Kamal Puri vs District Magistrate and Others

Dipak Misra, J.

Invoking the extraordinary jurisdiction under Article 226 of the Constitution of India the petitioner has sought for issuance of a Writ in the nature of "Habeas Corpus" or any other appropriate Writ for quashing of the order of detention (Annexure P-11) passed by the District Magistrate, Jabalpur, respondent No. 1, detaining his brother under sub-section (2) of section 3 of the National Security Act, 1980 (hereinafter referred to as ''the Act'').

Facts as adumbrated in the petition are that the brother of the petitioner, Prem Puri (hereinafter referred to as ''detenu'') surrendered at Lordganj Police Station on 16th August, 1996 in connection with the Crime No. 316/96 though the Sub-Inspector of Police has shown him to have been arrested in connection with the aforesaid case and produced him before the competent Court on the allegations that he was involved in the aforesaid case u/s 307/34 of the Penal Code read with sections 25 and 27 of the Arms Act under sections 3 and 5 of Explosive Substance Act. While he was in custody an order of detention dated 21-8-1996 passed by the District Magistrate, Jabalpur u/s 3(2) of the Act was served on him.

The order of detention, as passed, refers to seven grounds. The grounds in essence, are (i) on 20-3-1995 at about 10.20 P.M. the detenu along with his friend Manoj Shukla threw a crude bomb on one Chetat @ Guddu and also assaulted him with a knife which gave rise to Crime No. 196/95 under offence punishable u/s 307, Indian Penal Code read with sections 3 and 5 of the Explosive Substance Act; (ii) on 10-6-1995 detenu with his friend Mukesh demanded money from one Abhay Kumar Jain and threw a crude bomb at him which is the subject matter of Crime No. 544/95 for offences under sections 3 and 5 of the Explosive Substance Act, (iii) on 23-2-1996 the detenu along with his accomplice with the intention of murdering one Ramnath Yadav, a Constable of Lordganj Police Station, fired from his revolver which is the subject matter of Crime No. 105/96 for offences under sections 307/34, Indian Penal Code read with sections 25/27 of Arms Act; (iv) on 25-2-1996 at about 5 P.M. the detenu along with another demanded money from one Keshav Choudhary near Khatik Mohalla, Police Station and on his refusal to accede to his demand he threatened to eliminate him by using fire-arms and on these allegations Crime No. 89/86 was instituted for offences under sections 384/385/386 of the Indian Penal Code; (v) on 15-7-1996 at about 3.10 P.M. he along with his friends showed revolver to Sub-Inspector, Akhilesh Mishra and abused in obscene language and threatened to take away his life for which Criminal Case No. 186/96 for offences under sections 353/294/506P/34 was registered against him; (vi) on 2-8-1996 at about 4.30 P.M. he along with another demanded money from one Rakesh Kolwani, a resident of Civil Line, and on his refusal to comply with his demand, the detenu assaulted him with a ''sword'' causing serious injury for which the Crime No. 389/96 was initiated for offences under sections 307/34, Indian Penal Code; and (vii) on 16-8-1996 at about 3 P.M. the detenu along with one Gabbar Yadav with the intention of doing away with Shri G. R. Lokare, Town Inspector, Police Station Lordganj for which the criminal action was set in motion, ultimately giving rise to Crime No. 361/96 for offences punishable under sections 307/34/25 read with section 27 of Arms Act and sections 3 and 5 of Explosive Substance Act. The detenu was arrested in that case and was produced before the competent Court.

After referring to these grounds, the respondent No. 1 in paragraph 5 of the order of detention has indicated that he has been convinced that if the petitioner was allowed to remain at large enjoying his liberty, that would be against ''public interest'' and there is possibility of indentation in public order. On this foundation he passed the order of detention.

Challenging the aforesaid order it has been pleaded in the petition that the order of detention does not reflect proper application of mind and, in fact, the mechanical approach is quite manifest inasmuch as there is no reference to the detenu being in jail custody, there is likelihood of his release on bail; and the references to the activities of the detenu are in the sphere of ''law and order'' and do not reach the spectrum of ''public order''. It is further pleaded that the allegations scrutinised in proper perspective would make it clear as day that the order is a consequence of fallacious proclivity.

