Allahabad High Court
Anil Singh vs Union Of India And 3 Others on 11 January, 2021
Bench: Pritinker Diwaker, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved On 18.11.2020
Delivered On 11.01.2021
Case :- HABEAS CORPUS WRIT PETITION No.329 of 2020
Petitioner :- Anil Singh
Respondent :- Union Of India And 3 Others
Counsel for Petitioner :- Vinay Kumar Singh,Mohd Raghib Ali,Saghir Ahmad(Senior Adv.)
Counsel for Respondent :- A.S.G.I.,G.A.,Santosh Kr. Singh Paliwal
Hon'ble Pritinker Diwaker,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma,J.)
1. Heard Sri Saghir Ahmad, learned Senior Advocate assisted by Sri Vinay Kumar Singh, learned counsel for the petitioner, Ms. Kumari Meena, learned A.G.A. for the State-respondents and Sri Santosh Kumar Singh Paliwal, for Union of India.
2. By this writ petition under Article 226 of the Constitution of India petitioner Anil Singh prays for issuance of a writ, order or direction in the nature of Habeas Corpus challenging the validity and constitutionality of the impugned detention order dated 20.11.2019 passed by District Magistrate, Sonebhadra/respondent no.3 (hereinafter referred to as ' the detaining authority') under sub section (2) of Section 3 of National Security Act, 1980 (for short the 'NSA') on being satisfied that petitioner's detention was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order as well as confirmation order dated 29.11.2020 passed by the Under Secretary Home (Confidential) Department, Government of U.P., Lucknow/respondent no.2. Petitioner has also prayed for a direction to the respondents to set him at liberty and to award cost to him.
3. The order of detention alongwith the grounds of detention was served upon the petitioner on 20.11.2019. Against the said order, the petitioner made a representation dated 26.11.2019 to the Detaining Authority, the Secretary, Department of Home and another representation to the Advisory Board constituted under Section 9 of the N.S.A. The case of the petitioner alongwith 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 under Section 12 (1) of the NSA, the State Government confirmed the aforesaid order of detention and directed that the petitioner be detained for a period of three months from the date of detention vide order dated 31.12.2020 which was communicated to the petitioner on 06.01.2020.
4. According to the grounds of detention the activities of the petitioner were prejudicial to the maintenance of public order and had disturbed the normalcy of the society. An F.I.R. was lodged against him on 01.10.2019 at 5:30 O'clock as Crime No.180/2019 under Sections 147, 148, 149, 302, 506 & 120B I.P.C. at Police Station Pipri, District Sonebhadra. While petitioner was in jail in that case, the in-charge of Police Station Pipri sent a report to Superintendent of Police, Sonebhadra alleging that on 30.09.2019 at about 10:00 P.M. Chairman Renukoot, Shiv Pratap Singh aged about 38 years R/o Hanuman Singh Katra, Renukoot was present in his residential office. Ajit Kushwaha, Dilip Pareeda and Rinku were also there. Younger brother of Shiv Pratap Singh @ Dablu Singh was sitting out of office. While Shiv Pratap Singh was hearing the problems of public, all of a sudden two boys on motorcycles arrived at opposite side of the road and getting their motorcycles stood there, came towards the office. One of the boy was standing out of office and other boy entered into the room. He bade namaste to Chairman Shiv Pratap Singh. He could not heed towards the boy on account of talk on phone. That boy opened fire upon him which pierced on the left side chest of Shiv Pratap Singh. Meanwhile, other boy also opened fire which stroke at the door. People present there tried to catch them but failed and culprits having reached at the divider on the road, fired in the air and fled away. Shiv Pratap Singh was brought to the Hospital at Hindalco from where he was referred to Trauma Center, Varanasi. On 01.10.2019 at about 2:30 A.M. he succumbed to injuries.
