ORDER
R.S. Garg, J.
1. By this petition under Article 226 of the Constitution of India the petitioner challenges the correctness, validity and propriety of the Order No. 32/Detention/1998 dated 24-11-98 passed by District Magistrate, Shahdol, annexed to the petition as Annexure P-1.
2. By the impugned order the District Magistrate, Shahdol exercising his powers under Sub-section 2 read with Sub-section 3 of Section 3 of the National Security Act, 1980 ordered that Pappu @ Radheshyam Teli (husband of the petitioner) be detained and kept in Central Jail, Rewa (M.P.).
3. The petitioner says and submits that the order Annexure P-1 is patently illegal as it does not take into consideration that out of 14 cases referred in the grounds of detention the petitioner has been acquitted in number of cases and was convicted only in one case in the year 1994 and in the appeal the sentence was reduced to the period already undergone i.e. 97 days and a fine of Rs. 1,000/- was imposed upon him. It is also submitted that item No. 16 of the grounds could not be taken into consideration for detaining the petitioner and similarly grounds No. 17 and 18 are not in relation to offences but were simply Rojnamcha reports which were concocted 3, 4 days before the date of the order, so that the petitioner could be detained. It was submitted that orders of acquittal were not placed before the authority, this act of the Superintendent of Police was either an act of negligence or was with ulterior motive so that correct facts were not brought to the notice of the detaining authority. It is further submitted that the authority was persuaded and obliged to believe that the cases were pending and an order of detention was required to be passed. It is also submitted in the petition that the detaining authority did not try to appreciate that item No. 1 to item No. 13 were not within close proximity of the order of detention and the authority was unnecessarily persuaded by those stale cases in which otherwise the detenu was acquitted. It is further submitted that the order of detention was not executed within reasonable time therefore also, the order of detention deserves to be quashed. It was also submitted that as no serious efforts were made to execute the order of arrest, the petitioner, therefore also the order of detention deserves to be quashed. It was further submitted that the representation made by the petitioner was not decided well within time therefore the detention becomes invalid and the order is liable to be quashed. The respondents in their return have submitted that the detenu is a hardened criminal and had terror in the locality, number of cases were registered against him and he was using firearm for commission of offences. The petitioner being a terror in the locality the witnesses were not coming forward to speak against him. According to the return, the petitioner was kept under surveillance from the year 1985 but his criminal activities could not be checked. The District Magistrate after going through the entire material placed before him, registered a case, examined the evidence both oral and documentary and after being satisfied passed the order of detention. The return further says that the order of detention could not be executed because the detenu absconded and, after receiving the information about whereabouts of the detenu the police came to Jabalpur and arrested the detenu on 9-5-99. It is also submitted that the detenu was arrested on 9-5-99 and was thereafter taken to Shahdol and thereafter he was lodged in Rewa Jail. They have submitted that the documents were served on the detenu on 13-5-99. According to them, the information of the order was sent to the government on the date of order itself, the detention order was approved by the State Government on 4-12-98 and thereafter the report that the detenu was absconding was also sent to the Government. They also submitted that while the detenu was absconding petitioner had filed W.P. No. 1042/99 but the same was dismissed by order dated 14-4-99. According to them, the petitioner’s matter was placed for consideration before the Advisory Board and the Advisory Board considered the case of the petitioner in its Meeting dated 25-6-99 and approved the order of detention. The State Government thereafter confirmed the detention order. The return further says that the petitioner has in fact no grounds in his favour and the order of detention cannot be quashed. The respondents denied the facts that the order was passed without application of mind or without considering the necessary material. The return further says that the order could not be executed because the detenu was absconding and was creating all possible hinderances. It is also submitted in the return that the petitioner remained in jail but did not conduct himself properly and as he was a menace to the peace and safety of public and tranquility the detaining authority was justified in passing the order of detention.
4. Shri Soni and Shri Sharad Verma, learned counsel appeared for the petitioner, while Shri Ajay Raizada, learned Govt. Advocate appeared for the respondent. So far as grounds No. 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 are concerned, the detenu was acquitted in all those cases. The return does not deny this fact. The return even does not say that the facts of these acquittals were placed before the detaining authority. The detaining authority in its affidavit Annexure R-17 has nowhere said that if he was informed about the acquittals then too he would have passed the order of detention. In the affidavit (Annexure R-17), the Detaining Authority has said that the detenu was hardened criminal and it was necessary to prevent him from acting in any manner prejudicial to maintenance of public order, and a preventive action under the National Security Act was necessary against him. The affidavit further says that the report was supported by the details of the records from the police station, documents were placed alongwith the report and list of the witnesses for being examined was also given. The affidavit says that the detaining authority considered the report of the Superintendent of Police, Shahdol and thereafter it directed for registration of the case against the detenu. According to the affidavit, the authority had examined the entire documentary and oral evidence carefully and after being satisfied with a view to prevent to the detenu from acting in any manner prejudicial to the maintenance of public order the detention order was passed. The affidavit says that after the order of detention was passed the police informed the detaining authority that because the detenu was absconding he could not be arrested and as and when he would be apprehended the matter would be communicated to the authority. In Para 4, the detaining authority says that the order was communicated to the State Government by Radio Message on the same day and the Government had approved the order of detention on 4-12-98. In Para 5, the authority says that the detenu could be arrested on 9-5-99 and the fact of the arrest was communicated to the State Government. The case of the detenu was placed before the Advisory Board and after receiving the report of the Advisory Board, the State Government had passed the final orders. The entire affidavit does not say that even if the material relating to acquittal of the detenu was placed before the authority it would have passed the same order.
