W.P.(Crl.) No. 1490/2009 Page 1 of 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(Crl.) No. 1490/2009 and Crl.M.A. No. 12273/2009 % Reserved on : 06th January, 2010. Date of Decision: 25th January, 2010. Khurvesh @ Pappu @ Pahalwan . . . Petitioner through : Mr.Vikas Arora, Advocate. VERSUS State & Anr. . . .Respondents through: Mr.Vikas Pahwa, Addl. Standing Counsel with Mr. Piyush Singh, Advocate. CORAM :- THE HON’BLE MR. JUSTICE A.K. SIKRI THE HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The petitioner has been detained vide orders dated 8th June, 2009 passed by the Commissioner of Police, Delhi, in exercise of his powers under sub-Section 2 of Section 3 of the National Security Act, 1980 (hereinafter called „the Act‟) recording the satisfaction that such detention is necessary to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. This order was approved by the Lt. Governor/respondent no.2 on 18th June, 2009. The Advisory Board has also confirmed this order of detention on the W.P.(Crl.) No. 1490/2009 Page 2 of 20 basis of which the respondent no.2 has passed the order dated 5th August, 2009 directing that the petitioner shall be detained for a period of 12 months from the date of detention i.e. 8th June, 2009. Before filing the present petition, the petitioner had made a representation before the respondent no.2 to recall the aforesaid orders, but without any success in as much as respondent no.2 rejected the said representation on 9th September, 2009. Left with no other departmental remedy, the petitioner has knocked the doors of this court seeking issuance of a writ of certiorari thereby quashing the said detention order dated 5th August, 2009 and directing release of the petitioner from jail. 2. Before we highlight the grievance of the petitioner on the basis of which the impugned order is challenged, it would be appropriate to take note of the material contained in the said detention order dated 8th June, 2009 to find out the basis for the passing of such an order. The impugned order dated 8th June, 2009 contains the grounds of detention and these grounds start with the observations that the petitioner is a desperate character and a hardened criminal of the area of police station Nand Nagri, Delhi. It is further alleged that he started his criminal activities in the year 1996 at the age of 18 years and has been involved in 32 criminal cases including that of voluntary causing hurt, wrongful restraint, criminal intimidation, extortion, robbery, rape, obstructing public servants from discharging their official duties, culpable homicide, attempt to murder and murder etc. apart from committing the acts W.P.(Crl.) No. 1490/2009 Page 3 of 20 punishable under the Arms Act. Even preventive action under the provisions of Section 107/151 of the Code of Criminal Procedure had been taken against him. Criminal record of the petitioner is tabulated thus :- S.No. Case FIR No. Date Under Section P.S. Remarks 1 164 5.4.96 308/34 IPC Nand Nagri Acquitted 2 912 26.12.96 341/323/34 IPC Nand Nagri Compromised 3 240 29.3.97 25 A. Act Seema Puri Acquitted 4 544 10.8.97 341/324/314 IPC Nand Nagri Acquitted 5 167 24.3.98 323/341/376/506/34 IPC Nand Nagri Acquitted 6 297 6.5.99 324/34 IPC Nand Nagri Compromised 7 502 16.10.00 324/34 IPC Nand Nagri Compromised 8 603 25.12.00 392/397/34 IPC Nand Nagri Acquitted 9 66 10.2.01 382/34 IPC Nand Nagri Acquitted 10 57 16.2.01 307/34 IPC M.S. Park Acquitted 11 146 25.3.01 392/397/411/34 IPC Nand Nagri Acquitted 12 305 3.4.01 392 IPC Sahibabad UP Acquitted 13 318 9.4.01 392 IPC Sahibabad UP Discharged 14 324 12.4.01 392 IPC Sahibabad UP Acquitted 15 181 19.4.01 393/34 IPC Nand Nagri Acquitted 16 154 22.4.01 186/353/307/34 IPC Gokul Puri Acquitted 17 220 10.5.01 302/120-B/34 IPC and 25/27 A. Act Nand Nagri Acquitted 18 279 12.8.01 25 A. Act Ch. Puri P. Trial 19 225 30.4.03 384/386/511/34 IPC Nand Nagri Acquitted 20 258 15.5.03 186/353/332/307 IPC and 25/27 A. Act Nand Nagri P. Trial 21 344 6.6.04 341/394/397/307/34 IPC Nand Nagri Acquitted 22 280 9.7.04 394/468/471/31 IPC Seema Puri Convicted 23 313 14.7.04 392/34 IPC Gokul Puri P. Trial 24 215 1.9.04 307/34 IPC Kanjhawala P. Trial 25 778 24.9.04 302/201/34 IPC Loni Gaziabad P. Trial 26 491 19.10.04 309 IPC Seema Puri Acquitted 27 580 4.7.07 25 A. Act Nand Nagri P. Trial 28 27 26.1.08 392/34 IPC Shahdara P. Trial 29 156 22.3.08 341/323/386/380/511 /506/34 IPC Nand Nagri P. Trial 30 195 16.4.08 307/34 IPC Nand Nagri Acquitted 31 18 23.4.08 186/353/307 IPC and 25/27 A.Act Spl. Cell Delhi P. Trial 32 DD No. 8-A 28.3.09 107/151 Cr.P.C Nand Nagri P. Trial W.P.