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2006 DIGILAW 725 (MP)

Pappu Khatik v. State of M. P.

2006-05-17

S.K.KULSHRESTHA, S.S.DWIVEDI

body2006
ORDER Kulshrestha, J. --1. By this petition for a Writ of Habeas Corpus, the petitioner seeks his release from detention under section 3 (2) of the National Security Act, 1980 (for short, 'the Act'), vide order dated 4.10.2005, passed by the second respondent, District Magistrate, Dhar, in purported exercise of the power conferred upon him by the State Government under sub-section (3) of section 3. It is not disputed that as required by section 8 of the Act, grounds of detention, though ordinarily required to be furnished within (not later than) five days, were concurrently furnished along with order (Annexure P-1), vide Annexure P-2, dated 4.10.2005, in which it was stated that the order of detention (Annexure P1) dated 4.10.2005 was founded on the said grounds. The grounds contained in Annexure P-2 have been mentioned from Serial No. 1 to Serial No. 26, referring to the various activities of the detenu (petitioner) commencing from 1.1.1994 to 18.4.2005. In summing up his activities, the District Magistrate has also referred to some alleged participation of the detenu in some communal riots resulting in estrangement between the communities. 2. It is not disputed that the order of detention has been approved by the State Government, as required by section 3 (4) of the Act, within a period of twelve days. 3. The short question raised by the learned counsel for the detenu is that for detention it is necessary that there should be nexus with the purpose for which the detention is made and there should also be proximity with the alleged prejudicial activities and the purpose of detention namely, prevention of the person from the alleged nefarious activities. His like contention assailing the validity of the order of detention is that the District Magistrate has taken some vague material into account in coming to the conclusion that the activities of the detenue relate to and prejudicially affect the public at large and, therefore, fall within the domain of the public order and it is permissible to detain the detenu under the provisions of the said law. 4. The question that falls for our determination is as to whether on the premises on which the District Magistrate, Dhar, has proceeded to detain the detenu, the detention order can be sustained. 5. 4. The question that falls for our determination is as to whether on the premises on which the District Magistrate, Dhar, has proceeded to detain the detenu, the detention order can be sustained. 5. As observed by us, the order of detention is based on though as many as 26 grounds, the earlier part of the grounds furnished by the District Magistrate serve only as an index to the criminal activities of the detenue and indicate his propensities. Apparently, the activities relating to the year 1994 will have no relevance to the preventive detention of a person of criminal propensities in the year 2006 and so also of a person having such propensities in the remote past. It is only his recent activities which furnish a reasonable ground or nexus for drawing subjective satisfaction to come to the conclusion that the activities constitute prejudice or are prejudicial to the public order that the detention order can be passed. The activities of the detenu apparently came to a standstill in the year 2000, as it appears that after his criminal activity catalogued at Serial No. 21 of the grounds of detention, on 11.9.2000, there was a complete lull and the next activity complained of is dated 5.2.2004 at Serial No. 23. Therefore, it is from the activities referred at Serial Nos. 23, 24, 25 and 26 of Ex. P-2, of the grounds of detention that we have to examine whether they constitute the activities' prejudicial to the public order or they relate only to the law and order. 6. If the allegation at Serial No. 23 is examined, what has been stated by the District Magistrate is that on 5.2.2004, the detenu, along with his companion, went to' complainant Ashish s/o Pradeep and abused him and caused damage to his STD. At Serial No. 24, it finds recorded that on 20.10.2004, detenu, along with his other companion, assaulted Shyamsunder s/o Ratiram, by means of a Knife. At Serial No. 25, it is stated that on 7.4.2005, he intimidated Vinod s/o Dinesh, in pursuance of his demand for protection money and at Serial No. 26, it is stated that on 18.4.2005, he intimidated Vishal Maratha, in pursuance of his demand of protection money. These incidents relate to individuals. At Serial No. 25, it is stated that on 7.4.2005, he intimidated Vinod s/o Dinesh, in pursuance of his demand for protection money and at Serial No. 26, it is stated that on 18.4.2005, he intimidated Vishal Maratha, in pursuance of his demand of protection money. These incidents relate to individuals. It is not a case that the demand was made in a public place where public at large was alarmed and a public order situation was created. While we are conscious of the fact that in matters relating to detention under the provision of section 3 of the Act, it is the subjective satisfaction of the Detaining Authority for basing its order of detention, the subjective satisfaction should be derived from some objective criteria from which it can be seen that there is sufficient nexus between the two. In the present case, while the learned District Magistrate has attempted to justify his conclusions by summing up that from the activities of the detenu complained of, he has come to the conclusion that the same have shattered the public order, we are not satisfied that the activities complained of individually or collectively, can lead to any such conclusion. 7. We may also refer to the second contention of the learned counsel that in cases relating to preventive detention, one normally expects that it is for an emergent need that a person is detained under the provisions of the Act as the normal action under the punitive law is found insufficient or inefficacious. The order of detention (Annexure P-1) is dated 4.10.2005, while the last ground considered by the Detaining Authority, as reflected by grounds of detention (Annexure P-2), is dated 18.4.2005. Even if some margin is given to what has been stated by the learned Dy. Advocate General that some reference has been made in the concluding portion to the participation of the detenu in some communal disturbances in July, a detention order passed as late as on 4.10.2005, without there being an explanation from the District Magistrate about the period intervening, suffers from delay, which is not justified. The fact that the authority itself could wait for several months though, according to the Detaining Authority, the circumstances existed for immediate detention, by itself vitiates the order. 8. The fact that the authority itself could wait for several months though, according to the Detaining Authority, the circumstances existed for immediate detention, by itself vitiates the order. 8. We may also record that the Detaining Authority has generally referred to the participation of the detenu in some communal activities without specifying the same. We can only say that communication of such vague grounds deprives a person from making an effective representation against his preventive detention which is contra-indicative of the Constitutional guarantee; the provision of Article 22 thereof. However, since we have found that the authorities have failed to show the nexus between the grounds of detention and public order as also the activities of the, detenu and the order to detain him at the time the order of detention was passed, we are not going into the question with regard to the vagueness of the other material stated in the grounds of detention. 9. In the result, we find that the order of detention (Annexure P-1) passed by the District Magistrate, Dhar, cannot be sustained and accordingly we quash the said order and direct that the detenu (petitioner) be forthwith released from custody, if not required in connection with any other matter.