- (1.) G. Malaviya, J. Petitioner Mohd. Salim challenges his detention in pursu ance of an order dated 12-4-1989 passed by the District Magistrate, Allahabad under Section 3 (2) of the National Security Act. The ground in support of the order of detention alleged that on the night of 10-3-1989 at about 3 a. m. the petitioner alongwith his associates went to the Octroi post at Rewa Road within the limits of Nagar Mahapalika, Allahabad where Chhedi Lal Yadav, Octroi Clerk, Bhagwati Prasad Dubey, Assistant Octroi Clerk, Ramanand Clerk, Anoop Kumar and Ishtiyaq Ahmad peons were on duty. There miscreants were armed with country made pistols and one was empty handed. After entering the octroi room they threatened the persons on duty not to move lest they shall be shot dead. Thereafter one of the associates of the petiitoner viz. Asharaf alias Pappu took away about Rs. 3000/- which was placed near the desk on the carpet as also the revenue stamps and the receipts which one kept in his pocket. While coming out, of the two of his associates who were holding bombs in their hand standing in front of the counter window, one Tasleem asked the petitioner to check the cash box as there could be money in it. On this the petitioner opened the cash box and he took away Rs. 26,000/-from it. After threatening the octroi staff not to raise any alarm lest titey would be shot dead they went out of the octroi post. However on the alaem raised by the Clerks of the octroi post the peons and the other persons af er the miscreants. The persons chasing the miscreants were also threatened w h country made pistols and bombs. While escaping the miscreants also snatched away the watch of Anoop Kumar peon and Rs. 1400/- from the pocket of a truk driver who was attacked with the but of the country made pistol. At that stage S. I. S. K. Singh Sengar and S. I. B. P. Singh alone with some other Police constables arrived on the spot and chased the miscreants. After chasing them for a short distance the police party managed to catch hold of one of the associates of the petitioner viz. Ashraf alias Pappu but the petitioner and other associates managed to escape. From the search of Ashraf alias Pappu Rs. 3100-10 p. and few revenue stamps were recovered. It was mentioned in the ground that in connection with the said crime case No. 104 of 1989 under Sec tions 395, 397 and 412,i. P. C. had been registered at police station Naini and was pending investigation. The detaining authority on the said activity of the petitioner and his associates mentioned in the ground that the said ac t of the petitioner and his associates had caused terror on the spot and the true1 drivers who were waiting outside on their trucks began to run away in their trucks; the entire traffic was disrupted and the persons posted at the octroi check post were so scared that they got themselves transferred from the said check post which resulted in disruption of the entire normal activity resulting in the disruption of the public order. The detention order further mentioned that the petitioner who was confined in Central Jail, Naini, Allahabad had obtained bail from the Court from where he was likely to be released from the Jial shortly. It was further mentioned that there was every possibility that after coming; out from Jail the petitioner might again indulge in similar criminal activity which may affect the maintenance of the public order. Hence being satisfied that the activity of the petitioner was of a nature which was likely to affect the maintenance of public order, the District Magistrate, Allahabad who was the detaining authority, was of the view that to maintain the public order it was necessary to detain the petitioner and hence the order of detention on the grounds mentioned above was passed.
(2.) LEARNED counsel for the petitioner has raised three points in challen ging the legality of the detention order. The first point raised by him is that since the police report dated 10-4-1989 sent by the police station concerned which was also before the detaining authority mentioned that the bail applica tion of the petitioner has been allowed and he was likely to be released from jail, and since this fact had been again mentioned in the grounds of detention of the petitioner, the real object of the detaining authority was to prevent the petitioner from coming out of jail. According to learned counsel for the petitioner this was a colourable exercise of power of detention the sole object of which was to nullify the affect of the order of bail. LEARNED counsel for the petitioner thus contended that the real object of the detaining authority was not to detain the petitioner with a view to prevent him from acting in any manner which could be prejudicial to the maintenance of the public order. This aspect of the contention of the petitioner also covers the second point taken by him that the activity of the petitioner was not such as could be termed to be one involving the maintenance of public order. According to tat, learned counsel for the petitioner the activity of the petitioner and his associates at the best was one concerning law and order. The third contention of the learned counsel is that in any case the activity of the petitioner being only a solitary activity, it could not be validiy taken was into account by the detaining authority for detaining the petitioner under the provisions of the National Security Act, as according to him a solitary incident could not give rise to an apprehension that the petitioner had tendency to act in the similar fashion again. In support of the first contention learned counsel for the petitioner relied upon the case of Ramesh Yadav v. District Magistrate, Etah and others, reported in AIR 1986 Supreme Court page 315. In the said case the Supreme Court had quoted the five grounds of detention which were concerning some activities on the basia of certain criminal cases registered against the petitioner. Thereafter the Supreme Court had quoted a passage of the detention order which read as under : "at this time you were detained in the District Jail, Mianpuri and you have filed an application for bail in the Court of law vhhich is fixed for hearing on September' 17, 1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will indulge in activities prejudicial to the maintenance of public order. " While disposing of the case the Supreme Court in paragraph 5 found that out of the four incidents three were of 1980 which were prior to making of a pre vious intention order. Thus they were found to be state. He only other activity Was found to be of 1983 in which the Supreme Court noted that the petitioner had been acquitted and as such that too was also not available to be used. Thereafter the Supreme Court took note of the passage quoted above and then held that the only ground to detain the petitioner which remained in the case was the fact of the petitioner being released on bail whereafter it was mentioned that if the petitioner was released on bail he would again carry on his criminal activity