Moharram Ali Alias Pappu vs Union Of India Thru Secy. And 4 ...
2015 Latest Caselaw 176 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 64036 of 2014
 

 
Petitioner :- Moharram Ali Alias Pappu
 
Respondent :- Union Of India Thru Secy. And 4 Others
 
Counsel for Petitioner :- M.J. Akhtar,V.M. Zaidi
 
Counsel for Respondent :- Govt.Advocate,A.S.G.I.(2014/11054),S.K.Kannaujia
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Mrs. Vijay Lakshmi,J.

This habeas corpus petition is directed against the orders of detention passed under the National Security Act and the rejection of the representation of the petitioner by the respondent State Government confirming the detention order for a period of 12 months. The impugned orders are of the District Magistrate, Saharanpur dated 30th July, 2014, the detaining authority, and the confirmation order of the State Government dated 19.9.2014.

The petitioner has a history of 31 criminal cases. The details have been given by the petitioner himself in Annexure 2 to the writ petition. The incident which has led to the passing of the order of detention is dated 26th July, 2014. This incident took the shape of an FIR lodged by the Inspector Incharge, Police Station Kutub Sher being Case Crime No. 306 of 2014, under Sections 147/148/149/307/504/506/436/336/332/353/153A/427 I.P.C. and 7 Criminal Law Amendment Act and 3/4 Prevention of Public Property Damages Act.

The FIR names 63 persons but the name of the petitioner appears prominently as the person having led a huge mob of 400 to 600 involved in attacking innocent people and causing loot and arson in the area inflaming wide spread communal passions with regard to a dispute over constructions on a piece of land adjacent to a Gurudwara.

The constructions were being opposed by some political leaders including the petitioner who led this huge mob.

Sri Zaidi relying on the division bench judgment of the Madhya Pradesh High Court in the case of Kamla Pandey Vs. State of M.P., 1996 Cr.L.J. 2593 and the another division bench judgment of this Court in the case of Charan Singh @ Pappu Vs. Union of India & others, 2013 (10) ADJ 438 has urged that there is total non application of mind and absence of material in the order of the detaining authority which has been confirmed by the State Government and in such circumstances the impugned order deserves to be quashed.

He further submits that the individual act of the petitioner having not been identified, then a mere allegation of his presence with a violent mob, does not satisfy the subjectivity test as such the impugned order is vitiated. He submits that the petitioner cannot be discriminated and be picked out from the mob for passing an order of detention, inasmuch as, an order of detention as settled by various judgments is not punitive but preventive in nature.

His main contention is that one of the grounds taken in the detention order is that the applicant is likely to be released on bail and if that happens, he may indulge into such activities that may be detrimental to public order. According to him there is no chance of the petitioner being bailed out. It has therefore been submitted that no ingredients are available for detaining the petitioner as per provisions of the National Security Act and hence the impugned order deserves to be quashed.

Before we deal with the law propounded by the Apex Court or in the judgments relied upon by the learned counsel for the petitioner, it would be appropriate to mention the allegations contained in the FIR which led to the arrest of the petitioner and the ingredients that were considered by the detaining authority on the strength of the report of the sponsoring authority.

Sri Zaidi has urged that the FIR which specifies details extensively, was not possible to be orally informed as per the recital contained in the FIR. The contention appears to be that the FIR lodged on the oral statement of a police official namely the Inspector Incharge, Police Station Kutub Sher cannot be believed as it is difficult to reproduce by memory all such facts.

The aforesaid argument of Sri Zaidi cannot be countenanced, inasmuch as, the material that has been brought on record including that which has been stated in the counter affidavit filed on behalf of the respondents including the State clearly indicates a dispute having arisen on account of the raising of certain constructions over a piece of land besides a Gurudwara which was being opposed by a particular community.

Leaders of the said community wanted the administration to intervene and demolish such constructions and not having achieved their aim, they virtually took law in their own hands and created an atmosphere that ran wild fanning communal passions and collection of a huge irate mob. It is this description which has been made in the FIR copy whereof is Annexure 1 to the writ petition. A perusal thereof also indicates that the mob was about of 2000 people and both sides were inflamed with communal passions they had to be severely dealt with as they were fully armed with weapons. Brick batting and firing took place between the two communities and it also resulted in destruction of several vehicles belonging to the public as well as official vehicles and some shops were also set on fire. This resulted in a huge problem of public order and people started running helter and skelter out of fear. Not only this, several rounds of firing were undertaken by the police force which are detailed in the report and it was with great difficulty that the mob could be dispersed whereafter some people who are named in the FIR were taken into custody.

