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SURESH PANDEY versus STATE OF U.P. & ORS.

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Suresh Pandey v. State of U.P. & Ors. - WRIT - C No. 31231 of 2001 [2004] RD-AH 1400 (10 November 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

'RESERVED'

HABEAS CORPUS WRIT PETITION NO. 31231 OF 2001

Suresh Pandey       -------------    Petitioner              

    Versus.

State of U.P. & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

Hon'ble Vikram Nath, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

A reference to the larger Bench has been made on the issue as to whether a single incident can be the basis for passing a detention order under the National Security Act, 1980 (hereinafter called the Act), and as to whether the Lucknow Bench of this Court has rightly decided the Case vide order dated 30.8.2001 in Writ Petition No.315 (H.C.) of 2001 Duksheshwar Singh alias Babbu Singh Vs. Superintendent, Central Jail, Basti & Ors..

The facts of the case as given in the detention order of the petitioner are that the petitioner along with his associates looted a Bus No. UP 53 L 1442 while going from Basti to Lucknow on 16.3.2001, having a large number of passengers, at the point of country-made pistal (Katta), threatening the Driver of the Bus and the passengers. One passenger was robbed of Rs. 5.6 lacs. The Driver was asked on gun point to stop the Bus and the robbers ran away with the booty. The police came on the spot and the petitioner along with other co-accused fired with Katta, created a panic and terror. An F.I.R. was lodged under Sections 394/397/307/411 I.P.C. read with Section 7 of the Criminal Law Amendment Act at the Police Station Harraiya. Petitioner was arrested on 21.3.2001 on the basis of the confessional statement of the co-accused and a sum of Rs.2.5 lacs was recovered from him. The petitioner was served a detention order dated 3.5.2001 (impugned) while he was in jail and was trying to get the bail from the Court under Section 3 (2) of the Act, and the co-accused had been granted bail vide order dated 27.3.2001.

The detention order has been challenged on various grounds and particularly that a solitary incident cannot be the basis of invoking drastic provisions of the Act.

During the pendency of the petition, the detention order passed against the co-accused Dukheshwar Singh stood quashed by this Court vide judgment and order dated 30.8.2001 mainly on the ground that a single incident is not enough to pass the detention order under the Act and some extraneous material had been placed before the Authority, which may have been the basis of his subjective satisfaction. The other Division Bench of this Court did not agree with this view. Hence this reference.

The period of detention expired long back and so petitioner's counsel was not interested in assisting the Court. Shri D.S. Misra was requested to address the Court for making legal submissions only. Sri D.S. Misra submitted that a single incident may not be the basis for passing detention order, and as the Detaining Authority in the instant case was pursuaded by the extraneous and irrelevant considerations, the detention order stood vitiated. It was a case of law and order and not of "public order" warranting the detention. Even if  one of the grounds is vague, irrelevant or non-existent, not connected with the person concerned, the detention order stands vitiated. Report of the Sponsoring Authority referred to various incidents though the petitioner was never involved in any criminal case prior to the present incident. Provisions of Article 21 of the Constitution require to be construed strictly as no person can be deprived of his life and liberty without following the procedure prescribed by law.

