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1987 DIGILAW 1010 (ALL)

HAKIM SINGH v. STATE OF UTTAR PRADESH

1987-10-29

M.M.LAL, R.K.SHUKLA

body1987
R. K. SHUKLA, J. ( 1 ) THIS Habeas Corpus writ petition tiled by Hakim Singh under Article 226 of the Constitution is directed against the order of detention dated 18-12-1986 passed by District Magistrate Farrukhahad. Under Section 3 (2) of the National Security Act, hereinafter referred to as the Act. The aforesaid order along with grounds of detention was served on the petitioner in jail on the same day. The grounds of detention which are six in numbers read as under:. . (Verunacular Matter Ommited ). . . ( 2 ) THE petitioner made a representation to the Government on 15-1-87 which was rejected by the State Government on 2/2/1987. The rejection order was communicated to the petitioner on 7-2-87 through the District Magistrate and Superintendent District Jail, Farrukhahad. On 9-2-87 the order of detention was confirmed for 12 months. ( 3 ) THE first point urged by the learned counsel for the petitioner is that the aforesaid order of detention dated 18-12-86 served on the petitioner was not signed by the District Magistrate Farrukhahad therefore he should be released forthwith. On the other hand Sri Prem Prakash learned Deputy Government Advocate has vehemently urged that if the order was signed by the District Magistrate then every copy of the detention order as forwarded to the detenu need not be signed by the detaining authority himself. In support of his contention he has relied on a decision in Mohd. Maqbool v. State of Jammu and Kashmir. ( 4 ) THE facts relating to this point are alleged in Paragraph 4 of the petition which have been controverted by the District Magistrate in Paragraph 4 of his counter affidavit. The petitioner has reiterated the fact in Paragraph 7 of his rejoinder affidavit that the copy of the detention order supplied to him was not signed by the District Magistrate. Photostate copy of the detention order served on the petitioner has been annexed with the petition as annexure no. IA. The actual copy of the detention order dated 18-12-86 served on the petitioner has also been filed in this court along with the application on our direction. We examined that copy as well as photostat copy of same (Annexure 1) ourselves. After careful examination of both, we find that there was something written above the words. K. K. Singh, D. M. Farrukhabad. which has been perhaps eroded. We examined that copy as well as photostat copy of same (Annexure 1) ourselves. After careful examination of both, we find that there was something written above the words. K. K. Singh, D. M. Farrukhabad. which has been perhaps eroded. On looking at them from back side it appears that there was something written which had been wiped away through some chemical or other process but the impressions of the signature are visible from behind. The aforesaid actual copy of the detention order dated 18-12-86 served on the petitioner and filed in this court has been sealed and kept on the record on our direction. ( 5 ) SRI Prem Prakash learned Deputy Government Advocate has shown us the original record of this case maintained in the office of the District Magistrate, Farrukhahad wherein the disputed detention order dated 18-12-86 is signed by Sri K. K. Singh, District Magistrate, Farrukhahad on the same date and a copy of the same has been received by the petitioner In jail on 18-12-86 and in lieu thereof he has made his left thumb impression on that signed detention order in dispute. Not only this after careful scrutiny of the aforesaid record we find that there was a clear direction of the District Magistrate to the Superintendent District Jail, Fatehgarh that the grounds of detention order in dispute, grounds of detention and other papers along with it must be served on the petitioner and after taking his signature on the original copy a Id it should be returned. The Superintendent District Jail vide his letter no. 231/as dated 19-12-86 has informed the District Magistrate its due compliance. Under these circumstances we find it difficult to bold that the copy of the detention order was not signed at all. ( 6 ) EVEN if the copy of the detention order served on the detenu was not singed, the detention of the petitioner will not be illegal in vie-w of section 4 of the National Security Act. According to section 4 of the Act the detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure 1973 (2 of 1974 ). The procedure for execution of warrant of arrest are provided under section 70 to 81 of the Code of Criminal Procedure 1973. The procedure for execution of warrant of arrest are provided under section 70 to 81 of the Code of Criminal Procedure 1973. Section 75 is very relevant for this case which reads as under: - Notification of substance of warrant - The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. ( 7 ) IN the instant case it has been clearly stated by the District Magistrate in his affidavit and it is also clear from the record that the District Magistrate did sign the detention order in dispute on 18-12-86 and it is kept in the original record of this Case maintained in the office of the District Magistrate. It is also quite clear from the record that the aforesaid detention order signed by the District Magistrate kept in his file was shown to the petitioner and a copy thereof was given to him and his thumb impression in lieu thereof was taken on the aforesaid copy of the detention order kept in his file. Thus in view of the aforesaid provision of section 75 Cr. P. C. it cannot be said that the detention of the petitioner is illegal. Thus we find no merit in this point and reject it. ( 8 ) THE next point urged by the learned counsel for the petitioner is that most of the grounds of detention are State and do not come in the purview of public order. In support of his contention he has relied on three decisions namely. Ram Kripal Singh v. State of UP. , Mann; Lal v. State of UP. , Kamlakar Prasad Chaturvedi v. State of Madhya Pradesh. ( 9 ) ON the other hand Sri Prem Prakash, learned Deputy Government Advocate vehemently urged that all the six incidents of 1980 to 1986 mentioned in the aforesaid grounds of detention are relevant to hold that the act of the petitioner comes in the purview of the public order. In support of his contentions he has relied on five cases, namely, Gora v. State of West Bengal, Dhena Hem