Delhi High Court
Mohd. Afzal vs Union Of India (Uoi) And Ors. on 21 April, 2004
Equivalent citations: 2004CRILJ3461, 111(2004)DLT467, 2004(74)DRJ454
Author: D.K. Jain
Bench: D.K. Jain, A.K. Sikri
JUDGMENT D.K. Jain, J.
1. By this writ petition under Article 226 of the Constitution, the petitioner-Mohd. Afzal prays for issuance of a writ of habeas corpus, challenging the propriety and validity of the order of detention dated 20 June 2003, passed by the Commissioner of Police, Delhi (hereinafter referred to as 'the detaining authority') under Sub-Section 2 of Section 3 of the National Security Act, 1980 (for short 'the NSA') on being satisfied that the petitioner's detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
2. The order of detention along with the grounds of detention was served on the petitioner on 20 June 2003. Against the said order, the petitioner made a representation to the Advisory Board constituted under Section 9 of the NSA. The case of the petitioner, along with his representation was placed before the Advisory Board, who opined that there was sufficient cause for the detention of the petitioner. Accordingly, in exercise of powers conferred by Section 12(1) of the NSA, the Lieutenant Governor of National Capital Territory of Delhi confirmed the aforesaid order of detention and directed that the petitioner be detained for a period of 12 months from the date of his detention, i.e., 20 June 2003.
3. According to the grounds of detention, which are in the narrative form, the petitioner is an active, desperate, dangerous criminal and a bad character of Bundle/A of the area of Police Station Seelampur, Delhi. He started his criminal activities in the year 1990 at the age of about 19 years and was involved in 18 criminal cases, enlisted in the grounds, such as voluntarily causing hurt, criminal intimidation, riots, house-trespass, obstructing public servants from discharging their official duties, criminal conspiracy, criminal confinement, kidnapping, attempt to murder and murder. He was also involved in the offences punishable under the Arms Act and Prevention of Damage to Public Property Act. Out of the said 18 criminal cases registered against him, the petitioner has been acquitted/discharged in most of the cases. In five cases, he is facing trial and three cases are stated to be under investigation. It is alleged that the prosecution witnesses against him are extremely afraid to depose against him in the Court, which is evident from his acquittal in the cases, where even the injured, the complainants and near relatives did not support the prosecution case and had turned hostile due to intimidation and terrorising tactics by the petitioner. He is stated to be so dangerous and desperate criminal that he has not spared even his father and police officials.
4. Reference to the said 18 cases has been made in the grounds of detention with a view to show his past criminal record. However, two cases registered against him under FIR Nos.246 dated 19 July 2002 at P.S. Welcome, Delhi and 177 dated 15 June 2003 at P.S. Seelampur, Delhi respectively under Sections 186/353/307/34 IPC and 506 IPC, which are stated to be under investigation, have specifically been relied upon in the grounds of detention.
5. On the basis of the material placed before him, briefly referred to above, the detaining authority came to the conclusion that the said criminal activities clearly show that the petitioner is a desperate and dangerous criminal, whose activities are prejudicial to the maintenance of public order; his acts of violence against the public and property show his complete contempt for the law of the land; since he is usually found in possession of firearms; the prosecution witnesses are extremely terrified to depose against him in Court; his criminal activities have disturbed the normalcy of the society and he is such a dangerous and desperate criminal that he does not even spare the police officials from attacking them. Thus, keeping in view his criminal record, the detaining authority felt satisfied that there was every apprehension/imminent possibility that just after his release from jail he will again indulge in such type of criminal activities which will adversely affect the maintenance of the public order and, therefore, to prevent him from further committing similar criminal activities, prejudicial to the maintenance of public order, it had become necessary to detain him with immediate effect under Section 3(2) of the NSA. Hence the impugned order of detention.
6. We have heard Mr.Bahar U.Barqi, learned counsel for the petitioner and Ms.Mukta Gupta, learned counsel for the respondents.
