Madhya Pradesh High Court
Juber vs The State Of Madhya Pradesh on 1 July, 2021
Author: Sujoy Paul
1 W.P. No.9833/2021
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
WP No.9833/2021
Juber S/o Ishak Qureshi ......................... Petitioner
Vs.
State of MP & Others ..........................Respondents
...............................................................................................................
Coram:
Justice Sujoy Paul, Judge
Justice Anil Verma, Judge
...............................................................................................................
Presence :
Shri Rakesh Sholanki, Advocate for the petitioner.
Shri Amit Singh Sisodiya, Govt. Advocate for the
respondents/State.
...............................................................................................................
Whether approved for reporting : No
...............................................................................................................
ORDER
(1st July, 2021)
This petition filed under Article 226 of the Constitution
assails the legality, validity and propriety of the order dated
29/04/2021 whereby the petitioner is detained by learned District
Magistrate in exercise of power under Section 3(2) & (3) of
National Security Act, 1980 (in short NSA Act).
2) Learned counsel for the petitioner submits that petitioner is
a law abiding citizen. His mother is a cancer patient. The
petitioner was tried for committing certain petty offences which
is evident from the chart/list (page 14). Three criminal cases of
petty nature were instituted against him. First offence arising out
of Crime No.337/2018 under Section 3 of M.P. Sampatti Virupan
Nivaran Adhiniyam, 1994 in which 1000 rupees' fine was
imposed on the petitioner. Remaining two offences arising out of
Crime No.149/21 & 151/21 are still under investigation. The said
offences are under Section 323, 336, 426, 147, 148, 149 of IPC,
Section 3 of Lok Sampatti Nuksan Nivaran Adhiniyam, 1984 in
Crime No.149/21 and Section 323, 336, 147, 148 & 149 of IPC
in Crime No.151/21.
3) Learned counsel for the petitioner submits that petitioner
was detained on 29/04/2021 and grounds for detention were also
furnished on the same day. No prior opportunity was given to the
petitioner nor grounds were furnished before detaining the
petitioner. The petitioner could not have been subjected to
detention on the basis of old incidents. Reliance is placed on
1986(2) MPWN 61 (Ramesh Yadav vs. State of MP). The next
contention is that adequate material for invoking Section 3 of
NSA Act were not available with the learned District Magistrate.
Reliance is placed on 1988(1) MPWN 158 (Bajal Gazi vs. State
of U.P.). It is further argued that for allegedly committing petty
offences, the drastic provision of NSA Act could not have been
invoked. The report shows that petitioner has caused injury to
communal harmony, but no FIR shows that petitioner has ever
committed any such thing which became a threat to the
communal harmony. Thus, learned District Magistrate has
mechanically invoked the provisions of NSA Act. The detention
order is liable to be interfered with.
4) Shri Amit Singh Sisodiya, learned Govt. Advocate opposed
the contention and urged that the necessary ingredients for
invoking Section 3 of NSA Act are very much available. There is
no flaw in the decision making process. The grounds of detention
dated 29/04/2021 (Annexure R/4) were supplied within statutory
time limit. The order of District Magistrate got stamp of approval
from the State Govt. and Advisory Board. In absence of any fault
in the process, no interference is warranted. Reliance is placed on
a recent order passed by this Court in WP No.9529/2021 (Smt.
Monica Tripathi vs. State of MP & Ors.).
5) Parties confined their arguments to the extent indicated
above.
6) We have bestowed our anxious consideration on rival
contentions of the parties and perused the record.
7) Section 3(2) of NSA Act, 1980 reads as under:-
"(2) The Central Government or the State Government
may, if satisfied with respect to any person that with a
view to preventing him from acting in any manner
prejudicial to the security of the State or from acting in
any manner prejudicial to the maintenance of public
order or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the
community it is necessary so to do, make an order
directing that such person be detained. Explanation.--For
the purposes of this sub-section, "acting in any manner
prejudicial to the maintenance of supplies and services
essential to the community" does not include "acting in
any manner prejudicial to the maintenance of supplies of
commodities essential to the community" as defined in
the Explanation to sub-section (1) of section 3 of the
Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980 (7 of 1980),
and accordingly, no order of detention shall be made
under this Act on any ground on which an order of
detention may be made under that Act."
