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Madhya Pradesh High Court · body

2012 DIGILAW 918 (MP)

Haji Abdul Rajjak v. State of M. P.

2012-09-21

ALOK ARADHE, SUSHIL HARKAULI

body2012
Judgment Alok Aradhe, J.:- In this writ petition, the petitioner has challenged the validity of the order dated 17-3-2012 passed by the District Magistrate by which petitioner has been detained under Section 3 (2) of the National Security Act, 1980 (for short 'the Act'). 2. As per the case setforth by the respondents in the return, the Superintendent of Police, vide memorandum, dated 14-3-2012 informed the District Magistrate, Jabalpur about the criminal activities and involvement of the petitioner in several criminal cases since 1991, which are prejudicial to the public order. The District Magistrate by the aforesaid memorandum was informed that the petitioner is a habitual offender and has formed a gang, which is in possession of dangerous weapons and explosives. The petitioner alongwith his gang is repeatedly committing serious crimes and that the petitioner has made criminal activities, means of his livelihood and has earned crores of rupees and has started using the money to eliminate other criminals in the city in order to create monopoly of his gang in the criminal activities in city. It was also stated in the memorandum that on account of criminal activities of the petitioner, there is an atmosphere of fear in the locality. The petitioner, with the help of his son and gang formed by him, tried to disturb the communal harmony of the city and that the petitioner is having history of committing serious crimes, including murder, gang war and to provoke riots between the two communities. Due to the activities of petitioner, there is an atmosphere of terror in the city and no victim comes forward, even to lodge a report, against the petitioner in the Police Station. The memorandum further states that on earlier occasions also, preventive actions were taken against the petitioner under different Laws but no improvement was observed so far as the involvement of the petitioner in criminal activities is concerned. 3. It has further been stated in the return that in the criminal cases, where the petitioner was acquitted, it can easily be seen that witnesses turned hostile in the Court of Law as no witness dared to depose anything against the petitioner and the petitioner got acquitted even in the case in which offences were committed by him in broad day light and at public place and in full public view. In the return, it has further been averred that the petitioner has formed a gang and the police has prepared the record of the criminal activities in which the gang formed by the petitioner is involved. The aforesaid confidential report of the Police Department was also placed before the District Magistrate. It has further been averred that though the son of the petitioner, against whom warrant of arrest was issued on 16-8-2007 in compliance of the order passed under Section 3 (2) of the National Security. Act, could not be executed as he was under the unlawful protection of the petitioner. As soon as the 'petitioner was arrested, his son was also arrested by the Police within a period of three days. 4. In the additional return, which has been filed on behalf of the respondents, it is stated that the Police Authorities have collected the details of offences committed by the gang formed by petitioner, which show that more than 103 crimes have been committed by said gang, not only in Jabalpur District, but even in the surrounding districts as well. It has further been averred that the preventive proceedings under Sections 107 and 116 of the Code of Criminal Procedure were initiated against the petitioner in the year 2010, as there was possibility that the petitioner may commit breach of peace or disturb the public tranquility, because on 24-9-2010, the judgment in respect of Babri Masjid case was to be delivered by Allahabad High Court. Similarly, in 2012 a complaint was received that the petitioner and one Rais Wali were trying to provoke the feelings of particular community in Khuda Baksha Masjid situated in Omti and, therefore, proceedings under Sections 107 and 116 of the Code of Criminal Procedure were initiated against the petitioner. The petitioner was asked to show cause as to why he should not be required to execute the bond for keeping peace. 5. In compliance of the order dated 18-5-2012, learned Additional Advocate General has produced the record for our perusal. However, in the case of Kirit Kumar Chaman Lal Kundaliya Vs. Union of India and others, (1981) 2 SCC 436 , it has been held by the Supreme Court that it is not open to the Court to wade through the confidential file of the Government in order to fish out a ground for detention against the detenue. Similarly, in Ramveer Jatav Vs. Union of India and others, (1981) 2 SCC 436 , it has been held by the Supreme Court that it is not open to the Court to wade through the confidential file of the Government in order to fish out a ground for detention against the detenue. Similarly, in Ramveer Jatav Vs. State of U.P. and others, (1986) 4 SCC 762 , it has been held that if the material on which reliance is placed does not find place in the grounds of detention, the same cannot be relied upon. It has further been held that the Detaining Authority cannot be allowed to supplement/add to the grounds of detention, which have been mentioned in the order of detention. In the light of the aforesaid decisions of the Supreme Court, we have carefully perused the grounds of detention. The facts, which have been referred to in the preceding paragraphs and have been mentioned in the return as well as additional return, do not find place in the grounds of detention, which have been supplied to the petitioner. Therefore, the same cannot be looked into. Similarly, the record, which has been produced before us in compliance of the order of this Court also cannot be looked into. For yet another reason we cannot look into the records, as the copies of the same have not been supplied to the Counsel for the petitioner. 