendent of Police has recorded the statements of the residents of localities and also perused the record and passed an order of detention under section 3 of the Act of 1980 of the petitioner. The learned Magistrate mentioned nine grounds for detaining the petitioner under the provisions of the Act of 1980. The grounds are based, on the basis of registration of criminal cases against the petitioner. The matter was referred to the Advisory Board and the Board also recommended the detention of the petitioner under the Act of 1980, and consequently, the State Government vide order dated 18th May, 2009 affirmed the detention order of the petitioner, passed by the District Magistrate.

5. Learned counsel for the petitioner has submitted that the order of detention of the petitioner is illegal because the Superintendent of Police did not submit the facts that the petitioner was acquitted in number of criminal cases in his memorandum to the District Magistrate, hence, true and proper information had not been supplied by the Superintendent of Police to the District Magistrate and the District Magistrate has formed a wrong satisfaction about the detention of the petitioner under the provision of Act of 1980. In support of his contentions, learned counsel relied on a judgment of this Court in the case of Geeta Sahu vs. District Magistrate, Shahdol and others, reported in 2002(2) MPLJ 618.

6. Contrary to this learned counsel for the respondents/State has submitted I that after considering the material on record and the recommendation of the Superintendent of Police and registration of criminal cases against the petitioner, the District Magistrate has formed a positive opinion that the detention of the petitioner under the provisions of the Act of 1980 is necessary. The opinion has been formed after perusal of the record, hence, there is no merit in the petition. In support of his contentions learned counsel relied on the following judgments of the Hon'ble Supreme Court: -

(1) (2008) 3 SCC 613, State of Maharashtra and others vs. Bhaurao Punjabrao Gawande, (2) 2010 (2) MPLJ 224 = 2010(1) MPHT 331, Jugaroo alias Virendra vs. State of M. P. and others, and (3) AIR 1992 SC 687, Smt. Victoria Fernandes vs. Lalmal Sawma and others.

7. The District Magistrate passed the order of detention of the petitioner under section 3(2) of the Act of 1980, which is as under: -

3. Power to make orders detaining certain persons. -

(1) xxxxxxxxxx

(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.

Explanation. - - For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act."

8. Learned Magistrate mentioned nine grounds for his satisfaction in regard to detention of the petitioner under the Act of 1980. As per the Magistrate, nine offences have been registered against the petitioner from 1994 to 200/-2008. The Magistrate has only mentioned the registration of offences against the petitioner and filing charge-sheet in the appropriate Court for trial in regard to said offences against the petitioner. Same facts have been mentioned by the Magistrate in his statement of ground of detention. It has clearly been mentioned that a charge-sheet with regard to grounds No. 1, 2, 3, and 4 was filed before the criminal Court under relevant sections of Indian Penal Code.

9. With regard to ground No. 5, it has been mentioned that the petitioner was convicted by the J.M.F.C. and with regard to grounds No. 6, 7, 8 and 9, it has been mentioned that the charge-sheet was filed before the relevant criminal Court and the matter is pending under investigation. Same facts have been mentioned by the Superintendent of Police in his memorandum dated 2-4-2009 submitted to the District Magistrate requesting the Magistrate to pass an order of detention under section 3(2) of the Act of 1980 against the petitioner. The Superintendent of Police has clearly mentioned under the heading of criminal background of the petitioner that in four cases registered vide Crime No. 158/94 under sections 147, 148, 323, 336, 294, 451, 506-B and 307 of Indian Penal Code and criminal case registered against the petitioner vide Crime No. 24/95 at Police Station Porsa under sections 25 and 27 of Arms Act and an offence vide Crime No. 99/96, under sections 382, 452, 147, 148, 149, 307, Indian Penal Code, that the charge-sheets had been filed against the petitioner. The Superintendent of Police further mentioned the fact that total nine cases were registered against the petitioner and in one case which was registered vide Crime No. 265/05, the petitioner was convicted and in four cases charge-sheet was filed and in four cases i.e. grounds No. 6, 7, 8 and 9, the cases were pending against the petitioner before the Court. However, the petitioner has specifically mentioned in his petition and filed copies of the judgments that in the case mentioned at Serial No. 3 registered against the petitioner vide Crime No. 99/96 under sections 382, 452, 147, 148, 149, 307 of Indian Penal Code and the offences registered against the petitioner mentioned at Serial No. 7, vide Crime Nos. 323/2005, under sections 365, 34 Indian Penal Code 11, 13 MPDVPK Act and 114 of Indian Penal Code and at Serial No. 8, under sections and 13/2006, 365 of Indian Penal Code and 11, 13 MPDVPK Act 212 and 216 of Indian Penal Code and 368, Indian Penal Code, the petitioner has been acquitted.

