A.K. Shrivastava, J.
1. By filing this petition under Articles 226 and 227 of the Constitution of India the detenu petitioner has challenged the pregnability of the order passed by the District Magistrate, Gwalior (respondent No. 2) taking the petitioner in detention under Section 3(2) of the National Security Act, 1980 (in short 'the Act').
2. Vide order dated 23rd April, 2009 (Annexure P-1) passed in Case No. NSA/07/2009 by exercising powers conferred to the District Magistrate under Section 3 (2) of the Act, the petitioner has been detained because his liberty is prejudicial to the maintenance of public order.
3. The Superintendent of Police (respondent No. 3) vide its letter dated 31-3-2009 (Annexure R-1) submitted and informed the District Magistrate that looking to the criminal and antisocial activities of the petitioner resulting into disruption of tempo of life of public at large, it is recommended to proceed against him under the provisions of the Act. In the said letter, not only the details of 14 cases were highlighted, but a separate list indicating the criminal record of the detenu was annexed.
4. On receiving the said recommendation of Superintendent of Police, Gwalior, the learned District Magistrate summoned the relevant record and also recorded the statements of residents of the locality concerned namely Krishnakant Shivhare and Prakash Pandey apart from the statement of Town Inspector of Police Station Dabra Shri Rakesh Gupta. The learned Magistrate after having perused the recommendations, the statements and the material available on record, arrived at a subjective satisfaction that looking to the criminal activities of the petitioner, his physical presence is prejudicial to maintain the public order and hence by invoking the powers conferred to it under Section 3 of the said Act, the impugned order of detention was passed on 23rd April, 2009.
5. Needless to say, the matter was also referred to the Advisory Board who concurred with the view of the learned District Magistrate and justified the detention order of learned District Magistrate and forwarded its decision to the State Government. In this regard, Annexures R-5 and R-6, dated 29th April, 2009 and 18-5-2009 respectively have been placed on record.
6. The contention of Shri Pathak, learned Counsel for the petitioner, is that learned JMFC, Dabra, in Case No. 1067/08 (State through Police Station, Dabra v. Jugaroo and Ors.), vide its judgment dated 30-5-2009, acquitted the petitioner from the charges punishable under Sections 327/34, 294 and 506-B of IPC. In another case, which was pending before the learned JMFC in Case No. 1066/2008 (State through Police Station, Dabra Distt. Gwalior v. Jugaroo and Ors.), the learned Magistrate acquitted the petitioner on 17-4-2009 from the charge punishable under Sections 327/34 of IPC. During the course of arguments, a certified copy of the judgment dated 22-7-2009 passed by the learned JMFC, Dabra, in Case No. 586/2008 acquitting the petitioner under Sections 327/34, 294 and 506-B of IPC, has been submitted. Learned Counsel has also submitted another order dated 9-9-2009 passed by the learned JMFC, Dabra, in Case No. 499/2008 and has submitted that the petitioner has been acquitted from the charges punishable under Sections 324/34, 504 of IPC. The contention of learned Counsel is that merely because umpteen criminal cases are pending against the petitioner, it may be a ground to hold that he is violating the law and order, but his activity cannot be stretched upto the extent that his liberty has become prejudicial to the maintenance of public order and therefore the action of the District Magistrate invoking the jurisdiction under the Act is wholly unwarranted under the law. In support of his contention, learned Counsel for the petitioner has placed reliance on several decisions of this Court, they are Ramkhiladi Gurjar v. Statle of M.P. and Anr. W.P. No. 296/2008 (Gwalior), decided on 26-6-2008, Sunil Tiwari v. State of M.P. and Ors. : 2009 (2) M.P.H.T. 297 (DB) : ILR 2009 MP 1679 and Shankar Mihani v. State of M.P. and Ors. W.P. No. 5454/2009 (Jabalpur), decided on 23-6-2009. Learned Counsel has also placed reliance on the decisions of Supreme Court Arun Ghosh v. State of West Bengal : (1970) I SCC 98 and State of U.P. and Anr. v. Sanjai Pratap Gupta alias Pappu and Ors. 2005 SCC (Cri) 366. By placing reliance on the decision of this Court Vishnu Prasad Shukla v. State of M.P. 1990 C.Cr.J. 176, it has been contended that because the copies of the material documents were not supplied to the detenu, therefore, the order of his detention is bad in law. By placing heavy reliance on Single Bench decision of this Court Bala @ Iqbal v. Additional Collector, Indore and Anr. 1996 Cr.LR (MP) 72, it has been contended that if the petty offences are alleged to have been committed by the petitioner, the action under the Act taken by the District Magistrate is bad in law.
