Smt. Bimla Dewan Vs. Lieutenant
Governor of Delhi [1982] INSC 57 (30 July 1982)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
DESAI, D.A.
ISLAM, BAHARUL (J)
CITATION: 1982 AIR 1257 1983 SCR (1) 42 1982
SCC (2) 469 1982 SCALE (1)563
ACT:
National security, Act, 1980-Section
3(2)-Nature of Acts prejudicial too maintenance of public order-Inclusion of
past cases of acquittal in grounds of detention- Validity..
HEADNOTE:
The husband of the petitioner was detained by
an order made under section 3(2) of the Act. The grounds of detention in
support of the order referred to a number of criminal cases involving the
detenu in many of which he had been acquitted The allegations in cases pending
against the detenu were: that a Municipal Councillor had complained that when
the staff of the Corporation wanted to apprehend some persons for purposes of
prosecution, the detenu along with 70 others had pelted stones etc. resulting
in damage to a building; that whisky was being served in his restaurant;
that a loaded revolver along with live
cartridges had been recovered from his restaurant; that a lady had complained
that he had conspired for the murder of her husband; that a police officer had
reported that two ladies of the family of a deceased person apprehended danger
from him; and that a lady had complained that he had threatened her with dire
consequences. It was stated in the grounds that these acts of the detenu showed
that he was a desperate and dangerous character who was prone to act in a
manner prejudicial to the maintenance of public order and therefore his
detention under the provisions of the Act had been considered essential.
The detenu had challenged his detention by I
writ petition filed under Article 226 but the High Court which had heard the
matter several months before the filing of the present petition under Article
32, had not passed any order thereon.
It was alleged in the petition that the
detenu was a social worker who was active in politics, that due to political
rivalry he had been involved from time to time in a number of false cases, that
he had succeeded in proving his innocence in most of them and that he had now
been detained on account of political vendetta. It was submitted that the
alleged activities of the detenu, even if true, did not fall within the concept
of threat to public order.
Counsel for the petitioner contended that
since the National Security Act did not contain a provision like section SA of
the Conservation of Foreign Exchange and Prevention of Smuggling Act, if one of
the grounds was bad, the order of detention had to be quashed in its entirety.
43 Allowing the petition.
HELD :1. None of the instances in which the
detenu had been found to be not guilty and acquitted could have legitimately
been taken into consideration for detaining the detenu under section 3(2) of
the National Security Act.
Since the detaining authority would naturally
have been influenced by these grounds as well for coming to the conclusion That
the detenu was required to be detained under the provisions of the Act, the
entire order of detention was unsustainable. [45 F-G: 46-B]
2. It is the potentiality of the act to
disturb the even tempo of living in a community or society which makes it
prejudicial to the maintenance of public order or public tranquillity. A mere
allegation in the complaint of the Municipal Councillor without anything more
could not constitute a ground for detention under the Act. There was no
allegation in that instances that the law enforcement authorities had any valid
reason to) believe that the allegations made in the complaint were true. There
was also no allegation that the building at which stones etc. were alleged to
have been thrown was situate in a public place and that the alleged act of the
detenu and 70 other persons had caused apprehension in the minds of the
residents of the locality in regard to maintenance of public order. This
instance could not constitute a ground for detention under the Act as it had no
potentiality to interfere with or affect public order or public tranquillity.
The instances mentioned in other cases pending against the detenu could not in
law amount to any interference with the maintenance of public order and could
not constitute grounds of detention under the Act.[47G; 46E-F; 47E-G;47C] Arun
Ghosh v. State of West Bengal, AIR 1970 S.C. 1228, referred to.
ORIGINAL JURISDICTION: Writ Petition
(Criminals No. 126 of 1982.
(Under Article 32 of the Constitution of
India) Ram Jethmalani, Miss Rani . Jethmalani, Harjinder Singh and K. K. Sood
for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
VARADARAJAN, J. On 31st March, 1982, after hearing learned counsel for both the
parties, we quashed the order of detention in this case, observing that our reasons
will follow. We proceed to give the reasons.
This Writ Petition under Article 32 of the
Constitution of India is by Smt. Bimla Dewan, wife of the detenu Shri Dev Raj
Dewan, 44 resident of House, No. 53, Gadodia Road, 146/2 THAN Singh Nagar,
Anand Parbat, Delhi, for quashing the order of detention dated 25.9.1981 issued
by the Commissioner of Police, Delhi under s. 3 (2) of the National Security
Act, 1980. The detenu was detained from 26. 9. 1981. The order of detention is
said to have been - approved by the respondent, Lieutenant, Governor, Delhi, by
order dated 1.10.1981 under sec. 3 (4) of the Act. The detenu had been detained
in the Central Jail. Tihar. New Delhi.
