- (1.) VIRENDRA Saran, J. Bhagauti Singh has preferred this Habeas Corpus writ petition challenging his continued deten tion on the basis of the order dated 2-6-1998 of the District Magistrate, Raebareli under Section 3 (2) of the National Security Act.
(2.) THE detention of the petitioner is based on a solitary incident of 21-5-98 at 7. 30 p. m. It is alleged that the petitioner along with some of his companions variously armed reached Sads- Tehsil, Raebaroli, where one Hamid Ali was confined in execution of a recovery certificate of Rs. one lac ninety-one thousand and odd. At that time Naib-Tehsildar Rajaram Gautam, Lekhpal, Collection Amin and about 20- 25 peoples were present. THEy caught hold of Naib-Tehsildar and abused him and also gave him beating by slaps and fists and they wanted to break-open the lock-up to rescue Hamid, Ali. Persons present there tried to save Naib-Tehsildar whereupon the companions of the petitioner fired twice or thrice with the result that the persons present in the Tehsil started running away for their lives. THE Naib-Tehsildar also ran to conceal himself. THEre was also commotion in the residen tial colony of the Tehsil and the inmates closed their doors. Meanwhile, the Sub-Divisional Magistrate, Circle Officer-Sadar with police force reached there. On their arrival the petitioner and his com panions made good their escape. Sri Raja Ram Gautam lodged an FIR on the basis of which a case was registered as crime No. 584/98 under Section 147/148/149/504/332/353/307, I. P. C. , Section 7 of the Criminal Law (Amendment) Act and Sec tion 3 (1) (x) SC and ST Act. THE grounds of detention further state that due to the incident there, was possibility that the petitioner may again act in similar manner to protect his companions and other in fluential persons who had not cleared their dues and on account of the incident work of realisation had been effected and hence in order to prevent the petitioner from indulging in such activities which may lead to disturbance of public order, the im pugned detention order was necessary. We have heard Sri Raza Zaheer, learned Counsel for the petitioner, Sri Bireshwar Nath, learned Government Ad vocate and Smt. Amita Agarwal, learned Counsel for the Union of India and have perused the material placed on the record of the writ petition. The learned Counsel for the petitioner has made two submis sions. First, that the incident in question was purely a matter of law and order, the FIR has already been lodged under the various provisions of the Penal Code, Criminal Law (Amendment) Act and SC and ST Act and the petitioner will be prosecuted and punished, if the offence is proved against him in a Court of law. How ever, it is not a case where there was any chance of repetition of similar incident by the petitioner which may go to disturb public order. The second submission of the learned Counsel for the petitioner is that there has been unexplained delay in the disposal of petitioner's representation. Adverting to the first submission of the learned Counsel for the petitioner there can be no doubt that the Act of the petitioner was hazardous in nature but at the same time it was solitary Act on the part of the petitioner. FIR has already been lodged under the various provisions of the Penal Code, Criminal Law (Amend ment) Act and SC and ST and the petitioner can be suitably punished in case he is found guilty. In our opinion his case can be suitably dealt with according to the ordi nary law without resorting to preventive detention. It may be observed that every offence has to some extent its reach on public order. However, the Court must be cautious and see that every case of breach of law and order may not be magnified into a case of public order for invoking the provisions of preventive detention. In the present case the incident had happened in the precincts of Tehsil where only few per sons employed in Tehsil (About 25 or slightly more) were present. The crime was not committed in full view of the public in general and did not have the effect of dis turbing the even the tempo of life. It is a question of fact in each case whether the incident is one which involves law and order or public order. In the circumstances of the present case we are of the view that the incident did not have its reach to the effect that there would have been distur bance of public order and the Act of the petitioner can be very well be met by his conviction and sentence under the ordi nary law, in case the offence is proved aga inst him and we are of the opinion that it is not a case for invoking the provisions of pr eventive detention against the petitioner.