7. It has also been put forth by Shri Pathak, learned Counsel for the petitioner, that the District Magistrate in support of his action has not come forward to swear his own affidavit and, therefore, the impugned order is liable to be quashed. Learned Counsel has also submitted that there is nothing in the impugned order that in case the petitioner, who is in custody, if released, will perform any act prejudicial to the maintenance of public order. On these premised submissions, it has been contended by learned Counsel for the petitioner that the detention order of the petitioner be quashed and he be released forthwith.
8. Combating the aforesaid submissions of learned Counsel for the petitioner, learned Government Advocate Shri Gupta by putting emphasis to the recommendations of Superintendent of Police, Gwalior, on the basis of which the District Magistrate has passed the impugned order, has submitted that since the liberty of the petitioner is prejudicial to the maintenance of public order, therefore, for no rhyme or reason, the detention order is to be quashed. In support of his contention, learned Government Advocate has placed heavy reliance Narayan Debnath v. The State of West Bengal : AIR 1976 SC 780, State of U.P. v. Saleem 2001 (4) Supreme 437. Learned Government Advocate has also placed reliance on the Single Bench decision of this Court Santosh Sharma v. State of M.P. and Ors. : 2008 (5) M.P.H.T. 278. Learned Government Advocate has also placed reliance on a Division Bench decision of this Court Charan Singh v. Union of India and Ors. : 2001 (1) M.P.H.T. 296 (DB) : 2000 (3) MPLJ 188. By inviting our attention to the decision of the Apex Court State of Punjab v. Sukhpal Singh : AIR 1990 SC 231, it has been argued that even if not a single case is registered against a detenu, his detention can be justified under the Act.
9. Replying the argument of learned Counsel for the petitioner in respect of non-filing the affidavit by District Magistrate, it has been contended by learned Government Advocate that there is no straight jacket formula or water tight compartment in this regard that merely because he has not filed any affidavit, the detention order is required to be quashed. To bolster his submission, learned Counsel has placed heavy reliance on the decision of Supreme Court Smt. Victoria Fernandes v. Lalmal Sawma and Ors. : AIR 1992 SC 687. Further, it has been contended by learned Government Advocate that the detention order can be served even when the detenue is in jail. To buttress his submission, learned Government Advocate highlighted the principles laid down by the Supreme Court in Smt. Shashi Aggarwal v. State of U.P. and Ors. : AIR 1988 SC 596.
10. So far as non-supplying the copies of the statements of the independent witnesses to the petitioner is concerned, it has been contended by learned Government Advocate that the Legislature has taken precaution in this regard by enacting Sub-section (2) of Section 8 of the Act empowering the District Magistrate not to disclose the facts which it considers against the public interest if disclosed. On these premised submissions, it has been argued by learned Government Advocate that there are sufficient ground to keep the petitioner in detention under the Act and hence this petition be dismissed being devoid of any substance.
11. Having heard the learned Counsel for the parties, we are of the considered view that this petition deserves to be dismissed.
12. The true spirit of Section 3 of the Act, particularly Sub-section (3) is that the State Government if satisfied may by order in writing direct that during such period as may be specified in the order, such District Magistrate if satisfied as provided in Sub-section (2) may exercise the powers conferred to it by the said sub-section and may take a person in detention. Thus, the paramount consideration is the satisfaction of the District Magistrate. Simultaneously, the District Magistrate should be satisfied that the liberty of that person is prejudicial to the maintenance of public order. Indeed, this proposition has been exposed in various decisions of the Supreme Court as well as of this Court. If we test the above said principles on the touchstone and anvil of the present factual scenario, we find that by taking into consideration the recommendations of Superintendent of Police, Gwalior, recommending to detain the petitioner under the Act, the District Magistrate has passed the impugned order of detention.
