Smt. Swati Singh Chauhan vs The State Of Madhya Pradesh
2021 Latest Caselaw 8031 MP

1

     The High Court of Madhya Pradesh Bench at Indore



Case Number                        W.P.No. 15498/2021
Parties Name                     Smt. Swati Singh Chauhan
                                            Vs.
                                  The State of MP & Ors.
Date of Order         01/12/21
Bench                 Division Bench:
                      Justice Sujoy Paul
                      Justice Pranay Verma
Judgment delivered    Justice Sujoy Paul
by
Whether approved      NO
for reporting
Name of counsel for Shri Rajat Raghuwanshi, learned counsel for
parties             the petitioner.
                    Shri Vivek Dalal, learned Addl. Advocate
                    General for the respondents/State.


                              ORDER

(Passed on 01st December, 2021)

Sujoy Paul, J.:

The wife of detenue/corpus has filed this petition under Article 226 of the Constitution assailing the detention order dated 22/07/2021 and subsequent order dated 27/10/2021 whereby period of detention was extended further for a period of three months. The said orders passed under National Security Act, 1980 (NSA Act) are called in question on various grounds.

2) Briefly stated, the detention order is assailed by stating that pursuant to a FIR in Crime No.699/2021 registered on 19/07/2021 for allegedly committing offences under Section 307 & 34 of IPC, the detenue was arrested on 21/07/2021. The detention order was issued on 22/07/2021. The detention order was not forthwith communicated to detenue or his family members. The detenue was in police remand till 03/08/2021. During this period, the detenue was formally arrested

under the NSA Act on 28/07/2021 (Annexure R/3). The detenue was sent to judicial custody by order of Judicial Magistrate First Class. The order-sheet of said Magistrate dated 01/08/2021 is relied upon to show that till 03/08/2021, the detenue was in police custody yet the order and grounds of detention were not served on him. The grounds of detention were served on him only on 21/07/2021.

3) Shri Rajat Raghuwanshi, learned counsel for the petitioner submits that the petitioner, wife of detenue by representation dated 11/08/2021 inquired about the reason of detention. In this representation, she clearly stated that she or her family members have not received any document to show as to how NSA is invoked against her husband.

4) By placing reliance on the language employed in Section 3(4) of NSA, Shri Rajat Raghuvanshi, learned counsel for the petitioner submits that detention order needs to be communicated to the detenue forthwith, so that he can prefer representation before District Magistrate or other concern authority. There is no valid reason why detention order passed on 21/07/2021 was not served on the detenue till 28/07/2021 when he was very much in the custody of police authorities. For this purpose, reliance is placed on the judgment of Supreme Court reported in 2018 AIR SC 3419 (Hetchin Haokip vs. State of Manipur & Ors.). For the same purpose, Division Bench of this Court (Gwalior Bench) in WP No.3242/2021 (Munnalal vs. State of MP & Ors.) decided on 17/03/2021 and WP No.3019/2021 (Vinod Goyal vs. State of MP & Ors.) decided on 10/03/2021 are relied upon.

5) The next contention of learned counsel for the petitioner is that in the detention order, there is nothing to show that the District Magistrate was aware about the recent arrest of the detenue. In absence thereof, the order runs contrary to the order passed by Principal Seat in WP No.26052/2018 (Smt. Neelam Yadav vs. State of MP). The learned counsel for the petitioner by taking this Court to the

FIR submits that the allegation against the petitioner is that on 19/07/2021 in 74 Syndicate Office Cabin, IInd Floor, Vijay Nagar, Indore, during a meeting, he caused gunshot injury to a person, who was attending the meeting. It is strenuously contended that this allegation, at best, will bring the incident within the ambit of 'law and order' and will not attract 'public order'. The incident had taken place within a closed room and had no impact on public at large. Thus, NS Act is not attracted. To buttress this argument, reference is made to (2012) 2 SCC 176 (Yumman Ongbi Lembi Leima vs. State of Manipur & Ors.) and (2021) 9 SCALE 15 (Banka Sneha Sheela vs. The State of Telengana & Ors.). Lastly, it is submitted that criminal record of detenue filed as Annexure R/1 also reflects that there is no such criminal record which could have been a reason for invoking the provisions of NS Act. The extension order was criticized on the strength of order of Indore Bench passed in WP 1820/2021 (Karandeep Singh vs. State of MP) wherein it was held that mere perception of police personnel without factual foundation will not provide sufficient relevant material for extension of detention orders under the garb of threat to the safety and tranquility of the people in society or even tempo of the people of the community.

6) Countering the said argument, Shri Vivek Dalal, learned AAG urged that the detention has a criminal record which is filed as Annexure R/1. He fairly submitted that detention was arrested on 21/07/2021. On 24/07/2021, the permission for formal arrest of detenue was obtained from the concerned Magistrate. It is also admitted that detention order and grounds of detention were served on the detenue on 28/07/2021. The detenue was on police remand up to 03/08/2021 is also not in dispute. However, learned AAG submits that considering the nature of incident which resulted into lodgment of FIR on 19/07/2021, it is clear that the incident falls within the scope and ambit of 'public order' and is not confined to a 'law and order'

situation. He supported the detention order and the order whereby it was extended for a period of further three months.

7) Parties confined their arguments to the extent indicated above.

8) We have bestowed our anxious consideration on rival contentions and perused the record.