(Crl.) No. 1490/2009 Page 4 of 20 3. On the basis of said record, it is opined that the petitioner is so desperate and a dangerous criminal that witnesses in pending trial are likely to be intimidated by his presence outside the jail. From the remarks column, it is discerned that out of said 32 cases, the petitioner has been acquitted in 17 cases, discharged in one case, 3 cases resulted in compromise, convicted in one case and in respect of 10 cases the trial is still pending. 4. After mentioning the particulars of the 32 cases in a summary form, as noted above, the Commissioner of Police relied upon 5 cases for passing the detention order against the petitioner, particulars of which are following: - “1. FIR No. 27 dated 26.1.2008 u/s 392/34 IPC, P.S. Shahdara, Delhi. 2. FIR No. 156/2008 dated 22.03.2008 u/s 323/341/380/386/511/506/34 IPC, P.S. Nand Nagri, Delhi. 3. FIR No. 195/2008 dated 16.04.2008 u/s 307/34 IPC, P.S. Nand Nagri, Delhi. 4. FIR No. 18/2008 dated 23.04.2008 u/s 186/353/307 IPC and 25/27 Arms Act, P.S. Spl. Cell, New Delhi. 5. DD No. 8-A dated 28.03.2009 u/s 107/151 Crl.P.C. P.S. Nand Nagri, Delhi.” 5. With regard to the first case mentioned above, details of which are given to the effect that the complainant Sh. Vineet Gupta, in whose house four young boys entered on 26th January, 2008 and went to the room of his brother Kushal and took away the belongings of Kushal i.e. W.P.(Crl.) No. 1490/2009 Page 5 of 20 Rs.7-8,000/-, driving license, income tax card, golden ring from the finger of his left hand and also took away the money from the pocket of the trousers of Amit, friend of Kushal, who was with him at that time. They also snatched his golden chain weighing 27 grams containing a locket mentioning „G‟ thereon. They were identified as Khurvesh @ Rajinder (petitioner herein) and Ajay s/o Sh. Gauri Shankar. However, on 4th March, 2008, when the test identification parade was conducted, due to the terror and fear imposed by the accused persons, the complainant did not identify them. The case is still pending trial. 6. The second case, i.e. FIR No. 156/2008 was lodged by one Prem Kumar Sahu, who had lodged a report that on 21st March, 2008, at about 2.00 p.m., the petitioner, who is the resident of the same locality, stopped him and threatened him to pay Rs.15,000/- if he wanted to live peacefully. At about 12.00 p.m., he found that the petitioner along with his brother Kamla and one other boy were trying to break the lock of - the shutter of his shop when the complainant tried to apprehend Kamla and raised alarm, the petitioner and his co-accused gave fist blow to him and fled away. A complaint was lodged and Kamla and Hari Singh were arrested on the identification of the complainant. The petitioner was granted anticipatory bail and the case is pending trial. 7. The third FIR no.195/2008 dated 16th April, 2008 under Sections 307/34 where again Prem Kumar Sahu is the complainant and has alleged that after the earlier FIR was lodged by him, the petitioner W.P.(Crl.) No. 1490/2009 Page 6 of 20 came to him on 16th April, 2008 at 10.20 a.m. and said that he had spent Rs.80,000/- in obtaining the bail in the case got registered against him and, therefore, he threatened not to spare him. He directed his brother and other boy to catch him and said that they would finish him. Kamal and his associate caught hold of him and the petitioner took out a pistol and fired at him to kill him. The complainant and his nephew received injuries. On 17th April, 2008, one Amit@ Sonu was arrested and he confessed to have committed the crime. On 17th January, 2008, Gaurav was arrested under Section 25 of the Arms Act and the petitioner was arrested in FIR No. 18/2008 under Sections 186/353/307 IPC and 25 of the Arms Act. The other accused were also arrested. These accused persons refused to participate in the TIP proceedings. Kamla also surrendered in the Court on 4th June, 2008 and confessed to have committed the crime. Some discoveries have also been made pursuant to his statement. However, during the course of trial, the complainant who had even got bullet injuries, resiled from his statement and denied knowing the person who fired at him. It is alleged that this happened due to fear imposed by the petitioner. Because of this the case resulted in acquittal. 8. The fourth FIR, namely FIR NO. 18/2008 dated 23rd April, 2008 is under Section 186/353/307 IPC and Section 25/27 of the Arms Act which involves policemen and the case is pending trial. W.P.