H. N. Seth, J. - (1.) BY this petition under Article 226 of the Constitution, petitioner Nanha Singh questions the validity of an order dated 12th of December, 1983 passec by District Magistrate, Kanpur authorising his detention under the provisions of Sec. 3 of the National Security Act.
(2.) PETITIONER was in connection with Crime Case No. 751 of 1981 under Sees. 399/402 and 400 IPC and Crime Case No. 752 of 1981 under Sec. 25/27 of the Arms Act, arrested by the police of police station Moraina, Madhya Pradesh on 21st of November, 1981, subsequently in connection with Crime Case no. 553 of 1981, under Sec. 396 IPC of Police Station Sakheti, District Kanpur Dehat, he was on 4th of February, 1983 brought to district jail Kanpur and lodged there. While the petitioner was still in jail custody in connection with Crime Case no. 553 of 1981, he was served with the impugned order of detention which is dated 12th of December, 1983 along with the grounds thereof on 13th of December, 1983. The District Magistrate, Kanpur supplied to the petitioner following particulars on the basis of which he felt satisfied that it was necessary to detain him with a view to prevent him from action in a manner prejudicial to maintenence of public order :- (1) On 15th August, 1981 at 5.30 P.M. the petitioner along with his companions, armed with rifles, reached village Kotra Makrandpur within the jurisdiction of police station Sakheti, district Kanpur Dehat where a Dangal was taking place and large number of villagers had collected. They went there to kill Chhotey Singh, resident of village Kotra Makrandpur and fired at him while he was watching the Dangal. Fortunately Chhotey Singh escaped being injured and he ran and took shelter in his house. In the meantime, the petitioner and his companions started firing at the head constables of the Armed Guards and three Constables who were posted there and thereafter the petitioner and his companions continued to fire and reached the house of Chhotey Singh. This firing by the petitioner and his companions went on for about 21/2 hours in which 200 rounds were fired. This activity of the petitioner created a panic in village Kotra Makrandpur and other neighbouring villages. In this connection Chotey Singh had lodged a written first information report at about 12.15 in the night between 15th/l6th of August, 1981 in which the petitioner had been named. On the basis of the said first information report Crime Case no. 106 of 1981, under Sec. 147/148, 109 and 307 IPC was registered agninst petitioner and 15 or 20 other persons for having committed the crime along with 15 or 20 other unknown persons. The case was pending in the court of A.D.S. J. and 13th of December, 1983 was fixed therein. A copy of the first information report as also that the general diary report by which the case was registered at the police station on 16th of August, 1981 was being attached. Aforementioned activity of the petitioner was very much prejudicial to maintenance of public order. (2) On the night between 4th and 5th of November, 1981 the petitioner along with his companions had committed dacoity at the house of one Harish Chandra, resident of Narsinghpur, police station Ghatampur district Kanpur Dehat. In that dacoity brother of Harish Chandra was killed by the petitioner and his companions. The house of Harish Chandra was located in a densely populated area and the activity of the petitioner and his companions created an atmosphere of scare and panic in the locality. Harish Chandra lodged an F.I.R. on the basis of which Crime Case No. 553 of 1981, under Sec. 396 IPC was registesed at police station Ghatampur in which the petitioner was named as one of the dacoits. During investigation of the case, an attempt was made to arrest the petitioner but he continued to abscond. On 21st of December, 1981, the petitioner and others has assembled within the jurisdiction of police station Kotwali, Moraina, Madhya Pradesh with a veiw to commit dacoity and was arrested by the police of P. S. Moraina. Therealter in the month of January, 1983 he was transferred to district Jail Kanpur and thereafter a charge sheet in connection with the aforementioned case was lodged in the court of the Special Judge, Kanpur on 9th of March, 1983. The said case is pending before the court and 4th of January, 1984 had been fixed for statement/framing of charge. A copy of the first information report as also that of the general diary entry registering the case against the petitioner on 5th of November, 1981 was being attached. Aforementioned activity of the petitioner was very much prejudicial to maintenance of public order. (3) On the basis of an information received from an informer, the City Inspector Sri B. L. Dhoriaya, Kotwali, Moraina, Madhya Pradesh, with the help of police force, arrested the petitioner from Room no. 33 of Patiram Sitaram Dharamshala on 21st of November, 1981 at 7.15 P.M. ; at that time the petitioner and his companions were making preparations for committing dacoity and an automatic Chinese TMC No. 10047602 along with two magazines in which there were 60 cartridges and a cartridge bag was recovered from their possession. On the basis of a report made by Sri B. L. Ghoraiya on 21st of November, 1981, Crime Case No. 751 of 1981, under Sees. 399/402 and 400 IPC and Crime Case No. 752 of 1981, under Sec. 25/27 of the Arms Act were registered against the petitioner. After completing the investigation, charge-sheets were submitted. However, the petitioner was, in Crime case no. 751 of 1981 under Sec. 399/402/400 IPC, acquitted on 23rd of June, 1983 but in Crime Case No. 752 of 1981, under Sec. 25/27 Arms Act he was convicted and sentenced to four months' R.1. Copies of the first information reports were being attached. Afore-mentioned acts of the petitioner was very much prejudicial to maintenance of public order. Although in petition a number of grounds have been raised for questioning the validity of petitioner's continued detention in pursuance of the order passed by the District Magistrate, Kanpur dated 12th of December, 1983, but then after the respondents had put in appearance and filed their counter-affidavits, learned counsel appearing for the petitioner confined his challenge to the validity of the order of detention dated 12th of December, 1933 on the basis of the submission hereinafter stated.
