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Madhya Pradesh High Court · body

2009 DIGILAW 731 (MP)

Sanju Devre v. State of M. P.

2009-06-25

A.K.PATNAIK, AJIT SINGH

body2009
JUDGMENT : Ajit Singh, J.:- Bythis petition, filed under Article 226 of the Constitution, the petitioner haschallenged 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 an orderdated 4-3-2009 for thedetention of petitioner in Central Jail, Bhopal .The case of petitioner was then referred to the Advisory Board which reportedthat, in its opinion, there was sufficient cause for his detention. The StateGovernment then confirmed the detention order of petitioner for a period of 12months from the date of his detention till 3-3-2010 . Aggrieved, the petitioner has filed the presentpetition praying for quashing of the order of detention. 3.The learned Counsel for petitioner mainly submitted that since the mother ofpetitioner, who is President of District Women Congress, has been raising voiceagainst the illicit liquor trade and anti-social elements, the order ofdetention has been passed against him for political reasons at the instance ofState Government which is of the rival political party. He further submittedthat the detention order was not necessitated at all which would also beapparent from the grounds of detention served on the petitioner. The learnedCounsel relied upon the decision of Supreme Court rendered in Gulab Mehra 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 detentionorder of the petitioner. According to his submission, the grounds of detentionclearly reveal that the petitioner is a habitual offender and is involved incriminal activities since 2005 and, therefore, looking to his criminal acts,particularly his involvement in illicit liquor trade and extortion of moneyfrom vegetable vendors, the order of detention under challenge had becomenecessary. 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 SCC 384 . 5.It is now well settled that there must be a live link between the grounds ofcriminal activities alleged by the Detaining Authority and the purpose ofdetention ( See : Golam Hussain Vs. Commissioner of Police, Calcutta, AIR 1974 SC1336) and this credible chain is snapped if there is too long and unexplainedan interval between the offending acts and the order of detention (See : Lakshman Khatik Vs. Commissioner of Police, Calcutta, AIR 1974 SC1336) and this credible chain is snapped if there is too long and unexplainedan 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 themonths of the interval is sound and it all depends on the nature of the actsrelied on, grave and determined or less serious and corrigible, on the length ofthe gap, short or long, on the reason for the delay in taking preventiveaction, like information of participation being available only in the course ofan investigation. 6.The Supreme Court also in large number of cases has held that there is a cleardistinction between "law and order" and "public order" andpointed the different between the two in the following words as summarized inVictoria Fernandes Vs. Lalmal Sawma and others, AIR 1992 SC 687 :- "Thedistinction between the areas of 'law and order' and 'public order' is one ofdegree and extent of the reach of the act in question on society. It is thepotentiality of the act to disturb the even tempo of life of the communitywhich makes it prejudicial to the maintenance of the public order. If acontravention in its effect is confined only to a few individuals directlyinvolved as distinct from a wide spectrum of public, it would raise the problemof law and order only. It is the length, magnitude and intensity of the terrorwave unleashed by a particular eruption of disorder that helps distinguish itas an act affecting 'public order' from that concerning 'law and order'. Thequestion to ask is : Does it lead to disturbance ofthe current life of the community so as to amount to a disturbance of thepublic order or does it affect merely an individual leaving the tranquility ofthe society undisturbed ? This question has to be faced in every case on itsfacts. [ See : Dr. Ram Manohar Lohia Vs. State of Bihar, (1966) 1 SCR 709 = (AIR1966SC740) ; Ghosh Vs. State of West Bengal , (1970) 3 SCR 288 = ( AIR 1970 SC 1228 ); Ram Ranjan Chatterjee Vs. State of West Bengal , (1975) 3 SCR 301 = ( AIR 1975 SC 609 ); Ashok Kumar Vs. [ See : Dr. Ram Manohar Lohia Vs. State of Bihar, (1966) 1 SCR 709 = (AIR1966SC740) ; Ghosh Vs. State of West Bengal , (1970) 3 SCR 288 = ( AIR 1970 SC 1228 ); Ram Ranjan Chatterjee Vs. State of West Bengal , (1975) 3 SCR 301 = ( AIR 1975 SC 609 ); Ashok Kumar Vs. Delhi Administration, (1982) 2 SCC 403 = ( AIR 1982 SC 1143 )]." 7.In view of the above legal position, we shall now examine whether the detentionorder of petitioner passed under the Act was at all necessary and justified. 