5. During investigation, it came into light that petitioner was Ex-Chairman of Renukoot and deceased Shiv Pratap Singh was present Chairman. There was enmity because petitioner was defeated in election of Chairman, Nagar Panchayat. Shiv Pratap Singh and members of his family caused injuries to the brother of petitioner and Jamuna Singh with danda, knife and sword in which Jamuna Singh and one Rohit Singh got injured. Jamuna Singh said to take revenge instead of lodging F.I.R., but uncle of Jamuna Singh namely Santosh Singh lodged F.I.R. at Police Station Pipri as Crime No.12/2019, under Sections 147, 148, 149, 506, 307 & 7 Criminal Law Amendment Act. Meanwhile, there was altercation between petitioner's brother Vijay Pratap Singh and brother of the deceased. As a result, petitioner engaged himself in conspiracy to murder Shiv Pratap Singh through Rakesh Prasad Maurya. Brajesh Singh brother of petitioner continued to talk to Jamuna Singh who was told to arrange shooters. On whose instance Bhagwan Singh arranged and sent Gandhi Yadav, Lav Singh, Sudhanshu Singh, Ravi Singh, Anda, Manish and other 12 people to Renukoot. They were stayed at Hotel Glory on 07.09.2019 by Brajesh, brother of petitioner on the I.D. of his driver Ramjaan. Brajesh Singh and shooters were seen together in C.C.T.V. Brajesh Singh was in contact with Jamuna Singh during this period. The shooters lived in Hotel Glory from 07.09.2019 to 09.09.2019. Meanwhile, deceased Shiv Pratap Singh was got identified by the shooters. Again on 28.09.2019, shooters were called through phone by Jamuna Singh on the instance of Brajesh Singh, brother of petitioner. On 29.09.2019 shooters were stayed in Jwalamukhi Guest House. Brajesh Singh also provided Rs.25,000/- for purchasing motorcycle to Gandhi Yadav. In this way, on 30.09.2019 the incident was got caused by the petitioner as a result of long hatched conspiracy with other accused persons and after the commission of incident, vehicle Scorpio, Bearing No. UP 67 F 4444 owned by the petitioner and driven by Ramjaan was deployed to escort the shooters. Investigating Officer recorded statements of witnesses and collected other evidence in which involvement of petitioner was found established and on 02.10.2019 he was arrested by police. There is criminal history of the petitioner i.e. seven criminal cases are registered at Police Station and all are pending before the Court after charge-sheet. This incident took place at 10:00 P.M. in the mid of Renukoot market. All shop-keepers located nearby shut their shops immediately. People were in fear and they closed their doors since this was a murder of Chairman so people were affected adversely and felt unsafe. The atmosphere remained panic for few days. Even students did not attend their schools due to fear. Public order was totally disturbed. Extra Forces and P.A.C. were also deployed to bring the situation under control. On 02.10.2019, he applied for bail before the Court which created possibility of petitioner being released on bail and again to indulge himself in such activities those were likely to affect adversely public order, therefore, his detention became necessary under the N.S.A.
6. In the aforementioned circumstances, Station House Officer, Pipri sent a report with relevant papers to Superintendent of Police, Sonebhadra for detaining the petitioner under Section 3(2) of N.S.A. Thereupon, Superintendent of Police, Sonebhadra, after considering the matter became satisfied with the report sent by Station House Officer and submitted his report to District Magistrate, Sonebhadra for detaining the petitioner under Section 3(2) of N.S.A. to prevent him from indulging in such activities causing disturbance of public order.
7. On the basis of material placed before him, as briefly referred to above, Detaining Authority came to the conclusion that petitioner's activities are prejudicial to the maintenance of public order and his activities have disturbed the normalcy of the society. Thus, keeping in view his criminal record and activities, 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 activities which will adversely affect the maintenance of public order and, therefore, to prevent him from committing similar activities prejudicial to the maintenance of public order it became necessary to detain him with immediate effect under Section 3(2) of the N.S.A. Hence, the Detaining Authority passed impugned order dated 20.11.2019 for detaining the petitioner under Section 3(2) of the N.S.A. The Detaining Authority communicated the grounds of detention to petitioner on 20.11.2019. On 26.11.2019, petitioner has sent his representation through Jail Superintendent, Sonebhadra to Detaining Authority which was rejected on 28.11.2019 by the Detaining Authority and other representation was sent to State, which was also rejected on 09.12.2020.
8. We have also gone through the record including counter-affidavits of respondents and rejoinder affidavits of petitioner. The petitioner has challenged the impugned order on following grounds :-
(I) Because since 03.10.2019, the petitioner is languishing in jail in connection with F.I.R. No.180/2019 dated 01.10.2019 whereas he is quite innocent and has committed no offence at all.
(II) Because since 20.11.2019, the petitioner has been detained in pursuance to the detention and in as much as also detention extension order dated 18.02.2020 and 14.05.2020 for a period of 9 months w.e.f 20.11.2019 till 16.08.2020 in a District Jail, Sonebhadra at Robertsganj.
(III) Because, in any manner there is no prejudice to the security of the state or from acting in any manner prejudicial of the maintaining of the public order, if the petitioner wouldn't be detained so as such there is no necessity to make an order directing to the petitioner to detain him into jail.
(IV) Because, there is no credible information or cogent reason apparent on record to believe that either the petitioner would be released from jail or he would act prejudicial to the maintenance to the security of the State or to maintenance of the public order.
(V) Because, there is only bald statement and stale ground. It is further submitted, mere ipse dixit of the detaining authority to pass the detention order.
(VI) Because, the petitioner has neither taken law and order in his own hand nor disturbed the public tranquility. It is further submitted, the alleged so called apprehension is the creation of the mind of the sponsoring recommending/authorities.