It is alleged in the petition that the detenu
is a social worker, who is in active politics, and had contested the Municipal
Elections of the Municipal Corporation of Delhi from the Anand Parbat constituency
in 1977 and was defeated by a Congress-l candidate by a narrow margin of 360
votes, and due to political rivalry he has been involved from time to time in a
number of false cases, in most of which he has succeeded in proving his
innocence and was acquit ted. It is further alleged in the petition that out of
sheer political vendetta the detenu has been detained maliciously with full
know ledge that the alleged activities of the detenu, even if true, do not fall
within the concept of threat to public order. The arrest or prosecution of the
detenu, cannot by itself, be a ground of detention It is only the material on
the basis of which the detenu is arrested, prosecuted or convicted that can
constitute a ground of detention. But no such material, including the blue film
mentioned in item 28 of paragraph 2 of the grounds of detention has been
supplied to the detenu and it has, therefore, become impossible for him to make
any effective representation against his detention. No opportunity was given to
the detenu to make a representation to the detaining authority. The detenu
challenged his detention by filing Criminal Writ Petition No. 126 of 1981 in
the High Court of Delhi on 13.10.1981. But since no order had been passed in
that petition though arguments were heard in November 1981, this writ petition
has been filed in the Supreme Court on 3.3.1982.
It is alleged in the grounds of detention in
which 32 instances have been given that those acts of the detenu show that he
is a desperate and dangerous character who acts in a manner which is
prejudicial to maintenance of public order, that his activities are hazardous
to the community and he has not stopped his violent, anti-social and criminal
activities in spite of his prosecution in a number of cases, and that in these
circumstances his detention under 45 s. 3 (2) of the National security Act,
1980 has been considered A essential n order to stop his criminal activities.
In the counter-affidavit it is stated at the
outset that the High Court of Delhi has by an order dated 4.3.1982 dismissed
Criminal Writ Petition No. 126 of 1981 which was filed for quashing the very
same order of detention dated 25.9.1981 and that the present Writ Petition is
consequently not maintainable and only an appeal to this Court against the
judgment of the High Court could be filed. It is contended that there is
nothing on record to show that the detenu is a social worker. The
counter-affidavit further proceeds to state that the criminal history of the
detenu as disclosed in the grounds of detention goes to show that he has been a
serious threat to maintenance of public order and that whenever any police
officer or any other agency tried to interfere in the matter he had assaulted,
obstructed or attempted to murder him and that detention under the Act is the
only way to prevent him from indulging in activities which are prejudicial to
maintenance of public order. It is stated that copies of all first information
reports mentioned in the grounds of detention were supplied to the detenu and
that the detaining authority has specifically mentioned in the grounds of
detention that the detenu has a right of representation to the Lieutenant
Governor and the Advisory Board. The respondent has prayed for dismissal of the
Writ Petition for the aforesaid reasons.
Instances Nos. I to 22, 24 and 28 relate to
criminal cases, in all of which the detenu has been found to be not guilty and
acquitted. Instance No. 23 relates to a case in which the detenu has been
discharged. Instance No. 28 relates to a blue film of naked picture for public
circulation/exhibition alleged to have been recovered on 23/24.6.1979 by the
Police from the Karnal Restaurant of the detenu. Since all these instances
relate to cases in which the detenu has been found to be not guilty and
acquitted none of these instances can legitimately be taken into consideration
for detaining the detenu under s. 3 (2) of the National Security Act. Mr. Ram
Jethmalani, Senior Advocate who , appeared for the petitioner in this case
submitted that in the National Security Act there is no provision like s. SA in
COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Act)
and, therefore, if one of the grounds Is bad the order of detention has to be
quashed in its entirety and that as the detaining authority has based the order
of detention on, 46 grounds Nos. 1 to 24 and 28 also, the order of detention is
unsustainable. The learned counsel for the respondent did not submit anything
to controvert that submission of Mr. Ram Jethmalani. We are of the opinion that
since the detaining authority would naturally have been influenced by these
grounds as well for coming to the conclusion that the detenu requires to be
detained under the provisions of the Act, the entire order of detention ii
unsustainable.
