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Hamza BIn Omer Vs. Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1983CriLJ1810
AppellantHamza BIn Omer
RespondentCommissioner of Police and ors.
Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5.....madhava reddy, ag. c.j.1. this is a petition for the issue of a writ of habeas corpus to direct the respondents herein to produce the detenu, hamza bin omer alias zaffar s/o omer bin ali, at present detained at hyderabad central jail, chanchalguda hyderabad and to set him at liberty forthwith.2. the detenu was arrested and detained under the national security act in pursuance of 0. no. 11/nsa/ts/1982 dated 7-9-1982 passed by the commissioner of police hyderabad 1st respondent and is at present lodged in the central jail. the order of the detention served on the petitioner read as follows:whereas i. t. ponnaiayya i. p. s. commissioner of police hyderabad, am satisfied with respect of sri hamza bin omer alias zafar pahalwan s/o omer,bin ali aged 32 years, r/o, yasrabnagar, yakutpura,.....
Judgment:

Madhava Reddy, Ag. C.J.

1. This is a petition for the issue of a writ of Habeas Corpus to direct the respondents herein to produce the detenu, Hamza Bin Omer alias Zaffar s/o Omer Bin Ali, at present detained at Hyderabad Central Jail, Chanchalguda Hyderabad and to set him at liberty forthwith.

2. The detenu was arrested and detained under the National Security Act in pursuance of 0. No. 11/NSA/TS/1982 dated 7-9-1982 passed by the Commissioner of Police Hyderabad 1st respondent and is at present lodged in the Central Jail. The order of the detention served on the petitioner read as follows:

Whereas I. T. Ponnaiayya I. P. S. Commissioner of Police Hyderabad, am satisfied with respect of Sri Hamza Bin Omer alias Zafar pahalwan s/o Omer,Bin Ali aged 32 years, r/o, Yasrabnagar, Yakutpura, Hyderabad and working as PC 918 SAR CPL Amberpet, Hyderabad, a Rowdy sheeter of Rein Bazar P. S., Hyderabad, that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make an order directing that the said Hamza Bin Omer alias Zafar Pahalwan shall be detained.

Now, therefore, in exercise of the powers conferred upon me by Sub-section (3) of Section 3 of the National Security Act, 1980 Central Act No. 65 of 1980 read with order of the Government of Andhra Pradesh issued in G. 0. Ms. No. 321 General Administration Genl. A Dept. dated 15-6-1982, I do hereby direct under Sub-section (2) of Section 3 of the said Act, that Sri Hamza Bin Omer alias Zafar Pahalwan shall be detained under the said Act and lodged in the Central Prison, Hyderabad.

3. The grounds of detention dated 10-9-1982 were later served on the detenu on 11-9-1982 through the Superintendent, Central Jail (3rd respondent). The Grounds of Detention read:

You with your associates, (1) Sultan Bin omer (2) Javeed Bin Omer, (3) Kursheed (4) Mohammed (5) Yonnus and others on 3-9-1982 at about 7-45 p. m. attacked the police party consisting of S. Is. Sri I.A. Indrakaran Reddy, 2. Mohd. Kazim Ali, 3. P.C. 3913 Shaik Ghousuddin 4. P.C. 3643 Sadar Ahmed, 5. P.C. 3737 A. H. Jafar Khan all of Rein Bazar P. S. and P.C. 302 P. Gopal Reddy and 7. P.C. 364 Jahangir Khan of APSP 1st Bn at the house of the said Sultan Bin Omer at Yesrabnagar, Yakutpura, Hyderabad with deadly weapons like Lathies and iron rods when the said police party had taken into custody your brother Javeed Bin Omer accused in Cr. No. 122/82/Under Section 342/324 I.P.C. of P. S. Rein Bazar and inflicted grievous injuries on the S. Is. by knocking down their teeth and beating them with iron rods till they became unconscious and attempted to kill Kazim Ali and threw him in the gutter behind the said house taking him, to be dead. All the policemen were beaten with lathies and iron rods. A case in Cr. No. 125/82 Under Section 147, 148, 332 and 324, 326, 224, 307 R/w 149 I.P.C. was registered at Rein Bazar P. S. on the same day.

