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2009 DIGILAW 225 (MP)

SANTOSH SHARMA v. STATE OF M P

2009-02-13

A.K.PATNAIK, P.K.JAISWAL

body2009
Judgment ( 1. ) THIS is an appeal filed under Section 2 of the Madhya Pradesh Uchcha nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 26-9-2008 passed by the learned Single Judge dismissing Writ Petition no. 6080/2008 of the appellant against the order of detention passed by the district Magistrate, Hoshangabad under Section 3 (2) (3) of the National security Act, 1980 (for short the Act ). ( 2. ) THE relevant facts briefly are that on 5-1-2008 the District magistrate, Hoshangabad in exercise of powers under Section 3 of the Act passed an order detaining the appellant on the request of Superintendent of police, Hoshangabad in his letter dated 29-12-2007. Thereafter the matter was referred to the Advisory Board under Section 11 of the Act and pursuant to report of the Advisory Board, the State Government confirmed the order of detention on 21 -4-2008 directing that the appellant shall remain in detention till 5-3-2009. Aggrieved, the appellant filed Writ Petition No. 6080/2008 under article 226 of the Constitution and by the impugned order dated 26-9-2008 the learned Single Judge dismissed the writ petition. ( 3. ) MR. Vijay Pandey, learned Counsel for the appellant, submitted that on reading of the impugned order passed by the learned Single Judge, it will be clear that the learned Single Judge has failed to appreciate the distinction between the law and order and public order. He cited the decision of the supreme Court in Victoria Fernades Vs. Lalmal Sawma and others, AIR 1992 SC 687 , on the distinction between the law and order and public order and submitted that the facts stated in the grounds of detention dated 5-1 -2008 served on the appellant would show that the appellant had not committed any act which would disturb public order and that the grounds of detention only contained allegations which are ordinary crimes such as gambling committed by the appellant which may amount to contravention of law but which had no effect on public order. ( 4. ) MR. Pandey next submitted that in the grounds of detention various facts have not been correctly stated. ( 4. ) MR. Pandey next submitted that in the grounds of detention various facts have not been correctly stated. He pointed out that it has been alleged that on 7-4-1998 Crime No. 279/98 under Section 34 of the Excise Act was registered against the appellant and filed in the Court but the fact that the appellant was subsequently acquitted in the case has not been stated. He submitted that similarly in the grounds of detention it is mentioned that on 24-6-2001 one Sunil s/o Ramnaresh Singh, resident of Village Rampur made a complaint that the appellant and his companions interrupted his way and caused assault which could be dangerous to his life and accordingly Crime No. 273/01 under Sections 307, 341, 147, IPC and 25, Arms Act was registered, but the fact that the appellant was subsequently acquitted has not been stated. He submitted that all these would show that the orders of acquittal passed by the Court in the cases against the appellant were not brought to the notice of the Detaining Authority to prejudice his mind. He cited the decision in D. C. Agrawal Vs. Police commissioner and another, AIR 1989 SC 1282 , in which the Supreme Court set aside the order of detention after having found that the acquittal of the detenu in case numbers mentioned against Sr. Nos. 2 and 3 of the grounds of detention had not been brought to the notice of the Detaining Authority and the detaining Authority was given to understand that the trial of those cases were pending. ( 5. ) HE next submitted that in one of the grounds of detention it is stated that on 19-11-2007 one Prankit @ Janu reported that the appellant and four other companions shot Sanju Chowksey dead at Galla Mandi, Piparia for which crime No. 473/07 under Sections 147,148,149, 307 and 302, IPC and Sections 25 and 27 of the Arms Act were registered and the appellant was absconding since the date of incident and the matter was under investigation. He submitted that the Additional Superintendent of Police, Hoshangabad has subsequently given a report that the appellant had been falsely implicated in the offence as at the time of the incident the appellant was 75 kms. away from the place of incident and was attending externment case in the Court of Collector, hoshangabad. He cited the decision of Supreme Court in Mohd. away from the place of incident and was attending externment case in the Court of Collector, hoshangabad. He cited the decision of Supreme Court in Mohd. Shakeel Wahid ahmed Vs. State of Maharashtra and others, AIR 1983 SC 541 , in which the opinion of the Advisory Board in a connected case which was relevant to the petitioners case had not been placed before the Detaining Authority and the supreme Court held that the Detaining Authority failed to apply its mind to this very relevant circumstance and accordingly set aside the order of detention. He also relied on a decision of Division Bench of this Court in Ravi Tiwari and others vs. Union of India and others, 2003 (3) MPLJ 372 , for the proposition that the detention order not based on proper application of mind cannot be sustained. ( 