Mahboob and Anr. vs State of U.P.& Ors.

The above three matters were heard together as identical question of fact and law was involved therein and accordingly all these three petitions are being disposed of by this common order.

All the three petitioners namely Mahboob, Maqsood and Yaseen are resident of village Basaud, Police Station Ami Nagar Sarai, District Baghpat have challenged on various grounds the order of detention dated 2261999 passed by the District Magistrate, Baghpat under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act).

The detention order dated 2261999 is Annexure 1 to the petition and the grounds which are required to be disclosed to the petitioners under Section 8 of the Act are Annexure 2. English translation of relevant part of which reads as under:

"That on 1751999 when the children were playing, then Momin, nephew of the informantShamshad was hit by a stone. He went to his house and narrated the incident to the informant. When the mother of Momin alongwith others went to the house of the petitioners, then you (petitioners) alongwith others at about 1.30 p.m. caused injuries by lathi, Tabal and Gandasa to four persons on 1751999 at about 5.30 p.m. A first information report was lodged by Shamshad against the petitioners and others under Sections 323,324, 504,506, IPC at police station Aminagar Sarai, district Baghpat as Crime No. 89/99. When this fact came to the knowledge of the petitioners, then they alongwith others on 1851999 at 8.30 a.m. went to teach a lesson to Shamshad and others for lodging a F.I.R. against them and entered in the house of Shamshad and started firing, in which Alimuddin received injuries and when Shamshad, Naushad and Shaboo were running to save their life, then the petitioners caused injuries by fire arm to Naushad, who died, for which a F.I.R. was lodged by Shamsha on 1851999 at P.S. Aminagar Sarai as case Crime No. 92/99. Under Sections 452,307,302, 504, 506, IPC. It was further stated in the ground that as a sequel of this broad day light incident people started running to their houses and feeling in secured and terrorized and to save their life, closed their doors and public peace of the village was disturbed. On account of aforesaid criminal activity of the petitioners, the sponsoring authority reported that the ''public order'' failed."

The District Magistrate felt satisfied that with a view to prevent the petitioners from disturbing the ''public order'' and their release from jail, it was necessary to pass the detention order. The petitioners were in jail in connection with the aforesaid case crime number then on 2261999 the order of detention and grounds of detention were served on them.

Counteraffidavit on behalf of the District Magistrate, Baghpat, Secretary, Home and Confidential Department, U.P. Secretariat, Lucknow, Superintendent of Jail and Union of India and rejoinderaffidavit on behalf of the petitioners have been exchanged, and we have heard Mr. G.C. Saxena, learned Counsel for the petitioners. Learned AGA and Mr. K.N. Pandey for Union of India.

Mr. Saxena learned Counsel for the petitioner, urged that the District Magistrate has misused his powers by invoking the provisions of Section 3 (2) of the Act as from the facts and circumstances of the case and the grounds which have been disclosed to the petitioners, even if they are taken to be correct, activities of the petitioners cannot be termed as prejudicial to the maintenance of ''public order'' and it was a pure and simple case of breach of ''law and order'' and therefore, the order of detention is illegal. However, the submission made by Ms. Saxena was opposed by the learned Counsel for the respondents.

