HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved. Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 53422 of 2014 Petitioner :- Minna @ Minta @ Jasveer Respondent :- State Of U.P. Thru Secy. And 4 Others Counsel for Petitioner :- Apul Misra Counsel for Respondent :- Govt.Advocate,A.S.G.I.(2014/10700),C.S.Chaturvedi Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs. Vijay Lakshmi,J.) By means of this Habeas Corpus Writ Petition the petitioner has challenged the detention order dated 7.7.2014 passed by the respondent no. 3/ District Magistrate, Firozabad while exercising his powers under section 3(3) of the National Security Act, 1980. The petitioner has also prayed for releasing him forthwith.
We have heard learned counsel for the petitioner and learned AGA appearing for all the respondents and have perused the records.
Learned counsel for the petitioner has submitted that the petitioner is a student and young man aged about 23 years. He has no criminal antecedent and apart from the present case no other criminal case is registered against him, but the respondent no. 3, only on the basis of reports of some newspapers, has passed the detention order against the petitioner. The State Government has also wrongly ratified it without application of mind. Hence he has prayed that both the orders be quashed.
The record shows that an incident of daylight murder took place on 25.5.2014 at 7.30 A.M. at Jain Nagar, Kuanwali Gali, Firozabad, when the deceased Vinay Kumar Yadav, who was an active member of Samajwadi Party, was reading newspaper sitting in front of his house. According to the FIR at that time six or seven assailants including the petitioner reached there and started indiscriminate firing resulting into death of the deceased Vinay Kumar Yadav on the spot. On the same day at 8.50 A.M. FIR of the incident was lodged by Smt. Shobha Yadav, 'bhabhi' of the deceased. On the basis of the FIR Case Crime No. 411 of 2014, under sections 147, 148, 149, 302, 120B I.P.C. was registered at Police Station Uttar, District Firozabad, against seven named and two unknown persons . During investigation the names of four other persons also surfaced. The motive behind the occurrence was mentioned in the FIR itself, which was enmity due to some criminal cases pending between them.
On 2.6.2014 at about 11.40 three persons were arrested by the police including the present petitioner from whose custody a country made pistol of 315 bore and two live cartridges of 315 bore were recovered. The applicant confessed that the country made pistol recovered from his pocket by the police was the same which was used by him in the murder of the deceased Vinay Yadav.
A report regarding the occurrence was submitted by the S.H.O. P.S. Kotwali Uttar, District Firozabad, to Superintendent of Police to the effect that due to such incident the road NH 02 was blocked by people for five hours and the public life and the public order got totally disturbed. Due to situation becoming out of control the S.P. Firozabad, suspended the concerned S.H.O. and the Sub Inspector and later on the then S.P. was also suspended by the Government. It was apprehended that there were chances of the accused being bailed out. Hence the S. P. Firozabad, was requested to make recommendation to the District Magistrate for detaining the accused under the National Security Act.
The Superintendent of Police on receiving such report made strong recommendation by his letter written to the District Magistrate, Firozabad, for passing a detention order under section 3(2) of the National Security Act against the applicant where upon the District Magistrate passed the impugned order.
In support of the petition learned counsel for the petitioner has vehemently argued that there was no disturbance of public order and the incident in which the petitioner has falsely been implicated was a simple case of murder. Learned counsel has contended that the time of the incident was early morning when mostly people stay indoors and the public places are generally empty. Moreover the incident had taken place in front of the house of the deceased situated in 'Kuanwali Gali'. Thus the place of incident is not a Highway. He has contended that neither any communal violence nor any public disturbance had occurred and the incident took place on account of personal enmity against a single person. Dead body of the deceased Vinay Yadav was found lying inside the Transport Office and not in a public place. Hence at the most only it can be said that the occurrence disturbed "law and order" but in no case the incident disturbed the "public order" of the place. But the detaining authority without keeping in view the aforesaid facts and acting in an arbitrary manner has illegally passed the order for detention of the petitioner under the National Security Act. It has further been contended by learned counsel for the petitioner that according to the FIR several accused persons, who were 10 or 11 in number, were found involved in the murder of the deceased but the applicant alone was detained under the National Security Act without assigning any specific reason why he alone was chosen when all other accused persons had the same role. Learned counsel has submitted that the Advisory Board has ratified the detention of the petitioner without considering the written representation submitted by the petitioner. Learned counsel has further contended that the petitioner was not given any opportunity of personal hearing before the Advisory Board. He has next contended that the bail application moved by the petitioner has been rejected by the C.J.M., Firozabad, on 30.6.2014 and no bail application is pending in Sessions Court. Therefore, there is no chance of petitioner being released on bail in near future. It has further been submitted that there was no disturbance of public order and the detention under the National Security Act cannot be invoked in a case, which involves purely a breach of "law and order" and which does not involve disturbance in the "public order". Learned counsel for the petitioner has contended that in the present case under no circumstances it can be said that the incident in question disturbed the maintenance of public order and spread any disaffection and terror in the public at large or the petitioner had acted in such a way, which was prejudicial to the maintenance of public order. He has lastly submitted that although all the respondents have filed their counter affidavits but there is no reply in their counter affidavits about the averment made in paragraph no. 18(i) of the Habeas Corpus Writ Petition that why the petitioner only, was chosen out of the 10-11 assailants, for preventive detention.