(3.) IN view of our conclusion that it is not a case where the detention of the petitioner was necessary to prevent him from disturbing the public order, it is not necessary to dwell upon the second sub mission of learned Counsel for the petitioner. Accordingly, this Habeas Corpus petition is allowed. The continued deten tion of the petitioner on the basis of the order dated 31-5-98 of the District Magistrate, Raebareli under Section 3 (1) of the National Security Act is held to be bad in law. The petitioner is in jail. He shall be released forthwith unless wanted in any other case. Petition allowed. ---------------------------------------------------------- [1999 (2) JIC 2 (A11) (FB)] ALLAHABAD HIGH COURT (Full Bench) Present: D. S. Sinha, R. R. K. Trivedi and D. K. Seth, JJ. Chandresh Paswan Versus State of U. P and Ors. Habeas Corpus Petition No. 10215 of 1998 Decided on, 26th February, 1999 (a) National Security Act, 1980, Sec tions 3 and 12 (1) (2)-Constitution of India, Article 14-Parity in the cases of preventive detention-Question of- Principles in reaching the subjective satisfaction held foreign and runs counter to scheme of Section 3 of the Act-1990 (1) SCC 538-referred-Held: Subject to statutory limitations, disparity in treatment in the realm of preventive detention is legislatively sanctioned and constitutionally permitted. Asper. :- D. S. Sinhaand, D. K. Seth, JJ. Application of the principle of parity in reaching the satisfaction contemplated by Section 3 of the Act will necessarily import in it objectivity which is foreign and runs counter to the scheme of the section. The satisfaction of the appropriate Government for ordering detention of each person, by its nature, has to vary on account of variance in perception of nature and extent of the danger for prevention whereof the Act has been enacted. Indis criminate uniformity in perception is incon ceivable. To be precise, subjective satisfac tion envisaged by Section 3 of the Act and concept of parity are incompatible with each other. Revocation of the detention order and causing the release of the detenue is statutory obligation and compulsion under sub-sec tion (2) of Section 12 of the Act. It is imperative and no discretion is allowed to the ap propriate Government. Thus, in the situation covered by the said provision, there is no occasion for application of any parity. The expression 'may confirm' used in sub- section (1) of section 12 of the Act impliedly confers on the appropriate Govenrment the option and discretion not to confirm the detention order ignoring the report of the Advisory Board certifying the existence of sufficient cause for detention of a detenue. It is for the appropriate Government and no body else, to assess and to be subjectively satisfied whether for achieving the object of the Act it is imperative to order preventive detention of a person. The principle of parity, which is only a facet of and stems from the doctrine of equality as enshrined in Article 14 of the Con stitution of India, cannot be invoked ignoring the limitations prescribed by the statute and dictated by, inter a lia, nature, purpose, con temporary conditions and standards prevail ing in the society, urgency of the given situa tion and, above all, well-being of the people. Unbridled "right to equality before law" or "equal protection of the laws" is destructive of meaningful enjoyment of the right to equality itself guaranteed by the Constitution and is fraught with the peril of procreating serious disorder and disruption of the society. It is true that right to personal liberty is very precious. But, it is not absolute and cannot be above the public weal. The prime object of all laws is promotion of the well-being of the people and the welfare of the people is the Supreme Law. Thus, subject to the statutory limitations, dis parity in treatment in the realm of preventive detention is legislatively sanctioned and con stitutionally permitted. [paras 8, 10, 12, 15 and 17] (b) National Security Act, 1980, Sec tion 3--Constitution of India, Article 226 -Doctrine of parity- Applicability- Complete similarity is necessary between the offence of the two detenues-Such similarity is very difficult to find in respect of two detenues where the orders have been passed on the basis of subjective satisfaction. As per R. R. K. Trivedi, J. The consideration by the detaining authority is one individual, his conduct which was prejudicial to the public cider and his nature and tendency to commie similar activity in future which are sought to be prevented by passing an order of preventive detention. The Involvement of such individual in a criminal case which caused disturbance to the public order is one factor and is not whole of the consideration about him. For applying the doctrine of parity, the complete similarity is necessary which, in our opinion, if not impos sible, is very difficult to find in respect of two detenus in such cases where the orders have been passed on the basis of subjective satis faction. Thus, for the reasons stated above, our conclusion is that the order of release from preventive detention cannot be claimed on the basis of parity that the other detenue who was detained on the basis of similar grounds had been released under Section 12 or 14 of the Act and the contrary view taken by the Division Benches is not correct and they are consequently overruled. [para 36 and 45] (c) National Security Act, 1980, Sec tion 3-Constitution of India, Article 22 (5)-Delay of two months in deciding representation-Explanation that Home Minister of State not available-Held: Delay not properly explained-Detention set aside. [para 63] Case Reffered. :- Supreme Court of India in District Magistrate and Anr. v. Kulbir Ghana, 1990 SCC (Cri) 538; A. K. Roy v. Union of India and Anr. , AIR 1982 Supreme Court 710; Kamla Bai v. Commis sioner of Police, 1993 SSC (Cr.) 913; Appearance. :- D. S. Misra, for the petitioner. A. K. Roy v. Union of India and Anr. , AIR 1982 SC 710 Yogendra Murari v. State of U. P, 1988 SCC (Crl.) 992 [para 9] Wazeer Yadav v. State of U. P. , 1993 JIC 182 (All ). Deepak Sharma v. District Magistrate, Aligarh, 1998 (37) ACC 200 Wahid Ahmad V. State of Maharashtra and Ors. , AIR 1983 SC 541 Jagnnath Biswas v. State of