(Emphasis supplied)
8) A bare perusal of this provision leaves no room for any
doubt that it can be invoked in three contingencies:-
i) for preventing him from acting in any manner
prejudicial to the security of State.
ii) for preventing him from acting in any manner
prejudicial to the maintenance of public order.
iii) for preventing him from acting in any manner
prejudicial to the maintenance of supplies and services
essential to the community.
9) This Court is of the opinion that provision is wide enough
to prevent a person from acting in any manner which is
prejudical to the public order. The expression "public order" is
very wide. While considering the meaning of 'public order' in
relation to yet another preventive detention law, the Apex Court
opined in (2004) 7 SCC 467 (Commissioner of Police vs. C.
Anita) as under:-
"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 tranquillity of the society undisturbed?
(See Kanu Biswas v. State of W.B. [(1972) 3 SCC 831 :
1973 SCC (Cri) 16 : AIR 1972 SC 1656] )
9. "Public order" is synonymous with public safety
and tranquillity: "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 Ram Manohar
Lohia (Dr.) v. State of Bihar [(1966) 1 SCR 709 : 1966
Cri 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. State of
W.B. [(1972) 3 SCC 845 : 1973 SCC (Cri) 30] , Pushkar
Mukherjee v. State of W.B. [(1969) 1 SCC 10 : (1969) 2
SCR 635] , Arun Ghosh v. State of W.B. [(1970) 1 SCC
98 : 1970 SCC (Cri) 67 : (1970) 3 SCR 288]
and Nagendra Nath Mondal v. State of W.B. [(1972) 1
SCC 498 : 1972 SCC (Cri) 227] )
11. The distinction between "law and order" and
"public order" has been pointed out succinctly in Arun
Ghosh case [(1970) 1 SCC 98 : 1970 SCC (Cri) 67 :
(1970) 3 SCR 288] . 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 (SCC p. 100, para 3)
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 v. State of W.B. [(1973) 1 SCC 393 :
1973 SCC (Cri) 353] and Milan Banik v. State of
W.B. [(1974) 4 SCC 504 : 1974 SCC (Cri) 540] )"
(Emphasis supplied)
10) The grounds of detention order shows that petitioner along
with other persons used weapons to destroy vehicles, threatened
people and created an atmosphere of fear. In almost similar
circumstances, the detention orders got stamp of approval from
Supreme Court. In (1994) 2 SCC 355 (Amin Mohd. Qureshi vs.
Commr. of Police), the Apex Court opined as under:-
"2. In the grounds of detention it is mentioned that the
detenu is a weapon-wielding desperado committing
crimes such as robbery, extortion, criminal intimidation
etc. in the area of Kalina, Santacruz (East) and that he and
his associates were said to be moving in the area armed
with deadly weapons such as revolver, sword and knife.
Several incidents which took place on February 2, 1993
and February 4, 1993 in which the detenu along with his
associates entered the liquor shops and threatened the
managers and demanded and tried to extract large sums
of money, have been mentioned. It is also mentioned in
the grounds that criminal cases were registered and the
detenu and his associates threatened the witnesses and
also tried to extract money from them. Several other
incidents in which the detenu and his associates entered
the residential houses and extracted money from the
inmates by using force are also mentioned. Therefore the
detaining authority being satisfied that the detenu was
acting in a manner prejudicial to the maintenance of
public order, ordered the detention. It is also mentioned in
the detention order that the copies of the documents have
been enclosed to the grounds of detention and that he had
right to make representations to the Central Government
and the State Government against the detention order.
