Madhya Pradesh High Court
Ashok Kanjar vs The State Of Madhya Pradesh on 22 April, 2021
Author: Sheel Nagu
1 W.P.No.3886/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:DIVISION BENCH:
BEFORE: SHEEL NAGU AND ANAND PATHAK, JJ.
WRIT PETITION No.3886/2021
Ashok Kanjar
Versus
State of Madhya Pradesh and others
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Shri Prem Singh Gurjar, learned counsel for the petitioner.
Shri D.D. Bansal, learned Government Advocate for the
respondents/State.
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ORDER
(Passed on 22nd day of April, 2021)
Per Justice Anand Pathak, J.:
1. Present petition is under Article 226 of the Constitution of India
in the nature of certiorari taking exception to the order dated 21-
01-2021 passed by the Collector/District Magistrate, Shivpuri
(Annexure P/1) whereby provision of Section 3(2)(3) of the
National Security Act, 1980 (hereinafter referred to as 'the Act')
has been invoked and petitioner has been directed to be detained
for 3 months at Circle Jail Shivpuri.
2. Precisely stated facts of the case are that petitioner is resident of
Tahsil Karera District Shivpuri and is living within the
territorial jurisdiction of this Court. It appears from the
pleadings that for last almost 17 years petitioner faced different
criminal cases/charge-sheeted for alleged commission of
different offences, particulars of which are placed with the
petition and on the basis of those cases as well as apprehension
of the authorities that petitioner may commit breach of public
order, proceedings were initiated under the Act against the
petitioner which culminated into passing of impugned order
dated 21-01-2021 by the District Magistrate, District Shivpuri.
3. From the pleadings, it appears that on 18-01-2021 a case was
registered against the petitioner vide Crime No.39/2021 at
Police Station Karera District Shivpuri for the alleged offence
under Section 34(2) of the M.P. Excise Act in which it was
found that at his place of residence petitioner was involved in
manufacturing of adulterated liquor using urea and other
adulterated ingredients to manufacture adulterated country made
liquor for consumption in the vicinity. Since petitioner had
chequered history of 12 cases, therefore, SHO, Police Station
Karera District Shivpuri (respondent No.4 herein) prepared a
detailed note of the activities of the petitioner and his conduct
and vide recommendation dated 21-01-2021 recommended to
Superintendent of Police, Shivpuri (respondent No.3 herein) to
invoke the provisions of Section 3 of the Act since the petitioner
is having criminal history of around 12 cases and is a threat to
Public Order. On such recommendation, respondent No.3
initiated the proceedings against the petitioner under the
provisions of the Act and list of 12 cases and discussion
regarding his activities amounting to threat to public order was
recommended to District Magistrate, Shivpuri on 21-01-2021
itself. District Magistrate, Shivpuri (respondent No.2 herein)
after considering the fact situation, recommendations, conduct
of petitioner and the statement of prosecution witness (Dr.
Narayan Singh Kushwah Medical Officer, Community Health
Center, Karera) passed the impugned order of detention in
exercise of power under Section 3(3) of the Act. Being
crestfallen by the said order of detention, petitioner has
preferred this petition.
4. It is the submission of learned counsel for the petitioner that
order of detention is being passed on the basis of old and stale
cases in which petitioner has already been acquitted way back
and these stale cases are not at all sufficient to invoke the
provisions of the Act. He referred different orders passed in this
regard by the trial Courts in which after trials, he has been
acquitted. Although in some cases, prosecution could not prove
the case beyond reasonable doubt. He referred order of acquittal
passed in two cases; one is vide Crime No.256/2009 Police
Station Karera for offence under Sections 148, 326, 326 read
with Section 149, 323 (two counts), 336 of IPC and another is
of Crime No.122/12 Police Station Karera under Section 34(2)
of M.P. Excise Act. Except these two cases no other order of
acquittal has been placed.
5. It is further submitted by learned counsel for the petitioner that
petitioner is suffering from liver and kidney problem and
undergoing treatment for considerable period of time and his
treatment is going on at Agra (U.P.), therefore, petitioner
deserves sympatric consideration. He raised the point in respect
of non grant of opportunity of hearing. He also relied upon the
judgment passed by this Court on 02-02-2021 in the case of
Awadhesh Sharma Vs. State of Madhya Pradesh and others
in Writ Petition No.19548/2020 and seeks parity.
