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2008 DIGILAW 488 (MP)

SHANKER MIHANI v. STATE OF M P

2008-03-28

A.K.PATNAIK, PRAKASH SHRIVASTAVA

body2008
Judgment ( 1. ) IN this petition under Art. 226 of the Constitution of India, the petitioner has challenged the order dated 10-10-2007 of the Collector, Hoshangabad detaining him under the National Security Act, 1980 (for short the Act ). ( 2. ) THE facts as briefly stated in the writ petition are that the petitioner contested election for the post of Councillor, Municipal Council, Itarsi on 24-11-2004 and was declared elected from Ward No. 17 securing maximum number of votes. On 18-4-2007, the Collector Hoshangabad issued an order of externment of the petitioner under the M. P. Rajya Suraksha Adhiniyam, 1990 expelling him from Hoshangabad, Harda, Betul, Narsinghpur, Sehore and raisen Districts for a period of one year on grounds mentioned in the order. The petitioner challenged the order of externment before the High Court and the high Court directed the stay of the order of externment. Thereafter, the Police arrested the petitioner under Section 110 of the Code of Criminal Procedure. The petitioner applied for bail and the Sub-Divisional Magistrate, Itarsi granted bail but directed him to furnish a solvent surety of Rs. 1 lac. When the solvent surety was furnished and the Sub-Divisional Magistrate, Itarsi accepted the solvent surety and directed for release of the petitioner, an order of detention was passed by the Collector, Hoshangabad on 10-10-2007 and the petitioner was taken into custody in execution of the order of detention on 10-10-2007. Thereafter, the grounds of detention were served on 14-10-2007. ( 3. ) MR. Surendra Singh, learned Senior Counsel for the petitioner submitted that on two earlier occasions, the petitioner was detained under the national Security Act but the Advisory Board did not approve the detention orders and the petitioner was released. He submitted that on the first occasion when the order of detention was passed, 49 cases were listed in the grounds of detention, but the Advisory Board did not find those cases prejudicial to the maintenance of public order. He further submitted that on the second occasion when the order of detention was passed, in the grounds of detention, 87 cases were listed, but the Advisory Board again did not find the 87 cases listed in the grounds of detention to be prejudicial to the maintenance of public order. He further submitted that on the second occasion when the order of detention was passed, in the grounds of detention, 87 cases were listed, but the Advisory Board again did not find the 87 cases listed in the grounds of detention to be prejudicial to the maintenance of public order. He submitted that most of the grounds for detention of the petitioner under the impugned order dated 10-10-2007 are also repetitions of the grounds on which the two earlier orders were passed. He argued that it will be clear from the grounds of detention served to the petitioner that first 97 cases related to the incidents which have taken place during 26-2-1984 to 19-9-2006, more than one year before the order of detention was issued on 10-10-2007 and submitted that in Shiv Prasad Vs. State of M. P. and another, AIR 1981 SC 870 , the Supreme court has held that grounds of detention must be approximate and not stale and that staleness of the grounds of detention is sufficient to vitiate the order of detention. ( 4. ) MR. Singh next submitted that the cases listed from Serial Nos. 98 to 111 in the grounds of detention contain cases under Section 4-A of the Public gambling Act and most of these cases are ordinary offences which do not affect the public order. He relied on Victoria Fernandes Vs. Lalmal Sewma, AIR 1992 sc 687 , in which the Supreme Court has explained the distinction between law and order and public order and has held that while the expression law and order is wider in scope and covers any contravention of law and affects order, public order has a narrow ambit and would be affected only by such contravention which affects the community or public at large. He submitted that in the aforesaid decision, the Supreme Court has held that public order is the even tempo of life taking a country as a whole or even a specified locality and thus if a contravention is in its effect confined to only few individuals directly involved as distinct from the general public it does not affect the public order. He argued that offences under Section 4-A of the Public Gambling Act alleged to have been committed by the petitioner, therefore, may be a contravention of law but do not affect public order