On the contrary, Sri Arvind Tripathi, learned  Government Advocate submitted on behalf of  the State that in exceptional circumstances a single incident can be a good ground for detaining a person under the Act. In the instant case, the report of the Sponsoring Authority related to the incident dated 16.3.2001, and so no irrelevant material could be the basis for subjective satisfaction of the Detaining Authority. Even if some of the grounds are irrelevant, the order of detention does not vitiate for the reason that the grounds are severable and such an argument is not permissible after insertion of Section 5-A in the Act by amendment. The impact of the incident on public life was such, that it warranted detention of the petitioner and his co-accused. Procedure prescribed by law has strictly been adhered to. No fault could be found with the impugned order.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The grounds of the detention which were served upon the petitioner are  that on 16.3.2001 at about 5.30 p.m., the complainant Shesh Narain Awasthi, son of Shri Bhagwan Prasad Awasthi, resident of F 693 Rajaji Puram, Police Station Tal Katora, District Lucknow, who was employed in United Steel Industries, Nadar Ganj, had made the recovery of company's dues from Etawah and Basti to the tune of Rs.5.60 lacs. He was travelling in the Bus for going to Lucknow. When the Bus came out of Basti, the detenu started following the Bus on Yamaha Motorcycle. When the Bus reached Rashrapur Crossing at about 5.35 p.m., the co-accused who had occupied the seat behind the complainant came to him and pointing out the Katta at him asked him to hand over the money he was having. The Katta was also pointed by the co-accused at the Driver of the Bus and the passengers. They threatened the passengers of the Bus. Being frightened, in hustle and bustle the passengers were hiding in the bus to save their lives. When the bag containing the money was being snatched from the complainant and he opposed, the co-accused fired with  Katta creating terror. The Bus was forced to stop at Sansaripur Crossing. The co-accused came out of the Bus with the looted money and ran away on the Motorcycle, which the petitioner was driving, towards east. The other co-accused also ran away firing and brandishing Katta from the spot. The passengers, complainant, Driver and Conductor of the Bus chased the accused persons. In the meanwhile, the Police party headed by Sub Inspectors Shri Shiv Mangal Tiwari and Shri T.P. Singh and two Constables reached the spot. They also chased the accused. The co-accused of the detenu fired at the Police party to deter them from chasing. By this act, the vehicles on the road got stranded as their drivers got frightened. Shops were closed instantaneously. A traffic jam on the National Highway was caused. The co-accused Duksheshwar Singh and Shiv Prasad had been apprehended but the detenu and his co-accused Bujharat succeeded in running away with the money on Yamaha Motorcycle. The co-accused did not disclose their identification correctly. Arms were recovered from them. While chasing the detenu and other co-accused, bus passenger Ram Jatan, son of Anup Verma and witnesses Ganga Ram Misra, son of Ram Naresh also got injured. After being apprehended a sum of Rs.2.5 lacs was recovered from the petitioner on 21.3.2001.

As the case was pending against them and they were likely to be released on bail, the news was published in the local newspaper on 17.3.2001 that the case was pending in the Court which was likely to be heard on 1st May, 2001/15.5.2001 and they were trying to get the bail order. There was an apprehension that after being released on bail, they would indulge in anti-social activities. Thus, the impugned detention order was being passed.

Petitioner made a representation but it was rejected by the Advisory Committee. Subsequently, petitioner filed the aforesaid petition on grounds mentioned hereinabove.

There can be no quarrel with the settled legal proposition that preventive detention is an anticipatory measure and does not relate to any particular offence. The criminal proceedings are launched to punish an offender for an offence committed by him. The purpose and object of the detention law is only to prevent the accused from indulging in any activities which may endanger the tranquillity and peace of public in a particular locality. Thus, the preventive detention is only preventive and not punitive. The law of prevention is permissible to be resorted to only when the competent authority is satisfied that in order to prevent the person from acting in a manner prejudicial to certain objectives which are specified by the concerned law. The satisfaction of the Detaining Authority has always been considered to be of primary importance with great latitude in the exercise of his discretion. The authority may act on any material/information which is placed before him, as such material may afford the basis for a sufficiently strong suspicion to take action, though it may not satisfy the test of legal proof, of which alone a conviction for offence would be tenable. The compulsions of very preservation of the values of freedom and democratic society and social order might compel curtailment of individual's liberty. (Vide Union of India Vs. Amrit Lal Manchanda & Anr., AIR 2004 SC 1625; and Commissioner of Police Vs. Smt C. Anita, (2004) 7 SCC 467).

A Constitution Bench of the Hon'ble Apex Court in A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27, while considering the case of a preventive detention, while considering the meaning of ''due process of law' observed that Article 19 of the Constitution pre-supposes that the citizen to whom fundamental rights are guaranteed, retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests. But where the law permits imposing the penalty for committing a crime or otherwise, the citizen is lawfully deprived of his freedom. However, it is a question of fact whether the deprivation of personal liberty is based on relevant material and the orders etc. and order has been passed in accordance with law. Procedure prescribed by law means procedure prescribed by the law of the State. The Court observed that  the word ''law' used in Article 21  does not mean only State-made law, which is clear from the fact that though there is no Statute  laying down the complete procedure to be adopted in contempt of Court cases when the contempt is not within the view of the Court, yet such procedure as prevails in these cases, is part of our law. The Statute law which regulates the procedure of trials and enquiries in criminal cases, does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing the arguments. Article 22 must prevail insofar as there are specific provisions therein regarding preventive detention  but where there are no such provisions in that Article, the operation of Articles 19 and 21 cannot be excluded.  The mere fact that different aspects of the same right have been dealt with in three different Articles, will not make them mutually exclusive. Procedure prescribed by law was held to mean to be a procedure which has a statutory origin, for no procedure is known or can be said to have been established on such vague and uncertain concept as "the immutable and universal principles of natural justice and law must mean only State made law or positive law." The Court held as under:-

"Due means, just and proper according to the circumstances of a particular case....It means in each particular case such an exercise of the power of Government as the settled maxims of law permit and sanction under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs."