6. ) MR. Pandey, finally submitted that in any case, the incident of 19-11-2007 is only one solitary incident for which the appellant should not have been detained under Section 3 of the Act. He cited the decision in T. Devaki Vs. Government of Tamil Nadu, AIR 1990 SC 1086 , for the proposition that a solitary incident can raise a law and order problem and cannot be said to have put public order in jeopardy so as to bring the case within the purview of the Act. ( 7. ) MR. Vivekanand Awasthy, learned Government Advocate, on the other hand, relied on State of U. P. and another Vs. Sanjaipratap Gupta @ Pappu and others, (2004) 8 SCC 591 , and submitted that a single act can be considered sufficient for holding that public order was affected and it is not the number of acts that matters but the effect of the act on the even tempo of life, the extent of its reach upon the society and its impact which has to be considered. He referred to the report of the Superintendent of Police annexed to the writ petition as annexure P-2 to show that the appellant not only had criminal antecedents but committed series of acts in the year 2007 including the murder at Galla Mandi, piparia on 19-11-2007 alongwith his companions and therefore had endangered public order in the area. Mr. Awasthy cited the decision in State of U. P. Vs. Mr. Awasthy cited the decision in State of U. P. Vs. Kamal Kishore Saini, AIR 1988 SC 208 , in which the Supreme Court having found that the detenu was alleged to have opened fire in a busy locality resulting in the death of one on spot and injury to others during the day time, held that the incident does affect the public order as its reach and impact is to disturb public tranquillity and it affects the even tempo of the life of the people in the locality where the incident is alleged to have occurred. He also cited the decision in mohd. Shakeel Wahid Ahmad Vs. State of Maharashtra (supra) and submitted that where one of the grounds of detention was bad and unsustainable the detention order was not vitiated on the remaining grounds of failure. ( 8. ) WE have perused the grounds of detention served on the appellant and we find that there are altogether 17 grounds of detention. Out of these 17 grounds of detention, 9 related to incidents which had taken place during 1998, 2001 and 2004 which are not in close proximity to the order of detention passed on 5-1-2008 and, therefore, cannot constituted the basis of the order of detention. The incidents of the years 1998,2001 and 2004 can at best suggest the criminal antecedents of the appellant. Hence even if in some of these cases related to the years 1998 to 2004 there are orders of acquittal of the Courts, such orders of acquittal have little relevance to the question whether an order of detention passed in the year 2008 was sustainable. In D. C. Agrawal Vs. Police commissioner and another (supra), cited by Mr. Pandey, the Supreme Court did set aside the order of detention after having found that the orders of acquittal passed in two cases to which reference was made in the grounds of detention had not been placed before the Detaining Authority, but in Mohd. Shakeel Wahid ahmad Vs. State of Maharashtra (supra), the Supreme Court has also held that if one of the grounds of detention is bad and unsustainable, the order of detention would not be vitiated if there were other valid grounds supporting it and in State of U. P. and another Vs. Shakeel Wahid ahmad Vs. State of Maharashtra (supra), the Supreme Court has also held that if one of the grounds of detention is bad and unsustainable, the order of detention would not be vitiated if there were other valid grounds supporting it and in State of U. P. and another Vs. Sanjai Pratap Gupta @ Pappu and others (supra), in which the Supreme Court after considering its earlier decisions has emphatically held that there cannot be any strait jacket formula for dealing with such cases of detention and the circumstances of each case have to be seen for determining the question as to whether the detenu has to remain in detention. ( 9. ) THE rest of the 8 grounds are of the year 2007 and English translation of these 8 grounds are extracted here in below:-It will be clear from the aforesaid ground Nos. 10 to 17 that the Detaining authority had found that according to the Detaining Authority, the appellant had increased his unlawful activities in the year 2007 and the last unlawful act of the appellant mentioned in the grounds of detention was on 19-11-2007 on which date the appellant alongwith his companions shot Sanju Chowksey dead at Galla Mandi in Piparia for which Crime No. 473/01 under Sections 147, 148, 149, 307 and 302, IPC and Section 25 and 27 of the Arms Act was registered. Obviously, Galla Mandi in Piparia is a busy market area and a public place and the act of shooting another person dead at about 4. 