inasmuch as it does not threaten the even tempo of the general community. He submitted that in any case, the petitioner has been acquitted by the Court in almost all the cases registered against him under Section 4-A of the Public Gambling Act. ( 5. ) MR. Singh, learned Counsel for the petitioner submitted that the incident of 22-12-2006 as narrated against serial No. 103 of the grounds of detention is false and concocted as would be evident from the report of the DIG of Police, Hoshangabad area annexed to the writ petition as Annexure P-14. He submitted that the said report of the DIG of Police shows that the incident appears to be a simple case of incident and as an attempt murder. Regarding the incident on 5-1-2007 narrated against serial No. 105 of the grounds of detention, mr. Singh submitted that the order-sheet of the Judicial Magistrate, First Class annexed to the writ petition as Annexure P-15 contained in the order dated 6-1-2007 and 7-1-2007 would show irregularities that the Police had committed against the accused persons with malafide intention and that the investigation was being conducted in a one sided and partial manner and the accused persons were victims in Police custody. He submitted that therefore, the incident on 5-1-2007 as narrated against serial No. 105 of the grounds of detention is also concocted by the Police. He submitted that besides two incidents on 22-12-2006 and 5-1-2007, all other incidents narrated in serial Nos. 98 and 111 have no nexus whatsoever with public order. ( 6. ) MR. T. S. Ruprah, learned Additional Advocate General, on the other hand, sought to sustain the order of detention and submitted that the supreme Court has held in Golam Hussain alias Gama Vs. Commissioner of police, Calcutta and others, AIR 1974 SC1336, that merely because the grounds of detention have been subject to criminal cases, which have ended in discharge, it cannot be said that the order of detention is malafide as the basic imperative of proof of reasonable doubt in a criminal case does not apply to an order of detention which has to be based on the subjective satisfaction of the Detaining authority. Hence, even if the petitioner has been acquitted in many of the cases listed against him in the grounds of detention, if the Detaining Authority was satisfied on the basis of materials before him that the detention of the detenu was necessary for the maintenance of public order, the order of detention cannot be interfered by the Court. ( 7. ) MR. Ruprah next submitted that the character of the offence has to be taken into consideration for the purpose of finding out whether the offence allegedly committed by the detenu affects public order. He submitted that against serial No. 103 of the grounds of detention, the offence committed by the petitioner on 22-12-2006 has been listed and this would show that the petitioner along with other co-accused persons, sharing common objects and armed with deadly weapons, fired at the complainant Jaspal Singh son of Gurudayal Singh bhatia in front of the Railway Station at Itarsi on the road which goes towards the Circuit House which was a highly crowded area. He submitted that this was thus a case affecting the even tempo of general community and subsequently public order. ( 8. ) MR. Ruprah next submitted that against serial No. 105 of the list of cases in the grounds of detention, it is stated that on 5-1-2007, when the petitioner was arrested in Malviyaganj Panja Square by S. I. Pritam Singh Thakur in connection with criminal case registered under Section 307, Indian Penal code, the petitioner with the aid of his companions caught hold of S. I. Pritam singh Thakur and tried to snatch his service revolver and prevented him from discharging his duties and went out of the police custody and this incident which took place at a public place was sufficient for detaining the petitioner under the act. He cited the decision in Kamlabai Vs. Commissioner of Police, Nagpur and others, (1993) 3 SCC 384 , in which the Supreme Court has held that catching hold of Sub-Inspector in a public place naturally would create panic in the locality and detention on such a ground has nexus to public order. ( 9. ) MR. He cited the decision in Kamlabai Vs. Commissioner of Police, Nagpur and others, (1993) 3 SCC 384 , in which the Supreme Court has held that catching hold of Sub-Inspector in a public place naturally would create panic in the locality and detention on such a ground has nexus to public order. ( 9. ) MR. Ruprah finally submitted that although the orders of detention passed earlier on two occasions against the petitioner could not be confirmed because of the