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Madhya Pradesh High Court · body

2009 DIGILAW 729 (MP)

SONU DEVRE v. STATE OF M P

2009-06-25

A.K.PATNAIK, AJIT SINGH

body2009
Judgment ( 1. ) BY this petition, filed wider Article 226 of the Constitution, the petitioner has challenged his detention under section 3 (2) of the National Security act, 1980 (in short, "the Act") by the District Magistrate, Bhopal ( 2. ) THE facts in brief are these. The District Magistrate, Bhopal, by exercising powers conferred under section 3 (2) of the Act, passed ah order dated 4. 3. 2009 for the detention of petitioner in Central Jail, Bhopal. The case of petitioner was then referred to the Advisory Board which reported that,. in its opinion, there was sufficient cause for his detention. The State Government then confirmed the detention order of petitioner for a period of 12 months from the date of his detention till 3. 3. 2010. Aggrieved, the petitioner has filed the present petition praying for quashing of the order of detention. ( 3. ) THE learned counsel for petitioner mainly submitted that since the mother of petitioner, who is President of District Women Congress, has been raising voice against the illicit liquor trade and anti-social elements, the order of detention has been passed against him for political reasons at the instance of State Government which is of the rival political party. He further submitted that the detention order was not necessitated at all which would also be apparent from the grounds of detention served on the petitioner. The learned counsel relied upon the decision of Supreme Court rendered in Gulab Mehr. a Vs. State of U. P. AIR 1987 SC 2332 in support of his submissions. ( 4. ) THE learned Government Advocate, on the other hand,has justified the detention order of the petitioner. According to his submission, the grounds of detention clearly reveal that the petitioner is a habitual offender and is involved in criminal activities since 2005 and, therefore, looking to his criminal acts, particularly his involvement in illicit liquor trade and extortion of money from vegetable vendors, the order of detention under challenge had become necessary. The learned Government Advocate, in support of the detention order, has placed reliance on the decision of Supreme Court in kamlabai Vs. Commissioner of Police, Nagpur (1993) 3 SCC384. ( 5. ) IT is now well settled that there must be a live link between the grounds of criminal activities alleged by the detaining authority and the purpose of detention (See Golamhussain Vs. Commissioner of Police, Nagpur (1993) 3 SCC384. ( 5. ) IT is now well settled that there must be a live link between the grounds of criminal activities alleged by the detaining authority and the purpose of detention (See Golamhussain Vs. Commissioner of Police, Calcutta AIR 1974 SC 1336 )and this credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention (See Lakshman Khatik Vs. The State of West Bengal AIR 1974 SC 1264 ). But the Supreme Court has also observed that no mechanical test by counting the months of the interval is sound and it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. ( 6. ) THE Supreme Court also in large number of cases has held that there is a clear distinction between "law and order" and "public order" and pointed the difference between the two in the following words as summarized in Victoria fernandes Vs. Lalmal Sawma and others, AIR 1992 SC 687 : "the distinction between the areas of law and order and public order is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it would raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting public order from that concerning law and order. The question to ask is. Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on its facts. (See : Dr. The question to ask is. Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on its facts. (See : Dr. Ram Manohar lohia v. State of Bihar, (3966) 1 SCR 709 : ( AIR 1966 SC 740 ); arun Ghosh v. State of West Bengal, (1970) 3 SCR 288 : ( AIR 1970 SC 1228 ); Ram Ranjan Chatterjee v. State of West Bengal, (1975) 3 SCR 301 : ( AIR 1975 SC 609 ); Ashok Kumar v. Delhi administration, (1982) 2 SCC 403 : ( AIR 1982 SC 1143 )" ( 7. ) IN view of the above legal position, we shall now examine whether the detention order of petitioner passed under the Act was at all necessary and justified. ( 8. ) THE English translation of the grounds of detention furnished by the learned government Advocate enumerates the following offending acts of the petitioner: (1) On 25. 10. 2006 the petitioner in assembly of his friends had forcefully entered in the house of Vijay Lajiwar, S/o Sobin Lajiwar, aged 28 years, R/o H. No. 159, Priyadarshini Nagar, Bhopal, and with a common intention damaged the households, badly beaten him up and threatened him to death. This act of petitioner has created terror in the area and caused danger to the public order. (2) On 28. 9. 