A return has been filed by the respondent Nos. 1 to 4 taking the stand that the order of detention has been passed by the detaining authority on perusal of all the relevant records and on consideration of the fact that the detenu was in jail custody and his release would be prejudicial to the public interest and would create a dent in public order. Reference has also been made to the continuous criminal activities of the brother of the petitioner to establish that it was essential on the part of the competent authority to pass the order of detention. Two affidavits have been filed; one on 24-1-1997 and another on 28-1-1997 sworn to by the District Magistrate, Jabalpur to indicate that he was fully aware of the fact that the detenu had been arrested in connection of the Crime No. 361/96 on 16-8-1996. Assertion has also been made in the said affidavits with regard to his subjective satisfaction.

We have heard Mr. A. K. Soni, learned counsel for the petitioner and Mr. R. S. Jha, Dy. A. G. on behalf of the State, Shri Soni, highlighting the stand taken in the Writ Petition has strenuously urged that the order of detention it is ambiguous in its reference to the arrest of the detenu on 16-8-1996 and no reasons have been indicated to justify that detention under provisions of National Security Act was necessary in the facts and circumstances of the case, more so, when the detenu was already in custody.

To substantiate his submission he has placed reliance on the decision rendered in the case of Dharmendra Suganchand Chelawat and another Vs. Union of India and others, . In the said decision the Apex Court after referring to the earlier decisions ultimately laid down as follows:-

"The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) detaining authority was aware of the fact that the detenu is already in detention and (ii) there were compelling reasons in justifying such detention despite of the fact that the detenu is already in detention. The expression ''compelling reasons'' in the contest of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

Mr. Soni has also brought to our notice the decision in the case of M. Ahamedkutty Vs. Union of India (UOI) and Another, , wherein it has been held that it is imperative, if the detenu is already in jail, the grounds of detention to show the awareness of the said fact on the part of the detaining authority otherwise, there would be non-application of mind which would vitiate the order of detention. In this regard we may also refer to the decision in the case of Shashi Aggarwal Vs. State of U.P. and Others, , wherein their Lordship held that in absence of materials on record to show that the detenu if released on bail is likely to commit activities prejudicial to the maintenance of public order, the order of detention would be illegal. Same view was taken in the case of Gulab Mehra v. State of U.P. 1987 (1) SCC 302.

While dealing with this aspect we would also like to refer to the case of Sanjay Kumar Aggarwal Vs. Union of India (UOI) and Others, , wherein, after referring to the case of Dharmendra Suganchand Chelawat (supra) their Lordships held as under:-

"It could not be said that no order of detention can validly be passed against a person in custody under any circumstances. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of detenu who is already, in jail. In the instant case the detaining authority was not only aware that the detenu was in jail but also noted that circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods. Therefore, the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail. Therefore, the detention order could not be quashed merely on the ground that the detenu was in jail."

In this context we may further refer to the decision rendered in the case of Noor Salman Makani Vs. Union of India and others, , wherein, the detenu was already in jail and the detaining authority only mentioned that he was likely to be released on bail. Considering the submission their Lordships expressed thus:-

"The next submission is regarding non-application of mind by the detaining authority with regard to the circumstance that the detenu was in jail and a mere bald statement that the possibility that the detenu was likely to be released on bail cannot be ruled out is not enough and it only shows that there was no proper application of mind. In this context the learned counsel relied on the judgment of this Court in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, . We see no force in this submission. We do not think that anything more could have been said by the detaining authority in this context."

Facts of the present case are to be tested on the touchstone of the aforesaid parameters, we find from the ground for detention (P-11) that the authority concerned has referred to the fact of arrest of the brother of the petitioner. It cannot be said that he was not aware that the detenu was in jail custody. We also notice from (P-13) statement on oath by Shri J. R. Lokare, before the District Magistrate wherein, he has stated on oath, to the following effect:-

^^iqfyl us le;≤ ij lkekU; dkuwuksa ds rgr blds fo:) dk;Zokgh dh gS ijUrq ;s U;k;ky; dh izf�;k esa tekur djokdj iqu% fgalkRed xfrfof/k;ksa esa fyIr gks tkrk gSA**

We also find from the recommendation of the Superintendent of Police in (P-14) wherein, he has also indicated as follows:-

^^vukosnd ds fudV Hkfo"; esa tekur ij NwVus ls mlds }kjk iqu% fgalkRed vijk/k ?kfVr gksxkA**

From the aforesaid materials on record it is luminously clear that the detaining authority was quite aware on the position at that time of passing of order and it cannot be said that there is non-application of mind or the impugned order has been passed in a mechanical manner. In fact, the ingredients which are to be satisfied for passing the order of detention in relation to a person who is in custody are amply available from the materials on record and it can safely be concluded that there were compelling reasons on the part of the detaining authority to pass the order in spite of the fact that the detenu was already in custody.

