Moradhawaj vs District Magistrate and Others

D.P. Mohapatra, C.J.—In this petition filed under Article 226 of the Constitution, the Petitioner Moradhwaj son of Jagmohan has prayed for issuance of a writ of certiorari quashing the detention order passed by the District Magistrate, Kanpur Nagar, Respondent No. 1 on 28.1.1998 (Annexure-1) u/s 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) and for a writ of habeas corpus directing the Respondents to release the Petitioner forthwith.

The factual backdrop of the case leading to the present proceeding may be shortly stated thus: On an occurrence, which took place on 30th of December, 1997 at 9.40 a.m. in the compound of the Medical College, a first information report (Annexure-5) was lodged in Swarupnagar police station of Kanpur Nagar same day at 10.25 a.m. by one Roop Kishore Kanaujia. On the basis of the said first information report, Case Crime No. 286 of 1997, u/s 147/148/149/307/427 was registered. The Petitioner was one of the culprits named in the first information report. He was arrested on 2.1.1998 by the police in the aforementioned case and detained in Kanpur Nagar Jail. While he was in jail custody, he was served with the order of the Respondent No. 1 (Annexure-1) directing his detention u/s 3(2) of the Act. The grounds of detention (Annexure-2) were also served on the Petitioner along with the detention order. The order of detention was approved by the State Government on 7.2.1998 (vide the order Annexure-4) and the said order was served on the Petitioner on 13.2.98. The Petitioner submitted representations (Annexure-6) against the detention order on 2.2.1998 to the State Government, the Central Government and the Advisory Board through the Superintendent Jail, Kanpur Nagar. In paragraph 9 of the petition, the Petitioner has alleged "That till today no communication was given to the Petitioner about the orders passed by the State Government on the representation dated 2.2.1998. Hence detention order becomes illegal". In paragraph 11 of the petition, the Petitioner has averred "That till today no communication was given to the Petitioner about the order, if any, passed on representation dated 2.2.1998 passed by Central Government. Hence detention order cannot be continued". The report of the Advisory Board was received by the State Government on 11.3.1998. By the order dated 23.3.1998 (Annexure-7), the State Government confirmed the order of detention.

In the grounds of detention, it is averred, inter alia, that on 30.12.1997 at about 9.40 a.m. when Sri Roop Kishore Kanaujia entered the Medical College Compound through the rear gate and moved a little, the Petitioner and his companions, who were armed with country-made pistols, bombs, revolvers reached there in a Maruti car, Hero Honda motorcycle, scooter, surrounded the vehicle of Sri Kanaujia from all sides, attacked him with bombs and firearms, due to which Sri Kanaujia and his companions, who were in the vehicle, were seriously injured and the car was badly damaged. Due to this incident there was panic amongst the persons present in the Medical College Compound, they ran helter-skelter disturbing free movement of traffic at the place and even tempo of life at the place was disturbed. It is further averred in the grounds of detention that when Inspector-in-charge of Swarup Nagar police station visited the place of incident he experienced that there was an atmosphere of fear and terror, several empty cartridges of different types (32 bore, 315 bore and 12 bore) were recovered from the scene of occurrence and that the Sub-Inspector along with police force was present at the place of occurrence. Further, the Ambassador car was found to be badly damaged due to bomb blast, broken glasses were lying scattered all over the place ; on account of the incident both the gates of the Medical College Compound were closed and public order at the place was disturbed. In order to restore public order at the place, extra police force had to be deployed.

