Allahabad High Court frees NSA detenu held over newspaper report
The Allahabad High Court allowed a petition and observed that a newspaper report is not legal evidence that can be examined in support of the complainant.
The Division Bench of Justice Justices Mahesh Chandra Tripathi and Nalin Kumar Srivastava passed this order while hearing a Habeas Corpus petition filed by Saud Akhtar and another.
The Habeas Corpus Petition under Article 226 of the Constitution of India is preferred seeking following reliefs:-
“I. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.03.2022 passed by respondent no.3 purportedly under Section 3 (2) of National Security Act, 1980.
II. Issue a writ, order or direction in the nature of certiorari quashing the impugned Notification No 111/2/04/2022-C.X-6 Lucknow dated 07.04.2022 issued by respondent no 2 in exercise of the power under Section 3 (3) (4) of National Security Act, 1980.
III. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.04.2022 passed by respondent no 3, by which the representation of the petitioners has been rejected.
IV. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.05.2022 passed by respondent No 5 (copy not provided to the petitioner).
V. Issue writ, order or direction in the nature of Habeas Corpus commanding and directing the respondents concerned to produce the petitioner no 1/detenue before the Court and set petitioner no 1 detenue at liberty forthwith, who is under illegal detention vide impugned detention order dated 31.03.2022 under Section 3 (2) of National Security Act, 1980 passed by respondent no 3.
VI. Issue a writ, order or direction to pay him compensation to be decided by the Court for his illegal detention.
VII. Issue a writ, order or direction which the Court may deem fit and proper under the fact and circumstances of the case.
VIII. Award the cost of the petition to the petitioners.”
The Court noted it appeared from the record that on 31.3.2022 the District Magistrate, Kanpur Nagar passed an order of detention under Section 3 (2) of the National Security Act, 1980. In passing the said detention order, the District Magistrate felt satisfied that since it was necessary to prevent the petitioner no 1 from acting in any manner prejudicial to the maintenance of public order, the passing of the order under NSA, 1980 was imperative.
The petitioner no 1 (Saud Akhtar) was confined in the District Jail, Kanpur Nagar since 20.10.2020 after his arrest in pursuance of the FIR dated 20.5.2020. The detention order dated 31.3.2022 along with grounds of the detention and other relevant materials were served to the petitioner on the same day through the jail authorities to afford him opportunity for making an effective representation. The detention order along with grounds of detention was sent to the State Government on 01.4.2022 through special messenger. Finally, the State Government vide order dated 07.4.2022 granted approval to the detention order.
The petitioner no 1 made representations dated 04/08.04.2022 for being forwarded to the Advisory Board, State Government as also to the Central Government. However, there was an intervening period of two days on 09.4.2022 and 10.4.2022 being second Saturday and Sunday and therefore, the District Magistrate has rejected the representation on 11.4.2022. It was communicated to the petitioner on the same day through jail authorities. The rejection of the representation was also communicated to the State Government & Central Government on 11.4.2022 through special messenger. Having received the comments, the State Government forwarded the report on his representation to the Central Government.
The State Government rejected the representation of the petitioner on 26.4.2022 and the Central Government rejected his representation on 27.4.2022. Both the rejection orders were also communicated to the petitioner through jail authorities on the same day. The Advisory Board also heard the petitioner on 09.5.2022.
After receiving a report of the Advisory Board, the said detention order was confirmed by the State Government vide order dated 20.5.2022 initially for a period of three months from the date of detention i.e. 31.3.2022, which has been challenged in the petition.
Feeling aggrieved by the aforesaid, the detenue/petitioner has filed the habeas corpus petition through his next friend/son Nawaz Akhtar (petitioner no 2) with the prayer.
During pendency of the habeas corpus petition, the State Government vide order dated 14.6.2022, extended the period of detention for a further period of three months and then on 22.9.2022 the State Government extended the period of detention for nine months from the date of detention i.e 31.3.2022, but it transpires from the record that the extension orders dated 14.6.2022 and 22.9.2022 have not been challenged by the detenue/petitioner in the habeas corpus petition.
