Narender Kumar vs Union Of India (Uoi)
2002 Latest Caselaw 1438 Del

JUDGMENT

R.C. Jain, J.

1. By means of this writ petition under Article 226 of the Constitution of India, the petitioner seeks to assail the order of the Commissioner of Police, Delhi dated 31st October, 201 thereby ordering the detention of the petitioner under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) with a view to prevent him from action in any manner prejudicial to the maintenance of the public order. The basis for making the said order, as would be apparent from the grounds of detention are that as many as 12 criminal cases fully enlisted in the grounds of detention some for serious offence such as extortion and robbery, murder attempt to murder etc, were registered against the detenu during the period 1990 to 20th August, 2001. Some of these cases have already ended up in acquitted or discharge of the detenu while only two cases, one arising out of FIR 268 under Section 392/34 IPC and Arms Act PS Model Town and another FIR No. 187 under Section 384/506 IPC PS Frash Bazar were pending trial. Two cases arising out of FIR 271 under Section 384/411/120B/34 IPC PS Kamla Market and FIR No. 159 under Section 25 o the Arms Act PS Frash Bazar were pending investigation. The detenu, however, stands convicted in Case FIR 254 PS Kamla Market for the offence under Section 25 of the Arms Act. The Detaining Authority, it appears taking note of more specifically of six cases out of the said 12 criminal cases and the fact that in six cases the detenu was acquitted because the witnesses including the injured have not dared to depose against the detenu had reached the requisite satisfication for invoking Section 3 of the Act. The grounds of detention also mention that after great persuasion and assurance, two persons of the area came forward to give their statements about the criminal activities of the detenu but pleaded that their statements be kept secret, otherwise their lives will be in danger but there statements could be produced before the Advisory Board or the Court. It was also noticed that the detenu was in judicial custody in case FIR No. 159/2001 of PS Frash Bazar and case No. 271/2001 under Section 384/411/120B/34 IPC PS Kamla Market, Delhi had been granted bail, but the bail bonds were yet to be accepted and he will be released from jail on acceptance of the bail bond. From the said facts, the detaining authority came to the conclusion that the detenu was a desperate and dangerous criminal, his activities being pre-judicial to the maintenance of the public order and in view of his past criminal history there was every apprehension/imminent possibility that he will again indulge in such type of criminal activities which were detained to be highly prejudicial to the maintenance of the public order. Pursuant to said order, petitioner was detained on 1.11.2001.

2. The Lt. Governor of Delhi, exercising the powers of State within the meaning of Sub-section 4 of Section 3 of the Act approved the detention order vide an order dated 6.11.2001. The Advisory Board also found the detention order justified.

3. We have heard Shri Rupesh Sharma, learned counsel representing the petitioner and Ms. Mukta Gupta, Standing Counsel representing the State National Capital Territory of Delhi and have given our thoughtful consideration to their submissions. The foremost ground on which the detention order is sought to be challenged as invalid and unjustified is that the reliance of the Detaining Authority on six cases in which the petitioner already stands acquitted in order to form an opinion that the petitioner was a desperate and dangerous criminal was not justified, in as much as in those cases, the appellant had been acquitted from the charges on merits after full dress trial. The acquittal of the petitioner would show that he had been falsely implicated in the cases. We do not find any merit in this contention because the copies of judgments of the trial court annexed with the grounds of detention would show that in all these cases the acquittal was the result of the important prosecution witness including the eye witnesses and in some cases even the victim of the incident had failed to support the case. On the face of these circumstances, one case safely inter that it must be due to the terror wielded by the petitioner and his brother that the witnesses felt shy to depose against the petitioner as they must be apprehensive of some ensuring harm at the hands of the accused in case they deposed against him.

4. The learned counsel for the petitioner next submitted that reliance of the detaining authority upon the case FIR No. 264/98 under Section 307/34 IPC & 27/54/59 Arms Act dated 27.6.98 PS Krishan Nagar is wholly misplaced as the petitioner in that case was acquitted because he was lodged in Mathura fail on the day and time of the alleged incident. No cogent material could be pointed out on behalf of the petitioner to substantiate these pleas of alibi by the petitioner.

5. The next importance ground pressed on behalf of the petitioner is that the detaining authority has mistakenly treated 'law and order' situation as public order problem because in the case in hand even if the averments and allegations as relied upon by the detaining authority with regard to the involvement of the petitioner in a number of criminal cases is taken on its face value it would at best amount to 'law and order' problem and by no stretch of imagination can tantamount to the activities pre-judicial to the maintenance of the public order within the meaning of Sub-section 3 of Section 3 of the Act. In support of his contention, learned counsel for the petitioner has placed reliance upon the decision of the Apex Court in the case of Ajay Dixit v. State of U.P. and Ors., and Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. . In the former case the Apex Court on a consideration of the facts of that case held that the allegation mentioned in the grounds of detention do not pertain to public order being not of such nature as to lead to any apprehension that the even tempo of the community would be endangered. As to whether allegations tantamount of 'law and order' or 'public order' situation, the Court laid as under:-

"The difference between law and order situation and maintenance of public order must be kept in mind. The act be itself is not determinant of its gravity. In its quality it may not differ from another but its potentiality may be very different. Therefore, the question whether a man has only committed a breach of law and order or acted in a manner likely to be disturbance of public order is a question of degree of the reach of the act upon society. It is necessary in each case to examine the facts to determine, not the sufficient of the grounds nor the truth of the grounds; but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order."

