Ram Kripal Singh Vs State of U.P. and Others

B.L. Yadav, JJ.@mdashBy this petition under Article 226 of the Constitution the petitioner has challenged the order of detention dated 15-2-1985 passed u/s 3(2) of the National Security Act, 1980 (for short the Act) by the District Magistrate, Deoria. The impugned order has been passed on the basis of the grounds that the District Magistrate was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of the public order the detention of the petitioner was inevitable.

2. The grounds of detention as required by Section 8 of the Act were communicated to the petitioner. Those grounds translated in English read as follows:

(i) On 3-4-1983 at 10 A.M. in Kachchli Hatta Crossing of Barhaj Bazar you along with your friends killed Rudra Pratap Singh Attal. As a result thereof the persons in the market ran away and the market remained closed for a number of days. Crime No. 91/83 under Sections 147/148/149/302, I.P.C. was registered and the charge-sheet was submitted to the Court on 6-7-1983. The case is still under consideration. You have threatened the witnesses of the case and they are not daring to come to depose in Court.

(ii) On 2-3-1984 at about 6 AM. on the road going from Barhaj to Suneri you along with your associates attacked Rudal Singh with rifle, gun etc. and thereby injured seriously Kamal Kishore Singh, Sattan Singh, Ashutosh Singh and Rudal Singh. On account of injuries Ashutosh Singh and Sattan Singh died on the spot and Kamal Kishore Singh died in the hospital As a result thereof the entire Bhulwani Barhaj Road remained closed. A case (Crime No. 24 of 1984) under Sections 147/148/149/301/302, I.P.C was registered and the charge-sheet was submitted. On account of your influence the witnesses are not daring to depose in Court.

(iii) On 11-12-1984 at about 4 P.M. you armed with fire-arms created terror at the time of the market by firing from country made pistol, thereby a terror was created in the locality and people ran away leaving the shops and the residents closed their doors and Mail Barhaj Road was closed for hours together and after police reached people came out of their houses.

3. The petitioner was also directed to make a representation against the order of detention to the appropriate Government The petitioner had made the representation to the State Government which was in fact placed before the Advisory Board constituted u/s 9.of the Act. The grounds of detention were also placed by the State Government before the Advisory Board as required by Section 10 of the Act. The Advisory Board after hearing the petitioner, as provided u/s 11, submitted its opinion to the State Government to the effect that there was sufficient cause for continued detention of the petitioner. This is how the petitioner is in continued detention.

4. We have heard Sri Sidharath Shukla, learned Counsel for the petitioner and Sri Girdhar Malviya, learned Counsel for the State.

5. Sri Shukla urged that Section 5-A as added by Ordinance No. 6 of 1984 (with effect from 21-6-1984) was invalid, unconstitutional and violative of Articles 14, 19, 21 and 22 of the Constitution, the petitioner was not heard by the Advisory Board, that ground Nos. 1 and 2 were of the period of 3-4-1983 and 2-3-1984 but no order of detention was passed during 1984 and as late as on 15-2-1985 the order of detention has been passed. Those grounds are stale and have no nexus with the opinion formed by the District Magistrate leading to the order of detention. It was also urged that in any case these grounds did not make out a case for maintenance of public order, rather these were the grounds relating to the law and order and were illegally made the basis of the order of detention which was beyond the scope of Section 3(2) of the Act.

6. Sri Malviya urged that Section 5-A of the Act was not invalid, that in Habeas Corpus Petition No. 11151 of 1984 (Decided on 1-8- 1985 Ashok Dixit v. Union of India a Full Bench of this Court has held that Section 5-A of the Act was valid and not unconstitutional nor hit by Articles 14, 19, 21 and 22 of the Constitution. He further urged that the petitioner was heard by the Advisory Board and ground Nos. 1 and 2 were not stale nor the grounds served on the petitioner constituted the detention in connection with law and order. Rather these are the grounds pertaining to the maintenance of public order as contemplated by Section 3(2) of the Act. It was further urged that whether these grounds were sufficient or not was for the District Magistrate to decide and on subjective satisfaction based on these grounds which have got the cumulative effect the order of detention has been passed. In any case even on a solitary incident the order of detention can be passed. He placed reliance on Babulal Das Vs. The State of West Bengal, and State of Gujarat Vs. Adam Kasam Bhaya, .

7. As regards the first submission of Mr. Shukla about the constitutional validity of Section 5A of the Act suffice it to say that in A.K. Roy and Others Vs. Union of India (UOI) and Others, the entire National Security Act, 1980 was held to be constitutional and not hit by Articles 14, 19, 21 and 22 of the Constitution. This argument was urged earlier in a Full Bench case Ashok Dixit v. Union of India (Habeas Corpus Petition No. 11151 of 1984, decided on 1-8-1985 of which one of us, (namely, Hon. K. N. Singh.) was a member. In the said Full Bench it was held that Section 5-A of the Act was constitutional and not hit by Articles 14, 19, 21, and 22 of the Constitution. It is, therefore, no longer necessary to repeat the reasonings, findings and opinion of the Full Bench referred to above.

