NARAYAN Vs. DISTRICT MAGISTRATE CUTTACK
HIGH COURT OF ORISSA
DISTRICT MAGISTRATE, CUTTACK
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G.B. PATNAIK, J. -
(1.) These writ applications have been filed by three detenus challenging the validity of the orders of detention passed by the District Magistrate, Cuttack, on 16-8-1987 under Sub-Sec. (3) of S.3 of the National Security Act (hereinafter referred to as the "Act"). The orders of detention were served on the petitioners on 16-2-1987 and the grounds of detention were served on the petitioners on 19-8-1987. The detention orders were duly approved by the State Government in exercise of the powers conferred under Sub-Sec. (4) of S.3 of the Act on 25th of Aug. 1987. The grounds of detention served on the petitioners indicate that the satisfaction of the District Magistrate was based on only one ground namely that on 12-8-1987, the three petitioners assaulted one Makeswar of Deula-sahi when ManojKumar, a friend of Kameswar obstructed them from assaulting. On this score, the petitioners bore a grudge and on 13-8-1987 at 9.40 A.M. they entered into the premises of the Christ College and attacked said Manoj Kumar and dealt two blows on his cheek and petitioners Naru alias Narayan Behera and Banka Behera who were armed with knives attempted to stab Manojkumar and pierced the knife into his chest. Out of fear Manojkumar ran towards the College verandah and the petitioners threatened the students by hurling the knives as a result of which none ventured to come out. Thereafter the petitioners came away to the main road hurling knives at the persons congregated as a result of which passers-by became panic-stricken and vehicular traffic on the road was paralysed. For this incident, police registered a case namely Bidanasi P.S. Case No. 335 dated 13-8-1987 under Ss.307/323/341/34, Penal Code. It was stated in the grounds of detention that an the basis of the said ground. the District Magistrate was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in any manner prejudicial to public order.
(2.) Mr. Padhi, the learned counsel for the petitioners, vehemently urges that the single ground enumerated in the grounds of detention without any further materials would not reasonably satisfy that it was necessary to detain the detenus with a view to preventing them from acting in any manner prejudicial to the public order which is a pre-condition conferring the power on the detaining authority to issue an order of detention and, therefore, the impugned orders are vitiated. The learned counsel further urges that the incident narrated, relates to a private rivalry between two individuals and, therefore, appertain to the realm of law and order and not public order. The learned Additional Government Advocate, on the other hand, contends that even a single incident could legally form the basis of satisfaction of the detaining authority for detaining a person under the provisions of the National Security Act and since this Court would not be justified in interfering with the subjective satisfaction of the detaining authority, the impugned order cannot be assailed. The learned Additional Government Advocate further urges that the activities of the detenus created such a commotion within the College campus that the same prevented the students and teachers of the College from coming up and it disturbed the normal authority of the College for some time and, therefore it is appertaining to the realm of public order and not a mere law and order even though the incident might have been between two individuals. The rival contentions require careful examination of the law on the subject.
(3.) There cannot be any doubt that the satisfaction of the detaining authority is a subjective one and if the same is properly arrived at Courts have hardly any jurisdiction to interfere with the same. It is also equally clear that even a single incident may be of such a magnitude that it would reasonably give rise to a bona fide satisfaction in the mind of the detaining authority that such incidents were likely to be repeated in the same manner and those who are alleged to have taken part in such incident had to be detained in order that the tempo of peace in public life is not jeopardised. Even in a recent case of Ramveer Jatav v. State of U.P., (1986) 4 SCC 762, it was held by their Lordships :- "...Now, it cannot be laid down a bald proposition that one ground can never be sufficient for founding the satisfaction of the detaining authority for detaining a person. There are cases where one ground may be regarded as sufficient if the activity alleged is of such a nature that the detaining authority could reasonably infer that the detenu must be habitually engaged in such activity or there may be other circumstances set out in the grounds of detention from which the detaining authority could reasonably be satisfied even on the basis of the ground that unless the detenu is detained, he might indulge in such activity in future." But the question which arises for consideration is whether in the facts and circumstances set out in the grounds of detention, would it be appropriate for this Court to infer that the solitary ground as narrated in the grounds of detention without any further materials could have reasonably been the basis for giving rise to the subjective satisfaction of the detaining authority to the effect that unless the detenus are detained there would be future recurrence of the incident narrated which would disturb the even tempo of public life. In Ramveer Jatav's case, referred to supra, in a somewhat similar circumstances, it was observed by the Supreme Court :- "..It is difficult to infer from the solitary ground set out in the grounds of detention that the act alleged to have been committed by the petitioner would have disturbed public order as distinct from law and order or that one single act committed by the petitioner was of such a character that it could reasonably be inferred by the detaining authority that if not detained, he would be likely to indulge in such activity in future." In yet another case of Fazal Ghosi v. State of U.P. (1987) 3 SCC 502 :(1987 Cri LJ 1910), Pathak, C.J., speaking for the Court held :- ".There is no doubt that preventive detention is not intended as a punitive measure, as a curtailment of liberty by way of punishment for an offence already committed. Section 3 of the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in the Section. In the present case, we are unable to discover any material to show that the detenus would act in the future to the prejudice of the maintenance of public order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order." Applying the test laid down in Fazal Ghosi's case (1987) 3 SCC 502 and Ramveer Jatav's case (1986) 4 SCC 762, referred to supra, we are clearly of the opinion that there has been no reference to any other material in the grounds of detention or the order of detention to form the basis of the subjective satisfaction of the detaining authority that the detenus would repeat the misconduct or would do something else which would be prejudicial to the maintenance of the public order and since that is the pre-requisite for passing an order under S.3 of the Act, and the said pre-requisite is found to be absent, the detention must be held to be illegal.;
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