Abdul Rashid v. State of Rajasthan — 1987 DIGILAW 227 (RAJ)

S.N. BHARGAVA, J.—This is a habeas corpus petition filed by one Abdul Rashid, who is brother of Mod. Rizwan one has been detained by an order of the District Magistrate, Kota dated 14.4.1986, under section 3(2) of the National Security Act, 1980 (Act No. 65 of 1980) (hereinafter referred to as "NSA"). 2. Earlier also the petitioner was detained under NSA by order of the District Magistrate Kota dated 12th August, 1981, under sec. 3(2) of the NSA. A writ petition filed in this court and the same was allowed by order dated April 28, 1982 as the court came to the conclusion that there was no ground or justific-ation to hold that the activities of the detenus were such as to disturb the public order. All the grounds mentioned in the detention order at the best, make out a case of disturbance of law and order. 3. The order of District Magistrate dated 14.4.1986 (Annex. 4) was confirmed by the State vide order dated 25.4.1986, under section 3(4) of the NSA. The detenus filed a representation, which was considered by the Advisory Board and the State Government rejected the same vide its order dated 7th June, 1986 (Annex. 5). The State Government confirmed the detention order under sec. 12(1) of the NSA and it was ordered that the detenus be detained till 13.4 1987 by a separate order dated 7th June, 1986 (Annex. 6). The present writ petition was filed on 27.1.86. Notices were issued to the State, but no return was filed by the State and the arguments were heard on 6.2.1987 and the return was also filed on the same day, which was supported by an affidavit of one Shri Ramesh Chand Jain, Addl. Collector and District Magistrate Kota. The arguments were concluded and the writ petition was posted for dictation of judgment for 9th February, 1987. Mean-while, the additional affidavit of Mr. Dharam Veer, Collector and District Magistrate, Kota who had passed the detention order, was also filed on 9.2.1987. Since we were hearing other habeas corpus petitions, the judgment was not dictated of 9.2.1987 and it has being dictated today. 4. Learned counsel for the petitioner has challenged the detention order mainly on the ground that the grounds which have been given for passing the detention order are of no avail. There is no continuity or proximity. Since we were hearing other habeas corpus petitions, the judgment was not dictated of 9.2.1987 and it has being dictated today. 4. Learned counsel for the petitioner has challenged the detention order mainly on the ground that the grounds which have been given for passing the detention order are of no avail. There is no continuity or proximity. Moreover, the detenus was under arrest since 23.11.1985 and therefore, the detention order is bad. He has further submitted that the instances, before the earlier detention order dated 12th August 1981, should not be considered, as this court has already held that the instances mentioned therein do not amount to disturbing the public order, but only a case of disturbance of law and order. He has further submitted that other instances after 12th August, 1981 also do not amount to disturbing the public order. He has also contended that the last case registered against him was on 13.10.1984 and there after, there is no criminal case registered against him. The Superintendent of Police, Kota has submitted a report on 31.1.86 to the Dist. Magistrate but the detention order was passed by the District Magistrate on 14.4.86, which also shows that there was no valid ground to pass the detention order. 5. Shri K. K. Sharma, learned counsel for the petitioner has placed reliance on Abdul Munaf Vs. State of W. B. (1), wherein it has been observed that in a given case the time lag between the prejudicial activity of a detenue and the detention order made because of that activity is ex-facie-long, the detaining authority should explain the delay in the making of detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order. In this case a period of 9 months had lapsed between the time of arrest and order of detention. 6. Learned counsel has placed reliance on Laxman Khatik Vs. State of West Bengal (2) wherein the delay of 7 months in making the order for detention after the incident, was held fatal. He has also placed reliance on Ravindra Kumar Vs. State of W. B. (3). 6. Learned counsel has placed reliance on Laxman Khatik Vs. State of West Bengal (2) wherein the delay of 7 months in making the order for detention after the incident, was held fatal. He has also placed reliance on Ravindra Kumar Vs. State of W. B. (3). In this case the District Magistrate passed the order of detention after about 3 months of the incident and the order was quashed as the delay was not explained. In the case of S. K. Seraju Vs. State of W. B. (4) the last incident occurred on 15th January, 1972 and the order of detention was passed on 24th August. 