Veerendra Singh vs State of M.P. and Another

V.K. Agrawal, J.—This petition under Articles 226 and 227 of the Constitution of India has been filed seeking issuance of a writ of Habeas

Corpus regarding detenu Surendra Singh. who is the brother of the petitioner and who has been detained under the National Security Act

(hereinafter referred to as the ''Act'') by District Magistrate. Surguja by his order dated 31-3-1995 (Annexure R/2) and praying that the said order

of detention be quashed.

Facts leading to the present petition in brief are that on receiving report (Annexure R/1) from

S.P., Surguja, the impugned-order( Annexure R/ 2} dated 31 -5-1995 was passed by the Respondent No. 2. District Magistrate, Surguja u/s

3(2) of the Act ordering detention of Surendra Singh on the grounds enumerated in ''Annexure R/2''. the said grounds briefly areas below:-

(i) On the report of Sukhlal, Crime/No. 123 of 1990 for offences punishable under Sections 294/506 r/w. Section 34 of the IPC was registered

and charge-sheet filed;

(ii) On the report of Tirathnath, Crime No. 178/90 for offences punishable Under Sections 141/148/149/452/186/323/294/506-B, IPC was

register and charge-sheet filed;

(iii) On the report of Sanjay Manna, Crime No. 348/90 for offences punishable Under Sections 147/148/149/307, IPC was registered and challan

filed on 9-11 -1990; (iv) On the report of R.N. Dixit, Crime No. 335/91 for offences punishable Under Sections 341/294/323/506-B r/w.

Section 34 of the IPC was registered and charge-sheet filed;

(v) On the report of ''Kamlesh, Crime No. 313/91 for offences punishable Under Sections 294/506-B/323/324, IPC was registered and charge-

sheet filed in the Court; '':...'' ''

(vi) On the report of Sapan Kumar. ''Crime No. 323/91 of P.S. Chirimiri for offences, punishable Under Sections 147/148/149/294/506-B/323,

IPC was registered and charge-sheet filed;

(vii) Complaint No. 15/91 under preventive Sections 107/116(3) of the Cr. P. C. prepared and filed;

(viii) On the report of Sanjay Mehta, Crime No. 200/92 for offence punishable u./S. 302, IPC was registered and challan filed;

(ix) On the complaint of Shiva Prasad Mishra Crime No. 10/93 for offences punishable Under Sections 147/148/149/323/324, IPC was

registered and challan filed;

(x) On the report of Ram Milan, Crime No. 195/ 94 for offences punishable Under Sections 147/149/427/506-B, IPC was registered and challan

filed;

(xi) On the report of Satya Pujan Mishra, Crime No. 351/94 for offences punishable Under Sections 294/323/506-B, IPC was registered and

challan filed;

(xii) On complaint No. 18/94, preventive action taken and complaint Under Sections 107/116(3) of the Cr.P.C. was drawn up;

(xiii) On 8-12-1994, the detenu along with his companions assaulted the driver of the bus belonging to MP SRTC and, therefore, preventive action

taken;

(xiv) On 18-3-1995 on the report of complainant Savitri Bai, preventive action taken against the detenu;

(xv) On the report of Nathuram, Crime No. 119 of 1995 was registered against the detenu for offences punishable under Sections 341/294/506-

B, IPC, which is pending investigation;

(xvi) On 30-3-1995, the detenu chased the Driver Nathuram of a School Bus and threatened him to kill, due to which the market was closed and

the students stopped going to the schools;

It was alleged in the grounds of detention that the detenu was a person of criminal tendency and of-'' fences of murder, assault, criminal

intimidation, rioting were habitually committed by him and witnesses, on account of fear, did not give evidence against him. Therefore, his actions

were: prejudicial to maintenance of public order.

It would appear from the return of the respondents that vide communication dated''. 31-3-1995'' (Annexure R/1) of the S.P., Surguja

addressed to the District Magistrate, details of the prejudicial activities of the detenu were furnished along with relevant documents in support of

the same. After carefully examining the report and the documents annexed therewith, the District Magistrate, Surguja passed detention order dated

31-3-1995 (Annexure R/2) u/s 3(2) and (3) of the Act, which was served on the detenu on 7-4-1995. By Annexure R/3, grounds of detention

were furnished on 7-4-1995 to the detenu. The telegraphic communication of the detention of the detenu was sent by ''Annexure R/4'' dated 7-4-

1995 to the State Government and detailed information was also sent to the Stale Govt. by letter dated 10-4-1995 (Annexure R/5). The State

Govt. vide order dated 12-4-199:5 (Annexure R/6) accorded approval to the detention order of the District Magistrate and vide Annexure R/7

dated 18-4-1995, the State Govt. informed the Central Govt. about the detention order passed by the District Magistrate, Surguja. The detenu

was produced before the Advisory Board on 2-5-1995 and the Advisory Board by its order dated 2-5-1995 ''(Annexure R''8) approved the

detention, as it found it to be justified. By order dated 16-5-1995 (Annexure R/9), the State Govt. u/s 12(1) of the N.S.A., confirmed the

detention order (Annexure R/2) and directed that the period of detention of the detenu shall last upto 6- 4-1996. The confirmation order of

detention was duly served on the detenu on 19-5-95 (Annexure R/ 10), the acknowledgement of which is'' Annexure R/ 11 .The details of

detention were submitted by the Slate Government to the Central Government vide ''Annexure R/13 dated 26-7-1995.