6. Learned Counsel for the petitioner while inviting the attention of this Court to the grounds of detention submitted that out of nine cases mentioned in the grounds of detention the petitioner has been acquitted in four cases, namely, the cases mentioned at Sr. Nos. 1, 2, 3 and 6. So far as the cases referred to in the grounds of detention at Sr. Nos. 4 and 8 are concerned, no proceedings were initiated against the petitioner. Similarly, in the grounds of detention the crime, which is referred to at Sr. No. 7, in respect thereof the proceedings under Sections 107 and 116, Cr.PC were initiated against the petitioner in the year 2007. Nos. 4 and 8 are concerned, no proceedings were initiated against the petitioner. Similarly, in the grounds of detention the crime, which is referred to at Sr. No. 7, in respect thereof the proceedings under Sections 107 and 116, Cr.PC were initiated against the petitioner in the year 2007. With regard to ground No. 9, it is submitted that warrant of arrest was issued against the petitioner's son on 16-8-2007 and if the Police Authority had reason to believe that the petitioner was giving unlawful protection to his son, the proceedings under the provisions of Code of Criminal Procedure could have been initiated against the petitioner. It is further submitted that with reference to case mentioned at ground No. 5, that though the petitioner has been convicted for offences punishable under Sections 147, 148, 326/149 and 324/149 for a period of two years, against the aforesaid order an appeal is pending before the High Court. It was further submitted that from the allegations levelled in the First Information Report as well as in the judgment it is apparent that the aforesaid case is one of "law and order" and not of "public order". The instance referred to in ground No. 5 of the order of detention took place over a dispute pertaining to contract and there is no material to justify the order of detention, which has been passed against the petitioner. It is also submitted that the effect of acquittal of the petitioner in four cases has not been considered by the Detaining Authority and, therefore, the order of detention is vitiated in law. In support of the aforesaid proposition, the learned Senior Counsel has placed reliance on the decision of Supreme Court in Dharamdas Shamlal Agarwal Vs. Police Commissioner and another, (1989) 2 SCC 370 , the Division Bench decision of this Court reported in Tahsildar Singh Vs. State of M.P. and others, 2010 (2) MPLJ 59 and Geeta Salm Vs. District Magistrate, Shahdol and another, 2000(4) M.P.H.T. 482 (DB) = 2000 (2) MPLJ 618, and Full Bench decision of Allahabad High Court reported in AIR 1987 Allahabad 169. It is further submitted that there is total absence of subjective satisfaction on the part of the Detaining Authority and the order of detention suffers from non-application of mind. 7. District Magistrate, Shahdol and another, 2000(4) M.P.H.T. 482 (DB) = 2000 (2) MPLJ 618, and Full Bench decision of Allahabad High Court reported in AIR 1987 Allahabad 169. It is further submitted that there is total absence of subjective satisfaction on the part of the Detaining Authority and the order of detention suffers from non-application of mind. 7. On the other hand, learned Additional Advocate General while opposing the submissions made on behalf of the petitioner submitted that even a single act, affecting the public order, can also be considered as sufficient ground for passing an order of detention. It has further been submitted that the instance, which is referred to in the ground No. 5 of order of detention took place in the broad day of light in public place and, therefore, the same affected the public order. In support of his submissions, learned Additional Advocate General has relied upon the decisions of Supreme Court in Narayan Debnath Vs. State of West Bengal, AIR 1976 SC 780 , State of U. P. and another Vs. Sanjai Pratap Gupta, AIR 2004 SC 4703 , and Mukesh Tikaji Bora Vs. Union of India and others, (2007) 9 SCC 28 . 8. We have considered the respective submissions made by learned Counsel for the parties. The crucial issue, which arises for consideration is whether the activities of the detenue mentioned in the order of detention were prejudicial to the public order. [See : Pushkur Mukherjee Vs. Stare of W.B., AIR 1970 SC 852 , A run Gosh Vs. State of W.B., AIR 1970 SC 1228 , Kishori Mohan Koara Vs. Slate of W.B., AIR 1972 SC 922 , Babul Mitra alias Anil Mitra Vs. State of W.B., AIR 1973 SC 197 , and Milan Banik Vs. State of W.B., AIR 1974 SC 1214 . It is well settled that a single act can also be sufficient for holding that public order was affected. What is required to be seen is the effect of the act on even tempo of life and extent of its reach upon the society and its impact. [See : Sanjai Pratap Gupta (supra)). 9. Now, we may advert to the grounds of detention. Admittedly, out of nine grounds, in respect of four criminal cases referred to above, at Sr. Nos. 1, 2, 3 and 6, the petitioner has been acquitted. [See : Sanjai Pratap Gupta (supra)). 