8.The English translation of the grounds of detention furnished by the learnedGovernment Advocate enumerates the following offending acts of the petitioner:- (1)On 25-10-2006 the petitioner in assembly of his friends had forcefully enteredin the house of Vijay Lajiwar , s/o Sobin Lajiwar , aged 28 years, r/oH. No. 159, Priyadarshini Nagar ,Bhopal, and with a common intention damaged the households, badly beaten him upand threatened him to death. This act of petitioner has created terror in thearea and caused danger to the public order. (2)On 28-9-2005 the petitioner in assembly of his friends had forcefully enteredin 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, andwith a common intention damaged the households, badly beaten him up andthreatened him to death. This act of petitioner has created terror in the areaand caused danger to the public order. (3)On 17-12-2006 the petitioner in assembly of his family members, have threatenedand beaten up Shri Gautam Salve, s/o Jagannath Salve, age 31 years, r/o 51, Bangali Colony, Panchsheel Nagar , Bhopal, and has caused injury by knife with theintention to kill. This act of petitioner has created terror in the area andhas caused danger to public order. (4)On 21-7-2008 the petitionerin 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 hascreated terror in the area and has caused danger to public order. (5)On 21-10-2008 informationhas been received in the Police Station T.T. Nagar that the petitioner is selling illicit country liquor in Bangali Mohalla , Panchsheel Nagar , along with his mother. This act of petitioner hascreated terror in the area and has caused danger to public order. (5)On 21-10-2008 informationhas been received in the Police Station T.T. 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 petitionergenerated 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 T.T. Nagar , Bhopal, by obstructing him on the way and demandedmoney as a matter of extortion and for not doing so, said Akhilesh Tiwari was threatened to death. This act ofpetitioner has created terror in the area and has caused danger to publicorder. (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 usedfilthy language against said Dashrath Sharma with athreat to kill. This act of petitioner has created terror in the area and hascaused danger to public order. (8)On 26-2-2009 , PoliceStation T.T. Nagar has received aninformation that the petitioner is unauthorisedly selling illicit country liquor in Bangali Mohalla , Panchsheel Nagar . On receiving information, Police Station, T.T. Nagar has conducted a raid and 24 half have been seizedfrom the petitioner. This Act of yours annoyed people of the area. (9)On 7-2-2009 , the petitionerthreatened vegetable sellers of Panchsheel Nagar , Priyadarshini Nagar , under Police Station T.T. Nagar by demanding money as a matter of extortion due to which terror has beencreated in the entire market. This act of petitioner has created terror in thearea and has caused danger to public order. (10)On 24-2-2009, an information has been received by Police Station T.T. 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 vegetablesfrom vegetable sellers of Panchsheel Nagar , Priyadarshini Nagar , due to which general public, shop owners and hawkersare terrorized. This act of petitioner has created terror in the area andcaused danger to public order. 9.The first three grounds relate to acts alleged to have been committed by thepetitioner in the years 2005 and 2006. This act of petitioner has created terror in the area andcaused danger to public order. 9.The first three grounds relate to acts alleged to have been committed by thepetitioner in the years 2005 and 2006. In the first two acts it is alleged thatpetitioner, along with his friends, forcibly entered the houses of Vijay Lajiwar and Sanjay Borkar , bothsituated at Panchsheel Nagar ,Bhopal, where he not only beat them severely but also damaged their householdproperty and threatened with dire consequences. Regarding the third act it isalleged that petitioner, along with his family members with an intention tokill Gautam Salve, caused an injury to him with aknife. None of these acts are said to have taken place either in a pubic placeor in the presence of public. These acts may be offences under the Indian PenalCode but cannot be held to be one which unleashed a terror wave so as to affectthe even tempo of life in the locality. We are also of the view that the saidacts which were allegedly committed as back as in the years 2005 and 2006 haveno proximity to the impugned order of detention passed in the year 2009 and,therefore, cannot constitute the basis of detention of the petitioner formaintenance of public order. 