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Shushil Kumar Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1982CriLJ1992
AppellantShushil Kumar
RespondentState of U.P. and ors.
Cases ReferredCriminal P.C. Borjahan Gorey v. State of West Bengal
Excerpt:
- - now the law on this point is well settled. in one set of given circumstances the act complained of may affect an individual member of the society only......a reference to the advisory board constituted under section 9 of the act within 3 weeks of the date of detention. the law relating to preventive delention permitted by the act curtails the personal liberty of citizen and as such, the procedural provisions of the act have to be complied with strictly. any departure from the procedure prescribed for preventive detention would automatically nullify the said order. this conclusion, however, is not sufficient to dispose of the controversy raised by the learned counsel on behalf of the petitioner. section 10 of the act speaks of a reference being, made to advisory board within 21 days of the date of detention and not from the date of the order of detention or the service of the detention order. the question which, therefore, arises for our.....
Judgment:

S.J. Hyder, J.

1. This petition under Article 226 of the Constitution is directed against the order dated Nov. 13, 1981 passed by the Dist. Magistrate, Allahabad in the purported exercise of his power under Sub-section (1) of Section 3 of the National Security Act, 1980, hereinafter referred to as 'the Act', directing the detention of the petitioner in the Central prison, Naini under Sub-section (2) of Section 3 of the Act. The petitioner contends his detention in the Central prison Naini is illegal and void and that writ of habeas corpus may be issued directing his release from the Central Prison, forthwith. Besides the Supdt Central Jail, Naini, the Distt. Magistrate and the State of U.P. have also been impleaded as opposite parties.

2. In the petition it is stated that the petitioner in a law abiding citizen and has no previous criminal record. It is contended by him that he is an active member of the Lok Dal and the members of the ruling party are against him and apprehend that on account of the petitioner's immense influence with the electorate, the scales may be turned against the ruling party in the forthcoming elections to the Nagar Mahapalika. It is stated in petition that one Sri Satish Jaiswal an M.L.A. of the ruling party has been instrumental in setting up the local police against the petitioner and since 8-3-1981 the petitioner has been involved in a number of false cases. According to the petitioner, the district administration is playing in the hands of the ruling party and has issued the impugned order against the petitioner which is illegal and void. A number of grounds have been urged to challenge the validity of the detention order passed by the Dist. Magistrate on the 3rd Nov., 1981. We shall proceed to deal with the said grounds seriatim.

3. However, before dealing with the submissions of the learned Counsel it is necessary to mention certain facts. When the order dated 3-11-1981 was passed by the Dist. Magistrate the petitioner was already in jail in connection with a case under Section 307, I.P.C. A copy of the detention order was sent to the Supdt. Naini Central Jail and was received by the said officer on the same date. The Superintendent, Naini Jail offered a copy of the detention order to the petitioner on the same date but he refused to accept the same. The petitioner was enlarged on bail in the case under Section 307 I.P.C. by an order dated 5-11-1981. The warrant of release was communicated to the Jail Supdt, on November 7, 1981 but the petitioner was not released from detention because an order under Section 3 of the Act had been passed against him. A fresh order of detention was served on the petitioner on November 20, 1981 and this time the petitioner accepted the service of the order. It may be stated that the State Government was informed of the Order passed by the Dist. Magistrate on November 3, 1981 against the petitioner. This information was received by the State Government on 4-11-1981 and was approved by its order dated Nov. 10, 1981. Information of the detention order served on the petitioner was conveyed by the State Govt. to the Central Government on Nov. 13, 1981. Reference to the Advisory Board was made on Nov. 26, 1981. The petitioner made a representation dated Dec. 3, 1981 and the same was considered by the Advisory Board. The Board gave a personal hearing to the petitioner on Dec. 17, 1981 and approved of the order of detention on the same date. The approval was conveyed to the State Government by the Board On Dec. 24, 1981. The Chief Minister passed an order confirming the order of petitioner's detention on Dec. 28, 1981 and the same was conveyed to the petitioner by means of an order of the State Government dated Dec, 29, 1981.

4. Learned counsel appearing for the petitioner, in the first place, urged that here has been a non-compliance with the mandatory provision of law contained in Section 10 of the Act. According to him the detention of the petitioner under Section 3 of the Act commenced as soon as the detention order dated Mar. 3, 1981 was passed and received by the Superintendent, Central Jail Naini and as such a reference under Section 10 of the Act should have been made within 21 days of the said order. However, the reference under Section 10 was made to the Advisory Board on 26-11-1981 and as such there has been a non-compliance with the mandatory provision of law which vitiate the detention of the petitioner.