9. Now, we may advert to the grounds of detention. Admittedly, out of nine grounds, in respect of four criminal cases referred to above, at Sr. Nos. 1, 2, 3 and 6, the petitioner has been acquitted. Similarly, in respect of cases mentioned at ground Nos. 4 and 8, no proceedings have been initiated against the petitioner. In respect of ground No. 7, the proceedings under Sections 107 and 116 of the Code of Criminal Procedure were initiated against the petitioner in the year 2007. In respect of grounds, which are mentioned at Sr. No. 9 the warrant of arrest against the son of the petitioner has been issued approximately five years ago. So far as the ground mentioned at Sr. No. 5 is concerned, the same indicate that on 6-2-1996 at about 11.30 a.m. in morning at Bus Stand the petitioner along with his companions assaulted one Mehboob Ali in full public view. The facts stated in the MR reveal that at about 11.15 a.m. in the morning at Bus Stand the petitioner alongwith other companions reached the Bus Stand in Maruti Car. The petitioner took out a large hammer and assaulted Mehboob Ali. His companions assaulted Mehboob Ali by rod. The petitioner's companions assaulted one Chintoo and Rana by a sword and the rod. Accordingly, offences under Sections 147, 148, 149, 294, 307 and 324 of the Indian Penal Code were registered against the petitioner and his companions. The petitioner was convicted in the aforesaid case for offences under Sections 148, 149, 324/149, 326/149 of the Indian Penal Code and was sentenced to rigorous imprisonment for a period of two years. From the judgment as well as the First Information Report, it is apparent that incident had taken place at public place, i.e. Bus Stand in a broad day light. The petitioner accompanied by the members of his gang reached the public place, i.e., the Bus Stand, which is a crowded locality and brutally assaulted one Mehboob Ali in full public view. The aforesaid action of the petitioner had disturbed the even tempo of life. Therefore, the act of the petitioner had affected the public order. In view of the Section 5-A of the Act as well as decision of Supreme Court in Sanjai Pratap Gupta (supra), the same is sufficient to justify the order of detention. 10. The aforesaid action of the petitioner had disturbed the even tempo of life. Therefore, the act of the petitioner had affected the public order. In view of the Section 5-A of the Act as well as decision of Supreme Court in Sanjai Pratap Gupta (supra), the same is sufficient to justify the order of detention. 10. Before proceeding further, it would appropriate to notice Section 5-A of the National Security Act, which reads as under :- "5-A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 under Section 3, which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or ground and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds." From the perusal of above quoted Section 5-A of the Act, it is apparent that it has been incorporated to take care of the situation where one or more of the grounds can be separated from other grounds for justifying the "order of detention. 11. After having noticed Section 5-A of the Act, we may deal with the contention of the learned Counsel for the petitioner that since the factum of acquittal of the petitioner in some cases has not been considered by the Detaining Authority, therefore, the order of detention is vitiated in law and the same suffers from the vice of non-application of mind. The Constitution Bench of the Supreme Court considered the scope of Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"), which is pari materia with Section 5-A of the Act. It was held in the aforesaid case that where the order of detention is based on more than one ground by a legal fiction, it would be deemed that there are as many orders of detention as there are grounds which means each of such order is independent one. Section 5-A of COFEPOSA is reproduced below for the facility of reference :- "5-A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3, which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly,- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever; and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have" made the order of detention under the said sub-section (1) after being satisfied as provided in that subsection with reference to the remaining ground or grounds." 12. In view of the decision by the Constitution Bench of Supreme Court, the two Division Bench decisions relied on by learned Senior Counsel for the petitioner, namely, Dharamdas Shamlal Agarwal (supra) and Tahsildar Singh Vs. State of M.P. and others (supra), lose their significance in the facts of the case. Therefore, aforesaid contention of the learned Counsel for the petitioner cannot be accepted. 13. We are conscious of the fact that concept of preventive detention is not to punish the detenue for an act done in the past, but to prevent the person concerned in anticipation of doing an illegal activity prejudicial to public order. [See : Dropati Devi and another Vs. 13. We are conscious of the fact that concept of preventive detention is not to punish the detenue for an act done in the past, but to prevent the person concerned in anticipation of doing an illegal activity prejudicial to public order. [See : Dropati Devi and another Vs. Union of India and others, (2012) 7 SCC 499 ]. One serious act, which has the impact of affecting the public order coupled with several criminal cases pending against the petitioner, even though of minor nature, show the continuing tendency of the petitioner to affect the public order. From the continuing tendency of the petitioner to indulge himself in the act of affecting public order as well as the material available on record, i.e., grounds of detention, we are satisfied that the order of detention has been passed with a view to prevent the petitioner from indulging in any activity, which is prejudicial to public order. On this ground also, the order of detention does not call for any interference. 14. We, therefore, do not find any merit is the writ petitioner the same fails and is hereby dismissed.