R.R.K. Trivedi, J.
1. Questions of fact and law involved in both the aforesaid petitions are similar and they can be disposed of finally by a common judgment against which learned counsel for the parties have no objection. Writ petition No. 47031 of 1999 shall be the leading case.
2. Petitioners, Tunnu and Kabir Ahmad have filed aforesaid writ petitions questioning the legality of the order dated 28-7-1999 (Annexure I to both the writ petitions) passed by respondent No. 2, District Magistrate, Ballia, under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act), under which they have been detained.
3. Along with the order of detention petitioners were also served with the grounds on which basis respondent No. 2 formed his subjective satisfaction for passing the order of detention. The facts stated in the grounds are, in brief, being mentioned below.
4. In the grounds it is stated that on 14-7-1999 at 10 p.m. in the night in town Sikanderpur, District Ballia traditional religious processions of Hindus called as Mahaviri Jhanda were heading to meet at Chowk. These processions were coming from different routes. The processions of villages Rahilapali and Mainpur with their usual activity of 'GADKAFERI' with their Akhara were passing through Mohalia Baddha and were heading towards Chowk. When the processions of two villages reached near a mosque in Mohalia Gandhi Chowk, petitioners with their companions asked to stop the playing of Akhara, which created tension among Hindus. The officers of the police force and other officials tried to persuade the persons of Muslim community from creating any obstruction in processions but they became violent and started throwing bricks, stones and bottles on the processions. Within no time commotion prevailed among the members of the procession and other people who had assembled there to watch the procession. In defence members of the procession also started pelting stones and ran helter skelter. At this juncture petitioner, Kabir Ahmad in order to instigate violence and communal not started making announcement from the loudspeaker fitted in the mosque saying that Islam is in danger and Muslim should come out to attack the members of the procssion. On hearing this announcement from the loudspeaker members of the Muslim community became violent and under the leadership of Sanjay Bhai @ Sheikh Ahmad Ali in small groups and armed with deadly weapons came out with bricks, stones and lathis and started thowing them on members of the processions at Gandhi Chowk. They also tried to set fire by the mashal which they were having but it was quickly put off by the police force. The officers of police force, other officers and officials who were on duty to maintain law and order, tried their best to pacify the members of Muslim community but all attempts failed and situation became very fearful. The members of the processions and the people assembled there to watch the processions ran helter skelter. Public order was badly disturbed all around in the entire town. The atmosphere was of fear and terror. Large number of police personnel, executive officers and others were injured. Ultimately, the police in order to prevent the situation from worsening further arrested 43 persons of both the communities including petitioners, however, Sanjay Bhai @ Sheikh Ahmad Ali, Israr and Amir Sheikh and several others escaped arrest. Station Officer, Police Station Sikanderpur lodged First Information Report at Police Station, which was registered as case Crime No. 330 of 1999, under Sections 147, 148, 149, 323, 336, 332, 353, 427, 153-A, 330 Indian Penal Code, Criminal Law Amendment Act and of Public Property Damages Prevention Act.
5. In order to restore public order contingents of police force and PAC were deployed at several places. Strict vigil was maintained. In spite of this the people of town were confined to their houses. It is further stated that petitioners are presently confined in District Jail, Ballia and they are trying to come out on bail. There is every possibility that petitioners may be granted bail and there is also possibility that after being released they will again indulge in similar activities and create tension between two communities which will destroy the communal harmony between two communities which shall be highly prejudicial to the maintenance of public order.
6. On the basis of the aforesaid facts detaining authority recorded his subjective satisfaction with respect to the petitioners that with a view to prevent them from acting in any manner prejudicial to the maintenance of public order it is necessary to make an order that petitioner be detained under the Act.
7. Petitioners were also informed that against the order of detention they have right to file representation before the State Government, Advisory Board and the Central Government, which they can submit, through Superintendent, District Jail, Ballia. They were also informed that they have right to personally appear before the Advisory Board if they want personal hearing. This fact may also be indicated through jail authorities.
