Madhya Pradesh High Court
Rinku @ Kuldeep Shukla vs The State Of Madhya Pradesh on 15 April, 2015
1
Writ Petition No.1603/2015
(Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others)
15/04/2015
Per Rohit Arya, J :
This Writ Petition under Article 226 of the Constitution of India has been filed to challenge the detention order No.04/NSA/2013, Sidhi, dated 26/12/2014 at pre-execution stage, whereby the District Magistrate Sidhi in exercise of powers under clause 2 of Section 3 of the National Security Act, 1980 [No.65 of 1980] (hereinafter referred to the as 'the Act of 1980') has ordered detention of petitioner- Rinku alias Kuldeep Shukla, S/o- Raghvendra Shukla, R/o Bhitari, Police Station Rampur Naikin, District Sidhi and to keep him in central Jail, Rewa, preventing him from acting in any manner prejudicial to the maintenance of public order.
2. The detention order No.04/NSA/2013, Sidhi, dated 26/12/2014, on record as Annexure P/2, is quoted below:-
"DETENTION ORDER Whereas I, Vishesh Garhpale, District Magistrate, Sidhi satisfied that with a view to preventing Shri Rinku alias Kuldeep Shukla S/o Raghvendra Shukla age 34 years residence of Bhitari P.S. Rampur Naikin District Sidhi from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under clause 2 of section 3 of National Security Act, 1980 (No.65 of 1980).
Now, there fore in exercise of the powers conferred by sub section 3 (2) of the said Act, I, 2 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) Vishesh Garhpale, District Magistrate, Sidhi hereby order that preventing, Shri Rnku alias Kuldeep Shukla S/o Raghvendra Shukla age 34 years residence of Bhitari P.S. Rampur Naikin District Sidhi be detained and kept in Central Jail Rewa. "
As such, (i) the District Magistrate has passed the order in the purported exercise of provisions contained in Section 3 (2) of the Act of 1980 and (ii) the petitioner is ordered to be kept in Central Jail, Rewa, preventing him from acting in any manner prejudicial to the maintenance of public order.
3. As averred in the Writ Petition, petitioner is a public representative in District Sidhi and involved in welfare and developmental activities of the people of District Sidhi. He was elected as a Sarpanch of Gram Panchayat Sakin, Bhitari, District Sidhi, from 2007 to 2012. His wife-Smt. Neelam Shukla was also Sarpanch of the same Gram Panchayat. Consequent upon declaration of Panchayat General Elections, 2014-15 by the M.P. State Election Commission, election for Janpad Panchayat, Sidhi was scheduled in the month of January, 2015. Petitioner aspiring to become member of the Janpad Panchayat had prepared himself to contest the election to subserve the cause of people of District Sidhi as a Member of Janpad Panchayat. However, looking to his wide popularity in the local area in fact he had become an eyesore for his rival camp and other contesting candidates for Member of Janpad Panchayat. Resultantly, exercising their political clouts and highhandedness, people in the rival camp prevailed 3 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) over the local District Administration/notified authority under the Panchayat Adhiniyam by the State to declare him as disqualified for contesting the election and thereby to debar him for six years. As a result, an order dated 25/8/2014 was passed in the purported exercise of power under Section 40 of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam of 1993') declaring the petitioner as disqualified for contesting election for six years. His appeal arising therefrom and addressed to the Collector was deliberately kept pending for considerable long period for obvious reasons. Petitioner had to approach this Court by filing Writ Petition No.19956/2014 seeking indulgence of this Court in the matter of non-consideration of pending appeal by the appellate authority. This Court vide its order dated 20/12/2014 had disposed of the Writ Petition with the direction to the appellate authority, i.e. the Collector, Sidhi, to decide the stay application and also the appeal by speaking order within a period of two months. However, neither the application for stay nor the appeal, as such, has so far been decided by the Collector and the order of this Court (supra) remains un-complied. The Collector instead appears to be more inclined to initiate process for passing the detention order against the petitioner under Section 3 (2) of the Act of 1980. To facilitate the aforesaid intended action, respondent no.3 sent a report dated 26/12/2014 