Similarly, in Sita Ram & Ors. Vs. State of U.P., AIR 1979 SC 745, the Court held that Article 21 did not mean jus naturale, but means positive or State law. Procedure established by law did not, however, mean any procedure which may be prescribed by a competent Legislature but the ordinary well established criminal procedure, i.e. those settled usages of normal modes of procedure sanctioned by Code of Criminal Procedure which are the general law of criminal procedure in India. Procedure prescribed by law or established by law means a law made by the Union Parliament or Legislature of the States.

In Smt. Maneka Gandhi Vs. Union of India & Anr., AIR 1978 SC 597, a Seven Judges' Bench of the Hon'ble Supreme Court again dealt with the issue ''procedure established by law' and while dealing with the provisions of Passport Act, made applicable to provisions of Articles 14, 19 and 21 of the Constitution, held that even if the law does not permit any administrative proceedings which involves civil consequences, the doctrine of natural justice is applicable and the order under any Statute cannot be passed in infringement of fundamental rights guaranteed by Part-III of the Constitution.

In Charles Sobraj Vs. Supdt., Central Jail, Tihar, New Delhi, AIR 1978 SC 1514, the Hon'ble Supreme Court recognized the fundamental rights of a convicted person observing that imprisonment does not spell farewell  to fundamental rights although a Court has given a vital meaning of Article 21 read with Article 19 (1) (d) (5) requiring evolving standards of decency and dignity  that mark the progress of a mature society. Fair procedure is the soul of Article 21, reasonableness of the restriction is the essence of Article  19 (5) and sweeping discretion degenerating into arbitrary discrimination is anathema for Article 14. Thus, it was held that even in cases of conviction, the authorities do not have a right to flout the fundamental rights nor the legislative protection can be ignored to the prejudice of any prisoner. When law ends tyranny begins, therefore, the procedure prescribed by law requires strict adherence not only to the statutory provisions but also to the Constitutional provisions.

Similar view has been reiterated in Sunil Batra Vs. Delhi Administration & Ors., AIR 1978 SC 1675; and Francis Coralie Mullin Vs. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746; and Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1369.

In Murli S. Deora Vs. Union of India & Ors., (2001) 8 SCC 765, while taking  recourse of Article 21 of the Constitution, the Hon'ble Supreme Court held that smoking in public places indirectly deprives non-smoking persons of their lives without any process of law, therefore, non-smokers cannot be  compelled to become helpless victim of pollution caused by cigarette-smokers, and therefore, it was held that smoking must be prohibited in public places.

Therefore, it becomes evident from the above that constitutional and legal rights of an individual have to be protected and no order can be passed without adopting the procedure prescribed by law. The order should be passed by application of mind by the Authority concerned. An irrelevant/extraneous material cannot be the basis of the subjective satisfaction of the Detaining Authority. However, at the same time, if a piece of evidence which might reasonably have affected the decision whether or not to  pass an order of detention is excluded from consideration, there would be failure of application of mind, which would vitiate the detention.

It is not in dispute that the order passed by the Detaining Authority can be scrutinised by the Court being subject to judicial review and safeguards of personal liberty of an individual guaranteed under the Constitution, i.e., Articles 19, 21 and 22 are to be read as embodied in law permitting detention, as consistently held by the Apex Court in Khudiram Das Vs. The State of West Bengal, AIR 1975 SC 550; Narendra Purshottam Umrao Vs. B.B. Gujral, AIR 1979 SC 420; Mangalbhai Motiram Patel Vs. State of Maharashtra & Ors., AIR 1981 SC 510. Further it is also settled law that in case of doubt benefit of doubt is to be given to the detenu (Vide Ram Manohar Lohia Vs. The State of Bihar & Anr., 1966 SC 740). However the Court has to take an objective approach taking into account all the relevant circumstances and considerations in order to strike a balance between the need to protect the community on the one hand and the need to preserve the liberty of a citizen (Vide State of U.P. Vs. Hari Singh Thakur, AIR 1987 SC 2080).  Past activities of the detenu should ordinarily be proximate in point of time in order to justify the order of detention. There must be live link between the alleged criminal activities and detention order. But no straight jacket formula can be laid down for counting the period of such interval. (Vide Sahib Singh Duggal Vs. Union of India & Ors., AIR 1966 SC 240; Lakshman Khatik Vs. State of West Bengal, AIR 1974 SC 1264; Golam Hussain alias Gama Vs. Commissioner of Police, Calcutta & Ors., AIR 1974 SC 1336; Gora Vs. State of West Bengal, AIR 1975 SC 473; and Kamal Pramanik Vs. The State of West Bengal, AIR 1975 SC 730).

