Sarvesh Yadav vs State Of U.P. And Others
2012 Latest Caselaw 2722 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
HABEAS CORPUS WRIT PETITION NO. 3579 OF 2012.
 
Sarvesh Yadav                                          .... Petitioner.
 
Versus
 
State of U.P. & others                                .... Respondents.
 
Hon'ble Dharnidhar Jha, J.

Hon'ble Ramesh Sinha, J.

(Delivered by Hon'ble Ramesh Sinha, J.)

Heard Sri S.K. Yadav, learned counsel for the petitioner, Sri Nitin Gupta, learned counsel for the respondent no.5 and Sri Sudhir Mehrotra, learned A.G.A. for the State.

Counter affidavit on behalf of respondent nos. 1 to 4 have been filed by the learned A.G.A. to which rejoinder affidavit has also been filed by the petitioner. So far as counter affidavit on behalf of respondent no.5, Union of India is concerned, this Court on 30.4.2012 granted time to Sri Nitin Gupta to file the same by 7.5.2012 and in spite of the earlier order dated 14.3.2012 indicating that no more time shall be granted to Sri Nitin Gupta for filing counter affidavit, no counter affidavit has been filed, the Court on 30.4.2012 considering his submissions that the draft had earlier been sent for preparation of the counter affidavit and the same has not been returned after observing the due formality, granted him further indulgence for a week. The petition was directed to be listed on 7.5.2012 vide Court's order dated 30.4.2012. On 7.5.2012, there was an illness slip of Sri Nitin Gupta and on the same, the Court passed the following order:-

"In spite of having been afforded numerous opportunities, the Union of India has not filed affidavit required to be filed by it. The ground is of illness of Sri Nitin gupta, Advocate, which ground we are not convinced with. The Union of India is barred from filing any affidavit.

We direct the petition to be listed in the next cause list and definitely on 15.5.2012."

On 15.5.2012, the Court heard learned counsel for the parties in the matter and judgment was reserved.

By means of this petition, petitioner has challenged his detention order dated 8.1.2011 passed by the District Magistrate, Firozabad-respondent no.2 by which the detaining authority in exercise of its powers under Section 3 (2) of the National Security Act (hereinafter referred to as the Act) has ordered that the petitioner be detained in district jail Firozabad stating the grounds of detention as required under Section 8 of the Act. The detention order has been passed by the District Magistrate Firozabad-respondent no.2 on a solitary ground arising out of a solitary case which was alleged to have taken place on 2.6.2011 at about 6 p.m. in the evening when the informant Sanjay Kumar Jain was sitting along with his younger brother Saurabh Jain in his shop in Mohalla Jain Nagar at Parasnath Hello Centre, on two motorcycles the petitioner along with other miscreants had come with firearm weapons and demonstrating the same demanded Goonda Tax of Rs. 2,000/- from the informant and his brother deceased Saurabh Jain and when they refused to pay the same they started indiscriminate firing in the shop of the informant which hit the deceased Saurabh Jain, who died on the spot. After the incident the petitioner along with his companions fled away towards North displaying and firing shots by their country made pistols. At the time of incident the informant's father Abhai Kumar Jain, his uncle Vinay Kumar Jain @ Munnu, Prafullit Kumar Jain, Mukesh Kumar Jain, Vimlesh Kumar Jain and other persons were present near the shop. Due to the said act of the petitioner, there was terror and panic in the whole area and people started closing their shops and started running here and there and further due to the said incident, the tempo of life of the community was disturbed and there was disturbance of public order. About the said incident, a First Information Report was lodged by the informant Sanjay Kumar Jain on 2.6.2011 at 7:15 p.m. at police station North, District Firozabad which was registered as Case Crime No. 282 of 2011 under Sections 147, 148, 149, 302 and 384, I.P.C. which was find also endorsed in G.D. Entry in G. D. No. 40 at about 9:15 p.m. on 2.6.2011 at police station North District Firozabad. After the said incident, there was demonstration by the traders association and other social organization in the area who supported the closure of shops and in order to maintain the public order police force from police station South under the leadership of Sri R.P. Singh, S.H.O., police station South tried to control the situation. At the place of incident, blood was found and five empty cartridges of 315 bore, two bullets of 315 bore, shoes and slippers of the people who had left at the spot due to panic were also recovered. The detaining authority being satisfied that the act of the petitioner along with his companions by entering into the shop of the informant Sanjay Kumar Jain for demanding Goonda tax from him and at his refusal indiscriminate firing was done by the petitioner along with his companions due to which his brother died at the spot. Having found that the petitioner had surrendered on 13.7.2011 and his relatives and friends are trying to get him bailed out for which they have also moved an application for bail before this Court on 20.9.2011 which was likely to come up for hearing on 16.11.2011. In such a situation, the detaining authority had come to subjective satisfaction that the petitioner is likely to be released on bail and after his release he may again indulge in such activities which are prejudicial to the public order hence in order to prevent the petitioner from indulging in such activities which may amount to disturbance of public order he passed the detention order against the petitioner on 8.11.2011. The Superintendent of Police, Firozabad on the basis of the report submitted by his subordinate officials had recommended to the respondent no.2 for detaining the petitioner under the Act by passing the detention order and, as such, the detaining authority in exercise of its power under Section 3 (2) of the Act passed the impugned detention order against the petitioner in order to maintain the public order.