to respondent no.2. The report is on record as Annexure P/6. Respondent no.3 did not send the report with complete correct facts, in fact it is highly 4 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) prejudicial and detrimental to the rights and interests of the petitioner. Respondent no.2 acting mechanically thereupon has passed the impugned order of detention invoking powers contained in Section 3 (2) of the Act of 1980 on the same day without even verifying the facts narrated in the said report. As such, respondent no.2 before passing the impugned order has neither applied his mind nor followed the procedure. The aforesaid action in fact is an invasion of petitioner's fundamental rights enshrined under Article 14 and serious threat to life and liberty as enshrined under Article 21 of the Constitution of India. In paragraphs 5.11 to 5.16 it is averred that the grounds shown as premise for passage of the impugned order are false and frivolous, as the petitioner has been acquitted in cases viz. (i) in RT No.111/2002 petitioner has been acquitted vide order dated 6/12/2014 by the Judicial Magistrate First Class, Sidhi, (ii) in RT No.731/2013 petitioner has been acquitted vide order dated 10/12/2014 by the Judicial Magistrate First Class, Sidhi, (iii) in RT No.915/2009 petitioner has been acquitted vide order dated 8/12/2011 by the Judicial Magistrate First Class, (iv) in RT No.1254/2008 petitioner has been acquitted vide order dated 6/1/2015 by the Judicial Magistrate First Class, Sidhi, (v) in Criminal Case No.2065/2013 petitioner has been acquitted vide order dated 30/11/2013 and (vi) in the case of report of Ashutosh Pandey, he himself has made statement attributing no allegation against the petitioner. It is further averred that the petitioner has never been convicted by any Court in cases mentioned in 5 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) the report, therefore, it is not correct to say that petitioner is involved in criminal activities or is a habitual offender.
On the aforesaid premise, petitioner contends that the grounds supplied to the petitioner, Annexure P/2, can by no stretch of imagination justify passage of the impugned order camouflaged as prejudicial to maintenance of public order, as contemplated under sub-section (2) of Section 3 of the Act of 1980.
4. Respondents have filed return and submitted that the impugned order has been passed to prevent the petitioner from continuing his activities, which are prejudicial to maintenance of public order. The detention is only preventive and not punitive.
In para 3 it is stated that the activities of petitioner's brother were disturbing the public peace and public order. As such, it was felt necessary by the authorities to impose provisions of the Act of 1980 upon him (petitioner) and there is nothing illegal in it.
There were nine criminal cases registered against the petitioner, as placed on record by the respondents/authorities affecting the public peace and public order. Thus, considering the criminal antecedents of the petitioner and offences registered against him, it was recommended for passing of the detention order against the petitioner under Section 3 (2) of the Act of 1980. Respondent no.2 after consideration of aforesaid reference/report dated 26/12/2014 of respondent no.3 has passed the impugned order. The order so passed 6 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) alongwith the grounds were communicated to the petitioner. Petitioner has filed an appeal dated 7/1/2015 against the order before the Principal Secretary and the same is pending consideration. Petitioner is absconding, as a result, the proceedings before the Advisory Board could not be undertaken under Section 10 of the Act of 1980 and consequently, the order could not be passed under Section 12 of the Act of 1980. It is also averred that pendency of appeal against disqualifying the petitioner from contesting the election under Section 40 of the Adhiniyam of 1993 has nothing to do with the passage of impugned order, as the impugned order has been passed to prevent the petitioner from continuing his activities prejudicial to the public order. Mere acquittal in criminal cases shall not render the impugned order invalid, as it is not necessary that all the grounds mentioned in the impugned order should withstand for sustenance of the detention order and even one ground may be sufficient to make the order valid.
With the aforesaid submissions, it is prayed that the writ petition be dismissed.