Advisory Board not approving the orders of detention, the impugned order of detention dated 10-10-2007 has been approved by the advisory Board and confirmed by the State and, therefore, it is not a fit case in which the High Court should interfere with the order of detention. ( 10. ) WE have considered the submissions of Mr. Singh, learned Counsel for the petitioner and Mr. Ruprah, learned Additional AG. for the respondents and we find that in the grounds of detention, 111 activities of the petitioner during 1984 to 2007 have been narrated for which the order of detention has been passed under Section 3 of the Act. It is now well settled that stale incidents, which are remote to the date of the order of detention, cannot constitute the basis for passing the order of detention. Hence, the incidents of different years from 1984 to 2006 prior to one year before the date of order of detention, in our considered opinion, were stale incidents which could not constitute the basis for detaining the petitioner. If the aforesaid incidents of the years 1984 to 2006 prior to one year of the order of detention dated 10-10-2007 are excluded, only incidents which have been narrated against serial Nos. 98 to 111 and which contain the incidents which have taken place between 9-11-2006 to 6-10-2007 may be examined by the Court to find out whether on the basis of these incidents the Detaining Authority could reasonably arrive at a satisfaction that the petitioner must be detained under Section 3 of the Act. ( 11. 98 to 111 and which contain the incidents which have taken place between 9-11-2006 to 6-10-2007 may be examined by the Court to find out whether on the basis of these incidents the Detaining Authority could reasonably arrive at a satisfaction that the petitioner must be detained under Section 3 of the Act. ( 11. ) IN serial No. 103 of the grounds of detention, it is alleged that on 22-12-2006, the petitioner along with other co- accused persons sharing common object and armed with deadly weapons fired at the complainant Jaspal Singh with an intention to kill him and to cause damage to his vehicle and on the report of the complainant, Crime No. 890 of2006 under Sections 147,148,149,427 and 307, IPC was registered and the accused persons were arrested and prima facie case was found and accordingly charge-sheet No. 272 of 2007 was prepared and filed in Court. From the report of the DIG of Police, Hoshangabad area annexed to the writ petition as Annexure P-14, it is clear that this incident took place in front of the Railway Station on the road which goes towards the Circuit House and this is a highly crowded area. Thus, this violent conduct of the petitioner on a public road in a highly crowded area, if true, affects the even tempo of the general community in a specified locality and directly endangers public order. The DIG of Police, Hoshangabad Area in his report however stated that neither jaspal Singh nor any member of his family had received any injury and has observed that if several persons had gone and 25-30 persons were there from the opposite party, at least 8 to 10 persons should have suffered injuries and should have been medically examined. Mr. Singh relying on this report of the DIG of police, Hoshangabad Area, annexed as Annexure P-14, submitted that the incident of 22-12-2006 should not therefore be believed, particularly when it has not been proved in a Court of law. We are unable to accept this submission of mr. Singh because the High Court while examining the validity of an order of detention is not to examine the truth or otherwise of the allegation mentioned in the grounds of detention. As explained by the Supreme Court in Narayan debnath Vs. State of West Bengal, AIR 1976 SC 780 :- ". . . . . . Singh because the High Court while examining the validity of an order of detention is not to examine the truth or otherwise of the allegation mentioned in the grounds of detention. As explained by the Supreme Court in Narayan debnath Vs. State of West Bengal, AIR 1976 SC 780 :- ". . . . . . It is because that the act complained of cannot perhaps be satisfactorily proved in a Court of law or that the witnesses are unwilling to come forward being already terrified by the enormity of the act perpetrated that action some times has to be taken under the act to prevent further commission of offences of similar nature. Besides, it is not the function of the Court to examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of enquiry in a case of this nature is very limited. " ( 12. ) AGAINST serial No. 105 of the grounds of detention, it is alleged that on 5-1-2007, the petitioner who was wanted in a criminal