6. According to learned counsel for the petitioner, compliance of
Sections 3(5) and 8 of the Act has not been made. Therefore,
impugned order deserves to be set aside.
7. Learned counsel for the respondents/State vehemently opposed
the prayer and submitted that petitioner is a habitual offender
and since year 2004 he is involved in manufacturing, storage
and sale of illicit and adulterated country made liquor. He
referred 12 criminal cases registered against him in which list as
provided by the Government Counsel is as under:
S.No. Crime Number Details of offences
1 50/2004 342, 323, 294, 506-B of IPC
2 345/2004 49-A of M.P. Excise Act
3 142/2008 323, 294, 506, 34 of IPC
4 294/2008 324, 323, 336, 147, 148, 149, 325 of IPC
5 256/2009 323, 324, 294, 506-B of IPC
6 122/2012 34(2) of M.P. Excise Act
7 241/2017 307, 341, 323, 294, 147, 148 of IPC
8 243/2017 34(2) of M.P. Excise Act
9 504/2019 323, 294, 506 of IPC
10 266/2020 34(2) of M.P. Excise Act
11 39/2021 34(2) of M.P. Excise Act
12 17/2020 110 of Cr.P.C.
8. On the basis of above chart which is placed by the petitioner
also and described by the respondents as Annexure R/1,
Government Counsel submits that except four cases viz. Crime
No.345/2004 registered at Police Station Karera under Section
49-A of M.P. Excise Act, Crime No.142/2008 at Police Station
Karera under Section 323, 294, 506/34, Crime No.256/2009 at
Police Station Karera under Sections 324, 323, 336, 343, 148,
149 of IPC and Crime No.122/12 at Police Station Karera under
Section 34(2) of M.P. Excise Act which appear to be resulted
into acquittal, all other cases are still pending and he is threat
to the public order to the extent that he is involved in grabbing
Government land and establishing a manufacturing unit of illicit
liquor over it. He is so emboldened by his criminal acts which
went unpunished that he printed his visiting cards also in which
he mentioned his profession as Manufacturer of Country Made
Liquor and it was a matter of public attention also because this
fact got published in news papers of the vicinity. All these
documents are on record.
9. Therefore, submission of learned counsel is that the criminal
history of petitioner and impact of his conduct over the public at
large has debilitating effect and witnesses do not come forward
to depose against him because of his fear and terror. When last
case was registered against him on 18-01-2021 vide Crime
No.39/2021 at Police Station Karera District Shivpuri for the
offence under Section 34(2) of the M.P. Excise Act, 190 liters
country made liquor (dPph 'kjkc) and one bag of urea and 4000
liters Lahan (adulterated raw material prepared from rotten
shoes, wood stock and other non edible material) were seized
from his manufacturing unit which were destroyed.
10. Dr. Ritesh Yadav MD Medicine Medical College Shivpuri
opined that if liquor is manufactured from urea then it causes
damage to kidney and lever because during preparation of
country made liquor, urea with alcohol makes Methyl Alcohol
which is like poison and because of this poisonous substance
(appearing as alcohol), people at times lose their eye sights and
some times even life. Dr. Devendra Khare from Community
Health Center, Karera District Shivpuri also opined about the
harmful impact of country made liquor with such adulterated
material and because of low price it is being consumed regularly
by many poor persons. Recently many such persons lost their
lives in Morena and other neighbouring districts of Shivpuri.
Since petitioner runs Reign of Terror, therefore, people are
afraid of making complaints. Not only this, Government land
worth Rs.3 crores has also been retrieved back by the Police
from the possession of petitioner when raided the said place
from where petitioner used to operate for manufacturing illicit
and adulterated country made liquor. He does not have any
licence as such to manufacture the said liquor.
11. It is further submitted that looking to long criminal history
spread over such long period of 17 years are sufficient enough
to proceed against him. He also referred the fact that because of
strong action taken by administration/police against him sent a
right signal in the society and people have appreciated the act.
He referred one such letter of City Corporator of the area who
appreciated the action.