Your raid on the above police officers caused panic among the public of Yesrabnagar localities and disturbed the public tranquillity which continued for three days. The public life had come to a standstill. All the medical shops, clinics, beaf shops, hotels, tea stalls, kirana shops, laundries, pan shops etc., were closed down. The streets in the locality remained deserted. For another two days the patients coming to the clinics stayed back and suffered. All sorts of transport were paralysed. To maintain public order which you disrupted, three platoons of Armed Police had to be posted in the said locality.

Your above terrorising activity shows that you are a menace to the society and a highly dangerous and desperate character. Hence your activities are prejudicial to the maintenance of public order. I was satisfied that you are a fit person to be detained to prevent you from acting in a manner prejudicial to the maintenance of public order. Accordingly I passed the order of detention against you on 7-9-1982 and served on you on the same day and detained in the Central Jail, Chanchalguda.

You have a right to make a representation against the order of detention to the Government of Andhra Pradesh, Hyderabad, through the Superintendent of Jail in which you are lodged. Your case will be placed before the Advisory Board within the stipulated time and if you choose to submit your representation, it will also be considered by the Board. You will also get a personal hearing before the Board if you so desire.

Along with the grounds of detention, the detenu was served with the Urdu translation of the First Information Reports dt. 24-8-1982 and 3-9-1982 in Cr. Nos. 122 and 125 of 1982 (Rein Bazar Police Station) respectively. He was also served with an order dt. 7/8-9-1982 issued by the Commandant, SAR/CPL, Amberpet, Hyderabad, placing him under suspension in public interest with immediate effect.

4. The order of detention is assailed on the following grounds : (1) In the Order of Detention, it is alleged that the detenu is a highly dangerous and desperate character, but there was no material before the detaining authority or is now placed before the court to substantiate the same. It is a mala fide order. (2) The solitary incident mentioned in the grounds of detention would, at the most, lead to an inference that there was disturbance of law and order but not public order. (3) The allegation is that, as a consequence of the incident, shops in the locality were closed and public tranquillity was disturbed for three days and public life name to a standstill. But there was no material whatsoever before the detaining authority to substantiate the same. (4) The detaining authority did not consider whether prosecution of the detenu for the alleged offence would not be sufficient and whether on that ground the detention was necessary under the National Security Act. In the absence of such consideration, the order of detention is illegal.

5. In the counter-affidavit filed by the 1st respondent (Commissioner of Police, Hyderabad City) the allegation of mala fides and of any extraneous consideration having weighed in making the Detention Order, was denied. It was stated that the detenu was a Police Constable attached to SAR/CPL Amberpet. The grounds of detention contain the details of the incident. The detenu along with several of his associates, attacked the police party consisting of two Sub-Inspectors and police constables of the Rein Bazar Police Station and Police Constables of the 1st Battalion, APSP Yousufguda, Hyderabad with an intent to kill them, when they went to the house of Sultan Bin Omer and arrested the detenu's brother Javed Bin Omer the accused in Cr. No. 122/82. The detenu knocked down two front teeth of A. Indrakaran Reddy, Sub-Inspector of Police and four front teeth of Mohd. Kazim AH another Sub-Inspector of Police by fisting them. The detenu and his associates also beat them with iron rods and sticks until they fell down unconscious. They also beat the other members of the police party with deadly weapons and overpowered them. Taking the two S.Is. to be dead, the detenu left the scene with his associates. It is stated that this incident created utter panic among the public of Yasrab-nagar and Yakutpura localities and disturbed public tranquillity and that situation continued for three days. Public life came to a standstill. All the medical shops, clinics, beaf shops, hotels, tea stalls, kirana shops, laundries and pan shops were closed down. In order to maintain public order, three platoons of APSP force were deployed in the above localities it was denied that the case of assault of police Officers was foisted on the detenu and his associates and that he was not a 'rowdy sheeter'. The material before the Commissioner of police led him to reach the subjective satisfaction that the detenu if let loose, was likely to continue to indulge in activities prejudicial to the maintenance of public order.

6. As already stated, in support of the grounds of detention two F.I.Rs. and the order of suspension made against the detenu were served on him with the translations thereof with which language the detenu is familiar. There is no complaint that the detenu did not understand the grounds of detention.