3. Before the High Court it was contended that the
incidents mentioned in the grounds, even if accepted to be
true, would only affect the maintenance of law and order
and that they are not of that magnitude to affect the public
order. The High Court rejected this contention. Before us,
the same ground is urged. We are satisfied that a perusal
of the incidents would show that the detenu is of a
desperate character and has been indulging regularly in
committing crimes of serious nature disrupting
maintenance of public order........"
(Emphasis supplied)
11) Reference may be made to (2012) 4 SCC 699
(Subramanian vs. State of T.N.). The relevant portion of the said
judgment reads as under:-
"15. The next contention on behalf of the detenu,
assailing the detention order on the plea that there is a
difference between "law and order" and "public order"
cannot also be sustained since this Court in a series of
decisions recognised that public order is the even tempo
of life of the community taking the country as a whole or
even a specified locality. [Vide Pushpadevi M.
Jatia v. M.L. Wadhawan [(1987) 3 SCC 367 : 1987 SCC
(Cri) 526] , SCC paras 11 & 14; Ram Manohar
Lohia v. State of Bihar [AIR 1966 SC 740 : 1966 Cri LJ
608 : (1966) 1 SCR 709] ; Union of India v. Arvind
Shergill [(2000) 7 SCC 601 : 2000 SCC (Cri) 1422] ,
SCC paras 4 & 6; Sunil Fulchand Shah v. Union of
India [(2000) 3 SCC 409 : 2000 SCC (Cri) 659] , SCC
para 28 (Constitution Bench); Commr. of Police v. C.
Anita [(2004) 7 SCC 467 : 2004 SCC (Cri) 1944] , SCC
paras 5, 7 & 13.]
16. We have already extracted the discussion, analysis
and the ultimate decision of the detaining authority with
reference to the ground case dated 18-7-2011. It is clear
that the detenu, armed with "aruval", along with his
associates, armed with "katta" came to the place of the
complainant. The detenu abused the complainant in filthy
language and threatened to murder him. His associates
also threatened him. The detenu not only threatened the
complainant with weapon like "aruval" but also damaged
the properties available in the shop. When the
complainant questioned the detenu and his associates, the
detenu slapped him on his face. When the complainant
raised an alarm for rescue, on the arrival of general
public in and around, they were also threatened by the
detenu and his associates that they will kill them.
17. It is also seen from the grounds of detention that
because of the threat by the detenu and his associates by
showing weapons, the nearby shopkeepers closed their
shops out of fear and auto drivers took their autos from
their stand and left the place. According to the detaining
authority, the above scene created a panic among the
public. In such circumstances, the scene created by the
detenu and his associates cannot be termed as only law
and order problem but it is public order as assessed by the
detaining authority who is supposed to safeguard and
protect the interest of public. Accordingly, we reject the
contention raised by the learned Senior Counsel for the
appellant."
(Emphasis supplied)
12) If the detention order and grounds therefor are examined
carefully, it will be clear that petitioner along with certain
persons had destroyed two government vehicles and threatened
the people because of which the 'public order' was disturbed. The
Advisory Board has already given stamp of approval to this
order. The relevant portion of the order reads as under:-
^^vki vius lkfFk;ksa ds lkFk ,der gksdj ;k
gqlSu ;k gqlSu djus yxs fgUnwvksa dks ek¡] cgu dh
uaxh&uaxh xkfy;ka nsdj vksj Qksu djds cksyk dh lHkh
gfFk;kj ysdj vkvksa budks dkV dj pkSjkgs ij Vk¡x nks
vkids dgus ij jfgl mQZ Nxxk] Hkq:] eatw] vthe]
vdje] ;kdwc mQZ bejku] eksgflu] vQlj] fQjkst] 'kkuk]
