Rajjan vs State of M.P.

Dr. T.N. Singh, J.

Under an order passed on 15-12 1987, the Petitioner came to be detained in District Jail Datia u/s 3 (2) of the National Security Act, 1980, for short the Act, wherein the necessity of detaining him to prevent him from acting in any manner prejudicial to maintenance of public order is stated. Grounds for the order are stated in Annexure 2. His representation against the detention has been rejected. He appeared before the Advisory Board but Board submitted its "opinion" against him and his detention has been confirmed for a period of twelve months.

As many as four grounds are mentioned in Annexure 2. Although we examined each and every ground and on that score, this matter has had extended hearing, we considered it necessary to examine minutely the following ground in view of the latest postition in law that even on a single valid ground, detention in such a case can be sustained:

Counsel for the Petitioner Shri J. P. Gupta has urged strenuously that the ground is not relevant to the requirement of "public order" and he has also urged that the Detaining Authority did not have relevant material before it to reach the required "satisfaction" contemplated in law. It is counsel''s submission that if the Petitioner had intimidated several persons named in the ground Rameshwar Panda, Pradip Kumar Upadhyaya and Kripa Shankar-his act would impinge only on maintenance of law and order ; and not public order. Further, Rameshwar Panda may not have given any statement as his statement is not to be read in the documents supplied to the Petitioner or even filed in this Court on behalf of the Detaining Authority. Shri Gupta has made the point that unless Rameshwar Panda had himself said that he was scared and on that account, he abandoned his home and hearth and left for Badoni Kalan there could be no materials before the Detaining Authority to take the view that public order in the locality was disturbed.

Counsel has cited case-law in support of his contentions, but before looking into those decisions, we may analyse what appears in Annexure R/26. It is a statement of Pradip Kumar which the Detaining Authority had herself recorded on 15-12-1987, namely on the date on which she had passed the impugned order. He stated that on 17-11-1987, the detenu came to his locality, armed with a Katta; and that Rameshwar Panda also lived in that locality. The detenu dragged Rameshwar Panda and gave him a good beating, upon which there was a commotion in the locality and people ran indoors and shut up themselves. He also stated that his father Kripashankar Upadhyaya) was a school teacher. His father had told Rameshwar to lodge report in the Police Station but the latter left the locality and ran away to Badoni Kala. He further stated that the detenu also intimidated his father who was so scared that for three days he did not go to school. About the occurrence, he said, he had lodged report at the Police Station, on 19-11-1987. His Police Report (Annexure R/4) also, we have read.

We do not think if counsel''s reliance on causa celebre, Khudiram Das Vs. The State of West Bengal and Others, does in any way benefit the Petitioner. We have done that, what we are bidden to do. It was held that not only it is the right of the Court but also it is the duty of the Court to examine what are the basic facts and materials which actually weighed with the detaining authority in reaching therequi-site ''satisfaction" on the necessity to preventively detain a person. We do not at all find any substance in counsel''s contention that on the sufficiency or credibility of the material considered by the detaining authority, something has to be read in Khudiram. On the other hand, we are sure of the law that the area of judicious scrutiny culled cut in Khudiram has a small radius, contemplating existence of relevant material before the detaining authority to be examined to test genuineness of his "satisfaction". That has always been considered "subjective", and so sanctioned by law.

In Machinder Shivaji AIR 1950 FC 129, speaking for the Five-Judge Bench, Patsnjali Sastri, I. (as his Lordship then was) observed that "if the Court were to substitute its judgment for satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded", then the object of the legislature in enacting the law of preventive detention would be defeated. An year later, in The State of Bombay Vs. Atma Ram Sridhar Vaidya, six judges of the Apex Court expressed the same view that the question of "satisfaction" except on the ground of mala fides cannot be challenged in a Court Construing the parallel provision of Preventive Detention Act, 1950, in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, the Constitution Bench held explicitly and unequivocally that the provision referred to "subjective satisfaction" of the detaining authority and that it was not justiciable. It was not open to the detenu to question in a Court of law either "reasonableness of the detention" or the "adequacy of material" on which that satisfaction purported to rest. Krishna Iyer, J., speaking for the Court in Anil Dey Vs. State of West Bengal, observed "the veil of subjective satisfaction of the detaining authority cannot be lifted by the Court with a view to appreciate its objective sufficiency". See also, Imam Shaik Vs. State of West Bengal, ; Sadhu Roy AIR 1975 SC 919. As had in Sadhu Roy, circumstances of each case really deter-mine if it was a case of "callous or colourable exercise of power" or the action flowed from the "activist or alert application of the executive''s mind". In the instant case, as we have already noted, the District Magistrate''s satisfaction was ground not only on the Police export(sic) of Pradip Upadhyaya but she had herself recorded his statement and we are of the view that her satisfaction is based on a rational and fair consideration of Pradip Upadhyaya''s two statements, given to the Police and recorded by her. Indeed, in this case, she has sworn to her satisfaction being based not only on Police report, but on statements of witnesses she had herself examined.

