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Madhya Pradesh High Court · body

2012 DIGILAW 1078 (MP)

Kashmir Jat v. State of M. P.

2012-10-19

G.D.SAXENA, S.K.GANGELE

body2012
ORDER Saxena, J. -- 1. By moving this writ petition under Article 226 of the Constitution of India, a challenge has been made to the order dated 5th April 2012 passed by the Deputy Secretary Home Department to the State of M.P. Bhopal under section 12(1) of the National Security Act, 1980 whereunder the order passed by the District Magistrate Guna has been made absolute with extension of period of detention as mentioned in the order itself. 2. The facts leading to the case may be summed up as under : The Supreintendent of Police Guna by his letter dated 8th February 2012 addressing to the District Magistrate Guna informed that petitioner Kashmir Jat, son of Lalaram Jat, aged 42 years, resident of village Richora, P.S. Cantt. Guna had a chequered history since last 1991 and he was involved in several criminal activities. He was absconded for a considerable period and thereafter was arrested and is confined to jail. The activities of the petitioner adversely affect the community of the society at large. Despite several preventive measurements under law, the activities of the petitioner could not be controlled. Therefore, it was proposed to pass the preventive detention order under section 3(2) of the Act against the petitioner. As per list annexed with the report by the S.P., the criminal history about nineteen cases has been shown against the accused-petitioner. In this view of the matter, the prayer made by the police was allowed and the detention order was passed by the District Magistrate, Guna. 3. The learned counsel appearing on behalf of the petitioner contended that the provisions contained in the Act, do not mean to avail the same in a casual manner. It is submitted that the provisions of section 3 of the Act can be invoked only on satisfying the grounds mentioned therein. Mere involvement in several criminal cases of a person can in no manner suggest to exercise such powers unless the same fulfills the requirements satisfying the grounds mentioned in section 3 of the Act. It is submitted that the provisions of section 3 of the Act can be invoked only on satisfying the grounds mentioned therein. Mere involvement in several criminal cases of a person can in no manner suggest to exercise such powers unless the same fulfills the requirements satisfying the grounds mentioned in section 3 of the Act. It is submitted that the detention order dated 16th February, 2012 passed by the District Magistrate under section 3(2) of the Act as well as the order dated 5th April 2012 passed by the Deputy Secretary (Home), State of M.P. under section 12(1) of the Act, marked as Annexure P-1 on behalf of the State Government, did not show to have considered in their true perspective of the provisions as contemplated in section 3(2) of the Act. It is submitted that the petitioner is not involved either directly or indirectly in any of the criminal activities against the Nation or Public at large. Therefore, it is prayed that an appropriate writ/order/directions may be issued to quash the order Annexure P-1 dated 5th April, 2012 passed by the State which is against the provisions of the Act and the authorities may be directed to release the petitioner from the detention. In support of her submissions aforesaid, learned counsel placed reliance on the decisions in the cases of Smt. Victoria Farnandes v. Lalman Sawma and others [ AIR 1992 SC 687 ], and Rameshwar Shaw v. District Magistrate Burdwan and others [ AIR 1964 SC 334 ]. 4. Per contra, learned Deputy Advocate General appearing on behalf of the respondents-State by submitting reply contended that the detention order passed by the District Magistrate Guna is in accordance with law, which was passed on the basis of the material made available to the detaining authority by the Superintendent of Police Guna. It is further submitted that the petitioner was involved in several criminal activities including the offence of heinous crime like a murder, dacoity etc. Several criminal cases are pending or decided by the criminal Courts. By criminal activities, the petitioner terrified the vicinity vis-a-vis public at large. No one dared to come forward to prevent/check the criminal acts of the petitioner. The District Magistrate after recording the evidence and on perusal of the criminal antecedents of the petitioner passed the appropriate order of his detention under the National Securities Act, 1980. By criminal activities, the petitioner terrified the vicinity vis-a-vis public at large. No one dared to come forward to prevent/check the criminal acts of the petitioner. The District Magistrate after recording the evidence and on perusal of the criminal antecedents of the petitioner passed the appropriate order of his detention under the National Securities Act, 1980. The copies of the evidence recorded by the District Magistrate along with copies of all documents filed by the Superintendent of Police and the order of detention were served upon the petitioner in jail because he was detained in custody in relating to some other offences prior to passing of such an order. Consequently, he submitted the representation in this context to the Advisory Board. The Advisory Board after perusing the evidence and affording an opportunity of hearing to the petitioner issued the action report and placed the matter before the State Government. The Deputy Secretary Home Department of State by passing the confirmation order dated 5th April 2012 upheld the order dated 16th February 2012 passed by the District Magistrate with further extension of detention period of the accused upto 16th February 2012. Therefore, it is requested that the order dated 16th February 2012 passed by District Magistrate Guna as well as the order dated 5th April 2012 passed by the Deputy Secretary Home Department of the State be maintained and the petition may be dismissed in view of the aforesaid facts and circumstances. 5. Heard the learned counsel appearing for the petitioner and the learned Deputy Advocate General appearing for the respondents-State. Also perused the relevant laws applicable to the case along with the documents annexed with the petition. 