5. The grounds of detention in Para 6 show that the detenu was tried for an offence committed by him on 6-7-1985. The petitioner admits that the detenu was convicted but under judgment dated 12-12-94 in Criminal Appeal No. 22/88 the sentence was reduced to the period of 97 days and a fine amount of Rs. 1,000/- was imposed. In relation to ground No. 15 the petitioner has filed the first informant Changa Kori’s statement who had sworn a detailed affidavit on oath stating that incident dated 7-10-98 was committed by unknown persons and respondent No. 2 R. Rajan insisted upon said Changa Kori to make the report against the detenu. It is admitted in the petition that the matter was pending in the Court of CJM, Shahdol. The petitioner has further relied upon yet another affidavit of said Changa Kori sworn on 27-1-99 wherein said Changa Kori has reiterated about the innocence of the detenu. To the similar effect is the affidavit of Ashok Kori, brother of Changa Kori. For ground No. 16 it is submitted that the respondent No. 2 initiated proceeding under Section 110, Cr.P.C. against the detenu on account of illwill as the detenu did not pay sum of Rs. 50,000/- to the respondent No. 2. For grounds No. 17 and 18, it would appear that on 20-11-98 and 21-11-98 the detenu armed with deadly weapons, in company of his friends was making search of Rajesh @ Joshi and Changa Kori, after receiving the information S.K. Pande proceeded in search of the detenu but could not find him. These matters are recorded in Rojnamcha Sanha No. 1851 dated 20-11-98 and Rojnamcha Sanha No. 1924 dated 21-11-98. From a perusal of above discussion, it would clearly appear that the grounds No. 1 to 14 are in relation to the incidence between 13-5-82 to 23-12-96. These incidence and offences could not be said to be committed within the close proximity of the order of detention. It would also appear that the fact of acquittal in as many as 13 cases was not brought to the notice of the detaining authority because of the negligence or for the ulterior motive, the fact still remains that these records were not produced before the detaining authority.
6. Learned counsel for the State referring to Section 5(A) of the National Security Act has submitted that where an order of detention has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever. The submission in substance is that as the order of detention is made on more than one ground and as some of the grounds would fall the detention order can still be maintained. For a proper appreciation of the argument Annexure P-2 the grounds of detention is again required to be seen. The detenu was acquitted in relation to item Nos. 1 to 5 and 7 to 14. If these grounds are excluded from consideration then the item No. 6 would remain item No. 5 is the incident of 1-4-85. The said ground can also not be considered to be proximately connected with the order of detention. An offence committed on 6-7-85 would not provide a ground for detention in the year 1998. So far as item No. 16 is concerned the proceedings were under Section 110, Cr.P.C. Item Nos. 17 and 18 are simply Rojnamcha reports recorded 4-3 days prior to the date of the order of detention. Even if it is held that these are not concocted or manufactured reports then too item Nos. 17 and 18 do not show commission of any offence. Item Nos. 17 and 18 simply show that on receipt of an information that the detenu armed with deadly weapons in company of his friends was making a search of Rajesh and Changa Kori. Nobody has lodged any report that in fact the detenu was making a search of those two persons nor the facts were verified by Shri S.K. Pande or the Superintendent of Police or anyone else from the witnesses that the information received by Shri S.K. Pande was correct. The Rojnamcha reports ordinarily cannot provide a ground for detention because there is nothing on the record that after receiving the informations on 20-11-98 and 21-11-98 any police authority made any investigation into the conduct of the detenu. In the opinion of this Court, these two grounds cannot provide a foundation for directing detention of the petitioner.
7. Lastly we are left with item No. 15. According to item No. 15, on 7-10-98 the detenu with his friends Raju Pande and others made an attempt on the life of Changa Kori and thereafter kidnapped him. It is noteworthy that Changa Kori the first informant and his brother Ashok Kori have filed their affidavits in support of the detenu. It is also noteworthy that on the strength of those affidavits an order of anticipatory bail was granted in favour of the detenu. Even if the affidavits of Changa Kori and Ashok Kori are ignored and item No. 15 is taken to be a serious offence then the commission of this offence would be a matter of law and order and not of public order.