(VII) Because, the intent of the legislation to enact the National Security Act is preventive not punitive. But the respondent no.3 by misusing his power has passed the detention order, in order to punish the petitioner.
(VIII) Because, the continuous detention of the petitioner is against the intent of the Section 3(2), (4), and 8 to 12 of the Act and in as much as also contrary to the Article 22(5) readwith Article 21 and 14 of the Constitution of India.
(IX) Because, in this case the constitutional safeguard embodied in the Article 22(5) of the Constitution of India has not been followed.
(X) Because, either in the detention order dated 20.11.2019 and approval order dated 29.11.2019 the period of detention has not been disclosed.
(XI) Because, the detention order dated 20.11.2019 and in as much as also detention extension order dated 18.02.20 and 14.05.2020 are illegal and unconstitutional and without application of independent mind, hence not sustainable and the petitioner deserves to be set at liberty forthwith from the District Jail, Sonebhadra at Robertsganj, in the interest of justice, so the justice may be done.
9. The respondents have filed counter-affidavits wherein they have denied the points raised by the petitioner and reiterated their claim that the activities of the petitioner were prejudicial to the maintenance of public order, his activities have disturbed the normalcy of the society and then there was every possibility that just after his release from jail, he will again indulge in such activities which will adversely affect the public orders and therefore, to prevent him from further committing similar criminal activities prejudicial to the maintenance of public order, the impugned orders were justified.
10. It is strenuously urged by learned counsel for the petitioner that the impugned orders are wholly arbitrary and the petitioner has been illegally detained by misusing the provisions of the N.S.A. on the basis of unfounded apprehension that if the detenue was released on bail, he would again carry on criminal activities in the area. Except the alleged criminal cases, there was no criminal record of the petitioner and petitioner did not indulge in any such activity which may form the basis for satisfaction of the Detaining Authority to come to conclusion that he is likely to disturb the public order. At the best, it could be a matter of law and order and not disturbance of public order. The reliance on the alleged criminal case is misplaced. 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 for the petitioner also contended that even if the allegation/instances relied upon by the Detaining Authority are taken a face value, still at best, these may tantamount "to law and order" 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 N.S.A. It is alleged that the detention order against the petitioner has been passed only with a view to frustrate the bail. 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. It is urged that the detention order as well as it's confirmation order are mala fide inasmuch as they were made merely to circumvent the petitioner's enlargement on bail. It is also urged by the learned counsel that the grounds of order of detention and further extension thereof were not communicated to him, which caused prejudice to the petitioner. In this way, the impugned order becomes arbitrary and suffers from illegality and material irregularity, therefore, the same are liable to be interfered with and quashed by this Hon'ble Court.
11. Per contra, 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. The satisfaction of the Detaining Authority is based on reliable and relevant material and that there was no illegality in the impugned orders. It is urged that if the Detaining Authority arrives at the subjective satisfaction that the activities of the detenue are prejudicial to the maintenance of public order and passes the detention order, that cannot be interfered by this Hon'ble Court. The grounds of detention were promptly communicated to the petitioner within the stipulated time and there is no need of supplying the grounds of extension of such detention order to the detenue. In addition to this, there is a long criminal history of the petitioner.
12. Thus, the main question for consideration before this Court is whether the activities of the petitioner highlighted in the grounds of detention fall within realm of public order or law and order.
13. 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, AIR 1982 SC 1143. 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 organised 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".
14. To the same effect are the observations of the Apex Court in Victoria Fernandes Vs. Lalmal Sawma, AIR 1992 SC 687, 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.
15. The distinction between violation of 'law and order' and an act that would constitute disturbing the maintenance of 'public order' had also fallen for consideration of the Hon'ble Supreme Court in State of U.P. & Anr. V. Sanjay Pratap Gupta @ Pappu and others reported in 2004 (8) SCC 591, where the Apex Court after an extensive survey of authority on the issue brought out the distinction in fine detail thus:-
"12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. 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 touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well-defined contours, it being well established that stray and unorganized 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. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State". (See Kuso Sah v. State of Bihar 1974 1 SCC 185, Harpreet Kaur v. State of Maharashtra 1992 2 SCC 177, T.K Gopal Alias Gopi v. State Of Karnataka 2000 6 SCC 168 and State of Maharashtra v. Mohd. Yakub 1980 2 SC 1158).
14. 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 acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact."