7. The first ground of attack on the order of detention is that the imputation contained in the order of detention dt. 7-9-1982 that he is a rowdy sheeter' is not supported by any material. In Sasthi Keot v. State of West Bengal : 1974CriLJ464 , Krishna Iyer, J., speaking for the Bench no doubt held that:

The ground that the detenu was a man of desperate habits and dangerous character is vague. Apart from the vice of vagueness which perhaps may not matter so far as the satisfaction of the authorities is concerned, every desperate or dangerous man cannot be run down under Section 3 of the Act especially when this vital yet injurious dossier about the person has not been communicated to him and opportunity afforded for making a proper representation contra.

In that view of the matter, the order of detention was held to be violative both of Article 22(5) of the Constitution and Section 3(3) of the Maintenance of Internal Security Act, 1971. It may' be observed that the detenu was described as a 'rowdy sheeter' in the order of detention; but it was not so stated in the grounds of detention. It is a mere description of the detenu and not a ground of detention. The fact that he was a rowdy sheeter' not being a ground of detention, in our view it was not necessary for the detaining authority to supply any material to the detenu on the basis of which he was described as a 'rowdy sheeter'. That fact did not enter the mind of the detaining authority in making the order of detention a close study of the judgment relied upon by Mr. Abdul Khair Siddiqui, learned Counsel for the petitioner, would disclose that in that case the fact that the man was of desperate habits and dangerous character was itself a ground of detention. Undoubtedly if the detention order was made upon such a conclusion reached by the detaining authority, it must be based on some material, the material on which that conclusion was reached must be supplied to the detenu. But where the person sought to be detained is merely described as a 'rowdy sheeter' in the order of detention and is not made a ground of detention, that element cannot be said to have entered into the mind of the detaining authority and formed the basis for reaching the conclusion that that person should be detained. It was therefore not necessary to supply the material on which the statement that the person sought to be detained is a 'rowdy sheeter' is made need not be supplied. No doubt in Mohd. Yousuf Rather v. State of Jammu and Kashmir : [1980]1SCR258 Chinnappa Reddy, J., in striking down the order of detention observed:

It is not permissible to dissect or trisect the grounds of detention into introduction, background and 'grounds' as such. There is no warrant for any such division. So far as grounds of detention are concerned no distinction can be made between introductory facts, background facts and grounds as such and it could not be said that even if introductory facts or background facts are vague or irrelevant the same would not vitiate detention. All allegations of fact which have led to the passing of the order of detention are grounds of detention. If such allegations are irrelevant or vague the detenu is entitled to be released.

8. But it is pertinent to note that these observations were made with reference to the grounds of detention. In that case the grounds of detention began with the statement that the detenu was a die-hard naxalite and no material was placed to substantiate that statement. The learned Judge observed that it was just a lable which can be as misleading as any other and is perhaps, used occasionally for that very purposes. What was served on the detenu on 7-9-1982 was the order of detention and not the grounds of detention. The grounds of detention served on the detenu on 11-9-1982 nowhere refer to the detenu as a rowdy sheeter'. We are, therefore, not persuaded to hold that the order of detention is vitiated because it describes the detenu as a 'rowdy sheeter'. So long as that allegation is not made a ground of detention, as is clear from the grounds of detention served on the detenu, it cannot be held that the detaining authority was in any way influenced by the fact that the detenu was earlier noted as a 'rowdy sheeter' in the police records.

9. In Dhananjoy Das v. District Magistrate : 1982CriLJ1779 the Supreme Court observed that what is stated in the order of detention or the preamble to the order of detention cannot be treated as a ground of detention and what is stated there if not supported by any material, cannot vitiate the order of detention. The Supreme Court declared that it cannot be said that there can be no preamble or introductory para in the grounds of detention. There is no bar to have introductory paragraphs in the grounds. Whether a particular paragraph in the grounds amounts only to a preamble or introduction is to be determined on the facts and circumstances of each case and it is open to the court to come to its own conclusion whether that paragraph is only an introductory para or contains the grounds on the basis of which the detaining authority had subjective satisfaction for passing the order of detention. In that case, the Court, having considered the grounds of detention, held that (para 13):

The grounds of detention read as a whole leave no room for doubt that para 1 of the grounds of detention was only by way of introduction or as a preamble. In substance, it only indicates he modus operandi adopted by the various organisations to the current agitation on foreigners issue in Assam. The 2nd and 3rd paras of the grounds of detention allege a specific part played by the appellant in that agitation. On a perusal of grounds of detention as a whole the view taken by the High Court that the 1st paragraph of the grounds of detention was only a preamble, preclude, or introductory para is correct. If this be the position then the vagueness in the 1st paragraph cannot be made a ground of attack on the impugned order.

