Khalil Ahmad vs Secretary (Home) & Ors.
1998 Latest Caselaw 1030 Del

JUDGMENT

Devinder Gupta, J.

1. The order of detention (Annexure-I) dated 27.2.1998 passed by the respondents under Sub-section (2) of Section 3 of the National Security Act (Act No. 65 of 1980) is under challenge in this petition filed under Article 226 of the Constitution of India.

2. The grounds pressed at the time of hearing, to challenge the impugned order were:

(a) the Detaining Authority failed to consider the fact that out of 30 cases in which the petitioner is alleged to be involved, he had already been acquired in 11 cases and discharged in 2 cases whereas in the remaining cases trial was still in progress except in 3 cases in which the petitioner was convicted or bound down.

(b) The alleged criminal activities, on the basis of which detention order has been passed are directed against a particular set of individuals and do not trouble the community at large. The grounds mentioned in the detention order are not of such magnitude as would amount to apprehend disturbance of public order inasmuch as there was no material before the authority for any conduct of the petitioner that public order was endangered or there could be reasonable apprehensive about it; and

(c) The acts attributed to the petitioner for his criminal involvement were stale. The petitioner was not shown to have been involved in any case within a period of six months, prior to the date of detention order, therefore, stringent action like preventive detention was not justified.

3. Reliance was placed by learned Counsel for the petitioner on the decision in Ajay Dixit Vs. State of U.P. and Others, , in support of his contention that there has been no involvement of the petitioner in any case within a period of six months prior to the date of detention order. Stale incidents cannot be a valid ground for sustaining detention. On the second ground of challenge, reliance was placed by a learned Counsel for the petitioner on the decision of Allahabad High Court (Lucknow Bench) in Ishtiaq Hussain Khan Vs. State of U.P. and Others, 1986 CRL.J. 1448, holding that where the criminal activities of the detenu, on the basis of which the detention order has been passed were directed against a particular set of persons and did not trouble the community at large, such acts are only a breach of law and order and cannot be held to be serious ugh to disturb the public order. In addition, learned Counsel for the petitioner urged that the petitioner has been a victim of circumstances. The father of the petitioner was shot dead by some decoits when he went to rescue the daughters of his neighbours from the clutches of decoits. For this act of bravery, the petitioner's father was posthumously awarded by the President of India. The ultimately death of the petitioner's father in the unnatural circumstances shattered the petitioner completely and subsequently the career of the petitioner was ruined by the atrocities and high handedness of the police officials of Lahori Gate and other Police Stations of Delhi. He had already been acquitted in 11 cases and discharged in 2 cases. Trial in remaining cases was pending. Only in 3 cases he was convicted or bound down. He was falsely implicated in all the cases and had not been named in various F.I.R. Material before the authority was not sufficient to warrant justifying issuance of detention order.

4. The reply affidavit states that the petitioner's stand that he had a clean record before the death of his father and became a victim of circumstances after his father's death in 1993 is false and baseless. The petitioner was involved in 20 criminal cases even before the death of his father, which took place on 27.6.1993. He started his criminal activities in the year 1985, when he was of the age of 20 years. Continuously he has indulged in various criminal activities. During the period from 1985 to 1997 he was found involved in as many as 30 criminal offences of dacoity, robbery, kidnapping, abduction, extortion, illegal confinement, voluntarily causing hurt, wrongful restraint, theft, riots and receiving stolen property, criminal intimidation, attempt to murder and other offences punishable under the Arms Act. He is heading a gang and invariably made use of fire arms in executing his criminal acts at public places. He and his associates used to inflict knife injuries to victims in broad day light at public places in order to create terror in the minds of law abiding citizens. The acts of the petitioner thus disturbed the state of peace and tranquility of the community . Due to his acts of criminaity, he has created a terror and insecurity in the minds of citizens. The criminal acts of the petitioner were posing a grave threat to public order. Witnesses do not depose anything against him in the Court. Using this vulnerability of citizens he managed acquittal for want of evidence of 11 criminal cases. He even does not hesitate to fire at police officials at public places, which has an important bearing on the question of maintenance of public order.

5. The reply affidavit further states that after considering the facts and circumstances of the case, order of detention was passed, which was duly executed and approved. The petitioner's case was heard by Advisory Board and on receipt of opinion, the Lt. Governor of Delhi confirmed the order of detention for a period of 12 months through order dated 22.11.1998. A representation was submitted by the petitioner against detention on 15.4.1998, which was duly considered by the Lt. Governor as well as Secretary, Government of India, Ministry of Home Affairs. The same was rejected and rejection order was conveyed to him.

