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2005 DIGILAW 101 (ORI)

Ashok Kumar Yadav v. State of Orissa

2005-02-02

MADAN MOHAN DAS

body2005
JUDGMENT SUJIT BARMAN ROY, C.J. — By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the order of detention dated 10.10.2004 under Annexure-1 issued in respect of the petitioner by the District Magistrate, Jharsuguda, Orissa. 2. By the impugned order the District Magistrate in exer¬cise of the power conferred upon him by or under Sub-section (2) of Section 3 of the National Security Act, 1980 (in short, ‘the Act’) recorded that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order it was necessary to direct that the petitioner be detained in the Sub-Jail, Jharsuguda until further orders. On 10.10.2004 itself in execution of the said order of detention the petitioner was arrested and was served with a copy of the order of detention and since then he is detained in the said Sub-Jail. While in detention, pursuant to the order under Annexure-1, petitioner was served with the grounds of detention dated 12.10.2004 under Annexure-2 issued by the said District Magistrate. As has already been seen, the order of detention was issued against the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order. 3. After the said detention order and the grounds of detention were served upon the petitioner, petitioner made repre¬sentations before the State Government, the Central Government and before the Advisory Board constituted under the provisions of the said Act. However, the respective Governments rejected the representation for the petitioner. The grounds of detention, the detention order as well as the representation of the petitioner were considered by the Advisory Board. Petitioner was also heard in person by the said Advisory Board. However, the Advisory Board confirmed the order of detention, as it found nothing improper in the impugned order of detention. After his representation was rejected by the Advisory Board, the petitioner has approached this Court with the present writ petition with a prayer for quashing the impugned order of detention. 4. We have heard Mr. B. P. Ray, learned counsel for the petitioner as well as the learned Government Advocate in detail. Various grounds were agitated before us by the learned counsel for the petitioner. 4. We have heard Mr. B. P. Ray, learned counsel for the petitioner as well as the learned Government Advocate in detail. Various grounds were agitated before us by the learned counsel for the petitioner. However, we are of the view that this case can be disposed of only on one ground i.e. on the question as to whether the criminal activities attributed to the petitioner amounted to any activity on the part of the petitioner prejudi¬cial to the maintenance of public order. 5. We have perused the grounds of detention. From the grounds of detention we find that one police case being Jharsugu¬da G.R.P.S. Case No.42 dated 8.8.2004 under Sections 147/148/341/307/149, I.P.C. and Sections 25/27 of the Arms Act was registered against him. Apart from the aforesaid case, Jhar¬suguda P.S. Case No.63 dated 3.4.1996 under Sections 3/4/5 of the Orissa Prevention of Gambling Act and a proceeding under Section 107, Cr.P.C. were also registered against him. All other grounds taken in the grounds of detention against the petitioner pertain to some station diary entries against the petitioner. None of these station diary entries indicate that any case was registered against the petitioner in respect of those station diary entries. So far as the case under the provisions of the Orissa Prevention of Gambling Act is concerned, we have no hesitation to hold that it has got nothing to do with the maintenance of public order in the locality. It has absolutely no nexus whatsoever with the public order. Hence, registration of the case under the provisions of the Orissa Prevention of Gambling Act cannot be a ground for detention of the petitioner under the provisions of the National Security Act for preventing him from acting in any manner preju¬dicial to the public order. Likewise various station diary ent¬ries made in this regard against the petitioner do not disclose any case of serious nature for which we can hold that the peti¬tioner acted in any manner prejudicial to the maintenance of pubic order. The only case which requires our consideration is the police case, namely, Jharsuguda G.R.P.S. Case No.42 dated 8.8.2004 under various Sections of the Indian Penal Code includ¬ing Section 307, I.P.C. This is a solitary case where serious criminal activities are alleged against the petitioner in the ground of detention. The only case which requires our consideration is the police case, namely, Jharsuguda G.R.P.S. Case No.42 dated 8.8.2004 under various Sections of the Indian Penal Code includ¬ing Section 307, I.P.C. This is a solitary case where serious criminal activities are alleged against the petitioner in the ground of detention. Even if the petitioner committed any such offence/offences for which Jharsuguda G.R.P.S. Case No.42 dated 8.8.2004 was registered against the petitioner, we are unable to hold that this can form a basis for the impugned order of deten¬tion under the said Act. No doubt such criminal activity on the part of the petitioner, if the same amounted to the offences as alleged, may amount to a question of law and order, but it cannot be held that the petitioner had acted in any manner prejudicial to public order. Such solitary incident of criminal activity not affecting the society in general, in the area in which the peti¬tioner lives cannot be said to have affected the public order of that area. 6. Mr. Ray, learned counsel for the petitioner, in this regard relied on a decision of the apex Court in Gulab Mehra -v- State of U.P. and others : AIR 1987 SC 2332 . In particular, he relied on the observations of the apex Court in paragraphs-15, 17 and 18 of that judgment. It appears that the apex Court while approving the opinion of an earlier decision of the said Court in Dr. Ram Manohar Lohia -v- State of Bihar : AIR 1996 SC 740 , observed that the contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. There are three concepts, i.e., ‘Law and Order’, ‘Public Order’ and ‘Security of the State’. To appreciate the scope and extent of each of them, one should imagine three concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security of the State. An act might affect law and order but not public order just as an act might affect public order but not the security of the State. In Gulab Mehra -v- State of U.P. (supra), the apex Court approved the following observa¬tions of the said Court in an earlier decision in Arun Ghosh -v- State of West Bengal : AIR 1970 SC 1228 . In Gulab Mehra -v- State of U.P. (supra), the apex Court approved the following observa¬tions of the said Court in an earlier decision in Arun Ghosh -v- State of West Bengal : AIR 1970 SC 1228 . “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 individuals which do not disturb the society to the extent of causing a general disturbance of public tranquilli¬ty. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the dis¬turbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are depeer and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different.” This view has bee reiterated in Nagendra Nath Mondal -v- State of West Bengal : AIR 1972 SC 65 and in Nand Lal Roy alias Nonda Dulal Roy -v- State of West Bengal : AIR 1972 SC 1566 . 7. Thus, from the aforesaid observations it is manifest that an act whether amounts to a breach 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 breaches 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 the even tempo of the life of the community then only it becomes a breach of the public order. 8. 8. On perusal of the grounds of detention served upon the petitioner, we do not come across any material whatsoever to show that the criminal acts attributed to the petitioner in the afore¬said case registered inter alia under Section 307, I.P.C. had any deep effect upon the society/community at large. If such incident affected an individual or a group of individuals, but had no effect upon the society/community at large, then we are con¬strained to hold that the acts attributed to the petitioner did not amount to acts prejudicial to the maintenance of public order though the same may amount to breach of law and order. 9. Under the aforesaid circumstances and in view of the facts of the present case as appearing from the grounds of deten¬tion, we hold that the State has failed to make out a case to continue further detention of the petitioner under the provisions of the National Security Act as the acts attributed to the peti¬tioner did not amount to any act prejudicial to the maintenance of public order within the meaning of Section 3 of the said Act. 10. In the result, therefore it is inevitable to hold that the order of detention of the petitioner under the provisions of National Security Act was totally unjustified and accordingly the said order of detention issued in respect of the petitioner under Annexure-1 is quashed. We further direct that the petitioner be set at liberty forthwith, provided his detention is not required in connection with any other case. The writ petition is thus allowed and is accordingly dis¬posed of. M. M. DAS, J. I agree. Petition allowed.