10. Thus, the Supreme Court, has struck a different note even with respects to introductory or preamble part of the grounds of detention. Even if the description of the detenu contained in the order of detention that he is a 'rowdy sheeter' is treated as forming part of the grounds of detention, in the light of what is stated by the Supreme Court in Dhananjoy Das v. District Magistrate (supra) the order of detention could not be said to be vitiated!, much less could it be held to be unsustainable when it is not made a ground of detention, but is only mentioned by way of description of the detenu in the order of detention. In the instant case, that is precisely why there is no mention of the detenu being a 'rowdy sheeter' in the grounds of detention. This ground of attack is, therefore, unsustainable.

11. It was next contended that the solitary incident which occurred on 3-9-1982 at 7.45 p.m. cannot constitute a sufficient ground for holding that it had disturbed public tranquillity and public order so as to sustain the order of detention. The particulars of this incident have been extracted above. The salient features of this incident which occurred in the heart of the city are that when the law enforcement agencies went to arrest a person involved in a serious crime, in respect of which an F.I.R. was also issued for offences punishable under Ss, 324 and 342, I.P.C. the detenu who was a police constable in SAR/CPL, Amberpet along with his associates not merely obstructed the arrest, but also attacked the police party with deadly weapons causing grievous injuries and left the place only after taking the two S. Is. as dead and throwing one of the members of the police party in the gutter. It is stated in the FIR relating o Crime No. 125 of 1982 issued in this behalf that the accused, including the detenu, intended to murder the members of the police party and attacked them in an organised and systematic way. The manner of attack, the persons attacked, the persons who attacked and the grievous injuries inflicted on the members of the police party not only show the utter disregard of the detenu for law but also disclose the contempt with which the law enforcement force were treated by a member of such force. The effect it would have not only on the persons who are the victims of the attack but also on the residents of the locality could very well be visualised. If police personnel, who have the authority of law behind them, can be treated in such a cavalier fashion and were rendered helpless even in protecting themselves, the unarmed citizens who peacefully go about their avocations would not only be overawed but would feel insecure as a result of this incident. From the events of the three days following the incident, that seems to have actually happened. All the shops in the locality were closed. Even medical shops and private clinics were closed down. There was fear of recurrence of such incidents and to maintain public order and tranquillity in the localities of Yasranagar and Yakutpura, three platoons of APSP force had to be deployed. It is quite clear from the above that it was not merely a disturbance of law and order but the very public order and tranquillity were rudely shaken. The people lost confidence that they could go about their avocations without the fear of being subjected to similar attacks. That single incident had such far-reaching effect as to requisition extra three platoons of the Andhra Pradesh Special Armed Police force to restore confidence in the public. Mr. Abdul Khair Siddique, learned Counsel for the petitioner, contended that a single incident could not be held sufficient to hold that public order and tranquillity was disturbed or was likely to be disturbed; it could at the most amount to a case of disturbance of law and order not justifying the order of detention. and relied upon the judgment of the Supreme Court in Arun Ghosh v. State of West Bengal : 1970CriLJ1136 . Hidayatullah C.J. as he then was, speaking for the court observed that:

Public order embraces more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which, do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determined whether the disturbance amounts only to a breach of law and order.

12. No doubt on the facts of that case, the court came to the conclusion that the single incident alleged against the detenu only caused a breach of law and order and did not disturb public tranquillity and public order and on that basis directed the release of the detenu. But the court also observed that:

The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. An act by itself is not determinant of its own gravity.

In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand the public order on the other. It is always a question of degree of the harm and its effect upon the community. Individual act can be a ground for detention only if it leads to disturbance of the current of life of the society so as to amount to a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed.