1972 i.e. nearly 7 months The Supreme court found that the undue delay was not explained and hence the order of detention was quashed. Again in Mohd. Sahabuddin vs. District Magistrate (5) where the delay was of 7 months and since no explanation was furnished, the order of detention was quashed. 7. Reliance has also been placed on Harnek Singh vs. State of Punjab(6), where a case under Section 307, 411 and 414 IPC was registered on 17th February, 1980. He was ordered to be detained on 4.11.1980 and was put behind the bars on 10th July, 81. During those proceedings the detenue was on bail and was appearing on every hearing till he was put behind the bars. It was held that since there was a gap of more than a year and a half and no explanation was furnished, the detention order was bad. 8. Learned counsel for the petitioner has also submitted that since the petitioner was already in jail, there is no necessity of passing a detention order under the N. S A. and in this connection he has placed reliance on Haradhan Saha vs. State of W. B. (7) wherein it was held that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It is not a parallel proceeding. The pendency of prosecution is no bar to the order of preventive detention. An order of preventive detention is also not a bar to prosecution. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It is not a parallel proceeding. The pendency of prosecution is no bar to the order of preventive detention. An order of preventive detention is also not a bar to prosecution. It was further observed that where a detenue is actually in jail custody at the time when the order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the Slate of the public order. In this connection, he has also placed reliance on Ramesh Yadav v. District Magistrate (8) wherein the Supreme Court observed that where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released he will again come on his criminal activities in the area, the same was not proper. In Bondd Singh Vs. Distt Magistrate Dhanbad (9) their Lordships of the Supreme Court observed that if a man is in custody and there is no possibility of his being relsa-sed, the power preventive detention should not be exercised. 9. Learned counsel for the petitioner has also submitted that the petitioner was charged with some offences, which were related to law and order and not the public order and in this connection he has placed reliance on Dipak Bose vs. State of W.B. (10). He has also invited our attention to the case of Kishan Mohan vs. State of W. B. (1 l)wherein it was observed that one act may affect individuals in which case it would be said to affect law and order while another act though of a similar kind may have such an impact that it would disturb the even tempo of life of the community in which case it would be said to affect public order, the test being not the kind but the potentiality of the act in question. 10. 10. Learned counsel has also placed reliance on Manu Bhushan vs. State of W.B. (12) wherein it was held that if an allegation against the detenue is regarding assault on individual, it cannot be said to disturb the public peace or place public order in jeopardy. It can only raise law and order problem and no more. In the same effect is another authority of the Supreme Court in Satyabrata vs. State of W. B. (13). He has also drawn our attention to the observations of this court in D. B. Criminal Habeas Corpus Petition No. 1850/81 Abdul Rashid Vs. State (decided on 28th April, 1982) wherein this court, with regard to this very detenue and for the similar acts, has observed that the allegations made in the grounds of detention at best make out a case for law and order and not public order. He also drew our attention to the latest decision of the Supreme Court in Ramveer Jatva Vs. State of U. P. (14), in which case the order of detention was passed against the detenue on the basis of the only ground alleged against him, that he along with others jointly committed murder in broad day light but it was difficult to infer from the solitary ground set out in the grounds of detention that the act alleged to have been committed by the detenue would have disturbed public order as distinct from law and order or that one single act committed by the detinue was of such a character that it could reasonably be inferred by the detaining authority that if not detained, the detinue would be likely to indulge in such activity in future and therefore, the order of detention was quashed. 