In a series of decisions of the apex Court as well as this Court, terms "Law and order" and "Public order" have come to be interpreted and explained. In Vijay Namin v. State of Bihar and others, (1984) 3 SCC 14, the apex Court ruled that the Constitution does not give a carte blanche to any organ of the State to be arbiter in such matters. Preventive detention is considered to be treacherous and such an anathema to be civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the Constitution itself and incorporated as Fundamental Rights. Preventive detention is not beyond judicial scrutiny. It has always been the view of apex Court that the detention of individuals without trials for any length of time, however, short is wholly inconsistent with the basic ideas of our Constitution and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reasons of invading the personal liberty of the citizen except in accordance with the procedure established by law. In Shafiq Ahmad v. District Magistrate, Meerut, AIR 1990 SC 220 ; 1990(1) JIC 63 (SC), the Apex Court observed that it has to be seen whether the grounds or reasons supplied to the detenu in support of the detention order were germane to the maintenance of ''Public order''. The Court can examine the record and determine the validity whether the order is based on no materials or whether materials have rational nexus with satisfaction that ''Public order'' was breached. The order of detention can no doubt be passed for the maintenance of the ''Public order but such an order cannot be a substitute to detain an accused person who has breached the ''Law and order'' and who can adequately be dealt with under the ordinary criminal law. There is clear distinction between the two connotations, viz. "Breach of Law'' and ''public disorder''. The distinction has come to be canvassed in a catena of decisions of apex Court of Dr. Ram Manohar Lohia v. State of Bihar, AIR '' 1966 SC 740; Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228, came to be considered in the subsequent cases in Pushkar Mukerji v. State of West Bengal, AIR 1970 SC 852, Narendra Nath Mandal v. State of West Bengal, AIR 1972 SC 665, Kishori Mohan Beera v. State of West Bengal, AIR 1972 SC 449,Amiya Kumar Karmokar v. State of West of Bengal, AIR 1972 SC 2259, Samresh Chandra Bose v. District Magistrate, Burdwan, AIR 1972 SC 2481, Sasthin Chandra Roy v. State of West Bengal, AIR 1972 SC 2134, Babul Mittra v.State of West Bengal, AIR 1973 SC 197, Ram Ranjan Chatterjee v. State of West Bengal, AIR 1975 SC 609, Jaya Mala v. Home Secretary Government of J&K, AIR 1987 SC 1297, Ashok Kumar v. Delhi Administration, AIR 1982 SC 1143, State of U.P v. Kamal Kishore Saini, AIR 1988 SC 298, Gulab Mehra v. State of UP, AIR 1987 SC 2332, Smt. Angoori Devi for Ram Ratan v. Union of India, AIR 1989 SC 371; 1989 JIC 281 (SC), Harpreet Kaur (Mrs.) Harvinder Singh Bediv. State of Maharashtra, 1992 AIR SCW835,Smf. Kamlabaiv. Commissioner of Police Nagpur and others, JT 1993 (3) SC 666, as well as other recent decisions of the apex Court as well as this Court. To eschewed prolixity, we refrain from detailing all those (sic) except the observations made in Smt Angoori Devi for Ram Ratan v. Union of India, (supra), in which the apex Court distinguishing between ''Public order''and ''Law and order had the occasions thus:

"The impact on ''public order'' and ''law and order'' depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts."

The Firm legal position as has emerged from the series of decisions on the point is that an act whether it amounts to breach of ''law and order'' or breach of ''public order'' solely depends on its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals it breaches the ''law and order'' problem but if the effect and reach potentialities of the act is so deep as to affect the community at large and or the even tempo of the community then it becomes a breach of ''public order''. It is also settled that even a single instance may be sufficient to clamp the detention order but a criminal act, such as solitary assault on one individual can hardly be said to disturb the public peace or ''public order'' so much so, to bring the case within the purview of the Act. In Deoki v. Government of Tamil Nadu, AIR 1996 SC 1086, it was observed that such a solitary incident can only raise a ''law and order'' problem and no more.

In case of Harish Kasana v. State of U.P., 1988 (37) ACC 724, on the basis of the material placed before this Court, it was held that it could not be reasonably held that the detaining authority could feel satisfied that due to the incident. (In that case) the even tempo 01 life of the locality had been disturbed. It was observed:

".......position is fairly wellsettled that any incident involving criminal activity is likely to cause some self restriction on the normal activities of the people and thereby cause some disturbance in the order of the society but that is not sufficient to say that there has been disturbance of public order."

In another case Atiq Ahmad v. State of U.P., (Habeas Corpus Writ Petition No. 44205 of 1998, decided by this Court on 5101998, a murder had taken place on 2571997 at 7.45 a.m. in the densely populated area of Allahabad city in which a passer by also received gun shot injury. The impact of the shooting incident was that it caused stampede and a sense of fear and terror amongst the people of the locality loomed large. The people ran away leaving their vehicles, trolleys and rickshaws carrying school children left the spot, a total desolation prevailed at the spot, the shutters of the doors and windows of the house in the vicinity remained closed which let to disturbance of the ''public order''. Testing the facts of the case on the touch stone of the principles laid down by the apex Court in the case of Ram Manohar Lohla (supra), Dipak Bose alias Naripada v. State of West Bengal, 1973 SCC (Cri) 684; Ram Veer Jatav . State of UP. and others, 1987 ACRR 110 and Full Bench of this Court in the case of Shesh Dhar Mishra v. Superintendent Central Jail Naini and others, 1985 All LJ l222;Arvind Kumar Shukla v. State of U.P. and others, 1995 ALJ (SC) 1259, it was concluded that the single incident of murder stated in the grounds of detention in the absence of any other circumstances cannot reasonable from the basis of the satisfaction that the petitioner was involved in an incident relating to ''public order''.

