Vs. Union of India & Ors  INSC 69 (5 February 1998)
O R D
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
above complaints in the petition are denied by the respondents by filing a Counter
have heard learned counsel for the petitioner and the respondents.
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.
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.
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.
this connection, learned counsel appearing for the petitioner placed reliance
on a judgment of this Court in (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.
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) 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 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'.
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
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' problem treating
the same as `public order' problem.
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.