11 On the other hand, learned Government Advocate appearing on be-half of the State submitted that the court cannot test the subjective satisfaction and placed reliance on Imam Shaik Vs. State of W.B. (15) wherein it was observed that it was entirely for the detaining authority to make a prognosis of the detinues further behaviour on the basis of his past activities. The court cannot test subjective satisfaction of the authority as to the propensity of the petitioner to act in a manner prejudicial to supplies and services essential to the community by objective standards. The court cannot test subjective satisfaction of the authority as to the propensity of the petitioner to act in a manner prejudicial to supplies and services essential to the community by objective standards. He also submitted that the delay is not fatal as has been observed in the case of Malvasa Vs. State of W. A. (16). In that case the District Magistrate had made a statement on oath that he was satisfied on the basis of the instances referred to in the grounds of detention that the detinue was acting in the manner prejudicial to the maintenance of supplies and services essential to the community. In that case satisfaction was arrived at more than 5 months after the date of alleged incident and the order of detention was up-held. Reliance has also been placed on Surajpal Sahu Vs State of Maharastra .17), where the Supreme Court observed that even the existence of one ground is sufficient to sustain the detention order. It was further observed in that case that simply because a man has been discharged in a criminal case, it cannot be said that ground cannot be a ground for preventive detention. But there must be live-link between the grounds of criminal activities alleged by the detaining authority and the purpose of detention. It was further observed that there must be proximity, but no mechanical test of counting months of interval can be laid down, it depends on the nature of the acts alleged or relied, gravity of the situation and the reason for the delay. The power to detain and the right to liberty must be harmoniously balanced in the larger interest of the community. It was further observed in that case that if a person is in detention or is under trial and his conviction is unlikely but his conduct comes within the mischief of the Act then the authority is entitled to take a rational view of the matter. Our attention has also been drawn to the case of Devi Lal Mahto Vs. It was further observed in that case that if a person is in detention or is under trial and his conviction is unlikely but his conduct comes within the mischief of the Act then the authority is entitled to take a rational view of the matter. Our attention has also been drawn to the case of Devi Lal Mahto Vs. State of Bihar (18) in which case the Supreme Court observed that one can envisage a hypothetical case in which a preventive detention order may have to be made against a person already deprived of his personal liberty by being confined or detained in Jail but in such a situation the detaining authority must show awareness of this fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet for the reasons which may appeal to the District Magistrate on which his subjective satisfaction is grounded a preventive detention order is required to be made. This awareness must appear either in the order or in the affidavit justifying the impugned detention order when challenged. 12 We have given our thoughtful consideration to the entire matter and have carefully considered the record of the case, as well as the authorities cited at the bar. 13. Keeping in mind the observations of the Supreme Court referred to above, we propose to examine the facts of the present case. 14. The petitioner was detained earlier under NSA by an order of the District Magistrate, Kota dated 12th August, 1981, which order was quashed by this court vide its order dated 28th April, 1982 as the court came to the conclusions that the grounds relied while passing the earlier detention order did not amount to a conclusions that it will disturb public order. At the best it made out a case of disturbance of law and order. Therefore, in our view the acts and instances before 12th August, 1981 cannot be considered to be the acts so as to disturb the public order for the purposes of the present detention order passed on 14-4-1986. 15. The Superintendent of Police, Kota had addressed a letter on 31-1-1986 to the District Magistrate bringing to his notice the criminal activities of the detinue and observed that as the activities of Mohd. 15. The Superintendent of Police, Kota had addressed a letter on 31-1-1986 to the District Magistrate bringing to his notice the criminal activities of the detinue and observed that as the activities of Mohd. Rizwan have not stopped and as normal law of the land has failed in carving his activities, which are prejudicial to the maintenance of public order, it was strongly recommended that he should be detained under Sec. 3(2) of the NSA. The instance after 12th August, 1981: F.I.R. No. 363/82 under Section 307 read with Sec. 34 IPC, dated 15-10-1982 wherein the allegation was that Mohd. Rizwan and his associates attacked one Lal Chand Sindhi in a public place. The next incident is the F.I.R. No. 254/82 dt. 15-12-1982; wherein it was alleged that Mohd. Rizwan and his associates abducted Chandra Shekhar after showing knife and Rivolver In FIR. No. 95/83 under Sections 147, 148, 149, 447 and 307 IPC dated 16-5-1983 Mohd. Rizwan and his associates entered the house of Azizulla Khan and inflicted injuries. Another incident is FIR No. 17/84 