12. Relying upon the different statements recorded in the present
case and judgments in the case of Khurvesh alias Pappu alias
Pahalwan Vs. State and another, ILR (2010) (II) Delhi 550 as
well as in the case of Narendra Kumar Vs. Union of India
(UOI), 2002 STPL 12860 Delhi, Division Bench of Allahabad
High Court in the case of Noor Mohammad Vs. State of U.P.
and another, 1982 STPL 4030 Allahabad and Division Bench
of Rajasthan High Court in the matter of Subhan Mohammad
Vs. State of Rajasthan and another, 1988 STPL 5970
Rajasthan, he prayed for dismissal of writ petition.
13. Heard learned counsel for the parties and perused the record.
14. Instant case is in respect of National Security Act and its
different fallouts and factual contours attract reconciliation
between "Public Order" and "Personal Liberty".
15. So far as question regarding breach of public order or threat to
public peace is concerned, this aspect also is very subjective and
differs from case to case. In Ashok Kumar vs. Delhi
Administration and others, (1982) 2 SCC 403, the Apex Court
held that preventive detention is devised to afford protection to
society. It was observed that preventive measures, even if they
involve some restraint and hardship upon some 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. The
Executive is empowered to take recourse to its power of its
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 over-awed
witnesses or against him no one is prepared to depose.
16. The Court also made a distinction between the concepts of
"Public Order" and "Law and Order" in the following words: -
"13. 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 to disturb the
even tempo of the life of the community which
makes it prejudicial to the maintenance of public
order. That test is clearly fulfilled in the facts and
circumstances of the present case."
17. The Supreme Court in the context of preventive detention also
highlighted the distinction between "Public Order", "Security of
State" and "Law and Order" in the case of Commissioner of
Police and Ors. Vs. C. Anita, (2004) 7 SCC 467 in following
words:
"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(1972) 3 SCC 831).
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 (Dr.) v. State of Bihar
(1966) 1 SCR 709; 1966 Crl.LJ 608)
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: AIR1972SC1749; Pushkar
Mukherjee v. State of West Bengal(1969) 1 SCC 10;
Arun Ghosh v. State of West Bengal(1970) 1 SCC 98;
Nagendra Nath Mondal v. State of West
Bengal(1972) 1 SCC 498]."
18. An act, affecting public order, may have ramifications over law
and order and security of the State at the same time {See:
Kishori Mohan Bahra Vs. State of West Bengal, (1972) 3
SCC 845, Pushkar Mukherji Vs. State of West Bengal,
(1969) 1 SCC 10, Arun Ghosh Vs. State of West Bengal,
(1970) 1 SCC 98, Nagendra Nath Mondal Vs. State of West
Bengal, (1972) 1 SCC 498}.
19. Some Crimes give Psychic Gains whereas some Crimes give
Monetary Gains. If Cultural Norms affect the law, the law
likewise affects cultural norms. Therefore, expressive function
of punishment or deterrent of punishment is the law's capacity
to send a message of condemnation about a particular criminal
act. When a criminal mind while committing crime or expresses
his intention to commit crime, sends a message to the world
about the value of victim then conversely punishment or
preventive measure (like the present one) sends a reciprocal
message to the accused in a kind of dialogue with the crime.
Therefore, in the considered opinion of this Court, expressive
function of punishment or preventive measure like detention
under NSA are both retributive and utilitarian. Retributive
punishment/preventive measures give even if not proportional
to the physical/psychic harm done to a victim even then it gives
a chance to the perpetrator to purge his misdeeds and act as
deterrent to other probable perpetrators. Similarly utilitarian
function of punishment/preventive measure has the power to
change social norms and behaviour via the messages it
expresses and may help in reduction of crime.
20. In India where we witness high rate of crime against victims
especially against weaker sections and females originates from
the confidence of perpetrators that they would go unpunished
because of lacuna in Investigation, Prosecution and
Adjudication and therefore, this tendency prompts them to
commit more severe offences and create an atmosphere of fear
and terror. Conduct of petitioner reflects such attitude.
21. Crime and Disorder are strongly interrelated, therefore, Broken
Windows Theory, a Criminological Theory although moves in
respect of Police and law enforcement but has material bearing
in the realm of prosecution, adjudication and specially for
preventive measures like NSA also. According to this theory,
targeting minor disorder is expected to reduce occurrence of
more serious crime. Idea behind is can be summarized in an
expression that if a window in a building is broken and left
unrepaired, all of the windows will soon be broken. On this
analogy also, if preventive measure is taken by the police
against a miscreant like in the present case then it is for the
purpose of sending a message to the person concerned as well as
other probable perpetrators. Since, in the present case petitioner
has chequered history of all types of crime, therefore, whole
proceeding against the petitioner deserves to be seen from that
vantage point also.