The detention order dated 8.11.2011 was served on the petitioner through respondent no.3 along with grounds of detention and other relevant materials on the same day in jail. The detention order passed by respondent no.2 was approved on 15.11.2011 by the State Government in exercise of its power under Section 3 (5) of the Act. The petitioner submitted his representation against the detention order to the District Magistrate and other authorities as mentioned in the grounds of detention through respondent no.3 on 21.11.2011 which was forwarded to the District Magistrate on the same day. The representation of the petitioner was rejected by the State Government on 30.11.2011 and by the Central Government on 5.12.2011. The petitioner appeared before the Advisory Board on 24.11.2011 and the State Government after considering the opinion of the Advisory Board had approved the detention order passed against the petitioner once again took a decision to confirm the detention order for a period of twelve months in exercise of its power under Section 12 of the Act on 14.12.2011.

The only ground on the basis of which, learned counsel for the petitioner has submitted that the detention order is that the same is based on a single incident dated 2.6.2011 in which one Saurabh Jain was killed by the petitioner along with his companions in Mohalla Jain Nagar. Learned counsel for the petitioner further submitted that taking into account the entire case, it cannot be said that the said incident has disturbed the public order and at the most the incident would pertain to a law and order problem hence the detention order deserves to be set aside on this ground alone.

On the other hand, learned A.G.A. has argued that though the detention order of the petitioner is based on a single incident but one incident is sufficient to detain the petitioner under the Act as has been done by detaining authority by exercising his power under Section 3 (2) of the Act. He further submitted that the antecedent of the petitioner is that he has been involved in several criminal cases of similar nature and the impact of the act of the petitioner was such that there was disturbance of public order in the market due to which the District Magistrate after being satisfied and taking into consideration, the solitary incident. The learned A.G.A. in support of his contention has placed reliance on the judgment of the Apex Court in the case of Adbul Sathar Ibrahim Manik Versus Union of India and others reported in (1992) 1 SCC 1 and has drawn the attention of the Court towards paragraph-6 of the said judgment which is quoted hereinbelow:-

"The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted. It is again a question of satisfaction of the detaining authority on the basis of the material placed before it. Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the potentialities of a detenue in the activities of smuggling."

Learned A.G.A. also relied on another judgment of the Apex Court in the case of Union of India and another Versus Chaya Ghoshal (Smt.) and another reported in (2005) 10 SCC 99 and has pointed out the law written in paragraph-23 of the said judgment which is quoted hereinbelow:-

"So far as the finding of the High Court that there was only one incident is realy a conclusion based on erroneous premises. It is not the number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran into crores of rupees, as alleged by the detaining authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The approach was not certainly correct and the judgment on that score also is vulnerable. At the cost of repetition it may be said that it is not the number of acts which is material, it is the impact and effect of the act which is determinative. The High Court's conclusions in this regard are therefore not sustainable.

Learned A.G.A. also relied on another judgment of the Apex Court in the case of David Patrick Ward and another Verus Union of India and others reported in (1992) 4 SCC 154 and has drawn the attention of the Court towards paragraph-22 of the said judgment which is quoted hereinbelow:-

"22. Tested in the light of the above decision, certainly, the acts in which the petitioners indulged would form the basis of detention. The detaining authority can base its order of detention even on a solitary act provided that the conduct of the person concerned with the act in the circumstances in which it was committed, is of such a nature as would enable the formation of requisite satisfaction that the person, if not prevented by an order of detention, is likely to indulge in repetition of similar acts in future. That is certainly so in the present case, having regard to the various circumstances from the beginning, viz. The concealment of the purpose of visit, the entry without permit in the prohibited area up to the time of arrest of the petitioners. Therefore, the ground of detention relating to what occurred on the night between January 30 and 31, 1992 sufficed for making the detention orders under challenge. Debu Mahato and M. Mohamed Sulthan the decision of this Court on which reliance is placed to support the point under examination, indeed go against the point. Hence, the point cannot suceed."

