Santosh Sharma v. State Of M.P And Others

(1) Challenge in the present writ petition filed under article 226/227 of the constitution of india is to an order of detention passed by the respondent no. 2, the district magistrate, hoshangabad on 5 - 1 - 2008, annexure p - l and affirmed in appeal by order dated 22 - 4 - 2008, annexurep - 3. The order has been passed in exercise of powers under section 3 (2) (3) of the national security act, 1980 on the ground that the activities of the petitioner being prejudicial to the maintenance of the public order.

(2) The order of detention is an outcome of a letter dated 29 - 12 - 2007 by the superintendent of police, hoshangabad requesting the district magistrate, hoshangabad for taking an action against the petitioner because the increasing criminal activities of his has caused an imminent danger to the tranquility of public peace and social order in the society. The district magistrate in exercise of his power under section 3 (2) (3) of the national security act, 1980 passed the detention order and communicated the reasons whereof on 5 - 1 - 2008 to the petitioner under section 8 of the act of 1980. Thereafter, the state government on the basis of the report furnished to it by the advisory board under section 11 of the act of 1980 passed an order under section 12 on 21 - 4 - 2008, confirming the order of detention of petitioner till 5 - 3 - 2009. The foundation of the detention order as apparent from the report dated 29 - 12 - 2007 by superintendent of police are 17 cases registered against the petitioner for offences under public gambling act, excise act, arms act and the indian penal code.

(3) Terming the action of the respondent being arbitrary, illegal and infested with malafide, it is urged by the learned counsel for the petitioner that out of 17 offences, none of the offences are such as would cause any furore to public peace and tranquility, nor in any manner the same would be prejudicial to the maintenance of public order. It is further contended that out of 17 cases listed against the petitioner, he is acquitted in three matters, whereas one offence under the public gambling act has been splitted into five cases to show the increased number of cases. Similarly for the offences under the arms act and the indian penal code, the split has been done to show the increased number of cases. It is stated that most of the offences are shown of the period between 1998 and 2004 and only seven incidents are being shown of the year 2007, of which, some are for petty offences. In respect of the case registered under sections 147, 148, 149, 307, 302 for crime no. 473/2007, it is urged, is concocted and the petitioner has been falsely implicated. The reliance of false implication is placed on a report submitted by the additional superintendent of police, annexure p - 6. It is contended there being no objective appreciation of the material on record, the subjective satisfaction suffers from perversity. The petitioner placed reliance on the judgment rendered by the apex court in the case of smt. Victoria fernandes vs. Lalman sawma and others (air 1992 sc 687) and has placed reliance on the judgment rendered by the division bench of this court in rajesh alias shukhkhu vs. State of m. P. , writ petition no. 2617/2008, narendra kushwaha vs. State of m. P, writ petition no. 4312/2008, ravi tiwari and others vs. Union of india and others, 2003 (3) m. P. H. T. 528 (db) = 2003 (3) mplj 372, geeta sahu vs. District magistrate, shahdol, 2000 (4) m. P. H. T. 482 (db) = 2000 (2) mplj 618 and pappu khatik vs. State of m. P. And others, 2006 (3) m. P. H. T. 341 (db) = w. P. No. 2028/2006. It is accordingly contended that the action of the respondents is,perse, illegal and is liable to be quashed and the petitioner be set free.

(4) The learned govt. Advocate appearing for the state govt, however, supports the order of detention on the ground that the same has been passed taking into subjective consideration the present and by drawing objectively the nexus from the past. The authority, it is urged, did not commit any error in appreciating the material on record and after satisfying that the activities of the petitioner would be prejudicial to the maintenance of public order. It is urged that the spurt of anti social activities of the petitioner was on rise after 2007 and when the nexus is drawn from his antecedent acts, it leaves no iota of doubt that his activities are not conducive to the maintenance of public order. The learned counsel besides elaborating the offences in which the petitioner had indulged, relies upon the judgment rendered by the apex court in the case of state of u. P. And another vs. Sanjai pratap gupta alias pappu and others, (2004) 8 scc 591. It is accordingly urged that no interference is called for.

(5) The issue which crops up for consideration of this court is whether the activities of the petitioner were prejudicial to public order. A distinction between the "law and order" and "public order" was noted by the apex court in the case of smt. Victoria femandes (supra) , in paragraph 8 in following terms:

"8. The distinction between 'law and order' and 'public order' has been explained by this court time and again. It has been pointed out that while expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, while 'public order' has a narrower ambit and public order would be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to ask is : does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? this question has to be faced in every case on its fact (see : dr. Ram manohar lohia vs. State of bihar, (1966) 1 scr 709 = (air 1966 sc 740) ; arun ghosh vs. State of west bengal, (1970) 3 scr 288 = (air 1970 sc 1228) ; ram ranjan chatterjee vs. State of west bengal, (1975) 3 scr 301 = (air 1975 sc 609) ; ashok kumar vs. Delhi administration, (1982) 2 scc 403 = (air 1982 sc 1143)."

(6) In the case of sanjai fratap gupta (supra) , their lordships were pleased to observe in paragraphs 12 and 13 in the following terms:

"12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. (emphasis supplied) 13. The two concepts have well - defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of state. "law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of state". [see -. Kuso sah vs. State of bihar, (1974) 1 scc w5,harpreetkaur vs. State of maharashtra, (1992) 2 scc 177, t. K gopal vs. State of karnataka, (2000) 6 scc 168 and state of maharashtra vs. Mohd. Yakub, (1980) 3 scc 57]. "

Furthermore, it was observed in paragraph 16:

"16. A bare perusal of the quoted portion from the grounds of detention makes it clear that two aspects, le. , one relating to criminal background of antecedents and other relating to a particular incident were treated separately. This becomes apparently clear because the detaining authority in the backdrop of the criminal antecedents referred to the particular act. Therefore, one was the general background, and the other was the particular incident. They are clearly separable."

(7) The division bench of this court in pappu khatik (supra) , was pleased to observe:

"it is only his recent activities which furnish a reasonable ground or nexus for drawing subjective satisfaction to come to the conclusion that the activities constitute prejudice or are prejudicial to the public order that the detention order can be passed."

(8) In the case at hand from the grounds of detention, as adverted to upon by the competent authority, it is apparent that the same was not of a law and order situation and more particularly, since 14 - 6 - 2007 the anti - social activities of the petitioner were found to be on rise; thus, giving rise to a definite opinion that the activities of the petitioner were prejudicial to the maintenance of public order. The relevant portion of the grounds of detention reads thus:

(9) The contention raised by the petitioner that in respect of an offence registered under crime no. 473/2007 under sections 147, 148, 149, 307, 302, ipc and under sections 25 and 27 of the arms act the petitioner was falsely implicated and reliance whereof having been placed on the report submitted by the additional superintendent of police, hoshangabad is of no credence because the matter is still under investigation and there is no material on record to substantiate the finding of the additional superintendent of police.

(10) Having thus considered, this court does not find any substance in the challenge put forth by the petitioner to the order of detention. In the result the petition fails and is hereby dismissed.