Raj Kumar Singh vs State of Madhya Pradesh and Others

G.D. Saxena, J.—By moving this writ petition under Article 226 /227 of the Constitution of India, a challenge has been made to the order dated 1st December, 2012 passed by the Under Secretary to the Home Department of the State of M.P. Bhopal, u/s 12(1) of the National Security Act 1980 whereunder the order passed by the District Magistrate Bhind has been made absolute with period of detention of one year as mentioned in the order itself. The facts leading to the case may be summarised as under:-

The Superintendent of Police Bhind by his letter dated 31st July 2012 addressing to the District Magistrate Bhind informed that Rajkumar, son of Radheshyam Gurjar, a resident of village Bhure Ka Pura, Police Station Endori, district Bhind was involved in criminal activities and leading criminal life. It was mentioned in the letter that he was involved in cases of murder, attempt to murder, robbery, house breaking with theft including illegal transactions of firearms, illegal liquor trade and several other crimes. Near about 16 crimes are said to be registered against the petitioner in various Police Stations. It is stated that involvement of the petitioner in the crimes has extended to such limit that every attempt to check his criminal activities became ineffective. Ultimately, he was arrested in connection with the crime registered in Police Station Amayan and confined in jail. It is further informed that the activities of the petitioner has adversely affect the community at large. Therefore, it was proposed to pass the preventive detention order u/s 3(2) of the Act against the petitioner. The criminal antecedent of petitioner are as follows:-

(i) Crime No. 36/2006 for commission of offence under Sections 294, 323, 506 read with Section 34 of I.P.C. registered in Police Station Endori, district Bhind (M.P.).

(ii) Crime No. 7/2009 for commission of offence u/s 307 read with Section 34 of I.P.C. registered in Police Station Endori, district Bhind (M.P.).

(iii) Crime No. 90/2010 for commission of offence under Sections 457 and 380 of I.P.C. registered Police Station Endori, district Bhind (M.P.).

(iv) Crime No. 33/2011 for commission of offence under Sections 336, 294, 506 read with Section 34 of I.P.C. registered in Police Station Endori, district Bhind (M.P.).

(v) Crime No. 34/2011 for commission of offence under Sections 34-A and 47-A of the M.P. Excise Act registered in Police Station Endori, district Bhind (M.P.).

(vi) Crime No. 61/2011 for commission of offence under Sections 147, 148, 149, 333, 353, 186, 332, 324, 224, 225 and 307 of I.P.C. read with sections 25 /27 of the Arms Act registered in Police Station Endori district Bhind.

(vii) Crime No. 116/2011 for commission of offence u/s 174(B) of I.P.C. registered in Police Station Endori district Bhind M.P.

(viii) Crime No. 265/2010 for commission of offence under Sections 457 and 380 of I.P.C., registered in Police Station Gohad, district Bhind.

(ix) Crime No. 266/2010 for commission of offence under Sections 457 and 380 of I.P.C., registered in Police Station Gohad, district Bhind.

(x) Crime No. 5/2011 for commission of offence under Sections 457 and 380 of I.P.C., registered in Police Station Mau, district Bhind.

(xi) Crime No. 11/2009 for commission of offence under Sections 457 and 380 of I.P.C., registered in Police Station Maharajpura district Gwalior (M.P.).

(xii) Crime No. 36/2009 for commission of offence under Sections 457 and 380 of I.P.C., registered in Police Station Maharajpura district Gwalior (M.P.).

(xiii) Crime No. 37/2009 for commission of offence under Sections 457 and 460 of I.P.C. read with sections 25 /27 of the Arms Act registered in Police Station Maharajpura district Gwalior (M.P.).

(xiv) Crime No. 232/2009 for commission of offence under Sections 307, 353, 186, 336, 332, 147, 148, 149, 224 and 223 of I.P.C. registered in Police Station Maharajpura district Gwalior (M.P.).

