Hasnain vs Union of India (UOI) and Others

Jagdish Bhalla, J.—Petitioners, abovenamed, have filed the aforementioned writ petitions before this Court questioning the correctness and validity of the detention order dated 3.10.2002, passed by the District Magistrate, Lucknow, detaining the Petitioners in exercise of powers conferred u/s 3(2) of the National Security Act (hereinafter referred to as the ''Act'').

The main ground for detaining the Petitioners under the Act, as disclosed from the grounds of detention, is that on 19.9.2002 at 14.55 hours a report was lodged at P.S. Malihabad, district Lucknow, that the Petitioners reached Community Health Centre, Malihabad, at 12.15 p.m. and started abusing one Dr. C. K. Kapoor, Radiologist, who was on duty. Thereafter Petitioners while threatening him to kill, dragged him out of the O.P.D. and assaulted him with kicks and fists on his eyes and private parts. Dr. Ramesh Chandra and Dr. Ram Krishna, who were on duty ran to save Dr. C. K. Kapoor but they were also man-handled. In the incident, Dr. C. K. Kapoor received several injuries on his person. On account of this incident, the members of general public who had come to the Health Centre for treatment of patients ran away due to fear and the above incident resulted in disturbance of Government work. Initially, a case on Case Crime No. 306 of 2002 u/s 353/332/504/506, I.P.C. was registered against the Petitioners at police station Malihabad, which later on was converted u/s 333, I.P.C. on the basis of injury report.

Counter and rejoinder-affidavits have been exchanged. We have heard Mridul Rakesh, senior advocate appearing for the Petitioners and Sri S. K. Singh, learned Additional Government Advocate.

Learned Counsel for the Petitioners has challenged the order of detention against the Petitioners, inter alia, on the grounds that the detaining authority did not apprise the Petitioners especially the period in which they can make representation to the detaining authority, the representation preferred by the Petitioners were not dealt with expeditiously and further there is inordinate and unexplained delay in dealing with and consideration of the representation submitted by the Petitioners which remained unattended in the State Government for at least three days.

It is also urged by the learned Counsel for the Petitioners that the incident dated 3.10.2002, which is the main ground on which Petitioners have been detained under the provisions of National Security Act, did not cause any infraction of the public tranquillity or public order as such. It is simply a situation concerning law and order and not of public order. Further, the sponsoring authority while submitting the information before the detaining authority had furnished the details of three criminal case, i.e., Case Crime No. 213 of 1995, under Sections 504, 506, I.P.C., Section 3(1)(x) S.C. and S.T. Act, P.S. Malihabad, Case Crime No. 34 of 1996 u/s 323/504/506, I.P.C., P. S. Malihabad and Case Crime No. 48B of 1996 u/s 308, I.P.C., P.S. Malihabad. The reference of these cases has been indicated in the grounds of detention and these cases have been shown to be pending against the Petitioner-Hasnain. According to the learned Counsel, the cases registered at Crime No. 213 of 1995 under Sections 504 and 506, I.P.C., Section 3(1)(x) S.C. and S.T. Act, P.S. Malihabad and Case Crime No. 34 of 1996 under Sections 323, 504 and 506, I.P.C. P.S. Malihabad had ended in acquittal but this vital information was maliciously suppressed and withheld by the police while sponsoring the Petitioners'' detention, as such, the order of detention is illegal, unjust and the detaining authority has mechanically signed the detention order without applying its proper mind. Similarly, reference of case crime No. 248 of 1998 u/s 323/504/506/427, I.P.C., P.S. Malihabad, district Lucknow, has been mentioned in the grounds of detention of Petitioner Firoz and this case has been shown to be pending but the vital information that the Petitioner-Firoz was acquitted in this case way back in the year 2000 was deliberately withheld by the Sponsoring Authority.

Sri S. K. Singh, learned Additional Government Advocate in contrast pointed out that the representation of the Petitioners have been decided expeditiously at every stage by the State Government. According to him, the averments regarding dealing of the representation and passing orders thereon have been made in paragraph 3 of the counter-affidavit filed by Sri C. P. Singh, Deputy Secretary, Home Department, Civil Secretariat, Lucknow. In the supplementary counter-affidavit filed by Sri Navneet Sehgal, District Magistrate, it has been indicated that the representations made by the Petitioners were received by the District Magistrate on 11.10.2002. The District Magistrate on the same day called for the comments from the Senior Superintendent of Police, Lucknow, and the comments were received from the Senior Superintendent of Police, Lucknow, on 12.10.2002. On 12.10.2002, the comments along with representation were forwarded to the State Government, which were received at the Control Room of the Home Department, Lucknow, on 13.10.2002.

We have gone through the averments made in the counter-affidavit as also in the supplementary counter-affidavit dated 26.4.2003. In our opinion, there is no delay in disposal of the representations preferred by the Petitioners. Accordingly, the contention of the learned Counsel for the Petitioners that there is delay in deciding the representation and the same remain unattended atleast for three days, is baseless and is rejected.

