GULAB SANJEEVAN YADAV v. STATE OF UTTAR PRADESH — 1993 DIGILAW 203 (ALL)

V. N. MEHROTRA, J. ( 1 ) THIS petition has been filed by the petitioner Gulab Sajeevan Yadav praying that the order of detention passed by the District Magistrate, Allahabad against the petitioner on 5. 6. 1992 (Annexure No. 1 to the petition) he quashed. ( 2 ) THE facts of the case, as appear from the writ petition and other material on record including the affidavits filed on behalf of the petitioner and the opposite parties, are that on 5. 6. 1992 Shri Subhash Kumar, District Magistrate, Allahabad passed the impugned order under sub section (2) of Section 3 of the National Security Act, 1980. Eight grounds were mentioned in the order on the basis of which the detention order was passed. The petitioner filed representations against the detention order. The detention of the petitioner was approved by the Advisory Board and confirmed by the State Government. The Central Government also rejected the representation made by the petitioner. ( 3 ) IN his arguments the counsel for the petitioner raised only two grounds, on the basis of which he has sought the quashing of the detention order. Some other grounds were also mentioned in the petition, but no Judgment has been advanced in respect of the same. The two grounds which have been argued by the learned counsel for the petitioner are: (i) The incidents or grounds mentioned by the detaining authority in the impugned order do not relate to the maintenance of the public ordert but relate to only law and order and so the detention on the basis of these grounds was illegal; and (ii) The grounds mentioned in the impugned order have no proximity or nexus with the detention order but are stale and illusory as the detention order was passed after a long delay. ( 4 ) WE have heard Shri Sunit Kumar for the petitioner and Shivaji Mishra representing the respondent. We have also examined the affidavits filed on behalf of the parties and the documents annexed to these affidavits. We will first mention the grounds on which the impugned detention order has been passed. The first ground mentioned in the detention order is that on 13. 6. We have also examined the affidavits filed on behalf of the parties and the documents annexed to these affidavits. We will first mention the grounds on which the impugned detention order has been passed. The first ground mentioned in the detention order is that on 13. 6. 1986 when the S. O. Kydganj alongwith the police personnel was on patrol duty and had also proceeded in search of certain persons accused in other crimes, the petitioner fired shots from his pistol aimed at the police party. The police personnel then arrested the petitioner alongwith a pistol and two cartridges. It is asserted that due to this act of the petitioner the people of the locality became afraid; the traffic was dislocated and people started running helter-shelter and thus the public order was affected. It is also asserted that cases under Sections 307 I. P. C. and 25 of Indian Arms, Act were registered and after investigation charge sheets were submitted. ( 5 ) THE second ground mentioned in the detention order is that on 4. 3. 1987 at about 10. 00 P. M. the petitioner and his companions robbed one Dwarika Prasad of his money after threatening him with a pistol but due to darkness the applicant could not be identified him due to fear. It is said that a final report was submitted in that case. The third incident mentioned in the detention order is that on 18. 3. 1987 at about 4. 30 P. M. when S. I. Jagat Pal Singh Parihar along with other police personnel was on patrol duty they saw three persons on a motor cycle at the tn-junction near Bai-Ka-Bagh and when they, on being suspicious, asked them to stop those persons including the petitioner threw bombs in order to kill the police personnel. It is said that due to this act of the petitioner and his companions the residents of the locality became afraid, shop keepers shut their shops, the traffic stopped and the public order was affected. It is asserted that the petitioner was arrested on the spot and a country made pistol with cartridges was recovered from his possession. Cases were registered against him and after investigation charge sheets were submitted. The fourth ground mentioned in the detention order is that at about 12. 00 hrs. in the noon on 5. 1. It is asserted that the petitioner was arrested on the spot and a country made pistol with cartridges was recovered from his possession. Cases were registered against him and after investigation charge sheets were submitted. The fourth ground mentioned in the detention order is that at about 12. 00 hrs. in the noon on 5. 1. 1987 the petitioner and his companions entered the godown of a foreign liquor shop within the jurisdiction of P. S. Kydganj in the city of Allahabad and assaulted and threatened to kill Satish Kumar and demanded an amount of Rs. 30,000/- from him. It is asserted that due to this act also the public ordert was affected. It is said that a case under Section 452, 323, 504, 506 was registered and charge sheet was submitted. The fifth ground mentioned in the detention order is that at 8. 30 P. M. on 20. 7. 1990 when Shyam Babu alongwith his younger sister was proceeding to the hospital on a scooter, the petitioner alongwith his five or six companions stopped the scooter at Muthiganj crossing. They forcibly abducted Shyam Babu on the scooter and later on the dead body of Shyam Babu was recovered. It is said that by the act of the petitioner and his companions committed at a public place the public order was affected. It is also said that case under Section 147, 364, 302 I. P. C. was registered and after investigation charge sheet was submitted against the petitioner. The sixth ground of detention is that at 3. 30 P. M. on 14. 2. 