30 July 1982
Supreme Court


Case number: Writ Petition (Civil) 126 of 1982








CITATION:  1982 AIR 1257            1983 SCR  (1)  42  1982 SCC  (2) 469        1982 SCALE  (1)563

ACT:      National security,  Act,  1980-Section  3(2)-Nature  of Acts prejudicial  too maintenance  of public order-Inclusion of  past   cases  of  acquittal  in  grounds  of  detention- Validity..

HEADNOTE:      The husband  of the petitioner was detained by an order made under section 3(2) of the Act. The grounds of detention in support  of the  order referred  to a  number of criminal cases involving  the detenu  in many  of which  he had  been acquitted The  allegations  in  cases  pending  against  the detenu were: that a Municipal Councillor had complained that when the  staff of  the Corporation wanted to apprehend some persons for  purposes of  prosecution, the detenu along with 70 others  had pelted  stones etc.  resulting in damage to a building; that  whisky was  being served  in his restaurant; that a  loaded revolver  along with live cartridges had been recovered from  his restaurant;  that a  lady had complained that he  had conspired for the murder of her husband; that a police officer had reported that two ladies of the family of a deceased  person apprehended  danger from  him; and that a lady had  complained that  he had  threatened her  with dire consequences. It  was stated  in the grounds that these acts of the  detenu showed  that he was a desperate and dangerous character who  was prone  to act  in a manner prejudicial to the maintenance  of public order and therefore his detention under  the   provisions  of  the  Act  had  been  considered essential.      The detenu  had challenged  his  detention  by  I  writ petition filed  under Article  226 but  the High Court which had heard the matter several months before the filing of the present petition  under Article 32, had not passed any order thereon.      It was  alleged in  the petition  that the detenu was a social worker  who was  active  in  politics,  that  due  to political rivalry  he had been involved from time to time in a number  of false  cases, that  he had succeeded in proving his innocence  in most  of them  and that  he had  now  been detained on  account of political vendetta. It was submitted that the alleged activities of the detenu, even if true, did



not fall  within the  concept of  threat  to  public  order. Counsel for the petitioner contended that since the National Security Act  did not contain a provision like section SA of the Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Act,  if one  of the grounds was bad, the order of detention had to be quashed in its entirety. 43      Allowing the petition. ^      HELD :1.  None of the instances in which the detenu had been found  to  be  not  guilty  and  acquitted  could  have legitimately been taken into consideration for detaining the detenu under  section 3(2)  of the  National  Security  Act. Since the  detaining authority  would  naturally  have  been influenced by  these grounds  as  well  for  coming  to  the conclusion That the detenu was required to be detained under the provisions of the Act, the entire order of detention was unsustainable. [45 F-G: 46-B]      2. It  is the  potentiality of  the act  to disturb the even tempo  of living  in a community or society which makes it prejudicial  to the maintenance of public order or public tranquillity. A  mere allegation  in the  complaint  of  the Municipal  Councillor   without  anything   more  could  not constitute a  ground for  detention under the Act. There was no allegation  in that  instances that  the law  enforcement authorities had  any  valid  reason  to)  believe  that  the allegations made  in the complaint were true. There was also no allegation  that the  building at  which stones etc. were alleged to  have been  thrown was  situate in a public place and that  the alleged act of the detenu and 70 other persons had caused apprehension in the minds of the residents of the locality in  regard to  maintenance of  public  order.  This instance could  not constitute  a ground for detention under the Act  as it  had no  potentiality to  interfere  with  or affect public  order or  public tranquillity.  The instances mentioned in  other cases  pending against  the detenu could not in  law amount  to any interference with the maintenance of  public   order  and  could  not  constitute  grounds  of detention under the Act.[47G; 46E-F; 47E-G;47C]      Arun Ghosh v. State of West Bengal, AIR 1970 S.C. 1228, referred to.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminals No. 126 of 1982.       (Under Article 32 of the Constitution of India)      Ram Jethmalani, Miss Rani . Jethmalani, Harjinder Singh and K. K. Sood for the Petitioner.      O.P. Rana and R.N. Poddar for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN, J.  On 31st  March,  1982,  after  hearing learned counsel  for both  the parties, we quashed the order of detention  in this  case, observing that our reasons will follow. We proceed to give the reasons.      This Writ Petition under Article 32 of the Constitution of India is by Smt. Bimla Dewan, wife of the detenu Shri Dev Raj Dewan, 44 resident of  House, No.  53, Gadodia  Road, 146/2 THAN Singh Nagar, Anand  Parbat,  Delhi,  for  quashing  the  order  of detention dated  25.9.1981 issued  by  the  Commissioner  of Police, Delhi  under s.  3 (2) of the National Security Act, 1980. The detenu was detained from 26. 9. 1981. The order of