It has also been stated in the return, that vide ''Annexure R/3'', the detenu was informed that he had a right to make a representation to the State

Government and to make submissions before the Advisory Board regarding his detention. The detenu, however, did not submit any representation

to the State Government The respondent State has, there-fore, submitted that there was no infringement of the procedure prescribed under the

National Security Act, 1980 and that the order of detention was passed by the District Magistrate, after his subjective satisfaction regarding the

detention. It was submitted that the detention order does not suffer from any legal infirmity and the petition being devoid of substance and merit,

observes to he dismissed.

The learned counsel for t he petitioner has mainly urged.

(1) that there was no material before the detaining authority for arriving at its subjective satisfaction and especially no material was placed before it

regarding grounds (1) to (xii) and only entries of the crime register have been produced in relation thereto, which are not sufficient for forming an

opinion by the detaining authority;

(ii) that the grounds of detention are vague, stale and do not disclose that the actions of the detenu were in any manner prejudicial to the

maintenance of public order and could constitute threat to law and order;

(iii) that the affidavit of the detaining authority filed along with the return does not disclose that the detaining authority applied its mind on the

material furnished to it before passing the order of detention; and

(iv) that the record of the proceedings of the Advisory Board was not sent back to the State Government.

As against this, it was submitted on behalf of the State Government that the report of the S. P., Surguja along with the annexure constituted

sufficient material for subjective satisfaction of the detaining authority and for basing its conclusion, on the basis of which order of detention was

passed. It was also contended that the record sent to the Advisory Board is sent in triplicate and the original file remains with the State Govt. and

the Advisory Board has only to send the order to the State Government. The affidavit of the detaining authority was duly sworn, which discloses

that it has applied its mind to the material placed before it, before passing the detention order. The past activities of the detenu can always be taken

into consideration and the cumulative effect of the activities in which the detenu has been indulging in the past can be taken into consideration. It

was found by the detaining authority that the detenu had been consistently involved in commission of offences and the continuity thereof indicates

that the detenu was acting in a manner prejudicial to the public order.

So far as the objection regarding non-supply of sufficient material to the detaining authorities, it may be mentioned that perusal of the record

discloses that so far as grounds (i) to (xii) mentioned in ''Annexure R/3'' are concerned, it is found that only copies of crime register alone have

been enclosed. However, F.I.R.s or any other material documents have not been sent to the detaining authority along with the report of the

Superintendent of Police submitted to the detaining authority. According to the learned counsel for the petitioner, the copies of crime register are

not sufficient and the detaining authority could not form an opinion regarding detention on the basis thereof. He has, in this connection, relied upon

the case in Smt. Raheeman Bi Vs. District Magistrate and Others, , wherein, it has been observed, as under (at P. 3543 of Cri LJ).:-

We fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against tin; detenu. We also

fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations which contained in

the first information report....(Para 12);

In the instant case also, there is no other material to support grounds Nos. (i) to (xii) except the entries from the crime register. The said entries,

in our opinion, would not constitute sufficient material for forming opinion regarding detention and could not even, prima facie, substantiate the

allegations contained in Grounds Nos. (1) to (xii) of ''Annexure R/3''.

Moreover, it has been urged that the grounds Nos. (i) to (xii) do not contain the particulars of the alleged incidents and the involvement of the

detenu therein. Therefore, it cannot be said that material placed before the detaining authority regarding grounds Nos. (i) to (xii) was sufficient and

no opinion regarding detention on the basis thereof could be formed.

On perusal of grounds Nos. (1) to (xii) and the documents in support thereof, it appears to u-. that the grounds are not duly supported by

relevant documents, as the documents furnished to the detaining authority were only entries from the Crime Register, which would not, in our

opinion, suffice to substantiate and even disclose, prima facie. that the allegations against the detenu wen: true. Though this Court would not go into

the truthfulness of falsehood of the allegations made, there should be sufficient material to indicate that there was material for consideration and for

application of mind by the detaining authority to come to the conclusion and that on being relied upon, activities prejudicial to public order could be

attributed to the detenu. No such documents, in our opinion, in this case, having been placed before the detaining authority, so far a grounds Nos.

(i) to (xii) are concerned, the same could not form the basis for forming an opinion and to pass an order of detention,

Moreover, it has also been urged on behalf of the petitioner that grounds Nos. (vii) and (xii) relate to only preventive proceedings Under

Sections 107/116 of Cr.P.C. Similarly, grounds Nos. (xiii) and (xiv) also relate to prohibitory proceedings. Therefore, ground Nos. (vii), (xii), (xiii)

and (xiv) would not constitute any action on the part of the detenu, on the basis of which an order for detention under the ""Act"" could be passed.

We find substance in the above contention.