1991 the petitioner and his companions used bombs and pistols in order to kill one Ramji Khanna at a public place and as a result of the same the public order was affected. A case under Section 307 I. P. C. was registered and subsequently charge sheet was submitted. The seventh ground mentioned in the detention order is that at 5. 45 P. M. on 28. 11. 1991 the petitioner and his companions surrounded one Harish Chandra under the Rail way bridge on G. T. Road and killed that person by hurling bombs. It is said that when the witnesses raised hue and cry, the petitioner and his companions escaped from that place but at that time also they threw bombs, as a result of which one passer by named Sangam Lal Yadav was injured. It is said that when the witnesses raised hue and cry, the petitioner and his companions escaped from that place but at that time also they threw bombs, as a result of which one passer by named Sangam Lal Yadav was injured. It is asserted that due to these acts the public order was affected. It is said that a F. I. R. under Section 307, 302 I. P. C. was lodged and after investigation charge sheet was submitted on 21. 12. 199 1. The last ground mentioned in the detention order is that at 4. 00 P. M. on 18. 10. 1991 when one Bhola Nath Yadav was proceeding for the market by Jamuna Bank Road, the petitioner and his companions stopped him and asked him to either vacate his house or to pay Rs. 1,000/- per month to him. They also threatened the victim and asked him not to inform the police about the occurrence. A case was registered against the accused persons including the petitioner. It is said that due to the fear of the petitioner no other person was prepared to be a witness of the occurrence. Section 3 (2) of the National Security Act, so far as is relevant for the purposes of the present case, reads as follows:the Central Government or the State Government may, if satisfied with respect to any person, that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do, make an order directing that such person be detained. The learned counsel for the petitioner has argued that all the above mentioned grounds are ordinary crimes under the I. P. C. and relate to the sphere of law and order but do not come within the sphere of public order. On behalf of respondents, however, it has been argued that these incidents actually come within the meaning of public order considering the facts and circumstances in which the same were committed. ( 6 ) IT is well settled that the question as to whether an act amounts to a beach of law and order or a breach of public order solely depends on its extent and reach to the society. ( 6 ) IT is well settled that the question as to whether an act amounts to a beach of law and order or a breach of public order solely depends on its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals it be-reaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and/or even tempo of the community then it becomes breach of the public order. Reference may be made to the case Gulab Mehra v. State of U. P. In the case Wasi Uddin Ahmad v. District Magistrate, Aligarh it was observed that the distinction between concepts of law and order and public order is one of degree and the extent of the breach of the act upon the society. An act itself is not determinant of its gravity. In its quality it may not differ from another but in its potentiality it may be very different. Any contravention of law always affects order but before it could be said to affect public order it must affect the community or the public at large. It was also observed that the acts similar in nature but committed in different context and circumstances might cause different reactions. In one case it might affect specific individuals and, therefore, touches the problem of law and order only while in another it might affect public order. In order to See whether an act has affected public order what has to be seen in whether the detenusties have any impact upon the local community, or in other, words disturb the even tempo of the life of the community of that specified locality. In the case Ram Ranjan Chatterjee v. State of West Bengal it was held by their Lordships that the distinction between the areas of law and Order and public order is one of degree and extent of the reach of the act in question on the society it is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order Only. These concentric concepts of law and order and public order may have a common epicentre but it is the length, magnitude, and intensity of the terror-wave unleashed by a particular eruption of, disorder that helps distinguish it as an act affecting public order from that concerning law and order. In that case the detenu had explode bombs in a thickly populated area and had extorted grocery on pain of instant death from a grocer of the locality which caused his customers to flee from shop. It was observed that these acts had a nexus with disturbance of public order in the locality. The terror tremors generated by these acts prejudicially affected people of the locality. It was held that the grounds of detention had a direct nexus with the object sought to be achieved by the detention order. In the case of Kamal Kishore Saini v. State of U. P. two grounds for detention were mentioned. The first ground was that on 4. 6. 1985 at about 11 P. M. the complainant was informed that his brother had been shot by some persons and when he reached the spot he found his brother lying dead. Case under Section 302 Indian Penal Code was registered. The second ground mentioned was that when the complainant had gone to, Lucknow Jail alongwith his son and son-in-law see an accused in the jail and were returning back to their house on a rickshaw, the detenu alongwith another person met them on the way at about 1. 