8. As regards the next submission that the petitioner was not heard, we have summoned the record of the Advisory Board. For this purpose the hearing of this petition had to be adjourned for a number of dates. We have perused the record. After hearing the counsel for the parties we are satisfied that the petitioner was heard by the Advisory Board.

9. As regards the next submission made on behalf of the petitioner that ground Nos. 1 and 2 are stale, in fact ground No. 1 was in respect of an incident dt. 3-4-1983 and the second ground was in respect of an incident dt. 2-3-1984 and no order of detention was passed by the District Magistrate during 1984. It was only on 15-2-1985 (almost after a year) that the order of detention was passed. These grounds appear to be stale. It could not, therefore, be assumed that these ground Nos. 1 and 2 have got any nexus with the opinion formed by the District Magistrate in passing the impugned order of detention. Recently in Ajay Dixit Vs. State of U.P. and Others, it was held (in para No. 14 page 22) relying upon Kamlakar Prasad Chaturvedi Vs. State of M.P. and Another, that stale incident cannot be a valid ground for sustaining the order of detention and thus the detenu is entitled to be released. We are in respectful agreement with this observation and hold that ground Nos. 1 and 2 were stale and could not be a valid ground for sustaining an order of detention.

10. As regards the next submission made on behalf of the petitioner that ground No. 3 was in respect of law and order and not about public order as contemplated by Section 3(2) of the Act. This is a fact that difference between public order and law and order is just one of degree and that also to the extent of the reach of the incident on society in general. There are a number of decisions of the Supreme Court dealing with the distinction between public order and law and order. Suffice it to refer to the few of them. See Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , Pushkar Mukherjee and Others Vs. The State of West Bengal, , Arun Ghosh Vs. State of West Bengal, , Ashok Kumar Vs. Delhi Administration and Others, , Ram Ranjan Chatterjee Vs. The State of West Bengal, and Ajay Dixit Vs. State of U.P. and Others, . Further recently a Full Bench of this Court in Ashok Dixit v. Union of India Habeas Corpus Petition No. 11151 of 1984, decided on 1-8-1985 has discussed the matter in detail. The substance of these observations is that it is important to bear in mind the difference between law and order and the maintenance of public order. If an act affects the tempo of public tranquillity it certainty affects public order, otherwise it would be an act affecting the law and order which can be dealt with by the executive and is not a public order and in that event the order of detention cannot be passed. In the instant case as regards the third ground, in case the aforesaid principle is applied, it becomes crystal clear that that ground is also not in respect of public order and that by the aforesaid ground public tranquillity was not affected but only a limited area appears to have been temporarily affected where the occurrence took place on 11-12-1984 at about 4 P.M. and it did not affect the tranquillity of community in general. In fact the public order is an aggravated form of breach of law and order which endangers a tranquillity of the community, or the public at large. In the instant case we are satisfied that the alleged incident dt. 11-12-1984 was not in respect of public order so as to affect the tranquillity of the entire community. Rather it was an isolated incident pertaining to the law and order problems only and no order of detention could have been passed.

11. Babulal Das Vs. The State of West Bengal, relied upon by the learned Counsel for the respondent was a case to the effect that even a single incident could be sufficient to constitute stream of tendency and warranting preventive detention. But in that case that was a ground pertaining to the public order and that solitary ground of organising dacoity in a third class compartment in the running train by forming gang with fire arms was an exceptional category of cases which demonstrated its potentiality for continuing criminality and that thus that ground was held to be sufficient. But the present case stands entirely on different facts. Hence the case of Babu Lal (supra) is of no assistance to the respondent.

12. State of Gujarat Vs. Adam Kasam Bhaya, was a case u/s 10 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (Act No. 52 of 1974) wherein it was held (under para 5) that the High Court in its jurisdiction under Article 226 of the Constitution in a habeas corpus petition has only to see whether the order of detention was passed on any material before it, if it is found that the order has been passed by the detaining authority on materials the Court cannot further examine whether the material was inadequate or not which is the function of the appellate authority or the court. In the instant case we are not examining sufficiency or otherwise of the material on the basis of which the order of detention has been passed. Rather we are examining as to whether the ground Nos. 1 and 2 in view of the dictum laid down in Ajay Dixit Vs. State of U.P. and Others, were stale and old and whether those grounds have any nexus with the order of detention and in respect of third ground we have examined that this was not a ground pertaining to public order, rather it was a ground pertaining to the law and order for which the executive was sufficient to deal with it. We are accordingly of the opinion that the case of State of Gujarat v. Adam Kasam Bhaya (supra) was equally of no assistance to the respondent.

13. In the result, the order of detention cannot be sustained. We accordingly allow the petition, quash the impugned order of detention dt. 15-2-1985 and direct the respondents to set the petitioner at liberty forthwith unless of course he is required to be detained in some other case.