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High Court Of Madhya Pradesh
A. R. Navkar and R. C. Shrivastava, JJ.
SOBRANSINGH RAJARAM GOOJAR
Versus
STATE OF M P
Decided On : Nov 04,1981
Respondent No.2 has passed the said order and thought it fit after his subjective satisfaction that the detention of the petitioner is essential for maintaining public order. The point is whether we can substitute our subjective satisfaction instead of the satisfaction of respondent No. 2. In our opinion, we cannot interfere in the subjective satisfaction of the District Magistrate. M. P. No. 178 of 1981 dt. 17-9-81. [Para 5]
(2) National Security Ordinance, 1980-S. 3 (2)-preventive detention-concept of-it is qualitatively different from punitive detent on- there call he parallel proceedings under law of crimes.
The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence.
If this concept of the ordinance and the Act is taken in to consideration, then the submission of the learned counsel that certain prosecution have been launched under the Indian Penal Code against the petitioner and, therefore, the order of detention is bad in law, cannot be accepted. From the above observations, it is clear that there can be parallel proceedings under the law of crimes as well as under the National Security Act and one is not a bar to the other, AIR 1974 S.C. 2154 followed. [Para 5]
(3) National Security Ordinance-S. 3 (2)-activity of detenue affecting life of society or a locality-detention is justified.
The points which become clear are that (i) it is the subjective satisfaction of the District Magistrate which is to be taken into consideration, (ii) The Act is meant to prevent the commission of the crime or to prevent the disturbance of public order (iii) there can be parallel proceedings under the Act as well as under the law of crimes and proceedings under one is not a bar to proceedings against the same person under the National Security Act. In the case in hand, the first condition is fulfilled. As to the second condition, it is sufficient to refer to the order passed by the District Magistrate, which is Annexure P/3, which clearly shows that the petitioner was engaged in supplying ammunition and food to the absconding dacoity Shiv Narayan Singh and his associates Thirdly, Shiv Narayan Singh the alleged dacoit, killed Sukhdev Kirar and on 7-11-1980, he committed dacoity in the house of one Charunu Gusai. If all these facts are taken into, consideration along with the evidence and the exhibits which we have referred to above, there is no dispute that the activites of the petitioner as alleged, are sufficient to disturb the even tempo of the life of the Society or at least of the locality of the life of which the petitioner is a resident. Therefore, the order passed by the learned District Magistrate against the petitioner is legal and no. interference there in is required. AIR 1966 SC 740, AIR 1972 SC 2686 and AIR 1970 SC 814 referred to. 1975 JLJ 617 and AIR 1981 SC relied on. [Para 5]
( 1. ) THIS is a petition under Article 226 of the Constitution of india for issuance of the writ of Habeas Corpus, quashing the order of detention of the petitioner dated 3-2-1981, passed by non-petitioner No. 1 and ordering his immediate release.
( 2. ) THE petitioner, in his petition, says that he is a peace-loving citizen of India and a resident of Moodanpur, village Kuwarpur, Tahsil Jora, District morena. The grounds for passing the said order, as mentioned by the petitioner, are that the Station House Officer, Police Station, Jora, Pargana jora, District Morena, submitted a report to non-petitioner No. 2 that non-petitioner No. 2 should order the detention of the petitioner under section 3 (2) of the National Security Ordinance, 1980. In his aforesaid report, he stated that the petitioner is disturbing the peace and security of Jora and the area around it. The report was based on the gsound that there was a theft of golden and silver ornaments and clothes alleged to have been taken away from the house of Balwant Singh Rawat of village Yodi. The Crime case was registered as Case No. 162 of 1975 under section 457/380 of the indian Penal Code and the petitioner was arrested and during the investigation, the stolen property was recovered from him. The case is pending before the competent Court. The other ground is that the petitioner supplied food to the dacoit Shiv Narain Singh and his gang near village Balmani during the night intervening 11th and 12th December 1980. The gang committed the murder of -Sukhdeo Kirar during the same night. A case under section 302 of the Indian Penal Code is registered and that case is under investigation. During the night of 7-11-1980, the same gang fired at the house of Charunu Gusai and looted his property. This case is also under investigation. The above mentioned crimes were committed because the petitioner gave shelter, to the said gang of dacoits and, therefore, a crime case no. 312 of 1980 under sections 212/216 of the Indian Penal Code is registered against the petitioner and it will be challenged before the proper Court. The copies of the report are filed along with the petition. In support of the said report, the non-petitioner No. 2 took down the statements of the aforesaid station House Officer of the Police Station, Jora on 13-12-1980. Taking into consideration the above incident on 16-12-1980, non-petitioner No. 2 passed the impugned order of detention of the petitioner under section 3 (2) of the national Security Ordinance and further ordered that the petitioner be detained in the Central Jail, Gwalior and presently he is being kept there under detention. The petitioner was given a list of the reports which were received against him and also the First Information Report dated 16-11-1980 and the the First Information Report dated 13-12-1980. He was given a copy of the statement given by Harpal Singh also.
( 3. ) THE Advisory Board, on I7-I-I981 after considering the propriety of th aforesaid detention order, confirmed it. Thereupon, non-petitioner no. I confirmed the order on 3-2-1981 and it was to be continued up to 16-12-1981. Aggrieved by the said order, this petition is filed. It is urged that the order is unconstitutional, illegal and void and it has no effect. Therefore, it should be quashed and the petitioner be released immediately. The grounds on which the order is attacked are that: (1) it does not come within the scope of the provisions of section 3 (2) or section 3 of the National Security act; (2) the provisions of the aforesaid section relate to the public order, but none of the grounds reveal the same. All the grounds relied upon relate to law and order and as such, the impugned order is in contravention of the provisions of the said Act; (3) that it is dear from the contents of the order that the non-petitioner No. 2 did not apply his mind while passing the said order; (4) the impugned order contravenes the fundamental right of personal freedom guarantee
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