We shall not advert to deal with second limb of the argument as advanced by the learned counsel for the petitioner. It is vehemently canvassed by Mr. Soni that all the allegations enumerated in the grounds of detention are occurrence which are restricted to particular individuals and, therefore, it is in the sphere of ''law and order'' problem and cannot be construed to be a breach of public order as it has not affected the even-tempo of the community.

In the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , wherein, Hidayatullah, J. (as his Lordship then was) observed that there are three concepts ''law and order'', ''public order'' and ''security of the State'' and they are in three concentric circles. As observed by his Lordship the largest of them represents ''law and order'', next represents ''public order'' and the smallest represents the ''security of the State''. Treating the aforesaid decisions as ''locus classicus'' the Apex Court in later decisions namely, Kanu Biswas Vs. State of West Bengal, 6, Arun Ghosh v. State of W.B., 1970 (1) SCC 98, Dipak Bose @ Haripad v. State of W.B. AIR 1973 SC 2686 Tika and Others Vs. State of Uttar Pradesh, , State of U.P. Vs. Hari Shankar Tewari, , Subhash Bhandari Vs. District Magistrate, Lucknow and Others, , Angoori Devi for Ram Ratan Vs. Union of India (UOI) and Others, and Smt. Victoria Fernandes Vs. Lalmal Sawma and others, , essentially held that whether a man has only committed a breach of law and order or has acted to affect the even-tempo of the community at large, is a question of degree. On a close examination of the aforesaid decisions it can be said that not only the direct effects but also the potentiality to create indirect effects are also required to be considered. The Court has to consider the probable effects or effect potentiality of the acts committed by a detenu.

Judging the acts of the detenu in the case at hand, on the anvil of the aforesaid enunciation of law we find that the commission of offences are at small intervals; has created terror in the locality and has also the potentiality to affect the peaceful atmosphere of the locality which the community is expected to enjoy; use of explosive substance in public, firing at Police Officer near a Police Station, involvement in extortion by show of revolver and throwing of bombs have the direct effect to affect the public tempo and, in fact, as the materials show, has affected. That apart it creates a terror-striken atmosphere and compels people of the locality to feel a shrill in their spine. Appreciating the entire gamut of allegations and the range of activities of the detenu, we are not impressed to accept the contention of Mr. Soni to give the detenu the benefit of the subtlenuance between ''public order'' and ''law order''.

The last plank of submission of the learned counsel for the petitioner relates to falsity of allegations against the detenu and the improbabilities of the allegations in all the criminal cases initiated against him. It has been emphatically put forth by Mr. Soni that the allegations relating to assault, extortion and such other activities, are in fact, improbable inasmuch as in some cases the injuries are simple in nature but cases u/s 307 have been registered. We are afraid while dealing with the case under preventive detention we cannot delve deep in to find out probabilities of the case to record a finding that they are based on false allegations or there has been exaggeration of allegations. As far as our jurisdiction is concerned it is a ''suspicion jurisdiction'' and we are not inclined to entertain the submission of Mr. Soni, in this regard.

We are conscious, liberty of an individual is a precious right being the ripest contribution of the human civilization. It is sacrosanct for the individual and in a democratic set-up its sacrosanctity is greatly cherished. A great liberal, Henry Patrick thundered "Give me liberty or give me death" but an individual has also a role to conduct and behave in such manner that his liberty is not jeopardised. He who claims liberty must behave in a disciplined manner in a society so that he does not affect the society/community at large. He cannot be permitted to become a nuisance to the collective.

In view of the aforesaid premises, the contentions raised by the learned counsel for the petitioner are devoid of the merit and the Writ Application is liable to be dismissed and accordingly, we dismiss the same.