7. It is strenuously urged by Mr.Barqi that except for two criminal cases, which have been relied upon by the detaining authority, in all other criminal cases foisted on the petitioner, he has been acquitted or discharged and, therefore, they cannot form the basis for the satisfaction of the detaining authority to come to the conclusion that he is likely to disturb the public order. It is contended that in all cases of acquittal/discharge even a suggestion was not put to the witnesses that they were threatened by the petitioner and further these orders were accepted by the State as no appeal was preferred against the said decisions. Moreover, even an application for cancellation of bail, granted to the petitioner, was not filed by the State. It is submitted that acquittal/discharge of the petitioner in most of the cases shows that he had been falsely implicated in these cases. In so far as the two afore-mentioned live cases, (FIR No.246 dated 19 July 2002 and FIR No.177 dated 15 June 2003) are concerned, it is submitted that reliance on these cases is again misplaced in as much as in the latter case also the petitioner has been acquitted and in the former, challan was filed on 4 December 2002 and the evidence is yet to be recorded. In nutshell, the case of the petitioner is that there was absolutely no cogent material before the detaining authority to form the requisite belief that the petitioner was indulging in criminal activities which were prejudicial to the maintenance of public order and unless prevented, he would indulge in similar activities in future. Learned counsel has also contented that even if the allegations/instances, relied upon by the detaining authority, are taken on their face value, still, at best, these may tantamount to "law and order" problem and by no stretch of imagination can be construed as activities prejudicial to the maintenance of "public order," within the meaning of Sub-Section (2) of Section 3 of the NSA. It is alleged that the detention order against the petitioner has been passed only with a view to frustrate the bail, which has been granted to him by the Court, where he is facing trial in a case arising out of FIR No.246 dated 19 July 2002. It is urged that instead of clamping the impugned order on the petitioner, the best course open to the respondents was to oppose the bail application or to move the higher forum to get it cancelled. It is asserted that the detention order, an administrative order, is mala fide in as much as it was made merely to circumvent petitioner's enlargement on bail under a judicial order.
8. Per contra, Ms.Mukta Gupta, learned counsel for the State, while supporting the order of detention and denying the allegation that it has been passed only with a view to frustrate the bail order, has submitted that the activities of the petitioner were directed against the public at large and were sufficient to bring them within the ambit of "public order". It is urged that non-filing of a petition for cancellation of bail does not preclude the detaining authority from passing an order of detention, if it arrives at the subjective satisfaction that the activities of the detenu are prejudicial to the maintenance of public order. It is, however, not disputed that none of the orders of acquittal/discharge have been challenged by the State. Nevertheless, it is clarified that there was no point in filing the appeals against such orders as the complainants, the eye/material witnesses and even the victims had turned hostile due to terror and fear of the petitioner as well as his associates.
9. Thus, the main question for consideration is whether the activities of the petitioner, highlighted in the grounds of detention, fall within the realm of "public order" or "law and order".
10. The distinction between the two concepts of "public order" and "law and order" has been lucidly explained by the Apex Court in Ashok Kumar Vs. Delhi Administration, . Inter alia, observing that the true distinction between the areas of "public order" and "law and order", being fine and sometimes overlapping, does not lie in the nature or quality of the act but in the degree and extent of its reach upon society, their Lordships said that the act by itself is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it "prejudicial to the maintenance of public order". If the contravention in its effect is confined only to a few individuals directly involved, as distinct from a wide spectrum of public, it would raise the problem of "law and order" only. It is the length, magnitude and intensity of the terror wave unleashed by a particular act or violence creating disorder that distinguishes it as an act affecting "public order" from that concerning "law and order". On the facts of that case the Court held that whenever there is an armed hold up by gangsters in a residential area of the city and persons are deprived of their belongings at the point of knife or revolver they become victims of organized crime and such acts when enumerated in the grounds of detention, clearly show that the activities of a detenu cover a wide field falling within the ambit of the concept of "public order".
