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Allahabad High Court · body

1985 DIGILAW 558 (ALL)

Suleman v. State of U. P

1985-05-14

I.P.SINGH, R.P.SHUKLA

body1985
JUDGMENT I.P. Singh, J. - Suleman petitioner (hereinafter referred to as detenu) through this Habeas Corpus Writ Petition, under Section 226 of the Constitution of India has challenged the validity of the detention order dated 22.5.1984, passed by District Magistrate, Kanpur Dehat, under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) and also the continued detention thereunder. 2. On the basis of the grounds enumerated In "grounds of detention" served on the detenu alongwith the detention order, the District Magistrate formed his subjective satisfaction that it was necessary to detain the detenu in order to prevent him from acting in any manner prejudicial to the maintenance of public order. 3. The learned counsel for the detenu has challenged that the grounds of the detention do not fall in the ambit of the problem of 'public order,' but are confined to the problem of law and order.' 4. The grounds are two in number as given in the grounds of detention first refers to an Incident of 25.3.1984 at about 9.30 In which the activity of the detenu and his other companions took place Inside the house of one Saleem, situated in Mohalla Purani Baili in Qasba Akbarpur, district Kanpur Dehat. The detenu and his companion had beaten up not only Salaam, but his brother Waheed and one Laiq, who had intervened to save them. They were beaten with Kante. The matter was lodged at the Police Station, where Crime No. 75 under sections 147, 148, 149, 452, 323, 324, PC was registered. 5. The other incident is of 14.5.1984, where it is alleged that at about 8.00 in the morning, in the Bazar of qasba Akbarpur, the detenu threw a bomb and challenged at the top of his voice that if any body would advance he would be done to death. It was further alleged that the said activity of the detenu had immediately struck a wave of terror, when the shop keepers pulled down their shutters. The people of the locality were so much terrorised that none dared to lodge the report against the detenu. It was further alleged that none was ready to depose against the detenu. The normal flow of life, was said to be disturbed in the locality. This incident was reported by Constable Shiv Ram Singh at Police Station at 8.00 a.m. vide report No. 16. 6. It was further alleged that none was ready to depose against the detenu. The normal flow of life, was said to be disturbed in the locality. This incident was reported by Constable Shiv Ram Singh at Police Station at 8.00 a.m. vide report No. 16. 6. It is well settled that 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 eruption of disorder that helps distinguishing it as an act affecting public order from that concerning law and order. 7. It is the potentiality of the act to disturb the even tempo of life of the community in the locality that makes the act capable of disturbing public order. 8. Judged with the above approach we are of the opinion that the incident No. 1 described above, which had happened inside the house of Saleem has no potentiality to disturb the even tempo of life or affect the normal flow of life of the community in the locality. It did not have any reach on the society or the potentiality to generate any terror wave in the locality. In our opinion this incident could not be taken as conducive to disturbing public order. 9. The second incident in which the bomb is said to have been blasted by the detenu in the Bazar at 8.00 a.m. coupled with the general threat that if any one would advance he would be done to death had unleashed terror wave in the locality so much so that the shopkeepers pulled down their shutters and none dared to lodge the report against the detenu at Police Station. Not only that, none of the public man was ready to give evidence against the detenu. To our mind, this activity of the detenu had a reach on the society so as to disturb the even tempo of life of normal flow of life in the locality and unleash terror wave already described above. We are of the opinion that this activity of the detenu had the potentiality to disturb the public order. Even if one incident could support the detention order that would be sufficient and the more fact that the other incident was not of the nature would be immaterial. We are of the opinion that this activity of the detenu had the potentiality to disturb the public order. Even if one incident could support the detention order that would be sufficient and the more fact that the other incident was not of the nature would be immaterial. This point advanced by the learned counsel for the detenu has no force. 10. The other ground taken is that the second incident could have been tried by the ordinary criminal courts of law and the present preventive proceedings could not be started simultaneously. There is no material an record to suggest that any criminal ruse was pending with respect to the second incident. Accordingly the question of having parallel proceeding does not arise. None the less, it has been held in the case of Ajijan Mn v. District Magistrate, Dhanbad, AIR 1983 SC 1130 that preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. 11. The learned counsel for the detenu has then argued that Section 3(5) of the Act is not complied with. Under that provision, the State Government has to report to the Central Government the fact of approval of the detention order made by the State Government within 7 days of approval. The counter affidavit of Sri Uma Shankar Srivastava, Upper Division Assistant, Confidential Section 6 U.P., Civil Secretariat, Lucknow, filed on behalf of the State, contains that the approval of the detention order was recorded by the State Government on 31.5.1984 and the matter was reported to Central Government on 1.6.1984. Thus the said provision of Section 3(5) of the Act were duly complied with. The point raised has no force. 12. The learned counsel for the detenu has then argued that compliance of Section 11 of the Act was not made inasmuch as the Advisory Board had not submitted its report to the State Government within 7 weeks from the date of detention of the detenu. The date of detention of the detenu is 22.5.1984. In the counter affidavit filed on behalf of the State Government, it is deposed that the report of the Advisory Board dated 5.7.1984 was received by the State Government on 7.7.1984. The date of detention of the detenu is 22.5.1984. In the counter affidavit filed on behalf of the State Government, it is deposed that the report of the Advisory Board dated 5.7.1984 was received by the State Government on 7.7.1984. When calculated it comes to that the report was received by the State Government within 49 days. i.e. seven weeks. 13. This point raised by the learned counsel for the detenu has no force. 14. In the result, the habeas corpus writ petition fails and is hereby dismissed.