dated 14-2-1984 under Sec. 307, 452, 147, 148 and 149 IPC, wherein Mohd, Rizwan went to the house of Deokaran Yadav where birth-day party was going on and injured Ramesh Yadav who came to open attack by knife. Another incident is FIR No. 58/84 dated 23-4-84 under Sections 147 and 452 IPC, where Mohd. Rizwan along with 8-10 persons entered the Central Office of the Central Co-operative Bank, Kota and threatened Shri Harishyam Shukla to cancel the transfer of Ramesh Chandra Sharma. Another incident is FIR No. 69/84 dated 7-8-84 under Sections 147, 149, 341, 342 and 323 IPC where Rizwan and his associates inflicted some injuries. Another incident is FIR 64/84 under Sections 147 and 324 IPC dated 16-6-84 inflicting knife blows by Rizwan and his friends on Prem Singh. Lastly, the FIR No. 175/84 dated 13-10-1984 under Sections 302, 147, 148 and 149 IPC, where Mohd. Rizwan along with his 6-7 associates murdered Deenu by sword and Rivolver. Apart from that there were several proceedings against Mohd. Rizwan under Sec. 116 IPC. The last incident mentioned in the grounds is dated 13-10-84, in which again he was arrested and was in jail since he surrendered on 23.11.1985 and since then he was in jail. Rizwan along with his 6-7 associates murdered Deenu by sword and Rivolver. Apart from that there were several proceedings against Mohd. Rizwan under Sec. 116 IPC. The last incident mentioned in the grounds is dated 13-10-84, in which again he was arrested and was in jail since he surrendered on 23.11.1985 and since then he was in jail. The S.P. made his recommendations on 31-1-1986 after one year and 3 months and the District Magistrate took more than 2-1/2 months in considering the recommendations of the S.P. before passing the impugned order. The impugned order dated 14-4-I9?6 does not show that the District Magistrate was satisfied that though the detinue was in jail he was likely to be released on bail or that there was any possibility of creating public order problem after his release. Even in the return filed by the State supported by an affidavit of the Addl. Collector, it has nowhere been stated that the Distt. Magistrate was satisfied to that effect. Even in the affidavit filed by the Distt. Magistrate after the arguments were closed, it has been stated that "although at the time of passing of the said order, the detinue was in jail, there was every possibility of creating problem at any place at any time he was released on bail." While explaining the delay it has been stated that since the detinue was absconding from 13.10.84 for more than a year when he surrendered before the Sessions Judge on 23 11.1985, as such no case was registered against him in Kota District, but it was not known where he stayed during the period from 13.10.84 to 23.11.85 and whether any case was registered against him during this period. The State was also a party and return was filed on behalf of the State also. The order dated 14.4.1986 was confirmed by the State by its order dated 25th April, 1986 and in the return also no incident has been mentioned or brought to the notice of this court between the period 13.10.1984 to 14.4.1986. 16. Thus, in our opinion there is no continuity or proximity between the incidents and the grounds have become stale. If the activity of the detinue was so dangerous the State Government should have made efforts to arrest him after the incident of 12.10.1984, wherein he was involved in a murder case. 16. Thus, in our opinion there is no continuity or proximity between the incidents and the grounds have become stale. If the activity of the detinue was so dangerous the State Government should have made efforts to arrest him after the incident of 12.10.1984, wherein he was involved in a murder case. Moreover, the instances, which have been narrated above will not come in the definition of disturbance of public order. At the best, they may relate to law and order and they can be properly dealt with in the normal procedure. It is not on the record as to whether the detinue has been granted bail in the murder case (FIR No. 171/84) it will be open for the State to oppose his bail application and mention all these incidents and bring to the notice of the concerned court while applying its mind in granting the bail and in case bail has already been granted, it will be open for the State to apply to the High Court to cancel the bail giving its reasons in details, and bring to the notice of the court his earlier behaviour and involvement in so many cases. It will be open for the competent court to examine and decide the bail application on merits in accordance with law. 17. In view of the above discussion, we are of the opinion that the impugned order dated 14.4.1986 passed by the district Magistrate and confirmed by the State Government by its order dated 25.4.1986 and 7th June, 1986 cannot be sustained for the reasons mentioned above and, therefore, we quash the same. 18. In the result, the writ petition is allowed. The parties are left to bear their own cost.