(xv) Crime No. 386/2011 for commission of offence under sections 307 and 302 read with 34 of I.P.C. and under sections 25 /27 of the Arms Act registered in Police Station Maharajpura district Gwalior (M.P.), and

(xvi) Crime No. 498/2010 for commission of offence u/s 394 of I.P.C. read with sections 11/13 of the MPDVPK Act registered in Police Station Gole Ka Mandir district Gwalior (M.P.)."

It may be mentioned here that the grounds compelling to invoke powers u/s 8 of the Act alongwith order of detention u/s 3(2) of the Act were served on the petitioner in Central Jail Gwalior. He was also informed for sending his representation through Jail Superintendent, Central Jail or through District Magistrate Bhind to the Advisory Board M.P. State. On the report of the Advisory Board after due consideration, the State Government passed the necessary order (supra) for consideration.

The learned counsel appearing on behalf of the petitioner contended that the order impugned is illegal, arbitrary and against the settled principles of law. It is submitted that before passing the impugned order, the detaining authority did not afford a reasonable opportunity of hearing to the petitioner nor any satisfactory reason was shown justifying action on the part of the authority in rendering such an order. It is pointed out that the provisions contemplated in Section 3 of the Act can be invoked only on satisfying the grounds mentioned therein. Mere involvement of the detenu relating to common criminal activities in general public and the criminal antecedents will not be a ground sufficient for acting under the provision unless it covers requirement as enumerated in Section 3 of the Act. It is submitted that the District Magistrate Bhind while passing the detention order u/s 3(2) of the Act as well as the Under Secretary to the State Government in exercising of his powers u/s 12(1) of the Act failed to understand the relevant provisions as mentioned in Section 3(2) of the Act. It is submitted that the petitioner is not involved directly or indirectly in any criminal activities against the Nation or public at large. On the basis of the above arguments, it is prayed that an appropriate writ/order/directions may be issued to quash the order passed by the State which is against the provisions of the National Security Act 1980 and the authorities concerned may be directed for releasing the petitioner from the illegal detention. In support of his submissions aforesaid, learned counsel placed reliance on the decisions in the cases of Smt. Victoria Fernandes Vs. Lalmal Sawma and others, Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, , Yumman Ongbi Lembi Leima Vs. State of Manipur and Others, including one recent unreported decision of Hon. Supreme Court in Criminal Appeal No. 87/2013 (Mulayam Singh Vs State of M.P.), rendered vide order dated January 11, 2013.

Per contra, learned Govt. Advocate appearing on behalf of the respondents/State by submitting reply contended that the detention order passed by the District Magistrate Bhind is in accordance with law, which was passed on the basis of the material made available to the detaining authority by the Superintendent of Police Bhind. It is further submitted that the petitioner was involved in several criminal activities including the offence of heinous crime like a murder, dacoity etc. Several criminal cases are pending in the criminal courts. By criminal activities, the petitioner terrified the vicinity vis-�-vis public at large. No one dared to come forward to prevent/check the criminal acts of the petitioner. The District Magistrate after recording the reasons and on perusal of the criminal antecedents of the petitioner passed the appropriate order of his detention under the National Securities Act 1980. The reasons recorded by the District Magistrate alongwith copies of all documents filed by the Superintendent of Police and the order of detention were served upon the petitioner in jail because he was detained in custody in relating to some other offences prior to passing of such an order. Consequently, he submitted the representation in this context to the Advisory Board. The Advisory Board after perusing the order and affording an opportunity of hearing to the petitioner issued the action report and placed the matter before the State Government. In turn, the Under Secretary to the Home Department of the State by passing the confirmation order dated 1st December, 2012 upheld the detention order passed by the District Magistrate, Bhind maintaining the period of detention till 28th September, 2013. Therefore, it is requested that the order dated 28th September, 2012 passed by the District Magistrate Bhind as well as the order dated 1st December, 2012 passed by the Under Secretary to Home Department of the State may be maintained and the petition may be dismissed in view of the present facts and circumstances of the case.

Heard the learned counsel appearing for the petitioner and the learned Govt. Advocate appearing for the respondents/State. Also perused the relevant laws applicable to the case alongwith the documents annexed with the petition.

Whether a person who is in jail can be detained under detention law is a subject-matter of consideration in this petition.

