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2007 DIGILAW 311 (GAU)

Raju Patel v. Union of India

2007-04-26

AFTAB H.SAIKIA, HRISHIKESH ROY

body2007
JUDGMENT A.H. Saikia, J. 1. The legality and validity of the detention order dated 07.08.2006 issued by the special secretary to the Government of Nagaland, under Sub-sections 3(1) & (2) of the National Security Act, 1980 (for short, 'the Act') has been assailed in this Habeas Corpus Petition (hereinafter referred to as 'the petition'). 2. It is complained in this petition that the petitioner who is a driver was arrested on 12.05.2006 at around 0700 hrs. by the district police manning Khuzama Check gate alleging that he was carrying arms, by using camouflage army uniform in a truck driven by him bearing army vehicle registration. The police on suspicion checked the vehicle wherefrom they recovered about 4,200 Kgs. of contraband ganja, including 5(five) Nos. of AK-47 magazines (wooden), 3(three) Nos. magazine pouch, 3(three) Nos. camouflage uniform caps, 2(two) Nos. of pants, 4(four) nos. of shirts etc. and accordingly a police case was registered in this connection being Kzma PS C/No. 0018/06 Under Section 140 IPC read with 20(6)(II)(C) NDPS Act and investigation ensued. While he was in custody, it is alleged in this petition that the petitioner was served with the detention order dated 07.08.2006 as mentioned above putting him under detention under the Act basically on two grounds namely (i) he was acting in a manner prejudicial to the security of the State of Nagaland and (ii) maintenance of public order. 3. Heard Mr. H.R.A. Choudhury, learned Sr. counsel assisted by Ms. S.K. Nargis, learned Counsel for the petitioner. Also heard Mr. P.C. Gayan, learned Central Government Counsel as well as Ms. T. Khro, learned State counsel, Nagaland appearing for the official Respondents. 4. Challenging the impugned order, Mr. Choudhury, has advanced two grounds namely (i) there was an inordinate delay in disposing the representation dated 19.09.2006 as the same was disposed of only on 03.10.2006 as evident from Annexure-3 annexed to this petition and (ii) the detention of the petitioner under the Act is absolutely unwarranted as charges levelled against the petitioner vividly speak of a criminal case being already registered under Indian Penal Code as well as NDPS Act. In view of allegations levelled against the petitioner, according to the learned Counsel, there is no element of Public Order so as to warrant attraction of the provisions of the Act. In view of allegations levelled against the petitioner, according to the learned Counsel, there is no element of Public Order so as to warrant attraction of the provisions of the Act. Moreso, such alleged criminal act, as emerged from the fact situation narrated above, can not be said to be prejudicial to the security of the State. 5. As regards inordinate delay of disposing representation dated 19.09.2006, the learned Counsel has relied upon the judicial pronouncement of the Supreme Court reported in AIR 1972 SC 739 (B. Sundara Rao and Ors. v. State of Orissa). Insofar as maintenance of public order is concerned, the petitioner's counsel has relied upon the following decisions: (1) AIR 2004 SC 4423 (Commissioner of Police and Ors. v. Smt. C. Anita) and (2) 1970 CriLJ 1136 (Arun Ghosh v. State of West Bengal). 6. On the other hand Ms. Khro and Mr. Gayan, learned Counsel representating the official respondents have submitted that the petitioner's activities as evident from the schedule of grounds annexed to the petition to the detention order were found to be prejudicial to the security of the State of Nagaland and also his activities by way of smuggling of huge quantity of contraband ganja along with camouflage army uniform with other contraband articles would definitely, amount to affecting maintenance of public order and as such there is no illegality or irregularity in detaining the petitioner under the Act. 7. We have given our anxious consideration to the extensive arguments so advanced by the learned Counsel and also perused the pleadings so exchanged by and between the parties including the relevant records so produced by the respective Government's counsel. 8. Coming to the first plea that the representation dated 19.09.2006 was not disposed of within the reasonable period, on close perusal of the records so produced by Ms. Khro, it appears that the representation dated 19.09.2006 was received by the Government from the detenu only on26.09.2006. On the other hand, interestingly the Advisory Board which held its meeting on 22.09.2006 in its order dated 22.09.2006 recorded that petitioner had not filed any representation till that date. That being the position, the disposal of the representation by the Government on 03.10.2006 cannot be said to be made by way of inordinate delay and as such this submission of non consideration of the representation within the reasonable time does not find any merit. 9. That being the position, the disposal of the representation by the Government on 03.10.2006 cannot be said to be made by way of inordinate delay and as such this submission of non consideration of the representation within the reasonable time does not find any merit. 9. So far as the second ground of detention of the petitioner i.e. maintenance of public order is concerned, on meticulous analysis of the materials available on record and also upon hearing the learned Counsel for the parties, we are of the view that there is no element of Public Order involved in the present detention inasmuch as it is a pure and simple case of smuggling of ganja being contraband article and in the process of such smuggling the petitioner had adopted a device to camouflage army uniform. That being the admitted position, we are of the considered view that the petitioner's case cannot be put under the Act with the ground of affecting maintenance of Public Order. 10. The Apex Court in the Anita's case (supra) as cited by the learned Counsel for the petitioner dealing with the scope and definition of Public Order in paragraphs 8 and 9 observed as under: 8. "Public Order" is what the French call ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed ? (See Kanu Biswas v. State of West Bengal 1972 CriLJ 1006). 9. "Public Order" is synonymous with public safety and tranquillity: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkers quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the grounds that they were disturbing public order. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkers quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the grounds that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum, which includes at one end small disturbances an at the other the most serious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar and Ors. 11. Having regard to the established legal position as emerged from the above cited cases and also upon hearing the learned Counsel for the rival parties, this Court is of the firm view that since there is no element of public order involved in this case as discussed above, detention order of the petitioner is found to be illegal and void. 12. Consequently impugned detention order on the grounds mentioned above is bad in law and cannot be sustained and accordingly the same stands quashed and set aside. In the result, this petition succeeds and stands allowed. The detenu, namely, Raju Patel, be set at liberty forthwith if not required in connection with any other case. Petition allowed.