13. Applying the principle enunciated in the above decision, if we scrutinise the grounds of detention and the facts of this case, it would be seen that though the incident in respect of which Crime No. 125 of 1982 of Rein Bazar Police Station was registered is a solitary incident, the context in which that crime was committed, the persons who committed it and the persons against whom it was perpetrated speak for themselves. It did not result in mere breach of law and order. it disturbed the normal life of the society and created-the terror among the residents of the entire locality which was amply demonstrated by the events that occurred during the three days following the incident. By no stretch of imagination could it be said to be an incident not affecting public tranquillity and public order.

14. In Sriram Saha v. State of West Bengal : 1972CriLJ1002 a single incident of attack on the members of the Railway Protection Force by the detenu was held to be sufficient indication of the disturbance of public order and tranquillity. That was a case where the detenu and his associates had, while committing theft of rice from a wagon at a railway station yard, attacked the members of the Railway Protection Force with bombs when challenged by them. As the acts of the accused created panic in the station area and the adjoining locality and as such disturbed public order, they were held to come within the ambit of Section 3(2)(d) of the West Bengal (Prevention of Violent Activities) Act, 1970.

15. Parimal Sarkar v. State of West Bengal : 1972CriLJ1003 is yet another case where the detenu and others looted rice from the wagon at a railway station yard and attacked the Railway Protection Force party with bombs and ballasts when challenged by them. It was held that the acts of the detenu were prejudicial to the maintenance of public order and that his detention was valid. This was also a case of a single incident which was held to be sufficient indication of the disturbance of public order.

16. In Mohd. Dhana v. State of West Bengal : 1976CriLJ622 also the order of detention was based on a single incident which occurred on 3-8-1973 between 21-10 and 21-20 hours and the detenu was alleged to have raided a third class compartment of SL 257 Up train of Eastern Railway, Sealdah Division at Gocharan station along with his associates armed with daggers and putting the passengers of the compartment to fear of death snatched away a wrist watch and gold necklace and decamped with the booty from the running train. The court observed that (para 4):

There are two pertinent facts which emerge from the grounds which must be noted in the first place the allegation is that the petitioner had snatched away a wrist watch arid a gold chain after putting the passengers of the compartment to fear of death. Secondly, the theft had taken place at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from travelling in trains at night and this would undoubtedly disturb the even tempo of the life of the community.

17. In this view, the court held that the grounds mentioned in the order did have a nexus with the disturbance of public order. In the present case, the attack is with deadly weapon on the members of a police party at night when they had gone there in discharge of their official duties of maintenance of law and order and to arrest a person accused of a serious crime. The attack stopped only when the two S.Is. were taken to be dead. It created not only panic but also terror in the locality. This is more stronger case for holding that the single incident in which the detenu played a key role had disturbed public order.

18. In Ashok Kumar v. Delhi Administration : 1982CriLJ1191 the Supreme Court observed that it is not merely the incident but the potentiality of the act to disturb the even tempo of the life of the community and which had the effect of deterring peaceful citizens from going about their normal avocations that is the test for determining whether it is a mere breach of law and order or a disturbance of public order and tranquillity. Justice Sen speaking for the court held that (para 13):

The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of law and order and public order' is a fine one but this does not mean that there can be no overlapping. 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 touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of: public order. That test is yearly fulfilled in the facts and circumstances of the present case.

19. It would be pertinent to note the further observations of Justice Sen:

What essentially is a problem relating to law and order may due to sudden-sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control. Whenever there is armed hold-up gangsters in an exclusive residential area like Greater Kailash Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist-watch or cash, or ladies relieved of their gold-chains or ornaments at the point of knife or revolver, they become victims of organised crime.

20. The Supreme Court held that the activities of the detenu cover a wide field and fall within the contours of the concept of public order and dismissed the petition for the issue of a writ of Habeas Corpus.

21. The same position was reiterated by the Supreme Court in Dhananjoy Das v. District Magistrate 1982 Cri LJ 1779 (supra).