10. As per the petitioner he has been acquitted in eight criminal cases and he had no knowledge about the acquittal or conviction in two criminal cases mentioned at Serial No. 1 and 2 and he has been convicted in criminal case mentioned at Serial No. 5. The Superintendent of Police did not mention the fact that the petitioner had been acquitted by the criminal Court in the criminal cases mentioned at Serial Nos. 3, 7 and 8. It has only been mentioned by the Superintendent of Police that the charge-sheets had been filed before the Court. The same fact has been mentioned by the District Magistrate in his order of detention.

11. The Hon'ble Supreme Court in the case of Dharamdas Shamlal Agarwal vs. Police Commissioner and another, reported in (1989) 2 SCC 370, has held as under with regard to non-placing the correct and material facts before the detaining authority: -

"9. Though as per section 6 of the Act the grounds of detention are severable and the order of detention shall not be deemed to be invalid or inoperative if one ground or some of the grounds are invalid, the question that arises for consideration is whether the detaining authority was really aware of the acquittal of the detenu in those two cases mentioned under Serial Nos. 2 and 3 on the date of passing the impugned order. It is surprising that the detaining authority who has specifically mentioned in the grounds of detention that the petitioner's cases 2 and 3 were pending trial on the date of passing the order of detention has come forward with a sworn statement in reply, filed nearly three months after signing the grounds of detention, that he knew that the accused had been acquitted in both the cases. The averments made in paragraphs 12 and 13 in the affidavit in reply are not clear at what point of time the detaining authority came to know of the acquittal of the detenu in both the cases. At any rate, it is not his specific case that the fact of acquittal was placed before him for consideration at the time of passing the impugned order. But what the authority repeatedly states is that "each activity of the petitioner is a separate ground of detention and adds further that "the fact that the petitioner was acquitted in Criminal Cases Nos. 411/82 and 412/82 is of no consequence...." We are unable to comprehend the explanation given by the detaining authority. It has been admitted by Mr. Poti that the sponsoring authority initiated the proceedings and placed all the materials before the detaining authority on 14-9-1988 by which date the petitioner had already been acquitted in the above said two cases. Thus it is clear that either the sponsoring authority was not aware of the acquittals of those two cases or even having been aware of the acquittals had not placed that material before the detaining authority. So at the time of signing the order of detention, the authority should have been ignorant of the acquittals. Evidently to get over the plea of the detenu in the writ petition in this regard for the first time in the counter, the detaining authority is giving a varying statement as if he knew about the acquittal of the detenu in both the cases. As ruled by this Court in Shiv Ratan Makim vs. Union of India, 1985 Supp (3) SCR 843 at page 848: (AIR 1986 SC 610 at p. 613) "even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention" because as pointed out by this Court in Mohd. Subrati vs. State of West Bengal, (1973) 3 SCC 250: AIR 1973 SC 207 "the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter" the order of detention would not be bad merely because the criminal prosecution has failed. In the present case, we would make stress, not on the question of acquittal but on the question of non-placing of the material and vital fact of acquittal which if had been placed, would have influenced the minds of the detaining authority one way or the other. Similar questions arose in Sk. Nizamuddin vs. State of West Bengal, AIR 1974 SC 2353 in which the detention order was passed under the provisions of Maintenance of Internal Security Act. In that case the ground of detention was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the detenu therein. In respect of that incident a criminal case was filed which was ultimately dropped. It appeared on record that the history sheet of the detenu which was before the detaining authority did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from the case. In connection with this aspect this Court observed as follows:

