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2014 DIGILAW 451 (MP)

Dhanwan v. State of M. P.

2014-04-23

D.RATHI, S.K.GANGELE

body2014
Judgment: B.D. Rathi, J. 1. By means of this petition preferred under Article 226/227 of the Constitution of India, the petitioner, who is none else but the detenu, has impugned the order dated 20th September, 2013 marked as Annexure P-2, passed by the Under Secretary Govt. of M.P., Home Department, Bhopal under Section 12(1) of the National Security Act, 1980 by confirming the order dated 1st August, 2013 (Annexure P-1) passed by the District Magistrate, Guna for keeping the petitioner in detention for a period of one year from the date the petitioner is taken into custody, i.e., till 1-8-14. The facts leading to the case may be summed up as under:-- On receiving the report from the Superintendent of Police, Guna vide Annexure P-3, dated 30-7-13 duly annexed with the list of criminal backgrounds and considering the same, the District Magistrate on 1st August, 2013 passed an order of detention in regard to the petitioner herein, in exercise of powers conferred under Section 3(2) of the National Security Act, 1980. The grounds for detention were contained in the order dated 1st August, 2013, which stands affirmed under the order assailed before this Court, hence, this petition. 2. In this petition before us, learned Counsel for the petitioner urged that while submitting report to the District Magistrate, no such material was placed to establish the grounds for passing a detention order against the petitioner. It is further submitted by the Counsel that only list of the crimes was attached with the report on the basis of which such an order was passed. It is pointed out by the Counsel that out of eleven cases registered against the petitioner in 6-7 matters he has been acquitted by the Court Competent and the remaining cases are not of such nature, which would involve the petitioner either directly or indirectly in any of the criminal activities against the Nation or Public at large. Apart that at the time of passing the order complete record was not made available. Therefore, it shows that the order of confirmation was passed by the authority without application of mind. Hence, on the aforesaid premised submissions, it is prayed that by accepting the petition an appropriate writ/order/directions be issued to quash both the orders assailed herein being passed against settled principles of law and the authorities concerned be directed to release the petitioner forthwith from the detention. 3. Hence, on the aforesaid premised submissions, it is prayed that by accepting the petition an appropriate writ/order/directions be issued to quash both the orders assailed herein being passed against settled principles of law and the authorities concerned be directed to release the petitioner forthwith from the detention. 3. Opposing the submissions put forth by the learned Counsel for the petitioner, by filing the return it is submitted by the learned Dy. Advocate General appearing on behalf of the State that at the time of issuing the order of detention against the petitioner, detailed report was submitted by the concerned S.P. and the District Magistrate, after due consideration on the materials and after holding necessary inquiry and satisfying with the materials placed before him passed the detention order. It is also contended that a notice under Section 8 of the Act was issued to the detenu after informing the grounds of his detention alongwith the list of registered cases so as to enable him to make a representation before the Advisory Board. After serving upon him the notice, a detailed representation was submitted by the detenu through proper channel before the Advisory Board. The Advisory Board, after due consideration of the representation submitted by the detenu and the materials made available by the District Magistrate, forwarded its report to the State Govt. The State Govt., on consideration of the report submitted by the Advisory Board passed the confirmation order against the detenu by confirming his detention for a period of one year from the date of his taking into custody. It is, thus, prayed by the learned Deputy Advocate General that both orders under challenge are passed on valid grounds and facts. Accordingly, it is prayed that the petition be dismissed. 4. Having regard to the arguments advanced by the learned Counsel for the parties, entire record and the material have been perused by us. 5. At this stage, it would be profitable to reproduce Section 3 of the National Security Act, 1980 (for short "the Act"). The same runs as is under:-- 3. 4. Having regard to the arguments advanced by the learned Counsel for the parties, entire record and the material have been perused by us. 5. At this stage, it would be profitable to reproduce Section 3 of the National Security Act, 1980 (for short "the Act"). The same runs as is under:-- 3. Power to make orders detaining certain persons.--(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. 