22. In view of the catena of decisions of the highest Court, we have no hesitation in holding in this case that even the single incident referred to in the grounds of detention, having regard to the context in which it had occurred, the persons involved in it, the manner in which the attack was made, the weapons used, the injuries inflicted, the effect it had on the community and the panic or terror it had created in the minds of the rest. dents of the locality deterring them from pursuing their normal avocations, far exceeded the confines of mere breach of law and order and disturbed public order and tranquillity warranting detention in the interests of national security.

23. The next ground of attack is that no material is placed before the court to establish that because of the single incident that had occurred on 3-9-1982 the shops in the locality were closed down and the normal life was disrupted for the next three days. No doubt every ground of detention must be supported by material. But the fact that the shops were closed and the pursuit of normal life by the residents of the localities was disturbed can only be stated on oath and cannot necessarily be a matter of record. The Commissioner of City Police has sworn to an affidavit recording the facts within his observation and knowledge. No other material could be expected to be placed in their behalf. We, therefore, see no merit in this ground of attack.

24. Lastly it was contended that the order of detention does not disclose that the detaining authority had applied its mind to the question whether the prosecution of the detenu and his associates was not sufficient for offences allegedly committed by them on the night of 3-9-1982 and whether his detention under the provisions of the National Security Act was also necessary. We may at once point out that the Supreme Court has repeatedly laid down that the mere fact that a person could be prosecuted for specific offences cannot be a bar to his being detained, if that act disturbs public order and tranquillity as well. It is not necessary for the detaining authority to say so in so many words in the order of detention Or in the grounds of detention. When a contention is raised before the Court to that effect, it is open for the detaining authority to satisfy the court that this fact was also before it when making the order of detention. Suffice it to refer in this regard to the judgment of the Supreme Court in Kanchanlal v. State of Gujarat : 1979CriLJ1306 . Chinnappa Reddy, J. speaking for the court held that:

The possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority, the order of detention is necessarily bad. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could as well serve the purpose, the detaining authority must satisfy the court that that question too was borne in mind before the order of detention was made.

25. In Hemalata v. State of Maharashtra : 1982CriLJ150 the Supreme Court declared (para 9):

x xx What is required is that the detaining authority is to satisfy the court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases of prosecution it may not be possible to bring the culprit to book as in case of a professional bully a murderer or a dacoit as witnesses do not come forward to depose against him out of fear; or in case of international smuggling it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt.

26. In that context the Supreme Court took note of what was stated in the counter-affidavit in that case where it was stated by the detaining authority that it was aware that the detenu was being prosecuted under the ordinary law; but it was satisfied that the prosecution under the ordinary law was not sufficient for preventing the detenu from indulging in similar activities in future and observed that this statement of the detaining authority satisfied the rule laid down by it in Kanchanlal v. State of Gujarat : 1979CriLJ1306 .

27. In the counter-affidavit filed by the Commissioner of Police, the detaining authority in this case, after referring specifically to the fact that in regard to the incident on 3-9-1982 two F.I.Rs, were issued and investigations are afoot, it was stated that the grounds of detention have furnished him with the subjective satisfaction that the detenu if let loose, was likely, to continue to indulge in activities prejudicial to the maintenance of public order.. This clearly discloses that after investigation the detenu may be proceeded with in a court of law and punished, but if he was not detained immediately he was likely to indulge in activities prejudicial to the maintenance of public order. From this statement it is clear that the detaining authority had applied its mind to the question whether mere prosecution would be sufficient or detention also was further necessary and only then made the order of detention. This conclusion is based not merely on the incident that occurred on 3-9-1982 but also upon the effect it had on the residents of the locality.

28. For all the reasons stated above we are clearly of the view that the order of detention does not suffer from any infirmity and is unimpeachable. This writ petition therefore fails and it is accordingly dismissed. No costs Advocate's fee Rs. 250/-.

29. On pronouncement of this judgment, an oral request for grant of leave 'to appeal to Supreme Court is made by the learned Counsel for the petitioner. We have followed the dicta laid down by the Supreme Court in dismissing the writ petition. We are unable to certify that this case raises such substantial question of law of general importance as requires the consideration of the Supreme Court. Nor can we certify that it is otherwise a fit case for grant of leave to appeal to the Supreme Court, Leave refused.


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