Madhya Pradesh High Court
Abhishek @ Pintu Suman vs The State Of Madhya Pradesh on 24 November, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
W.P. No.16871/2021
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The High Court of Madhya Pradesh
W.P. No.16871/2021
(ABHISHEK @ PINTU SUMAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated:24/11/2021
Shri Aseem Trivedi, learned counsel for the petitioner.
Shri A.P. Singh, learned Dy. A.G. with Shri Kamlesh Dwivedi,
learned Panel Lawyer for the respondents/State.
1. This petition under Article 226 of Constitution at pre- execution stage has been filed by the petitioner against whom impugned order dated 26.11.2020 was passed by the District Magistrate, Jabalpur exercising powers u/S.3 of National Security Act, 1980 (for brevity, "NSA") directing detention of petitioner.
2. Learned counsel for petitioner has primarily raised two grounds; (i) non application of mind in as much as the detaining authority failing to see that in majority of the 43 criminal cases registered against petitioner (foundation behind impugned order) in the past about 15-16 years, the petitioner has been acquitted in 14 cases, while the remaining involve offences of minor nature which do not adversely affect the public order. (ii) Majority of these 43 criminal cases are old and stale cases having no live and proximate link with the object sought to be achieved.
3. Learned counsel for the rival parties are heard on the question of admission and as well as final disposal.
4. The present is a case where challenge is made at the pre- execution stage of the order of preventive detention. Indisputably, the petitioner has not yet been arrested and is at large. Thus, the vulnerability and scope of interference in the order impugned has to be tested on the law laid down by the Apex Court in the case of Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another, 1992 Supp.(1) SCC 496, where the Apex Court held thus:-
"Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is W.P. No.16871/2021 -2- permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question."
4.1 Perusal of the law laid down by Apex Court in Alka Subhas Gadia (supra) reveals that scope of judicial review is open against a pre-execution order of preventive detention only on five grounds; the first is that the impugned order is not passed under the NSA, which is not the case herein. The second ground is that the impugned order is sought to be executed against a wrong person, which is also not the case herein. The third ground is that it is passed for a wrong purpose. The fourth ground is that it is passed on vague, extraneous and irrelevant grounds and the fifth is that it is passed by incompetent authority.
4.2 So far as the grounds No.1, 2 and 5 are concerned, the same are not attracted in the present case as the petitioner has neither raised these grounds nor these grounds arise out of the factual matrix attending the instant case.
4.3 That leave us with grounds No. 3 and 4 i.e. the impugned W.P. No.16871/2021 -3- order having been passed for a wrong purpose and on vague, extraneous and irrelevant grounds.
5. Before proceeding ahead, it would be apt to reproduce relevant data in regard to 43 offences registered against the petitioner in the past about 15-16 years.
Sr. No. Date of offence Crime No. Section Stage of prosecution 1 07.09.2005 793/2005 427, 327, 307, 34 of IPC Acquitted and 25 of Arms Act.
2 29.01.2007 96/2007 147, 148, 452, 294, 427, Acquitted 506 of IPC 3 29.01.2007 97/2007 147, 148, 452, 294, 427, Acquitted 406 of IPC 4 29.01.2007 100/2007 434 and 435 of IPC Acquitted 5 27.11.2007 952/2007 147, 294, 506 of IPC Acquitted 6 06.02.2008 90/2008 294, 323 r/w 34 of IPC Acquitted 7 25.04.2008 291/2008 341, 307 r/w 34 of IPC Pending 8 27.12.2008 950/2008 294, 506, 323/34 of IPC Acquitted 9 04.01.2009 07/2009 13 of Public Gambling Convicted Act 10 06.06.2009 487/2009 294, 506, 323, 424, 452, Acquitted 34 of IPC 11 04.12.2010 1151/2010 5 of Explosive Acquitted Substance Act 12 19.01.2011 72/2011 294, 323, 34 of IPC Pending 13 14.02.2011 186/2011 147, 148, 452, 307, 294, Acquitted 323 of IPC 14 01.08.2011 820/2011 Sec.25 of Arms Act Pending 15 19.09.2011 1012/2011 307/34 of IPC Acquitted 16 25.10.2011 1158/2011 Sec. 13 of Public Convicted Gambling Act 17 19.10.2011 1189/2011 294, 323, 506/34 of IPC Pending 18 19.03.2012 376/2012 294,327/34 of IPC Pending 19 30.03.2012 413/2012 Sec.8/20 of NDPS Act Pending 20 16.12.2012 1609/2012 452, 294, 324, 323, Pending 506/34 of IPC 21 30.06.2013 746/2013 Sec. 25 of Arms Act Acquitted 22 09.08.2013 846/2013 384/34 of IPC Acquitted 23 30.11.2013 1124/2013 147, 149, 307, 120-B of Pending IPC W.P. No.16871/2021 -4- 24 08.02.2015 81/2015 294, 286, 427, 506/34 of Pending IPC 25 06.05.2015 342/2015 294, 324, 506/ 34 of IPC Pending 26 28.05.2015 400/2015 289, 341, 294, 327, 323, Pending 506/34 of IPC 27 11.10.2015 775/2015 341, 307/34 of IPC Pending 28 02.10.2017 71/2017 420, 195-A of IPC Pending 29 17.10.2017 