5. Now, Section 10 of the Act makes it obligatory on the appropriate Government to make a reference to the Advisory Board constituted under Section 9 of the Act within 3 weeks of the date of detention. The law relating to preventive delention permitted by the Act curtails the personal liberty of citizen and as such, the procedural provisions of the Act have to be complied with strictly. Any departure from the procedure prescribed for preventive detention would automatically nullify the said order. This conclusion, however, is not sufficient to dispose of the controversy raised by the learned Counsel on behalf of the petitioner. Section 10 of the Act speaks of a reference being, made to Advisory Board within 21 days of the date of detention and not from the date of the order of detention or the service of the detention order. The question which, therefore, arises for our consideration is on which date can the detention of the petitioner be said to have commenced. Earlier we have stated that the petitioner was in detention in connection with a substantive offence punishable under Section 307, I.P.C. on the date on which the order of detention was made or served on the Superintendent, Central Jail, Naini. He became entitled to be enlarged on bail when the warrant of his release was communicated to the Jail Superintendent, petitioner's detention under Section 3 of the Act can be said to have commenced only on 7-11-1981 when he was not released from Jail in spite of the order of bail granted to him by the appropriate Court. The interprelation which the counsel for the petitioner wants us to place on Section 10 of the Act seeks to introduce words in Section 10 which are not there. According to him, the period of 21 days is to be computed either from the date of the passing of the detention order or from the date of its service on the Jail Superintendent if the petitioner is already in detention in connection with some other offence. The words 'date of detention order' and 'date of service of detention order' however, do not occur in Section 10. In State of Gujarat v. Adam Kasam Bhaya : 1981CriLJ1686 similar argument based on Section 10 of the COFEPOSA Act 52 of 1974 was raised and repelled by the Supreme Court. The said Court observed that the period of detention is to be computed from the date of the actual detention and not from the date of the order of detention. On a parity of reasoning the principle enunciated in the said case applies to the instant case also.

6. Learned counsel has next urged that grounds accompanying the order of detention contains as many as four grounds and the first ground is wholly vague. He submitted that the order passed under Section 3 of the Act is based on the subjective satisfaction of the Dist. Magistrate and in case one of the grounds of detention is invalid either because it is stale or irrelevant and vague, the entire order of detention stands vitiated. Now the law on this point is well settled. From the case of Keshav Talpade v. King Emperor there is a catena of decisions which support the proposition of law contended for on behalf of the petitioner. The question of fact which however, remains to be considered and which we have to examine is whether ground No. 1 given in the Annexure to the detention order can be categorised as vague,

7. As already stated, there are as many as four grounds mentioned in Annexure '2' to the detention order. Ground No. 1 which is the subject matter of attack in the present writ petition is in the following words:

1. You are a notorious, dangerous person and a man of criminal tendencies, and you have formed a gang of such persons. You and your accomplices keep unlicensed pistols, knives, revolvers, etc., and use them in committing unlawful acts. The public of Allahabad is terror stricken and afraid as a result of these activities of yours. As a result of the terror caused by you nobody dares to give evidence against you and at the same time people fear to make a report against you. With the help of your companions and arms, you create tension and realize by force, money from the people. You take goondas to Mirganj, a mohalla inhabited by prostitutes and forcibly realise money from the prostitutes and other people. If any one comes in opposition he is done to death. It is learnt, from a confidential report that you are a man of this nature. A copy of this report is being enclosed, but on account of its being confidential, the name of the officer is not being disclosed. In this way, you keep yourself engaged in the activities of breach of public order.

8. The remaining three grounds mentioned in the order give specific instances of the general allegation contained in para 1 of the order. It therefore, follows that ground No. 1 has to be read along with grounds 2, 3 and 4 contained in the memorandum accompanying the detention order. In our opinion nothing turns on the form on which the order of detention is drawn up. Mere formal or linguistic errors would not result in nullifying an order which has otherwise been validly passed. A similar question arose before the Supreme Court in Smt S. Gayatri v. Commr. of Police, Madras : AIR1981SC1672 . The Supreme Court observed that at first blush it was impressed by the submission of the learned Counsel that one of the grounds accompanying the detention order served on the petitioner of that case was too vague and general to enable him to answer the same. However, the Supreme Court, on a consideration of the words of the entire order, came to the conclusion that in the circumstances of that case, it was not possible to isolate the ground that was impugned before it from the rest of the grounds. It further stated that it was not possible to style the said ground as a ground of detention at all and that it was only a general description of the particulars which were mentioned in the remaining -grounds. A similar construction has to be placed on ground No. 1 extracted above and we are unable to accept the submission urged on behalf of the petitioner.

9. It was then contended oh behalf of the petitioner that the grounds mentioned in the Annexure attached to the order of detention relate to the problem of law and order and are not concerned with public order as such. In the case of Dr. Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 the Supreme Court drew a distinction between the concept of law and order on the one hand and public order on the other. It also considered the concept of 'security of State' because it also generally occurs in the law relating to preventive, detention. It was observed that in order to appreciate the distinction between these three legal concepts, one may draw three concentric circles. Largest of these circles would take within its fold the concept of the law and order. The smaller circle may be appropriately called as public order. The smallest of the three concentric circles is confined only to the concept of security of State. True it is that a detention order can be. passed only to preserve public order or the security of the State as the case may be. It is equally true that the legal concept of law and order being wider in scope may not necessarily take within Us ambit the concept of public order or security of the State.

