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Judgment
The present petition filed under Article 226 of the Constitution assails the order of preventive detention passed by District Magistrate, Bhind on 22/11/2018 invoking the power u/S.3(2)/(3) of National Security Act, 1980 (for brevity 'the NSA').
At the very outset, it is pertinent to point out that the petitioner has not yet been detained and this petition is filed at pre-execution stage of the impugned order of preventive detention.
Before adverting to the facts and the grounds it would be apt to reproduced the relevant paragraph of the decisions of Apex court in the case of Additional Secretary to the Government of India nad Ors. reported in 1993 Supp (1) SCC 496 laying down the grounds on which an order of preventive detention can be assailed, at pre-execution stage :-
i. Order is passed not under the Act under which it is purported to have been passed.
ii. Order is sought to be executed against the wrong person.
iii. Order is passed for a wrong purpose.
iv. Order is passed on vague, extraneous and irrelevant grounds.
v. The authority which passed the order is bereft of jurisdiction to do so.
In the considered opinion of this court, the instant case squarely falls within exception no.(iv) i.e. the preventive detention is based on vague, extraneous or irrelevant grounds.
It is apt to remind oneself that the power of preventive detention is an exception to the Right to Liberty enshrined under Article 21 of the Constitution. The Constitution itself provides for the power of preventive detention along with laying down precautions to be adopted while exercising this extra ordinary power and leaving it to the legislature to make law for governing the procedure to be adopted while exercising this power. It may not be out of place to mention that the power of preventive detention is to prevent and not to punish. The said power ought not to be used as a measure of penalty but merely to restrain particular person from indulging in activities which if not prevented would lead to or would continue disturbing the even tempo of life thereby disrupting public order.
On the aforesaid anvil laid down by law of preventive detention and various decisions of the Apex Court this Court, proceeds to decide the present case.
Indisputably, this petition has been filed on 13/08/2019 to assail an order of preventive detention which was passed merely 8 to 9 months ago on 22/11/2018.
Grounds of detention vide Annexure R/1 revealed along with the return of the State reveals the following considerations which impelled DM Bhind to pass the impugned order of preventive detention.
i. Seven offences of grave nature are registered against the petitioner; of murder, attempt to murder, dacoity, assault, uttering of abusive words, criminal intimidation, riot, possessing unlawful weapons, etc. registered at PS Lahar, & Ashwar, the details of which are given below :-
Crime Number with date of FIR
Police Station
Offence punishable u/Ss.
Fate
74/12, 08/05/2012
Lahar
294, 307, 506-II of IPC r/W 25/27 of Arms Act.
Acquitted by judgment dated 30/05/2015
190/14, 29/08/2014
Lahar
307/34, 506 part-II of IPC
Acquitted by judgment dated 11/03/2016
27/2015, 14/05/2015
Ashwar
147, 148, 149, 302, 307, 395 of IPC r/W.11/13 of MPDVPK Act and 25/27 of Arms Act
Acquitted by judgment dated 26/08/2016
57/2015, 05/09/2015
Ashwar
294, 143, 148, 147, 149, 341, 149, 506 part-II , 195-A of IPC
Acquitted by judgment on 06/03/2018.
42/2017, 11/10/2017
Ashwar
307, 336, 506 part-II/34 of IPC and 25/27 of Arms Act
Pending adjudication
56/2018, 29/06/2018
Ashwar
394, 400, 402 of IPC and 11/13 of MPDVPK Act and 25/27 of Arms Act
Pending adjudication
05/01/18, 09/01/2018
Ashwar
25/27 of arms act
Pending adjudication
ii. The other grounds shown for passing the impugned order is that if the petitioner is allowed to enjoy liberty he may adversely affect the election of legislative assembly of State of M.P. to be conducted in December, 2018.
iii. Besides the aforesaid two grounds of pendency of three criminal cases and likelihood of the petitioner disturbing the process of assembly election held in December, 2018, the grounds disclosed by the DM are that despite adoption of preventive measures and counseling, the petitioner has continued to indulge in criminal activities which has led to an atmosphere of fear among the masses thereby causing disruption of even tempo of life resulting in disturbance of public order.
The counsel for the State has submitted that the order of preventive detention could not be served upon the petitioner since he is absconding and was not found at the given address and therefore, the State has not obliged to comply with any of the subsequent safeguards provided in Section 3 of the NSA. State counsel further urges that intimation about the non service of order of preventive detention, due to petitioner being absconding, has been communicated to the State by DM by order dated 01/12/2018 vide Annexure R/2 along with the return of the State.
7.1 The records produced by the State reveal that the State Govt. approved the order of preventive detention on 04/12/2018 vide order dated 18/12/2018 and that the report was sent to Central Govt. in compliance of Section 3(5) of the NSA by the DM on 08/12/2018.
After hearing the learned counsel for rival parties, it is obvious that there are only two grounds in support of the order of preventive detention. The first being the registration of seven criminal offences against the petitioner.
8.1 As regards registration of seven offences as detailed above, it is seen that in all the four grievous offences, the petitioner had been acquitted in the year 2015, 2016 & 2018 much prior to the passing of the order of preventive detention. What remained was three offences; one of attempt to murder, the second of assembling and preparing for dacoity & third of possessing illicit firearm, An offence of attempt to murder or of assembling or preparing for dacoity and that u/S.25/27 of Arms Act neither individually nor collectively can give rise to a situation of disturbance of public order. Petitioner may be a person of criminal proclivity but that by itself does not justify the claim of the State of breach of public order.
