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Allahabad High Court · body

1985 DIGILAW 557 (ALL)

Komal v. State of U. P

1985-05-14

I.P.SINGH, R.P.SHUKLA

body1985
JUDGMENT I.P. Singh, J. - This petition has been filed by Komal petitioner (hereinafter referred to as the detenu) under Article 226 of the Constitution of India, challenging the validity of the detention order passed under section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) by the District Magistrate, Moradabad on 15.8.1984 on the ground that his detention was necessary to prevent him from acting, in any manner, prejudicial to the maintenance of public order. 2. The detenu was in jail in connection with case Crime No. 428 of 1984, under section 393/397, I.P.C. and section 25 of the Indian Arms Act. The detenu was served with the detention order dated, 15.8.84 along with the grounds thereof in District Jail, Moradabad, on that very day. 3. The detention order was based on solitary ground detailed in the grounds of detention. Its English translation is as follows: 4. On 27.7.1984 at about 9.00 p.m., the detenu along with his three other companions armed with knives and Tamanchas entered the house of one Rajeshwar Prasad Rastogi situated in Mohall Churiwali Gali adjacent to the main bazar of Moradabad town, and, with the intention of looting their property, threatened the inmates that if any body would move, he would be shot at. As a matter of fact, when the inmates tried to raise an alarm, a Tamancha was actually fired. Thereafter, the detenu and his companions went out of that house and entered the house of Suresh Prakash situated in the same Mohalla and attempted to loot the property on the point of knives and Tamanchas. However, number of people assembled there and tried to catch hold of the detenu and his Companions. They resorted to firing, However, they were apprehended by the incoming persons. It was said that the above activities of the detenu and his companions unleashed a terror wave in the locality. The case was registered against the said detenu and his companions under Sections 393/397, I.P.C. and Section 25 of the Indian Arms Act. 5. Learned counsel for the detenu has challenged the detention order and the detenu's detention in pursuance thereof on various grounds as taken in the writ petition. However, in our opinion, the writ petition can be disposed of on one point to be presently discussed. 5. Learned counsel for the detenu has challenged the detention order and the detenu's detention in pursuance thereof on various grounds as taken in the writ petition. However, in our opinion, the writ petition can be disposed of on one point to be presently discussed. So we do not propose to enter into other points raised by the learned counsel for the detenu. 6. The main point raised is that the said activities of the detenu were of not such a nature as would be prejudicial to the maintenance of public order. 7. The contents of the activities, as disclosed in the grounds of detention, have already been detailed above. The incidents in question are said to be of the night of 27.7.1984 at about 9.00 p.m., whereby attempt to commit robbery at the point of knives and Tamanchas inside the houses of Rajesjwar Prasad Rastogi and Suresh Prakash was made. However, nothing was looted and the activities remained within the domain of attempt to commit robbery. Although knives and Tamanchas were said to be brandished and fired, yet not a single scratch was caused to any one. The incoming persons are said to have succeeded in subduing them and arresting them along with their respective weapons. 8. The law on the point of distinction between the problem of law and order' and 'public order is now well settled by a chain of decisions. They are the decisions in the cases of Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228 ; Ram Ranjan Chatterji v. State of West Bengal, AIR 1975 SC 609 ; Wasi Uddain Ahmad v. Dist. Magistrate, Aligarh, AIR 1981 SC 2166 ; Ashok Kumar v. Delhi Administration and others, AIR 1982 SC 1143 and Ajay Dixit v. State of U.P. & others, AIR 1985 SC 18 . 9. The sum and substance of the law laid down there is that there is no formula by which one case may be distinguished from another in discriminating between the 'law and order' and 'public order.' The act by itself is not determinate of its gravity: It is the potentiality and its reach upon the society that matters. It is the length, magnitude and intensity of the terror-wave unleashed by a particular corruption of disorder that helps distinguishing it as an act affecting 'public order' from that concerning 'law and order.' 10. It is the length, magnitude and intensity of the terror-wave unleashed by a particular corruption of disorder that helps distinguishing it as an act affecting 'public order' from that concerning 'law and order.' 10. It is the potentiality of the act to disturb the even tempo of life of the community and its effect on the normal life of the community in the locality that makes the act capable of disturbing public order. The impact of the detenu's activities upon 4 the local community is to be seen as to whether it has the effect on the normal flow of lire of the community in the locality. It is the degree of disturbance and its effect on the life of the community in a locality which determines whether the activity relates only to a breach of 'law and order' or 'public order.' In the instant case, the alleged activity of the detenu was confined inside the two houses in the same Mohalla. Although the time was 9.00 p.m. and a few Tamancha shots were also fired, but actually no harm was caused to any individual of the locality. To our mind the said activity which was confined inside the houses of the two persons concerned did not have the potentiality of unleashing the terror wave in the locality or in any manner disturb the even tempo of life of the community in the locality. The degree of the disturbance, if any, was not to the extent which could have a reach on the society or the community in the locality to disturb the normal flow of the life of the community in that locality. We do not regard the above activities as disturbing 'public order.' At best they may be problems of 'law and order.' Since the activities were not related to the problem of 'public order,' so when the detaining authority passed the detention order against the detenu on the basis of the said activities then the said detention order would be deemed to have been passed on no ground. The detention order therefore, falls as an invalied and illegal order. Once the said order is struck down, there is no justification for the continued detention of the detenu in pursuance of that order. 11. In the result, the writ petition is allowed. The detention order therefore, falls as an invalied and illegal order. Once the said order is struck down, there is no justification for the continued detention of the detenu in pursuance of that order. 11. In the result, the writ petition is allowed. The respondents are directed not to detain the detenu any more in pursuance of the detention order dated 15.8.1984, passed by the District Magistrate, Moradabad. 12. We make it clear that the order passed by us today will not entitle the detenu to be physically released if he is to be detained by any other lawful order or if he is wanted in any other matter.