8. The aforesaid order of detention was approved by the State Government on 6-8-1999, under Section 3(4) of the Act. A report was sent to the Central Government under Section 3(5) of the Act on 7-8-1999. Petitioners were heard personally on 30-8-999. The opinion of the Advisory Board that there was sufficient cause to detain the petitioners was received by the State Government on 7-9-1999. The order of detention was confirmed for a period of 12 months under Section 12 of the Act on 14-9-1999.
9. Petitioner, Tunnu submitted his representation to the jail authorities on 5-8-1999, which was forwarded to the State Government by the detaining authority on 7-8-1999. It was received by the State Government on 9-8-1999. After consideration the representation was rejected on 10-8-1999.
10. The representation of the petitioner was received by the Central Government on 16-8-1999. It was considered by the Deputy Secretary on 17-8-1999. Thereafter, it was considered by the Secretary of Home Department, who rejected it on 18-8-1999.
11. Petitioner, Kabir Ahmad submitted his representation on 9-8-1999 to the jail authorities, which was forwarded to the State Government on 11-8-1999. It was received by the State Government on 14-8-1999. The representation was considered and rejected on 20-8-1999.
12. The representation of the petitioner was forwarded by the District Magistrate to the Central Government on 11-8-1999, which was received by the Central Government on 20-8-1999. On 23-8-1999 it was considered by the Deputy Secretary and then it was placed before the Secretary, who considered it and rejected the same on 24-8-1999.
13. In both the petitions counter and rejoinder affidavits have been exchanged. We have heard Shri D.S. Mishra, learned counsel for the petitioners, Shri Mahendra Pratap, learned AGA for respondents Nos.2 and 3 and Tej Prakash for Central Government.
14. Learned counsel for the petitioners has asailed the impugned orders of detention and continued detention of the petitioners on following grounds :-
It has been submitted that impugned orders of detention have been passed against the petitioners without application of mind. The orders have been signed in mechanical manner. To substantiate this submission learned counsel for the petitioners placed before us the report of the sponsoring authority and the grounds served on the petitioners and submitted that grounds are nothing but exact reproduction of the report of the sponsoring authority except with minor and insignificant changes. In this connection learned counsel has referred to paragraphs 10, 11, 12, and 13 of the writ petition and submitted that averments made have not been controverted by the detaining authority. Learned counsel for the petitioners has placed reliance in the case of Jai Singh v. State of Jammu and Kashmir AIR 1985 Supreme Court 764 : (1985 Cri. LJ 527).
Learned Counsel for the petitioners also submitted that though 43 persons were arrested in connection with alleged incident on 14-7-1999 but the orders of detention were passed only against three persons as proposed by the sponsoring authority. The detaining authority without applying his independent mind to the facts and circumstances of the case mechanically signed three orders. Learned counsel also submitted that continued detention of the petitioners has been rendered illegal as there was inordinate and unexplained delay in deciding the representations. It is submitted that representation dated 5-8-1999 of petitioner, Tunnu was forwarded by detaining authority on 7-8-1999, which was received by the Central Government on 16-8-1999 i.e. after nine days. Representation of the petitioner, Kabir Ahmad dated 9-8-1999 was forwarded by detaining authority to the Central Government on 11 -8-1999, which was received by the Central Government on 20-8-1999. it is submitted that in both the cases delay of nine days have been explained by any material as to how and in what circumstances it occurred. As the delay of nine days has not been explained the continued detention has been rendered illegal.
Lastly, it has been submitted that detention order was passed against Gulam Rasul on 28-7-1999 on the basis of the alleged incident dated 14-7-1999. The detention order has been quashed by this Court.
Against Sanjay Bhai @ Sheikh Ahmad All order of detention was passedon 1-12-1999 on the basis of the incident dated 14-7-1999. The order was, however, revoked by the State Government, under Section 12(2) of the Act as in the opinion of the Advisory Board there was no sufficient cause for his detention.
