Palok Basu, J. - (1.) SHABBAN, son of Babu has filed this Habeas Corpus writ petition challenging the detention order dated 6-1-1993 passed by the District Magistrate, Ghaziabad under section 3 (2) of the National Security Act (For short, the Act).
(2.) THIS writ petition was admitted and counter and rejoinder affidavits were exchanged. An additional factor was brought to the notice of the Court by filing a supplementary affidavit and that is that three other persons, namely, Nazim, Qazim and Yasin who were similarly detained by orders of the District Magistrate, Ghaziabad, dated 11-1-1993 in each case stand released from the jail because the Advisory Board had not recommended their detention and had come to the conclusion that there was no sufficient cause for permitting their detention to continue as a result of which they are enjoying liberty. On filing of this supplementary affidavit opportunity was granted to the State Counsel to file a supplementary counter affidavit in reply. Two such affidavits have been filed, one on behalf of the State Government and the other by the District Magistrate himself. Reference to the various allegations in the respective affidavit of the parties shall be adverted to at the relevant places at the subsequent paragraphs. It may be stated here that the order dated 6-1-1993 says that the District Magistrate was satisfied that in order to prevent the petitioner from acting' in any manner prejudicial to the maintenance of the public order the said detention order was being passed under section 3 (2) of the Act. This order was served on the petitioner in jail on 7-1-1993. The petitioner's confinement was due to his involvement in a criminal case registered as case crime No. 737 of 1992, under sections 147, 148, 149, 302, 307, IPC, Police station Kotwali district Ghaziabad. The grounds of detention as mentioned and furnished to the petitioner under section 8 of the Act, translated into English, would read as under :- "Since you Shabban, son of Babu, resident of 203, lbboo ka Bhatta, police-station Kotwali Chaziabad has been detained under my orders dated 6-1-1993, under section 3 (2) of National Security Act, therefore, the grounds of detention are as follows :- (i) On 6-12-1992 an incident happened in Ayodhya as a result of which communal tension has built up in Ghaziabad city and for maintaining public order various measures have been taken by the District Administration. But on 9-12-1992 at 5.45 P.M. in the evening in Mohalla-Jassipura, Mahant Sri Mahendra Giri akas Pahalwan Baba, son of Dhyan Chand, while he was going from Dudheshwar Nath temple to his own Baba Kalbhairav temple and had reached a little distance up to Gaushaha road that 15-20 persons belonging to Muslim community in which you were one, who cumulatively with the common object of murdering him attacked him. The accused were armed with knives and daggers. Rajesh Kumar son of Manphool Singh, resident of Vijainagar, Police-station Vijainagar, Ghaziabad and Deoraj, s/o Kartar Singh, resident of Vijai-Nagar and Netrapal, s/o-Rajaram, r/o-Sarai Nazar Ali, Police-station Kotwal , Ghaziabad tried to save him at which you and your companions attacked them with knives and daggers with the intention to cause death. In this incident Mahant Mahendra Giri and Rajesh died at the spot while Netrapal and Deoraj were seriously injured who have been admitted in the hospital. At the time when you and your companions were perpetrating this crime, at that time in that locality the patrol police team deputed there consisting of Sub-Inspector Patiram Shekhar, Sub-Inspector Arvind Kumar Goswami constables Sahdeo Singh, Ompal and Virsen reached there and seeing the incident accosted and gave a chase as a result of which some of your companions were successful in running away but you and your four other companions were arrested on the spot and from three of your companions blood-stained knives were recovered which were used in killing and injuring the deceased and the victims. When the police patrol party had reached, while fleeing they were saying that we will not leave any temple or priest of a temple because in Ayodhya our old mosque existing since the time of Babar has been broken into pieces as a result of which Islam has come to face danger. This incident perpetrated by you and your companion resulted in all the shops abruptly closing down in Gaushala road. All residents had closed their doors. There was terror amongst the passers by and the public order was thus totally disrupted. A case was registered at police station Kotwali against you and your companions as case crime no. 737 of 1992, under sections-147, 148, 149, 302, 307 IPC, while you and your four