JUDGMENT
Giridhar Malaviya, J.
1. Petitioner Safiullah has challenged his detention in District Jail, Basti in pursuance of an order dated 26-8-1992 passed by the District Magistrate, Siddhartha Nagar under Section 3(2) of the National Security Act. Stating that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order his detention was necessary.
2. According to the allegations, contained in the grounds of detention, on 13-8-1992 the petitioner and his associates Shah Mohammad, Tahir, Mustafa Molvi, Talib, Shauqat, Mohd. Islam, Sanaullah, Mohammad Ali Urf Alii, Musammat Safira, Kallu, Munawwar, Mustafa and Iqbal slaughtered a cow in the ghari of Tahir in village Hasanpur urf Gulariha when Jheenak, Adalat and Ram Dayals/o. Raj Man saw them cutting the cow into small pieces. Thereafter Jhinak went to police station Mohana where he lodged a written first information report at 8.45 a.m. on the basis of which crime No. 182 of 1992 under Section 3/5/8 of Prevention of Cow Slaughter Act was registered. After Jhinak had left the place of incident for the police station, Adalat and Ram Dayal son of Raj Man were joined by Bachchu Lal, Ram Adhar s/o. Bindesh-wari, Durg Vijay and others who also saw that the slaughtered cow was cut into small pieces and the blood in sufficient quantity lying on that place. When Adalat and his companions told the petitioner and his associates that they considered the cow to be their mother whom they worshipped and why they were cutting a cow, the petitioner and Tahir lifted the head of the slaughtered cow and Shah Mohammad and Mustafa taking bogda and knife in their hands said that they had cut their mother and if they considered themselves to be Hindu and claim that they had been fed by the milk of their mother then they might save her and after saying this they struck their bogda and knife on the severed head of the cow by raising the slogans “Allaha-o-Akbar.” They called bad names to Hindus and Hindu community and called them Kafir. At the same time Musammat Safira started hurriedly going towards her village by tying beef in a cloth. When the Hindus, who had assembled there, wanted to catch hold of her, the petitioner and his associates Tahir, Shah Mohammad and Mustafa armed with bogda, lathis, kulharis challenged the Hindus by saying that if they caught hold of that woman many heads would fall. On account of this conduct of the petitioner and his associates tension prevailed in the locality, communal feelings of the Hindus were surcharged and because of their attitude to do or die communal passion and tension also prevailed in the locality and the people got afraid and terrorised. At the same time the police force from the police station Mohana arrived and arrested the petitioner and his associates Tahir, Mohd. Islam, Sanaullah and Mohd. Ali @ Alii, the other persons escaped. The police recovered a large quantity of beef which had been cut in pieces. The head of the cow, its carcass etc. Along with the axe, knife, hansia, patra and jhauwa etc. as also the blood which had fallen on the ground. During the investigation on 14-8-1992 Sections 153A, 504/506, I.P.C. was also added in the case registered against the petitioner which matter was pending investigation. The District Magistrate after noting the fact that the petitioner had illegally slaughtered the cow with a view to get communal riot started which would have been prejudicial to the maintenance of public order recorded his satisfaction that to prevent the petitioner from acting in such a manner his detention had become necessary with the result that the order of detention was passed against him.
3. After the notice was issued to the respondents the counter and rejoinder affidavit have been filed in this case.
4. We have heard Sri Ashok Khare learned counsel for the petitioner as also Sri Shiva Ji Mishra learned Addl. Govt. Advocate for the respondents. Sri Khare firstly argued that neither the order of detention nor the grounds furnished in support thereof discloses awareness on She nart of the detaining authority that the petitioner was already in jail and there being no awareness, on the point of his likely to be released in future at an early date being shown in the order or the grounds, the satisfaction of the detaining authority is vitiated with the result that the detention of the petitioner is bad in the eye of law. In this connection he has relied upon the judgment of the Supreme Court in the case of D.S. Chelawat v. Union of India reported in (1990) 1 SCC 746 : (1990 Cri LJ 1232). In this case considering various judgments of the Supreme Court delivered earlier it has been held in paragraph 21 that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu was already in detention, (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention.”
