Palok Basu, J. - (1.) ALTAF is presently detained in pursuance of an order dated 6-1-1993 under section 3 (2) of the National security Act (for short the Act) passed by the District Magistrate, Kanpur, Similarly, Sharif stands detained by an order dated 30-12-1992 also passed by the District Magistrate, Kanpur, Both those orders are under challenge in these two petitions which are being disposed of together, as prayed by the learned counsel for the parties because the grounds of detention mentioned in both the orders are same.
(2.) THE entire grounds of detention have to be mentioned in order to deal with various arguments advanced. Translated into English, the grounds would read as under- "1. That on 18-12-1992, constable 269 Sri Shyam Singh Yadav of Reserve police Lines, Kanpur Dehat, lodged a written report at police Station Rail Bazar that on 7-12-1992 at about 8.30 A.M. when he was going from Police Lines to Police office, you along with 200/250 persons of Muslim Community came from the eastern side shouting slogan 'Allah-ho-Akbar' and surrounded him. You and your companions attacked the police constable with knives with intent to cause death and his H.M.T. Watch, A-1, cycle and Rs. 500/- were looted. Somehow he managed to protect himself and reached Police Lines, Kanpur Dehat from where he was taken to Ursla Hospital by his colleagues and after being discharged from Ursla Hospital he got registered the said report against you and your companions. "Constable Shyam Singh's report of offence under section 395/307 IPC. has been registered as Case Crime No. 443/92 at P.S. Rail Bazar against you and your companions, true copy of which is Annexure-I and true copy of the injury report is Annexure II. "On 8-12-1992 the newspaper Dainik Jagran reported the incident with the heading "Kanpur Jal UTHA/SOLAH MAREY/S. P. KEY KAFILEY PAR HAMLA/SENA BULA1 GAI/RAIL BAZAR BHI HINSA KI CHAPET MEN/JAGAH JAGAH AAG ZANI GOLI BARI WA BAM KE DHAMAKEY". THE incident relating to knife injury to the police constable has also been mentioned. True copy of the newspaper 'Dainik Jagran' dated 8 -12-1992 is Annexure III. "You and your companions have committed the aforesaid criminal act being under the influence of communal feelings at about 8.30 in the morning. THE place of incident is very significant as the Reserve Police Lines, Kanpur Dehat is closes to it and the office of the D.I.G. Police and others including respectable persons and residential quarters of officers are also in the immediate neighbourhood. As a result of the said incident in the nearby locality and the area fear awe and terror spread causing stampede and all nearby residents closed their doors and windows and in this manner the incident resulting in knife injuries to the police employee compelled posting of additional Force in the Rail Bazar area, curfew order had to be imposed and the public order was completely disrupted. "THE aforesaid criminal act of yours is prejudicial to maintenance of the public order. "2. On 7-12-1992 the Station Officer, Rail Bazar, Sri Ravindra Singh Bhadauriya was informed by an informer at about 8.30 A.M. when he was busy in the law and order duty near Central Hotel within P.S. Rail Bazar to the effect that at Faithfulgunj Crossing rioters belonging to Muslim Community were indulging- in looting the shops belonging to Hindu Community and . setting fire to them. At this information the Station Officer informed the higher authorities on wireless and by the time he reached police Station Rail Bazar at 9 A.M. he saw about 100 or 150 rioters of Muslim Community, shouting inflammatory slogan, were indulging in breaking Kali Mandir situated by the side of P. S. Rail Bazar, that the Station Officer Sri Bhadauriya accosted the rioters who ran towards the back side and the Station Officer then chased those to some distance when he noticed about 1000 or 1200 Muslim Community rioters had looted the shops of Hindu Community and had set fire to them. That in the meantime the C. O. Harbans Mohal, the A.C.M. reached there and they too accosted the rioters but for no effect and, in retaliation the rioters hurled bombs, threw brickbats and fired from country-made firearms at which the police party fired in self-defence. THEre- after the S. P. (City) and Additional District Magistrate also reached the spot along with P.A.C. Force and it was with great difficulty that the rioters could be overpowered who then started fleeing hither and thither. "That regarding this incident the Station Officer Sri R. S. Bhadauriya registered an offence under sections 147, 148. 149, 307, 436, 395, 397. 