On the aforesaid grounds the petitioner has prayed that the impugned detention order, which is apparently illegal, be quashed.
The District Magistrate, Firozabad, (respondent no. 3 in this writ petition), has filed his counter affidavit stating therein that after recording his subjective satisfaction based on the material available before him and considering that there was immense possibility that the accused would be released on bail, if he was not detained under the provisions of the National Security Act and also keeping in view that if the accused was released on bail, he would again indulge in the same kind of illegal activities and crime, which would seriously prejudice and disturb the public order of the locality, he, in the capacity of the detaining authority under section 3 of the National Security Act, passed the impugned detention order on 7.7.2014. It has further been stated in the affidavit that the copy of the detention order dated 7.7.2014 along with grounds of detention and all relevant material was served upon the petitioner through Jail authorities on the same day i.e. 7.7.2014 and his endorsement was obtained. Opportunity of hearing was provided to the petitioner by informing him to move his representation if he intends to do so, to various higher authorities. In response to the same the petitioner submitted his representation dated 18.7.2014 to the jail authorities, District Jail, Firozabad, and the same was received in the office of the District Magistrate on the same day. The police report from the Superintendent of Police, Firozabad, was called for, which was also submitted on the same day i.e. 18.7.2014. After reconsidering the case of the petitioner in view of his representation dated 18.7.2014 and after going through the entire material including the report of the police, the representation of the petitioner was rejected by the District Magistrate, Firozabad, on 19.7.2014 and the said rejection order was communicated to the petitioner through Jail authorities on 19.7.2014 itself, which fact is apparent from the endorsement to this effect obtained by the jail authorities from the petitioner. The detention order was approved by the State Government on 17.7.2014 and the State Government also rejected the representation of the petitioner on 28.7.2014 and the same was communicated to the petitioner through the jail authorities. The Central Government also rejected the representation of the petitioner on 30.7.2014. It has further been stated that the State Advisory Board heard the petitioner on 13.8.2014 and the Board also, after hearing the petitioner, confirmed the detention order for a period of twelve months from the date of detention.
The Superintendent of Police, Firozabad, in his counter affidavit has denied the fact that the petitioner has no criminal history. According to the counter affidavit of S. P. Firozabad, the petitioner has criminal history of following cases:-
Case Crime No. 671 of 2014 under Sections 2/3 of Gangster Act, Police Station Uttar, District Firozabad, Case Crime No. 411 of 2014 under sections 147, 148, 149, 302, 120B/34 I.P.C., Police Station Uttar, District Firozabad, and Case Crime No. 430 of 2014 under section 25A of the Arms Act, Police Station Uttar, District Firozabad.
On behalf of respondent no. 1, Under Secretary (Home), Confidential Department, U.P. Civil Secretariat, Lucknow, has filed counter affidavit in which it has been submitted that the petitioner appeared for hearing before the U.P. Advisory Board on the date fixed by said Board on 13.8.2014. The U.P. Advisory Board on the same day heard the petitioner in person and gave its report along with the opinion that there is sufficient cause for the preventive detention of the petitioner under the National Security Act, 1980.