45 P. M. They stopped and challenged the complainant and his relatives. They fired at them. The complainant and his relatives ran helter and skelter. Accused persons chased one of the victim and fired twice or thrice and in consequence of the same that victim fell dead on the spot and two other persons including the rickshaw-puller received injuries. The case under Section 302, 307 Indian Penal Code was registered. Their Lord-, ships observed that the first incident was confined to individual persons and was a private crime as distinct from public crime. The case under Section 302, 307 Indian Penal Code was registered. Their Lord-, ships observed that the first incident was confined to individual persons and was a private crime as distinct from public crime. The same did riot affect, the even tempo of the life of the community nor did it affect the peace and tranquility of that particular locality. As regards the second incident, it was held that the same did affect public order as its reach and impact is to disturb public tranquillity; it affected the even tempo of the life of the people in the locality where the incident is alleged to have occurred. Their Lordships held that the finding of the High Court that this incident did not in any way disturb the public order was not legal and valid. In the case Suresh Jaiswal v. District Magistrate5 decided by this Court two grounds for detention were alleged. The first ground was that at 2. 45 P. M. on 13. 11. 1984 the detenue had fired shot causing injury to the victim. F. I. R. of the occurrence was lodged. The second occurrence was alleged to have taken place in the night of 29130th July, i985. Ii is said that the detenu along- with his companions had assembled after making preparation for committing dacoity; when the police party challenged those persons the miscreants fired shots aimed at the police party. The police party succeeded in arresting the detenu and some others. It was held that the second incident relied upon in the grounds of detention is related to public order and cannot be said to be related to law and order alone, as contended by, the learned counsel for the petitioner. The validity of the detention order was, in the circumstances upheld. Their lordships also referred to and relied pon the decision in the case Shiv Shanker v. Incharge Police Station, Hasanganj. Reliance was also placed on the decision in the case kali Charan v. State of U. P. In the case Shyamal Chakravarty v. Commissioner of Police. A Bench of three Judges of the Supreme Court considered the validity of the detention order passed against the petitioner in that case. One of the grounds for detention was that the detenu alongwith his associates being armed with lath is, iron rods, hockey sticks etc. A Bench of three Judges of the Supreme Court considered the validity of the detention order passed against the petitioner in that case. One of the grounds for detention was that the detenu alongwith his associates being armed with lath is, iron rods, hockey sticks etc. attacked constables Shankar Lal Bose and Jagdish Singh on a street when the constables had gone, there to discharge their lawful duties. It was said that due to the act by the detenu and his companions one of the constables was injured. It was held by their Lordships that this ground related to public order. The second ground alleged was that the detenu alongwith his associates prevented the police constables from discharging their lawful duties. This ground was also held to affect the public ordertt. The question as to whether by an act only law and order is breached on the same affects the public order also came for consideration before the Supreme Court in the case Golam Hussain v. Police Commissioner, Calcutta. In that case it was alleged by the authority concerned that the detenu alongwith his associates armed with bombs, soda water bottles created disturbance of public order on a road by hurling bombs indiscriminately with a view to attack one person in retaliation to an earlier quarrel. The second incident mentioned in the detention order was that on another occasion the detenu and his companions armed with brickbats, soda-water bottles, bombs etc, created disturbance of public order on a road by hurling soda-water bottles, brickbats with a view to overawe the organisers of the Kalipuja. The Supreme Court held that these acts affected the public order. It was observed by their Lord ships the nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public order. We cannot isolate the act from its public setting or analyse its molecules as in a laboratory but the its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity, of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention. It may be a question of the degree and quality of the activity, of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention. In the case Smt. Bimla Rani v. Union of India it was held that even a single incident of infliction of gun shot injury in busy area giving rise to communal tension and apprehension of out break of riot affects public order even though there was no antecedent act of similar nature or past history of commission of crime by the detenu. A similar view was taken in the case David Patric Ward v. Union of India. ( 7 ) TAKING into consideration the law laid down by the Supreme Court as well as by this court in various decisions, it is to be seen whether the acts or incidents mentioned in the detention order can be said to be such criminal acts so as to amount to the breach of law and order only or the same can be said to affect public order. As mentioned earlier 8 incidents have been mentioned in the detention order. In the first incident, when the police personnel were on duty and had also proceeded in search of some other accused persons, the petitioner fired shots from his pistol aimed at the police party. It is said that due to this act the people of the locality were terrorised and they started running helter-skelter and so the public order was affected. As regards the second ground it is said that at 10 P. M. On 4. 