"We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate"

10. It is true that the detention order in that case was set aside on other grounds but the observation extracted above is quite significant. The above observation was subsequently approved by this Court in Suresh Mahato vs. The District Magistrate, Burdwan, AIR 1975 SC 728, and in Asha Devi vs. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat, (1979) 2 SCR 215: AIR 1979 SC 447. In the latter case (i.e. Asha Devi), it has been pointed out:

".........if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal."

11. In Sita Ram Somani vs. State of Rajasthan, (1986) 2 SCC 86 = AIR 1986 SC 1072 certain documents which were claimed to have been placed before the Screening Committee in the first instance were not placed before the detaining authority and consequently there was no occasion for the detaining authority to apply its mind to the relevant material. In the circumstance of that case, a principal point was raised before this Court that there was no application of mind by the detaining authority to those vital materials which were withheld. This Court, while answering that contention observed thus:

"No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released."

12. From the above decisions it emerges that the requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at Serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non-placing of the material fact -- namely the acquittal of detenu in the above-said two cases resulting in non-application of minds of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid."

12. The Hon'ble Division Bench of this Court in the case of Geeta Sahu vs. District Magistrate, Shahdol and others, reported in 2000(2) MPLJ 618, has held as under with regard to non-mentioning the factum of acquittal or detention in criminal case by the Superintendent of Police in his memorandum sent to the District Magistrate: -

9. In the matter of Dharamdas Shamlal Aganval vs. Police Commissioner and another, 1989(2) SCC 370, it is held that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order, will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. In the present case, it is not in dispute before us that the fact regarding acquittal of the petitioner in as many as 13 cases was not brought to the notice of the detaining authority. The stress is not on the question of acquittal but on the question of non-placement of the material and vital fact of acquittal which if had been placed, would have influenced the mind of the detaining authority one way or the other. The fact of acquittal quite possibly have an impact on the decision of the detaining authority whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since the person sought to be detained was acquitted in 13 out of 14 cases and only one criminal case is pending against him, no order of detention should be made for the present and the criminal case should be allowed to run its full course. In the matter of Abdul Razak Nanekhan Pathan vs. The Police Commissioner, Ahmedabad, Judgments Today 1989(3) SC 231, the Supreme Court observed that the cases which were not proximate to the date of the order of detention and were state could not be taken into consideration and where the person sought to be detained was acquitted of the criminal charges such cases also could not be taken into consideration.

13. From the aforesaid decision of the Hon'ble Supreme Court and this Court, it is clear that it is mandatory for the Superintendent of Police to mention correct facts in recommending the case of a detenu for detention and particularly whether the person has been acquitted in certain criminal cases or not. Non-mentioning the aforesaid facts is fatal in detention of the person. In the present case also the Superintendent of Police has not mentioned the fact that the petitioner was acquitted in three criminal cases registered against him, in such circumstances, in our opinion, there was no subjective satisfaction of the District Magistrate in ordering the detention of the petitioner, which is necessary as per section 3(2) of the Act of 1980. Hence, the detention of the petitioner under the provisions of the Act of 1980 is against law and against the provisions of section 3(2) of the Act of 1980.

14. Consequently, the petition of the petitioner is allowed. The impugned orders Annexure-P/1, dated 22-4-2009 and Annexure-P/3, dated 18th May, 2009 are hereby quashed. The petitioner be released forthwith, if his detention is not required in any other offence.

Petition allowed.