G. Basheer Ahamed vs The State of Tamil Nadu

P. Sathasivam, J.—The petitioner herein by name G.Basheer Ahamed challenges the impugned order of detention, dated 15.10.2005,

passed by the third respondent/District Magistrate and District Collector, Tiruvarur District, detaining him under the National Security Act, 1980.

Heard Mr.K. Chandru, learned Senior Counsel for the petitioner; Mr. Abudukumar Rajarathinam, learned Government Advocate for

Respondents-1, 3 & 4; and Mr. P. Kumaresan, learned Additional Central Government Standing Counsel for R-2.

Mr. K. Chandru, learned Senior Counsel appearing for the petitioner, after taking us through the grounds of detention and all other connected

materials, at the foremost, submitted that absolutely there is no case made out for invocation of National Security Act against the petitioner. In any

event, according to him, it is only a law and order problem, for which, the petitioner cannot be detained under the National Security Act. He

pointed out that even if the ground case and the adverse cases are taken as genuine, yet, there is no ground made out for invocation of the National

Security Act. Further, there was no recovery of explosives from the petitioner even in the ground case. In such circumstances, according to the

learned Senior Counsel, the materials relied on by the respondents are not sufficient for invocation of the National Security Act and, at the most, it

is only a law and order problem. He also contended that even the two adverse cases are not genuine and those cases have been fabricated against

the detenu.

The grounds of detention as well as the connected materials show that the petitioner already committed two crimes punishable under the Indian

Penal Code and according to the Detaining Authority/District Collector, Tiruvarur, his act created a tense situation between the Hindu and Muslim

communities. In the ground case occurrence, which took place on 14.09.2005, he committed a grave crime and a case was registered in

Muthupettai P.S. Cr. No. 329/2005 under Sections 147, 148, 341, 324 & 307 IPC; 25 (1)(a) of the Indian Arms Act; and 3(1) of TNPP (D&L)

Act, 1984. The grounds also show that, for the period from 04.08.2005 to 14.9.2005, he committed three grave crimes and the same are under

investigation.

The grounds of detention also show that, on 14.09.2005, the detenu and his associates committed a grave crime in the Vinayaha procession by

damaging the public properties and in that regard a case was registered against him and his associates. It is pointed out that, based on the voluntary

confession made by detenu Basheer Ahamed on 14.09.2005, the police seized 5 aruvals. It also shows that the detenu caused panic between the

Hindu and Muslim communities and also created a tense situation between them. It is pointed out by the learned Government Advocate that the

third respondent/District Magistrate and District Collector, with a view to curtail the future activities of the detenu and in order to maintain law and

order, public peace and security of the State; after applying his mind with reference to the material evidence and after arriving at subjective

satisfaction, passed the impugned order of detention as against the petitioner.

It is brought to our notice that the second adverse case registered in Muthupettai P.S. Crime No. 328 of 2005 relates to an occurrence where

the detenu and his 28 associates, armed with deadly weapons, intercepted the Vinayaha procession conducted by the Hindus and created a tense

situation. Due to the intervention of police, major clash was averted. It is also seen from the grounds that it was the detenu, who issued pamphlets

to the Muslim members and others to disturb peace during Vinayaha procession and the same were seized.

Learned Senior Counsel pointed out that even if the entire case of the respondents is acceptable, at the most, it can only be concluded as law

and order problem and there is no material to show that the detenu acted in a manner detrimental to the security of India.

On going through the details given in the grounds of detention and the particulars furnished before us, we are unable to accept the contention of

the learned Senior Counsel. The act of the detenu along with his associates as well as the seized pamphlets from the place of occurrence shows

that they instigated violence against the Hindus. Muthupettai is a town where Muslims and Hindus are more or less equal in population. The

Detaining Authority, after considering the fact that it is a sensitive area, where Muslims and Hindus are living in peace, and that any clash in the

name of religion will spark violence, leading to national level unrest; observed that any activity, which disrupts the national integration and national

security, should be nipped in the bud and that the spark of violence created by Basheer Ahamed may become wild fire, inviting danger to the

national security. Hence, it cannot be said that it is only a law and order problem and that no issue relating to national security is involved.