The Court has to give latitude to the discretion of the Detaining Authority considering the interest of the society. Once the Court comes to the conclusion that the ground of detention is one which is permissible and recognised by Section 3 of the Act, it is not for the Court to probe into the correctness of the alleged facts since Court has a limited role in the matter of examining validity of the detention order. (Vide Mrs. U. Vijayalakshmi Vs. State of T.N. & Anr., 1995 SCC (Cri) 176).

The subjective satisfaction of the Detaining Authority should be based on relevant material, and it should be evident from the order itself. A bald statement in this regard remains merely an ipse dixit of the Authority concerned. (Vide Binod Singh Vs. District Magistrate, Dhanbad & Ors., AIR 1986 SC 2090; Poonam Lata Vs. M.L. Wadhawan, AIR 1987 SC 2098; Smt Shashi Aggarwal Vs. State of U.P., AIR 1988 SC 596).

The detention order based on stale, irrelevant or vague grounds is liable to be quashed. (Vide Shiv Prasad Bhatnagar Vs. State of Madhya Pradesh, AIR 1981 SC 870). Even if one of the grounds is found to be vague or irrelevant, the entire order of detention would fall. (Vide Biram Chand Vs. State of U.P. & Ors., AIR 1974 SC 1161; Dwarika Prasad Sahu Vs. State of Bihar, AIR 1975 SC 134; and Bimla Dewan Vs. Lt. Governor, AIR 1982 SC 1257).

In Dwarka Das Bhatia Vs. State of J & K, AIR 1957 SC 164, the Apex Court held that in such an eventuality, the Court has to examine as to whether "The vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority."

The Apex Court on examining the provisions of COFEPOSA Act, 1974, held that after insertion of Section 5-A in the said Act, it does not remain in issue as to whether if one of the grounds is found to be vague, the detention order would stand vitiated, if other grounds are specific, clear and relevant. (Vide State of Gujarat Vs. Chamanlal Manjubhai Soni, AIR 1981 SC 1480; and Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala, (1985) Suppl. SCC 144).

In Vashisht Narain Karwaria Vs. State of U.P. & Anr, (1990) 2 SCC 629, the Apex Court held as under:-

"What Section 5-A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the ground is vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention.

It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5-A (a)."

The Court has to keep in mind that standard of proof required in a case like instant is not beyond reasonable doubt. In Golam Hussain (supra), the Court held as under:-

"The basic imperative of proof beyond reasonable doubt does not apply to the ''subjective satisfaction' component of imprisonment for reasons of internal security. To quarrel with such a proposition is to challenge the wisdom of Parliament. Of course, we can visualize extreme cases where a court has held a criminal case to be false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a court has found to be baseless. But the present case where the order of discharge is made purely for want of evidence on the score that witnesses were too afraid to depose against a desperate character cannot come under this exceptional category."

In Ram Manohar Lohia (Supra), the Hon'ble Apex Court explained the distinction in 'public order' and 'law and order' describing them totally different and distinct concept, observing as under:-

"One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that 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."

In Madhu Limaye Vs. Sub Divisional Magistrate, Monghyr, AIR 1971 SC 2486, the Constitution Bench of the Hon'ble Apex Court held that when an activity of a person disturbs public tranquillity or are breaches of the peace, issue of public order is involved, and not of the law and order. The expression 'in the interest of public order' cannot be given a narrow meaning.

In Kanu Biswas Vs. The State of West Bengal, AIR 1972 SC 1656, the Hon'ble Apex Court held that whether the activity of a person is likely to cause a disturbance of the public order or not would depend upon "the degree and the extent of the reach of the act upon the society". Public order is something more than ordinary maintenance of law and order. If the current of life of the community is disturbed, it will affect the law and order. It it affects only an individual, leaving the tranquillity of the society undisturbed, it will fall under the category of law and order.

