IN THE HI.aU COURT GF JUDICATQRE CHHATTISGARH ATJBIIASPUR ««?•»•., . ^0.12-, . •OF2©03 ^!&w PETITIGNER DETENUL WSRSUS RESPONDENTS 4-i°-^ ?.^^^'' -•4^' ^'^ %^- ^'•" ^>^^". ^7.1.<**'. ..:- -.••" ,..>y",.^ ^^'y.<\^ NEEL KANTH Q&Ot.l AGED AB©WT 45 YEARS? S/@ BI&LU ©AOI*I. ©CCUPATION - ©AIRY 019iaER, R/0 IAI* BAGICHA 1«ARD,DHA IARI TAHSII. AND BISTRICF EHAm'ARlCC.G.) 1» STATE OF CHH^TTISGARH 1IIROUQH THE DISTRICT MAGISTRATE EHAMTARI* ^' .-•^,^' 2. CHIEF SECRETARY GOVERWMENT OFCHEiATTISGARH, HZNISTRY OF HGaE»SHRI ROB^IT HANGDOIA ©•K.BHA^AN RAIP^CC.G.) f:.-Z-.__ „_ _^_______.. WRIT PETITI@N UNDSt ARTICI.ESS 226 ANB'227 OF THE CONSTITt?TIGN O^INDIA FQR ISSCTANCE OF SUITABLE iaRIT^DIRECFION ©R QRDER HiGH COURT OF JUDICATURE AT 31LASPUR (CHHATTISGARH) Writ Petitlon No.4102 of 2003 Neel Kanth Gaoii Versus State of Chhattisgarh and another ORDER FOR CONSIDERATION Sd/- L.C.Bhadoo Judge HON'BLETHECHIEFJUSTICE h a-<^^ Sd/- Chief Justice POST FOR ORDER ONC-A^IAY, 2004 Sd/- L.C. Bhadoo Judge COURT OF JUDICATURE AT BJLASPUR (CHHATTISGARH) WriS Petltion No.4102 of 2003 Nee! Kanth Gaoii Versus State of Chhattisgarh and ©nother Present: - Shri C.R. Sahu, Advocate for the petltioner. Shri P.K. Verma, Additional Advocate General for the State/respondents. 1^^^~^^-- '' iB^sSff'S^ Dlvis'son Bench*: Hon'ble Shri K.H.N. Kuranaa, CJ. & Hon'ble Shri L.C. Bhadoo. J; ORDER (Passed on j^L-.^^y>2004) The foliowing order.of the Court was passed by Justice_LC.__Bhadoa Ey this writ petjtlon fiied under Artlcie 226/227 of the Constitution of india the petitioner nameiy Nes! Kanth Gaoli has chaiienged hls detention order dated 7th November 2003 (Annexure-P/5) passed by the District Magistrate, Dhamtari in exerdse of the powers cpnterred upon hlm under'sub-section (2) of Section 3 of the National Securit/Act, 1980 (hereiriafter referred to as 'the Act'). (2) in compliance of the impugned order the petitioner v/astaken into custody by the poilce on 10-11-2003 and slnce then he Is iodged In Centrai Jall, Ralpur. It is aileged that the detention order passed against the petltioner is on old and stale matters and in most of the matters the petltloner was aiready acqultted. As per the petition ali the 8 grounds mentioned in the memorandum (Annexure-P/5) ofthe Coilector reiate to oid and staie matters. IVIoreover, these crimina! matters were reiating to persona! disputes betiween the parties and same were nct reiatlng to public In general, therefore, It could not be said that these ? •' ^ws^^^ matters were reiating to public order. Hence, the District Maglstrate, Dhamtari had passed the Impugned detention order without application of mind. (3) Return has been fiied on behalf of the Stats in v/hich it has been mentioned that mere acquittal In certain cases give no benefltto the petitioner who is a habitual criminal as would be evident from a piethora of registered agamst hlm from the year 1994 to 2003. He, as a matter of routine, used to create nuisance snd dlsturbance in the adjacent land owned by Yateemkhana Usmania Anjuman isiamia, Dhamtari, and his activities were of such nature as to disturb the existing communai harmony and create an expiosive sltuatlon of !aw and order whic-h Vt/ouid cause extensive loss, damage and disharmony to the public at large. (4) We have heard the learned counsei for the parties. (5) Learned counse! for the petitioner argued that as per sub-section (3) of Section 3 of the Act, in the flrst instance, the period of detention cannot exceed more than 3 months whereas, in the impugned order no time for detention has been mentioned. Moreover, vlde order dated 31-12-2003, the Principa! Secreta?y, Horne Department, State of ChhatSisgarh has ordered for detention of the petitioner for a period of one year up to 9-11-2004, which is also contraiy to the spirit of sub-section (3) of Section 3 of the Act which says that at one tlme the perlod of detention sha!i not exceed more than 3 mosiths. He further argued that the grounds for detention made in the impugnedorder by the District Magistrate, In the first Instance, reiate to old andstaie matters. Moreover, these offences relate to personai disputes between the private parties and same could not have been made a ground for detention under sub-section (2) of Section 3 of the Act. He further argued that ,al! these cases were terminated in favour of the petitioner by way of acquittai or by withdrawing the prosecution or by dropping the proceedings. The Dlstrict Magistrate h^s issued the order without application of mind. (8) On the other hand, the iearned Additiona! Advocate Generai Shri P.K. Verma supported the ordsr and argued that mere acquittai or withdrawa! of ^: 'z/!. li - the criminal cases cannot be taken as iegltimate ground for assalling the impugned order, as the same has been passed after due consideratlon of the material on record by the District Magistrate. The continued invoivement of the petitjoner In disturbing the public