In the later case, the Apex Court held as under :-

"The criminal cases again the detenu mentioned in the grounds of detention were confined to certain private individuals. There was nothing in this case to show that the petitioner was a member of a gang engaged in criminal activities systematically in a particular locality which created a panic and a sense of insecurity amongst the residents of that particular area in consideration of which the impugned order was made. The alleged activities of the detenu did not affect adversely or tend to affect the even tempo of life of the community. They merely related to law and order problem. Their reach and effect was not so deep as to affect the public at large and they did not in any way pose to threat to the maintenance of public order. An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order. So there has been complete non-application of mind by the detaining authority before reaching a subjective satisfaction to make the impugned order of detention."

6. As against this, learned standing counsel submitted that the activities of the petitioner more particularly relating to the repeated offence of extracting money from the shop keepers and passengers and even causing them injuries in the process are sufficient to create terror which in turn would bring the said activities of the petitioner within the ambit of the term 'public order'. In support of her contention, she placed reliance upon the three Supreme Court decisions namely : (i) Ashok Kumar v. Delhi Administration and Ors. ; (ii) Hasan Khan Ibne Haider Khan v. R.H. Mehndonca and Ors. (2000)2 SCC 511; and (iii) Amanulla Khan Kudeatalla Khan Pathan v. State of Gujrat and Ors. . In the case of Ashok Kumar v. Delhi Administration and Ors. (supra) the Apex Court has more fully dealt with the aspect as to what is 'public order' and how it is distinguishable from the 'law and order' and held as under :-

"The 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 contexts 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. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act of disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.

"Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but intercept before he does it and to prevent him from doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only 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. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose."

"What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act or violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offence primarily inure specific individuals and only secondarily the public interest, while others directly inure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control. whenever there is an armed hold-up by gangsters in an exclusive residential area of the city and persons are deprived of their belongings like a car, wrist- watch or cash, or ornaments at the point of a knife or revolver, the become victims of organized crime. Such particular acts when enumerated in the grounds of detention clearly show that the activities of the detinue cover a wide field and fall within the contours of the concept of public order."

7. In the case of Hasan Ibne Haider Khan (supra) the Court held that it is the magnitude of the activities and its effect on the even tempo of life of the society at large or within a section of society that determines whether the activities can be said to be prejudicial to the maintenance of the public order or the same amounted to breach of law and order. Further the fallout and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law of deal with him or to prevent his subversive activities affecting the community at large or a larger section of society. In the case of Amanulla Khan Kudeatalla Khan Pathan (supra) the court held that the activities of the detenu in extorting money, giving threat to public and assaulting businessmen near their place of business were held to be sufficient to affect the even tempo of life of the society and in turn amounting to the disturbance of the public order and not mere disturbance of law and order.

8. Keeping in view the legal position emerging from the said decisions, we have no hesitation in holding that the activities of the petitioner more particularly in relation to the commission of offence of extortion of shopkeepers and other passengers and attempting on their life and causing them hurt or grievous heart and the witnesses not coming forward to depose against the petitioner out of the fear were not restricted only to a law and order situation but these activities squarely fall within the ambit of public order. We are therefore, of the view that the detention order cannot be faltered on this court.

9. Yet another ground on which the detention is sought to be challenged is that the bail application and the orders passed thereon which find a reference in the grounds of detention were neither placed before the detaining authority nor supplied to the detenu and in any case the detention order was passed with the sole object of frustrating the said bail orders. In our view this ground too is not available to the petitioner because there appears to be nothing wrong on unjustified if a detaining authority exercises the powers under Section 3(2) of the Act apprehending the indulgence of the detenu in similar type of criminal activities soon after his release on bail. On the facts and circumstances of the case in hand, we are of the considered view that the impugned detention order cannot be said to have been passed merely to frustrate court order releasing the petitioner on bail, but it appears to be based on genuine apprehension entertained by the detaining authority about the prejudice which was likely to be caused in maintenance of public order in case the petitioner was released. No prejudice can be said to have been caused to the petitioner by not furnishing him copies of the bail application and the order inside thereon particularly when its details find mention in the grounds of detention.

10. Lastly, it was urged by learned counsel for the petitioner that the detention order is invalid as it has not been approved by the State Government as required by Sub-section 4 of Section 3 of the Act. The arguments as been noted just to be rejected because it has not merits in it. By virtue of Clause (e) of Section 2 of the Act is relation to the Union Territory, it is the Administrator who is to be construed as State Government. The Ltd. Governor of Delhi who has approved the detention order under Sub-section 4 of Section 3 of the Act by means of order dated 6.11.2001 is the Administrator of the National Capital Territory of Delhi (Union Territory) within the meaning of Article 239 of the Constitution.

Thus having considered the matter and having regard to the totality of the facts and circumstances and the material obtaining on record, we do not had any good ground or infirmity to quash the impugned detention order. The writ petition fails and is accordingly dismissed.