S. Saghir Ahmad. J. - (1.) THE petitioner, who is said to be a Building Contractor, has been detained under the provisions of the National Security Act (hereinafter to be referred to as the Act) under an order dt.16-12-84 passed by the District Magistrate, Lucknow.
(2.) A perusal of the order and the ground on which it is based, indicates that the petitioner is one of the accused in Crime Case No 1034 registered at Police Station Hazratganj, Lucknow, under Sections 147/148/149/307 IPC read with Section 5 of the Indian Explosives Act on the basis of the FIR lodged by one Surya Kumar who was allegedly fired at by an associate of the petitioner and a hand granade was also thrown at his car. It may be stated that there were several persons including the petitioner mentioned in the FIR who were said to be armed with pistols, revolvers and guns and the petitioner was said to have had a band granade. The incident is said to have disturbed the public order and consequently the petitioner and some of his other associates were detained under the Act in pursuance of the order passed separately and indivisually against them. The petitioner was arrested in the above criminal case and was released on bail on 15-12-84. The next day i.e. on 16-12-84 the impugned order of detention was passed by the District Magistrate, Lucknow. In the meantime the persons, who had stood as petitioners sureties, withdrew themselves and petitioner surrendered on 14-2-85 and was lodged in Jail where the detention ordeT was served on him on 23-2-85. Learned counsel for the petitioner has raised two contentions before us. His first contention is that the incident in question which is the basis of the detention order, relates to " Law and Order " and not Public Order " and, therefore, the order is liable to be quashed as under Section 3 of the Act an order of detention can be passed only in respect of " Public Order " and not in respect of " Law and Order. "
(3.) THIS question is concluded by our decision in Habeas Corpus Petitions Nos.5805 of 1984 Kamlesh Pratap Singh v State of U. P. connected with Habeas Corpus Writ Petition No. 5806 of 1984 Subhash Bhandari v. State of U. P. and Habeas Corpus Writ Petition No. 309 of 1985 Ashok Arora alias Ashoki Thekedar v. State of U. P., decided on February 14, 1985 by a common judgment in which we have held that the incident, which is the basis of the impugned order in the present case, related to public order. It may be stated that the above Habeas Corpus Petitions had been filed by persons who are co-accused with the petitioner in Crime Case No. 1034. The other contention raised by the learned counsel for the petitioner is that the order of detention which was passed on 16-12-84 was served on the petitioner on 23-2-85 while the petitioner was in Jail he having surrendered on 14-2-85. In between 16-12-84 and 14-2-85 no effort was made by the opposite parties to execute the order of detention against the petitioner and to arrest him thereunder. The opposite parties had not taken any steps under Section 4 or 7 of Act. These sections are quoted below : " 4. Execution of detention orders-A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974). " " 7. Powers in relation to absconding persons : (1) If the Central Government or the State Government or an Officer mentioned in sub-sec. (3) of Sec. 3, as the case may be, has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government or Officer may- (a) make a report in writing of the fact to a Metropolitan Magistrate or a Judicial Magistrate of the first class having jurisdiction in the place where the said person ordinarily resided ; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order. (2) Upon the making of a report against any person under Clause (a) of sub-section (1), the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in respect of such person and his property as if the detention order made against him were a warrant issued by the Magistrate. (3) If any person fails to comply with an order issued under Clause (b) of sub-section (1), he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reasons which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) every offence under sub-section (3) shall be cognizable. ;