Shambhoo Lal Soni v. State of Rajasthan — 1992 DIGILAW 857 (RAJ)

Honble K.C. AGRAWAL, C.J.-— This petition, under Article 226 of the Constitution, challenges the detention order of Kailash Soni filed by his father Shambhoo Lal Soni made under section 3(2) of the National Security Act, 1980 (hereinafter to be referred to as the Act) dated 27/5/1992. 2. The District Superintendent of Police, Ajmer sent a report on 26/5/1992 to the Collector and Distt. Magistrate, Ajmer that an anti-social gang is indulging in obtaining naked and half naked photographs of girls and women and published the same in the newspapers, as a result of which public of Ajmer and several Social Organisations had agitated and even gone on hunger strike against Kailahs Soni and his associates. Those persons had been called as Sexual Blackmailers. The public of Ajmer consistently making a demand for their arrest. In this report, the Distt. Superintendent of Police stated that the activities indulged into by the gang was serious and there was every likelihood of breach of peace and public order and even tempo of the life of the community, 3. The Collector and Distt. Magistrate, Ajmer then passed an order under sec. 3(2) of the Act on 27/5/1992 against Kailash Soni and his associates on the satisfaction that the circumstances prevailing in Ajmer were such with respect to Kailash Soni and others that with a view to preventing them from acting in any manner prejudicial to the security of Ajmer and maintenance of public order, it was necessary to detain them. The report of the Distt. Superintendent of Police and the order of the Collector and Distt. Magistrate have been filed alongwith the petition as Annexures 1 and 2 respectively. 4. Kailash Soni was, thereafter, as required by Section-8 of the Act sent a copy of the grounds of detention by the Collector and Distt. Magistrate, Ajmer. In the affidavit filed bySmt. Aditi Mehta, who was the Collector and Distt. Magistrate, Ajmer at that time deposed that the detention order dated 27/5/1992 was passed by her after going through the report of the Distt. Superintendent of Police dated 26/5/1992, memorandums of several Social Organisations, photographs of the girls with Kailash Soni and his associates. The detention order was confirmed by the State Government under section 12 of the Act on 6.06.1992. 5. Superintendent of Police dated 26/5/1992, memorandums of several Social Organisations, photographs of the girls with Kailash Soni and his associates. The detention order was confirmed by the State Government under section 12 of the Act on 6.06.1992. 5. Section 12 (1) of the National Security Act reads as under:— "Action upon the report of the Advisory Board- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit." 6. Challenging the detention-order the petitioners counsel raised several contentions. These contentions were that (1) the order was vague and uncertain; (2) it did not record that it had been passed in public interest; (3) the grounds were not simultaneously prepared; (4) the Collector and Distt. Magistrate passed the detention order without seeing and considering the photographs; (5) it was not modulated in the: form as it was required to be under the National Security Act and that it was malafide being based on irrelevant considerations. 7. The validity of the National Security Act was challenged before the Supreme Court in the case reported in A.K. Roy V/s. Union of India (1). 8. The preamble of the National Security Act mentions "An Act to provide for preventive detention in certain cases and for matters connected therewith". 9. Statement of Objects and Reasons of the Act shows that in the prevailing situation of communal disharmony, social tensions, extremist activities and increasing tendency, on the part of various interested parties to engineer agitation on different issues, it was considered necessary by the Parliament that the law and order situation in the country was tackled in a most determined arid effective way. The anti-social and anti-national elements who adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom. 10. It was considered that the public order and services essential to the community was greatly handicapped in dealing effectively-with the same in the absence of powers of preventive detention. In order the Act to be in consonance with the Constitution of India, certain safeguards were provided. 11. 10. It was considered that the public order and services essential to the community was greatly handicapped in dealing effectively-with the same in the absence of powers of preventive detention. In order the Act to be in consonance with the Constitution of India, certain safeguards were provided. 11. In A.K. Roy V/s Union of India (supra), the Supreme Court upheld the validity of the Act by saying : "In view of the in-built safeguards, it cannot be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub-section (2)." 12. Various points raised against validity of the Act have been elaborately dealt with in this judgment. It is not necessary for us to mention those grounds in our judgment. We are bound by the said judgment. 13. Amongst the grounds first emphasized by the petitioners counsel Sb. Bajwa was that the Collector and Distt. Magistrate had no material placed before her that the public order was likely to be affected by the photographs of the girls alleged to have been taken by Kailash Soni and his associates. The submission of the petitioners counsel is untenable. 