22. While dealing with liberty of an individual vis a vis collective
interest of the community, observation of Apex Court in the case
of Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and others,
(1987) 2 SCC 684 is worth consideration when Apex Court
observed as under:
"Liberty is to be secured through process of law,
which is administered keeping in mind the interest of
the accused, the near and dear of the victim who lost
his life and who feel helpless and believe that there is
no justice in the world as also the collective interest
of the community so that parties do not lose faith in
the institution and indulge in private retribution.
Learned Judge was unduly influenced by the concept
of liberty, disregarding the facts of the case."
23. This observation is being reiterated by the Apex Court in the
case of Ramgovind Upadhyay Vs. Sudarshan Singh, (2002) 3
SCC 598. Although above referred observation and reiteration
were in respect of bail but certainly sends a message for
reconciliation between "Personal Liberty" vis-a-vis "Public
Peace" and "Public Order". Said reconciliation is need of the
hour otherwise Public Order, Social Peace and Development of
the area would be sacrificed at the altar of Lawlessness,
Misgovernance and Private Retribution.
24. All these aspects have been dealt with in detail by this Court
recently in the case of Kalla alias Surendra Jat Vs. State of
Madhya Pradesh passed in Writ Petition No.4499/2021.
25. If the above referred legal principles/guidance are tested on the
anvil of present set of facts then it appears that petitioner
appears to be a habitual offender and his criminal activities and
attitude spans around two decades. Not only this, he is involved
in serious offences like Section 307 of IPC also. Although
petitioner has referred the fact that in four cases he has been
acquitted but he placed only two acquittal orders on record; first
is for offence registered at Crime No.256/2009 at Police Station
Karera (Vide Annexure P/4) whereby acquittal has been
recorded vide order dated 28-11-2011 (under Section 232 of
Cr.P.C.) and another is acquittal order dated 12-07-2018 of
crime No.122/2012 under Section 34(2) of M.P. Excise Act
where he was charge-sheeted for preparation of 800 liters of
country made liquor (dPph ns'kh 'kjkc). In both these cases even
police witnesses did not turn up to depose before the Court and
therefore, benefit of doubt was given to the petitioner.
26. It is to be noted that still 3 cases under M.P. Excise Act for
preparing adulterated country made liquor are pending and not
to forget that offence under Sections 307, 341, 323, 294, 147,
148 of IPC vide crime No.241/2017 and other similar nature of
cases, in respect of offences under Sections 325, 323, 324 read
with Sections 147, 148 and 149 of IPC are still pending.
27. It is to be further noted that at times a person who is caught with
illicit liquor (without permit, licence etc.) and tried for the said
offence then it is a case of law and order only but when a person
like petitioner who is constantly involved for last 17 years in
preparation and manufacturing of adulterated country made
liquor, that too prepared from adulterants like urea and Lahan
(ygku) which is prepared through rotten shoes, rotten woods and
other waste material and in a way it is like giving poison to the
consumer and when despite repeated efforts, he does not mend
his ways and continues to be involved in such activities and he
is emboldened to such extent where he causes printing of his
visiting cards (along with his photograph pasted over it),
showing himself as the trader of country made liquor ( dPph
'kjkc) then all these facts and circumstances demonstrate his
audacity to run the Reign of Terror and therefore, it becomes a
case of public order and social peace. It would not be out of
place to mention here that petitioner is involved in Trade of Fear
to continue with his criminal endeavours including act of
encroachment upon Government land and keep manufacturing
illicit liquor, an act which causes pilferage to State exchequer
and also leads to Hooch tragedy, causing social tension, law and
order problem and even promoting other social evils. Where
these tragedies and evils become predominant there the area
becomes vulnerable for public order and community peace.
28. Audacity of such desperado becomes contagious. Such type of
criminal elements inspire and encourage other small time
miscreants to take law and order in their hands at the cost of
public order and social peace and such audacity is a recipe for
emergence of criminal gangs and mafias, therefore, nipping in
the bud of these criminal elements becomes imperative for the
police and administration. Therefore, such large scale
production of illicit liquor with the help of urea and Lahan as
raw material to make such adulterated liquor for unjust profit
leads to big social tension and public order.