2005 the petitioner in assembly of his friends had forcefully entered in the house of Shri Sanjay Borkar, S/o Shri tanwa Borkar, aged 25 years, R/o H. No. 250/12, New Priyadarshini nagar, Panchsheel Nagar, Bhopal, and with a common intention damaged the households, badly beaten him up and threatened him to death. This act of petitioner has created terror in the area and caused danger to the public order. (3) On 17. 12. 2006 the petitioner in assembly of his family members, have threatened and beaten up Shri Gautam Sajve, S/o jagannath Salve, aged 31 years, R/o 51, Bangali Colony, panchsheel Nagar, Bhopal, and has caused injury by knife with the intention to kill. This act of petitioner has created terror in the area and has caused danger to public order. (4) On 21. 7. This act of petitioner has created terror in the area and has caused danger to public order. (4) On 21. 7. 2008 the petitioner in the assembly of his family members have beaten up one Ranjita Nerpar, W/o Lalit Nerpar, aged 22 years, R/o 210 Bangali Colony, Panchsheel Nagar, Bhopal, and threatened her to death by exhibiting a knife. This act of petitioner has created terror in the area and has caused danger to public order. (5) On 21. 10. 2008 information has been received in the police Station TT Nagar that the petitioner, is selling illicit country liquor in Bangali Mohalla, Panchsheel Nagar, along with his mother. Upon getting information, raid was performed but the petitioner absconded. This act of petitioner generated public annoyance. (6) On 4. 1. 2009 the petitioner threatened Akhilesh Tiwari, S/o rambabu Tiwari, aged 19 years, R/o G 15/29, North TT Nagar, bhopal, by obstructing him on the way and demanded money as a matter of extortion and for not doing so, said Akhilesh Tiwari was threatened to death. This act of petitioner has created terror in the area and has caused danger to public order. (7) On 6. 2. 2009 the petitioner demanded money as a matter of extortion from Dashrath Sharma, S/o Chhotelal Sharma, aged 41 years, R/o H. No. 483, Sewa Sadan, Bhopal, and for not doing so the petitioner used filthy language against said Dashrath Sharma with a threat to kill. This act of petitioner has created terror in the area and has caused danger to public order. (8) On 26. 2. 2009 Police Station TT Nagar has received an information that the petitioner is unauthorisedly selling illicit country liquor in Bangali Mohalla, Panchsheel Nagar. On receiving information, Police Station TT Nagar has conducted a raid and 24 half have been seized from the petitioner. This act of yours annoyed people of the area. (9) On 7. 2. 2009 the petitioner threatened vegetable sellers of panchsheel Nagar, Priyadarshini Nagar, under Police Station TT nagar by demanding money as a matter of extortion due to which terror has been created in the entire market. This act of petitioner has created terror in the area and has caused danger to public order. (10) On 24. 2. (9) On 7. 2. 2009 the petitioner threatened vegetable sellers of panchsheel Nagar, Priyadarshini Nagar, under Police Station TT nagar by demanding money as a matter of extortion due to which terror has been created in the entire market. This act of petitioner has created terror in the area and has caused danger to public order. (10) On 24. 2. 2009 an information has been received by Police station TT Nagar that Sanjay Devre, S/o Roopchand Devre, aged 24 years, R /o H. No. 494, Bangali Colony, Panchsheel Nagar, bhopal, used to extort money and vegetables from vegetable sellers of Panchsheel Nagar, Priyadarshini Nagar, due to which general public, shop owners and hawkers are terrorized. This act of petitioner has created terror in the area and caused danger to public order. ( 9. ) THE first three grounds relate to acts alleged to have been committed by the petitioner in the years 2005 and 2006. In the first two acts it is alleged that petitioner, along with his friends, forcibly entered the houses of Vijay Lajiwar and Sanjay Borkar, both situated at Panchsheel Nagar, Bhopal, where he not only beat them severely but also damaged their household property and threatened with dire consequences. Regarding the third act it is alleged that petitioner, along with his family members with an intention to kill Gautam Salve, caused an injury to him with a knife. None of these acts are said to have taken place either in a public place or in the presence of public. These acts may be offences under the Indian Penal code but cannot be held to be one which unleashed a terror wave so as to affect the even tempo of life in the locality. We are also of the view that the said acts which were allegedly committed as back as in the years 2005 and 2006 have no proximity to the impugned order of detention passed in the year 2009 and, therefore, cannot constitute the basis of detention of the petitioner for maintenance of public order. ( 10. ) ACCORDING to the fourth ground the petitioner on 21. 7. 