Sri A. K. Sand, learned AGA, appearing on behalf of all the respondents has vehemently argued that the petitioner has filed rejoinder affidavits against the counter affidavits filed by respondent nos. 1 to 4 but he has not filed any rejoinder affidavit against the counter affidavit filed by respondent no. 5, S. P. Firozabad, to deny his criminal history. Moreover, he has nowhere reasserted the fact that he was not given opportunity of hearing. Learned AGA has argued that it was not a case of simple murder but the murder was of a leader, which necessarily involved disturbance of public order. Learned AGA has contended that the report submitted by the S.H.O. of the concerned police station clearly shows that after the daylight murder of deceased Vinay Yadav, the public order of the locality got totally disturbed and the shops were closed due to the fear and terror of accused persons. The entire occurrence was widely covered and reported in various daily newspapers, which is evident from the copies of such reports available on record. Learned AGA has submitted that there was no delay in supplying the copy of the detention order, grounds of detention and other materials to the petitioner, which fact is evident from the counter affidavit filed by the District Magistrate, Firozabad, and against which there is no specific denial by petitioner in his rejoinder affdiavit. Learned AGA has further submitted that since the bail application of the petitioner was pending before the court of Sessions, there was an immense possibility that on the basis of the averments made in the bail application, he might be released on bail, it appeared necessary that he be detained under National Security Act.
Learned AGA has drawn our attention to the reports about the occurrence published in various newspapers to show the grave impact of the occurrence on the life of general public and the public order and has contended that all these reports clearly show that not only the Highway was got jammed by the public for five hours just after the occurrence but there was an atmosphere of terror and anarchy everywhere. Several police officials including the Superintendent of Police, Firozabad, were suspended by the higher authorities due to that uncontrollable situation and disturbance of public order, which took place just after the occurrence. Learned AGA has submitted that all these circumstances are sufficient to show that there was disturbance of public order.
Having heard learned counsels from both sides and giving our thoughtful consideration to the arguments advanced by them, we are of the view that the argument advanced by learned counsel for the petitioner that the petitioner has no criminal history appears to have no legs in view of the criminal history mentioned in the counter affidavit filed by the Superintendent of Police, Firozabad, against which the petitioner has not filed any rejoinder affidavit although he has filed separate rejoinder affidavits against all other counter affidavits. It is also well settled that non registration of any criminal case is no bar for an order of preventive detention.
In State of Punjab Vs. Sukhpal Singh, (1990)1 SCC 35 the Apex Court has observed as under:-
"Preventive order is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from so doing. The justification of such detention is suspicious or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state. .......................................
When power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision, which cannot be described as either irrational or unreasonable, then the order is not bad and the court cannot substitute the decision or opinion in place of the decision of the authority concerned on the necessity of passing the order.
Considering the relevant facts and circumstances including the time and place, the contents of detention order and the allegations in the grounds of detention in this case, we are of the view that non-registration of any criminal case is no bar to an order of preventive detention and it does not reflect non-application of mind or absence of subjective satisfaction on the part of detaining authority.
Hon'ble Apex Court in the aforesaid case has also held that "the High Court under Article 226 and Supreme Court under Article 32 of 136 do not sit in appeal against the order of preventive detention. But the Court is only to see whether the formality as enjoined by Article 22(5) had been complied by the detaining authority and if so done, the court cannot question the efficiency of the grounds of detention for the subjective satisfaction of the authority".
In wake of the law cited above and keeping in view the facts of the present case involving huge public disorder, the satisfaction recorded by the authorities appears to be in consonance with the provisions of the National Security Act and with the principles laid down by the Apex Court and also by this Court time and again. The petitioner has been detained under the National Security Act because the detaining authority found that huge public order was involved which facts were brought to his notice by report of S.H.O. recommended by Superintendent of Police, Firozabad.
What is public order has been explained in paras 7 to 15 in the case of State of U.P. and another Vs. Sanjai Pratap Gupta @ Pappu and others, (2004) 8 SCC 591, which is quoted here as under:-
"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 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.
"Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed (See Kanu Biswas v. State of West Bengal (AIR 1972 SC 1656).
Now reverting back to the facts of the present case the report published in several newspapers clearly show that there was disturbance of public order. The reports sent to the District Magistrate, Firozabad, by the S.H.O. and Superintendent of Police, Firozabad, find support with the reports of newspapers and the District Magistrate after recording his subjective satisfaction passed the impugned order, which has been ratified by the Advisory Board. Thus the facts of the instant case clearly attract the element of public order.
So far as the argument raised by the petitioner that why he was only singled out amongst 10 or 11 assailants, is concerned, on this ground alone the detention order cannot be quashed. It is for the police and the State authorities to detain any person under the National Security Act on the basis of the grounds mentioned in the Act and on subjective satisfaction of detaining authority supported by such grounds.
We do not find any such infirmity so as to warrant our discretion under Article 226 of the Constitution of India to set the petitioner at liberty or to quash the impugned order.
The writ petition lacks merits and accordingly, it is dismissed.
Order Date :- 15.5.2015/ Pcl