BHAGWAT SINGH Vs. DISTRICT MAGISTRATE UDAIPUR

JUDGEMENT

(1.) This Habeas Corpus Petition under Article 226 of the Constitution of India has been filed by petitioner Bhagwat Singh, the detenu herein challenging the legality of the order of detention dated 7/6/2002 passed by the District Magistrate. Udaipur clamping upon the detenue the above order of detention under sub-section (2) of Section 3 of the National Security Act, 1980, hereinafter referred to as the NSA on the ground that he on consideration of material placed before him was satisfied that it was necessary to make the said order with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of the public order. In pursuance of the detention order the detenu has been detained in the Central Jail, Udaipur. The State has approved the impugned order of detention by order dated 22/7/2002 (Annex.5). Along with the impugned order the grounds of detention were also served upon the detenu. The grounds, which have prevailed with the detaining Authority are that he detenu since 1991 in the City of Udaipur in the surrounding areas has been involved in criminal activities and has created an atmosphere of general terror among the people of the locality. The detaining Authority observed that the detenu with his associate criminals viz; Yogesh Vyas. Jitesh, Vishnu alias Dholu Sindhi, Roshan Harijan, Vijay alias Changa, Dinesh alias Cow, Lokesh Kumawat, Karan Singh etc., out of which many are history sheeters, has formed a strong gang. The detenu is the leader of the said criminal gang. The detenu is indulged in serious crimes endangering the normal human life of the people in the locality causing atmosphere of fear among the people. The fear among the people is to the extent that many of the crimes committed by the detenu were not even reported. The witnesses do not come to the court due to threats and whosoever comes, turns hostile resulting most of the cases lodged against the detenu into his acquittal. Even during investigation, nobody is prepared to be a. motbir for the documents like preparation of the site plan etc. After the cases are registered against him he indulges in threatening victims and obtains false affidavits and produces the same in the court. He has also been producing affidavits in support of the anticipatory bail after obtaining them by coercive means. The detenu has become fearless and has no respect for the rule of law. Since 1991, he has indulged himself in the criminal activities like loot, dacoity, robbery, abduction/kidnapping, claiming ransom injuring people endangering their lives, getting the shops and houses vacated by threatening etc. For last 3/4 years he has been found indulged in getting the houses and shops vacated unlawfully. In total 34 cases have been registered against the detenu. out of which in 12 cases, he has succeeded in turning the witnesses hostile and in 8 cases, he has been able to get acquittal by getting the matters compromised by coercive means.

(2.) It is submitted by Mr. Sundeep Mehta, learned counsel for the detenu, that on the same grounds, earlier also he was detained under Sec. 3(2) of the NSA by order dated 6th June, 2000 and the said order of detention was quashed by the order of this Court dated Nov. 27, 2000, Bhagwat Singh v. The District Magistrate, Udaipur. In the said case, this Court found that the District Magistrate had taken into consideration six cases in which he stood acquitted before the order of detention was passed. In the said case the Court observed as follows: We find that six cases in which the petitioner has been acquitted are of much more serious nature than other 12 cases. We are of the view that six cases referred to in Schedule A are material and non-mentioning of acquittal in those cases could have influenced the mind of the detaining authority one way or the other on the question whether or not to make a detention order. Even in a case of acquittal, the detaining authority could have resorted to detention and in that case, the subjective satisfaction recorded by the District Magistrate would not have called for interference by this court but the sponsoring authority has been most unfair to the detenu in not disclosing the fact to the District Magistrate that in six cases referred in Schedule AT, the detenu stood acquitted. Non placing of the material fact namely the acquittal of the detenu in six cases as given in Schedule A and extracted above has resulted in non application of mind of the detaining authority to the

(3.) Learned counsel has placed before us the grounds of detention passed in earlier case and also in the instant case. It is pointed out that the grounds pf detention for detaining the petitioner in the year 2000 and the. grounds of detention for detaining the petitioner present are common except the grounds mentioned in para Nos. 1, 2, 9, 30, 31, 32, 33 and 34. It is contended by the learned counsel that once the order of detention has been set aside by this Court, it was not open for the detaining Authority to pass a fresh order of detention on the same grounds. In support of the contention, learned counsel has placed reliance on a decision of the Apex Court in Chhagan Bhagwan, Kahar v. N.L. Kalna.