It is also stated in the grounds of detention that after assessing the situation, several local newspapers, like Dainik Jagran and Aaj, published news items relating to the incident under captions "Medical College Parisar Men Bambaji se dahshat, Panch Ghayal" and "Baloo Dhone Kee Ranjish Men Bam, Goliyon Se Hamla Panch Ghayal". In the grounds of detention, it is further stated that the aforementioned crime had been committed by the Petitioner and his companions at a public place in broad day light in the Medical College Compound where there are residential houses of doctors and patients from all over the town visit the Medical College and there is heavy traffic in the area. The even tempo of life in the locality was greatly disturbed. People ran helter-skelter. One and half Section of P.A.C. was constantly deployed there from 30.12.1997 to 8.1.1998. From the first information report, the reports of the Police Officers, the materials found during the course of investigation, which were all placed before the District Magistrate, he felt satisfied that in order to maintain public order in the locality it was necessary to detain the Petitioner u/s 3 of the Act. It is specifically averred in the grounds of detention that the Petitioner is at present detained in the District Jail, Kanpur Nagar, in connection with Case Crime No. 286 of 1997, u/s 147/148/149/ 307/427, I.P.C., P. S. Swarup Nagar, Kanpur Nagar ; that the Petitioner has made an application for bail in the Court in that case and that there is every possibility of the Petitioner being enlarged on bail in near future and in case he is enlarged on bail, there is every possibility of his repeating such crimes, thereby disturbing public order. In the grounds of detention it was also stated that the Petitioner may make a representation to the Advisory Board, the State Government, and the Central Government and state specifically if he would like to be heard personally by the Advisory Board.

Sri Prashant Kumar Singh, learned Counsel for the Petitioner, has assailed the order of detention on three grounds :

(1) On the facts and circumstances stated in the grounds of detention and the documents annexed to it, no case of disturbance of public order is made out ; even accepting all the allegations only a case of disturbance of law and order can be said to have been made out.

(2) No period of detention is mentioned either in the detention order or in the order of the State Government approving the same. It is only in the order of the State Government dated 23.3.1998 confirming the order of detention that the period of twelve months is mentioned. It is the submission of Sri Singh that non-mention of the period of detention, which is required u/s 3(3) of the Act, vitiates the order of detention.

(3) There has been inordinate delay on the part of the Central Government in disposing of the Petitioner''s representation ; indeed Sri Singh submitted that till the date of hearing of the case the Petitioner had not been communicated any order of the Central Government disposing of his representation.

The learned Additional Government Advocate controverted the contentions raised by Sri Singh. He contended that under the provisions of the Act neither the detaining authority in the order of detention nor the State Government in the approval order is required to specify the period of detention. It is only u/s 12 of the Act that the statute mandates that the State Government while confirming the order of detention has to specify the period of detention. The said statutory provision having been duly complied with, the order of detention/approval order does not suffer from any infirmity. It is the further contention of the learned Additional Government Advocate that as stated in the grounds of detention the incident took place at a public place inside Medical College Compound, in broad day light when large number of people come to the Medical College for treatment, for rendering service in the College and the Hospital attached to it and also to the residential quarters of the Staff of the College and Hospital. Referring to the manner in which the incident took place, the learned Additional Government Advocate submitted that it was a preplanned attack on Sri Kanaujia and his companions who were inside Ambassador car. By attacking the vehicle with bombs and firearms by the Petitioner and his companions such an incident, it is the contention of the Additional Government Advocate, has the potentiality of disturbing public order, therefore, the contention of learned Counsel for the Petitioner that the incident in question may give rise to a situation of law and order should not be accepted. Regarding the delay in disposal of the representations of the Petitioner the submission of learned Additional Government Advocate was that the State Government disposed of the Petitioner''s representation dated 2.2.1998 with due promptitude on 18.2.1998.

The learned additional standing counsel appearing for the Union of India initially stated that he has no information or instruction as to whether the representation made by the Petitioner to the Central Government has been disposed of or not ; but subsequently in the course of hearing of the case submitted that he has information that the representation was disposed of on 12.8.1998 which was communicated to the Petitioner on 14.8.1998.

Taking up the question whether the incident and events, as stated in the grounds of detention make out a case of disturbance of public order or only a case of affecting law and order, it is our considered view that in the facts and circumstances of the case, the incident and the place where it has occurred, make out a case of disturbance of public order attracting the provisions of Section 3(2) of the Act. The incident took place in the Medical College Compound, a public place where large number of persons assemble for the purpose of treatment ; the time of the incident was at about 10.00 a.m. which is peak time for activities in the campus and a large number of persons are expected to have been present at the spot ; attack on the injured persons in ruthless and dastardly manner by assailants by firearms and bombs caused grievious injuries to five persons, the occupiers of the car. An incident of the type in a public place in broad day light is bound to create panic and fear psychosis in the people present at the spot and the local residents. Such an incident at a public place in which the culprits successfully assaulted persons causing grievious injuries is reasonably expected to create a sense of insecurity in the people of the locality, who expect that such a place like the Medical College campus is a place safe from criminal activities of the nature. The people naturally expected that a public place where major institutions like Medical College and Hospitals are situated is well protected by State agencies and the place is free from criminal activities. A major incident of the type, as in the present case, taking place in such a protected public place will disturb even tempo of life of the locality. Therefore, it cannot be said that the incident, as narrated in the grounds of detention, has no nexus to public order. We are not persuaded to accept the first contention raised by Sri Singh, learned Counsel for the Petitioner.