14. Preventive detention for the social protection of the community is a hard law but, it is a necessary evil in the modern society and must be pragmatically construed, so that it works, does not endanger social defence or the defence of the community. 15. In Raj Kumar Singh V/s. State of Bihar (2) the Supreme Court said that laws of preventive detention by which subjects are deprived of their personal liberty without the safeguards available in a judicial trial ought to be construed with the greatest strictness. 16. Interpreting the detention order by applying the strictness observed by the Supreme Court, we find that the detention order fulfills all the requirements of the Act and was passed in accordance with the procedure provided therein. 17. After seeing the detention order, we find that the Collector and Distt. Magistrate received a report from the Distt. Superintendent of Police that the condition in Ajmer by publication of the photographs of the girls created breach of public law and order and that the peace and tranquility of Ajmer was in great danger. The Collector and Distt. Magistrate had also received representations from several Social Orgazirations on the same line. Magistrate received a report from the Distt. Superintendent of Police that the condition in Ajmer by publication of the photographs of the girls created breach of public law and order and that the peace and tranquility of Ajmer was in great danger. The Collector and Distt. Magistrate had also received representations from several Social Orgazirations on the same line. Ajmer had also been closed down by the shop-keepers and otherson the annoyance which was created by the photographs. The public of Ajmer thought that prestige and respect of their families was not safe on account of the situation which had cropped by the publication of the photographs. In the background of these facts, the Collector and Distt. Magistrate recorded her satisfaction required by Section 3 (2) of the Act and passed the detention order 18. Counsel for the petitioner urged that as Kailash Soni and his associates had already been detained under section 107 and 151 of the Code of Criminal Procedure, they could not be detained under sec. 3 (2) of the National Security Act. 19. Taking of proceedings under section 107 and 151 of the Code of Criminal Procedure had no connection or relationship with the passing of detention order. The purpose of passing order under section 3(2) of the Act could not be served by orders under sections 107 and 151 Cr.P.C. It is reasonable to come to a finding that the public of Ajmer must have got agitated beyond measure by the publication of the photographs. 20. Counsel for the petitioner urged that the yellow journalism was a flourishing business in Ajmer and that the publication of the photographs in the newspapers could not be a ground to pass the detention order under section 3(2) of the Act by the Collector and Distt. Magistrate. 21. It may be true that yellow journalism is on increase, but it was the Collector and Distt. Magistrate who had to feel the nerve of Ajmer under her administration for finding whether the circumstances required her to detain Kailash Soni and his associates against whom serious charges of sex blackmailing had been made. 22. The head-lines of some of the newspapers are mentioned below :- "Sex, lies and blackmail Girls raped and photographed, perpetrators exposed, editor shot at twice-and killed. For two years, a gang of youths in Ajmer, Rajasthan, fricked and raped girls still in school and college. 22. The head-lines of some of the newspapers are mentioned below :- "Sex, lies and blackmail Girls raped and photographed, perpetrators exposed, editor shot at twice-and killed. For two years, a gang of youths in Ajmer, Rajasthan, fricked and raped girls still in school and college. The girls were photographed in the nude and blackmailed. A kind soul in a colour photo processing laboratory decided that the gang must be stopped. He tipped off a journalist. The gang was exposed in a newspaper report, complete with picture. That caused an upheaval in the upcountry town. Another journalist, this one an editor, used the expose to blackmail the parents of the girls as well as the culprits. Unlike the youths, he demanded money rather than more sex and introductions for more girls. He paid with his life." 23. Santosh Gupta, reporter of a local Hindi daily Navjyoti, who managed to lay his hands on four pictures which showed some girls in compromising positions with some boys, exposed the racket. 24. Section 3(2) of the National Security Act enable the Collector and Distt. Magistrate to pass an order of detention if he is satisfied that the persons sought to be detained has committed a breach of law or acted in a manner likely to cause a disturbance of public order. 25. In Gulab Mehra V/s. State of U-P. (3) it was held by the Suprem Court that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act, if so put as to dislocate the even tempo of the life of the community, it will be an act which will affect public order. 26. The Collector and Distt. Magistrate could on satisfaction that public order was likely to be affected pass an order under section 3(2) of the Act. Nothing could be more scandalous annoyance to the public at large and resulting in causing disturbance to the public tranquility than what was within the knowledge of the Collector and Distt. Magistrate when she passed the order of detention. 27. Nothing could be more scandalous annoyance to the public at large and resulting in causing disturbance to the public tranquility than what was within the knowledge of the Collector and Distt. Magistrate when she passed the order of detention. 