8.2 Public order is a much larger and wider concept than breach of law an order. The offences registered against the petitioner which are pending adjudication may lead to a situation of disturbance to law and order but cannot have a long lasting effect creating a sense of fear in the minds of people which may disturb the even tempo of life. For disturbance to public order, the event or act has to be of such magnitude or resulting into such repercussion that a large number of people or a community or a part of the society is engulfed with fear of their life, property or reputation.
In the instant case, the three criminal cases pending against the petitioner can at best cause disturbance to law and order but not in the least to public order. The conceptual distinction between 'law and order' and 'public order' has been succinctly explained by the Apex court in Ram Manohar VS. State of Bihar reported in AIR 1966 SC 740, Mustakimiya Jabbarmiya Shaikh Vs. M.M. Mehta reported in (1995) 3 SCC 237 & K.K. Saravana Babu Vs. State of T.N. reported in (2008) 9 SCC 89, the relevant extracts of which are detailed below:-
[Ram Manohar VS. State of Bihar, AIR 1966 SC 740]
It is commonplace that words in a statutory provision take their meaning from the context in which they are used.In the case of detention under R.30(1)(b), the context is the emergent situation created by external aggression. It would, therefore, be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. It is conceivable that the expression "maintenance of law and order" occurring in the detention order under R.30(1)(b) may not have been used in the sense of prevention of disorder of a grave nature. The expression may mean prevention of disorder of comparatively lesser gravity and of local significance only.
The contravention of law always 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 but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
The expression 'maintenance of law and order' would cover 'maintenance of public safety and tranquility'. It may be an expression of wider import than public order but, in the context in which it is used in the detention order and in view of its use generally, it should be construed to mean maintenance of law and order in regard to the maintenance of public tranquility which is covered by the expression 'public order'. AIR 1960 SC 633 Rel.on Cas law referred to.
We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order' take in every kind of disorder or only some ? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always 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 but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
Further, he expression 'maintenance of law and order' is not used in Cl.(1) of R.30. The corresponding expression used therein is 'maintenance of public order'. The tow expresions 'public order' has been construed by this Court in a few cases, the latest of them being (1960) 2 SCR 821 : (AIR 1960 SC 633), wherein it was said at p.839.
"Public order' is synonymous with public safety and tranquility; it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State."
The expression 'maintenance of law and order' would cover 'maintenance of public safety and tranquillity'. it -may be, as urged for the petitioner, an expression of wider import than public order but, in the context in which it is used in the detention order and in view of its use generally, it should be construed to mean maintenance of law and order in regard to the maintenance of public tranquillity. It is not usually used merely with reference to enforcement of law by the agency of the State prose cuting offenders against any of the numerous laws enacted for the purposes of a well- regulated society. Simple and ostensibly minor incidents at times lead to widespread disturbances affecting public safety and tranquillity.
[Mustakimiya Jabbarmiya Shaikh Vs. M.M. Mehta, (1995) 3 SCC 237]
Further, sub-section (1) of Section 3 of the Act confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of 'public order'. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates that 'public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter-alia if any of the activities of any person referred to in sub- section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order' when such person is a 'dangerous person' and engaged in activities which affect adversely or more likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a 'dangerous person' his alleged activities fall within the ambit of the expres-sion 'public order'. A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the main-tenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be for such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of 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 deter-mines whether the disturbance caused by such activity amounts only to a 'breach of law and order' or it amounts to 'public order.' It the activity falls within the category of disturbance of 'public order' then it becomes essen-tial to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the case of Arun Ghose v. State of West Bengal, [1970] 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or eves a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public transquillity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different, Again in the case of Piyush Kantilal Mehta v. Commissioner of Police, [1989] Supple. 1SCC322, this Court took the view that b order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The com-mission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land.
[K.K. Saravana Babu Vs. State of T.N., (2008) 9 SCC 89]
This court on several occasions examined the concepts of "law and order" and "public Order". Immediately after the Constitution came into force, a Constitution Bench of this court in Brij Bhushan & Another v. The State of Delhi (1950) SCR 605 dealt with a case pertaining to public order. The court observed that "public order" may well be paraphrased in the context as "public tranquillity".
We have tried to deal with the important cases dealing with the question of "law and order" and "public order" right from the case of Romesh Thappar (supra) to the latest case of R. Kalavathi. This court has been consistent in its approach while deciding the distinction between `law and order' and `public order'. According to the crystallized legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquillity of a particular locality or in the words of Hidayatullah, J. disturb the even tempo of the life of the community of that specified locality.
In view of above, this Court has no hesitation to hold that the exercise of extraordinary power u/S.3(2)(3) of the NSA by DM Bhind was not only based on extraneous consideration but irrelevant grounds which are grossly insufficient to sustain the impugned decision taken. It seems that the DM was either not aware of the correct definition of public order or was moving on the dictates of an invisible external force.
The petitioner on account of impugned order has been put to distress and has been subjected to grave mental and physical stress depriving him from pursuing his normal day to day activity.
In view of above, this petition stands allowed with following directions:
i. The impugned order of preventive detention passed by DM, Bhind dated 22/11/2018 is hereby quashed.
ii. In view of above discussion, it is clear that the order of preventive detention was passed on extraneous consideration without any foundational legitimate basis and therefore, the petitioner is entitled to exemplary cost of this petition which is quantified at Rs.25,000/-(Rs. Twenty Five Thousand) which shall be paid to the petitioner by digital transfer in the bank A/c of petitioner within 60 (sixty) days from the date of passing of this order and report compliance in Registry of this Court, failing which this case be put up as PUD for execution.
iii. The respondent/State is also fastened with cost of Rs.25,000/- (Rupees Twenty-Five Thousand) to be deposited with the Registry of this Court within 60 (sixty) days for having wasted the precious time of this Court which could have been utilized in adjudicating more pressing matters, failing which case be put up as PUD for execution.