In Arun Ghosh Vs. State of West Bengal, AIR 1970 SC 1228, the Apex Court held that whenever by the act of a person the society and the community is disturbed, it will amount to affecting the public order and may warrant the detention.

In Ashok Kumar Vs. Delhi Administration & Ors., AIR  1982 SC 1143 the Hon'ble Apex Court 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........"

Similar view has been reiterated in Pushkar Mukherjee Vs. State of West Bgengal, AIR 1970 SC 852; Deepak Bose Vs. State of West Bengal, AIR 1972 SC 2686; Babul Mitra Vs. State of West Bengal & Ors, AIR 1973 SC 197; Milan Banik Vs. The State of West Bengal & Ors., AIR 1974 SC 1214; Jatinder Nath Biswas Vs. State of West Bengal, AIR 1975 SC 1215; and Dhena Hembram Vs. The District Magistrate, West Dinajpur & Anr., AIR 1975 SC 1804, observing that the true distinction between the "law and order" and 'public order" is one of the degree and extent of the reach of the act in question upon society, and the act by itself is not detriment of its own gravity. In the quality it may not differ, but in its potentiality it may be very different. Therefore, one has to examine as to what is the impact of the act of the detenu on society.

In Golam Hussain (Supra), the Apex Court held as under:-

"...............But a drunk with a drawn knife chasing a woman in a public street and all women running in panic, a Hindu or Muslim in a crowded place at a time of communal tension throwing a bomb at a personal enemy of the other religion and the people, all scared, fleeing the area, a striking worker armed with a dagger stabbing a blackleg during a bitter strike spreading terror - these are invasions of public order although the motivation may be against a particular private individual. The nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse its molecules as a laboratory but take its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity, of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention........."

In Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat, AIR 1999 SC 2197, the Hon'ble Supreme Court considered the expression ''acting in any manner prejudicial to the maintenance of public order' and referring to earlier decision of this Court in Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police, (1995) 3 SCC 237, the Hon'ble Supreme Court held that 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 to deal with him and to prevent his subversive activities affecting the community at large or a large section of society and it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of "law and order" or it amounts to breach of "public order." The two concepts have to be examined keeping in mind that stray and unorganised crimes are not matters of public order since the same do not tend to affect the flow of public life. Though infraction of law may lead to disorder, but any infraction of law does not necessarily result in public disorder. Law and order comprehends disorder of less gravity than those affecting public order just as public order attracts disorder of less gravity than those affecting security of the State. (Vide Kuso Sah Vs. The State of Bihar & Ors., 1974 SC 156; Mrs. Harpreet Kaur Harvinder Singh Bedi Vs. State of Maharashtra & Anr. , AIR 1992 SC 979; State of Maharashtra Vs. Mohd Yakub & Ors., AIR 1980 SC  1111; T.K. Gopal alias Gopi Vs. State of Karnataka, AIR 2000 SC 1669; and Smt C. Anita (Supra).

Therefore, from the above it can be held that public order is synonymous with public tranquillity. If public order is disturbed, it would lead to public disorder. Therefore, to find out as to whether the incident involved is problem of "law and order" or "public order"; does it lead to disturbance of the current of life of the community or the tempo of life is disturbed, so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed. The question has to be examined on the facts and circumstances giving rise to any individual case.

The question as to whether a single incident is enough warranting the application of detention law has been considered by the Hon'ble Apex Court time and again. In Ali Jan Mian Vs. District Magistrate, Dhanbad, AIR 1983 SC 1130 the Hon'ble Apex Court held that a solitary incident if it has prejudicially affected the public order, i.e., affected even the tempo of life of the community. it may be sufficient to satisfy the detaining authority in that regard to invoke the provisions of detention and depending upon the nature of the incident.

In Ayya alias Ayub Vs. State of U.P. & Ors., (1989)1 SCC 374 the Apex Court held as under:-

"Even a single incident of activity tending to harm public order as might, in the circumstances of its commission, reasonably supply justification for the satisfaction as to a legitimate apprehension of a future repetition of similar activity to the detriment of public order."

In Smt. Bimla Rani Vs. Union of India & Ors., (1994) 4 SCC 509, the Hon'ble Apex Court examined a case where an incident causing gun injury had created communal tension and the authorities were apprehensive of breaking of the communal riot, and held such incident in itself might be sufficient and could afford justification for the satisfaction of the Detaining Authority for the detention of the detenu in order to prevent him from indulging in such activities prejudicial to public order even though there was no antecedent acts of similar nature or past history of commission of crime by the detenu. The Apex Court held that if the situation as emerged as a result of the incident so grave and serious and it prejudicially affected the public order, though it was a solitary incident but it gave rise to a communal tension and there was apprehension of a communal riot, thus, the report was having sufficient material for the subjective satisfaction of the Detaining Authority that there was disturbance of tranquillity and harmony of public life.