(Crl.) No. 1490/2009 Page 7 of 20 9. The fifth case relates to DD No. 8-A dated 28th March, 2009 under Section 107/151 of the Code of Criminal Procedure relating to apprehension of breach of peace and causing disturbance and public tranquility. The kalandra is pending trial. After narrating these five instances, the Commissioner of Police in his impugned order has concluded as under; - “The above mentioned criminal activities clearly show that Khurvesh @ Pappu @ Pehalwan is a desperate and hardened criminal whose activities are prejudicial to the maintenance of public order. His acts of violence against the public and property show his complete contempt for the law of the land. Since he usually keeps a firearm with him, people are afraid of deposing against him. His continuous criminal activities have disturbed the peace and tranquility of the society. Despite his arrest and prosecution in number of cases, Khurvesh @ Pappu @ Pehalwan has not mended himself and has not deterred from his criminal activities which are highly prejudicial to the maintenance of public order. At present Khurvesh @ Pappu @ Pehalwan is out of jail. Keeping in view his past criminal activities there is every apprehension /imminent possibility that he will again indulge in similar type of criminal activities, which will adversely affect the maintenance of public order. Under the above circumstances it has become necessary to detain him with immediate effect under Section 3(2) of the National Security Act, 1980 to prevent him from further committing similar type of criminal activities prejudicial to the maintenance of public order.” W.P.(Crl.) No. 1490/2009 Page 8 of 20 10. Mr. Vikas Arora, learned counsel appearing for the petitioner submitted that the aforesaid grounds mentioned in the impugned order do not justify the case of preventive detention. His submission was that frivolous cases are fostered upon the petitioner and that is the reason that in most of these cases, acquittal is on merit. However, the entire material and particularly the orders of the courts in those cases where the petitioner was acquitted on merits, was not even considered by the competent authority as those judgments were not placed before him. It is apparent, argued the counsel, from the fact that only 5 cases were taken note of and judgments in respect of 17 cases in which the petitioner was acquitted were not placed before the competent authority. His further submission was that no case was made out that the petitioner had threatened the witnesses. His fervent plea was that even the facts of the five cases, relied upon by the respondent no.1 while passing the detention order of the petitioner, would not justify the detention order. In respect of the first case, his submission was that the identification parade had already been conducted and the petitioner was not identified. Qua the second case, his submission was that the petitioner was even granted anticipatory bail which fact would go to show that there was nothing against the petitioner. The third case has already resulted into acquittal and therefore, cannot be the basis for detention of the petitioner, was the submission. In so far as the fourth case is concerned, the plea was that it relates to altercation with the W.P.(Crl.) No. 1490/2009 Page 9 of 20 police authorities and the respondent cannot contend that the petitioner would be in a position to even terrorize or influence the police officials who are going to be the witnesses in the said case. The fifth case, the learned counsel pointed out, was only under Section 107/151 Cr.P.C. regarding alleged apprehension of breach of peace. He, thus, submitted that the observations of the competent authority that „witnesses in the pending trial cases are likely to be intimidated by his presence outside jail‟ were totally uncalled for, and without the support of any cogent and reliable material. The last submission was that the main detention order is an act of malafide and a counter blast at the instance of the police officers, simply because of the reason that the petitioner had been making complaints against these police officers who were implicating the petitioner in false cases. He referred to such complaints which are annexed with the petition. 11. Mr. Vikas Pahwa, Additional Standing counsel who appeared for the respondent justified the passing of the detention order arguing that the subjective satisfaction of the concerned authority was based on the objective criteria and the relevant material which was examined by the authority while passing the order. His submission was that from the overall circumstances disclosed in the impugned order, it would manifest that a reasonable opinion was formed that the petitioner was a desperate character and a hardened criminal of the area and was indulging in activities, prejudicial to the maintenance of the public W.P.