other companions were lodged in police station Kotwali on arrest. During investigation it was revealed that on 9-12- 1992 in Mohalla Kaila Bhatta a secret meeting was held under the Presidentship of Imam Kazi Farooq of Marqas Masjid in which it was decided that Mahant Mahendra Giri alias Pahalwan Baba should be killed in order to take revenge of breaking of Babri Maszid. The aforesaid incident perpetrated by you and your companions was the result of the aforesaid meeting and the deliberation Since in the entire city communal tension existed from before, therefore, you and your companions, accentuated by communal feelings have indulged in killing Mahant and other persons of other community, the entire communal harmony in the district has been disrupted and damaged. The District Administration has some how attempted to maintain public order after great difficulty. On 9-12-1992 curfew order was imposed since night in Mohalla-Chowki Kaila Shatta, Chowki Bazariaya, Chowki Navyug Market and Chowki Dasna Gate within police-station Kotwali and by summoning police from other police-stations public order was restored. Though curfew has been withdrawn now but the communal tension still continues in the city. You are at the moment in judicial custody in district Jail, Meerut in the aforesaid case and your bail application has been rejected by the Chief Judicial Magistrate, Ghaziabad and on your behalf a bail application has been moved in the court of Session in which 7-1-1993 has been fixed for hearing. Looking at the facts and circumstances there is every likelihood of your bail application being allowed by the Sessions Judge. Since you and your companions have indulged in the aforesaid action due to communal passion even which has resulted in disrupting public order in the entire city and thus on being released on bail you are likely to indulge in similar activity which will again disrupt the public order, therefore, in order to prevent you from acting in any manner prejudicial to the maintenance of public order it is necessary and imperative that you be retained under section 2 (2) of the National Security Act. S/d. Pradeep Shukla District Magistrate Ghaziabad. Enclosures :- (24 enclosures were attached which are not necessarily to be mentioned here.) Sri S. P. S. Raghav, learned counsel for the petitioner has been heard at length in support of this habeas Corpus petition while Sri Mahendra Pratap learned A.G.A. has opposed the writ petition and has placed the report of the Advisory Board also not only relating to the petitioner but also relating to three persons. regarding whom the Advisory Board did not find sufficient cause to continue detention.
(3.) THE principal argument advanced on behalf of the petitioner is that the grounds of detention against all the four detenus being identical and three of the detenus having been released from detention in pursuance of the opinion of the Advisory Board the petitioners' continued detention on the same ground and not only bad and illegal but also amounts to violative of law of equality enshrined under Article 14 of the Constitution of India. Since this is the only point canvassed, no other grounds taken in the writ petition have to be taken up for discussion. It must be stated here that Sri Mahendra Pratap, learned A.G.A. has tried to establish the contention that some of the materials which may have been relied upon by the Detaining Authority concerning the petitioner Shabban appears to have been over and above the materials placed relating to the detention of Nazim, Qazim and Yasin. He, however, candidly agreed, and rightly so, that the grounds of detention of the petitioner was identical with the grounds of detention of Nazim, Qazim and Yasin. In order to appreciate the aforesaid argument it may be relevant to quote hear in verbatim the averments made in the supplementary counter affidavit of the State and the District Magistrate. A supplementary counter affidavit of Shri B. S. Srivastava on behalf of the State of U. P. avers as under :- "Para. 3. That the only question which has to be answered by the State Government is whether the Advisory Board has released the accused. namely, Nazim, Qazim and Yasin Pahalwan and whether the order of the petitioner has been confirmed by the Advisory Board. In this connection it is submitted that it is a fact that the other persons have been released from the National Security Act by the Advisory Board whereas after full consideration the order of detention passed by the District Magistrate against the petitioner has been confirmed by the Advisory Board. It may also be stated that the detailed counter affidavit in this case will be filed by the District Magistrate." ;