in the area. It was in that back ground that the Supreme Court observed that if the apprehension of the detaining authority was true, the bail application had to be opposed. It was further observed that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act could not ordinarily be passed. Apart from the fact that the case of Ramesh Yadav is clearly distin guishable from the present case inasmuch as in the present case the only ground of detention is not the fact that the petitioner after release from jail was going to repeat criminal activities again, this case of Ramesh Yadav was considered by the Supreme Court in the caees of Meera Rani v. Government of Tamil Nadu and Ors. reported in 1989 (3) Judgments Today, page 478. Paragraphs 20 and 21 of the judgment reads as follows : "20. A recent decision on the point is Smt. Satish Agrawal v. State of U. P. and Ors. , (1988) 1 SCC 436 in which also the settled princi ple is reiterated and it is pointed out that the ultimate decision depends on the facts of a particular case, the test to be applied remaining the same, as indicated in Rameshwar Saws' case (supra ). It was also pointed out in this decision that the earlier decisions of the Supreme Court in Ramesh Yadav (supra) and Binod Singh (supra) do not run counter to the decision in Alijan Mian's case (supra ). In each of these cases the conclusion was reached on the facts of the particular case, the test applied being the same. Similarly, in this decision it was once again pointed out that the detenu being already in jail, the mere possibhty of his release on bail was not euough for preventive detention unless there was material to justiiy the appre hension that the detenu would indulge in activities prejudicial to the maintenance of public order in case of his release on bail. The detention order in that case had been made merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. It was, therefore, held that the mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufiicient to sustain the order of preventive detention in the absence of any material on the record to show that if released on bail he was likely to commit activities prejudicial to the mainte nance of public order. The detention order in that case was quashed on the ground that the requisite material to entertain such an appehension reasonably was not present. The conclusion reached therein, on the facts and circumstances of the case, is as under: "in the instant case, there was no material made apparent no record that the detenu, if released on bail, is likely to commit activities. 'judicial to the maintenance of public order. The detention order appears to have been made only on the ground that the detenu is trying to come out on bail and there is enough possibility of being bailed out. We do not think that the order of detention could be justified only on that basis. " 21. A review of the above decisions reaffirms the position which was settled by the decision of a Consitution Bench in Rameshwar Shaw's case (supra ). The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read if the context, in which they were made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar show's case (supra) for the obvious reason that all subsequent decisions were by benches comprised of lesser number of Judges. We have dealt with this matter at some length because an attempt has been made for some time to construed some of the recent decision as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw's case (supra ). " It would be thus seen that Ramesh Yadav's case is clearly distinguishable. More over, as we shall point put hereafter the activitiy of the petitioner as contained in the grounds of detention, cannot be termed as an activity relating to problem of law and order but would be clearly an activity of maintenance of public order.
(3.) AS has been noted earlier the petitioner along with his associates had gone to octroi post and on pistol point had robbed the public servants by putting them under the fear of death. On coming out they had robbed a truck driver and had threatened the public with country made pistols and bombs. This type of activity by the petitioner was not an activity based on any personal animosity of the petitioner with any individual but was aimed to affect a system. This fact cannot be ignored that all over the country persons at the octroi posts have to work round the clock including the collection of octroi during the dead of night. Such an activity as is scribed to the petitioner is bound to demoralise the public servants who are discharging their official duties. In this connection it may be relevant to quote the following passage of the judgment of Supreme Court in the case of Babul Mitra v. State of West Bengal, reported in AIR 1973 Supreme Court page 197 : "the object of throwing bomb on the police personel was to cause intimidation and contusion in their minds in order to facilitate his escape. Creating panic in the minds of the police personnel of the State from performing their legitimate duties in the maintenence of law and order in the State. That would disturb the even tempo of the community life. Accordingly, we think that the second ground is also connected with' public order. " If as opined by the Supreme Court attach on the police personnel was likely to demoralise the police force of the State then on the same reasoning it can truly be said that attack on the persons employed at the octroi post by miscreants is also going to demoralise them and as such this activity would be clearly treated as an activity affecting the maintenance of the public order. It is, therefore, not possible to accept the contention of the learned counsel for the petitioner that the activity assigned to the petitioner was not an activity which the detaining authority could have treated as a valid ground for detaining the petitioner under the National Security Act on the ground that it was likely to affect the maintenance of public order. The last contention of the learned counsel for the petitioner was that ' the solitary act of the petitioner could not be sufficient for the detaining autho rity to pass the order of detention against the petitioner. In this connection it would be relevant to quote the following passage of the judgment of the Supreme Court in the case of Mrs. Saraswathi Sheshagiri v. State of Kerala and another, AIR 1982 SC 1165: "from the aforesaid observation it is evident that an inference in each case will depend on the nature of the act and the attendant circums tances. In the present case the detenu tried to export Indian Currency to the tune of Rupees 2. 88. 900/- to a foreign country in a planned and pre-meditated manner by clever concealment of it in several parts of his baggage. This fully justified the detaining authority in coming to the conclusion that he might repeat his illegal act in future also and that his detention was necessary to preventing him from repeating the same in future. His past act in the circumstances might be an index of his future conduct. ";