(Crl.) No. 1490/2009 Page 10 of 20 order. According to him, this was the main reason for passing the order. Although other reason was also given, namely that people are afraid of deposing against him, he countenanced the submission of the learned counsel for the petitioner on the ground that his submission was solely based on the second reason. 12. He also referred to the various judgment in support of his submission. When the argument in this case were heard on 6th January, 2010, at that time reference to various judgments was made by the learned counsel for the respondent. On the conclusion of the argument, the learned counsel for the petitioner made a request that some time be given to him to file the compilation of judgments on which the learned counsel may rely, as he had not referred to any case law in support of his case at the time of arguments. It was orally indicated that he may do so within one week. We have waited for more than a week, but no such exercise is undertaken by the counsel for the petitioner. Therefore, we proceed on the basis of the submissions made before us at the time of the arguments, as noted above. 13. In Ashok Kumar vs. Delhi Administration and Ors. (1982) 2 SCC 403, the Supreme Court held that preventive detention is devised to afford protection to society. It was said that preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. Justification for such W.P.(Crl.) No. 1490/2009 Page 11 of 20 detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. The Executive is empowered to take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has over-awed witnesses or against whom no one is prepared to depose. 14. The court also made a distinction between the concepts of „public order‟ and „law and order‟ in the following words: - “13. The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case. 14. xxx xxx xxx xxx 15. xxx xxx xxx xxx 16. xxx xxx xxx xxx 17. What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder. It is the length, magnitude W.P.(Crl.) No. 1490/2009 Page 12 of 20 and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control. Whenever there is an armed hold-up by gangsters in an exclusive residential area like Greater Kailash, Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist-watch or cash, or ladies relieved of their gold-chains or ornaments at the point of a knife or revolver, they become victims of organised crime. There is very little that the police can do about it except to keep a constant vigil over the movements of such persons. The particular acts enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order.” 15. We have specifically noted these observations as they pertain to the city of Delhi itself. 16. Yet again, the Supreme Court in the context of preventive detention, highlighted the distinction between „public order‟ „security of state‟ and „law and order‟ in the case of Commissioner of Police and Ors. vs. C.Anita (2004) 7 SCC 467 in the following words :- “The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order. 'Public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and W.P.(Crl.) No. 1490/2009 Page 13 of 20 'public order' is one of the degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order' from that concerning 'law and order'. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed"? This question has to be faced in every case on its facts. 8. "Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of West Bengal (1972) 3 SCC 831) 9. "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". 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. 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. (See Dr. W.P.(Crl.) No. 1490/2009 Page 14 of 20 Ram Manohar Lohia (Dr.) v. State of Bihar (1966) 1 SCR 709; 1966 Crl.LJ 608) 10. 'Public Order', 'law and order' and the 'security of the State' fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. [See Kishori Mohan Bera v. The State of West Bengal (1972) 3 SCC 845 : AIR1972SC1749 ; Pushkar Mukherjee v. State of West Bengal (1969) 1 SCC 10; Arun Ghosh v. State of West Bengal (1970) 1 SCC 98; Nagendra Nath Mondal v. State of West Bengal (1972) 1 SCC 498]. 17. The court highlighted that the true difference between the areas of „law and order‟ and „public order‟ lies not merely in the nature or quality of the act, but in the degree