Munna vs State of U.P.& Ors.

By this writ petition under Article 226 of Constitution of India, the sole petitioner Munna has prayed for quashing of the order of the District Magistrate, Kannuaj dated 2472002 directing his detention under Section 3 (3) of the National Security Act (hereinafter referred to as ''the Act'').

Counter and rejoinderaffidavits have been exchanged and are on record.

We have heard learned Counsel for the petitioner and learned Additional Government Advocate.

It appears from the grounds of detention, a copy whereof is enclosed as Annexure2 to the writ petition, that on 2052002 at about 9.15 p.m. one Ballu Khan, resident of Mohalla Birtiyan Uncha, Kasba Chhibramau, P.S. Chhibramau lodged an FIR at P.S. Chhibramau alleging that on 2052002 at about 7 p.m. when his father Mohd. Daraza Khan was sitting in front of his courtyard, the petitioner alongwith Iqbal @ Pappu, Umar, Raja, Raju and Munna arrived with firearms and started abusing the father of the informant and on the instigation of Pappu and Raja, they started firing with their weapons causing injuries to the father of the informant. It is also alleged that hearing the sound of fire and shrieks, people of the Mohalla arrived at the spot and they tried to apprehended the petitioner and his associates. On account of that panic was created in the locality. It is also alleged that the associates of the petitioner fired on the people who had assembled there on account of which some of them sustained injuries. On account of the above incident people of the locality felt insecure and a sense of terror was created. The petitioners and their associates thereafter left the spot.

Learned Counsel for the petitioner submits that the coaccused Raju against whom it has been alleged in the FIR that he fired at the deceased, was also detained under the Act alongwith the petitioner. His detention was challenged in Habeas Corpus Writ Petition No. 4848 of 2003 and that writ petition was allowed vide judgment and order dated 3132003 wherein it has been held as under :

�In this way we find that the incident related to only law and order problem and the petitioner could be easily dealt with under the Indian Penal Code and the incident had no effect or impact on the public order justifying detention of the petitioner under Section 3 (2) of the National Security Act as it could not provide a rational basis for the preventive detention.

Since the incident in question related to the only law and order problem, we hold that the detention order of the petitioner is illegal.�

It is, therefore, contended that the order of detention is illegal as the nature of the act and conduct of the detenue did not disturb the even tempo of life or peace or tranquility of the society and therefore it is not a case where unless the detenu is prevented by way of detention he is likely to act in a manner prejudicial to the maintenance of public order.

We have considered the submissions and also gone through the grounds of detention and the averments made in the counter and rejoinderaffidavits.

Admittedly for the same incident i.e., of 2052002 and on similar accusations the coaccused Raja was detained under subsection (3) of Section 3 of the Act and another Division Bench of this Court found that the alleged incident related to only law and order problem and had no effect or impact on public order justifying the detention of that petitioner under Section 3 (3) of the Act and therefore, held that the order of detention is illegal. We are also of the view that the alleged incident mentioned in the grounds of detention cannot be said to be an act which had effect or impact on public order justifying the detention of the petitioner. At the most it could be said to be a case of law and order and not public order which cannot be basis for subjective satisfaction of the detaining authority to pass order of detention.

In this view of the matter we are inclined to quash the impugned order of detention.

We accordingly allow the writ petition. The impugned order of detention dated 2472002 is hereby quashed. The petitioner shall be set at liberty forthwith unless wanted in some other case. There shall be no order as to costs.