5. Before we advert to rival submissions advanced on the strength of the respective pleadings, it is considered apposite to observe that challenge to the detention order is at the pre- execution stage, as so far the petitioner has not been detained, therefore, judicial scrutiny of the impugned order shall be in a way different from the challenge to the same order at post-execution stage, i.e. after detention, as detailed 7 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) and circumscribed in the context of extraordinary constitutional jurisdiction of the Supreme Court and High Courts under Article 32 and 226 of the Constitution of India. The Hon'ble Supreme 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 considered contentions advanced in the context of judicial review under Article 226 and 32 of the Constitution of India regarding challenge to the detention order at pre-execution stage. The Court held that judicial review being a part of basic structure of the Constitution of India, the aforesaid powers of the High Courts and Supreme Court are sacrosanct and cannot be circumscribed by any law including detention law. Therefore, detention order can be challenged at any stage and the artificial distinction between the pre-decisional and post- decisional challenge is inconsistent with and alien to the wide powers of the High Courts and Supreme Court under Article 226 and 32 of the Constitution of India. The Court, however, noted that the power must be exercised keeping in mind the self-restraint and with circumspection. It went on to explain the nature, extent, limit, scope, ambit and dimension of the powers of the Supreme Court and High Court under Articles 32 and 226 of the Constitution of India and has stated that there is no restriction on the powers of the superior Courts either by the Constitution or by any statutory enactment, but over the years certain self-restraints for exercising these powers have been observed, as a mark of judicial discipline 8 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) and in the interest of administration of justice. Such self imposed restrictions or restraints are not only confined to reviewing the orders passed under detention law, but also the orders passed and decisions made under all laws. Therefore, bearing in mind the aforesaid self-evolved judicial policy and in conformity with the self-imposed internal restrictions the superior Courts insisted that the aggrieved person first shall be allowed the due operation and implementation of the concerned law and, therefore, before approaching the High Court or the Supreme Court invoking their extraordinary constitutional and equitable jurisdiction, the petitioner must exhaust the remedies provided to him under the relevant laws. Therefore, exercise of such powers by the superior Courts shall depend upon facts and circumstances of each case. As far as detention orders are concerned, it is held that if in every case a detenu is permitted to challenge and seek 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 the operation only for a limited period. However, Courts have powers to entertain grievances against any detention order prior to its execution, but the grounds on which Courts have interfered with such challenges to the detention orders at pre-execution stage are necessarily very limited in scope and number viz. where 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 9 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) 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. A note of caution is also struck that refusal by the Courts to exercise extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to 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. (Emphasis supplied) The aforesaid five circumstances detailed by the Hon'ble Supreme Court though in fact were illustrative in nature, but have all along been understood and applied in the matters of challenge to detention order of pre-execution stage in strict and literal sense by the superior Courts. But, in the case of Subhash Popatlal Dave vs. Union of India and another, (2012) 7 SCC 533 the Hon'ble Supreme Court has considered the aforesaid judgment and explained that nowhere in Alka Subhash Gadia's (supra) case it has been indicated that challenge to a detention order at pre-execution stage can be made only in the five exceptions referred therein. It has been held as under:-
"By prefacing the five exceptions in which the courts could interfere with an order of detention at the pre- execution stage, with the expression "viz.", Their Lordships possibly never intended that the said five examples were to be exhaustive. In common usage 10 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) or parlance the expression "viz." means "in other words". There is no aura of finality attached to the said intended expression. The use of the expression suggests that the five examples were intended to be examplars and are not exhaustive. On the other hand, the Hon'ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power.
47. With due respect to the Hon'ble Judges in Sayed Taher Bawamiya case, (2000) 8 SCC 630, we have not been able to read into the judgment in Alka Subhash Gadia case any intention on the part of the Hon'ble Judges, who rendered the decision in that case, that challenge at the pre-execution stage would have to be confined to the five exceptions only and not in any other case. Both the State and the Hon'ble Judges relied on the decision in Sayed Taher Bawamiya case. As submitted by Mr. Rohtagi, to accept that it was the intention of the Hon'ble Judges in Alka Subhash Gadia case to confine the challenge to a detention at the pre-execution stage, only on the five exceptions mentioned therein, would amount to imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Article 226 and 32 of the Constitution. The exercise of powers vested in the superior courts in judicially reviewing executive 11 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) decisions and orders cannot be subjected to any restrictions by an order of the court of law. Such powers are untrammelled and vested in the superior courts to protect all citizens and even non-citizens, under the Constitution, and may require further examination."
Therefore, with the aforesaid enunciation of law it is vividly clear that the challenge to detention order at pre-execution stage is not confined to grounds as cataloged in Alka Subhash Gadia's (supra) case. But, challenge may also be made on grounds touching the jurisdictional issues akin to the aforesaid five exceptions in the matter of passage of detention order.
6. Before we address on the moot question 'whether the impugned order of detention can be construed to have been passed for maintenance of public order under Section 3 (2) of the Act of 1980 or in fact the aforesaid order need to be construed as an order passed for maintenance of law and order in the backdrop of grounds ex facie, as filed Annexure P/ 2 supplied to the petitioner, it is necessary to restate the law as laid down by the Hon'ble Supreme Court drawing legal distinction with different consequences flowing therefrom between 'public order' and 'law and order'.