order and tranquiiifr/ forced the Dlstrict Magistrate to issue the detention order. (7) We have perused the records and considered the rlva! arguments. (8) As per sub-section (2) of Section 3 of the Act 'the Central Government or the State Government may, if satisfied with respect to any person that vvith a vlew to preventing him from acting in any msnner prejudicla! to the security of the State or from actlng in any manner prejudiciai to the maintenance of public order, mal<e an order directing that such person be detained' and as per sub-section (3) of Section 3 of the Act 'lf a District Magistrate or a Commissioner of Poilce or the State Government is satisfied that it is nscessary so to do, it may, by order in writlng, direct, that during such period as may be speclfied in the order, such District Maglstrate or Commissioner of Poilce may aiso, if satisfied as provided In sub-section (2), exercise the powers conferred by the said sub- section'. Sub-section (3) further prescribes that' the period specifled in an order made by the State Government under this sub-section shaii not, in the first instance, excesd three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from tirne to time by any period not exceeding three months ®tany one time.' (9) A perusal of the impugned order dated 7-11-2003 shows that no period of detention has been mentioned in this order. SimiSariy, a perusai of the order dated 31-12-2003 passed by the Principai Secretary, Home Department, State of Chhattisgarh, shows that the petitloner's detention was made after approving the detentlon'order made by the Col'ector. The detention was made for a period of one year from the date of the detention up to 9-11-2004. Therefore, both these orders are iiiegal and contrary to the spirit of proviso to sub-section (3) r i^^^t^-r^ ^^'^^'^:^^-'^ L? of SectionS of the Act because as per this proviso, in the first instance, the petitiqner couid not have been detained exceeding 3 months whereas, no period of detention has been mentioned in the impugned order dated 7 November 2003 issued by the District Magistrate. Secondiy, under the order dated 31-12-2003 Issued by the Government the detention of the petitloner was made for a period of one year whereas, the proviso. prescribes that the State Government on satisfaction that It Is necessary so to do, amend such order to extend such period from tlme to time by any period not exceeding three months at any one time. Therefore, on thls ground oniy the above orders are iiable to be quashed, as the same are contrary to the mandatory provisions of !aw. (10) Now, coming to the merits of the case, the iearned Addstional Advocate Generai very fairly submitted that the petitioner has been acquitted in a!S the criminal cases which were made a ground for detention of the petitioner. As nas been mentioned by the petitioner that grounds 1 to 4 reiate to dispute dated 28-11-94 wsth Kalyan Sundrani, Jagdish Singh, Yashoda Bai and Punau @ Mindhuram Dhlmar. Aii these disputes took place during the Municlpal Cound! electjons and In aii these cases the petitioner has aiready been acquitted and ai! these malters vvere very oid and staie. In these cases a!so the dispute was between the individua!s regardlng the eiections of the Municipal Councii and it was not conceming with the public at large. As far as ground No.5 is concerned, It has been mentioned that the petitloner with the heip of his brothers trespassed into the house and piot of one Subhash Sahu and started ii!ega1 seliing ofthe liquor. On 03-08-2002, the petitloner assaulted Subhash Sahu on account ofwhich case was reglstered at no.400/02 under Section 325 read with Section 34 of the I.P.C.. in the first instance, this dispute was also with a private person and In that case aiso the petitloner has been acquitted. Moreover, the defence of the petitioner is that the said iand was taken by him from Subhash Sahu on lease under the agreement (Annexure-P/6) and for vi/hich evlction suit fiied by Subhash Sahu is pending ^— ..i ^5%^1^?5^';^ against the petltloner in the Court of the Additiona! District Judge, Dhamtari. Therefore, in view of the above facts, this couid not have been made a ground for detention of the petitioner. (11) As far as ground No.6 is concerned, it is alieged that the petitioner was caught aiong with one Mahipal on 17-9-2003 while sellmg the iilegai liquor and the case was registered under Sections 36 ©nd16(4)(3) of the Excise Act. in this case aiso the petitioner has been acquitted. As far as the case under Sections 107 and 116(3) of the Cr.P.C. Is concerned which was made a ground No.7 aiso stands closed. As far as ground No.8 is concerned, there was dispute regarding land between Laxmin Bai, Satya Narayan and Virendra Kumar on the one hand and Anjuman Yateem Khana IslamiaDhamtari on the other hand and the Municipaiity gave permlssion to Yateem Khana for construction of the compound wali against