In Subhash Bhandari Vs. District Magistrate, Lucknow, (1987) 4 SCC 685, the Hon'ble Apex Court has reiterated that even a single act of omission  or commission may disturb the public order, but it has to be find out from the facts of an individual case as to whether the act pertained to disturbance of law and order and/or gave effect to public order.

While deciding the said case reliance had been placed upon earlier judgment of Gulab Mehra Vs. State of U.P. & Ors., (1987) 4 SCC 302, wherein it was held that a single incident of extorting money from shop-keepers by threatening them and throwing bomb on public/property causing panic may be a ground for detention, but there must be specific and clear charge, the detention cannot be resorted to on vague grounds. The history sheet etc must be linking to the proximity of the alleged incident.

In Debu Mahato Vs. The State of West Bengal, AIR 1974 SC 816, while dealing with the similar case, the Hon'ble Supreme Court 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 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 a person concerned would be likely to repeat such acts so as to warrant his detention........"

The Hon'ble Apex Court while considering a similar case of solitary incident under the provisions of Maintenance of Internal Security Act, 1971, Anil Dey Vs. State of West Bengal, AIR 1974 SC 832, held that the order should not be too flimsy, too alien or too  remote to bear a reasonable nexus with the requirements of subjective satisfaction and activity prejudicial to the maintenance of supplies and services essential to the community. The Court held as under:-

"Of course, the veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency. Nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the order is bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted."

In Abdul Latif Vs. The District Magistrate, Malda & Ors., AIR 1975 SC 2213,  the Apex Court observed as under:-

"Although the detention order was based on a single incident but the nature and the circumstances in which that criminal incident was committed could not be said to be such that on its basis, the detaining authority could not possibly have formed an opinion as to the tendency of the detenu to act likewise in future also. The criminal incident in question was not the lone act of the petitioner. It was committed by an organised gang in a daring fashion in the teeth of opposition from Railway Protection Force....... This act of the detenu was extremely prejudicial to the maintenance of supplies and services essential to the life of the community......"

In Dhurus Kanu Vs. The State of West Bengal, AIR 1975 SC 571, the detention order based on single incident of removing fish plates from the Railways running track was found to be valid as it affected the maintenance and supplies of the services essential to the community.

Similarly, in Babulal Vs. The State of West Bengal, AIR 1975 SC 606, the Supreme Court held that an order of detention based on a solitary incident of organised dacoity in IIIrd class railway compartment in a running train by an armed gang was valid in law. The Court observed as under:-

"This Court has been vigilant to see that isolated offences are not exploited by executive authorities for clamping down preventive detention insouciantly to by-pass the normal judicial processes. But there is one exceptional category of cases where an only dangerous deviance may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. In such a narrow category of cases it is difficult to predicate abuse of power or absence of application of mind by the authority if preventive detention is directed solely on one specialised crime."

A similar view has been reiterated by the Apex Court in Haradhan Saha Vs. State of West Bengal & Ors., AIR 1974 SC 2154; and Mohd Dhana Ali Khan Vs. State of West Bengal, AIR 1976 SC 734).

In Mrs. Saraswathi Seshagiri Vs. State of Kerala & Anr., AIR 1982 SC 1165, the Hon'ble Supreme Court dealt with a case where a foreigner was detained for exporting Indian currency to foreign countries. Contention on petitioner's behalf that it was hardly sufficient to warrant that the detenu would repeat such activity, was rejecting and hence rejecting the bail. The Hon'ble Supreme Court held as under:-

"...........The detenu tried to export Indian currency to the tune of Rs.2,88,900/- to a foreign country in a planned and premeditated manner by clever concealment of it in several parts of his baggage. This fully justified the detaining authority in coming to the conclusion that he might repeat his illegal act in future also and that his detention was necessary to preventing him from repeating the same in future. His past act in the circumstances might be an index of his future conduct.........."

In David Patrick Ward & Anr. Vs. Union of India & Ors., (1992) 4 SCC 154, a similar view has been reiterated in case of detention of foreign nationals helping insurgents in Nagaland.