(3.) HE contended that a perusal of the particulars served upon the petitioner shows that in arriving at the satisfaction that the petitioner was likely to indulege in an activity prejudicial to maintenance of public order and that it was necessary to detain him, the District Magistrate had placed reliance upon the fact that on 21st of December, 198! the petitioner along with his companions had assembled in Room no. 33 of Patiram Sitaram Dharamshala when he was, on the basis of the information given by an informer, arrested bySriB.L. Ghoraiya of Kotwali, Moraina and from his possession an automatic Chinese TMC along with two magazines and 60 cartridges were recovered and cases under Sees. 399/402 and 400 IPC and 25/27 Arms Act were registered against him. so far as the case under Sees. 399/402 and 400 IPC was concerned the petitioner was prosecuted and tried before the Special fudge, Moraina and was, vide judgment dated 23rd of June, 1982 honourably acquitted therein. According to the petitioner, the Sessions Judge had found the prosecution case to be wohlly false. So far as the case under Sec. 25/27 Arms Act was concerned, the petitioner was convicted by the Chief Judicial Magistrate, Moraina on 25th of January, 1983 and was sentenced to four months R.I According to the petitioner, the District Magistrate, while passing the order for his detention, could not in arriving at the satisfaction that the petitioner was likely to act in a manner prejudicial to maintenance of public order, take into consideration the facts which were the subject matter of a criminal charge and in respect of which he had been honourably acquitted by a court of law. As in the instant case, the satisfaction of the District Magistrate was also based on such facts, it stands vitiated and the order dated 12th of December, 1983 deserves to be quashed. In the alternative, learned counsel for the petitioner urged that the order dated 12th of December, 1983 passed by the District Magistrate stands vitiated inasmuch as it has been passed in a casual and mechanical manner and by ignoring the relevant material which should have been taken into consideration by the District Magistrate before feeling satisfied that the petitioner was likely to indulge in activities prejudicial to maintenance of public order. So far the first submission made by the learned counsel for the petitioner is concerned, learned counsel for the petitioner strongly relied upon a decision of the Supreme Court in the case of Smt. Bimla Dewan v. The Lieutenant Governor of Delhi, AIR 1982 SC 1257 wherein the requisite satisfaction of the detaining authority was based on a number of instances in respect of which the detenue was tried and acquitted. In this connection the Supreme Court, in paragrph '6' of the Judgment, observed thus:- " Instances nos.1 to 22, 24 and 28 relate to criminal cases, in all of which the detenu has been found to be not guilty and acquitted. Instance no. 23 relates to a case in which the detenu has been discharged. Instance no. 28 relates to a blue film of naked picture for public circulation exhibition alleged to have been recovered on 23/24-64979 by the police from the Kamal Restaurant of the detenu. Since all these instances relate to cases which the detenu has been found to be not guilty and acquitted none of these instances can legitimately be taken into consideration for detaining the detenu under Sec. 3 (2) of National Security Act...................... We are of the opininon that since the detaining authority would naturally have been influenced by these grounds as well for coming to the conclusion that the detenu requires to be detained under the provision of the Act, the entire order of detention is unsustainable." ;