30 in the afternoon when the incident is reported to have taken place, was bound to terrorise people in the mandi Area seriously affecting the peace and tranquillity of the locality. We have, therefore, no doubt that this alleged act of the appellant affected public order. ( 10. ) SIMILAR acts of detenues have been held by the Apex Court to disturb the public order. In State of U. P. Vs. Kamal Kishore Saini (supra), cited by Mr. Awasthy, the detenu fired at Ram Kumar and Nand Kishore and Ram kumar and Nand Kishore ran helter and skelter. Thereafter, the detenu chased ram Kumar and fired twice or thrice and as a consequence Ram Kumar died on the spot and Nand Kishore and the rickshaw-puller sustained injuries. Kamal Kishore Saini (supra), cited by Mr. Awasthy, the detenu fired at Ram Kumar and Nand Kishore and Ram kumar and Nand Kishore ran helter and skelter. Thereafter, the detenu chased ram Kumar and fired twice or thrice and as a consequence Ram Kumar died on the spot and Nand Kishore and the rickshaw-puller sustained injuries. The supreme Court held that the firing having been made in public street affected public order as its reach and impact was to disturb public tranquillity and it affected the even tempo of life of the people in the locality where the incident is alleged to have occurred. ( 11. ) IN State of U. P. and another Vs. Sanjai Pratap Gupta @ Pappu and others (supra), again cited by Mr. Awasthy, the detenu while going on the scooter alongwith his other associates in the busiest market of town Mainpuri, near Bad Chauraha in front of Shafi Hotel on the road itself and in the daytime, stopped Anand Kumar Jain and fired bullets indiscriminately on him and committed his murder and when his son wanted to save him, the detenu also fired aiming at him who however fled away and the Supreme Court rejected the contention of the detenu that a single act cannot be considered sufficient for holding that public order was affected and held that it is not the number of acts that the matter but what has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact. ( 12. ) IN T. Devaki Vs. Government of Tamil Nadu (supra), relied on by mr. Pandey, the detenus attempted a murderous assault with knives on Thiru durai Murugan, Minister for Public Works Department, created scare and a feeling of insecurity in the minds of the persons present in the hall and the detenus action interrupted the "proceedings of the Seminar for a while" but the seminar continued later on and the Supreme Court held that this solitary incident did not and could not affect public peace and tranquillity nor it had the potential to create a sense of alarm and insecurity in the locality. This was thus a case where the Supreme Court found that the proceedings of the Seminar were interrupted only for a while by the murderous assault on the Minister with knives by the detenus and the Seminar continued later on and held that his solitary assault can hardly be said to have disturbed public peace. In the present case, on the other hand, the appellant and his four other companions are alleged to have fired at Sanju Chowksey in a busy Mandi area at 4. 30 p. m. in Piparia and this act, in our considered opinion, was bound to have an adverse effect on the peace of the locality and affect public order. ( 13. ) WE may now deal with the contention of Mr. Pandey that the inquiry report dated 31-3-2008 of the Office of the Additional Superintendent of Police, District Hoshangabad would show that the appellant was at hoshangabad and not at Piparia on 19-11-2007 and therefore the allegation that he alongwith his four other companions shot Sanju Chowksey at Galla Mandi in piparia is false. We have perused the inquiry report dated 31-3-2008 of the office of the Additional Superintendent of Police, District Hoshangabad and we find that it inter alia states that on 19-11-2007 the appellant had marked his attendance in one of the ten cases of externment which were fixed for hearing in the Court of the Collector, Hoshangabad at 3. 30 p. m. The inquiry report however states that it is not known upto which time the appellant remained present in the Court of Collector, Hoshangabad and when he left from there. The inquiry report further states that the distance between Hoshangabad and piparia is 75 kms and it takes approximately one hour to cover the distance and therefore the complaint of Prankit alias Janu in Crime No. 473/07 of Piparia appears to be doubtful. This inquiry report therefore does not altogether falsify the complaint that the appellant shot Sanju Chowksey in Galla Mandi at Piparia at 4. 30 p. m. as submitted by Mr. Pandey but only throws some doubt on the complaint. In any case, the Supreme Court has held in Narayan Debnath Vs. This inquiry report therefore does not altogether falsify the complaint that the appellant shot Sanju Chowksey in Galla Mandi at Piparia at 4. 30 p. m. as submitted by Mr. Pandey but only throws some doubt on the complaint. In any case, the Supreme Court has held in Narayan Debnath Vs. State of West Bengal, AIR 1976 SC 780 , that while examining the validity of an order of detention, the Court cannot go into truth or otherwise of the allegations in the grounds of detention which have to be assumed to be true. Moreover, the order of detention was passed by the District Magistrate, Hoshangabad on 5-1-2008, and the inquiry report of the Office of the Additional Superintendent of Police, District Hoshangabad, dated 31-3-2008, could not have been placed before the District Magistrate when he passed the order of detention and hence the order of detention cannot be said to be vitiated for non-application of mind as contended by Mr. Pandey. ( 14. ) IN the result, we hold that the order of detention is not vitiated and the appeal has no merits. The appeal is dismissed.