The sponsoring authority called for a report which was submitted on 28th July, 2014 through the Inspector Incharge, Police Station Kutub Sher copy whereof is Annexure 3. The said report clearly names the petitioner leading a mob of 300 to 400 persons. It also indicates that the entire life of the City Saharanpur was disturbed resulting in students of schools fleeing away with their guardians, blockage of National Highway connecting U.P., Uttarakhand, Haryana, Punjab and Jammu and piling of vehicles of both sides. It was a communal riot and the entire inhabitants of Saharanpur City area went into hiding on account of fear resulting in complete and immense disturbance of public order. Section 144 Cr.P.C. orders came to clamped in 8 police stations.

The Superintendent of Police on the said report made strong recommendations vide his letter dated 29th July, 2014 for invoking the provisions of the National Security Act informing the District Magistrate about the same. Copies of the said recommendations are Annexures 4 and 5, particularly, naming the petitioner therein and the material on the basis whereof it was necessary to invoke the said provisions. The detaining authority thereafter recorded a satisfaction and passed the impugned order and also made known the grounds of detention copy whereof is Annexure 6 to the writ petition. It also records on the basis of material available that the petitioner was also involved in spreading rumours and indulging into loot and arson thus causing loss of life as well as damage to public property. It also records that this area falling within six police stations were put under complete prohibitory orders on account of this communal tension on riot which was widely reported in newspapers and clearly indicated the involvement of the petitioner of having indulged into this serious act of creating public disorder. The Government also after perusing the reports and the entire material, confirmed the order of detention which has been challenged in the present writ petition.

The main ground urged by Sri Zaidi is about there being no likelihood of the petitioner being released on bail on account of the pending criminal cases. He therefore submits that the pendency of the number of criminal cases against the petitioner itself is an evidence of a fact that he is not likely to be released on bail and therefore this ground of satisfaction recorded is totally unfounded and therefore relevant material having not been considered, the impugned order is vitiated.

We may put on record that there is no dispute with the proposition of law as laid down in the two division bench judgments which have been relied upon by Sri Zaidi. Not only this, there are three other judgments on the issue, namely the decision in the case of Rekha Vs. State of Tamilnadu and another, (2011) 5 SCC 244. In the said decision, there was absence of material of similar cases in which bail were granted and therefore such statement was not accepted and the Apex Court held that the order would be vitiated as there were only bald statements and no actual facts in existence to sustain the detention order. The law relating to preventive detention was reiterated therein. The second decision that deserves mention is that in the case of Yuman Ongbi Lembi Leima Vs State of Manipur and others, (2012) 2 SCC 176 where it was explained that there has to be a long link between the detention and the antecedents activities for recording a satisfaction. Old incidents which has no link with the incident relating to offences alleged would not be sufficient to pass a detention order and even otherwise a single incident of any heinous crime is also insufficient for passing a detention order. The parameters of personal liberty were discussed and it was reiterated that the exercise of power in such matters must be carried out with due caution of propriety, appreciation of facts regarding prejudicial activities, inasmuch as, the personal liberty of an individual being most precious, fundamental rights should not be tinkered ordinarily.

The third decision is in the case of Huidrom Konungjao Singh Vs. State of Manipur and others, (2012) 7 SCC 181. There again the presumption of a detenue being released on bail was discussed and the detention order was set aside on the facts of that case after having noted other decisions including the two decisions referred to hereinabove.

