'Participation In Muharram Procession Last Year Carrying Sword Has Got No Relevance With This Year's Procession', MP HC Quashes Detention Order [Read Order]

The Bench of Justice S. C. Sharma Shailendra Shukla passed this order in a petition filed as a Habeas Corpus writ petition (along with other writ petitions) being aggrieved by the order dated 04/09/2020 by which the Petitioner's brother Hakim aged about 19 years was detained under the National Security Act, 1980.

Because of the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they were disposed of by the Court.

Facts of Writ Petition No.14215/2020 are narrated hereunder

Notably, he (Hakim, brother of the Petitioner) was detained by the police on 23-24/08/2020 (midnight) and a case was registered against him for an offence under Section 25 of the Arms Act. He has also been granted bail on 11/09/2020 in the aforesaid matter.

The petitioner further stated that while his brother was in jail in respect of an offence under Section 25 of the Arms Act, he was informed on 04/09/2020 that District Magistrate in the exercise of powers conferred under Section 3 of National Security Act, 1980 has passed an order of detention on 04/09/2020.

The contention of the counsel for the petitioner was that the order of detention had been passed in a vindictive manner.

The brother of the petitioner is not a hard-core criminal. By registering only one case under Section 25 of the Arms Act that too when he was in jail, the order of detention has been passed.

The petitioner also argued before the Court that the order of detention was required to be approved within twelve days and the same has not been done. It has been stated that only because he has participated in the possession of Muharram, the detention order was passed.

The respondent state argued that an entry was made in the Rojnamcha, while brother of the petitioner was in jail on 30/08/2020, that brother of the petitioner and other co-accused persons on the eve of Muharram last year had taken out a procession carrying swords and therefore, to maintain public order in the city and from preventing the brother of the petitioner in acting any manner prejudicial to the security of the State, the Superintendent of Police submitted a report on 03/09/2020 to the District Magistrate and the District Magistrate passed an order on 04/09/2020 detaining the brother of the petitioner under the National Security Act, 1980.

Court's Observations

The Court remarked,

"This Court really fails to understand that based upon a Rojnamcha Entry dated 30/08/2020 in which it was stated by the police that the brother of the petitioner has participated in the Muharram procession last year carrying swords, how he can be a threat to law and order problem."

The Court further noted,

"Participation in Muharram last year, even if it is presumed to be correct, has got no relevance with the procession which was to take place this year. There is no entry in the last year Rojnamcha also to that effect."

Further, the Court took in to account the fact that sole case in which the petitioner was already in jail, the order of detention had been passed.

The Court observed that the action of the respondent District Magistrate suffered from the vice of non-application of mind and deserved to be quashed.

Further, the Court observed that in case, if the brother of the petitioner and other persons took out a procession with swords last year, why the State Government did not file the last year's Rojnamcha Entry?

It appears, the Court remarked, that only in order to detain the petitioner's brother under the National Security Act, 1980 such an incorrect statement was being made before this Court and therefore, the petition deserved to be allowed and was accordingly allowed with a cost of Rs.10,000/-.

In other identical cases also, the order of detention had not been approved within twelve days and a similar statement had been made that the persons detained took out procession last year on Muharram carrying swords. The other identical petitions were also allowed with a cost of Rs.10,000/- each.

The Court ordered that the brother of the petitioner and other persons, who were detained on account of the order passed under National Security Act, 1980 be released forthwith.

The impugned order of detention in the present case passed under the National Security Act, 1980 and other Writ Petition connected matters were set aside with a cost of Rs.10,000/- each