Deepak Sharma (in Jail) vs Superintendent, District Jail and Others

M. Katju, J.—Heard counsel for parties.

The Petitioner is challenging the impugned order of detention dated 31.5.2002 under the National Security Act. The grounds of detention are contained in Annexure-2 to the writ petition. A perusal of the same shows that the allegations against the Petitioner are that he along with his father and uncle came on 17.1.2002 at 7.00 p.m. to Paliwal General Stores and Telecom Centre and started firing shots which resulted in serious injuries to Smt. Kamla and her servant Rajesh. It is alleged that this caused an atmosphere of fear and terror in the market which is a very congested area and disturbed public order.

In our opinion, this is a case of breach of law and order and not public order. It appears that the incident was the result of personal enmity and was not a kind of case which could justify the passing of a detention order under the National Security Act.

In the various habeas corpus petitions which came up before us, the grounds of detention usually mention some facts stating that there was terror and panic in the locality and the even tempo of life was affected. Often such language is used to give colour to the case and make it appear to be a case of breach of public order, but the Court is entitled to form its own independent opinion in the matter, and is not bound by such averments. Only such incidents which are likely to result in large scale public disturbance could justify an order of detention under the National Security Act, vide Dr. Ram Manohar Lohia Vs. State of Bihar and Others, . In that decision, it was held by the Supreme Court that "contravention of law although affects order, but before it can be said to affect public order, it must affect the community or the 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."

In Khudiram Das Vs. The State of West Bengal and Others, , it was held that the subjective satisfaction of the detaining authority is not wholly immune from judicial review.

To some extent every violation of law and order will also affect public order, but this will not always justify a detention order under the N.S.A. The facts of each case will have to be seen carefully.

The facts of the instant case are covered by the decision of this Court in Habeas Corpus Writ Petition No. 28143 of 2002, Chanda alias Deepak Kushwaha v. Union of India and Ors. decided on 7.10.2002 and Habeas Corpus Writ Petition No. 30308 of 2002, Shakir v. State of U.P. and Ors. decided on 1.10.2002.

In view of the decision of this Court in Shakir (supra) in which several Supreme Court decisions have been relied upon, we find that this is a case of breach of law and order only and not public order.

Following aforesaid decisions, the writ petition is allowed. The impugned order of detention is quashed. The Petitioner shall be released forthwith unless required in some other criminal or preventive detention case.