29. Perusal of record, specially the recommendation of SHO Police
Station Karera made to the Superintendent of Police, Shivpuri
and thereafter Superintendent of Police, Shivpuri made a
detailed report to the District Magistrate, Shivpuri are very
elaborate and takes into account all necessary contours of the
facts which are required to be placed before the competent
authority to arrive to a decision and opinion of doctors have also
been taken who have specifically mentioned the debilitating
effect of manufacturing of adulterated country made liquor with
the help of urea and Lahan. Therefore, detailed discussion and
proper consideration of information and documents have been
made.
30. Immediate precipitation of event was his involvement in offence
under Section 34(2) of the M.P. Excise Act wherein 190 liters
country made liquor (dPph ns'kh 'kjkc), 4000 liters Lahan, one
bag of urea all were found over the manufacturing unit raided
by the police and interestingly said unit was installed over
Government land (land worth Rs.3 crores) which was
encroached by the petitioner. Audacity of a miscreant needs to
fall in line for betterment of public order and social peace.
31. Long trail of criminal cases of different nature certainly
suggests that they cannot be motivated at the instance of police
authorities or at the instance of some vested interest. These are
the instances/discredit points which are being acquired by the
petitioner because of his misdeeds, misdemeanors and criminal
bend of mind. Therefore, different nature of cases registered and
tried against the petitioner even through resulted into acquittal
cannot be taken lightly. Hon'ble Supreme Court in the case of
Debu Mahto Vs. State of West Bengal, AIR 1974 SC 816 has
held as under:
"...The order of detention is essentially a
precautionary measure and it is based on a
reasonable prognosis of the future behaviour of a
person based on his past conduct judged in the light
of the surrounding circumstances. Such past conduct
may consist of one single act or of a series of acts.
But whatever it be, it must be of such a nature that
an inference can reasonably be drawn from it that
the person concerned would be likely to repeat such
acts so as to warrant his detention. It may be easier
to draw such an inference where there is a series of
acts evincing a course of conduct but even if there is
a single act, such an inference may justifiably be
drawn in a given case."
32. So far as procedural aspect is concerned, compliance of
different provisions of the Act have been followed. Impugned
order has been passed on 21-01-2021 and on 22-01-2021
petitioner was taken into custody. On same day, his arrest was
intimated to his wife and grounds were served and read over to
him on 22-01-2021 itself. From the record, it is clear that
District Magistrate, Shivpuri without any delay reported the
fact/matter to the State Government (on same day) and State
Government had to approve the said order within 12 days (or 15
days as the case may be) and State Government approved the
same within 12 days.
33. It further appears from the submission of Government Counsel
that on the same day after approval (i.e. 30-01-2021) State
Government has referred the matter to the Central Government
for approval as per Section 3(5) of the Act. As per the
pleadings/submission of Government Counsel, Advisory Board
has confirmed the detention order, therefore, no procedural
lacuna exists in the case in hand and authorities have followed
the due procedure in accordance with law.
34. Cumulatively, from the material placed by SHO, Police Station
Karera before the Superintendent of Police, Shivpuri along with
statements of doctors and the report of Superintendent of Police,
Shivpuri placed before the District Magistrate, Shivpuri and
thereafter the contents of impugned order all establish that
proper consideration of facts and circumstances of the case as
well as import of National Security Act have been rightly
considered by the authorities and thereafter impugned detention
order has been passed.
35. Conclusively, petition preferred by the petitioner fails and order
of detention dated 21-01-2021 passed by District Magistrate,
Shivpuri is hereby affirmed.
36. Petition sans merits and is hereby dismissed. No order as to
costs.
37. Copy of this order be sent to District Magistrate, Shivpuri for
information and compliance.
(Sheel Nagu) (Anand Pathak)
Anil* Judge Judge
22/04/2021 22/04/2021
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
DN: c=IN, o=HIGH COURT OF
KUMAR
MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
CHAURAS st=Madhya Pradesh,
2.5.4.20=8512f40a1a9eaa50b680
2d068b51dae27e84c266b09d283
IYA
f0799e67cdc7df50f, cn=ANIL
KUMAR CHAURASIYA
Date: 2021.04.22 15:28:20 -07'00'
