District Magistrate handed orders in a mechanical method, in some instances merely on the premise of police experiences.
The procedural safeguard of efficient illustration for these detained was critically infringed.
Individual liberty assured by the Constitution can’t be taken away with out correct software of thoughts.
THESE ARE a number of the key observations made by the Allahabad High Court because it quashed 30 of 41 instances that confirmed how the National Security Act (NSA) is being abused in Uttar Pradesh over the past two years.
The Indian Express tracks authorized information of all of the NSA instances that had been dismissed to search out out what the court docket mentioned and why. Here are key illustrative examples:
NON-APPLICATION OF MIND
Detained: Laiq alias Lakku
NSA issued: On July 31, 2017, by District Magistrate (DM) Kannauj counting on FIR alleging cow slaughter in “open field”.
High Court steps in: It placed on file submissions from accused that “detention order has been passed solely on account of some applications/ complaints/ representations given by and given at the behest of political parties”. It mentioned “subjective satisfaction as recorded (by the DM) is bad in law”, and that the federal government “could not demonstrate as to what was the cogent material with the detaining authority on which the satisfaction has been recorded”.
Key remark: Recorded submission that “detaining authority was unduly swayed by the representations and the applications given by the City President of the BJP as well as the District President of Hindu Yuva Vahini and… the detaining authority has not evaluated the circumstances with a free mind, individually and independently.”
Detained: Inam
NSA order issued: On August, 14, 2017, by DM Muzaffarnagar on FIR that claimed police acquired an tip-off from “informer” about cow slaughter in “vacant field”; police workforce heard a “conversation” that the accused would “dispatch the material to Delhi and will bring more cows…from Haryana to make their profession flourish”.
High Court steps in: It mentioned the order was handed in a “mechanical manner…merely on the basis of the report of police”, and that the DM was “not at all conscious of all the relevant aspects of the case”.
Key remark: “It is essential that the detaining authority must have applied its mind to the question whether it is necessary to detain a particular person with a view to prevent him from acting prejudicially to any of the objects mentioned in the Act.”
Detained: Irfan Qureshi
NSA issued: On August 30, 2017, by DM Azamgarh on FIR alleging cow slaughter inside a home.
High Court steps in: It placed on file Qureshi’s submission that the order was handed “in a routine manner without application of mind” on the police report. It mentioned the federal government argued that Qureshi was detained beneath NSA as “there was anguish among people of the other community” however “could not point out that the act of the petitioner was prejudicial to disturbance of public order”.
Key remark: Citing Supreme Court, it mentioned that “the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum, but not circumvent it by passing an order of detention merely to supersede the bail order.”
NO EFFECTIVE REPRESENTATION
Detained: Najar Qureshi
NSA issued: On April 13, 2018, by DM Muzaffarnagar on FIR alleging cow slaughter “inside a house, located behind a graveyard”.
High Court steps in: Notes that order has been challenged on the “only ground” that petitioner “was not given any opportunity by the Advisory Board to be represented through a legal practitioner/ counsel of his choice before the Board so as to enable him to place his case effectively before the Board”. But “at the time of hearing of the case before the U.P. Advisory Board, Lucknow, officers of the detaining authority were present and heard in the course of proceedings”.
Key remark: Citing Supreme Court, it mentioned: “If the detaining authority or the government takes the aid of a legal practitioner or legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. If it is denied to him then a clear case of breach of Article 14 is made out in favour of detenu.”
Detained: Afsar
NSA issued: On July 26, 2019, by DM Bulandshahr on FIR alleging cow slaughter “inside a house”.
High Court steps in: Citing the federal government’s reply on December 16, 2019, that an officer from a central company referred to as for “some enquiry/report”, it mentioned there isn’t any clarification “as to why the report from the said independent agency was called for as there was no reference of the petitioner being involved in any serious or any anti-national activity”.
It additionally mentioned {that a} delay of 19 days in furnishing an unbiased report by the central company “remained unexplained” and dominated that “the right of the petitioner under Article 22 (5) of the Constitution of India was seriously infringed, rendering his detention as illegal”.
Key remark: “The officer dealing with representation of the petitioner acted in a most irresponsible and negligent manner and has failed to account for the reason as to why did he call for the report from the Central Agency”.
Detained: Imran alias Tendu
NSA issued: On August 6, 2017, by DM Muzaffarnagar counting on FIR alleging cow slaughter in “front of a shop”.
High Court steps in: State authorities “committed a mistake in not sending the matter to the Advisory Board before extending the period for another six months”.
Key remark: Citing apex court docket, it mentioned: “Where law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in same manner following provisions of law, without deviating from prescribed procedure. Underlying principles cannot be ignored while passing orders of detention or extending detention period from time to time.”
LAW AND ORDER ISSUE
Detained: Jaheer
NSA issued: On July 9, 2018, by DM Hapur counting on FIR alleging cow slaughter “inside a house”.
High Court steps in: It mentioned the federal government pointed to “reports that Hindu organisations staged demonstrations” and that “it can safely be assumed that there had been a breach of public order”. But, it famous, the “demonstrations, if any, appear to be a consequence of spread of information and rumours, not a direct consequence of the act”. It mentioned that “who spread the news, with what motive, is not known”.
Key remark: “Such demonstrations are often fanned by vested interests for oblique purposes which, by itself, would not convert an act constituting a mere infraction of law and order into one which breaches public order”.
Detained: Shahid Qureshi
NSA issued: On April 4, 2019, by DM Bulandshahr stating that Shahid and associates hosted attendees of the Tablighi Jamaat congregation at a farmhouse — and that they went for “hunting”, and the meat was served as “keema” and “biryani” to visitors.
High Court steps in: “…material nowhere indicates that while the prohibited meat was being served, any member of the majority community was present who could claim to be a witness to the serving of the prohibited meat”; there “is no material” to point that Shahid was “physically present at the time of slaughtering”; “only material” are confessional statements “recorded after more than 4 months of the alleged occurrence”.
Key remark: “…slaughtering and consumption of beef per se cannot attract the provisions of the National Security Act…It would be an offence under the provisions of the Cow Slaughter Act.”
Detained: Aman Saeed
NSA issued: On May 23, 2019, by DM Bulandshahr on FIR alleging cow slaughter inside residential compound.
High Court steps in: “…materials, including the grounds of detention, indicate that the alleged disharmony/ disruption of public order including religious sentiments was affected on account of a tip-off by a Peeping Tom that rumours spread in the area”.
Key remark: “If a Peeping Tom discloses the offensive activity taking place inside the residential premises in secrecy to the outside world, whereupon resentment/ protest/ disharmony ensued, same cannot be attributed to disruption of public order…”
NO PREVIOUS HISTORY
Detained: Murad Ali
NSA issued: On May 21, 2018, by DM Barabanki on FIR that an “informer saw…some persons trying to catch a cow” within the fields.
High Court steps in: “There is no criminal history of the petitioner and, as such, there is no history sheet operating against him”; “In such a situation, the Court is not in a position to appreciate the conclusion drawn by the District Magistrate that the petitioner is likely to indulge in activities leading to breaking down of public order”; “The individual liberty guaranteed to the petitioner by the Constitution of India cannot be taken away without proper application of mind.”
Key remark: “…In absence of any history, prediction could not have been made by the District Magistrate about the future behaviour of the petitioner…in case of principle and law, prediction has to be made on the basis of actual calculation based on relevant material and data.”