Before considering the other instances, it is
necessary to note what Hidayatullah, C.J. has observed in Arun Ghosh v. State
of West Bengal.(1) It is this:
"Take the case of assault on girls. A
guest at a hotel may kiss or make advances to half a dozen chamber maids. He
may annoy them and also the management but he does not cause disturbance of
public order. He may even have a fracas with the friends of one of the girls
but even then it would be a case of breach of law and order only. Take another
case of a man who molests women in lonely places. As a result of his activities
girls going to colleges and schools are in constant danger and fear. Women
going for their ordinary business are afraid of being way-laid and assaulted.
The activity of this man in its essential quality is not different from the act
of the other man but in its potentiality and in its effect upon the public
tranquillity there is a vast difference. The act of the man who molests the
girls in lonely places causes a disturbance in the even tempo of living which
is the first requirement of public order. He disturbs the society and the
community. His act makes all the women apprehensive of their honour and he can
be said to be causing disturbance of public order and not merely committing
individual actions which may be taken note of by the criminal prosecution
agencies." Instances Nos. 25 to 27 and 29 to 32 relate to criminal cases
which are said to have been pending against the detenu on the date of order of
detention. We shall first consider instances Nos. 25 to 27 and 30 to 32.
Instances 25 and 27 relate to cases in which the detenu is alleged to have been
arrested I for the reason that whisky was being served in a restaurant
belonging to him. instances No. 26 relates to the alleged recovery of a loaded
English revolver and 5 live cartridges from the detenu's Kamal Restaurant on
24.6.1979.
Instance No. 30 relates to a case in which
the detenu is said to have.
------------- (1) AIR. 1970 SC. 1228.
47 been arrested on the complaint of a lady
that the detenu bad A conspired for the murder of her husband, who was murdered
while he was returning after Seeing a cinema on 16.8.1981.
Instance No. 31 relates to a case arising out
of a report sent by a Sub-Inspector of Police, Anand Parbat against the detenu
alleging that Smt. Praveen Kapoor and Smt. Shielawati Kapoor, members of the
family of deceased Vinod Kapoor apprehended danger to their lives at the hands
of the detenu. Instance No. 32 relates to the arrest of the detenu on the
complaint of Smt. Sheilawati Kapoor that the detenu threatened her with dire
consequences when she went to Tees Hazari Courts to see her son Ashok on
10.9.1981. We are clearly of the opinion that these instances cannot in law
amount to any interference with the maintenance of public order and could not
constitute grounds for detention under the National Security Act 1980.
We now come to instance No. 29 which lates to
the arrest of the detenu on the complaint of one Prem Kumar Narang Municipal
Councillor that when the Corporation Staff wanted some persons for prosecution,
one Ram Singh came to rescue them and that later on the detenu came alongwith
70 other persons and started throwing stones etc. resulting in damage to a
building. On that complaint a First Information Report dated 28.12.1979 under
ss. 147, 148, 149 323 and 427 I.P.C. is said to have been submitted by the
Police. A mere allegation in the report of the Municipal Councillor, without
anything more, cannot constitute a ground for detention under the National
Security Act There is no allegation in that instance that law enforcement
authorities had any valid reason to believe the allegations made in the
complaint to be true even while the case registered on that complaint was
pending trial and posted to 29.10.1981. There is no allegation in that instance
that the building at which stones etc. are alleged to have been thrown is
situate in a public place and that the alleged act of the detenu and 70 other
persons has caused apprehension in the minds of the residents of the locality
in regard to maintenance of public order. We are, therefore, unable to hold
that this instance has any potentiality to interfere with and has effect upon
the public tranquillity and order and, that it cannot constitute a ground for
detention under the National Security Act 1980.
It is necessary to mention in passing the fact
that it is admitted in the Writ Petition itself that Criminal Writ Petition No.
126 of 1981 had been filed in the High Court of Delhi on 13.10.1981 48 for
quashing the very same order of detention dated 25.9.1981 and that arguments in
that Petition had been heard in November 1981 itself. In the counter-affidavit
it is stated that the High Court of Delhi has by an order dated 4.3.1982
dismissed that Writ Petition and, therefore, only an appeal against that order
would lie to this Court and this Writ Petition is not maintainable. Though the
learned counsel for the respondent invited our attention to certain portions of
that order dated 4.3. 1982 of a Division Bench of the Delhi High Court
dismissing Writ Petition No. 126 of 1981 it was not contended by him that only
an appeal against that order would lie to this Court and that this Writ
Petition is not maintainable. It is, therefore, unnecessary for us to go in
detail into this ground of objection taken in the counter, affidavit.
For the reasons mentioned above we are of the
opinion that the order of detention dated 25.9.1981 is unsustainable and liable
to be quashed. There will be no order as to costs.
H.L.C. Petition allowed.
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