We may now like to deal with the second submission whether criminal act and its consequences give rise to a law and order problem alone or it created public order problem. We have examined the record and we find no evidence to show that the tempo of life was affected due to terror and panic in the locality and the activities of the Petitioners were directed towards general members of the public. According to learned Additional Government Advocate the incident took place at the Community Health Centre and the Petitioners threatened the doctor with dire consequences and assaulted the doctor while he was on duty. As a consequence whereof, the members of general public who had come to the Health Centre for treatment of patients ran away due to fear and the above incident resulted in disturbance of Government work. Learned Additional Government Advocate repelled the submission made by the learned Counsel for the Petitioner that this was a case of breach of law and order and stated that the above submissions made by him clearly indicate that it was a breach of public peace and tranquillity and the detention of the Petitioners has become necessary in order to prevent them from indulging in activities prejudicial to the maintenance of public order.

Merely because the incident took place in the brilliant light of the day at 12.15 p.m. in the Community Health Centre, it cannot be said that the public order was, in any manner, disturbed. We find force in the submission made by the learned Counsel for the Petitioners that the solitary incident of assault on doctor at the Community Health Centre did not give rise to disruption of public order. He has rightly suggested that it was a law and order problem which would have been dealt with by the administration according to the laws prevalent in the society for controlling such crimes. In Deepak Sharma v. Superintendent, District Jail, Meerut 2003 (1) ACR 871: 2003 (46) ACC 264 , a Division Bench of this Court following the decision of the Supreme Court in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , observed that "contravention of law although affects public order, but before it can be said to affect public order, it must affect the community or the public at large."

In the case of Balram Gupta Vs. Superintendent, District Jail and Others, , an Executive Engineer was done to death by piercing a screw driver in his stomach. Thereafter, his body was tied by woollen shawl and was put on the Railway track with the design that it shall be cut into pieces by a passing train and it shall be treated as a case of accident. The detention order was passed against the Petitioner on the ground that employees of various departments of the district approached the detaining authority and apprised him of their fear and feeling of insecurity. They also threatened to boycott the Parliament Elections. In the grounds, it was mentioned that due to the above incident, an atmosphere of terror prevailed in the locality. Further, a sense of insecurity gripped the general public. This Court held that the incident aforesaid can, reasonably be said to have disturbed law and order at the place but does not have the potential and the reach to affect the even tempo of life of the community and the public at large.

In view of the above, we are of the considered opinion that the incident whereupon the impugned detention order is based is not relatable to disturbance of public order. It is trite law that an individual act can be a ground of detention only if it leads to disturbance of the current of life of the community so as to amount a disturbance of the public order and not it affects merely an individual, leaving the even tempo of the life of the society undisturbed. In the instant case, there is no evidence as said above to indicate that normal life of the residents of the locality was, in any manner, disturbed. It is a case where the nominal law of the land shall take care of the Petitioners.

On this ground alone, we are satisfied that the continued detention of the Petitioners is illegal and the writ petition deserves to be allowed but we deem it proper to deal with another argument raised by the learned Counsel for the Petitioners.

Learned Counsel in support of his contention that non-communication of period in which the detenu could prefer a representation to the detaining authority would vitiate the order of detention, has relied upon a decision of this Court in Writ Petition No. 520 of 2002 (HC), Saurabh Dwivedi v. Union of India, decided on 25.11.2002.

A co-ordinate Bench of this Court in the aforesaid Saurabh Dwivedi''s case, while quashing the order of detention on the ground that since the period in which the detenu could prefer a representation to the detaining authority was not communicated to him, his fundamental right of making a representation to him, at the earliest opportunity, was also violated, observed as under:

Since the right of the detenu to prefer a representation to the detaining authority is only available to the detenu within the first 12 days from the date of issuance of the detention order or its approval by the State Government, whichever is earlier, both the fundamental rights guaranteed to the detenu by Article 22(5) of the Constitution of India were infracted.

The detenu''s fundamental right of being communicated the grounds of detention was violated because a vague or partial communication of the grounds of detention would amount to their non-communication. The detenu, for all what we may know, may be labouring under the belief that he had a right to make a representation to the detaining authority till the last day till which the order was in vogue. In a preventive detention matter, the benefit of any lacuna would enure to the advantage of the detenu.

In the case at hand, we find that though the Petitioners were informed by the detaining authority that they had a right to make representation to him but the detaining authority did not inform the Petitioners that they could exercise the said right within 12 days from the date of issuance of the detention order or its approval by the State Government, whichever was earlier. Failure to do so has violated the fundamental right guaranteed under Article 22(5) of the Constitution. In these circumstances, the detention of the Petitioners under the National Security Act became illegal and cannot be justified.

For the reasons stated above, the writ petitions are allowed. As continued detention of the Petitioners has been found illegal, Respondents are directed to set Petitioners at liberty forthwith, if their detention is not required in connection with any other case.