Madhya Pradesh High Court
Faizan Patel vs The State Of Madhya Pradesh on 5 August, 2021
Author: Sujoy Paul
Bench: Sujoy Paul, Anil Verma
The High Court Of Madhya Pradesh,
Bench At Indore
W.P No.12443/2021
Faizan Patel ---- Petitioner
Versus
State of Madhya Pradesh and Ors ---- Respondent/State
Coram:
Justice Sujoy Paul, Judge
Justice Anil Verma, Judge
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Presence:
Shri Dinesh Kumar Rathore, learned counsel for the
petitioner.
Shri Vivek Dalal, learned AAG for the respondent/State.
Whether approved for reporting: Yes/No
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ORDER
( 05/08/2021)
1. This petition filed under article 226 of the Constitution of India takes exception to the order of detention dated 25.06.2021 Annexure P/1, whereby the petitioner is detained by District Magistrate, Indore in exercise of powers under section 3 of National Security Act, 1980 (for short NSA Act).
2. In nutshell, the contention of the petitioner is that the petitioner has been detained by invoking the NSA Act despite the fact that he was already in custody because of his previous arrest. Learned counsel for the petitioner submits that incorrect/false allegations are leveled against the petitioner. He assailed the detention order by contending that it suffers from following infirmities:-
1. There is no time limit mentioned in the detention order and therefore, the order is liable to be set aside.
2. The detention order does not show that any right of representation was given to the petitioner against the order of detention.
3. The petitioner was already arrested before passing the detention order and therefore, the detention order was totally unwarranted.
3. Learned counsel for the petitioner further submits that the petitioner has no past record of that gravity, which could have become a reason to invoke NSA Act.
4. Learned counsel for the petitioner in support of his submissions placed reliance on the order passed in WP No.9792/2021 (Yatindra Verma Vs. State of MP and others) decided on 24.06.2021.
5. Learned AAG for the respondent/State submits that there is no procedural impropriety/ infirmity in the order of detention. The order shows that right of representation was given to the petitioner. The necessary parameters to detain a person who is already in detention are taken care of. There is no requirement of fixing a time limit in the detention order. The petition has no substance.
6. No other point is pressed by the learned counsel for the parties.
7. We have heard learned counsel for the parties at length and perused the record.
8. The first point raised relating to non-mentioning of outer limit in the detention order. This point is no more Res-integra. This Court in WP No.9529/2021 (Smt. Monica Tripathi Vs. State of MP and others) decided on 24.06.2021 considered this aspect and opined as under:-
"12) A Division Bench of this Court in Akash Yadav (supra) came to hold that in absence of mentioning the period of detention, detention order becomes illegal. A careful reading of the order of Akash Yadav shows that the authoritative pronouncement of Supreme Court on this aspect in T. Devki (supra) was not brought to the notice of the Division Bench. In T. Devki (supra), Apex Court held as under:-
"12. Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 is identical in terms to Section 3 of the Tamil Nadu Act. Section 3 of Maharashtra Act does not require the State Government, District Magistrate or a Commissioner of Police to specify period of detention in the order made by them for detaining any person with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. Section 3(1) which confers power on the State Government to make order directing detention of a person, does not require the State Government to specify the period of detention. Similarly, sub-sections (2) or (3) of Section 3 do not require the District Magistrate or the Commissioner of Police to specify period of detention while exercising their powers under sub-section (1) of Section
3. The observations made in Gurbux Bhiryani case [1988 Supp SCC 568 : 1988 SCC (Cri) 914] that the scheme of the Maharashtra Act was different from the provisions contained in other similar Acts and that Section 3 of the Act contemplated initial period of detention for three months at a time are not correct. The scheme as contained in other Acts providing for the detention of a person without trial, is similar. In this connection we have scrutinised, the Preventive Detention Act, 1950, the Maintenance of Internal Security Act, 1971, COFEPOSA Act, 1974, National Security Act, 1980, but in none of these Acts the detaining authority is required to specify the period of detention while making the order of detention against a person."
Emphasis supplied
13) Pertinently, the judgment of Akash Yadav (supra) was pressed into service before another Division Bench of this Court in the case of Narendra Verma (supra). The Division Bench opined as under:-
"16. From the discussion herein before, it is evident that T. Devki's case was earlier in point of time and it is a decision of Apex Court by three Hon'ble Judges holding that it is not necessary to specify the period of detention in the detention order. The subsequent decision of Apex Court is also delivered by two Hon'ble Judges but there is no reference or mention of the earlier decision of T. Devki's case therein. It appears that the same was not brought to the notice of Hon'ble Judges of the Apex Court. As stated herein before that in case of conflict as held in the case of Jabalpur Bus Operator (supra), the earlier decision will prevail hence as per decision in T. Devki's case, we hold that it is not necessary to specify the period in the detention order and detention order cannot be held illegal for not specifying the period of detention in detention order."
