Saeed vs Distt.Magistrate,Kanpur Nagar & Ors.

M.C. Jain, J.—Through this petition, the petitioner has challenged the detention order 172003 passed by the respondent No. 1, District

Magistrate, Kanpur Nagar under Section 3(2) of the National Security Act, 1980 and his continued detention thereunder.

The grounds of detention are contained in Annexure 5 to the writ petition. The detention order is based on an incident of case crime No. 101 of

2003, P.S. Colonelganj, District Kanpur Nagar, the F.I.R. of which was lodged on552003 at 11.30 a.m. by Mukhtar Ahmad son of Ayub, r/o

101/384, P.S. Colonelganj, Kanpur Nagar. The incident had taken place on that day at about 10 a.m. in front of Salar Bux in Indira Market. The

informant''s brother Jamshed had been shot dead. The petitioner with three others had allegedly opened shots on the victim who was on a

motorcycle. His motorcycle fell down and he ran towards Indira market to save himself but the petitioner and his companions chased and zeroed

on him, assaulting him by knife and firearm. As a result, he sustained serious injuries. The informant on getting information from someone at his

house, rushed to the spot and finding his brother lying in precariously injured condition, rushed him to Ursala Hospital but he died by the time he

could be taken there. The incident had created terror and panic in the affected market and area. The people started running helterskelter. The

shopkeepers downed their shutters. Even tempo of the public life was badly disturbed. The petitioner and his associates had allegedly run away

from the spot, flaunting their weapons after committing the crime. The incident was flashed in prominent newspapers the next day. The business

community of the area was scared. Additional police force had to be deployed to control the situation and restore confidence in the people around.

The petitioner surrendered in the Court on 952003 and on 1952003 the police obtained his remand. He then allegedly got recovered the

countrymade pistol from a place between G.I.C. and the office of B.S.A. Kanpur Dehat from beneath a Bargad tree. The countrymade pistol

contained an empty cartridge. Another case crime No. 110 of 2003 under Section 25/27 Arms Act was also registered against him on 1952003.

The place where the murder was committed, was a busy business centre of readymade clothes with dense population. It was also stated in the

grounds of detention that the petitioner was making efforts to get himself released on bail and on being released he was likely to indulge in serious

heinous offences which would prejudicially affect the public order.

Counter and rejoinder affidavits have been exchanged.

We have heard Sri Babu Ram Gupta, learned counsel for the petitioner, Sri Arvind Tripathi learned A.G.A. on behalf of respondents No. 1, 2

and 5 and Sri J. Lal, learned counsel for respondent No. 3Union of India.

The first argument of the learned counsel for the petitioner is that the detention order in question was vitiated because it was passed after 56

days of the incident of 552003. It is to be pointed out that he had surrendered before the Court on 952003 and was in judicial custody on 172003

when the detention order was passed. It was clearly stated in the grounds of detention that he was making efforts to get himself released on bail

and if so released, he was likely to indulge in criminal activities which would be prejudicial to public order. We do not think that the gap of 56 days

between the date of the incident and the passing of detention order could vitiate it, having regard to the factual position detailed above. The

petitioner himself filed the copy of the bail order dated 2672003 passed by the Sessions Judge, Kanpur Nagar, ordering his release on bail in the

questioned case crime No. 101 of 2003 of P.S. Colonelganj, District Kanpur Nagar. It rather supports the factum mentioned in the grounds of

detention that at the time of passing it, he was making efforts to get himself released on bail. To come to the point, the passing of the impugned

detention order after 56 days of the date of incident whereupon it is based, does not render it bad in law.

It has next been argued by the learned counsel for the petitioner that the incident was simply a matter of law and order having nothing to do with

the public order. There is plethora of case law on the point that each case has to be judged on its own facts as to whether an act relates to law and

order or public order. The answer would depend upon the effect of the act on the life of the community or, in other words, over the reach, effect

and potentiality of the act. If it disturbs or dislocates the even tempo of the life of the community, it would be an act affecting public order. In the

case at hand, the murder was committed in broad daylight in a busy business market of density in the heart of the city. The victim was on

motorcycle whose shooting was aimed at by the petitioner and his accomplices. When he ran to save his life after falling from the motorcycle, he

had been allegedly chased on public way, surrounded and murdered whereafter the petitioner and his companions allegedly ran away, flaunting

their weapons with the result that the none could dare to chase the apprehend the petitioner and his companions. The effect was the breach of

peace of the community and creation of anxiety and panic in the locality. The business community was so panicky that shutters were downed,

people started running helter skelter and the even tempo of public life was disturbed in great deal. The confidence of the people all around was

shaken in such great measure that additional police force had to be deployed to restore normalcy. On considering the entire facts and

circumstances, we are of the opinion that the dare devilry murder allegedly committed by the petitioner and his associates in broad daylight in busy

public market was obviously prejudicial to the maintenance of the public order. The District Magistrate has emphatically sworn in his

counteraffidavit that after receiving the police report, he had gone through the entire material and on considering the facts and circumstances

independently, he was satisfied that the act of the petitioner was clearly prejudicial to the maintenance of public order and even tempo of the

society. We find that the satisfaction of the detaining authority that preventive detention of the petitioner was necessary, cannot be flawed on

consideration of the entire set of relevant facts.

The last argument of the learned counsel for the petitioner is that his representation dated 1572003 was decided by the Central Government

belatedly on 3172003. On going through the record, we do not think that there occurred any delay, what to say inordinate delay in consideration

of the representation of the petitioner by the Central Government. It is noted from the counteraffidavit of Sri Umesh Kalra, Director, Ministry of

Home Affairs, Government of India, New Delhi that the representation dated 1572003 of the detenu alongwith parawise comments of the

detaining authority was received by the Central Government in the Ministry of Home Affairs on 2872003 and on the concerned desk on 2972003

through State Government''s letter dated 2472003. It was immediately processed for consideration and was rejected on 3172003. It is clarified in

the counteraffidavit of Sri Ramesh Chand Uttam, Under Secretary, Home and Confidential Department, U.P. Civil Secretariat, Lucknow that the

petitioner''s representation dated 1572003 alongwith parawise comments thereon was forwarded by District Magistrate, Kanpur Nagar by letter

dated 2172003 and was received in the concerned Section on 2272003. It was sent to the Central Government on 2472003. The District

Magistrate, Kanpur Nagar has sworn in paragraph 8 of his counteraffidavit that the representation dated 1572003 was received in his office

through jail authorities on 1672003. Then police report was called for to ascertain certain facts. 2072003 was Sunday. After receiving the police

report, the representation of the petitioner was considered by him and the representation alongwith parawise comments was sent by him to the

State Government on 2172003 through special messenger which was served in the Confidential Home Department. On 2272003, it was sent to

the Central Government through speed post. Thus, the entire time gap between 1572003 to 3172003 is fully explained. There was no delay

whatsoever.

In view of the above discussion, we see no merit in this petition and it is hereby dismissed.