Bram v. District Magistrate, Ashok Kumar v. Delhi Administration and others, Rajan Lal Sharma v. D. M. Moradabad and others, Awadh Kumar Shukla v. Supdt. Central Jail Allahahad. In support of his contentions he has relied on five cases, namely, Gora v. State of West Bengal, Dhena Hem Bram v. District Magistrate, Ashok Kumar v. Delhi Administration and others, Rajan Lal Sharma v. D. M. Moradabad and others, Awadh Kumar Shukla v. Supdt. Central Jail Allahahad. ( 10 ) THE meaning of expressions public order and law and order and the distinction between them was brought out by the Supreme Court in. Dr. Ram Manohar Lohia v. State of Bihar. Thereafter the distinction has been clearly drawn by a series of decisions by the Supreme Court and High Courts in India. Any contravention of law always affects order but before it could be said to affect public order it must affect the community or public at large. The true distinction between the areas of public order and law and order lies not the nature of 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 committing in different context and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, white in another it might affect public order. It is also well settled that the State incidents cannot be a valid ground for sustaining order of detention. ( 11 ) IN the light of the above observations when we proceed to examine the merits of the aforesaid six grounds we find that grounds no. 1 and 2 relate to incidents dated 20/21 July, 1980 and 12/13 November, 1980 respectively and are State. The third ground relates to a dacoity committed in the night between 7/8 December, 1985 in which petitioner was not identified by the witnesses, therefore final report under Section 169 of Cr. P. C. was submitted in his favour. This is also a State ground and not material for the present detention order. The ground no. 4 relates to theft of old idols in the night 7/8 March, 1986. In that case also no relevant evidence was found against the petitioner, therefore even a charge-sheet was not submitted against him in the court. This is also a State ground and not material for the present detention order. The ground no. 4 relates to theft of old idols in the night 7/8 March, 1986. In that case also no relevant evidence was found against the petitioner, therefore even a charge-sheet was not submitted against him in the court. The fifth ground relates to a dacoity committed at the house of one Ramesh Chandra of village Akrabad, P. C. Kampil, Dirtrict Farrukhahad in the night of between 5/6. 9. 86 at about 12. 30 A. M. On that date the petitioner was in jail in connection with a crime No. 123/126. It has been alleged that aforesaid dacoity at Rameshs house was committed due to conspiracy hatched by the petitioner in jail with his friend Radhey. It has no potentiality to affect public order. The sixth ground relates to threatening of witnesses on 2-12-1986 through his brother that if Babu Ram and Ram Kishore gave evidence against him in the dacoity case then after release, the petitioner will kill them. This sixth ground is fully covered by the decision of this Court in Ashok Dixit. v. Union of India and others in Habeas Corpus Writ Petition No. 11151 of 1984 decided on August, I, 1985, whereby it has been held that giving threats to a person and firing shots in the air or an individual has no potentiality to disturb or likely to disturb the even tempo of the life of the community. ( 12 ) THUS after careful scrutiny of the facts and circumstances of each ground, we find that these incidents cannot legitimately be taken into consideration for detaining the petitioner under Section 3 (2) of the Act. There is no communication in the ground of detention as to show the relevant context or circumstances which might have brought the case within narrower concentric of public order from the larger concentric similar to law and order as such the detention for the purpose cannot be sustained. ( 13 ) THE third and the last point urged by the learned counsel for the petitioner is that relevant papers of ail the incidents mentioned in the on grounds of detention are not supplier to the petitioner. ( 13 ) THE third and the last point urged by the learned counsel for the petitioner is that relevant papers of ail the incidents mentioned in the on grounds of detention are not supplier to the petitioner. The facts regarding this point are given in Paragraph 25 of the petition which has been controverted in Paragraph 12 of the counter affidavit filed by the District Magistrate wherein it has been emphatically stated that all the documents and materials upon which the deponent has placed reliance and from which the facts were deduced for formulating the grounds of detention were duly communicated to the petitioner. After careful scrutiny of the facts and circumstances of the case we are satisfied that there is no force in this ground, therefore we reject it. ( 14 ) THE aforesaid five cases cited by the learned Deputy Government Advocate in support of his contention are distinguishable on facts and it is not necessary to discuss them in detail here. It will suffice to say that it is difficult to lay down a precise formula to apply the same in all cases like a magic wand to determine the question instead it has to be determined upon the facts of each case. The Supreme Court in Ashok Kumars case (supra) held has that an act similar in nature but committed in different contexts and circumstances may cause different reactions. The question has to be faced in every case. There is no formula by which one case can be distinguished from another. It is therefore necessary in each case to examine the facts, to determine, not the sufficiency of the grounds nor the truth of the grounds but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of detenu is necessary for maintenance of public order. ( 15 ) IN view of the nature of the nature of the allegations mentioned in the old and State grounds, we are of the opinion that these are not of such nature as to lead to any apprehension that the even tempo of community would be endangered, therefore, the detention of the petitioner under the provisions of Section 3 (2) of the Act was not justified. ( 16 ) IN view of the above discussions, this petition succeeds on the aforesaid second point and the detention order dated 18/12/1986 (Annexure 1) to the petition is hereby quashed. The petitioner should be set at liberty forthwith. Petition allowed.