6. Whether a person who is in jail can be detained under detention law is a subject-matter of consideration in this petition. 7. Before considering the sweep and effect of the relevant provisions contemplated under the Act, it would be profitable to reproduce the same with its explanation : “3. Power to make orders detaining certain person. 6. Whether a person who is in jail can be detained under detention law is a subject-matter of consideration in this petition. 7. Before considering the sweep and effect of the relevant provisions contemplated under the Act, it would be profitable to reproduce the same with its explanation : “3. Power to make orders detaining certain person. -- (1) The Central Government or the State Government may,-- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or (b) if satisfied with respect of any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation : For the purposes of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub- section : Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government : Provided that where under section 8 the grounds of detention are communicated by the officer making an order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words “twelve days”, the words “fifteen days” shall be substituted. (5) When any order is made or approved by the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 8. (5) When any order is made or approved by the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 8. The ingredients of section 3 of the National Security Act, 1980 are as follows : “The Central Government or the State Government may, -- (I)(a) if satisfied with respect to any person (i) that with a view to preventing him prejudicial to the defence of India or of the security of India, (b) the relations of India with foreign powers, (ii) the relations of India with foreign powers, (iii) with respect of any foreigner that with a view to regulating his continued presence in India (a) that with a view to regulating his continued presence in India (b) with a view to making arrangements for his expulsion from India, it is necessary so to do, (c) make an order directing that such person be detained. (II) if satisfied with respect to any person (i) with a view to preventing him from acting in any manner prejudicial to the security of the State (ii) from acting in any manner prejudicial to the maintenance of public order (iii) from acting in any manner prejudicial to the maintenance of supplies and services essential to the community (iv) it is necessary so to do, make an order directing that such person be detained. (III) if, having regard to the circumstances prevailing (II) likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, (III) the State Government is satisfied that (I) it is necessary so to do, it may, by order in writing direct, that during such period as may be specified in the order, (ii) such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section; (iii) provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, (iv) exceed three months, (v) but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. 9. Now, we are going to deal with the matter in the light of the decisions on the point in issue. 10. In the State of U.P. v. Sanjai Pratap Gupta [ AIR 2004 SC 4703 ], the Hon’ble apex Court held : “7. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression ‘law and order’ is wider in scope inasmuch as contravention of law always affects order. ‘public order’ has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘law and order’ and ‘public order’ is one of the 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 could raise problem of law and order only. 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 could raise 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 to 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. 8. xxx xxx xxx 9. “Public order” is synonymous with public safety and tranquility: ‘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 drunkards 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 ground 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 and at the other the most serious and cataclysmic happenings. 10. ‘Public order’, ‘law and order’ and the ‘security of the State’ fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. {See : Kishori Mohan Bera v. The State of West Bengal [ (1972)3 SCC 845 ]; Pushkar Mukherjee v. State of West Bengal [ 1969(2) SCR 635 ]; Arun Ghosh v. State of West Bengal [ 1970(3) SCR 288 ]; Nagendra Nath Mondal v. State of West Bengal [ (1972)1 SCC 498 ]}. 11. The distinction between ‘law and order’ and ‘public order’ has been pointed out succinctly in Arun Ghosh’s case (supra). According to that decision the true 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 upon society’. The Court pointed out that ‘the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different’. 12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. 13. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. 13. The two concepts have well defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder.... 15. ... A bare perusal of the quoted portion from the grounds of detention makes it clear that two aspects i.e. one relating to criminal background of antecedents and other relating to a particular incident were treated separately. This becomes apparently clear because the detaining authority in the backdrop of the criminal antecedents referred to the particular act. Therefore, one was the general background and the other was the particular incident. They are clearly separable. 