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1998 DIGILAW 361 (ORI)

DEEPU ALIAS DEBENDRA SHARMA v. DISTRICT MAGISTRATE CUM COLLECTOR

1998-10-23

ARIJIT PASAYAT, S.N.PHUKAN

body1998
JUDGMENT : A. Pasayat, J. - In exercise of powers under Sub-section (2) of Section 3 of the National Security Act, 1980 (in short, the 'Act') an order of detention was passed by the District Magistrate, Sundargarh on 1.12.1997 which is under challenge in this writ of habeas corpus. Alleging that certain activities of. Deepu alias Debendra Sharma (hereinafter referred to as the 'detenu') have affected the public tranquillity and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order such order has been passed. 2. Indicating several incidents involving ghastly and cruel acts including murderous assaults, which disturbed even tempo of life in the society order of detention has been passed. Detenu made representations before the State and Central Governments which have been rejected. 3. In support of the writ application, Mr D. Nayak, learned Counsel has primarily taken two grounds, namely, (a) the situations described did not constitute the public order situations, and at best may constitute law and order situations; and (b) there was unusual delay in disposing of the representations. The learned Addl. Government Advocate submitted that a bare look at the incidents described goes to show the ghastly nature thereof, and its impact on the society at large. They have been rightly described to be public order situations. There has been no delay in disposal of the representation made to the State Government. The Petitioner submitted his representation on 15.12.1997. Various steps taken on different dates have been detailed. The representations were addressed to the Secretary; Union of India, Home Department, New Delhi, Secretary to Government of Orissa, Home Department, Bhubaneswar, and The Chairman, National Security Advisory Board, Orissa through the Superintendent, Jail, Sundargarh which were forwarded by the District Magistrate along with para-wise comments thereon. 4. First controversy is whether the circumstances enumerated in the grounds of detention related to public order or law and order situations. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order. 'Public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. 'Public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. 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 society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of a wand order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to ask is: Does it lead to disturbance of the current life of the community so as to amount to it disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on its facts. 5. The grounds of detention inter alia so far relevant are as follows: After your release on bail on 27.4.97, you again created panic in the minds of general public of Rourkela by exhibiting your criminal antisocial activities and wanted to take revenge on your rival Nandulal Khetri alias Nandu. On 23.11.97 you along with your associates attacked the said Nandulal Khetri at G l' lane, Rourkela, which is situated in a crowded business centre of the city by hurling bombs and firing from pistol resulting severe injuries to Nandulal Khetri, three of his supporters and general public following which there was total disruption of public order, the normal life was seriously affected, shops and commercial establishments were closed and the general public being frightened fled away to save their lives and properties and there was an outcry for immediate apprehension of you and your associates so as to instil a sense of confidence in the minds of the general public and restore peace. That on 11.11.97 at about 7.45 A.M. you and your associate authorized the general public and truck operators and drivers at Rourkela Power House road armed with lethal weapons like sword, bhujali etc. and demanded to make payment of Rs. 20/- from each truck parking in the locality and Rs. 270/- from each truck intending to take entry per trip of goods for transportation to distant places. Due to such threat, transportation system was paralysed and due to such high-handed intimidation, general public were terribly frightened resulting in disruption of public order. On this, a Station Diary Entry vide No. 291 dated 11.11.1997 has been made against you and your associates in the Udit Nagar Out Post, extract of which is enclosed as Annexure- K. In another case, on 23.11.97, at about 8.15. p.m. you along with your associates and hired contract killers attacked your rival group leader Nandulal Khetri alias Nandu at G.T. Lane, Rourkela by hurling bombs aiming at him and by firing from pistol, as a result of which, Nandu and his supporters were severely injured but managed to save their lives. This was an unprecedented and unforeseen incident even witnessed by the inhabitants of Rourkela. The hurling bombs not only injured the victim, but also affected the public in which some of the passersby received injury. Seeing this incident the general public ran away from the spot in an halter skelter manner to save their lives. The shop keepers and other business commercial establishments closed down their shutters. The entire locality became lonely. This dastardly act committed in a busy lane of Rourkela city by you and your associates caused panic in the minds of general public who did not dare to move in street freely and fearlessly and the shop owners and other business community are still hesitating to open their shops and commercial units soon after dusk. A sense of fear and panic gripped the city to such an extent that the busy streets were looking deserted and the movements of general life were severely affected. The normal tempo of public life was jeopardized. A sense of fear and panic gripped the city to such an extent that the busy streets were looking deserted and the movements of general life were severely affected. The normal tempo of public life was jeopardized. On this incident, a station diary entry has been made against you and your associates in the Plant site PIS Vide S.D.E. No. 638 dated 32.11.97, extract of which is enclosed as Annexure- L. A bare look at the description of the incidents shows the diabolic nature of the attacks, ghastly to the core and resulting in widespread fear psychosis. They have been rightly described as public order situations. 6. So far as the question whether there was delay in disposal of the representation is concerned, same has to be considered in the background of Article 22(5) of the Constitution. A constitutional protection is given to every detinue which mandates the grant of liberty to the detinue to make a representation against detention, as imparted in Article 22(5) of the Constitution. It also imparts the authority to whom the representation is addressed to deal with the same with utmost expedition. The representation is to be considered in its right perspective keeping in view the fact that the detention of the detinue is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right concerned under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accordswith the procedure established by law. The stringency and concern of the judicial vigilance that is needed was aptly described in the following words in Thomas Pancham Dales' case: 1981 (6) QBD 376: Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue. Whenever there is executive invasion on personal liberty, the Court has to weigh in golden scales whether the personal liberty is to be placed at a high pedestal regardless of the social cost involved in the release of a possible renegade. Observations to similar effect were made by the Supreme Court in Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others. Judged in this background, the question is whether the detention is directed in the instant case is one where the procedural sinews suffered from any weakness to warrant interference. 7. Coming to the question whether the procedural sinews suffered from any weakness to warrant interference, it is seen that the representation of the Petitioner was filed on 15.12. 997, and same was rejected on 2.1.1998. The views of the detaining authority was received on 22.12.1997. After consideration of the representation, on 31.12.1997 it was rejected by the Chief Minister. On 22.12.1997 the file was placed before the Chief Minister and the matter was processed at different stages in the office of the Department. It reveals that there was no lethargic inaction by the authorities in dealing with the detinue's representation. 8. Coming to the question whether the Central Government dealt with the representation expeditiously, it appears from the counter affidavit that the report of the State Government as envisaged u/s 3(5) of the Act was received on 17.12.1997 and on examining the same it was decided on 22.12.1997 that there was no necessity to interfere with the order of detention. The representation was filed on 15.12.1997 which was received by the Central Government on 5.1.1998 through Government of Orissa. It was immediately processed for consideration. Certain factual information like opinion of the Advisory Board was required. State Government was required to send the information by wireless message which was done. On consideration of the materials, it was decided; by the General Government that the prayer of the detenu for revoking the order of detention did not warrant acceptance. Rejection of the representation was duly communicated to the detenu. This being the factual position, there is no substance in the plea of the Petitioner that there has been inordinate delay in disposal of the representation by the Central Government, and by the State Government. 9. The writ application fails and is dismissed. S.N. Phukan, C.J. 10. I agree Final Result : Dismissed