10.According to the fourth ground the petitioner on 21-7-2008, along with hisfamily members, is said to have beaten up one Ranjita Nerpar of Panchsheel Nagar,"Bhopal , and also threatened her to death bywielding a knife. Again, there is no mention that the petitioner committed thisact either publicly or in a public place. Thus, this incident also cannot besaid to have affected the even tempo of life of any locality and has no nexuswith the public order. 11.The fifth and eighth grounds relate to the allegation of selling of illicitliquor by the petitioner and his mother in the Bangali Market at Panchsheel Nagar , Bhopal . It is stated in the groundsthat on 21-10-2008 when the police, on receiving information about the sellingof illicit liquor by the petitioner and his mother, raided the premises, thepetitioner absconded and this act of his generated public annoyance. It isfurther stated that on 26-2-2009 when the police, on receiving similarinformation, raided the premises 24 bottles of liquor were seized and this actof the petitioner also caused annoyance to the people of that area. It isfurther stated that on 26-2-2009 when the police, on receiving similarinformation, raided the premises 24 bottles of liquor were seized and this actof the petitioner also caused annoyance to the people of that area. The act ofselling of liquor without a licence is punishableunder the provisions of the Madhya Pradesh Excise Act it cannot be held to beone which has nexus with the public order. Further, it is also nowherementioned in the grounds that the aforesaid alleged act created any terror inthe 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 demandedmoney by putting him in fear of death. Likewise, the seventh ground also statesthat on 6-2-2009 the petitioner had made a demand in the same manner from Dashrath Sharma of another locality. It is nowhere allegedin the grounds that these acts were committed in the presence of public. We areof the view that the alleged acts and conduct of petitioner are nothing butdisplay of " goondaism " by him and cannot beheld to be one which unleashed a terror wave so as to affect the even tempo oflife in the locality. 13.Ground Nos. 9 and 10 relate to allegation that on 7-2-2009 and thereafter on24-2-2009 the petitioner, by threatening vegetable vendors of Panchsheel Nagar locality,demanded money from them and by these acts of petitioner the vegetable vendorsfelt terrorized. Both these acts are alleged against the petitioner pursuant tothe Rojnamcha Sanha reportsrecorded by Head Constable Ram Gopal Sharma on7-2-2009 and Assistant Sub-Inspector Udaybhan Singh Baghel on 24-2-2009. On perusal of the respective Rojnamcha Sanha reports, we findthat they do not disclose any particulars about the shopkeepers who have beenterrorized and threatened for payment of money nor the names of any of thewitnesses, in whose presence the threat or terror was given and money wasdemanded, are mentioned. On identical facts the Supreme Court in the case of Gulab Mehra (supra), has held theground for detention as vague and quashed the detention order. We have no goodreason to take a different view. 14.Considering the factual position in the present case and particularly thegrounds of detention, we are of the view that there was no immediate necessityfor detaining the petitioner under the Act in the interest of maintenance ofpublic order. We have no goodreason to take a different view. 14.Considering the factual position in the present case and particularly thegrounds of detention, we are of the view that there was no immediate necessityfor detaining the petitioner under the Act in the interest of maintenance ofpublic order. The acts alleged to have been committed by the petitioner are notsuch as would affect the even tempo of life of the community in the concernedareas so as to warrant an order of detention under Section 3 (2) of the Actagainst him. The order of detention is apparently outside the purview of theAct and cannot be sustained. 15.The learned Government Advocate submitted that in the case of Kamlabai (supra), the Supreme Court upheld the detentionorder of a detenu who was found selling illicitliquor. In that case, when a detenu's stable wasraided by the police, he caught hold of the Sub-Inspector and threatened himpublicly. The Supreme Court held that catching hold of a Sub-Inspector andthreatening, him in a public place by a detenue wasan act which created panic in the locality and on this ground alone upheld thedetention order. In the case at hand, there is no such allegation against thepetitioner 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 orderof detention. The respondents are directed to immediately release thepetitioner if safe is not wanted in any other case.