5. Thereafter the judgment adds that the following facts should also be indicated in the grounds-
“(a) the detenu is likely to be released from custody in near future and (b) taking into account the nature of antecedent activities of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.”
6. On the facts of the case of D. S. Chelawat (1990 Cri LJ 1232) (supra) the Supreme Court had allowed the petition as the grounds of detention only mentioned the fact that the appellants had been remanded to judicial custody till October 13, 1988 and it did not show that the detaining authority apprehended that further remand would not be granted by the Magistrate with the result that there was no consideration of the fact by the detaining authority that the detenu was likely to be released from custody in the near future.
7. However the aforesaid judgment in the case of D.S. Chelawat (supra) did not consider yet another aspect of the matter which was considered in the earlier judgments of the Supreme Court such as in the case of Vijay Kumar v. State of Jammu & Kashmir reported in AIR 1982 SC 1023 : (1982 Cri LJ 988) as also in the case of Debi Lal Mahto v. State of Bihar reported in AIR 1982 SC 1548 : (1982 Cri LJ 2363). In the case of Vijay Kumar in paragraph 9 it was specifically mentioned that in the affidavit filed on behalf of the detaining authority it was nowhere suggested that the detaining authority was aware of the fact that the detenu was already in jail and that keeping in view the fact that the detenu was already in jail yet an order for his preventive detention was considered necessary. In this view of the matter the Supreme Court observed that satisfaction of the detaining authority was vitiated. In the case of Debi Lal Mahto in paragraph 5 of the judgment it was specifically observed as follows:
“……….It is further held that this awareness must appear either in the order or in the affidavit justifying the impugned detention order when challenged. Neither in the order nor in the affidavit we find even a whisper of this aspect being present to the mind of the detaining authority while making the detention order. Therefore, it clearly discloses non-application of mind and following the aforementioned decisions it must be held that the order of preventive detention having been mechanically made and suffering from the vice of non-application of mind is vitiated.”
In view of the above mentioned judgments of the Supreme Court we have to examine what has been asserted in the petition by the petitioner on the question of awareness as also what is the reply of the detaining authority in the counter-affidavit filed by him on that point. Paragraph 15 of the petition reads as follows:
“15. That a perusal of the order of preventive detention, the grounds of detention and the materials supplied therewith clearly discloses that the deteining authority did not even advert or consider the fact that the petitioner was already in district jail in pursuance of case crime No. 182/1992 and does not disclose any reason as to why despite the detention of the petitioner in jail there was necessity to pass an order of preventive detention.”
In reply to the above mentioned assertion of the petition paragraph 14 of the counter-affidavit of Sri Sada Kant, District Magistrate, Siddhartha Nagar reads as follows:-
“14. That the contents of para 15 of the petition as stated are incorrect and therefore, denied. It is submitted that it was well within the knowledge of the District Magistrate, Siddhartha Nagar that the petitioner was in judicial custody in connection with case crime No. 182/1992, under Sections 3/5/8 of the Cow Slaughter Act and under Ss. 153-A, 504 and 506, I.P.C. at the time of passing the detention order. It was also within the knowledge of the deponent that the petitioner has moved the bail application in the Court and he was likely to come out on bail which will accelerate in greater and graver magnitude, the disruption of the public order which will become affair beyond control and several lives of innocent people would be lost. If the petitioner is allowed to come out on bail. It is in these circumstances that the deponent was subjectively satisfied that the free movement of the petitioner and his associates is highly prejudicial for the maintenance of the public order and as such the detention order was passed.
The petitioner did file a rejoinder affidavit in reply to the counter affidavit of the detaining authority and the relevant portion of paragraph 10 of the rejoinder affidavit is as follows:-
“10. That the contents of paragraph 14 of the counter affidavit are false, incorrect and are denied in reply thereto the contents of paragraph 15 of the writ petition are reiterated. It is stated that the District Magistrate had totally failed to take into account the fact of the detention of the petitioner in District Jail as also the other relevant factors specified in the writ petition before directing the order of preventive detention. It is re-asserted that these facts were not even before the District Magistrate on the date of the passing of the order. The bald allegations levelled in the paragraph under reply of having knowledge are being falsely made for the purposes of the present writ petition.”