13. On going through the recommendatory letter (Annexure R-1), dated 31-3-2009 of Superintendent of Police, Gwalior, addressed to District Magistrate, we find that sufficient material was supplied by him to the District Magistrate stating that on account of even roaming in the market by the petitioner, the people at large are terrorized and the shopkeepers Used to close their shops. Not only this, the people at large also on seeing the petitioner, immediately hide themselves by entering into their respective houses. Further, it has been recommended that on account of his terror, the witnesses are not adducing the evidence against him in the Court. Indeed, the judgment of acquittal passed by learned JMFC, Dabra, dated 30-5-2009 placed on record as Annexure P-2 acquitting the petitioner under Sections 327/34, 294 and 506-B of IPC has been passed because the witnesses were declared hostile. Similarly, in Case No. 1066/2008 of the Court of JMFC, Dabra, Distt. Gwalior (Annexure P-3), the petitioner was acquitted from the charge punishable under Section 327/34 of IPC. We are not of the view that merely because the petitioner has been acquitted in some cases on the basis of no evidence against him since the witnesses were declared hostile, therefore, his detention is justified, but according to us, looking to the recommendations which was accepted by the learned District Magistrate and the antisocial activity of the petitioner resulting into prejudice of maintenance of peace to the public at large and order, if the impugned order of detention of the petitioner has been passed by the learned District Magistrate, his action cannot be said to be arbitrary or contrary to the spirit of Section 3 of the Act.
14. The Supreme Court in Sukhpal Singh (supra), has held that even not a single case is registered against a person, his detention under the Act is justified if it is borne out from the record that his activities are prejudicial to the maintenance of public order. In Smt. Victoria Fernandes (supra), the Supreme Court in Para 11 while taking into consideration the non-filing of the affidavit by the District Magistrate by placing reliance on its earlier decision Shaik Hanif v. State of West Bengal : AIR 1974 SC 679, held that the absence of the affidavit of the person who passed the order of detention would not be of much consequence except in cases where malafides or extraneous considerations are attributed to the District Magistrate or the Detaining Authority. In the present case, neither any malafide or extraneous considerations have been stated in the petition and, therefore, merely because the affidavit was not submitted by the District Magistrate, according to us, for no rhyme or reason, the case of the petitioner is strengthen. The Supreme Court in Saleem (supra), has categorically held that if the Detaining Authority has justified in arriving at his objective satisfaction that the detention of the detenu is necessary in the public interest, his order should not be interfered with. On going through the order of learned Magistrate, we find that there is subjective satisfaction of the District Magistrate arriving at a conclusion that the detention of the detenu is necessary in the public interest. Hence, even if it has not been so stated in his order that in case the petitioner is released, his activity would be prejudicial to the maintenance of public order, the order cannot be said to be bad in law.
15. Looking to the material available on record against the petitioner, it is gathered that his image is like a devil and his presence in the open market is terrorizing the people at large and they are constrained to close their shops and conceal their identity by hiding themselves in their respective houses. Apart from this, there is material on record that petitioner is extorting the money from the business class. Taking into the cumulative effect, we find that the impugned order against the petitioner has been rightly passed.
16. So far as non-supplying the copies of the statements of the witnesses recorded by the District Magistrate during enquiry to the petitioner is concerned, suffice it to say that it is not always necessary and if sufficient material on record is there for non-supplying the copies thereof to the petitioner, according to us, the District Magistrate has acted in true spirit of Sub-section (2) of Section 8 of the Act. On going through the record of the District Magistrate, we find that satisfaction has been recorded by the District Magistrate that the petitioner would become hazardous to those witnesses if the copies of the statements of the witnesses are provided to him and therefore according to us, this ground is also not helpful to the petitioner.
17. In this view of the matter, we do not find any error in the order of the District Magistrate. Needless to say, his order was also affirmed by the Advisory Board. Accordingly, this petition is found to be devoid of any substance and the same is hereby dismissed.