The issue has also been considered by the Hon'ble Apex Court in Dulal Chandra Majumdar Vs. State of West Bengal, AIR 1974 SC 2361; Lal Kamal Das Vs. State of W.B., AIR 1975 SC 753;  and T. Devaki Vs. Government of Tamil Nadu & Ors., AIR 1990 SC 1086, wherein considering the facts and circumstances in those cases, the Apex Court held that single incident was not enough warranting the application of detention law. In the first case, the detenu indulged in a single case of theft and in second case, the detenu had assaulted an individual. In those cases the Hon'ble Apex Court held that those were the cases involving "law and order" and not of the "public order".

In a recent judgment in State of U.P. Vs. Sanjai Pratap Gupta, 2004 AIR SCW 5314, the Apex Court while considering a similar case held as under:-

"The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of the acts that matters. What has to be seen is the effect of the act on even tempo of life, the extent of its reach upon society and its impact."

Thus, it can be held that a solitary incident is enough to invoke the detention order if it affects the public tranquillity, public peace or adversely affects the tempo of life. However, it will depend upon the fact of an individual case as to whether it warrants the detention of the detenu under the preventive law.

The Court has to examine as to whether the degree and extent of the reach of the objectionable activity of the detenu upon the society, is a breach of the law and order or has caused disturbance to public order. Admittedly, personal liberty of an individual cannot be compromised unless there are compelling circumstances to do so in the larger public interest, though nor there can be a dispute to the legal proposition that it is not permissible for the Court in matters relating to personal liberty to take either a liberal or generous view of the lapses on the part of the officers, and Court cannot under any circumstance, approve any excessive detention i.e., a detention over and above the limits set by the Constitution and the legislature  once found to  have  been

transgressed.

Thus, the breach even in the slightest measure of the legal requirement, is enough to declare the law of detention bad. The detention order cannot be passed on mere apprehension. There must be sufficient material on the basis of which the Detaining Authority could not pass an order jeopardising the liberty of the detenu unless his case falls squarely within the four corners of statutory provisions of law. (Vide Vijay Narain Singh Vs. State of Bihar, AIR 1984 SC 1334 Hem Lall Bhandari Vs. State of Sikkim, AIR 1987 SC 762; Ramesh Yadav Vs. District Magistrate, Etah, AIR 1986 SC 315; Icchu Devi Chararia Vs. Union of India, AIR 1980 SC 1983; and Ayya (Supra).

In Duksheshwar Singh (Supra) the Court placed reliance upon the judgment of the Apex Court in Vashisht Narain Karwaria (supra), wherein the Court had quashed the detention order,  observing as under:-

"The above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences. No doubt, these averments are not made mention of in the grounds of detention...........In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority of some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of detenu..........It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident."

While deciding the aforesaid case the Hon'ble Apex Court referred to and relied upon its earlier judgments in Ram Krishna Paul Vs. Government of West Bengal, AIR 1972 SC 863; Pushpa Vs. Union of India AIR 1979 SC 1953; Merugu Satyanarayan Vs. State of A.P., AIR 1982 SC 1543; and Mehboob Khan Nawab Khan Pathan Vs. Police Commissioner, Ahmedabad, AIR 1989 SC 1803, wherein a similar view had been reiterated. The law laid down in those cases has been that subjective satisfaction of the Detaining Authority should not be based on any extraneous consideration/material. The Detaining Authority should apply his mind properly confining his consideration only with reference to incidents mentioned in the grounds of detention. No such order can be passed in a mechanical manner taking into consideration incidents other than those mentioned in the grounds of detention, with which detenu had no direct or indirect connection or participation. Thus, even if one of the grounds of detention does not fall under any of the clauses of the statutory provision, providing for detention, the detention order becomes liable to be quashed as such order suffers from the vices of non-application of mind.

The single act must be of a serious nature warranting the detention if the detenu is likely to repeat the similar activity. The act of the detenu must have seriously prejudiced the public safety and disturbed the tempo of public life by disturbing the public tranquillity, breaching the peace. Thus, the degree of the act was of such a greater extent that it has its reach upon the public society.

