SMt. lllMLA DEW AN

v .

LIEUTENANT GOVERNOR OF DELHI

July 30, 1982

[D.A. DESAI, BAl!ARUL ISLAM AND A. VARADARAJAN, JJ .]

National Security Act, 7980-Section 3(2)-Nature of acts prejudicial to maintenance of public order-Inclusion of past cases of acquittal in grounds of detention-Validity.

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 rCferred fo 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 Corpora-

- tioo warited to apprehend some persons for purposes of prosecution, the detenu

alOng with 70 others bad Pelted stones etc. resulting in damage to a building; that whisky was being served in his restaurant; that a loadCd revolver along with live cartridges had been rec_overed from his restaurant; that a Jdy had <::omplained 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 appi:ehended danger from him; and that lady had complained that he had threatened her with dfre consequences. ll 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 mannet 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 a writ petition filed under Article 226 but the High Court which had heard the matter several mcnths before the

fiing of the present petition under Article 32, had not passe~ any order thereon.

It was alleged in the pe_tition tha.t the detenu was a social worker who was active in politics, that due to political rivalry be had been involved frotn time to time in a !lunlber of false cases, that he had succeeded in proving his innocence in most of them and that he h?d now been detaiced on account of political ven 4

detta. 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.

B!MLA DEWAN v. ~T. GOVERNOR (Varadarajan, J.) 4~

Allowing the petition,

HELD : 1: None of the instances in which the. detenu had been found to be not guilfy and acQuittetl could have legitimately been taken into considera-. tion for detaining the detenu under section. 3(2) of the Natiorial Security Act.

Since the detaining authority would naturally have been iDfluenced by these

grounds as well for coming to the conclusion that the detenu was required to be B 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 th'e even tempo of living in a , Community or society which makes it Prejudicial to the maintenance of public order or public tranquillity. A mere al1egation in the complaint of the Municipal Councillor without anything more could not constitute a ground for detention C under the Act. There was no allegation in that instance that the la.w enforcement authorities had any valid reason to believe th_at the allegations made in the complaint were true. There was also no a1legation that the building at which stones etc. were alleged to have been thrown was situate in a public PJace 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 - D as. it had no potentiality to fnterfere with or affecf public order or public tranquillity. The instances mentioD.ed in other cases pending against the detcnu could

nOt in law amount to any interference with the maintenance of public order and Cotild not constitute grounds of detention under the Act.[47G; 46E-F; 47EG;47C]

Arun Ghosh v. State of West Bengal, -AIR 1970 S.C. 1228, referred to. • ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 126 of 1982.

(Under Article 32 of the Constitution oflndia)

Ram Jethmalani, Miss Rani Jethmalani, Harjinder Singh an~ KK. Sood for the Petitioner.

O.P. Rana and R.N. Poddar for the Respondent. ' The Judgment of the Court was delivered by

VARADARAIAN, 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 wili"follow.

We proceed to give the reasc>ns.

This Writ Petition under Article 32 of the Constitution of India is by Smt. Bimla Dewn, wife of the detenu Shri Dev Raj Dean,

44 suPREMa COtJllT REPollts [1983) 1 s.C.R.

A . 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 B 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 soclal worker, who is in active politics, and had contested the Municipal Elections of tbe Municipal Corporation of Delhi from the Anand Parbat constituency in 1977 and was defeated )Jy a Congress-I candidate by a narrow margin of .360 votes, and due to political rivalry he has been il)volved from time to time in a number of false cases, in most of which he has succeeded in proving his innocence and was acquitted. It is further alleged .in the petitio_n that out of sheer pol-itical vendetta the detenu .has been detained maliciously with full knowledge that the alleged activities of the deten_u, 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, prosecut.cd or convicted that can constitute a ground of deiention.

But no su.ch material, including the blue film meptioned in item 28 of paragraph 2 of fbe grounds of detention has been supplied fo the detenuand 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 reptesentation to the detaining authority. -The detenu challenged his detention by filing Criminal Writ Petition No. 126 of 1981 in the High Conrt of Delhi on

13.10.1981.

But since no order had been passed in that ptition though arguments were head 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 wh"ich 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 ad he has not stopj)ed 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

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s. 3 .(2) of the National security Act, 1980 has been considered essential in order to stop his criminal activities.