8. The position that, therefore, emerges is that whereas the petitioner alleges that the detaining authority was not aware of the fact of the petitioner being in jail nor did he pass the order of detention in anticipation of the petitioner being released on bail, the District Magistrate has categorically stated that he was aware of both these aspects and had consequently passed the order of detention against the petitioner. The Supreme Court in the case of Mohd. Iqram Husain v. State of U.P. reported in AIR 1964 SC 1625: (1964 (2) Cri LJ 590) in paragraph 13 has clearly observed that the writ of habeas corpus is festinum remedium and the power can only be ¦exercised in a clear case. Consequently it is not possible for this Court while exercising its jurisdiction under Article 226 of the Constitution to decide which of the two allegations arc correct. Considering the fact that the District Magistrate in his affidavit has asserted that he was aware of the fact of the petitioner being in custody when he passed the order of detention and he being further aware that he was likely to be released in future, it can be said that on the strength of the case of the Supreme Court in the case of Debi Lal Mahto (1982 Cri LJ 2363) (supra) that there is no illegality so far as the detention of the petitioner is challenged on the above mentioned ground in this petition,
9. Sri Ashok Khare learned counsel for the petitioner thereafter contended that in any case the detaining authority has not furnished any material to the detenu evidencing information that the petitioner was trying to come out from jail. According to him this information must have been furnished to the detaining authority and as this was an important aspect for the detaining authority to arrive at the satisfaction that the detention of the petitioner was necessary, this was a relevant material to detain the petitioner and as such it ought to have been supplied to the petitioner. His contention is that non-supply of this material has vitiated the detention of the petitioner. In support of this contention he has placed reliance on the observations of the Supreme Court in the case of Smt. Shalini Soniv. Union of India reported in AIR 1981 SC 431 : (1980 Cri LJ 1487) in which the Supreme Court had made it clear that the material relied upon by the detaining authority was the ground which had to be furnished to a detenu. According to learned counsel for the petitioner the material showing the fact that the petitioner was in jail and there was likelihood of his coming out after obtaining bail had really affected the satisfaction of the detaining authority and since this material has not been furnished to the petitioner, hence the detention of the petitioner has become bad in the eyes of law.
10. It is difficult to accept the contention that the information to the detaining authority about the fact of the petitioner being in jail and his likely to come out on bail should be treated as a material for arriving at the conclusion whether detention of the petitioner is necessary or not. There cannot be any manner of doubt that to consider the question whether to detain a person or not the detaining authority has to consider the activity of the petitioner and if on the basis of his past conduct (activity) the detaining authority feels satisfied that the person concerned had the tendency to act in that manner again in future which was likely to affect the maintenance of public order, then only the detaining authority would be justified in passing an order of detention against that person. The question which, therefore, arises is whether remaining of a person on bail are the activities of the petitioner which could satisfy the detaining authority that in view of the petitioner’s previous conduct he should be preventively detained. Obviously answer to this would be in the negative. Hence, if the question of the petitioner being in jail or his likely to be released on bail cannot be attributed to the activity of the petitioner, it cannot be said that this is the material on the basis of which the detention order has been passed against a person. Moreover the concept to supply material in support of the grounds of detention is to enable the detenu to file his representation against the order of detention. This also implies that the petitioner must know what activity of his was attributed to be satisfying the detaining authority that the petitioner was to be preventively detained to achieve a particular object. The representation contemplated under Article 22(5) of the Constitution is a representation made to the detaining authority to the Government as also to the Advisory Board so that the petitioner’s contention that the satisfaction of the detaining authority was not correct can be demonstrated by the detenu. The requirement that the detaining authority should be aware of a person being in jail etc. is after the Supreme Court had held in AIR 1964 SC 334: (1964 (1) Cri LJ 257) Rameshwar Shaw v. District Magistrate, Burdwan; (AIR 1973 SC 897: 1973 Cri LJ 627) Masood Alam v. Union of India etc. that it was just a condition precedent for initiating action by the detaining authority to consider whether a person should or should not be preventively detained. However, this factor of a person being in jail or likely to be released on bail cannot in any case become a ground of detention of the petitioner. In this view of the matter it cannot be said that the relevant material in this connection must be furnished to the detenu or that this non-furnishing would render the detention of the petitioner bad in the eyes of law.
