Full Judgment Text
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PETITIONER:
SMT. TARANNUM
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 05/02/1998
BENCH:
K. VENKATASWAMI, A.P. MISRA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This petition under Article 32 of the Constitution of
India is filed by the wife of one Imran Ahmad alias Kheer,
who has been detained under the National Security Act, 1980
by the order dated 27.4.97 under challenge. The petitioner
challenges the under challenge. The petitioner challenges
the Order of Detention substantially on the ground that the
Grounds of Detention do not have any nexus to the
maintenance of public order. It is also contended that there
was inordinate delay in considering the repesentation of the
detenu by the concerned authorities.
The above complaints in the petition are denied by the
respondents by filing a Counter Affidavit.
We have heard learned counsel for the petitioner and
the respondents.
We have been taken through the Grounds of Detention. We
find, on a careful consideration of the same, that the main
cause for action appears to be an alleged incident which
took place on 16.2.97 at 7.00 p.m. in the house of one Vijai
Chaudhary, a resident of House bearing No. 54, Sarai Zeena.
According to the respondents, the detenu along with three
other companions looted gold ornaments, watches and cash
amounting to Rupees one lac thirty thousand from the said
house of Vijai Chaudhary by wielding knives and pistols. The
other grounds based on this incident related to alleged
threats held out by the detenu himself or through his agent
while he was put in jail. No incident is mentioned in the
Grounds of Detention which has no relation with the main
incident that took place on 16.2.97 at the house of Vijai
Chaudhary. For the main incident and the incidents connected
with that, those were supposed to have taken place on 3.4.97
and on other dates, appropriate criminal cases had been
filed and the detenu was arrested and imprisoned. Factually,
when the detention order was passed the detenu was in prison
and on the basis of apprehension that the detenu would be
bailed out and the basis of apprehension that the detenu
would and on the basis of apprehension that the detenu would
be bailed out and the detenu would indulge in several
criminal activities, the impugned order of detention was
passed under Section under 3 (2) of the Act.
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As we have pointed out earlier, none of the acts
mentioned in the Grounds of Detention relating to the main
incident can be considered as acts by the detenu which are
prejudicial to the maintenance of "public order". They all
relate to ‘law and order’ problem which has been booked
appropriately under the relevant provisions of the Penal
Cede.
In this connection, learned counsel appearing for the
petitioner placed reliance on a judgment of this Court in
Smt. Angoori Devi for Ram Ratan Vs. Union of India & Ors.
(1989) 1 SCC 385. This Court in that case had occasion to
consider the fine distinguishing feature between ‘Public
order’ and ‘law and order’. This Court observered as
follows:-
" The impact on " public order" and
" law and order" depends upon the
nature of the act, the place where
it is committed and motive force
behind it. If the act is confined
to an individual without directly
or indirectly affecting the tempo
of the life of the community, it
may be a matter of the act is
tranquillity, it may fall within
the orbit of the public order. This
is precisely the distinguishing
feature observed by Venkatachaliah,
J. in Ayya alias Ayub V. State of
U.P. : " What might be an otherwise
simple ‘law and order’ situation
might assume the gravity and
mischief of a ‘public order’
problem by reason alone of the
manner or circumstances in which or
the place at which it is carried
out." Necessarily, much depends
upon the nature of the act, the
place where it is committed and the
sinister significance attached to
it.
As for example dare-devil repeated
criminal acts, open shoot out,
throwing bomb at public places,
committing serious offences in
public transport, armed persons
going on plundering public
properties or terrorising people
may create a sense of insecurity in
the pubic mind and may have an
impact on "public persons in lonely
places with the definite which they
belong may also affect the
maintenance of ‘public order’."
As against. the above judgment, learned counsel
appearing for the State of U.P. invited our attention to
another judgment of this Court in Harpreet Kaur (Mrs)
Harvinder Singh Bedi Vs. State of Maharashtra & Anr. (1992)
2 SCC 177 and, in particular, he invited our attention to
paragraphs 24 and 25, which read as follows:-
" Crime is a revolt against the
whole society and an attack on the
civilisation of the day. Order is
the basic need of any organised
civilised society and any attempt
to disturb that order affects the
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society and the community. The
distinction between breach of ‘law
and order’ and disturbance of
‘public order’ is one of degree and
the extent of reach of the activity
in question upon the society. In
their essential quality, the
activities which affect ‘law and
order’ and those which disturb
‘public order’ may not be different
but in their potentiality and
effect upon even tempo of the
society and public tranquillity
there is a vast difference. In each
case, therefore, the courts have to
see the length, magnitude and
intensity of the questionable
activities of a person to find out
whether his activities are
prejudicial to maintenance of
‘public order’ or only ‘law and
order’.
There is no gainsaying that in the
present state of law, a criminal
can be punished only when the
prosecution is able to lead
evidence and prove the case against
an accused person beyond a
reasonable doubt. evidence to prove
its case, the case fails, though
that failure does not imply case
fails, crime had been committed.
Where the prosecution case fails,
because witnesses are reluctant on
account of fear of retaliation to
come forward to depose against an
accused, obviously. the crime would
go unpunished and the criminal
would be encouraged. In the
ultimate analysis, it is the
society which suffers. Respect for
law has to be maintained in the
interest of the society and
discouragement of a criminal is one
of the ways to maintain it. The
objectionable activities of a
detenu have, therefore, to be
judged in the totality of the
circumstances to find out whether
those activities have any
prejudicial effect on the society
as a whole or not. If the society,
and not only an individual, suffers
on account of the questionable
activities of a person, then those
activities are prejudicial to the
maintenance of ‘public order’ and
are not merely prejudicial to the
maintenance of ‘law and order’."
In the light of the facts of this case, we do not think
that the passage relied on by the learned counsel for the
State of U.P. can to his support. On the other hand, in the
light of the passage extracted in Smt. Angoori Devi’s case
(supra), we find that the authorities were not right in
passing the impugned detention order for ‘law and order’
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problem treating the same as ‘public order’ problem.
In the circumstances, we accept the petition and make
the rule absolute. The order of detention impugned in this
case is quashed. The detenu Imran Ahmad alias Kheer be set
at liberty for forthwith unless he is required in any other
case.