Before considering the sweep and effect of the relevant provisions contemplated under the Act, it would be profitable to reproduce the same with its explanation:

Power to make orders detaining certain persons.-(1) The Central Government or the State Government may,-

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or

(b) if satisfied with respect of any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation.-For the purposes of this subsection, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section:

Provided that the period specified in an order made by the State Government under this subsection shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:

Provided that where u/s 8 the grounds of detention are communicated by the officer making an order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.

(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

The ingredients of Section 3 of the National Security Act 1980 are as follows:-

The Central Government or the State Government may,-(I) (a) if satisfied with respect to any person (i) that with a view to preventing him prejudicial to the defence of India or of the security of India, (b) the relations of India with foreign powers, (ii) the relations of India with foreign powers, (iii) with respect of any foreigner that with a view to regulating his continued presence in India (a) that with a view to regulating his continued presence in India (b) with a view to making arrangements for his expulsion from India, it is necessary so to do,(c) make an order directing that such person be detained.

(II) if satisfied with respect to any person (i) with a view to preventing him from acting in any manner prejudicial to the security of the State (ii) from acting in any manner prejudicial to the maintenance of public order (iii) from acting in any manner prejudicial to the maintenance of supplies and services essential to the community (iv) it is necessary so to do, make an order directing that such person be detained.

(III) If, having regard to the circumstances prevailing (II) likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, (III) the State Government is satisfied that (I) it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order,(ii) such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section:(iii) Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, (iv) exceed three months, (v) but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

Now, we are going to deal with the matter in the light of the decisions on the point in issue.

In State of U.P. and Another Vs. Sanjai Pratap Gupta @ Pappu and Others, the Hon. Apex Court held as under:-

The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression ''law and order'' is wider in scope inasmuch as contravention of law always affects order. ''Public order'' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ''law and order'' and ''public order'' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting ''public order'' from that concerning ''law and order''. The question to ask is: ''Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed''? This question has to be faced in every case on its facts.

"Public order" is synonymous with public safety and tranquility: ''It is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State''. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum, which includes at one end small disturbances and at the other the most serious and cataclysmic happenings.

''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 the 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. (Para 10) (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, 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''s case (supra). 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 ''the act by itself is not determinant of its own gravity. In its quality it may not differ but in "its potentiality it may be very different.

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 unorganized 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.

A bare perusal of the quoted portion from the grounds of detention makes it clear that two aspects i.e. one relating to criminal background of antecedents and other relating to a particular incident were treated separately. This becomes apparently clear because the detaining authority in the backdrop of the criminal antecedents referred to the particular act. Therefore, one was the general background and the other was the particular incident. They are clearly separable.

In G. Reddeiah Vs. The Government of Andhra Pradesh and Another, , at page 396: it has been observed as follows:-

The incident relating to the procedure to be adopted in case the detenu is already in custody has been dealt with in several cases. In Union of India Vs. Paul Manickam-this Court has held as under: (SCC pp. 352-53, para 14)

... Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. ... The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.

In an unreported decision rendered in Criminal Appeal No. 87/2012 (Mulayam Singh Vs. State of M.P.) decided on 11th January 2013 the Hon. Apex Court further observed as follows:-

The ground of challenge before us basically is that though the detaining authority has acted on report submitted by the Superintendent of Police Gwalior wherein it has been apprised of the fact that the appellant was a hardened criminal and was indulging in various kinds of activities. He has detrimental to public order and the society was scared of him. However the detaining authority was not informed by the said Superintendent of Police that on that date of submission of the report the appellant was in jail. In such a fact situation it is settled legal proposition that the person upon whom detention order is passed in jail, the detaining authority must be aware of such a fact that he may be of the considered opinion that such person was likely to be released on bail in near future on some application has been filed before the competent criminal court.