'kfdy] tks;k dqjs'kh] eksbZu[kku lfye] eksbuqnnhu] Qsty
o vU; 8&10 vkneh gkFkksa esa iRFkj] bZV Qjlh] MaMs ysdj
x.ks'k pkSd twuk fjlkyk pkSjkgs ij ,df=r gksdj vkids }
kjk cukbZ xbZ ;kstuk ds vuqlkj iFkjko dj fn;k ftlls
nks 'kkldh; okgu rFkk pkSjkgs ij turk ds [kMh dkjks dks
rksMQksM dj NfrxzLr dj fn;k o tksj tksj ls cksy jgs Fks
fd dksbZ ckgj fudyk rks xnZu dkV dj j[k nqaxk {ks= esa
Hk; [kksQ iSnk dj fn;k yksxksa us Mj ekjs lHkh us vius
njokts can dj fn,A vfuy djksfl;k] vkdk'k mQZ xksyw
'kgj ls vius ?kj tk jgs Fks ftUgs jksddj ekjihV dh tSls
rSls tku cpkdj ?kj Hkkx x,A iqfyl dk tks cy yxk Fkk
og Hkh Hkkx [kMk gqvk ckn esa dUVªksy ls izlkj.k dj
vklikl dh Fkkuksa dk cy rFkk fjtoZ cy ,oa ofj"B
vf/kdkfj;ksa ds vkus ij ekbZd }kjk izlkj.k djus ij
ceqfLdy ls vkids b'kkjs ij tks naxk dj jgs Fks os Hkkx
x, RkFkk vki cksy jgs Fks eS vkxs Hkh blls cMk dksbZ dke
d:xkk ftlls bUnkSj esa naxk HkMdk nqaxkA {ks=] dh turk
esa vkidh lkEiznkf;d ekufldrk ls vke turk esa Hk;
O;kIr djus dk gj laHko] iz;kl fd;k x;k gS rFkk {ks= dh
turk Hk;Hkhr gksdj ?kj ls ckgj ugha fudy jgh gSA^^
(Emphasis supplied)
13) It is trite that this Court cannot sit in appeal against the
order of detention. The 'decision making process' can be subject
matter of challenge in a case of this nature. This Court is not
obliged to examine the facts of the case because it is for the trial
Court to examine whether the petitioner has actually committed
such offence or not. On perusal of factual basis/grounds
mentioned in the "grounds for detention", it is clear that
allegations brings him within the purview of "threatening to
public order". In such a situation, NSA provisions can very well
be invoked.
14) Section 8 of NSA Act, 1980 reads as under:-
"8. Grounds of order of detention to be disclosed to
persons affected by the order.
(1) When a person is detained in pursuance of a detention
order, the authority making the order shall, as soon as
may be, but ordinarily not later than five days and in
exceptional circumstances and for reasons to be recorded
in writing, not later than ten days from the date of
detention, communicate to him the grounds on which the
order has been made and shall afford him the earliest
opportunity of making a representation against the order
to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority
to disclose facts which it considers to be against the
public interest to disclose."
(Emphasis supplied)
15) This provision clearly shows that the grounds of detention
must be provided to the detenu within 5 days from the date of the
detention. Admittedly, in the instant case, the grounds of
detention were provided to the petitioner on 29/04/2021, the date
when he was detained. Thus, no fault can be found in providing
the grounds of detention on the same date. No provision could be
pointed out by counsel for petitioner to show that petitioner was
entitled to get an opportunity before passing of detention order.
Even assuming that previous offences were not sufficient to
invoke Section 3 of NSA Act, the incident because of which NSA
Act was invoked shows that 'public order' was being threatened
by the petitioner. Thus, the judgments cited by learned counsel
for the petitioner are of no assistance to him.
16) This Court in Smt. Monica Tripathi (supra) clearly held
that the scope of judicial review against detention order is very
limited. If 'decision making process' adopted by District
Magistrate is vitiated, interference can be made. No fault could
be established relating to 'decision making process'. Thus, no case
is made out for interference by this Court.
17) Petition fails and is hereby dismissed.
(SUJOY PAUL) (ANIL VERMA)
JUDGE JUDGE
soumya
Digitally signed by
SOUMYA RANJAN
DALAI
Date: 2021.07.02
11:07:56 +05'30'