336 and 295 IPC read with section 3/5 of the Explosive Substance Act which was registered as Case Crime No. 436 of 1992 at Police Station Rail Bazar, a true copy of which is Annexure IV. This case is still under investigation." "Witnesses of this incident, namely, S/S Radhey Kant Tiwari and Ram Prasad in their statements under section 161 CrPC have named you as participant in this incident. True copies of the statement of the witnesses under section 161 CrPC are Annexures V and VI. "Regarding this incident the reporting of the newspaper Dainik Jagran as included in Annexure III makes vivid the criminality involved in this incident. "You and your companions have indulged in the aforesaid criminal act in broad day-light at 9 A.M. and inspite of sufficient police strength, you and your companions could not be brought under control with the result that P.A.C., C.R.P. and Army help had to be called, resulting in complete disruption of public order. "THE aforesaid facts make it clear that you are a fundamentalist Muslim full of communal passions and the criminal .acts of yours have resulted in disrupting public order. "For the present you are in custody in District Jail, Kanpur, in connection with Case Crime 433/92 under section 307/395 IPC, P. S. Rail Bazar, and you have moved an application for bail before the Court concerned, a true copy of which is Annexure VII in which there is every likelihood of your getting released on bail. If you come out of jail being released on bail there is every likelihood that you will again spread communal disharmony and disrupt public order and, therefore, it has become necessary that you should be detained. , "In view of the aforesaid grounds I am satisfied that there is likelihood of your acting in any manner prejudicial to the maintenance of public order and, therefore, with a view to prevent you from acting in such a manner and for maintenance of public order it is necessary to direct that you be detained." It may be mentioned here that in the petition of Sharif the true copy of the grounds indicate that in the penultimate paragraph where the detaining authority has recorded his satisfaction two further adjectives 'Shatis and Khunkhwar' (notorious and hardened criminal) have been added but nothing turns upon these two words. Sri Navin Sinha, learned counsel for the petitioner Altaf and Sri Ramji Saxena, learned counsel for Sharif, have argued the matter with exceptional eloquence and matured ability. Sri Arvind Kumar Tripathi, learned A.G.A. has likewise replied the arguments with commendable stubbornness and felicity. The entire record has been thoroughly scrutinised.
(3.) THE arguments on behalf of the petitioners can be summarised into three broad headings- I. THE single incident, even though shown numerically as two in the grounds of detention, can and should not be interpreted as showing future tendency to act in a manner prejudicial to the maintenance of public order. II. THE allegation regarding the likelihood of the petitioners being released on bail is a complete misnomer because no bail application was moved on their behalf inasmuch as an enquiry was ordered by the C.J.M. relating to the said pendency of the bail application in Altaf's matter, even if moved for petitioners, those could not be treated reliable and sufficient material. III. In any case, the non-sending of the comments by the District Magistrate along with the representation to the State Government, and five days having been consumed by the District Magistrate in sending his comments to the State Government should be interpreted to mean that the right conferred by Article 22 (5) of the Constitution of India has been impaired though the representation of both the petitioners have been decided by the State Government within 10 or 12 days respectively from the date the representations were received by the State Government. Point no. 1. At the outset it may be mentioned that on the basis of what was stated in the grounds noted above there were two distinct incidents though both of them happened on the same day with an interval of about half an hour between them. It does not appear correct to assume that these two incidents are one and the same inasmuch as the first one related to an attack on the police personnel who received several knife injuries. The second incident was at a different place of occurrence, half an hour later in point of time and related to looting shops belonging to another community as also burning them. The report about the second incident was by the Station Officer concerned while the former one was an FIR which was registered by the victim. Therefore, it is perhaps not right to contend that both the incidents are one and the same.;