detention is said to have been - approved by the respondent, Lieutenant, Governor,  Delhi, by order dated 1.10.1981 under sec. 3  (4) of  the Act. The detenu had been detained in the Central Jail. Tihar. New Delhi.      It is  alleged in  the petition  that the  detenu is  a social worker,  who is in active politics, and had contested the Municipal  Elections of  the  Municipal  Corporation  of Delhi from  the Anand  Parbat constituency  in 1977  and was defeated by a Congress-l candidate by a narrow margin of 360 votes, and  due to  political rivalry  he has  been involved from time  to time  in a  number of  false cases, in most of which he  has succeeded  in proving  his innocence  and  was acquit ted.  It is  further alleged in the petition that out of sheer  political vendetta  the detenu  has been  detained maliciously with full know ledge that the alleged activities of the  detenu, even if true, do not fall within the concept of threat  to public order. The arrest or prosecution of the detenu, cannot  by itself,  be a  ground of  detention It is only the  material on  the basis  of  which  the  detenu  is arrested, prosecuted  or convicted  that  can  constitute  a ground of  detention. But  no such  material, including  the blue film mentioned in item 28 of paragraph 2 of the grounds of detention  has been  supplied to  the detenu  and it has, therefore, become  impossible for  him to make any effective representation against  his detention.  No  opportunity  was given  to  the  detenu  to  make  a  representation  to  the detaining authority.  The detenu challenged his detention by filing Criminal  Writ Petition  No. 126  of 1981 in the High Court of  Delhi on  13.10.1981. But  since no order had been passed in  that petition  though  arguments  were  heard  in November 1981,  this writ  petition has  been filed  in  the Supreme Court on 3.3.1982.      It is  alleged in  the grounds of detention in which 32 instances have been given that those acts of the detenu show that he is a desperate and dangerous character who acts in a manner which  is prejudicial to maintenance of public order, that his  activities are  hazardous to  the community and he has  not  stopped  his  violent,  anti-social  and  criminal activities in spite of his prosecution in a number of cases, and that in these circumstances his detention under 45      s. 3  (2) of  the National  security Act, 1980 has been considered  A   essential  n  order  to  stop  his  criminal activities.      In the  counter-affidavit it  is stated  at the  outset that the  High Court of Delhi has by an order dated 4.3.1982 dismissed Criminal  Writ Petition  No. 126 of 1981 which was filed for  quashing   the very same order of detention dated 25.9.1981 and that the present Writ Petition is consequently not maintainable  and only  an appeal  to this Court against the judgment  of the  High  Court  could  be  filed.  It  is contended that  there is  nothing on record to show that the detenu is  a social  worker. The  counter-affidavit  further proceeds to state that the criminal history of the detenu as disclosed in  the grounds  of detention goes to show that he has been a serious threat to maintenance of public order and that whenever  any police  officer or any other agency tried to interfere  in the  matter he had assaulted, obstructed or attempted to  murder him and that detention under the Act is the only  way to  prevent him  from indulging  in activities which are  prejudicial to maintenance of public order. It is stated  that   copies  of   all  first  information  reports mentioned in  the grounds  of detention were supplied to the detenu and  that the  detaining authority  has  specifically mentioned in  the grounds of detention that the detenu has a



right of  representation to  the Lieutenant Governor and the Advisory Board.  The respondent  has prayed for dismissal of the Writ Petition for the aforesaid reasons.      Instances Nos.  I to  22, 24  and 28 relate to criminal cases, in  all of  which the detenu has been found to be not guilty and  acquitted. Instance  No. 23 relates to a case in which the  detenu  has  been  discharged.  Instance  No.  28 relates  to   a  blue  film  of  naked  picture  for  public circulation/exhibition alleged  to have  been  recovered  on 23/24.6.1979 by the Police from the Karnal Restaurant of the detenu. Since  all these  instances relate to cases in which the detenu  has been  found to  be not  guilty and acquitted none of  these instances  can  legitimately  be  taken  into consideration for detaining the detenu under s. 3 (2) of the National Security  Act. Mr.  Ram Jethmalani, Senior Advocate who ,  appeared for  the petitioner  in this  case submitted that in the National Security Act there is no provision like s. SA  in COFEPOSA  (Conservation of  Foreign  Exchange  and Prevention of  Smuggling Act)  and, therefore, if one of the grounds Is  bad the  order of detention has to be quashed in its entirety  and that  as the detaining authority has based the order of detention on, 46 grounds Nos.  1 to 24 and 28 also, the order of detention is unsustainable. The  learned counsel  for the  respondent did not submit anything to controvert that submission of Mr. Ram Jethmalani. We  are of  the opinion that since the detaining authority would  naturally have  been  influenced  by  these grounds as well for coming to the conclusion that the detenu requires to be detained under the provisions of the Act, the entire order of detention ii unsustainable.      Before considering the other instances, it is necessary to note  what Hidayatullah,  C.J. has observed in Arun Ghosh v. State of West Bengal.(1) It is this:           "Take the  case of  assault on girls. A guest at a      hotel may kiss or make advances to half a dozen chamber      maids. He may annoy them and also the management but he      does not cause disturbance of public order. He may even      have a  fracas with the friends of one of the girls but      even then it would be a case of breach of law and order      only. Take  another case  of a man who molests women in      lonely places.  As a  result of  his  activities  girls      going to  colleges and  schools are  in constant danger      and fear.  Women going  for their ordinary business are      afraid of being way-laid and assaulted. The activity of      this man  in its  essential quality   is  not different      from the  act of  the other man but in its potentiality      and in its effect upon the public tranquillity there is      a vast  difference. The  act of the man who molests the      girls in lonely places causes a disturbance in the even      tempo of  living which  is  the  first  requirement  of      public  order.   He  disturbs   the  society   and  the      community. His  act makes all the women apprehensive of      their  honour   and  he  can  be  said  to  be  causing      disturbance of  public order  and not merely committing      individual actions  which may  be taken  note of by the      criminal prosecution agencies."      Instances Nos. 25 to 27 and 29 to 32 relate to criminal cases which are said to have been pending against the detenu on the  date of  order of detention. We shall first consider instances Nos.  25 to  27 and  30 to 32. Instances 25 and 27 relate to  cases in which the detenu is alleged to have been arrested I  for the reason that whisky was being served in a restaurant belonging to him. instances No. 26 relates to the alleged recovery  of a  loaded English  revolver and  5 live