6. Bare reading of the aforementioned provision makes it clear that until and unless Central Govt. or the State Govt. is satisfied with respect to ingredients of Section 3 of the Act, no order can be passed under Section 3(2) of the Act. 7. In this case, the impugned order was passed by the learned District Magistrate only on the basis of the report filed by the S.P., Guna dated 30-7-13 (Annexure P-3). Along with this report, list of eleven criminal cases was also produced before the District Magistrate. In this list, number of eleven crimes were mentioned since beginning from 2005 to 2013. But, on perusal of these documents, it is clear that in the instant case, there was no other material to support the ground raised by the Superintendent of Police in his report. In this list, number of eleven crimes were mentioned since beginning from 2005 to 2013. But, on perusal of these documents, it is clear that in the instant case, there was no other material to support the ground raised by the Superintendent of Police in his report. Only copies of crime registers have been enclosed, however, FIRs or any other material documents have not been sent to the Detaining Authority alongwith the report by the concerned Superintendent of Police. The list of crime numbers is not sufficient and the Detaining Authority could not form an opinion regarding detention of the petitioner on the basis thereof. In the case of Rahimanbi vs. District Magistrate, Jabalpur and others, 1995 JLJ 545 , it was held by this Court that:-- We fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against the detenu. We also fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations, which contained in the First Information Report....... (Para. 12) In this case also, there is no such material to support the ground that activity of the petitioner was prejudicial to maintenance of the public order. 8. Entry of Crime No. 502/2010 registered against the petitioner was also relied upon by the District Magistrate, but on perusal of this entry in crime register, we do not find place the name of the present petitioner, i.e., Dhanwan in this crime register though in typed copy of the document name of petitioner has been mentioned in Column No. 5. This itself shows that mind was not applied by the District Magistrate while passing the impugned order. 9. Apart that, on perusal of the list of crimes attached by the S.P., Guna, alongwith his report it is clear that the detention order was passed on the basis of Crime Nos. 210/2005, 2/2006, 19/2006, 410/2006, 303/2007, 167/2009 and 502/2010. These seven crimes were registered more than two years prior to passing of the impugned order dated 1-8-2013. These old offence, hence, in our opinion, could not be taken into consideration in passing the impugned order as held in the case of Deepak s/o. Radheshyam Purohit vs. State of M.P. and others, 2013 (3) M.P.H.T. 534 : 2013 (1) MPLJ (Cri.) 565. 10. These old offence, hence, in our opinion, could not be taken into consideration in passing the impugned order as held in the case of Deepak s/o. Radheshyam Purohit vs. State of M.P. and others, 2013 (3) M.P.H.T. 534 : 2013 (1) MPLJ (Cri.) 565. 10. It is further noticed that out of 11 crimes, nine criminal cases were registered against the petitioner and remaining two crime numbers, i.e., Crime Nos. 65/2013 and 167/2013 were registered for the offences punishable under Sections 307, 341, 294, 506B of IPC read with Sections 25 and 27 of the Arms Act and for offences punishable under Sections 307, 294, 506B, 147, 148 and 146 of IPC read with Sections 25 and 27 of the Arms Act respectively, but no details of such crime or narration of facts of the incident whatsoever were given in the list and moreover copy of the FIR was also not sent to the District Magistrate for consideration. Therefore, it cannot be held that the crimes registered against the petitioner were of such a nature to constitute that activities of the detenu were prejudicial to the maintenance of public order. In the case of Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740 , it was held by Hon'ble the Apex Court as under:-- One has to imagine three concentric circles. The law and order represents the largest circle within which the next circle representing public order and the smallest circle represents security of State. It is then easy to say that an act may affect law and order, but not public order just as an act may affect public order, but not the security of the State. Also in the case of State of U.P. vs. Kamal Kishore Saini, AIR 1988 SC 208 , it has been observed by the Apex Court as below:-- Considering all these decisions, we have held in the case of Gulab Mehta vs. State of U.P., (1987) 4 JT 559 : AIR 1987 SC 2332 ......that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act, which will affect public order. 11. 11. On examining the present case, in the light of the principles of law laid down by the Hon'ble Apex Court in the aforecited cases, we are of the considered view that the activities of the detenu/petitioner in the present case do not convey to have the effect and potentiality to disturb or dislocate even tempo of life of the community. Hence, the action of the petitioner could not be termed as prejudicial to the maintenance of public order. 12. We, thus, feel that the impugned detention orders passed against the detenu are wholly unjustified and suffer from vice or infirmity. As such both the orders are liable to be set aside. As a result, the detention order dated 1st August, 2013 (Annexure P-1) passed by the District Magistrate, Guna and confirmation order dated 20th September, 2013 (Annexure P-2) passed by the Under Secretary, Government of M.P., Home Department, Bhopal are hereby quashed. The detenu Dhanwan, who is in jail be forthwith set at liberty, if not wanted in connection with any other case.