2008, along with his family members, is said to have beaten up one Ranjita Nerpar of Panchsheel nagar, Bhopal, and also threatened her to death by wielding a knife. Again, there is no mention that the petitioner committed this act either publicly or in a public place. ( 10. ) ACCORDING to the fourth ground the petitioner on 21. 7. 2008, along with his family members, is said to have beaten up one Ranjita Nerpar of Panchsheel nagar, Bhopal, and also threatened her to death by wielding a knife. Again, there is no mention that the petitioner committed this act either publicly or in a public place. Thus, this incident also cannot be said to have affected the even tempo of life of any locality and has no nexus with the public order. ( 11. ) THE fifth and eighth grounds relate to the allegation of selling of illicit liquor by the petitioner and his mother in the Bangali Market at Panchsheel Nagar, bhopal. It is stated in the grounds that on 21. 10. 2008 when the police, on receiving information about the selling of illicit liquor by the petitioner and his mother, raided the premises, the petitioner absconded and this act of his generated public annoyance. It is further stated that on 26. 2. 2009 when the police, on receiving similar information, raided the premises 24 bottles of liquor were seized and this act of the petitioner also caused annoyance to the people of that area. The act of selling of liquor without a licence is punishable under the provisions of the Madhya pradesh Excise Act and it cannot be held to be one which has nexus with the public order. Further, it is also nowhere mentioned in the grounds that the aforesaid alleged act created any terror in the locality so as to affect its peace and tranquility. ( 12. ) ACCORDING to the sixth ground, the petitioner on 4. 1. 2009 allegedly waylaid akhilesh Tiwari and demanded money by putting him in fear of death. Likewise, the seventh ground also states that on 6. 2. 2009 the petitioner had made a demand in the same manner from Dashrath Sharma of another locality. It is nowhere alleged in the grounds that these acts were committed in the presence of public. We are of the view that the alleged acts and conduct of petitioner are nothing but display of "goondaism" by him and cannot be held to be one which unleashed a terror wave so as to affect the even tempo of life in the locality. ( 13. ) GROUNDS no. 9 and 10 relate to allegation that on 7. 2. 2009 and thereafter on 24. ( 13. ) GROUNDS no. 9 and 10 relate to allegation that on 7. 2. 2009 and thereafter on 24. 2. 2009 the petitioner, by threatening vegetable vendors of Panchsheel Nagar locality, demanded money from them and by these acts of petitioner the vegetable vendors felt terrorized. Both these acts are alleged against the petitioner pursuant to the Rojnamcha Sanha reports recorded by Head Constable Ram Gopal Sharma on 7. 2. 2009 and Assistant Sub-Inspector Udaybhan Singh Baghel on 24. 2. 2009. On perusal of the respective Rojnamcha Sanha reports, we find that they do not disclose any particulars about the shopkeepers who have been terrorized and threatened for payment of money nor the names of any of the witnesses, in whose presence the threat or terror was given and money was demanded, are mentioned. On identical facts the Supreme Court in the case of Gulab Mehra (Supra) has held the ground for detention as vague and quashed the detention order. We have no good reason to take a different view. ( 14. ) CONSIDERING the factual position in the present case and particularly the grounds of detention, we are of the view that there was no immediate necessity for detaining the petitioner under the Act in the interest of maintenance of public order. The acts alleged to have been committed by the petitioner are not such as would affect the even tempo of life of the community in the concerned areas so as to warrant an order of detention under section 3 (2) of the Act against him. The order of detention is apparently outside the purview of the Act and cannot be sustained. ( 15. ) THE learned Government Advocate submitted that in the case of Kamlabai (Supra) the Supreme Court upheld the detention order of a detenu who was found selling illicit liquor. In that case when a detenus stable was raided by the police, he caught hold of the Sub-Inspector and threatened him publicly. The Supreme court held that catching hold of a Sub-Inspector and threatening him in a public place by a detenu was an act which created panic in the locality and on this ground alone upheld the detention order. In the case at hand, there is no such allegation against the petitioner that he, in any manner, manhandled the police staff when his premises was raided. In the case at hand, there is no such allegation against the petitioner that he, in any manner, manhandled the police staff when his premises was raided. The case of Kamlabai (Supra) is, therefore, not applicable in the present case. ( 16. ) FOR the aforesaid reasons, we allow the petition and quash the impugned order of detention. The respondents are directed to immediately release the petitioner if he is not wanted in any other case. Petition allowed.