The next point that arises for consideration is whether the order of detention is rendered invalid for the reason that no period of detention has been specified either in the order of detention or in the approval order. It is also submitted in this connection that even in the order of the State Government approving the order of detention, no period is stated.

Reliance was placed on the decision of the Supreme Court in the case of Commissioner of Police and Anr. v. Gurbux Anandram Bhiryani 1988 (Suppl.) SCC 568 , in which it was held that the order of preventive detention passed u/s 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981, was invalid on the ground of non-mention of the period of detention in the order. The decision in that case was considered by a Bench of three Judges in the case of Mrs. T. Devaki Vs. Government of Tamil Nadu and others, , in which it was ruled :

Once the order of detention is confirmed by the State Government, maximum period for which a detenu shall be detained cannot exceed twelve months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression ''the State Government are satisfied that it is necessary to do, they may, by order in writing direct that during such period as may be specified in the order'' occurring in Sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention.

.........Since the Act does not require the detaining authority to specify the period a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specification.

Considering the decision in Commissioner of Police and Anr. v. Gurubux Anandram Bhiryani (supra), it was observed "with great respect, we do not agree with the view expressed by the learned Judges". In the circumstances, the decision relied by the learned Counsel for the Petitioner is of no assistance in determining the question. On a fair reading of the provisions of the National Security Act and bearing in mind the principles laid down by the Apex Court in T. Devaki''s case, we have no hesitation to hold that the order of detention is not rendered illegal and invalid merely on the ground of non-specification of the period of detention which the detenu has to undergo. It was not disputed before us that the period of twelve months was specified in the order of the State Government confirming the order of detention. Therefore, the second submission raised by the learned Counsel for the Petitioner fails and is hereby rejected.

The other contention raised by learned Counsel for the Petitioner is regarding inordinate, unexplained delay on the part of the Central Government in disposing of the representation made by the Petitioner against the order of detention. As noted earlier, the contention of the Petitioner in this regard is that his representation made to the Central Government on 2.2.1998 had not been decided till date. In course of hearing of the case, the learned Additional Standing Counsel appearing for the Central Government informed the Court that Petitioner''s representation was rejected by the Central Government on 12.8.1998 and the order was communicated to the Petitioner on 14.8.1998. Thus, it is clear that the representation remained pending with the Central Government for more than six months for which there is no explanation offered by the Central Government. In the facts and circumstances of the case, there is no scope for doubt that the delay in disposal of the representation made to the Central Government is inordinate and unexplained. Such inordinate and unexplained delay renders continued detention of the Petitioner illegal and he is entitled to an order directing his release forthwith. In support of this view, we may notice the Full Bench decision of this Court in the case of Raj Bahadur Yadav v. State of U. P. and Ors. (XXXV)1997 ACC 33, in which considering the question of delay on the part of the Central Government in disposing of the detenu''s representation this Court held :

Coming to the question of delay in disposing of the detenu''s representation, the position is clear that the Advisory Board, the appropriate Government and the Central Government are required to act with promptitude and reasonable dispatch in dealing with the representation of the detenu and to consider whether his further detention is legal. Inordinate and unexplained delay on the part of any of the authorities in dealing with the matter will render further detention of the detenu illegal.

Testing the facts and circumstances of the case in hand on the touchstone of the principles of law noted above, the conclusion is inescapable that the inordinate unexplained delay on the part of the Central Government in disposing of the Petitioner''s representation has rendered his continued detention illegal and he is entitled to be released forthwith.

Accordingly, the writ petition is allowed and the Respondents are directed to release the Petitioner forthwith if his detention in jail is not required in any other proceeding.