The learned counsel for the petitioner has assailed grounds Nos. (xv) and (xvi) also and has urged that they relate to alleged incidents dated

30-3-1995 at Korea, which is about 150 Kms. from Surguja the HQ. of the detaining authority, who could not normally have time to consider the

same on the next days i.e., 31-3-1995 while passing the impugned-order. Secondly, it has also been contended in this connection that the said

grounds do not constitute any act, which could be considered as prejudicial to ''public order'' and could only be matters of ''law and order''. He

has also urged that the other grounds also do not constitute any activity on the part of the detenu, which may be termed as prejudicial to public

order.

Now coming to ground No. (xv), it appears to be based on the report of one Nathurain regarding which offences punishable under Sections

294 and 506-B, I.P.C. were registered. On perusal of the ''Rojnamcha-Sahna'', relating to the said ground, it appears that the same was regarding

use of abusive language and threat to Savitri Devi. The above act of the detenu can in no way be considered as affecting public order. Similarly, so

far as ground No. (xvi) is concerned, the relevant ''Rojnamcha Sanha'' discloses that a report was lodged that the detenu Surendra Singh and

Bhola Pandey stopped the school bus and abused the driver of the bus and chased him. It may also be noticed that though in the ground, it has

been mentioned that there was general terror on account of the said act, but the relevant ''Rojnamcha'' report relating to the said ground does not

disclose that public terror was caused on account of the said incident and, therefore, the same could not be said to be affecting ''public order''.

It would appear from above incidents, contained in grounds (xv) and (xvi) as also from other incidents constituting other grounds that the

alleged activities of the detenu related to ''law and order'' and were not such as to be termed as prejudicial to ''public order''.

The distinction between ''law and order'' and ''public order'' has been elucidated in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, ,

as under :--

One has to imagine three concentric circles. The law and order represents the largest circle within which the next circle representing public order

and the smallest circle represents security of State. It is then easy to say that an act may affect law and order, but not public order just as an act

may affect public order, but not the security of the State.

In State of U.P. Vs. Kamal Kishore and Another, , it has been observed as below (Para 12) :-

Considering all these decisions, we have held in the case of Gulab Mehra Vs. State of U.P. and Others, that whether an act relates to law and

order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of

the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act, which will affect public order.

In the instant case, considering the nature of activities and the incidents enumerated in the grounds in ''Annexure-R/3'' and the documents

placed in support thereof, it does not appear that the action of the detenu constituted any threat to public order, as the alleged acts of the detenu

do not appear to have the effect and potentiality to disturb or dislocate the even tempo of life of the community. Therefore, they could not be

considered as actions prejudicial to the maintenance of public order.

The learned counsel for the petitioner has also contended that the return has not been supported by the affidavit of the detaining authority, i.e.,

the District Magistrate, Surguja. He has contended that the detaining authority, by swearing an affidavit, should have shown his subjective

satisfaction on the grounds for detention. Reliance in this connection was placed by him on the following observations of the apex Court in

Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, :

In return to a rule nisi issued by the Supreme Court or the High Court in a habeas corpus petition, the proper person to file the affidavit is the

District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefor: and, if

for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Dy.

Secretary to the Govt. in the Home Department, who personally dealt with or processed the case in the, Secretarial or submitted it to the Minister

or other Officer duly authorised under the Rules of Business framed by the Governor under Article 166 of the Constitution to pass orders on behalf

of the Government in such matters.

He has also relied upon Mukesh Kumar Jain Vs. Union of India (UOI) and Another, wherein it has been held that in case the detaining

authority has not filed an affidavit denying the allegations made in the petition, the order impugned deserves to be quashed.

In the instant case, it appears that initially the return was accompanied by an affidavit dated 16-11-1995 of Shri B.S. Rayast, Jt. Collector &

City Magistrate, Surguja. However, subsequently, the detaining authority, i.e., District Magistrate, Surguja has sworn affidavit on 21st

November/95 in support of the contentions of the return. The learned Addl. Adv. General for the respondents has urged in this regard that the

detaining authority could not swear his affidavit earlier, because he was not available, but subsequently, without delay he has sworn his own

affidavit in support of the return of the respondents.

In view of the fact that the detaining authority has submitted his affidavit though subsequently to the filing of return as pointed out above, it

appears sufficient and the objection raised on behalf of the petitioner in this regard, therefore, cannot be accepted.

As regards the objection raised on behalf of the petitioner that the record of the Advisory Board was not sent back to the State Government,

the learned Addl. Advocate General has explained that copies of the record in triplicate are sent to the Advisory Board and the original record

remains with the State Govt., hence there is no non-compliance of provisions of the ''Act'' in this regard, as objected to by the petitioner. In view of

the above procedure, the objection and contention of the petitioner on this count also does not appear to be well founded and cannot be accepted.

Therefore, in view of the above discussion, it appears that the grounds and the material furnished alongwith them to the detaining authority were

not sufficient for subjective satisfaction of the detaining authority that the activities of the detenu were in any manne prejudicial to the maintenance-

of public order.

For the foregoing reasons, the order of detention (Annexure-R/2) dated 31-3-1995 deserves to be quashed and is hereby quashed. The

detenu is directed to be set at liberty forthwith, if not required to be detained in any other case.