27. It was argued by the petitioners counsel that publication of pictures and photographs had become a common affair and that could not create a situation which justified the order under section 3 (2) of the National Security Act. The submission of the petitioners counsel is not acceptable. 28. The pictures of the girls showing their figures in the naked and half naked photographs could certainly enraged the public and resulted in serious agitations. The agitations of this nature required immediate action in order to preserve the security of Ajmer. The dominant tendency of these photographs was to deprave and corrupt the youths and others. These photographs had the tendency of excretory function and lewd exhibition of the genitals. It is well recognised that sex and nudity cannot be exploited without limit and if the same is permitted would be against the public order. Consequently, to us it appears that the argument of the petitioners counsel that the photographs could not be a ground for action under section 3 (2) of the Act has no merit. 28. Lord Devlin, Morals and the Criminal Law (reprinted in The Enforcement of Morals) (1965) pp. 7-8, 14-17:- "I think it is clear that the criminal law as we know it is based upon moral principle. In a number of crimes its function is simply to enforce a moral principle and nothing else. The law, both criminal and civil, claims to be able to speak about morality and immorality generally. Where does it get its authority to do this and how does it settle the moral principles which it enforces? Undoubtedly, as a matter of history, it deprived from Christian teaching. But. I think that the strict logician is right when he says that the law can no longer rely on doctrines in which citizens are entitled to disbelieve. It is necessary therefore to look for some other source. I have framed three interrogatories addressed to myself to answer. (1) Has society the right to pass judgment at all on matters of moral? Ought there, in other words, to be a public morality, or are morals always a matter for private judgment?" 29. It is necessary therefore to look for some other source. I have framed three interrogatories addressed to myself to answer. (1) Has society the right to pass judgment at all on matters of moral? Ought there, in other words, to be a public morality, or are morals always a matter for private judgment?" 29. In the instant case, we have seen that the grounds for detention had been simultaneously prepared with the order passed by the Collector arid Distt. Magistrate. In Ashok Kumar V/s. Delhi Administration (4) the Supreme Court said :- "Merely because the detenue was not simultaneously furnished with the grounds of detention alongwith the order of detention it cannot be said that the detenue was thereby deprived of the right of being afforded the earliest opportunity of making a representation against the order of detention as enjoined by Art. 11 (5) read with S. 8 of the Act. When the detenue does not allege that his detention was for non-existent grouhds, nor does he attribute any malafide on the part of the detaining authority, the order of detention is not rendered invalid merely because the grounds of detention were furnished two days later." 30. The law is that the detaining authority must as soon as practicable communicate the detenue the grounds on which the detention order had been passed. The order passed by the Collector and Distt. Magistrate mentions the grounds in justification of the detention. Merely because the grounds had not been simultaneously prepnred, therefore, the order falls to the grounds does not appeal to us to be valid. Hence, this submission has no substance for the two reasona mentioned above. 31. Counsel for the petitioner could not satisfy us that the detention order was passed in contravention of Article 22(5) of the Constitution. It did not impinge the said provision. 32. It is wrong to say that the detention order was vague Or not in public interest. It was based on concrete facts and was in public interest, Nothing could be in more public interest than the order of detention passed in this case. All other grounds challenging the detention order do not have any merit and as we are of the opinion that elaborate discussion of the grounds of detention would not be in public interest, we refrain from doing so. 33. All other grounds challenging the detention order do not have any merit and as we are of the opinion that elaborate discussion of the grounds of detention would not be in public interest, we refrain from doing so. 33. For the reasons given above, the petition fails and is dismissed, but in the facts and circumstances of the case, the parties are left to bear their own costs. 34. We wish to note that all what has happened at Ajmer, police [is much to be blamed. It is reported that the gang had been indulging in such activities for the last two years, but it could not be caught and no action could be takesn against it. In Sophia and Mayo College, Ajmer students from all over the country come for education. If such a situation continues, parents would not be sending their wards and daughters for education. That will affect Ajmers prestige and its educational institutions. Since foreigners come in large to visit Dargah Khwaja Sahib and Pushkar temple, police has to taken care that such things do not happen. Several stories going round cannot be take cognizance in the present petition, but they do require a mention in this order to make the police more alert. Police has to be cautious and careful so that such scandalous incident is not repeated.