11. There is yet another aspect which can be taken into consideration while deciding this point. The Supreme Court in the case of Wasiuddin Ahmad v. District Magistrate, Aligarh reported in AIR 1981 SC 2166: (1981 Cri LJ 1825) in paragraph 19 held as follows:
“Much stress was, however, laid on the fact that the detenu had not been furnished with the copies of the first information reports in the criminal case in which he was convicted and in the three other criminal cases pending against him. It is said that the failure to furnish these documents vitiates the impugned order of detention. The contention appears to be misconceived. Under sub-section (5) of Section 173 of the Criminal P.C., 1973 the detenu had already been supplied with all the documents or relevant extracts thereof on which the prosecution relied in the criminal case in which he was convicted as well as on which the prosecution proposes to rely in the three criminal cases pending against him. There was, therefore, no need to supply the copies of the first information reports referred to in the ground of detention over again, and no grievance can be made that the detenu was deprived of the right of making a representation at the earliest opportunity due to non-supply of these documents.”
On the strength of this judgment it can be safely said that the detenu himself knew that he was in jail and that he was trying to come out from jail by making required applications for bail. It is also to be noted that the petitioner has conceded that he had applied for bail and has been granted bail in criminal case which is the basis of detention order in this habeas corpus petition. Consequently the second contention of Sri Khare also fails. It was thirdly contended by learned counsel for the petitioner there was delay in the matter of considering the representation sent by the petitioner. As from the assertion made in the petition as also on the basis of the counter affidavit filed by the State Government in this case it is clear that the petitioner made a representation on 7-9-1992, the jail authorities forwarded the same to the Government and the District Magistrate. One copy reached the Government on 9-9-1992 and another copy along with the comments of the District Magistrate reached the Government on 11-9-1992. The representation after being considered by the section, the different officers of the State Government including the Special Secretary and the Home Secretary was ultimately rejected on 17-9-1992, which was communicated to the petitioner on 19-9-1992. It is thus obvious that there was hardly any delay in disposal of the petitioner’s representation.
12. However learned counsel for the petitioner relied on paragraph 9 of the counter affidavit filed by Sri Ram Charan, Upper Divisional Assistant in the Home Confidential Section 5 of the Govt. of U.P. and said that the petitioner made second representation on 26-9-1992 which was received by the Deputy Secretary only on 13-10-1992 as he was on leave on October 3, 7, 8 and 12, 1992 on account of his being out of Lucknow, and as the offices of Secretariat were closed between 4 to 6th October, 1992 and from 9th to 11th October, 1992. The grievance of the petitioner is that if the Deputy Secretary was on leave, some arrangement ought to have been made for the representation to be taken up by another person and if no such arrangement was made the valuable right of the petitioner to get his representation decided had been adversely affected which too resulted in his continued p[ detention to be bad in the eye of Iaw3 However in paragraph 9 of the said counter affidavit it was specifically stated that the second representation had been sent to the Deputy Secretary by his name along with the comments by the District Magistrate. Since the representation was sent by name to the Deputy Secretary, it is obvious that it could not be received by him if he was not present in Lucknow. The contention of learned counsel for the petitioner that the District Magistrate should not have sent his comments as also the representation to the Deputy Secretary by name cannot be considered to be of any consequence because the court will take judicial notice of the fact that if the matter is treated urgently then instead of sending it in the general dak of the Secretariat it is to be sent to the person concerned by his name so that he pays immediate attention to the communication. It can be clearly presumed that the practice to send a representation of the detenu undergoing imprisonment because of some preventive detention order is to remove any possibility of delay in the dak being sorted out in the receipt section of the Secretariat which would necessarily require a few days’ time to reach its proper destination. Moreover this point was not raised initially in the petition to enable the respondents to meet it by making a suitable answer in their counter affidavits. As stated earlier this argument was raised on the strength of the contents of the counter affidavit filed on behalf of the State Government. However, in view of what we have said above there appears to be no merit in this contention either.
No other point was pressed before us.
In view of our discussions above there is no merit in this habeas corpus petition which is accordingly dismissed.