Learned Senior Counsel for the petitioner, relying on decisions of the Supreme Court reported in State of U.P. Vs. Kamal Kishore and

Another, and 1989 (1) Cri 8 (Ayya alias Ayub v. The State of Utter Pradesh and Anr.), contended that the law of preventive detention should not

be used merely to clip the wings of an accused, who is involved in a criminal prosecution.

We verified both the decisions and absolutely there is no quarrel about the legal position. It is relevant to quote Para No. 12 of the Judgment

reported in State of U.P. Vs. Kamal Kishore and Another, , wherein, Their Lordships have held as follows:-

Considering all these decisions we have held in the case of Gulab Mehra Vs. State of U.P. and Others, . (judgment of this case was pronounced

on September 15, 1987) that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the

community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the

community, it will be an act which will affect public order.

It is clear that whether an act relates to law and order or to public order, it depends upon the effect of the act on the life of the community. Further,

if the effect or potentiality of the act disturbs or dislocates the even tempo of the life of the community, it is reasonably presumed that it will affect

public order.

In State of U.P. and Another Vs. Sanjai Pratap Gupta @ Pappu and Others, , the terms ''public order'', ''law and order'' and ''security of

State'' have been elaborately considered. The discussion in Para Nos.10 to 14 is relevant and those paragraphs are extracted below,

""Public order"", ""law and order"" and the ""security of the State"" fictionally draw three concentric circles, the largest representing law and order,

the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an

act affecting law and order may not necessarily also affect public order. Likewise, an act may affect public order, but not necessarily the security of

the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a

similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no

overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an

impact that it would affect both public order and the security of the State. (See Kishori Mohan Bera Vs. The State of West Bengal, ; Pushkar

Mukherjee and Others Vs. The State of West Bengal, ; Arun Ghosh Vs. State of West Bengal, ; and Nagendra Nath Mondal Vs. The State of

West Bengal, .

The distinction between ""law and order"" and ""public order"" has been pointed out succinctly in Arun Ghosh case. According to that decision the

true distinction between the areas of ""law and order"" and ""public order"" is ""one of degree and extent of the reach of the act in question upon

society"". The Court pointed out that: (SCC p. 100, para 3) ""An act by itself is not determinant of its own gravity. In its quality it may not differ from

another but in its potentiality it may be very different."" (see Babul Mitra Vs. State of West Bengal and Others, and The Collector of Customs,

Madras and Another Vs. C. Tarachand, .

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.

The two concepts have well-defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of

public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every

infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle

representing public order and the smallest circle represents the security of State. ""Law and order"" comprehends disorders of less gravity than those

affecting ""public order"" just as ""public order"" comprehends disorders of less gravity than those affecting ""security of State"". (see Kuso Sah Vs. The

State of Bihar and Others, ; Mrs. Harpreet Kaur Harvinder Singh Bedi Vs. State of Maharashtra and another, ; T.K. Gopal @ Gopi Vs. State of

Karnataka, and State of Maharashtra Vs. Mohd. Yakub and Others, .

The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the

number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its

impact.

In Commissioner of Police v. C.Anita 2004 SCC (Cri) 1944 Their Lordships again, after discussing the terms ''public order'', ''law and order''

and ''security of State'', concluded thus:-

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.

We have already referred to the details stated in the grounds of detention and the documents supplied to the detenu. The Detaining Authority

has taken into consideration the involvement of the detenu and his associates in activities disturbing the peace prevailing among two major religious

communities, viz., Hindus and Muslims, and arrived at the subjective satisfaction to invoke Section 3(2) of the National Security Act. It is useful to

refer to the following conclusion of the Apex Court in Para No. 15 of the decision reported in 2004 SCC Cri 1944 (cited supra), which reads as

under:-

The court cannot substitute its own opinions for that of the detaining authority when the grounds of detention are precise, pertinent, proximate

and relevant.

We have already referred to the details regarding the adverse cases and also the ground case, which show as to in what manner the detenu and

his associates planned to disturb the peace among the two religious communities. The incidents referred to therein clearly substantiate the

subjective satisfaction arrived at by the Detaining Authority as to how the acts of the detenu were prejudicial to the maintenance of public order

and security of State. As observed by the Hon''ble Supreme Court, it is not the number of acts that matters, what has to be seen is the effect of the

act on the even tempo of life, the extent of its reach upon the society and its impact.