After having considered the submissions advanced by learned counsel for the parties, we are of the considered opinion that it is true that the detention order is based on a solitary incident but from the record it is apparent that the incident has taken place in a busy market place and the petitioner along with his companions had went into the shop of the informant and has demanded Goonda tax from him and on his refusal indiscriminate firing was done by the petitioner along with his companions in the shop due to which the younger brother of the informant, namely, Saurabh Jain was hit by the fire shot and he succumbed to his injuries on the spot. The impact of the act of the petitioner affected the community and led to disturbance of current life of the community so as to amount disturbance of public order and it did not affect merely an individual leaving the tranquility of the society undisturbed. The satisfaction of the detaining authority is based on the relevant materials placed before him showing that the act of the petitioner was such that it disturbed the tempo of life of the community as after the incident there was disturbance in the locality and nearby area and the people ran away to save their lives and there was terror and panic due to which the shops of the area were closed by the traders, who also started demonstrating against the act of the petitioner and his associates as there was terror and apprehension of insecurity in the minds of the businessman and traders, who felt unsafe to run their business. The said incident was also published in the local newspapers and the police of the various police station were called to control the situation. The detaining authority being apprised that the petitioner had moved a bail application for his release in the High Court and his relatives and friends are trying to get him released on bail then apprehending that there was every likelihood of the petitioner being released on bail and would again indulge in anti-social activities hence to prevent such prejudicial activities in future the detaining authority had passed the detention order against him as the acts of the petitioner was prejudicial to the security of the locality as well as of the State. The Hon'ble Apex Court in the case of Arun Ghosh Vs. State of West Bengal reported in A.I.R. 1970 SC 1228 has drawn the distinction between public order and law and order and has held as to when the individual acts can be subversive of public order. The said distinction between the public order and the law and order has been discussed in paragraph-3 of the said judgment which is quoted hereinbelow:-

"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Individual act can be a ground for detention only if it leads to disturbance of the current of life of the community so as to amount a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed.

Public order embraces more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order."

The Apex Court in another case of Alijan Mian Versus District Magistrate, Dhanbad and others reported in A.I.R. 1983 SC 1130 in para-9 has held that if the detenue is already in custody and if the detaining authority was aware of the fact that the detenue was already in jail on the date of passing of the detention order and was satisfied that if the detenue was enlarged on bail of which there was every likelihood of his indulging in anti social activities, it was necessary to prevent him from acting in a manner prejudicial to the public order, the detention order was held to be valid.

It was further held in the said judgment that the pendency of Court proceedings is no bar to an order of preventive detention nor is the order of preventive detention a bar to the prosecution. It is for the detaining authority to have the subjective satisfaction where in such a court's trial there was sufficient material to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to the public order alike in future. It is noteworthy to mention here that in a judgment of this Court in the case of Tasleemuddin Vs. State of U.P. through Secretary (Home) Lucknow reported in ACC 2008 (60) 851, it was held that a single incident of murder based on personal enmity having effect of terrorising public and affecting the even tempo of life of the community in such place, would constitute an act of disturbance of public order.

In this context, the Hon'ble Apex Court in the case of Pooja Batra Versus Union of India reported in (2009) 2 SCC (Cri) 659 has enunciated the law as quoted in para-40 of the judgment which is quoted hereinbelow:-

"40. Further, subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future."

Learned counsel for the petitioner tried to argue that there was delay in deciding the representation of the petitioner by the concerned authority to he was unable to show from the record about any inordinate delay in deciding the representation of the petitioner and after perusing the record, we do not find any delay on the part of the authorities in deciding the representation of the petitioner, hence such arguments of the learned counsel for the petitioner do not find any force.

Considering the facts and circumstances of the case, it is apparent that the act of the petitioner in killing the brother of the shopkeeper in a shop in a busy market area for refusal to pay the Goonda tax to the petitioner and his associates in any manner cannot be said to be a law and order problem but it amounts to disturbance of public order and the subjective satisfaction of the detaining authority in passing the detention order against the petitioner cannot be said to be arbitrary or illegal. The detention order dated 8.11.2011 passed by the detaining authority is hereby confirmed.

The petition lacks merit and is accordingly dismissed.

Dated :- 06.07.2012

Shiraz