The Constitution Bench Judgment in Ram Manohar Lohia (Dr.) v. State of Bihar, AIR 1966 SC 740, wherein Justice Hidayatullah (As His Lordship then was) by stating 12 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) various illustrative instances and illustrations defined the 'public order' and 'law and order' as under:-
"17. The distinction between "public order" and "law and order" has been carefully defined in a Constitution Bench judgment of this court in Dr. Ram Manohar Lohia v. State of Bihar & Others (1966) 1 SCR 709. In this judgment, Hidayatullah, J. by giving various illustrations clearly defined the "public order" and "law and order". Relevant portion of the judgment reads thus:
"51....Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. 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. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the 13 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". 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 Dipak Bose v. State of W.B., (1973) 4 SCC 43 the three Judges Bench of Hon'ble Supreme Court again stated the distinction between 'law and order' and 'public order' by giving comprehensive illustrations, as under:-
14 Writ Petition No.1603/2015(Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) "21. In Dipak Bose alias Naripada v. State of West Bengal (1973) 4 SCC 43, a three-Judge Bench of this court explained the distinction between "law and order" and "public order" by giving illustrations.
Relevant portion reads as under:
"4..Every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. There is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order. No doubt bombs were said to have been carried by those who are 13 alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of law and order. In respect of such acts the 15 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) drastic provisions of the Act are not contemplated to be resorted to and the ordinary provisions of our penal laws would be sufficient to cope with them."
In Kuso Sah v. State of Bihar, (1974) 1 SCC 185 the Hon'ble Supreme Court has held as under:-
"22. In Kuso Sah v. The State of Bihar & Others (1974) 1 SCC 185, this court had also considered the issue of "public order". The court observed thus:
"These acts may raise problems of law and order but we find it impossible to see their impact on public order. The two concepts have well defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder...."
In Ashok Kumar v. Delhi Administration, (1982) 2 SCC 403 the Hon'ble Supreme Court has held as under:-
"23.This court in another important case Ashok Kumar v. Delhi Administration & Others (1982) 2 SCC 403 clearly 14 spelled out a distinction between `law and order' and `public order'. In this case, the court observed as under:- "13. The true distinction between the areas of "public order" and "law and 16 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) order" lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of "law and order" and "public order" is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not detrimental 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...."
In Commissioner of Police v. C. Anita, (2004) 7 SCC 467 the Hon'ble Supreme Court has held as under:-
"28. In Commissioner of Police & Others v. C. Anita (Smt.) (2004) 7 SCC 467, this court again examined the issue of "public order" and "law and order" and observed thus:
"7. ....The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression "law and order" is wider in scope inasmuch as contravention of law always affects order, "public order" has a narrower ambit, and 17 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of "law and order" and "public order" is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". The question to ask is:
"Does it lead to disturbance of the current life of the community 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?"
This question has to be faced in every case on its facts."
18 Writ Petition No.1603/2015(Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) The aforesaid case Subhash Popatlal Dave vs. Union of India and another was finally decided by the Supreme Court on 16/7/2013 and the judgment is reported in (2014) 1 SCC 280 dismissing the Writ Petition, wherein the Hon'ble Supreme Court has further added to the grounds of detention order at pre-execution stage stating that there must be "live and proximate link" so that if there is a long and unexplained delay between the order of detention and arrest of the proposed deteainee, the order of detention may be questioned as regards its sustainability unless of-course if the material on record indicates that fresh application of mind was applied to the new situation and the changed circumstances by the authority. Where the delay is adequately explained and is found to be the result of recalcitrant or refractory conduct of the proposed detainee in evading the arrest, there is warrant to consider that the link is not snapped.
7. Now in the backdrop of aforesaid authoritative pronouncement of law, let us now examine the grounds ex facie supplied to the petitioner.
Allegations against the petitioner are cataloged with reference to the following crime cases:-
1. Crime No.19/2002: under Sections 341, 294, 323, 506 and 34 of IPC.
2. Crime No.376/2008: under Sections 294, 323, 324, 325, 506 and 34 of IPC.3. Crime No.5/2009: under Sections 294, 353
and 34 of IPC.
19 Writ Petition No.1603/2015(Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) 4. Crime No.315/2009: under Sections 294, 324 and 506 of IPC.