11. To the same effect are the observations of the Apex Court in Victoria Fernandes Vs. Lalmal Sawma, , wherein, relying on its earlier decisions, including Ashok Kumar's case (supra), it was reiterated that while the expression "law and order" is wider in scope, in as much as contravention of law always affects order, "public order" has a narrower ambit and public order would be affected by only such contravention which affects the community and public at large.
12. The scope of expression "acting in any manner prejudicial to the maintenance of public order" as appearing in Sub-Section 2 of Section 3 of the NSA also came up for consideration of the Supreme Court in Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, ; Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat, and Hasan Khan Ibne Haider Khan Vs. R.H. Mendonca, . Their Lordships held that the fallout, 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 the person concerned or to prevent his subversive activities affecting the community at large or a large section of the society. 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 activities amounts only to a breach of "law and order" or it amounts to a breach of "public order". In Amnulla Khan's case (supra), it has been held that the activities involving extortion, giving threat to public and assaulting businessmen near their place of work were sufficient to affect the even tempo of life of the society and in turn amounting to the disturbance of the "public order" and not mere disturbance of "law and order".
13. Examining the grounds of detention, briefly referred to above, on the touchstone of the legal position as emerging from the afore-mentioned decisions, we are of the view that the activities relied upon by the detaining authority to come to the afore-mentioned conclusion cannot be said to be mere disturbance of "law and order". As noted in the grounds of detention, the criminal activities of the petitioner pertained to criminal intimidation, obstructing public servants in discharge of their official duties, etc. which, obviously, are not directed against a single individual but against the public at large having the effect of disturbing the even tempo of life of the community and thus, breaching the "public order". Thus, we are unable to hold that there was no material before the detaining authority to come to the conclusion, it did, to say that the petitioner is a person of desperate and dangerous character and a menace to the society. The detaining authority is justified in forming the belief that the results in the trials in criminal cases were because of his dangerous character as even the persons directly affected were not coming forward to give evidence against him. We have, therefore, no hesitation in holding that the instances of petitioner's activities, enumerated in the grounds of detention, clearly show that his activities cover a wide field and fall within the contours of the concept of "public order"and the detaining authority was justified in law in passing the impugned order of detention against the petitioner.
14. As regards the plea of learned counsel for the petitioner that the impugned order is vitiated because it has been passed with a mala fide intention to frustrate the bail allowed to the petitioner, we are of the view that there is no substance in the contention. It is settled by a catena of decisions of the Apex Court that even when a person is in custody, a detention order can validly be passed if the authority passing the order is aware of the fact of his being in custody and he has reason to believe, on the basis of material placed before him, that there is imminent possibility of his being released on bail and that on being so released, he would in all probability indulge in prejudicial activities and to prevent him from doing so, it is necessary to detain him. A detention order cannot be struck down on the ground that the proper course for the authority was to oppose the bail application and if bail is granted notwithstanding such opposition, to question it before a higher Court, as is sought be pleaded by learned counsel for the petitioner. (See: Kamarunnissa Vs. Union of India, and Yogendra Murari Vs. State of U.P. & Ors., ). On the facts in hand, we are unable to accept the contention of learned counsel for the petitioner that the impugned detention order was passed merely to frustrate the order of the Court, granting bail to the petitioner.
15. Having considered the matter in the light of the circumstances, noted above, we are of the opinion that the apprehension entertained by the detaining authority, to the effect that petitioner's activities are prejudicial to the maintenance of public order, is genuine. Thus, we do not find any illegality in the impugned order, warranting our interference. The writ petition, being bereft of any merit, is dismissed accordingly. There will, however, be no order as to costs.
Crl.M Nos.1161/03, 887/04, 1395/04 & 2404/04 In view of the fact that the main petition has been dismissed, applications seeking interim relief are rendered infructuous and are dismissed accordingly .
D.K. Jain,J.
APRIL 21, 2004 A.K. Sikri, J.
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