Apart from the above decisions of this Court, it would be advantageous to place reliance on a recent decision of the apex Court in the case of Tarannum (Smt.) v. Union of India, 1998 SCC (Cri) 1037;

1998(1) JIC 480 (SC), in which the main incident pertained to looting of gold ornaments, wrist watches and cash from the house by the detenu and his associates by wielding knives and pistols. The other grounds of detention was based on an incident relating to alleged threats held out by the detenu himself or through his agent while he was in jail. After discussing the case of Angoori Devi (supra), it was held that the incident pertained to ''law and order'' problem and not to the maintenance of ''public order''. In Tarannum''s case (supra), the following observations made in Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra, (1992) 2 SCC 177, were quoted with approval:

"Crime is a revolt against the whole society and an attack on the civilisation of the day. Order is the basic need of any organised civilised society and any attempt to disturb that order affects the society and the community. The distinction between breach of ''law and order'' and disturbance of ''public order'' is one of the degree and extent of reach for the activity in question upon the society. In their essential quality, the activities which affect ''law and order'' and those which disturb ''public order'' may not be different but in potentiality and effect upon even tempo of the society and public tranquility there in (sic) difference. In each case, therefore, the Courts have to (sic) the length, magnitude and intensity of the question (sic) activities of a person to find out whether his activities (sic) prejudicial to maintenance of ''public order'' on any ''law and order''.

There is no gain saying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed. Where the prosecution case failed because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused obviously, the crime would no unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. It objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial effect on the society as a whole or not. If the society and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of ''public order'' and are not merely prejudicial to the maintenance of ''law and order''.

It was observed in Tarannum''s case (supra), that the above passage relied upon the learned Counsel for the State of U.P. cannot come to his rescue. On the other hand, in the light of the passage extracted above from Smt. Angoori Devi case (supra), it was found that the authorities were not right in passing the impugned detention order of ''law and order'' problem treating the same as ''public order'' problem.

It is true that certain daring offences were committed in presence of the village under the show of threat and the incident had made the local people panicky, but it was out and out of a private dispute between two parties and the mere allegation that the petitioners were likely to commit similar act in future is too bald to be accepted. While it is true that even a single act could give rise to a situation prejudicial to the maintenance of public order, it is equally true that materials must be there to indicate possible repetition of similar acts by the petitioners. In our view, the very nature of the offences suggests that it was private dispute and we are further of the view that from the nature of the incident itself, it will not be inferred that similar acts prejudicial to the maintenance of the ''public order'' were likely to be committed by the petitioners.

After carefully considering the grounds of detention in the background of above legal position we are of the opinion that the incident did give rise only to law and order problem and the petitioners can be tried under ordinary criminal law of the land for the alleged crime. But we are not satisfied that it is a case in which ''public order'' was affected to a great extent. We are conscious of the fact that in the case of detention, it is the subjective satisfaction of the District Magistrate and the same cannot be struck down. But this subjective satisfaction must be, in our view, based on some material and not mere on the statement of the sponsoring authority. There being no other criminal antecedents of the petitioners the inference of repetition of such acts was in our opinion not possible on the basis of one solitary incident. We are further of the view that detention of the petitioner under the Act on the professed ground of the maintenance of public order'' was not justified as the incident was purely concerning breach of ''law and order.

In view of the above, the detention orders of all the three petitioners are not sustainable and are hereby quashed. The detention of the petitioners in pursuance of the order passed by the District Magistrate, Annexure 1 dated 2261999 under Section 3 (2) of the National Security Act, is found to be illegal. The petitioners shall be set at liberty forthwith if they are not wanted in any other case.