6. After making reference of the cases, as a part of the petitioner's past criminal history, the impugned order of detention narrates in detail the gist of 7 cases registered against him from 2.2.1996 to 15.7.1997 for various offences in different police stations viz. Keshavpuraml; Sarojini Nagar; Janak Puri and Hazarat Nizamuddin. The 23 cases of which reference is made in the detention order relate to various offences, alleged to have committed within the jurisdiction of police stations Lahori Gate, Chanakaya Puri, Town Hall, Kamla Market, Jama Masjid Kashmere Gate, Mndir Marg, Shalimar Bagh and Hazarat Nizamuddin. The detention order further states that the petitioner is a desperate and dangerous criminal who hardly hesitate to assault even a common man. His activities have created havoc in the public. He is in the habit of keeping weapon and knife. He has been able to terrorise the witnesses not to depose anything against him in the Court of law. His arrest and prosecution in nuber of cases had no deterred effect on his violent and criminal activities, which are highly prejudicial to the maintenance of public order.

7. Having considered submissions made at the bar and having gone through the record, we are of the view that there is no merit in the petition and the same deserves dismissal.

8. Exercise of power of detention is made dependent on the subjective satisfaction of the Detaining Authority that with a view to preventing a person from acting in a prejudicial manner, as set out in Sub-clauses (i), (ii) and (iii) of Clause (a) to Sub-section (1) of Section 3 of National Security Act, 1980, it is necessary to detain such person. Subjective satisfaction of the Detaining Authority as regards these matters constitutes the foundation for the exercise of the power of detention. The Court cannot be invited to consider the propriety or sufficiency of the grounds on which satisfaction of the Detaining Authority is based. In Khudi Ram Das Vs. State of West Bengal and Others, , it was held that the Court cannot on a review of the grounds, substitute its own opinion for that of the authority, for what is made a condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the Detaining Authority. If a subjective opinion is formed by the Detaining Authority as regards the necessity of detention for a specified purpose, the condition of exercise of power of detention would be fulfillled.

9. The Detaining Authority in the instant case, on consideration of the material placed before it , as is referred to in the impugned order of detention, formulated an opinion and was satisfied that with a view to prevent the petitioner from acting, in any manner, prejudicial to the maintenance of public order, it is necessary to make an order directing the petitioner to be detained. Nothing is shown that due care and caution was not taken in exercise of the power or that it was not fair and just exercise of power of detention.

10. Considering the past criminal record over a span of almost 12 years, for which the petitioner is found to have been involved in as many as 30 cases, recent one being such, which involved public at large, it cannot be said that due care and caution was not taken by the authorities. The Detaining Authority also considered the aspect of acquittal of the petitioner in 11 cases and also the fact the trial in most of the other cases was still pending.

11. The submission that criminal activities alleged against the petitioner were directed against a particular set of persons and not against community at large also has no force. In Ashok Kumar Vs. Delhi Administration and Others, (198) 2 S.C.C. 403, it was held that true distinction between the areas of "public order" and "law and order" lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of "law and order" and "public order" is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different context and circumstances might cause different reactions. In one case it might affect specific individuals only and, therefore, touch the problem of law and order, while in another it might affect public order. This it was held that the act by itself is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of t e of the community, which makes it prejudicial to the maintenance of public order.

12. In State of U.P. Vs. Hari. Shankar Tewari, , it was held that conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle. As and when an order of detention is questioned, it is for the Court to apply the well known tests to find out whether the impugned activities upon which the order of detention is grounded fall under the classification of public order or belong to the category of law and order.

13. What to say of the cases prior to 1996, the recent ones, which are for the period from 2.2.1996 to 15.7.1997, the involvement is for different offences and in different police stations viz. under Sections 392/397/341/411, I.P.C. of Police Station Keshavpuram; under Sections 457/380, I.P.C. of Police Station Sarojini Nagar (four cases); under Sections 307/34; I.P.C. of Police Station Sarojini Nagar; under Sections 25 and 27 of the Arms Act of Police Station Sarojini Nagar; and under Section 25 of the Arms Act within the jurisdiction of Police Station Hazarat Nizamuddin.

14. In Ashok Kumar's case (supra) the Court considered similar facts and situation where criminal activities of detenu in the past pertained mostly to breaches of law and order, but had lately taken a turn for the worse. The detenu was found to have become a notorious character. His main activities were theft, robbery and snatching of ornaments by the use of knife and fire arms. The area of operation was alleged to be limited to South Delhi, such as Greater Kailash, Kalkaji and Lajpat Nagar. In this background the Court observed that when all relevant factors were taken into consideration and it is a matter of grave concern that in Metropolitian City of Delhi law and order situation is worsening every day and use of knives and firearms has given rise to a new violence; there is constant struggle to control the criminal activities of persons engaged in such organized crimes for the maintenance of public order; the Detaining Authority in the impugned order did consider the vast area of operaon of the petitioner as also his criminal activities particularly committing crimes in broad day light for creating panic and fear in the minds of people; and held that definitely such acts fall within the realm of public order.

15. Applying the ratio of the decision in Ashok Kumar's and Hari Shankar Tiwari's cases (supra) to the facts, when all relevant factors were duly taken into consideration by the Detaining Authority, we do not find any illegality in the decision making process and consequently no force in the petition, which is hereby dismissed.