- (1.) U. S. Tripahti, J. By means of this writ petition, the petitioner has challenged his detention order dated 3-11-2002 passed by District Magistrate, Kanpur Dehat, respondent No. 2 under Section 3 (2) of National Security Act.
(2.) ALONG with the order of detention, the petitioner was served with the grounds of detention, which stated that on 30-10-2002 when Inspector Incharge, P. S. Bhognipur along with other police officers was busy in search of accused of other cases, he got information through informer that some butchers kasai were illegally slaughtering cow in vacant field of Bobby situate near tube-well of Nizam in village Chandapur and were making pieces of cow meat, on account of which Hindu community of the village was enraged and they were opposing the act of butchers. On account of it, there was possibility of disturbance of public order and happening of some untoward incident. Believing on above information, Inspector Incharge tried to collect witnesses, but none was ready. He along with police force reached near tube-well of Nizam at about 8. 30 a. m. from where he saw that 6-7 persons were slaughtering two cows in the vacant field of Bobby and were cutting flesh into pieces with Chhuri and Kulhari. About 100- 150 persons of Hindu community were standing near the place and were opposing the act of butchers. The Inspector Incharge challenged the butchers and on his challenge they started running away with Chhuri and Kulhari towards people collected there extending threats to the persons of Hindu community that they had given information about them to the police and they would see them after departure of the police. By their threats the persons standing there started running helter skelter. The people of the locality closed their doors and windows, the shop keepers closed their shops and traffic was stopped. The public order was badly affected. The police force chased the butchers at 8. 45 a. m. and apprehended the petitioner Faeem and his associates Anwar, Shakil and Nafis, all residents of village Chandanpur, P. S. Bhognipur along with Kulhari and Chhuri. Two associates of the petitioner made their escape good. Veterinary Surgeon of Pukhrayan was called on Radio Transmission Set, who examined the flesh and opined that it was meat of cow and its progeny. Regarding incident a case was registered at Crime No. 310 of 2002 under Sections 3/5/8 Prevention of Cow Slaughter Act and Section 11 Prevention of Cruelty to Animal Act. During investigation Section 7 Criminal Law Amendment Act was added. The case was investigated and the witnesses namely Chhote Lal, Ram Swaroop, Manne Lal and Rajpal disclosed in their statements under Section 161, Cr. p. C. that they had seen the petitioner and his associates slaughtering two cows in the field of Bobby and on their objection they were threatened and on account of incident, even tempo of life was disturbed and sentiments of Hindu community was badly affected. Communal tension also prevailed between the two communities. The petitioner was detained in jail in connection with case Crime No. 310 of 2002 in District Jail, Kanpur and had moved bail application. There was real possibility of petitioner being released on bail and after release on bail, his indulging in similar activities prejudicial to the maintenance of public order. The petitioner was informed that he had right to make representation to the District Magistrate (Detaining Authority), State Government, Central Government and Advisory Board and in case he wanted to make such representation he could do so through Jail Authorities.
(3.) WE have heard Sri Sushil Shukla, learned Counsel for the petitioner, learned A. G. A. for respondents No. 1 to 3 and Sri D. S. Lal, learned Standing Counsel for respondent No. 4, Union of India and have perused the record. Learned Counsel for the petitioner raised following points for challenging the detention order: (1) The detaining authority had passed detention order mechanically without applying his mind. (2) There were no material before the detaining authority to record his satisfaction that on release on bail, the petitioner would indulge in similar activities prejudicial to the maintenance of public order. (3) There was partial communication by the Detaining Authority to make representation before him. Point No. 1 The learned Counsel for the petitioner contended that it is mentioned in the grounds of detention that after investigation sufficient evidence was found against accused Shakil, while the detention order was passed against Faeem and this shows that the detaining authority has not applied his mind while passing the detention order. Having gone through the grounds of detention and other materials on the basis of which detaining authority recorded his satisfaction, we find no force in the above contention. It may be mentioned at the very outset that along with petitioner Faeem, his associates Anwar, Shakil and Nafis were also apprehended and they were also slaughtering cows and were cutting flesh of slaughtered cows into small pieces. The report of Sponsoring Authority annexed along with order of detention disclosed that after investigation sufficient evidence was found against accused of case Crime No. 310 of 2002 namely, Faeem, Anwar, Shakil and Nafis. The report of Inspector Incharge, P. S. Bhognipur submitted to the Sponsoring Authority (Superintendent of Police) clearly indicated that on investigation sufficient evidence was found against accused Faeem that he was indulged in slaughtering cows in broad day light in open place in presence of several persons of Hindu community. The FIR and memo of arrest of the petitioner and other accused (Annexure 2) also indicated that besides the petitioner Faeem, his associates Anwar, Shakil, Nafis, Hanif and Samir were involved in the incident and Faeem, Anwar, Shakil and Nafis were apprehended by police party while Hanif and Samir made escape good. Thus, the materials placed before the detaining authority clearly indicated that sufficient evidence was found against petitioner Faeem also and mention of name of co-accused Shakil at one place does not invalidate the detention order as in other materials, there is clear mention that petitioner Faeem and his other associates were involved in the incident of slaughtering cow at about 8. 