However, the judgment which now requires to be considered and which had also considered the case of Rekha Vs. State of Tamilnadu is the decision of the Apex Court in G. Reddeiah Vs. Government of Andhra Pradesh and another, (2012) 2 SCC 389. There the detenu was found to be involved in felling, transporting, smuggling of red sandalwood trees and committing theft of national forest resulting in matters of public order. The Apex Court therein held as follows:-

"22. In a matter of detention, the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order. Once the Detaining Authority is subjectively satisfied about the various offences labelled against the detenue, habituality in continuing the same, difficult to control him under the normal circumstances, he is free to pass appropriate order under Section 3 of the 1986 Act by fulfilling the conditions stated therein. We have already concluded that there is no infirmity either in the reasonings of the Detaining Authority or procedure followed by it. We are also satisfied that the detenue was afforded adequate opportunity at every stage and there is no violation of any of the safeguards. In these circumstances, we reject the contention raised by learned senior counsel for the appellant.

23. Though an attempt was made to nullify the order of detention by drawing our attention to the latest decision of this Court reported in Rekha Vs. State of Tamil Nadu (2011) 5 SCC 244, on going through the factual position and orders therein and in view of enormous activities of the detenue violating various provisions of IPC, the A.P. Act and the Rules, continuous and habituality in pursuing the same type of offences, damaging the wealth of the nation and taking note of the abundant factual details as available in the grounds of detention and also of the fact that all the procedures and statutory safeguards have been fully complied with by the Detaining Authority, we are of the view that the said decision is not applicable to the case on hand. On the other hand, we fully agree with the reasoning of the Detaining Authority as approved by the Government and upheld by the High Court."

Thus in view of the conspectus of the law hereinabove, we have to proceed to consider the impact of the said satisfaction recorded about the petitioner being likely to be released on bail vis-a-vis the nature of the public order in which the petitioner is alleged to be involved.

In our opinion, one of the grounds that requires to be considered is satisfaction with regard to the release of a person on bail and presumption thereof, but on a perusal of the provisions of the act and the decisions aforesaid what is more important is the activities and the antecedents of a person that may contribute to the satisfaction of the detaining authority. The facts of the present case reveal that the petitioner has a long criminal history and there is no dearth of his antecedents of indulging into criminal activities but the present case involves his indulgence into an activity namely of public order and an incident which led to a communal riot and the entire City with 8 police stations being affected by preventive orders under Section 144 Cr.P.C. The entire peace and tranquillity having been disturbed leaves no room for doubt that the petitioner, who is stated to have led the huge mob, was prominently responsible and pre-eminently involved in the disturbance of the public order. With this fact on hand and the material on record, the other issues get eclipsed as against the likelihood of the petitioner indulging into such future activities. The question of grant of bail in offences in which he has been charged earlier cannot be said to be such where he cannot get bail. There is likelihood of the release of the petitioner but a presumption to that effect by itself would not invalidate the detention order which on other grounds is clearly sustainable keeping in view the huge public order involved and the satisfaction recorded by the authorities which is perfectly in consonance with not only the provisions of the National Security Act but also in accordance with the principles laid down by the Apex Court and this Court time and again.

What is public order has been explained in Paras 7 to 15 quoted hereinunder in the case of State of U.P. and another Vs. Sanjai Pratap Gupta @ Pappu and others, (2004) 8 SCC 591:-

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 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. "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).

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. (See Dr. Ram Manohar Lohia v. State of Bihar and Ors. (1966 (1) SCR 709)

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. 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. 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". (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors. (1973 (1) SCC 393, Milan Banik v. State of West Bengal (1974 (4) SCC 504).

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 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. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State". [See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185), Harpreet Kaur v. State of Maharashtra (1992 (2) SCC 177), T.K. Gopal v. State of Karnataka (2000 (6) SCC 168), State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158)].

14. The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on even tempo of life, the extent of its reach upon society and its impact.

15. From the grounds of detention it is apparent that the same was not a law and order situation but a public order situation as rightly contended by learned counsel for the State."

In the instant case, the facts as extracted hereinabove clearly attract the elements of public order as explained in the above extracted judgment.

For all the aforesaid reasons, we do not find any such infirmity so as to warrant exercise of our discretion under Article 226 of the Constitution of India to set the petitioner at liberty or quash the impugned orders. The detention order appears to be perfectly justified and if the petitioner is set at liberty it is quite possible that he may indulge into such activities creating communal tensions and staging communal riots.

Accordingly, the writ petition lacks merit and is hereby dismissed.

Order Date :-28.4.2015

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