Thus, in view of the above, the conclusions one may reach are that the order of detention can be passed on the basis of a solitary act if it indicates that the act has been an organised one or a manifestation of organised activities. It is the gravity and nature of the act which is the determining factor as to whether it had been a case of "law and order" or the "public order"  and there has to be a subjective satisfaction of the authority that the detenu would continue to indulge in similar prejudicial activities. There must be proximity, i.e. credible chain between the offending acts and the order of detention;  there must be live links between the grounds of criminal activity alleged by the Detaining Authority and the purpose of detention. The Detaining Authority should not be influenced by extraneous consideration while reaching subjective satisfaction. No extraneous material should be placed before him which could influence his mind as to whether the detention order should be passed after reaching the subjective satisfaction. Where there are two or more grounds covering the activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, non-existent, not relevant or invalid, the detention order shall not vitiate. Therefore, such an eventuality does not arise in a case where the detention order is passed only on the basis of a solitary act.

The instant case requires consideration in view of the aforesaid settled legal propositions. The Sponsoring Authority did not make reference to any incident or past history of the petitioner and the entire material related to the one and the same incident dated 16th March, 2001. The entire report is based exclusively on the incident dated 16.03.2001 and the subsequent events in relation to the same incident. The observation that the petitioner was a dreaded criminal and due to his alleged criminal activities, the communication on the National Highways as well as the transport system had been affected, related to the same incident in absence of any past history or reference to any pendency of any criminal case. The only inference which can be drawn is that the Sponsoring Authority had assumed the petitioner to be a dreaded criminal  in view of the alleged incident dated 16.03.2001 considering the manner in which the incident had occurred and taking into consideration the nature and gravity thereof. Thus, it cannot be held even by stretch of imagination that any extraneous material had been placed by the Sponsoring Authority before the Detaining Authority which could have influenced his subjective satisfaction while passing the detention order. When the Sponsoring Authority referred to the activities, it meant the incident related to the alleged crime committed on 16.3.2001, the way the bus was followed by the petitioner and his co-accused, the manner in which the money was looted, the terror they had created amongst the passenger and its effect on traffic while fleeing from the scene. The amount of Rs. 2.5 lacs had been recovered from the petitioner subsequently on 21.03.2001 when the search was made in view of the alleged confessional statement of his co-accused. Thus, we do not find anything in the report of the Sponsoring Authority which could be even described as an extraneous material. The case is quite distinguishable and does not fall within the ratio laid down by the Hon'ble Apex Court in the case of Vashisht Narain Karwaria (supra) wherein the report of the Sponsoring Authority had been that the petitioner therein was hardened criminal having a gang, had indulged in committing heinous crimes quite often, many cases had been pending against him in various police stations and it had become his habit to commit offences and the said inferences of the Sponsoring Authority had not been mentioned in the grounds of detention. The facts of that case were quite distinguishable from the present case and the ratio thereof is not attracted at all.

In Duksheshwar Singh (supra), the Division Bench of this Court (Lucknow Bench), has held as under:-

"The contention appears to be misconceived, because the Sponsoring Authority in his report dealt with the alleged criminal tendencies of the petitioner, who is alleged to be dreaded (Nirbheek) criminal and due to his criminal activities, the communication on the National Highway as well as the transport system had been affected. These remarks which dealt with the activities of the petitioner related to his past activities, besides the criminal by the prejudicial activities which he alleged have carried on, upon which the grounds of detention is based. There is no mention in the ground of detention about those alleged criminal and prejudicial activities, which were carried on by the petitioner before the said incident. It cannot be said that the remarks which have been spell out by the Sponsoring Authority was relatable to the main incident, which has been enumerated on the grounds of detention itself. The remarks of the Sponsoring Authority might have influenced the mind of the District Magistrate that the petitioner was a dreaded Dacoit and his detention was necessary to save public at large from his criminal tendencies and criminal activities."

The said detenu, i.e., Dukheshwar Singh was a co-accused of the present petitioner. The detention order has been same, based upon the same incident and the similar report of the Sponsoring Authority. The inference drawn by this Court was contrary to the evidence on record. There was no reference by the Sponsoring Authority to any incident prior to the main incident dated 16.3.2001. The facts were quite distinguishable with that of the case of Vashisht Narain Karwaria (supra) and in view thereof, we have no hesitation to hold that the aforesaid case has not been decided correctly.

In view of the above, we answer the reference that the detention order can be passed on a single/solitary incident if it is an organised crime and having a serious effect on public life. As the period of detention is already over and no order is required to be passed but it cannot be held on the facts of this case that the detention order could not have been passed or the order so passed was not valid or in accordance with law. The case in Dukheshwar Singh has not correctly been decided by this Court.

Before parting with the case, we would like to record our appreciation to Shri Daya Shankar Mishra, learned counsel, who rendered valuable assistance to the Court on our request.

10.11.2004

AKSI/AHA


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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