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2003 DIGILAW 801 (ALL)

ABHAY KUMAR SRIVASTAVA v. STATE OF UTTAR PRADESH

2003-04-10

D.P.GUPTA, U.S.TRIPATHI

body2003
U. S. TRIPATHI, J. ( 1 ) THE petitioner has filed this writ petition for quashing his detention order dated 23-9-2002, passed by District Magistrate, Gorakhpur, respondent No. 2, under S. 3 (2) of the National Security Act. ( 2 ) THE grounds of detention served on the petitioner along with the order of detention disclosed that the petitioner was a criminal minded person and was indulged in criminal activities since 1994. He along with his associates was acquiring money by illegal means. Five cases of murder, robbery and possession of illegal arms were registered against him in district Gorakhpur. Vinod Kumar Tiwari was close associate of the petitioner, who was helping him in his criminal activities. Several cases of dacoity and possession of illegal arms were also registered against the petitioner in neighboring district of Basti and Sant Kabir Nagar. Criminal history of the petitioner showed that he was indulging in criminal activities since 1994. ( 3 ) ON 22-7-2002 at about 10. 45 a. m. at Mohalla, Ismailpur, P. S. Kotwali, District Gorakhpur, the petitioner along with his associates Vinod Kumar Tiwari and rajendra Prasad Nishad alias Balwant in pursuance of their previous conspiracy on the point of pistol robbed a sum of Rs. seven lac from Shri Krishna Chandra Jalan and his servant Ram Dev Nigam on the point of pistol near Ramesh Book Depot which he was carrying in two bags to deposit in Punjab National Bank, Bank Road, Gorakhpur on his vespa scooter UAA-6334. The above money belonged to M/s. Tebriwal Traders, M/s. Manglam Agro Industries and M/s. Chhotey Lal Parmeshwar Lal. The bundles of currency notes were bearing stamp of Chhotey Lal Parmeshwar Lal on both sides. The petitioner and his associates had gone to the spot on red coloured Suzuki Smurai Motor Cycle, bearing Registration No. UP 53-K-1623. After committing robbery the petitioner and his associates ran away on the above motor cycle, which was already start. During course of robbery the associates of the petitioner were carrying country made pistol and also caused injuries to Ram Dev Nigam with butt of pistol. The report of the incident was lodged by Shri Krishna Chandra Jalan at P. S. Kotwali on 22-7-2002 at 11. 10 a. m. on the basis of which a case at Crime No. 349 of 2002 under S. 394, I. P. C. was registered against the petitioner. The report of the incident was lodged by Shri Krishna Chandra Jalan at P. S. Kotwali on 22-7-2002 at 11. 10 a. m. on the basis of which a case at Crime No. 349 of 2002 under S. 394, I. P. C. was registered against the petitioner. The above case was subsequently converted under Ss. 395, 397, 412, 120-B and 201, I. P. C. ( 4 ) ON 13-8-2002 at about 6. 00 p. m. the petitioner along with his associate Vinod Kumar was arrested in a police encounter at 6. 00 p. m. at Mohalla, Diwan Bazar, P. S. Kotwali. On personal search of the petitioner he was found in possession of one country made pistol 315 bore, three live cartridges and one empty cartridge. On the pointing out of the petitioner a sum of Rs. one lac a share of looted money was recovered, which he had kept under the floor of his rented room. The bundles of currency notes were bearing stamp of Chhotey Lal Parmeshwar lal. ( 5 ) ON account of dare devil incident of looting a sense of terror and insecurity was created in the public and public order was adversely affected. Stampede was created in the market and people started running helter skelter closing down their shutters and doors. Sufficient police force was deployed to control the situation. ( 6 ) THE petitioner was detained in District Jail, Gorakhpur in connection with case Crime No. 349 of 2002 and had moved bail application in the competent Court. There was real possibility of the petitioner being released on bail and on his release of indulging him in similar activities prejudicial to the maintenance of public order. ( 7 ) THE detention order dated 23-9-2002 was approved by the State Government on 13-10-2002. The Advisory Board confirmed the detention order for 12 months on 6-11-2002. ( 8 ) THE petitioner submitted representation to the Jail Authority on 7-10-2002. The State Government rejected the representation of the petitioner on 18-10-2002, while the Central Government rejected the representation of the petitioner on 24-10-2002. ( 9 ) HEARD learned counsel for the petitioner, learned AGA and learned Standing Counsel on behalf of Union of India and perused the record. The State Government rejected the representation of the