which the above persons fiied civil suit in the Court of 2° Civi! Judge, Class-11 Dhamtari in which after going through the records the iearned 2nd Civii Judge, Ctass-li passed an injunction order under Order 39 Rute 1 & 2 C.P.C. against Yateem Khana restraining the construction. Finding prima facie case of the piaintiffs the injunction order was issued against Yateem Khana. Therefore, it was also a dispute between the individuais and even the civii suit was pending regarding that land, therefore, it cannot be termed as an act prejudicial to the public order. (12) In the matter of Smt. Angoori Devi Vs. Union 6f Sndia and others reported in (1989) 1 SCC 385, the Hon'ble Apex Court had occasion to consider fine dlstinguishing feature befr;veen public order and iaw and order. Their Lordships observed as foiiows:- "12. The impact on "public order" and "law and order" depends upon the nature of the act, the piace where it is committed and motive force behind it. if the act is committed on an individuai without directly or indirectly affecting the tempo of the life of the community, it may be a 5^ -"rs •-=-';^--^^^[;<^^ matter of law and order only. But where the gravity of the act is otherwise and likeiy to end.anger the pubiic tranquility, it may fali within the orbit of the public order. This is precisely the distinguishing feature befr^veen the two concepts. Sometimes, as obsen/ed by Venkatachaliah, J., in Ayya Qfias Ayub Vs. State of U.P.: "What might be an otherwise simple 'law and order' situation might assume the gravity and mischief of a 'pubiic order' probtem by reglon aione of the manner of circumstances in which or the place at which it is carried out." Necessarily, much depends upon the nature of the act, the piace where it is committed and the sinister significance attached to it." In the matter of State of U.P. Vs. Harishanker Tewari reported in (1987) 2 SCC 490, the Hon'ble Apex Court observed as under:- "Consequently, there is a difference befr^een law and order and pubiic order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter reiates to the iarger circie or the smaller circle". The Supreme Court has dealt wlth the difference between "law and order" and "pubiic order", in the case of Smt Victoria Fernandes Vs. Laimal Sawma reported in ASR 1992 Supreme Court 687, para-8 ofwhich reads as under:- "While the expression 'taw and order' is wider In scope inasmuch as contravention of law atways affects order, white 'public order' has a narrov^er ambit and pubiic order wouid be affected by only such contraventlon which affects the community pr the public at large. Public order is the even tempo of life of the commynity taking the country as a whole or even a specified iocaiity. The distinction bet^veen the areas of iaw and order and pubiic order is one of degree and extent of the reach of the act in qyestion on society. 4t is the potentiaiity of the act to disturb the even tempo of !ife ofthe community which makes it prejudiciai to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directiy invoived as distlnct from a wider spectrum of public, it couid ralse the problem of lav/ and ordsr only. !t is the iength, magnitude and intensity of the terror wave unieashed by a particuiar corruption of dlsorder that heips distlnguish It as an act affecting 'pubiic order' from that conceming law and order5. The questlon to ask is: Does it lead to disturbance of the current life of the community so as to amount a disturbance of the pubiic order or does it effect merely an indivlduai ieaving the tranquiiity of the society undisturbed? Thls questlon has to be faced in every case on its facts". (13) For applying the above-rnentioned It Is necessary to see that If the act i3 commltted on an Individuai without directly or Indirectiy affectlng the tempo of the ilfe of the comrnunity, it may be a matter of iaw and order only. But where the gravlty of the act is otherwlse. and llkely to endanger the public tranquillty^ it may fall wlthln the orbit of the publlc order. in the light of the above principie, if we consider the facts of the present case, we are of the oplnion that the grounds 1 to 8 which were made the basis for issuance ofthe impugned order were concernlng !aw and order oniy and the disputes were between the private individuals and were not concerning the iife ofthe community and pubiic order. (14) in vlew of the above discussion, we are of the considered opinion that the detentlon order pass&d by the learned District Magistrate, Dhamtari dated 7th November 2003 and confirmed by the State Government vide its order dated 31-12-2003 is not sustainabie, as the same suffers from the vice of non-appiicatlon ofmlnd. ' (15) In the result, the writ petltion is allowed. The impugned "order dated -th November 2003 passed by the District Magistrate, Dhamtari and the State Government order 31-12-2003 are quashed. Sd/- Chief Justice Sd/- L.C. Bhadoo Judge Bar^e/-