Emphasis supplied
14) We are in respectful agreement with view taken by Division Bench in Narendra Verma (supra) because it is based on the binding judgment of 3 Judges Bench of Supreme Court in the case of T. Devki. Interestingly, the judgment of T. Devki was not brought to the notice of subsequent Benches in the case of Lahu Shrirang Gatkal and in Sama Aruna. These two judgments are delivered by two Judges Bench of Supreme Court. In both these matters, on which heavy reliance is placed by Shri Dhanodkar, a different statute was subject matter of interpretation. NSA Act was not the subject matter nor the judgment of T. Devki in which NSA Act was interpreted was considered. Thus, we are unable to hold that for not mentioning the period of detention, detention order will vanish in thin air. In R.P. No.1372/2019 (State vs. Sahil Khan), the Division Bench further held as under:-
"7. In light of the aforesaid and also keeping in view the judgment delivered in the case of Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department (supra), as the judgement delivered in the case of Gurbux Anandram Bhiryani (supra) was overruled and the aforesaid fact was not brought to the attention of this Court by either side, order passed in W.P. No.17650/2019 is hereby recalled.
8. The writ petition No.17650/2019 is restored to its original number. The same be listed on 04.11.2019.
9. The review petition stands disposed of accordingly."
15) In view of foregoing analysis, the detention order cannot be interfered with for not mentioning the period of detention. Thus, this contention of Shri Dhanodkar must fail."
(emphasis supplied)
9. In view of the aforesaid discussion, the detention order cannot be interfered with because no time limit is mentioned in it. Thus, this argument deserves to be rejected.
10. The second argument is regarding deprivation from preferring representation. This argument is misconceived and incorrect. The detention order dated 25.06.2021 and grounds of detention order dated 25.06.2021 were simultaneously supplied to the petitioner, which contains clause 3, which makes it clear that the petitioner can prefer a representation before the District Magistrate, State Government and Central Government and Advisory Board. Thus, this contention is devoid of substance.
11. The person already detained/arrested can still be detained if certain conditions are fulfilled. This point was considered with sufficient detail recently in WP No.10286/2021 (Mangilal Gupta Vs. State of MP and Ors) decided on 16.07.2021. The relevant portion reads as under:-
"8) The points raised by learned counsel for the parties are no more res integra. This Court in WP No.9792/2021 (Yatindra Verma vs. State of MP & Ors.) opined as under:-
"29) In (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.) it was again held that while detaining a person, who was already arrested, due care should be taken and it must be shown (i) regarding knowledge of detaining authority about detenu custody, (ii) real possibility of detenu's released on bail and (iii) necessity of preventing him from indulging in activities prejudicial to the security of State maintenance of public order upon his release on bail."
(Emphasis supplied)
9) If the said test is applied in the present case, it will be clear that the detention order dated 19/05/2021 shows that the District Magistrate was aware that petitioner has already been arrested. Secondly, the order of detention shows that District Magistrate was not oblivious of the fact that there is real possibility of detenu's release on bail. Thirdly, considering the extreme crisis situation prevailing at Indore, the District Magistrate opined that release of petitioner may have adverse impact on 'public order' and it is necessary to detain him from preventing him from indulging in activities prejudicial to maintenance of 'public order'."
(emphasis supplied)
12. In view of aforesaid legal position, it is to be seen whether necessary parameters were taken care of by the District Magistrate while passing the impugned order or not.
13. A plain reading of grounds of detention order makes it clear that the detaining authority was aware about the fact that the petitioner is already under detention/arrest.
14. The likelihood of the petitioner's committing offence is also taken care of by the District Magistrate. His previous record is also considered by the District Magistrate. It was pregnant with the criminal record of the petitioner.
15. The likelihood of petitioner's release on bail was also considered by the competent authority. Thus, in our considered opinion, the necessary parameters to detain a person already under detention were duly taken care of and considered.