We are not prepared to accept the submission of Shri Gupta that the detaining authority in this case could not base her subjective satisfact on the materials disclosed in the statement of Pradip Upadhyaya (Annexure R/26) or his Police Report (Annexure R/20). She was satisfied that Rameshwar Panda had left the locality and had run away to a different village. If the statement of Rameshwar Panda himself was not recorded or if he had not lodged any Police report, that would not alter the effect of what Pradip Upadhyaya had said. Indeed, the reason why Rameshwar Panda could not come and speak himself of his conduct was too apparent to be doubtful or misconstrued. He was not available, he was scared and had run away to save his life. The circumstances in which he fled, being scared, are disclosed. He was dragged on the street and given a good beating by a person who was armed with a Katta (fire-arm), capable of causing instantaneous death. If he had left his home and hearth, it was certainly under grave apprehension to his life.

The question, however, is what effect the act of the detenu mentioned in the fore-extracted ground had on public order. Indeed, whether his act created only a problem of law and order ? That there was a commission in the locality when the incident took place is clearly stated in the ground as also in Annexures R/20 and 26. The facts that incident took place in broad-day light at 10.00 a. m. and residents of the locality were so terrorised as to shut themselves up indoors are clear and significant. It is also clear that a school teacher was also threatened by the detenu and he was scared so much that for three days, the did not attend to his public duty. If Rameshwar Panda had, in these circumstances, run away abandoning his home and hearth, it merely buttressed the reasonable inference that detenu''s acts, complained in the ground above-referred, had a deep impact on the society at large and not only on one or two individuals. His acts evidently disturbed the even tenor of life of the residents of the locality in question.

In their recent decision in the case of State of U.P. Vs. Kamal Kishore and Another, , their Lordships undertook a reappraisal of the oft-debated question of difference between "Law and order" and "public order". While the decision, as old as Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , was considered, the latest decision in the case of Gulab Mehra Vs. State of U.P. and Others, and those rendered prior, thereto, in Ashok Kumar Vs. Delhi Administration and Others, , Arun Ghosh Vs. State of West Bengal, , and Pushkar Mukherjee and Others Vs. The State of West Bengal, , were also considered. Law has remained well-defined and is crystalised, so it was held. When any act affects even tempo of life of the community or affects peace and tranquility of people of any particular locality where any "crime" is committed, it becomes a case of disturbance of public order and not only merely commission of a "crime" in respect to one or two persons. Reliance of Shri Gupta in Gulab Mehra (supra), in our opinion, is misconceived as law is not stated therein in any different form. This Court, in a recent decision rendered on 6-5-1988 in the case of Brajram (M. P. No. 57 of 1988) had an occasion to deal with the same contention, as raised here. One of us (Dr. T.N. Singh, J.), speaking for the Court, observed therein that if the offensive acts were executed at such time and in such manner that those acts no longer remained simple criminal acts committed against one or two individual persons, but became acts of terrorism directed against public generally or against any particular group or class of persons, then such acts would not create simple problems of "law and order", but would create problems of "public order". It was held that if the detenu was a bully who was bent upon terrorising the society as a result of which even tempo of life of the society even at a particular place was disturbed because of the abiding effect of such acts on the members of the society residing or following their avocations at that place, then it would be difficult for the detenu to contend that the detention was not made in order to prevent him from acting in a manner prejudicial to public order. Any act of "terror", it was said, would disturb "public order"; and the intention of the person creating the terror would be manifested in the nature of his offensive act and the effect thereof on the society had to be gauged in the light of attendant circumstances when the detention order made with the object of protecting "public order" is challenged.

Counsel has relied on Sushanta v. State of West Bengal AIR 1969 SC 1004, to rivet our attention at para 20 of the decision wherein the ground challenged in that case was extracted. We do not see any parallel on facts between the case in hand and that case to take the view that Sushanta''s case is on all fours with the instant case and, therefore, Petitioner''s contention has to be upheld. In that case, one Head Rakshak of Crime Branch was Physically assaulted, but their Lordships held that the offensive act of the detenu impinged only on maintenance of "Law and order" and not ''public order". There was nothing else in the offensive ground in that case which could suggest that the act of the detenu had any adverse effect on the even tempo of life of the community in any manner.

We have already as earlier alluded, to that and do not consider it necessary to state once again that it is not necessary in law to examine the other grounds as, in our view, Petitioner''s detention can be sustained on the ground which is extracted hereinabove. If we have to say anything about the other grounds, we may only say this much that there may be sufficient force in the contention of Shri J. P. Gupta that at least two of the other three grounds be deemed invalid for different reasons. Indeed, in respect of one ground, it was contended that the material document as respects that ground had not been furnished to the Petitioner.

For the reasons aforesaid, we are of the view that there is no merit in this petition and accordingly, it is dismissed. The detention order is upheld. We also uphold Petitioner''s continued detention confirmed by State Government on the basis of that order and Advisory Board''s "opinion" as counsel has not raised any other contention to challenge his continued detention.