The principle on which the decisions proceed is that ordinarily an order of detention cannot be passed against a person who is already in jail as the detaining authority could not legitimately reach the satisfaction about the probability of his indulging in prejudicial activity in future. The authority has to be satisfied that the detention of the person is necessary in order to prevent him from acting in any prejudicial manner as contemplated by the relevant provisions of the detention law. In a case where, for instance, a person is undergoing sentence for ten years on his conviction in a criminal trial, it would be impossible for the detaining authority to reach the subjective satisfaction that on his release after ten years, he would indulge in the prejudicial activity, and the detaining authority would not be in a position to reach such a satisfaction and it would be a case of mala fide exercise of power or non-application of mind on their part. It is in this context that the decision of Hon. the Supreme Court in Rameshwar''s case (supra) or subsequent decisions to which a reference has been made by us, will have to be read. In each of the decisions of Hon. the Supreme Court, including Rameshwar''s case (supra), it has been clearly observed that in law, the relevant provisions of the Detention Act do not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. In this connection, it would be useful to refer to the observations in para, 12 of the judgment in Rameshwar''s case which run as under:-

As abstract proposition of law, there may not be any doubt that S. 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in, detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.

This has been illustrated in para. 12 by taking instances of a case where a person is undergoing a sentence for a long period, say for ten years, and another person who is undergoing imprisonment for a short period, say for a month or two. In the first category of cases, one may legitimately argue that the order of detention is bad and could not have been passed, while in the latter category of cases where the imprisonment which the detenu is undergoing is for a short duration, the order of detention can be upheld as the authority passing the order of detention may bona fide be satisfied having regard to the antecedents of the person that the detention of that person will be necessary after his release from jail, and in such cases, he could make a valid order of detention during the period of sentence itself. It is for these reasons that it has been observed at the end of para. 12 that:

Therefore, we are satisfied, that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each'' case.

In a later decision of Hon. the Supreme Court following its earlier judgment in Rameshwar''s case, in the case of Masood Alam etc. Vs. Union of India (UOI) and Others, , the Hon. Supreme Court held that there is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if free, the person concerned is likely to indulge his activities prejudicial to the security of the State or maintenance of public order.

It is now settled law that if from the circumstances of a particular, case, the detaining authority is satisfied that the detention or jail custody of the detenu is about to terminate shortly and further that in view of his prejudicial activities in the proximate past, an apprehension of his acting in the same prejudicial manner after his release exists, the authority may, if the conditions of Section 3 are satisfied, validly make an order of detention even while the detenu is still in jail. The preventive jurisdiction which the authority exercises under the Act is different from the jurisdiction to prosecute him for a substantive offence. In dealing with this question however considerations of proximity of time will be a relevant factor.

Now coming to the factual aspects of the present case, it appears that in the written request dated 31st August 2012 of the Superintendent of Police Bhind it was specifically mentioned that the present petitioner has been sent in judicial custody and at present is confined in jail but looking to the fact that the detenu may be released on bail and again he will be indulged in same terrorizing activities because at previous time the record shows that when the petitioner was released from jail, he was involved in several criminal activities, therefore, in that scenario the petitioner''s detention under the Act has been sought. In the order dated 28th September 2012, the learned District Magistrate also specifically narrated that "You were sent in judicial custody by Police Amayan and you are still in judicial custody. As when you will be released from judicial custody, your are likely to indulge your activities prejudicial to the security of the State or maintenance of public order, because in prior time when you were released from custody you committed the offence of grave nature, so your release from custody is not in public interest". Apparently, therefore, about the person upon whom detention order is served in jail, the detaining authority was well aware of such a fact that such person is likely to be released on bail in near future when he would indulge his activities prejudicial to the security of the State or maintenance of public order. Therefore, the proposition as laid down in Mulayam Singh''s case (supra) will not render any assistance to the petitioner in the present case for the simple reason in this case all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied by the authority. We are, therefore, unable to see how the aforesaid decisions cited by the learned counsel for petitioner have any application to the facts of the present case. In the present case the grounds of detention disclose material which was before the detaining authority other than the fact that there was every likelihood of the petitioner''s being released on bail whereafter he could indulge in the commission of further prejudicial activities. The detaining authority after taking into consideration the above materials placed before it, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. Under the circumstances, we see no reason to interfere with the discretion exercised by the District Magistrate, Bhind. Resultantly, the petition fails and is dismissed.