5. Crime No.71/2013: under Sections 294, 353and 506 of IPC. (As per para 7, the criminal case No.731/2013 arising therefrom has been decided and petitioner has been acquitted) 6. Complaint No.2/2013: under Section 110 Cr.P.C.
7. Crime No.719/2014: under Sections 147, 186, 294 and 506 of IPC. (for theft of sand)
8. Crime No.720/2014: under Sections 294, 323, 506, 147, 148 and 149 of IPC.
9. Complaint No.60/2014: under Section 110Cr.P.C.
10. Forest Offence No.475/2015: an information dated 6/6/2014 with the allegation that the petitioner-Rinku alias Kuldeep Shukla is engaged in illegal excavation and sale of sand and threatening the officials with dire consequences.
The impugned order is sought to be justified on the aforesaid allegations, which ex facie reveal the incidents of the trivial nature alleging acts of obscene acts and songs, simple hurt, threat to life and punishment for wrongful restraint. The remaining allegations are related to theft of sand and certain complaints under Section 110 of Cr.P.C. As such, the allegations made against the petitioner are of trivial nature and 20 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) do not admit of grave and serious offences having implications of serious repercussions on the life and liberty of larger sections of the community causing disturbance to the even tempo of life and liberty of the community, so that the same may be classified as the acts intended to subvert the public order. Further, we find that in the grounds of detention there is "no other material" referred to which would justify the apprehension of the Detaining Authority that the petitioner has engaged in a manner so as to subvert public order or that the witnesses were not coming forward to depose against him due to fear and more so that the petitioner is likely to engage himself in the activities which may affect public order. In absence of any contemporaneous material in this behalf it is unfathomable as to how the subjective satisfaction reached by the Detaining Authority regarding involvement of the petitioner in subversion of public order can be justified.
As a matter of fact, an act by itself is not determinant of its own gravity: in its quality it may not differ from other, but in its potentiality it may be very different. [Arun Ghosh v. State of W.B., [(1970) 1 SCC 98]. Therefore, such sporadic and stale instances referred to and relied upon by the Detaining Authority of assault, abuse, simple hurt, which are of trivial nature, cannot be construed to have the potential of causing threat to the maintenance of public order. These are the instances, at best of breach of law and order and they do not establish any live and proximate link to the threat to the public order nor does it pass the test of detention order 21 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) passed for the right purpose. The nature of allegations with reference to the alleged offences are of the nature which can be dealt with under the powers to maintain law and order. They are not of such a nature which may be perceived to have the intensity of causing threat to public order.
Therefore, in the opinion of this Court, issuance of impugned order in the purported exercise of power under Section 3(2) of the Act of 1980 is an instance of colourable exercise of power for collateral and extraneous purpose, as it is evident that on the one hand despite order passed by the Single Bench in Writ Petition No.19956/2014 dated 20/12/2014 the Collector is sitting tight over the appeal pending consideration against disqualifying the petitioner for contesting the elections for six years under the purported exercise of powers under Section 40 of the Adhiniyam of 1993 and on the other hand the impugned detention order has been passed to send him to jail.
8. Before parting with the case, we feel apposite to observe that the fundamental rights guaranteed to citizens of India under Article 14 and 21 of the Constitution of India are valuable and precious rights, particularly right to life and liberty and cannot be lightly interfered with by the repository of the power of the relevant laws (i.e. in this case National Security Act, 1980) by an executive fiat. The power has to be exercised bonafidely recording subjective satisfaction based upon germane facts and with utmost care and circumspection, as exercise of the power and authority has serious consequences 22 Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla vs. State of Madhya Pradesh and others) of invasion of fundamental rights of right to life and liberty. Malafide exercise of power either in law or in fact cannot withstand judicial scrutiny by superior courts in exercise of its extraordinary constitutional jurisdiction under Article 32 and 226 of the Constitution of India.
9. Accordingly, in the fact situation of the present case, we are of the considered opinion that the impugned detention order has been passed for a wrong purpose. As a result, the impugned detention order deserves to be quashed and set aside.
10. Hence, this petition succeeds. The impugned detention order dated 26/12/2014 is quashed and set aside at pre- execution stage. Ordered accordingly.
(A.M.Khanwilkar) (Rohit Arya)
Chief Justice Judge
Arun.