9) Section 3(4) of the NS Act, in no uncertain terms, makes it obligatory for the detaining authority to 'forthwith' report the fact to the State Govt. regarding detention. A Full Bench of this Court in WP No.22290/2019 (Kamal Khare Vs. State of MP) opined that the detenue has a valuable right to prefer representation before the District Magistrate. The relevant portion reads as under:-

"48. While therefore keeping the above referred to principles of law in view, the detaining authority is under an obligation to ensure that personal liberty of an individual is the most precious and prized right guaranteed under the Constitution. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention which are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are indeed in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order. If the offences complained of against the person are of a nature which can be dealt with under the ordinary law of land, taking recourse to the provisions of prevention detention would be contrary to the Constitutional guarantees enshrined in Articles 19 and 21 of the Constitution of India. It is trite that personal liberty protected under Article 21 of the Constitution of India is so sacrosanct and so high on the scale of Constitution values that it casts an obligation on the detaining authority to show that the order of preventive detention it has passed meticulously accord with the procedure established by law. Individual liberty is a cherished right which is one of the most valuable fundamental rights guaranteed by our Constitution to the citizens of the country. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. Therefore, in the scheme of the Constitution, utmost importance has been given to life and personal liberty of the individual. In the matter of preventive detention there is deprivation of liberty, therefore, safeguards provided by Article 22 of the Constitution of the India have to be scrupulously adhered to."

10) No doubt, in the detention order, it is mentioned that representation can be preferred against the detention order before the District Magistrate, but fact remains that this detention order was not forthwith communicated to the detenue. Upon a specific query from the Bench and on the strength of record, learned AAG stated that although detention order and grounds thereof were sent to the State Govt. by the detaining authority on 22/07/2021, the same were served on the detenue only on 28/07/2021. The State Govt. approved the decision of detention on 02/08/2021. The right to prefer representation before the District Magistrate in our view is not an empty formality. The detenue must get a meaningful opportunity to submit representation before the District Magistrate. In a case of this nature where detenue was in police remand till 03/08/2021 and was repeatedly produced before the Court, we fail to understand as to why detention order and grounds of detention were not served on him on 22/07/2021 or immediately thereafter. The respondents have not given any plausible explanation as to why detention order and grounds are not served to the detenue between 22/07/2021 and 28/07/2021. Thus, detentue was denied the right to prefer a representation immediately upon his detention.

11) A careful reading of FIR shows that incident had taken place during a meeting in 74 Syndicate Office Cabin, IInd Floor, Vijay Nagar, Indore. The incident had not taken place in public eye or at a public place. The 'law and order' and 'public order' are two different facets. The constitution bench of Supreme Court in AIR 1966 SC 740 (Dr. Ram Manohar Lohia vs. State of Bihar) considered the difference between law and order and public order. In Ajay Dixit vs. State of UP (1984) 4 SCC 400, the Apex Court again considered the judgment of Dr. Ram Manohar Lohia (supra) and opined as under:-

"9. .....The learned Judges further observed that the contravention "of law" always affects "order" but before it could be said to affect "public order", it must

affect the community or the public at large . One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "security of State". An act may affect "law and order" but not "public order", just as an act may affect "public order" but not "security of the State". Therefore one must be careful in using these expressions."

(Emphasis Supplied)

12) In the said case, the appellant therein had molested two respectable young ladies, threatened their father's life and even assaulted two other individuals. It was held by the Court that 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 society.

The test laid down was - Does it lead to a disturbance of even tempo of the life of the community so as to amount to disturbance of a public order, or, does it affect merely an individual act without affecting the tranquility of society.

13) This view is consistently followed by Supreme Court till date. In Yumman Ongbi Lembi Leima (supra). The relevant para reads as under:-

"15. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised withdue caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Indian Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention."

(Emphasis Supplied)

14) In our considered view, it is necessary in each case to examine the facts to determine, not the sufficiency 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 detenue is necessary for maintenance of public order.

15) At the cost of repetition, in our opinion, the nature of incident allegedly taken place inside a room during a meeting will not amount to breach of 'public order'. The individual incident of offence of this nature even if heinous is not capable of attracting the provisions of NS Act. Thus, we find substance in the argument of learned counsel for the petitioner that NS Act is not rightly invoked.

16) So far criminal record of detenue is concerned, a careful reading of criminal record (Annexure R/1) shows that from 1998 to 2003, except two cases, 15 cases were registered against the detenue for allegedly committing offence under Section 34 of MP Excise Act. The detenue was admittedly engaged in the business of liquor. The last offence although heinous but had taken place in the year 2014 (Crime No.564/2014). From 2014 till registration of FIR on 21/07/2021, no criminal incident has been brought to our notice. Thus, criminal record is also not of that nature which could have been a reason for invoking Section 3 of the NS Act.

17) For the reasons stated above, the detention order cannot sustain judicial scrutiny. The inevitable consequence of this will be interference by us in the extension of detention order also.

18) Resultantly, both the orders dated 22/07/2021 and 27/10/2021 are set aside. The petition is allowed.

         (Sujoy Paul)                                         (Pranay Verma)
            Judge                                                  Judge

soumya
             Digitally signed
             by SOUMYA
             RANJAN DALAI
             Date: 2021.12.01
             16:33:15 +05'30'