In the counter-affidavit it is stated at the outsei 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 ofdetention dated 25.9.f981 and that the present Writ Petition is consequent])' not maintainable and only an , appeal to this Court.against the judgment of the High Cort couidbe filed: It is contended tha! there is nothing on record , to show that ihe

tletenu is a scial worker. The counter-affidaxit further proceeds to state that the. criminal history of the detenu as'disclosed in the .grounds of deten.tiqn goes to show that he has been a serious threat to aintenance 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 m1der the Act is . the only way to prevent -him from indu_Iging 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 bas specifically mentioned in the grounds of detention that 'tbe detenu has a right of representation to the Lieutenant Goveror

and the Advisry Board. The respondent has prayed.for dismissal of the.Writ Petition for the aforesaid reasons.

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Instances Nos. I to 22, 24 and .28 relate to criminal cases, in all of which. the detenu bas been . found to be not guilty and acquit- ted. 'instance No. 23 relates to a case in which the detenu bas 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. I 979 by the Police from the Kamal 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 Nalional Security Act. Mr: Ram Jethmalani, Senior Advocate ;.ho appeared. for the petitioner in.this.case submitted that in the National Security Act ther" is no provision like s. 5A in . COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Act) and, therefore, If' pne of the grounds iS bad the order of detention has to be quashed in its entirety and that as the detainin!J autority bas based the order of detention on

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SUPREME COUR7 REPORTS

(1983) I s.c.R.

grounds Nos. I to 24 and 28 also, the order of detention is unsustainable. The learned counsel for the resondent 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 concl.usion that the detenu requires to be detained under the pro visions of the Act, the entire order of detention i~ unsustainable. •

Before considering the other instances, it is necessary to note what Hidayatullh, C.J. IJ!ls observed in Arun Ghosh v. State of West Bengal.(') Jt 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 bt he does riot 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 c; ase 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 hut in its potentiality and in its effect upon the public tranquillity there is a vast difference. The act of ihe man who molests the girls in lonely places causes a disturbance in the even tempo of living which i; the first requirement of public order. He disturbs the society and the c9mmunity.

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.

Wo shall rst consider instances Nos. 25 to G 27 and 30 to 32.

Instances 25 and 27 relate to cases in which the detenu is alleged to have been arrested for the. reason that whisky

was being served in a restaurant belonging to him.

Instance No. 26 relates to the alleged recovery of a loaded English revolver and 5' Jive cartridges from the detenu's Kamal Restaurant on 24.6.1979.

H Instance No. 30 relates to a case in which the detenu is said to have

(I) Al R. 1970 S.C. 12is.

been arrested on the complaint of a lady that the detenu had conspired for the murder of her husband, who ;,, as 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 th.e detenu 'alleging that Smt.

Praveen Kapoor and Smt. Shielawati Kapoor, members of thtJamily of deceased Vinod Kapoor apprehended danger to their lives at the hands of the detenu.

Instance No. 32 relates to the arrest o.f the detenu on tl)e 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 relates to the arrest of the detenu on the complaint of one Prem Kumar Narang Munici- :pal 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 p~; sons and started' throwing stones etc. result)ng in amage to a building. On that complaint a First lnformaiion 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 ihe report of the Municipal Councillor, witho.ut . anything more, cannot constitute a ground for detentfon under the .

National Security Act. There is no allegation in that instance tha.t law enforcement authorities had any valid reason to believe the . allegations made in the complaint to be true even "l'hile 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, tl1ere: fore, unable to bold that this instance has any potentiality to interfere with and bas effect' upon the public tranquillity and order and that it cannot constitute a ground for detention under the National Security Act 1980. . .

. It ilnecessary to mention in passing the fact that it is admitted

 H . . in the .Writ Petition itself that Criminal Writ Petition No. 126 of 1981 hall \>een filed in the High .court of Oelbi on l~.10.19$1

SUPREME COURT REPORTS [1983] l S.C.R.

for quashing the very same order of detention dted 25.9) 981 and that arguments in that Petition bad been beard in November 1981. itself. In the counter-affidavit it is stated that the High Court of Delhi has by an order dated 4.3.1981 dismissed that Writ Petition and, therefore, only an appeal against that order would lie to this Courtjand this Writ _Petition is not maintainable. Though the learned counsel for the respondent invit.ed 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 noi maintainable.. It is, therefore, unnecessary for us to go in detail into this ground of objection taken in the counter-affidavit.

F9r the reasons mentioned above we are of the opinion that the order of deiention 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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