635/2017 294, 506/34 of IPC Pending 30 22.11.2017 716/2017 324/34 of IPC and 25 of Pending Arms Act 31 24.08.2018 501/2018 25 of Arms Act Pending 32 25.08.2018 507/1985 294, 336, 506, 509/34 of Pending IPC 33 25.08.2018 508/2018 353, 336, 186, 294/34 of Pending IPC 34 15.09.2018 557/2018 302/34, 201, 176 of IPC Pending and 25 of Arms Act 35 14.09.2020 609/2020 294, 323, 324, 327, Investigation 506/34 of IPC stage 36 27.04.2018 NCR. 155 of Cr.P.C. Prohibited No.270/ 2018 37 27.07.2005 463/2005 25 of Arms Act Pending 38 27.07.2005 457/2015 5 of Explosive Pending Substances Act 39 22.02.2005 89/2015 294, 506, 323, 324, Charge sheet 427/34 of IPC filed 40 17.08.2011 305/2011 341, 294, 324, 327/34 of Pending IPC 41 19.09.2013 371/2013 294, 506, 323, 324/34 of Pending IPC 42 25.10.2002 538/2002 25 of Arms Act Pending 43 147/2014 399, 402 of IPC Charge sheet filed 5.1 From the aforesaid details of 43 offences registered against the petitioner, it is evident that the prosecution in 29 offences continues to be either pending till date or the petitioner has been convicted in some of them. Thus, even if the 14 offences in which the petitioner has been acquitted are ignored, even then the detaining authority had 29 cases (either pending or in which the petitioner has been convicted) as objective material to be subjectively satisfied about the criminal proclivity of petitioner. Moreso, among the W.P. No.16871/2021 -5- pending 29 cases involve offences of serious nature including assembling and preparing for dacoity, murder, threatening witness to dissuade him from giving evidence in Court, several cases of attempt to murder, offences under the Explosive Substance Act, NDPS Act and Arms Act.
6. In the backdrop of the aforesaid material the detaining authority came to the conclusion that petitioner is person of criminal bent of mind and despite elapse of long period of time, petitioner has shown no improvement by continuing to commit offences of minor as well as major nature on regular basis.
7. Thus, the detaining authority had sufficient material to be satisfied that allowing the petitioner to enjoy his right to personal liberty would be deleterious to public order of the area and, therefore, ground No.4 in the case of Alka Subhash Gadia (supra) that the order was made on vague, extraneous and irrelevant grounds, does impress this Court.
8. This Court now has to dwell upon the all important aspect as to whether the present case is a mere case of breach of law and order or that of breach of public order. If the degree and consequence of the acts of the detenu are such which violates the peace and tranquility of a particular individual or a few individuals, then it is a mere breach of law and order; but if the act leads to disturbance of peace and tranquility and the even tempo of life of large section of people or a community or a township, then it qualifies to be breach of public order.
9. The material on record reflected from the grounds of detention, reveal that petitioner was not only involved in offences of different nature, minor as well as major, but the nature of offences especially those concerning with Explosive Substance Act, Arms Act, several cases of attempt to murder and a case of murder, discloses that petitioner is a person of criminal proclivity, who was also found to be indulged in intimidation of witnesses for dissuading them to depose against him in the Court of law. All these attributes of the petitioner are material enough to trigger a sense of discomfirture, W.P. No.16871/2021 -6- fear and threat to lot many persons in the society and thus, the District Magistrate was subjectively satisfied that if the petitioner is allowed to enjoy personal liberty any further, he would be a threat to the personal liberty of large number of sections of society and, thus, the breach of public order became eminent.
10. From the above discussion, what comes out loud and clear is that the impugned order of preventive detention is neither vague nor extraneous and also not passed on irrelevant consideration.
11. Thus, the only ground which ostensibly appears to be available to petitioner in this case assailing pre-execution detention in actuality, does not hold any water.
12. Learned counsel for petitioner has relied upon the decision of the Apex Court in Khaja Bilal Ahmed Vs. State of Telangana and others, (2020) 13 SCC 632 and various decisions of this Court in Shishupal Singh Vs. The District Magistrate, Damoh, 2004(1) M.P.H.T. 122 (DB), Smt. Geeta Sahu Vs. District Magistrate, Shahdol and others, 2000(4) M.P.H.T. 482 (DB) and Anshul Jain Vs. State of M.P. and other passed by a Coordinate Bench of this Court at Gwalior in W.P. No.1118/2021.
12.1 All these decisions do not impress this Court as they turn on their own facts and do not relate to pre-execution stage.
13. Consequently, present petition stands dismissed sans cost.
(Sheel Nagu) (Purushaindra Kumar Kaurav)
Judge Judge
SS
Digitally signed by SATEESH
KUMAR SEN
Date: 2021.11.25 17:12:28 +05'30'