10. The analogy of three concentric circles staled for the first time in the case of Dr. Ram Manohar Lohia 1966 Cri LJ 608 (SC) (supra) and repeated subsequently in a number of decisions makes it clear that the expression 'law and order' is not a genus totally different from public order or security of the State. 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 upon the degree and extent of its reach upon the society. The act similar in nature but committed in different context and circumstances might cause different results. In one set of given circumstances the act complained of may affect an individual member of the society only. Similar act committed in a different background may have its ramifications on the society as a whole or at least on a section of the society, in the former case the act which is made the subject matter of detention may be categorised as one falling within the realm of law and order. In the latter case a similar action may fall within the ambit of the expression 'public order'. It, therefore, follows that nothing depends on the nature and quality of the act done by an individual. What has to be taken into account are the circumstances or the background in the context of which the act, is done. (Wasi Uddin Ahmad v. District Magistrate Aligarh : 1981CriLJ1825 .

11. The deteriorating law and order situation which exists in these days is a matter of which judicial notice can be taken by this Court. Therefore, when a person is alleged to be in the company of those who were armed with bombs, revolvers and knives and attacks passers-by on a public street, it can scarely be said that the action concerns only the individual who is actually attacked and that it has no effect on the residents of the locality where the incident occurs. Similarly, if a person is armed with knives of a prohibited blade and goes about with an unlicensed pistol and extracts money from the passers-by his actions are bound to produce panic in the locality as a whole. We do not, therefore, feel impressed with the submission of the learned Counsel that the grounds of the petitioner's detention concerned the question of law and order and are wholly foreign to the expression 'public order' as judicially interpreted.

12. It is also contended on behalf of the petitioner that the grounds of detention and the facts on which they are founded do not make out a case for the detention of the petitioner. He has referred to certain features of the case as disclosed from the papers attached with the order of detention and has pleaded that on the basis of the said facts, no case is made out against the petitioner for the offences alleged to have been committed by him. In other words, the point pressed upon us is that there are inherent weaknesses in the different first information reports which have been lodged against the petitioner and even if the allegations made in such first information reports are taken to be true, no case is made out against the petitioner for an offence punishable under the Indian Penal Code or under the Arms Act. The submission thus urged in support of the writ petition does not take into account the nature of jurisdiction which this Court exercises while dealing with a case under Article 226 of the Constitution. In our opinion, we are not called upon to examine the veracity or otherwise of the allegations made against the petitioner. This is a function which the law has squarely placed on the shoulders of the Advisory Board. All that this Court can consider while dealing with a writ petition for the issue of a writ of habeas corpus against an order of detention is whether there was sufficient material on record to justify the order of detention. This Court does not function as an appellate authority and is not called upon to decide the correctness of the allegations made against the petitioner. The submission made on behalf of the petitioner is therefore, without any substance and we are unable to entertain the same. (See Tarak Nath Chakraborty v. State of West Bengal : AIR1972SC2388 and State of Gujarat v. Adam Kasam Bhaya 1981 Cri LJ 1686 (supra).

13. Finally, the learned Counsel submitted that the petitioner could be prosecuted for committing the alleged offences under the procedure prescribed by law and the extraordinary power conferred on the executive to deprive a person of his personal liberty could not have been invoked by the Dist. Magistrate and that the said exercise of power is illegal.

14. The scheme of the Act and the provisions of Article 226 of the Consitution do not support this submission. A detenu may be liable to be tried for an offence committed by him under the provisions of the Criminal P.C. That can be done in the exercise of a jurisdiction which is wholly different from the jurisdiction conferred by the Act. The Act has been passed to meet an extraordinary situation of arresting the growing lawlessness. It arms the executive with speedy and effective power to restore normalcy in the society. The jurisdiction thus exercised by the executive is wholly different from the jurisdiction which it possesses to send an accused for trial before a Court of law. The fields of these two jurisdictions are not co-extensive and we do not find anything which prevents the executive to have recourse to the provisions of the Act either in addition or in substitution to the remedy provided under Criminal P.C. Borjahan Gorey v. State of West Bengal) : [1973]1SCR751 .

15. Learned counsel made an impassioned appeal in the name of individual liberty. This Court is bound by the provisions of the Constitution. The scheme of the Constitution is such that it makes the State apparatus accountable not only to individual but also to the society as a whole. We are, therefore, unable to accept the appeal made on behalf of the petitioner in the name of individual liberty alone. The other factors which have been expressly provided for in the Constitution cannot be ignored.

16. Although in the writ petition, an attempt was made to challenge the validity of the order of detention on the ground of mala fides, in the counter-affidavit filed by the Dist. Magistrate, the said allegations have been totally controverted. It must be stated in fairness that learned Counsel for the petitioner made no attempt to call in question the order of detention on the ground that it was vitiated by mala fides.

17. We see no merit in this writ petition. The writ petition is accordingly dismissed but there shall be no order as to costs.


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