30 a. m. in open field. Therefore, it cannot be said that detention order was passed mechanically and without applying mind. Point No. 2 It was contended by learned Counsel for the petitioner that the detention order was passed on single incident. That at the time of passing detention order, the petitioner was detained in jail and there was no material before the detaining authority to show that petitioner after release on bail would indulge in similar activities prejudicial to the maintenance of public order. It is settled law that even single incident is sufficient for recording satisfaction of the detaining authority that on release on bail, the person concerned would indulge in similar activities prejudicial to the maintenance of public order. It is the degree of disturbance and its effect upon the life of the community in a locality, which determines whether the activity of a person is such that it would be repeated in future. While recording satisfaction to this effect, the detaining authority had to see as to whether the act in question is of such nature that there possibility of its repeating. It is the tendency of the individual concerned, which determines the satisfaction of the detaining authority. The nature of act is also material, which could create apprehension in the mind of public and people at large of disturbance of public order. The act of petitioner i. e. slaughtering cows in open field in the presence of about 150 persons of Hindu community being in contravention of U. P. Prevention of Cow Slaughter Act also offended religious faith and feeling of a section of the society, revering and venerating cow and its progeny. It is a question of common knowledge that a section of society considers cow and its progeny to be sacred holding the same in highest esteem. The alleged act of the petitioner had the potentiality of unleashing communal disharmony and it could create communal tension, disturbing public order of the area. Slaughtering of cow certainly pertains to public order and it would certainly disturb public tranquility of the area. The existence of harmony between people of two divergent section of the society would be shattered. The tempers of a section of community run high. Even the news of the incident enrages people of a community and hurts their sentiments. It cannot be said that such type of incident are forgotten by the people of particular community after the incident is over. The petitioner belonged to community of butchers kasai. The manner in which he along with his associates was slaughtering cows in vacant field in open place in the presence of so many persons of Hindu community indicated the dare devil tendency of the petitioner. His act was to disturb the public tranquility and communal harmony. Therefore, the act of the petitioner and the manner in which it was done was sufficient to record satisfaction of the Detaining Authority that the petitioner, who can do such act in such a manner within the gauge of so many persons would certainly indulge in similar activities after release on bail. It is also clear from the grounds of detention that on being challenged by the police party, the petitioner and his associates extended threats to the persons of Hindu community that they had given information about the incident to the police and they would see them. All these facts and circumstances of the case indicated that there were sufficient materials before the detaining authority to record his satisfaction that on release on bail, the petitioner would indulge in similar activities prejudicial to the maintenance of public order. Point No. 3 It was contended by the learned Counsel for the petitioner that the communication by the Detaining Authority to make representation before him was partial and therefore, detention order was violative of Article 22 (5) of the Constitution. He placed reliance on a Division Bench decision of this Court in Shushil Singh v. District Magistrate, Kheri, 2003 (1) JIC 639 (All) (L. B. ). In the said case the relevant portion of the grounds of detention reads as below: "yadi AAP CHAHEN TO MUJHE BHI APNA ABHYAVEDAN DE SAKATE HAIN (In case you want you can give your representation to me)". It was contended in said case that there is a word of difference between an option to make representation and the right to make one, in the former situation the detenu may or not make representation but in the later would invariably make one. Relying on cases of apex Court it was held in the said case that in our view since the petitioner detenu was not communicated that his right to make representation to the Detaining Authority was only available to him till the approval of the detention order by the State Government there has only been a partial communication of his fundamental right of being communicated the grounds of detention, the aforesaid partial communication would amount to non communication of the grounds of detention violating the first facet of the fundamental right guaranteed to the detenu by Article 22 (5) of the Constitution. The above decision is not applicable to the facts of instant case as in the instant case the grounds of detention contained following communication. "aap KO SUCHIT KIYA JATA HAI KI AAP AISE ADESH JISKE AADHIN AAP NIRUDDHA KIYE GAYE HAIN KE VIRUDDHA NIRODHAK ADHIKARI (ZILA MAGISTRATE) KO BHI ABHYAVEDAN DENE KA AADHIKAR PRAPTA HAI. YAADI AAP AISA ABHYAVEDAN DENA CHAHEN TO USE KARAGRAR JAHAN AAP NIRUDDHA HAIN KE ADHIKSHHAK KE MADHYAM SE YATHA SHIGHRA PRASTUT KAREN. AISE ABHYAVEDAN PAR YADI VAH NIRODH ADESH RAJYA SARKAR KA ANUMODAN HO JANE KE BAD PRAPT HOGA TO NIRODHAK ADHIKARI (ZILA MAGISTRATE) DWARA VICHAR NAHIN KIYA JAYEGA".;