In the light of the above discussion, we reject the contention raised by the learned Senior Counsel for the petitioner.

Learned Senior Counsel for the petitioner further submitted that in view of Section-17 of Tamil Nadu Act 14/1982, the impugned detention

order under the National Security Act is not sustainable. We are unable to accept the said contention. Section 17 of Act 14/1982 makes it clear

that on and after the commencement of Act 14 of 1982, no order of detention under the National Security Act, 1980 (Central Act No. 65 of

1980) shall be made by the State Government or any of their Officers under that Act in respect of any boot-legger, drug-offender, forest-offender,

goonda, immoral traffic offender, or slum-grabber in the State of Tamil Nadu, on the ground of preventing him from acting in any manner

prejudicial to the maintenance of public order, where an order of detention may be or can be made against such person, under the said Act. As

rightly pointed out by the learned Government Advocate, after Act 14/1982, in respect of the persons referred to therein, viz., Boot-legger, drug-

offender etc., no order of detention under National Security Act shall be made by the State Government or any of their Officers. In view of the

language used in Section-17, we are satisfied that the same is not applicable to the detenu in this case.

Finally, learned Senior Counsel for the petitioner submitted that there was delay on the part of both the authorities in disposal of the

representation of the detenu.

In respect of disposal of the representation by the State Government, the particulars furnished by the learned Government Advocate show that

the representation of the detenu, dated 25.10.2005, was received by the Government through the Superintendent, Central Prison, Trichy, on

31.10.2005, parawar remarks were called for from the Detaining Authority on the same date, i.e., on 31.10.2005 and the same were received

from the said Authority on 07.11.2005. It is brought to our notice that 5.11.2005 and 6.11.2005 were holidays, being Saturday and Sunday.

Further Particulars were called for from the Detaining Authority on 08.11.2005 and the same were received from the Authority on 14.11.2005.

12.11.2005 and 13.11.2005 were holidays, being Saturday and Sunday. Circulation Note was put up on 15.11.2005. Under Secretary, Public

(Law and Order) Department, considered the representation on 16.11.2005; Additional Secretary also considered it on the very same day and

Deputy Secretary, Law Department, considered on 17.11.2005. Minster for Law considered the representation on 18.11.2005. Rejection letter

was sent to the detenu on the same day and it was served to him on 19.11.2005. If we exclude the intervening holidays, it cannot be claimed that

there was undue delay in disposal of the representation by the State Government.

With reference to the representation sent to the Central Government, the particulars furnished by the learned Additional Central Government

Standing Counsel show that the representation, dated 25.10.2005, was actually signed by the detenu only on 26.10.2005. Since 29.10.2005 and

30.10.2005 were holidays, being Saturday and Sunday, the State Government forwarded the representation to the Central Government on

31.10.2005. 01.11.2005 was a holiday on account of Diwali. English translation of the representation was called for from the District Collector on

03.11.2005. 05.11.2005 and 06.11.2005 were holidays, being Saturday and Sunday. The Collector sent a letter to the State Government on

08.11.2005. Again, 12.11.2005 and 13.11.2005 were holidays, being Saturday and Sunday. Parawar remarks were sent to the State

Government on 14.11.2005. Covering Letter from the State Government with remarks was sent to the Central Government on 16.11.2005. The

same was posted on 17.11.2005. 19.11.2005 and 20.11.2005 were holidays as Saturday and Sunday. The said letter was received by the

Central Government on 21.11.2005. Thereafter, the same was circulated from Section Superintendent to Home Secretary and re-circulated for

preparing rejection letter between 22.11.2005 and 25.11.2005. 26.11.2005 and 27.11.2005 were holidays as Saturday and Sunday. Rejection

Letter was intimated by way of Telegram on 28.11.2005 and it was served to the detenu on 30.11.2005. Here again, if the intervening holidays

are excluded, we are of the view that the time taken by the Central Government cannot be said to be either unreasonable or excessive.

Accordingly, we reject the said contention raised by the learned Senior Counsel for the petitioner.

There is no merit in the contentions made by the learned Senior Counsel for the petitioner. We do not find any error or valid ground for

interference. Consequently, Habeas Corpus Petition fails and the same is dismissed.