petitioner on 18-10-2002, while the Central Government rejected the representation of the petitioner on 24-10-2002. ( 9 ) HEARD learned counsel for the petitioner, learned AGA and learned Standing Counsel on behalf of Union of India and perused the record. ( 10 ) LEARNED counsel for the petitioner challenged the detention order on the following grounds :- (1) The incident in question on the basis of which the petitioner was detained was solitary incident and has no effect or impact on public order; (2) There were no cogent materials and compelling reasons for satisfaction of the District Magistrate that the petitionr on release on bail would indulge in similar activities prejudicial to the maintenance of public order; (3) The bail application of the petitioner was rejected by CJM on 31-8-2002 and thereafter no bail application was moved. Therefore, there was no necessity of passing detention order as the petitioner was already in Jail. Points Nos. 1 and 2 ( 11 ) THE contention of the learned counsel for the petitioner was that though it is mentioned in the grounds of detention that the petitioner was involved in criminal activities since 1994 and cases of murder, robbery and possession of illicit arms were registered against him in districts Gorakhpur, Basti and Sant Kabir Nagar, but those cases have no nexus and live link with the detention order. The detaining authority has himself admitted in para 9 of his counter-affidavit that as far as earlier cases are concerned those are not main ground of detention but that shows the antecedent of the petitioner i. e. back ground. That the main ground of the detention is the incident which allegedly took place on 22-7-2002. The above incident was solitary incident and has no effect or impact on public order. He further contended that the incident dated 22-7-2002 was solitary act and there was no cogent material and compelling necessity for the detaining authority to record his satisfaction that the petitioner may again indulge in similar activities. Therefore the satisfaction of the detaining authority was not based on cogent material. He further contended that the incident dated 22-7-2002 was solitary act and there was no cogent material and compelling necessity for the detaining authority to record his satisfaction that the petitioner may again indulge in similar activities. Therefore the satisfaction of the detaining authority was not based on cogent material. Reliance was also placed on Apex Court and this Court decisions in Dharmendra Sugan Chandra Chelawat v. Union of India, AIR 1990 SC 1196 : (1990 Cri LJ 1232), Smt. Shashi Agrawal v. State of U. P. , AIR 1988 SC 596 ; Surya Prakash Sharma v. State of U. P. , 1994 (5) JT (SC) 102 : (1995 All LJ 777); Sheshdhar Misra v. Supdt. Central Jail, Naini, 1985 ALJ 1222 (FB) and Rajeev Bharati v. District Magistrate, Aligarh, 1995 AWC 120. ( 12 ) ON the other hand it was contended by the learned AGA that the single incident may also affect the public order and can be basis for passing detention order, because the effect and potentiality of incident on the society as a whole is the prime factor. ( 13 ) IN Sheshdhar Misras case (supra) it was held that on single murderous assault on an individual on account of personal animosity and holding out threat to individual witnesses to desist from deposing in Court do not justify exercise of power under S. 3 (2) of National Security Act for detaining a detenu. Preventive detention under S. 3 of the Act cannot be invoked to deal with the crimes and criminals who can adequately be proceeded against the Penal Code and under other ordinary law of the land. ( 14 ) THE Apex Court had pointed out the difference between the maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. The public order was said to embrace more of the community than the law and order. The public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against the individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. The public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against the individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. It means therefore, that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. ( 15 ) IN the light of above touch stone laid down by Apex Court and by this Court, if we consider the incident on the basis of which the petitioner was detained, we find that the petitioner along with his associates committed dare devil act of robbery in broad day light in a busy locality of Mohalla Ismailpur, P. S. Kotwali for which he had entered into a conspiracy along with his associates to loot. In the said incident a sum of Rs. Seven lac were looted on the point of