Ganesh Khuntia vs District Magistrate-cum Collector and Another

R.C. Patnaik, J.—This is an application seeking release of the Petitioner quashing the order of detention passed by opposite party NJ. 1 u/s 3 (2) of the National Security Act, 1980 as per Annexure-2 dated 30-12-1987 by issue of a writ of habeas corpus.

The ground referred to in the grounds of detention is as follows: On 29-12-1987 around noon Debendra Misra a member of the working committee of Brahman Samiti Boarding located at Heragohiri Sahi in the district of Puri was getting coconuts plucked through some Bhois. At that time the Petitioner attempted to remove one coconut without any justification. He abused Debendra Misra when he was obstructed and attacked Debendra with sword which he secured from his house nearby. Shri Misra could escape unhurt as he moved backward to avoid the assault but his shirt was torne. At that time his younger brother Harihar Khuntia attacked Sri Misra with a Bhujali and knife. Some people who had gathered at the spot disarmed his younger brother and handed over the weapons to Sri Sarat Misra. This enraged the Petitioner and he brandishing the sword threatened to assault whosoever would come near him. As the Petitioner moved about whirling the sword on the road, traffic and movement of public were affected for some time out of fear. The people in the neighbourhood did not come out of their house and the even tempo of the society and public order were completely affected. A case on the information in regard to the aforesaid acts of the Petitioner alleging commission of offences under Sections 307, 294 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act was under investigation.

Mr. R. Mohanty the learned Counsel for the Petitioner, has urged that the act of the Petitioner if at all, might have effected law and order prejudicially but having regard to its reach and potentiality, it cannot be said to be one affecting public order prejudicially.

Mr. K. C.J. Ray, the learned Government Advocate combated the contention urged on behalf of the Petitioner submitting that the single act could constitute disturbance of public order if having regard to its reach and potentiality it could be said that the Petitioner would indulge in such activities in future if set at liberty. Besides, he urged that having regard to the past history of the Petitioner as disclosed in the counter affidavit, detention of the Petitioner was justified.

This Bench had the occasion to call out the principles from various decisions of the Supreme Court governing the detention under the National Security Act in Pabitra Kumar Sahoo Vs. State of Orissa and Others, . Without referring to all the cases, we give the gist of the principles. Stray and unorganised crimes of theft and assaults 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. The question whether a man has only 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 act upon society. The test is Does it lend to disturbance of the current of life, of the community so as to amount to a disturbance of public order or does it affect merely an individual leaving the tranquility of society undisturbed? A solitary act which ordinarily would be a case of disturbance of law and order might in a different situation and circumstances cause different reactions and disturb public tranquility, the even tempo of life of the community. For example when communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community., The reach and effect of the act should be such as to create terror or panic in the minds of the public of the locality at large or affect the even tempo of the life of the community. There ought to be materials before the detaining authority that unless detained, he would act in the future to the breach of the maintenance of public order. In Ramveer Jatav Vs. State of U.P. and Others, , the Supreme Court observed.

... It cannot be laid down as a bald proposition that one ground can never be sufficient for founding the satisfaction of the detaining authority for detaining a person. There are cases where one ground may be regarded as sufficient if the activity alleged is of such a nature that the detaining authority could reasonably infer that the detenu must be habitually engaged in such activity or there may be other circumstances set out in the grounds of detention from which the detaining authority could reasonably be satisfied even on the basis of one ground unless the detenu is detained, he might indulge in such activity in future...

That was a case where the detenu along with others jointly committed murder of one Atmaram in broad day light. There were no other circumstances from which an inference could be drawn that the Petitioner was likely to do such act in future or indulge in any act prejudicial to the even tempo of the society, if left free. The Supreme Court set the detenu at liberty. A solitary act like dacoity in running train or bus or the act as in Subal Chandra Ghosh''s case AIR 1972 S.C. 2146 or in Narayan Debnath Vs. The State of West Bengal, , can justify preventive detention. The materials did not disclose that, he detenu had a tendency to disturb the even tempo of life in the community, The solitary act of the Petitioner was against an individual which could be taken care of by the law. The act itself did not indicate any potentiality of affecting the Public order prejudically in future. The act Was a stray and solitary crime.

The learned Government Advocate however, urged that having regard to the conduct of the Petitioner in the past as would be evident from the materials disclosed in the counter affidavit filed by the opposite parties, it should be held that there were materials'' before the detaining authority that unless detained the Petitioner was likely to repeat the misconduct or act in a manner prejudicial to the maintenance of public order. The acts showed that the detenu was habitually engaged in such activities and should be prevented on order of preventive detention.

Such. Contention is not available to be urged having regard to the decision of the Supreme Court in Ramveer Jatav''s case, (supra) observations wherefrom We have extracted above. The ground is solitary one and it did not refer to any past conduct or activities of the Petitioner for the purpose of showing that the Petitioner was habitually engaged and acted prejudicially to the even tempo of the society. The order of detention was passed on the solitary ground extracted above. No other matter was relied upon or referred to. Therefore, either the materials were not before the detaining authority or even if those were before him he attached to importance thereto, at in his opinion those materials Were not relevant for founding the order of detention, That is to say, those materials did not persuade him to pass the detention order. Reference thereto or reliance thereon in the counter affidavit is not permissible. We quote the observation of the. Supreme Court:

... It is no doubt true that in the counter affidavit filed by the District Magistrate several circumstances have been set out which might go to suggest that the Petitioner is habitually indulging in criminal activity and some instances have also been set out by the District Magistrate in the counter-affidavit. But non of these circumstances finds a place in the grounds of detention. It is well settlled that the detaining authority cannot by an affidavit filed in Court supplement what is stated in the grounds of detention or add, to it...

There are cases where the ground has been regarded as sufficient as if the activity alleged was of such a nature that the detaining authority could reasonably infer that the detenu was habitually engaged in such activity or there were other circumstances set out in the grounds of detention from which the detaining authority could reasonably by satisfied even on the basis of one ground that unless the detenu was detained, he might indulge in such activity in future.

Having regard to the solitary act in respect of an individual we are of the view that it did not have any impact on public order and we are further of the opinion that there was no material before the detaining authority with reference to which he could be satisfied that unless detained the Petitioner would likely to indulge in such activity in future. We, therefore, quash the order of detention as per Annexure-2. allow the writ'' application and direct that the Petitioner be set at liberty forthwith.

V. Gopalaswamy, J.

I agree.