Counsel for the petitioner submitted that in this writ petition, the validity of the detention of the petitioner no 1 has been challenged. The petitioner no 1 has been detained by the District Magistrate, Kanpur Nagar by an order dated 31.3.2022 made under Section 3 (2) of the NSA, 1980. The State Government vide order dated 07.4.2022 after receipt of the opinion of the Advisory Board has approved the detention order as required under Section 3 (4) of the NSA, 1980. The grounds of detention contain a recital that the aforesaid incident had resulted in spread of fear and terror amongst the general public of District Kanpur Nagar. The public order and the tempo of life was totally disturbed. The aforesaid incidents were given wide coverage by the media in various national and local level newspapers. A person already arrested can still be detained under the NSA Act, but for exercising that power, the authorities have to fulfill certain requirements. The necessary ingredients for recording a valid ‘subjective satisfaction’ of Competent Authority is absent in the impugned order dated 31.3.2022.
Counsel for the petitioner contended that as per Section 3 (2) of NSA, 1980 an order of detention can be passed with the view to prevent a person from acting in any manner prejudicial to the security of the State or to the maintenance of the Public Order. The case mainly falls under the category of disturbance to “law and order” and not “public order”. Public Order was said to embrace more of the community than law and order. Public Order is the even tempo of the life of the community taking the country as a whole or even a specified locality. The disturbance of Public Order is to be distinguished from acts directed against individuals, which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Therefore, the question, whether a man has committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society.
Per contra, AGA and counsel for the Union of India made their submissions in support of impugned order and submitted that due to the aforesaid incident, the public order and tranquility of the locality was disturbed. There was immense possibility of release of the petitioner as his bail application in Case was pending before the Court, therefore, the Station House Officer submitted his report dated 30.3.2022 to the Assistant Commissioner of Police for initiating the proceedings against the petitioner under NSA, 1980. The report of the Assistant Commissioner of Police shows that the likelihood of involvement of petitioner in similar acts was not ruled out. This report became the basis for passing of the detention order. After going through the entire material available on record and the report of the sponsoring authority, the detaining authority has passed the impugned order after being fully satisfied on the basis of the material produced before her that on being released on bail the petitioner may again indulge in activities prejudicial to the public order and the same does not suffer from any illegality or infirmity, hence the habeas corpus writ petition is liable to be dismissed.
The Court said the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.While passing the detention order impugned much emphasis is being placed on the stale incident of 2020 in which the petitioner no 1 was already accorded bail by the Court. The media clippings have been made as the proof of disruption of public order. The newspaper report by itself does not constitute evidence of the contents. The reports are moreover hearsay evidence. The newspaper reports are at best secondary evidence and not admissible in evidence without proper proof of its content under the Indian Evidence Act, 1872.
‘It is thus clear that the newspaper report is not a ‘legal evidence’ which can be examined in support of the complainant. It is trite law that there has to be legal evidence in support of the allegations levelled against a person. In this case, the only evidence relied upon is the newspaper reporting and nothing else. For what has been stated above and as per the settled legal position, a newspaper report is not ‘legal evidence”.
In the case, the detaining authority has merely mentioned in the grounds of detention that the petitioner has filed his bail application before the Court on 15.2.2022 and there was possibility of the petitioner indulging in similar activities prejudicial to the maintenance of public order on his coming out of jail. She has not recorded her satisfaction in the impugned order that there was real possibility of his being released on bail which omission in our opinion has totally vitiated the impugned order.
Therefore, in view of foregoing analysis, we are of the considered opinion that the detention of the detenu under the provisions of Section 3 (2) of the NSA, 1980 is unsustainable,’ the Court observed.
‘In the result the impugned order of detention dated 31.3.2022 and the consequential orders are hereby quashed.
The Habeas Corpus Petition is allowed and the detenue/petitioner is ordered to be set at liberty by the respondents forthwith unless required in connection with any other case,’ the Court ordered.