8. In Paragraph No. 19 of the grounds, the District Magistrate has observed that the petitioner was hardened criminal was engaged in criminal activities since 1982 and had formed a group of the criminals with his friends viz. Jai Prakash, Anil Dwivedi, Dinesh Dixit, Dabbu Sharma, Pappu Pandey, Raju Pande. Para 19 further reads that particular areas are in the operation zone in which the detenu and others were engaged in committing crimes and the detenu armed with deadly weapons and by exploding bombs or firing from Katta (country made revolver) was terrorising the public at large. Para 19 further says that because of the terror of the detenu public was afraid in making the report or giving evidence against the detenu. From a perusal of Para 19 it would clearly appear that the order was not passed on more than one ground. As Para 19 gives summary of ground Nos. 1 to 18, it cannot be held that the order was made on two or more grounds, in effect it would be deemed to have been made on juxtapose reading of grounds No. 1 to 18.
9. In the matter of Dharamdas Shamlal Agrawal v. Police Commissioner and Anr., (1989) 2 SCC 370, it is held that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order, will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. In the present case, it is not in dispute before us that the fact regarding acquittal of the petitioner in as many as 13 cases was not brought to the notice of the detaining authority. The stress is not on the question of acquittal but on the question of non-placement of the material and vital fact of acquittal which if had been placed, would have influenced the mind of the detaining authority one way or the other. The fact of acquittal quite possibly have an impact on the decision of the detaining authority whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since the person sought to be detained was acquitted in 13 out of 14 cases and only one criminal case is pending against him, no order of detention should be made for the present and the criminal case should be allowed to run its full course. In the matter of Abdul Razak Nannekhan Pathan v. The Police Commissioner, Ahmedabad, Judgments Today 1989 (3) SC 231, the Supreme Court observed that the cases which were not proximate to the date of the order of detention and were stale could not be taken into consideration and where the person sought to be detained was acquitted of the criminal charges such cases also could not be taken into consideration.
10. Shri Raizada, learned counsel for the State has tried to persuade us by saying that the petitioner had filed a petition earlier and as the same was dismissed, the present petition does not deserve consideration. The copy of the earlier order passed by the High Court is available on the record at Annexure R-13. In the said matter the present petition Smt. Geeta Sahu had filed the petition seeking quashment of the detention order. This Court by its order dated 16-4-99 dismissed the petition observing that the petition was totally misconceived; the detention order was not placed on record. Against the detenu there were 13 criminal cases registered under various sections of IPC (Indian Penal Code). The High Court further observed that it found no reason to interfere in the case at that stage. The High Court also observed that in case of Union of India v. Parasmal Rampuria) (1998 Vol. 8 SCC 402) the Apex Court observed that detenu must surrender before filing the petition. The petition virtually was dismissed because the High Court was of the opinion that in cases of pre-execution matters, the Courts should be very slow in interfering unless the order was vague or was passed contrary to the enactment or the identity of the person was not known. The petition No. 1042/99 was not dismissed on merits but was dismissed on a technical ground. In our opinion the judgment delivered in W.P. No. 1042/99 would not operate as a bar against the present petitioner. Referring to Section 16 of the National Security Act, learned counsel for the State submitted that where an action is taken in good faith, the said action is protected and as because of a bonafide mistake the judgment of acquittals were not filed before the detaining authority, the order does not call for any interference. In the opinion of this Court, the argument is misconceived. Section 16 protects the actions taken in good faith and not the lapses committed by the authority. Section 16 says that no suit or other legal proceeding shall lie against the Central Government or a State Government and no suit, prosecution or other legal proceeding shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act. A fair reading of Section 16 would show that where some action is taken in good faith the Central Government or the State Government are protected and no suit, prosecution or other legal proceeding shall lie against any person who has done something in good faith. We are not considering the question of good faith or bad faith. The question before the Court is whether the requisite material which could have affected the mind of the detaining authority was submitted before it or not. We are required to consider that if such material was placed before the authority whether its decision would have been affected or not. Section 16 does not protect any illegal order. It protects an action taken in good faith. Having given our anxious consideration to the facts and circumstances of the case, the manner in which the sponsoring authority did not place the requisite material before the detaining authority so also the detaining authority having not been apprised of the acquittals in 13 cases and being oblivion of the fact that out of 18 instances in 13 cases the proposed person was acquitted, one case in which detenu was convicted was of the year 1985, one case was still pending consideration, in one case proceedings under Section 110, Cr.P.C. were drawn and the two instances relate to the Rojnamcha reports, we are of the opinion that the order of detention is bad.
11. Shri Sanjay Agrawal, learned counsel for the respondent No. 2 submitted that the allegations made against the respondent No. 2 are false and false to the knowledge of the petitioner and in any case the action taken by the respondent No. 2 is protected under Section 16 of the Act. We do not wish to deal with that aspect of the matter because no finding can be recorded on the charges levelled by the petitioner, against the respondent No. 2, unless a fact finding enquiry is made.
12. For the reasons aforesaid, the petition deserves to and is accordingly allowed. The order Annexure P-1 is quashed. The petitioner who is in detention be immediately released and set at liberty.