3. 1987 the petitioner and his Companions robbed en person after threatening him with a pistol, that person, however, could not identify the petitioner and a final report was submitted. It cannot be said that by this act the public order was affected, it was obviously a crime aimed at a particular person during the night. It could not affect the even tempo of the society. The third incident took place at 4. 30 P. M. on 18. 3. 1987. It is similar to the first incident mentioned above. In this case the petitioner and his companions threw bombs in order to kill the police personnel. It could not affect the even tempo of the society. The third incident took place at 4. 30 P. M. on 18. 3. 1987. It is similar to the first incident mentioned above. In this case the petitioner and his companions threw bombs in order to kill the police personnel. It is said that the resident of the locality were terrorised, the traffic stopped and the shop keepers shut their shops. In the fourth incident which took place on 5. 1. 1987 the petitioner and his companions entered the godown of a foreign liquor shop. They assaulted and threatened to kill one person and demanded, an amount, of Rs. 30,000/- from him. This occurrence can be said to be aimed at a particular person. It is not said that the petitioner and his companions were demanding protection money from the shop keepers of the locality or other shop keepers also apprehended that the petitioner and his other companions will threaten them and will extort, money from them. Considering the circumstances in which this incident is said to have been committed it cannot be Said that the public order, was affected by the same. The fifth ground mentioned in the detenu on order is that the occurrence took place on public road at 8. 30 P. M. in the city of Allahabad on 20. 7. 1980. It is said that the petitioner and his companions abducted the victim while he was proceeding on his scooter on public road and later on committed his murder. It is asserted that the public order was affected by this act committed on the public road and as a result of that daring act the persons of the locality were terrorised and even the shop keepers shut their shops and traffic stopped. The next ground also relates to the breach of public order as it is said, that in broad day, light on 14. 2. 1991 the petitioner and his companions used bombs and pistols in order to kill one person, as a result of which the people of the locality were terrorised and they Started miming helter-skelter. It is said that thereafter on 18. 10. 1991 at about 4. 00 P. M. the petitioner and his companions stopped one Bhola Nath Yadav on road and asked him to vacate his house or to pay Rs. 1,000/- per month. It is said that thereafter on 18. 10. 1991 at about 4. 00 P. M. the petitioner and his companions stopped one Bhola Nath Yadav on road and asked him to vacate his house or to pay Rs. 1,000/- per month. They also threatened the victim and asked him not to inform the police about the occurrence. It has been asserted that due to the fear of the petitioner and his companions nobody was prepared to appear as a witness of the occurrence. Lastly it is alleged that on 28. lt. 1991 at about 5. 45 P. M. the petitioner and his companions surrounded Harish Chandra on public road and hurled bombs. As a result of which he died. It is also asserted that the assailants also threw bombs while escaping, as a result of which one of the passers by was injured. It is said that due to this daring and desperate act residents of the locality were terrorised. They started running helter and skelter and thus the public order was affected. ( 8 ) CONSIDERING the facts narrated in the detention order regarding these incidents it can be said that the ground Nos. 2 and 4 related to law and order and not public order. But as regards remaining six grounds it can be said that considering their nature and their reach and also considering the public setting it can be said that they aimed to breach the public order. The impact of these incidents was not confined to some individual but the same affected the even tempo of life of the persons of the locality. Considering the provisions of Section 5a of the National Security Act the detention order will not, become invalid merely because one or some of the grounds mentioned in the detention order could be said to be not relevant. The detention order could be based even on a single incident if it can be said that by that act the public order has been affected. In the circumstances we are unable to accept the argument by the learned counsel for the petitioner on this point. ( 9 ) THE second point raised by the learned counsel for the petitioner is about the proximity or nexus of the incidents with the detention order. In the circumstances we are unable to accept the argument by the learned counsel for the petitioner on this point. ( 9 ) THE second point raised by the learned counsel for the petitioner is about the proximity or nexus of the incidents with the detention order. The learned counsel has argued that the detention order has been based on the incidents which took, place in the years 1986, 1987, 1990 and 1991 while the detention order was passed on 5. 6. 1992. According to the learned counsel, there was a long time gap between the incidents and the detention order and so the detention order was not valid. In the case Golam Hussian v. Police Commissioner, Calcutta (supra) a similar contention was raised on behalf of the petitioner. In that case the detention order was passed after nine months of the alleged criminal incidents. Their Lordships observed that:it is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely inhibition of prejudicial activity of the species chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evile. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the casual connection has been broken in the circumstances of each case. in that case it was held that the detention order was not invalid merely because there was interval of about nine months between the alleged incidents and order of detention. We have to investigate whether the casual connection has been broken in the circumstances of each case. in that case it was held that the detention order was not invalid merely because there was interval of about nine months between the alleged incidents and order of detention. ( 10 ) IN the present case it is true that if the earlier acts only are made grounds of detention there will be a long gap between the incidents and the detention order. However, if the last acts which took place in the year 1991 are taken into consideration it cannot be said that there was such a long gap that the credible chain is snapped. The purpose of detention is not the punishment of the, detenu for the acts which he has already committed, but the purpose is inhibition of prejudicial activities of the species specified in the statute. The detaining authority could, while considering as to whether, there was sufficient ground for passing the order of detention can also take into consideration the past activities of the detenu. He has to form an opinion as to whether his detention was necessary so that he may not in future do acts prejudicial to the maintenance of public order. In the present case the authority concerned has in fact taken into consideration the earlier acts of the petitioner starting from the year 1986 and continuing upto the end of the years 1991. It is not denied that the petitioner was arrested and was contained to judicial custody in connection of the murder committed in the year 1991. In view of this fact the detaining authority could not have passed the detention order unless it was satisfied that there was an imminent possibility of the petitioner being set at liberty, In case there was no likelihood of the petitioner being released on bail there would not have been any reason to pass detention order in order to prevent the petitioner from committing future acts which could adversely affect the public order. In the case Suraj Pal Sahu v. State of Maharashtra it was observed by their Lordships:if there was an imminent possibility of I the man being set at liberty and his detention coming to an end, then it appears, as a principle, if his detention is otherwise necessary and justified then there is nothing to prevent the appropriate authorities from being satisfied about the necessity of passing an appropriate order detaining the person concerned. So the need of passing the detention order in order to prevent the petitioner from committing acts prejudicial to the maintenance of public order could arise only when there was imminent likelihood of the petitioner being released from judicial custody. In the present case this Court passed order granting bail to the petitioner on 8. 5. 1992. It was only after this order was passed that the authority concerned considered the question as to whether there was sufficient grounds for passing the order of detention. It was, in the circumstances, subsequent to the order passed by this court granting bail to the petitioner that the authority concerned came to the conclusion that such a detention order was necessary. In the detention order itself the authority concerned has mentioned that the petitioner was at that time confined in jail but steps were being taken for getting him released on bail. Considering the facts and circumstances it cannot be said that the grounds on which the detention order has been passed were too remote and stale so as to justify the passing of the detention order. As observed by their Lordships in the Suraj Pal Sahus case (supra)T assuming the fact alleged to be right and there is causal connection between the fact alleged and the purpose of the detention and formation of the opinion is not malafide, then the sufficiency of the grounds and the truth of the grounds is not germane. It was later observed that it has to be borne in mind that having regard to the purpose of. the Act, the detaining authority must take into, consideration rational, proximate, reasonable past and present and that should be the basis for the horoscope for the future so as to determine whether the person proposed to be detained comes within the mischief of the Act. the Act, the detaining authority must take into, consideration rational, proximate, reasonable past and present and that should be the basis for the horoscope for the future so as to determine whether the person proposed to be detained comes within the mischief of the Act. In the case T. A. Abdul Rahman v. State of Kerala it was observed by their Lordships of the Supreme Court that the question whether prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. In this case the detention order was upheld even though there was interval of 11 months between the prejudicial activity and passing of detention. order. ( 11 ) AS mentioned earlier the petitioner was in judicial custody in connection with the murder committed on 28/11/1991; he was granted bail by this court in May. It was only after that the detaining authority could held that there was an imminent possibility of the petitioner being released on bail, so it cannot be said that there was Some long or unexplained delay in passing the detention order in the present case. The second ground raised by the learned counsel for the petitioner also does not appeal us. ( 12 ) IN view of the above discussion, we are unable to agree with any of the two grounds raised by the learned counsel for the petitioner during his arguments in support of this petition. As mentioned earlier, no other ground has been argued by the learned counsel for the petitioner to challenge the detention order. In the result this petition is dismissed. Petition dismissed. .