18. The residual question to be considered is whether the detenu has to go back to detention, after it is held that the judgment of the High Court is not sustainable. There cannot be any strait-jacket formula for dealing with such cases. It would depend upon circumstances of each case. For determining the question as to whether the detenu has to go back to detention, the factual position has to be analysed. It has to be seen whether the effect of the previous acts was continuing or likely to recur. When background facts of present case are considered it is evident that the time gap is not very wide and for considerable length of time the matter is pending in this Court and the detenu had taken nearly three months to file his counter to the special leave petition filed. Judged from these angles it is clear that the live link is not snapped and the apprehension of the detaining authority about the detenu’s prejudicial activities cannot be faulted. The impugned judgment of the High Court is set aside. The detenu shall surrender forthwith for serving the remainder or the period of detention. The appeal is allowed to the aforesaid extent.” 11. The impugned judgment of the High Court is set aside. The detenu shall surrender forthwith for serving the remainder or the period of detention. The appeal is allowed to the aforesaid extent.” 11. The principle on which the decisions proceed is that ordinarily an order of detention cannot be passed against a person who is already in jail as the detaining authority could not legitimately reach the satisfaction about the probability of his indulging in prejudicial activity in future. The authority has to be satisfied that the detention of the person is necessary in order to prevent him from acting in any prejudicial manner as contemplated by the relevant provisions of the detention law. In a case where, for instance, a person is undergoing sentence for ten years on his conviction in a criminal trial, it would be impossible for the detaining authority to reach the subjective satisfaction that on his release after ten years, he would indulge in the prejudicial activity, and the detaining authority would not be in a position to reach such a satisfaction. It would be a case of mala fide exercise of power or non-application of mind. It is in this context that the decision of Hon’ble the Supreme Court in Rameshwar’s case, or in Smt. Victoria Farnandes case, or subsequent decision to which a reference is made by us, will have to be read. In each of the decisions of the Hon’ble Supreme Court, which has been relied on by the learned counsel, it has been clearly observed that in law, the relevant provisions of the Detention Act do not preclude the authority from passing an order of detention against a person while he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. In this connection, it would be useful to refer to the observations in para 12 of the judgment in Rameshwar’s case (supra), which run as under : “As abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in, detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.” 12. This has been illustrated in para 12 by taking instances of a case where a person is undergoing a sentence for a long period, say for ten years, and another person who is undergoing imprisonment for a short period, say for a month or two. In the first category of cases, one may legitimately argue that the order of detention is bad and could not have been passed, while in the latter category of cases where the imprisonment which the detenu is undergoing is for a short duration, the order of detention can be upheld as the authority passing the order of detention may bona fide be satisfied having regard to the antecedents of the person that the detention of that person will be necessary after his release from jail, and in such cases, he could make a valid order of detention during the period of sentence itself. It is for these reasons that it has been observed at the end of para 12 : “12. Therefore, we are satisfied, that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.” 13. Further reference may be made to a decision of Hon’ble Supreme Court in the case of Masood Alam v. Union of India [ AIR 1973 SC 897 ]. Further reference may be made to a decision of Hon’ble Supreme Court in the case of Masood Alam v. Union of India [ AIR 1973 SC 897 ]. Following the earlier judgment in Rameshwar’s case, the apex Court held that there is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if free, the person concerned is likely to indulge in activities prejudicial to the security of the State or maintenance of public order. 14. In all these decisions, the order of detention passed under the relevant detention law was challenged. The principal question that arises for consideration of this Court in the case of an order of detention when it is challenged is whether the grounds on which the authority has reached the subjective satisfaction of the necessity of detention are such that any reasonable person can possibly arrive at such satisfaction. The subjective satisfaction is related to the satisfaction of the detaining authority about the future behaviour of the detenu based on his past conduct. The proximity of the past acts with the possible future behaviour is one of the relevant factors. In the case of a person who has been convicted and is undergoing a sentence of a long duration say of five or ten years, it cannot be said that the detaining authority could not predicate about his behaviour or the prejudicial activities after his release after a number of years. On the other hand, in the case of an accused person who has been sentenced for a short duration and is likely to be released soon, such a subjective satisfaction may be reached. Thus, the basis of the detention order in each of the cases is the subjective satisfaction that can be validly reached by the detaining authority. Even otherwise, the Hon’ble Supreme Court has consistently held that in law there is no prohibition against passing an order of detention against a person who is in jail, although the validity or legality of the exercise of the power would depend on the facts of each case. 15. As a sequel of the aforesaid discussions, there is no merit in this petition and the same is liable to be and stands hereby dismissed. 15. As a sequel of the aforesaid discussions, there is no merit in this petition and the same is liable to be and stands hereby dismissed. However, keeping in view the provisions contemplated in section 15 of the Act, the petitioner is left with liberty to submit the representation to the State Government for his release on temporary bail, which on being filed shall be considered, after hearing him in accordance with law.