case registered under section 307, IPC was arrested in Malviyaganj Panja Square by S. I. Pritam Singh thakur but the petitioner with the aid of his companions and with the intention to prevent S. I. Pritam Singh Thakur from discharging his official duties caught hold of him and tried to snatch his service revolver and thereafter ran away from the custody of the Police and S. I. Pritam Singh Thakur lodged a complaint on 5-1-2007 on the basis of which Crime No. 06 of 2007 was registered under sections 147,332, 323, 353, 341, 506,224, 225 and 393, IPC and all the accused persons were arrested and charge-sheet was prepared and filed in Case No. 563 of 2007 against the petitioner. This act of the petitioner in a public place is yet another act which must have created panic amongst the public and has direct nexus with public order. In Smt. Kamla Bai Vs. This act of the petitioner in a public place is yet another act which must have created panic amongst the public and has direct nexus with public order. In Smt. Kamla Bai Vs. Commissioner of Police, Nagpur and others (supra), the Police Sub-Inspector saw some people gathered near the detenus table and found that the detenu was selling illicit liquor and he took search of his table and found liquor bottles and was about to take the accused persons and liquor bottles when the detenu and his associates arrived, questioned the Police Sub-Inspector and forcibly removed the liquor bottles from the spot and when the Police Sub-Inspector told them that he was performing his duty, the detenu threatened him that they will finish him if he does not act according to his wishes and caught hold of Police Sub-Inspector and surrounded him. In a challenge being made to the order of detention that the conduct of the detenu was only a display of gundaism and was a stray act and did not affect public order, the Supreme Court held that this was not a stray act affecting only law and order and that the act of holding a Sub-Inspector and threatening him in a public place must have naturally created panic in the locality and hence the ground of detention has nexus with public order. ( 13. ) MR. Singh however submitted that the orders dated 6-1-2007 and 7-1-2007 passed by the Judicial Magistrate, First Class, Itarsi in Crime No. 6 of 2007 of Police Station, Itarsi would show that the incident did not really occur and that the accused persons instead had received injuries and that the Police was acting against the accused persons with malafide and one sided manner. We have read the two orders dated 6-1-2007 and 7-1-2007 passed by the Judicial magistrate, First Class, Itarsi in Crime No. 06 of 2007 of Police Station, Itarsi and we do not find that the incident of 5-1-2007 in which the petitioner is alleged to have prevented S. I. Pritam Singh Thakur to arrest him with the help of the companions and the petitioner has tried to snatch away the service revolver of s. I. Pritam Singh Thakur and to run away from the custody of the Police has been discussed by the Magistrate. In any event, as has been held by the Supreme court in Narayan Debnath Vs. In any event, as has been held by the Supreme court in Narayan Debnath Vs. State of West Bengal (supra), this Court while examining the validity of the order of detention cannot go into truth or otherwise of a particular ground of detention and has to assume that the ground relating to the incident of 5-1-2007 as mentioned against serial No. 105 of the grounds of detention is true. ( 14. ) THUS, even if we accept the contention of Mr. Singh that the other grounds mentioned against serial Nos. 98 to 111 are not germane to public order, the two incidents of 22-12-2006 and 5-1-2007 mentioned against serial Nos. 103 and 105 respectively of the grounds of detention, in our considered opinion, can form a reasonable basis for the satisfaction of the Detaining Authority that unless the petitioner is detained in custody under Section 3 of the Act, he is likely to repeat similar activities in future which will endanger public order. The supreme Court has held in the case of Debu Mahto Vs. State of West Bengal, AIR 1974 SC 816 :- ". . . . . . The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. It may be easier to draw such an inference where there is a series of acts evincing a course of conduct but even if there is a single act, such an inference may justifiably be drawn in a given case. " ( 15. ) WE cannot therefore interfere with the order of detention particularly when the same has been confirmed by the State Government after its approval by the Advisory Board. The writ petition is consequently dismissed. Parties to bear their own costs.