Allahabad HC Frees Dr. Khafeel Khan From NSA

A Bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh of Allahabad High Court has delivered their verdict in the case of Dr. Khafeel Khan’s Habeas Corpus Petition filed by his mother. The Court has allowed the Habeas Corpus Petition of Dr. Khafeel Khan holding that the action of State Government detaining him under National Security Act 1980 is illegal.

Background:

An unfortunate incident occurred at the teaching hospital attached with B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August, 2017 due to an unexpected shortage in supply of liquid oxygen. In a course of disciplinary action, Dr. Khafeel Khan was placed under suspension on 22nd August, 2019, which was followed by a memorandum of allegations dated 12th September, 2017.

For the ill-happenings in the intervening night of 10th/11th August, 2017, a criminal case was also registered against detenue and eight other Doctors working at B.R.D. Medical College, Gorakhpur for the alleged commission of offences under Sections 409, 308, 120B, 420 Indian Penal Code, 1860, Section 15 of Indian Medical Council Act, 1956 and Section 66 of the Information Technology Act, 2000. The case aforesaid was lodged on 23rd August, 2017 at Police Station Hazratganj, Lucknow and the same was transferred for investigation to Police Station Gulhariya, Gorakhpur. The investigating agency arrested the detenue on 2nd September, 2017 but was released on bail in pursuance of an order dated 25th April, 2018 passed by learned single Bench of this Court.

In the month of December, 2019, Government of India introduced the Citizenship Amendment Bill that came to be passed by both houses of Parliament. On 12th December, 2019 itself the detenue and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On 13th December, 2019 at the instance of Sub-Inspector of Police, Sri Danish a criminal case was lodged against the detenue under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. However the Dr. Khan was was directed to be released on bail vide order dated 13.02.2020 of CJM Aligarh. It was alleged by the mother of Dr. Khan that the bail order was presented before the Superintendent of Jail, District Jail, Mathura at about 5.30 pm but was not accepted intentionally and purposefully. The receipt of the order was ultimately shown at 20:20 hours.

However on the same day i.e. 13th February, 2020 the Inspector In-charge, Police Station Civil Line, Aligarh reported to Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh to recommend the District Magistrate, Aligarh for detention of Dr. Kafeel Khan as per provisions of sub-Section (2) of Section 3 of the National Security Act, 1980.ing the powers under sub-Section (2) of Section 3 of the National Security Act, 1980 directed for detention of Dr. Khan undr NSA, 1980. Further by an order dated 6th May, 2020 and 04 August 2020 the State Government invoking powers under sub-Section (1) of Section 12 of the National Security Act, 1980 extended the term of detention for a period of six months from the date of detention i.e. 13th February, 2020. These orders of State Government were put to challenge by the mother of Dr. Khan in Habeas Corpus Petition:

Arguments on behalf of the Petitioner:-

  1. No material is available on record to arrive at a satisfaction that detention of Dr. Kafeel Khan is necessary to prevent any activity or eventuality referred under sub-Section (2) of Section 3 of the National Security Act, 1980.
  2. The satisfaction recorded by the appropriate government to detain Dr. Kafeel Khan is absolutely ill-founded and is based on malicious analysis of the facts taken into consideration.
  3. The order of detention is passed only to frustrate the order passed by the Chief Judicial Magistrate, Aligarh on 10th February, 2020 directing the State Government to release Dr. Kafeel Khan from custody on bail after furnishing requisite sureties and bail bond.
  4. The detention brought into effect under order dated 13th February, 2020 deserves to be declared illegal as the authority making the order of detention did not communicate the grounds for detention sufficient to afford opportunity of making representation against the order.
  5. The detention of Dr. Kafeel Khan deserves to be revoked as the State of Uttar Pradesh as well as the Central Government failed to decide expeditiously the representation submitted by the detenue.

Arguments on behalf of State Government:

  1. District Magistrate, Aligarh only after taking into consideration all the circumstances and the material made available to him arrived at a definite conclusion pertaining to the need of detaining Dr. Kafeel Khan to prevent him from acting prejudicially to public order.
  2. DistrictMagistrate, Aligarh examined all the events taken place on 12th December, 2019 and subsequent thereto, recorded satisfaction that Dr. Kafeel Khan may cause serious injury to the maintenance of public order in the city of Aligarh and, therefore, the detention is highly desirable.

The Court Held:

  1. Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. Under Article 21 of the Constitution of India along with the right to life, the right to personal liberty is a precious fundamental right.
  2. No proceedings for detention of Dr. Kafeel Khan were initiated for about two good months from the day he addressed the students. At that time the sole action taken was lodging a criminal case against him pertaining to offences under Section 153A of Indian Penal Code.
  3. It is only after passing of the release order dated 12th February, 2020 three police officials made a request to the Deputy Inspector General/Senior Superintendent of Police, Aligarh to make a request to the District Magistrate, Aligarh for having an order of detention. The order of detention was served upon Dr. Kafeel Khan along with a note of grounds for detention and the supporting material.
  4. A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh.Primafacie, the speech is not such that a reasonable man could have arrived at a conclusion as the inference drawn by the District Magistrate, Aligarh.
  5. There is a serious lack of objective material on record as may have given rise to a valid subjective satisfaction with the detaining authority to preventively detain the detenue on 13.02.2020.
  6. Delay in passing of detention orders or in recording subjective satisfaction to preventively detain a person may not be a subject matter of a hard and fast rule, yet the record must itself indicate that there existed a continuing causal link between the satisfaction claimed to have been recorded and the offending act.
  7. Dr. Khan was given grounds of detention in a compact disk but was not provided with device to play the disc.In absence of such device the supply of compact disk is absolutely non consequential.It virtually amounts non-supply of the material necessary to submit a representation in accordance with clause (5) of Article 22 of the Constitution of India.
  8. We are having no hesitation in concluding that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

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