16. No fault can be found in the detention order.
17. The scope of interference on a detention order is limited. This Court cannot sit in appeal and re-appreciate the material. It is the subjective satisfaction of the detaining authority which matters. The relevant reason for detention mentioned in the grounds of the detention order dated 25.06.2021 reads as under:-
"vkids }kjk okgu dks rsth o ykijgokgh iwoZd pykrs gq, dbZ yksxksa dk ekuo o/k djus dk iz;kl djuk] ekW cgu dh uaxh&uaxh xkfy;kW nsdj ekjihV djuk o tku ls ekjus dh /kedh nsuk] efgykvksa ls NksM+NkM+ djuk tSls d`R; fd, gSaA vkids }kjk fnukad 06@04@2021 dks [krjukd rjhds ls viuh dkj dks bUnkSj dh lM+dksa ij nkSM+kdj vkrad QSyk;kA bUnkSj 'kgj ds dbZ Fkkuksa dh iqfyl o turk ds yksxksa }kjk dbZ fdykehVj rd ihNk fd;k fQj Hkh vki ugha idM+ esa vk,A dbZ xkfM+;ksa dks VDdj ekjh] dbZ yksx ? kk;y gq, ,oa ,d O;fDRk ds iSj ij viuh dkj Pk<+kdj iqu% fjolZ dj mlds iSj ij nqckjk xkM+h p<kdj dbZ ekuo o/k dk iz;kl fd;k x;kA vkius ftl O;fDRk ds iSj ij xkM+h p<+kbZ Fkh ml O;fDr dk iSj Bhd ugha gqvk gS vkSj mldk iSj dkVuk Hkh iM++ ldrk gSA vkids d`R;ksa ls ,oa Hk; ls turk =Lr gSA yksx fjiksVZ djokus ,oa xokgh nsus esa Mjrs gSaA yksd O;oLFkk dks xaHkhj [krjk gSA vke turk esa vkids fo:) jks"k O;kIr gSA ?kVuk dh lHkh lekpkj i=ksa esa dkQh ppkZ jgh gSA bl ?kVuk dh fjiksVZ ij Fkkuk vktknuxj ij vijk/k dzekad 271@21 /kkjk 308 Hkknfo dk izdj.k iathc) fd;k x;kA fnukad 07@04@2021 dks Hkh vkids }kjk viuh QksMZ dkj dks rsth o ykijokgh ls pykdj Qfj;knh jkds'k firk lrh'k dks Vddj ekj nh ftlls jkds'k dks pksV vkbZA bldh fjiksVZ Fkkuk f{kizk ij vijk/k dzekad 198@21 /kkjk 279] 337 Hkknfo dk izdj.k iathc) dj foospuk esa fy;k x;kA fnukad 23@06@2021 dks chV vktknuxj] chV rhu beyh esa Hkze.k ds nkSjku tkudkjh izkIr gqbZ fd vki yksxksa dks jksddj tku ls ekjus dh /kedh nsrs gS] xkyh xyksp djrs gS] jkg pyrh efgykvksa ls NsM+NkM+ djrs gSA yksxksa dks Mjkrs gS fd iqfyl esa fjiksVZ dh rks tku ls ekj nwaxkA yksx viuh tku eky dk [krjk crkrs gq, dgrs gSa fd vkids fo:) dM+h dk;Zokgh dh tkuk pkfg;sA vki orZeku esa fu:) gS] ijUrq vkids 'kh?kz tekur ij fjgk gksus dh laHkkouk gSA "
(emphasis supplied)
18. The criminal record of the petitioner is as under :-
dz- Fkkuk vijk/k dzekad /kkjk fooj.k
1 vktknuxj 271@21 308 Hkknfo foospuk/khu
2 f{kizk 198@21 279] 337 Hkknfo foospuk/khu
3 [ktjkuk 657@18 354] 294] 323] 506] 34 fopkjk/khu
Hkknfo
(emphasis supplied)
19. The subjective satisfaction of District Magistrate is not unfounded considering the nature of activity of the petitioner which became a reason of detention. In our view, it was not a simple "law and order" problem, indeed, the petitioner's action cause a dent to the "public order". This Court considered this aspect recently in WP No.9833/2021 (Juber Vs. State of Mp and Ors.) and opined as under :-
"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)
20. This Court considered the judgment of the Apex Court in the case of Subramanian (supra), wherein, the detenue armed with weapon abused the public and said action created fear in the nearby area. The shopkeepers closed their shops out of fear and the auto-drivers took their auto from their stand and left the place. In the instant case, the reproduced portion of grounds of detention shows that the allegation against the petitioner is that he took his car in a dangerous way from the roads of Indore town and created a fear for few kilometers.
21. In view of the allegations mentioned in the grounds of detention, in our opinion, the District Magistrate has taken a plausible view. The petitioner has previous criminal history also.
22. The interference under article 226 of the Constitution of India can be made if there exists any procedural impropriety or flaw in the decision making process. No such flaw is pointed out by the learned counsel for the petitioner. The judgment of Yatindra Verma (supra) is of no assistance to the petitioner.
23. In view of foregoing analysis, we find no reason to disturb the detention order.
24. Resultantly, the petition fails and is hereby dismissed.
(Sujoy Paul) (Anil Verma)
Judge Judge
Digitally signed by SOURABH YADAV
Date: 2021.08.06 11:59:57 +05'30'
sourabh