16. The issue has also been dealt with in the case of Sant Singh vs. District Magistrate, Varanasi reported in 2000 Cri LJ 2230 wherein paragraph 7 of the report dealing with the point it was held thus:-
"7. The two connotations 'law and order' and 'public 'order' are not the words of magic but of reality which embrace within its ambit different situations, motives and impact of the particular criminal acts. As a matter of fact, in a long series of cases, these two expressions have come to be interpreted by the apex Court. It is not necessary to refer all those cases all over again in every decision for one simple reason that they have been quoted and discussed in earlier decision of this Court dated 14-10-1999 in Habeas Corpus Writ Petition No. 33888 of 1999- Udaiveer Singh v. State of U.P. and the decision dated 1-12-1999 in Habeas Corpus Writ Petition No. 38159 of 1999 Rajiv Vashistha v. State of U.P. (Reported in 1999 All Cri R 2777). The gamut of all the above decisions in short is that the true distinction between the areas of 'public order' and 'law and order' lies not in nature and quality of the act, but in the degree and extent of its reach upon society. Sometimes the distinction between the two concepts of law and order' and 'public order' is so fine that it overlaps. 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 determination of its own gravity. It is the potentiality of the act to disturb the even tempo of the community which makes it prejudicial to the maintenance of 'public order''.
17. 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, (1995) 3 SCC 237; Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat, (1999) 5 SCC 613 and Hasan Khan Ibne Haider Khan Vs. R.H. Mendonca, (2000) 3 SCC 511. The Apex Court 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".
18. Dealing with the question as to whether one solitary instance can be the basis of an order of detention, the Apex Court in Smt. Bimla Rani v. Union of India, 1989 (26) ACC 589 SC observed that the question is whether the incident had prejudicially affected the 'public order'. In other words, whether it affected the even tempo of the life of the community. In Alijan Mian v. District Magistrate Dhanbad, 1983 (3) SCR 930 AIR 1983 SC 1130 it was held that even one incident may be sufficient to satisfy the detaining authority in this regard, depending upon the nature of the incident. Similar view has been expressed in the host of other decisions. The question was answered more appropriately and with all clarity in the case of Attorney General of India v. Amratlal Prajivandas, AIR 1994 SC 2179, wherein the apex Court ruled that it is beyond dispute that the order of detention can be passed on the basis of a single act. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudical activities. It cannot be said as a principle that one single act cannot be constituted the basis for detention. Thus, the argument of learned counsel for the petitioner that since it is solitary incident of the petitioner, he deserves sympathy, is rejected. Now the law, as it stands, is that even one solitary incident may give rise to the disturbance of 'public order'. It is not the multiplicity but the fall out of various criminal acts. Though there is consistency in the various decisions of the apex Court about the interpretation of the expressions of 'law and order' and 'public order' undue insistence on the case law is not going to pay any dividend as each case revolves round its own peculiar facts and has to be viewed in the light of the various attending factors. It is difficult to find a case on all fours with the case in hand.
19. In the instant case, examining the grounds of detention, briefly referred to above, on the touchstone of the legal position as emerging from the aforementioned decisions, we are of the view that the activities relied upon by the Detaining Authority to come to the aforementioned conclusion, cannot be said to be mere disturbance of "law and order". As noted in the grounds of detention, the activities of the petitioner pertains to engage into conspiracy to get a person assassinated who being elected by the people as Chairman of Nagar Panchayat and so creating a menace in the society at large. There is material on record to show that petitioner, being ex-Chairman of Nagar Panchayat, engaged into conspiracy to get the elected Chairman murdered through hired shooters which created panic in the public affecting the normal tempo of life. Shops in the market remained closed. Students also not attended their schools for several days. Ordinary life in the city was paralysed. It will certainly result in disturbance of public order. To assassinate an elected person, while discharging his duties in his office, strikes at the root of the State's authority and is directly connected to 'public order'. This act of petitioner was not directed against a single individual, but against the public at large having the effect of disturbing 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 activities of petitioner 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. 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 as its confirmation order against the petitioner.
20. 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 likely to be allowed to the petitioner, we are of the view that there is no substance in the contention. No doubt, when the proceedings of clamping provisions of NSA were initiated, the petitioner was in jail but 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. In this regard, criteria was laid down by the Hon'ble Apex Court in the case of Kamarunnissa and others vs. Union of India (1991) 1 SCC 128 also fortified in Champion R. Sangma vs. State of Meghalaya (2015) 16 SCC 253, it was held :-
"13. In case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing."
21. So far as the argument relating to non supply of grounds of order of detention and further extension thereof is concerned, it is noteworthy to mention that the grounds of detention were communicated to the petitioner at the time of passing the impugned detention order dated 20.11.2019. It was further extended by the State which was communicated to the petitioner in due time. There was no such requirement to furnish grounds of extension to the detenue because the grounds of detention were the same, so no any prejudice was likely to be caused to the petitioner.
22. Having considered the matter in the light of the facts and 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 and well founded. Thus, we do not find any illegality in the impugned orders, warranting our interference. The writ petition, being bereft of any merit, is dismissed accordingly. There will, however, be no order as to costs.
Order Date :- 11.01.2021 Ashok Gupta (Subhash Chandra Sharma, J.) ( Pritinker Diwaker, J.)