15. Shri Mahendra Pratap, learned AGA, on the other hand, submitted that there is no question of any casual exercise or non-application of mind in passing the orders by the detaining authority. The grounds are not carbon copy of the dossier. The detaining authority has though to some extent borrowed the language for narrating the incident, there are changes, which indicate that he considered the whole incident and its implications before passing the impugned order. The judgment in the case of Jai Singh and others (supra) relied on by the learned counsel for the petitioners is not applicable in the present case. It is submitted that denial of this fact was also not necessary as the allegation pertained to the record. it has been submitted that there is no delay in deciding the representations by Central Government. The representations of the petitioners was forwarded to the Central Government by normal recognised means and law does not require that modern and faster modes of communication should be adopted. Learned counsel has further submitted that Sanjai Bhai @ Sheikh Ahmad Ali was not in jail hence order of detention could not be passed against him earlier than 1-12-1999. The order was revoked on different grounds.
16. We have carefully considered the rival submisssions made by the learned counsel for the parties and have also perused the material on record. The first submission of the learned counsel for the petitioners is that the orders of detention impugned in these two writ petitions have been passed by the detaining authority, District Magistrate, Ballia in mechanical manner, casually and without application of mind. To substantiate this submission learned counsel has placed before us the report of the sponsoring authority and the grounds served on the petitioners along with the orders of detention. We have compared the language used in the grounds and the language mentioned in the report of the sponsoring authority. The comparison of the two documents, paragraph by paragraph, leaves no doubt that grounds served on the petitioners was verbatim reproduction of the report submitted by the sponsoring authority. The changes pointed out by learned AGA in the grounds were only for removing the names of the petitioners and using word 'Aap' in its place, which appeared necessary to grammatically synchronise the sentences and was of the nature of ministerial work. In substance the language continued to remain the same. Casualness on the part of the detaining authority is further demonstrated from the fact that in the grounds it has been stated that village people are confined to their houses and lying there hiding postures, which was also mentioned in the same language in the report of the sponsoring authority. The detention order was passed after about two weeks of the incident and it is difficult to believe that even after two weeks the village people could have been lying in the same position. We have compared the language used in the grounds and have no doubt that grounds are verbatim reproduction of the report of the sponsoring auuthority. Hon'ble Supreme Court in the case of Jai Singh and others (supra) while allowing the writ petition held as under:-
These seven writ petition under Article 32 of the Constitution have to be allowed in the sole ground that there has been a total non application of the mind by the detaining authority, the District Magistrate of Udhampur. We had called for the records and the learned counsel for the State of Jammu and Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited 'The subject is an important member of....' Thereafter follow various allegations against Jai Singh paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words 'the subject' into 'you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi'. Thereafter word for word the police dossier is reported and the word 'the' whereever it occurs referring to Jai Singh in the dossier is changed into 'you' in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled within this causal, indifferent and routine manner. We also notice that in the petition filed by the detenu, he had expressly alleged that he and the others had already taken into custody in connection with a criminal case on July 6, 1984 itself and all of them were in custody since then. The detenu has given details of where he was taken and when. He has also referred to the circumstance that an application for bail was moved on his behalf on the eighteenth before the High Court and it was only thereafter that the order of detention was made. These facts have not been denied in the counter affidavit filed by the respondents. In fact we are unable to find anything in the records produced before us, either in the police dossier submitted to the District Magistrate for action or in any other document forming part of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu and Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases.
17. In our opinion, the view expressed by Hon'ble Supreme Court in the case of Jai Singh and others (supra) is squarely applicable in the present case and, in our opinion, the impugned orders of detention are liable to be quashed on this ground. As petitioners are entitled to succeed on the first ground it is not necessary for us to enter into other submissions made by the learned counsel for the petitioners.
18. For the reasons stated above, both the writ petitions are allowed. The impugned orders of detention dated 28-7-1999 (Annexure I in both the writ petitions) are quashed. The respondents are directed to set the petitioners at liberty forthwith, if their detention is not required in any other case.