West Bengal, AIR 1975 SC1516. Sk. Serajul v. State of West Bengal, AIR 1975 SC 1517. Md. Shahabuddin v. The District Magistrate, 24 Parganas, AIR 1975 SC 1722. Ravindra Kumar Goshalv. State of West Bengal, AIR 1975 SC 1408. Smt. Icchu Devi Choraria v. The Union of India, AIR 1980 SC 1983 T. A. Abdul Rahman v. State of Kerala and Ors. , 1990 SCC (Crl.) 76; M. Ahmad Kutti v. Union of India and Anr. , 1990 SCC (Cr.) 258; Abdul Salam v. Union of India, 1990 SCC (Cr.) 451; Sanjay Kumar Agarwal v. Union of India, 1990 SCC (Cr.) 473; Syed Farooq Mohammad v. Union of India, 1990 SCC (Cr.) 500 : 1990 JIC 507 (SC) Kishore Sukan Raijain v. State of Rajasthan, 1995 SCC (Cr.) 847. Dakter Mudi v. State of West Bengal, AIR 1974 SC 2086. Nanha Singh v. Superintendent, Dis trict Jail, Kanpurand Ors. , (1984) ALJ 898. Manni Lal v. Superintendent. Central Jail,agra, (\985)AWC641 (FB ). Union of India and Ors. v. Manohar Lal, 1987 SCC (Cr) 311: AIR 1987 SC 1472. State of U. P. v. Kamal Kishore Saim. AIR 1988 SC 208. M. Ahmad Kutti v. Union of India. 1990 SCC (Cr.) 258. Pawan Kumar Pandey v. Adhikshak, Janpad Karagar, Faizabad, 1993 U. P. Criminal Rulings p. 553 (DB ). Yogendra Murari V. State of U. P. , 1988 SCC (Crl)992 :1888jic 554 (SC ). . Syed Farooq Mohd. v. Union of India, 1990 SCC (Crl.) 500 :1990 JIC 507 (SC ). . M. Mohd. Sulthan v. Joint Secretary to Government of India, Finance Department, AIR 1990 SC 2222. District Magistrate v. G. Jothisankar, AIR 1993 SC 2633. State of Rajasthanandanr. v. Talib Khan and Ors. , 1997 SCC (Crl.) 29. Judgment D. S. Sinha, J. :- (for himself and for D. K. Seth, J.)-Besides deciding instant petition, challenging the order of preven tive detention of the petitioner, passed under the provisions of the National Security Act, 1980 (hereinafter called the Act') on merits, the principal agenda of this Full Bench is to answer the following question posed by a Division Bench: "whether the order of preventive deten tion can at all be challenged on the ground of parity, the origin of which has been traced in Article 14 of the Constitution and if it can be claimed, what should be its extent and basis?" 2. On merits, the petition has already been allowed with the direction to set the petitioner at liberty forthwith, if not re quired to be detained in any other case, vide order of the Court dated 4th Decem ber, 1998. The said order did not give reasons in its support on that day. Accord ing to the order, the reasons were to be given later on. The reasons are now given in the judgment of Hon'ble R. R. K. Trivedi, J. Thus, it is not necessary to dilate the discussion on merits of the case. The judgment also beams light on the question of law referred to the Full Bench. Assenting to it instant additament purports to focus attention on the question framed by the Division Bench to crystallize and fortify the erudite conclusion arrived at by Hon'ble R. R. K. Trivedi, J. 3. Taking note of the fact that "the prevailing situation of communal dishar mony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues; and that "the anti-social and anti-national ele ments including secessionist communal and pro-caste elements and also other ele ments who adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom. " the Legislature con sidered it necessary that the law and order situation in the country is tackled in a most determined and effective way; and further, "considering the complexity and nature of the problems, particularly in respect of defence, security, public order and services essential to the community," the Legislature found it imperative to arm the appropriate Government with powers of preventive detention for dealing with the given situation effectively. Thus, the Act was enacted. 4. According to Section 2 (a) of the Act the "appropriate Government" means, as respects a detention order made by the Central Government or a person detained under such order, the Central Govern ment and as respects a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order the State Government. 5. Section 3 of the Act empowers the appropriate Government to make orders detaining certain persons. It reads thus: "3. Power to make orders detaining certain persons.- (1) The Central Government or the State Government may,- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or (b) if satisfied with respect to any foreign er that with a view to regulating his continued presence in India or with a view to making arran gements for his expulsion from India, it is neces sary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation.-For the purpose of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the com munity" as defined in the Explanation to sub section (1) Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Es sential Commodities Act, 1980 (7 of 1980) and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing direct, that during such period as may be specified in the order, such District Magistrate or Commis sioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers con ferred by the said sub- section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in that first instance, ex ceed 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 time to time, by any period not exceeding three months at any one time. (4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under Section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub- section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted. (5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. " (Emphasis supplied) 6. A bare perusal of the provisions contained in section 3 of the Act makes it abundantly clear that for ordering the detention of a specified person what is required is the satisfaction of the ap propriate Government entrusted with the duty of maintaining law and order and none else, regarding existence of the given circumstances. Such satisfaction of the ap propriate Government for ordering preventive detention is, unquestionably, subjective satisfaction which may be founded on myriad diverse and variable factors, relevant for achieving and further ing the object, content and intent of the Act, including mere suspicion or reasonable probability. But the factor or suspicion or probability must not be col lateral or ulterior.;