pistol. The above incident caused sense of fear and insecurity in the mind of public. Everybody of the locality could apprehend danger to his life in case he would carry money for depositing in Bank or taking somewhere else. The incident has thus adversely affected even tempo of life of the society in general and of the people of locality in particular. A sum of Rs. One lac which was share of the looted money was also recovered from the possession of the petitioner on his pointing out. Therefore, we are of the view that the incident in question affected public order and it was not confined to law and order problem only. The act of robbery was not committed on account of personal animosity against an individual but it was committed to earn money by illegal means and by terrorizing the victim. Therefore, it was not a simple case of law and order. The act of robbery was not committed on account of personal animosity against an individual but it was committed to earn money by illegal means and by terrorizing the victim. Therefore, it was not a simple case of law and order. ( 16 ) COMING to the point of satisfaction of the detaining authority that on release on bail the petitioner would indulge in similar activities prejudicial to the maintenance of public order, we find that it is mentioned in the grounds of detention that according to police report the detaining authority came to know that the petitioner was detained in District Jail, Gorakhpur in connection with case Crime Nos. 395, 397, 412, 120-B and 201, I. P. C. P. S. Kotwali Dehat and bail application was also moved on behalf of the petitioner. There was real possibility of the petitioner being released on bail and after release he would indulge in similar activities prejudicial to the maintenance of public order. The materials supplied to the detaining authority also indicated that the petitioner was a notorious criminal minded person and several cases relating to realization of money by illegal means were noticed against him. Five cases of robbery, murder and possession of illicit arms were pending against the petitioner in District Gorakhpur and similar cases were also pending against him in other neighbouring districts like Basti and Sant Kabir Nagar. ( 17 ) MOREOVER the incident in question was also of the nature that it could give apprehension that the petitioner would indulge in similar activities. Therefore, there were sufficient cogent materials before the detaining authority, as well as compelling necessity to detain the petitioner under National Security Act. Therefore, considering the material on record we find no force in the above contention. Point No. 3. ( 18 ) THE contention of the learned counsel for the petitioner on the last point was that at the time of passing detention order the petitioner was in jail and his bail application was already rejected by the CJM and no fresh bail application was moved, therefore, there was no necessity of passing detention order. Point No. 3. ( 18 ) THE contention of the learned counsel for the petitioner on the last point was that at the time of passing detention order the petitioner was in jail and his bail application was already rejected by the CJM and no fresh bail application was moved, therefore, there was no necessity of passing detention order. ( 19 ) AS held by Apex Court in the case of Ahmad Nassar v. State of Tamil Nadu, 1999 (8) JT (SC) 252 in spite of rejection of the application by a Court once it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chances of being bailed out in case pending bail application or in case it is moved in future is decided. The word "likely" shows if can be either way. So without taking any such risk if on the facts and circumstances, the type of crime to be dealt under the criminal law, including contents of the bail application, each and compositely all would constitute to be relevant material for arriving at the conclusion. ( 20 ) IN the instant case no doubt the bail application of the petitioner was rejected by Additional Chief Judicial Magistrate even then the petitioner could move bail application before Sessions Court and High Court. Therefore, the detaining authority has rightly recorded his satisfaction that there was real possibility of the petitioner being released on bail. Pendency or no pendency of bail application on the date of detention order is not criterion for recording above satisfaction. Therefore, there is no force in the above point. ( 21 ) NO other point was pressed before us. ( 22 ) IN view of our above discussion and observations we find no force in this petition. ( 23 ) THE petition is dismissed accordingly. Petition dismissed. .