cartridges from  the detenu’s Kamal Restaurant on 24.6.1979. Instance No.  30 relates  to a  case in  which the detenu is said to have. -------------      (1) AIR. 1970 SC. 1228. 47 been arrested on the complaint of a lady that the detenu bad A conspired  for the murder of her husband, who was murdered while he  was returning  after Seeing a cinema on 16.8.1981. Instance No.  31 relates  to a  case arising out of a report sent by  a Sub-Inspector of Police, Anand Parbat against the detenu alleging that Smt. Praveen Kapoor and Smt. Shielawati Kapoor, members  of the  family  of  deceased  Vinod  Kapoor apprehended danger  to their  lives  at  the  hands  of  the detenu. Instance  No. 32 relates to the arrest of the detenu on the  complaint of  Smt. Sheilawati Kapoor that the detenu threatened her  with dire consequences when she went to Tees Hazari Courts  to see  her son  Ashok on  10.9.1981. We  are clearly of  the opinion  that these  instances cannot in law amount to  any interference  with the  maintenance of public order and  could not  constitute grounds for detention under the National Security Act 1980.      We now  come to  instance No.  29 which  lates  to  the arrest of  the detenu  on the  complaint of  one Prem  Kumar Narang Municipal  Councillor that when the Corporation Staff wanted some  persons for  prosecution, one Ram Singh came to rescue them  and that  later on the detenu came alongwith 70 other persons  and started throwing stones etc. resulting in damage to  a building. On that complaint a First Information Report dated  28.12.1979 under ss. 147, 148, 149 323 and 427 I.P.C. is  said to have been submitted by the Police. A mere allegation  in  the  report  of  the  Municipal  Councillor, without  anything  more,  cannot  constitute  a  ground  for detention under  the  National  Security  Act  There  is  no allegation in that instance that law enforcement authorities had any  valid reason to believe the allegations made in the complaint to  be true even while the case registered on that complaint was  pending trial and posted to 29.10.1981. There is no allegation in that instance that the building at which stones etc.  are alleged to have been thrown is situate in a public place  and that  the alleged act of the detenu and 70 other persons  has caused  apprehension in  the minds of the residents of the locality in regard to maintenance of public order. We are, there fore, unable to hold that this instance has any  potentiality to  interfere with and has effect upon the public  tranquillity  and  order  and,  that  it  cannot constitute  a   ground  for  detention  under  the  National Security Act 1980.      It is  necessary to mention in passing the fact that it is admitted   in the Writ Petition itself that Criminal Writ Petition No. 126 of 1981 had been filed in the High Court of Delhi on 13.10.1981 48 for  quashing   the  very  same  order  of  detention  dated 25.9.1981 and that arguments in that Petition had been heard in November  1981 itself.  In the  counter-affidavit  it  is stated that  the High  Court of  Delhi has by an order dated 4.3.1982 dismissed  that Writ  Petition and, therefore, only an appeal  against that  order would  lie to  this Court and this Writ  Petition is  not maintainable. Though the learned counsel for  the respondent invited our attention to certain portions of  that order  dated 4.3. 1982 of a Division Bench of the  Delhi High Court dismissing Writ Petition No. 126 of 1981 it was not contended by him that only an appeal against that order  would lie  to this  Court  and  that  this  Writ



Petition is  not maintainable. It is, therefore, unnecessary for us  to go  in detail into this ground of objection taken in the counter, affidavit.      For the  reasons mentioned  above we are of the opinion that the order of detention dated 25.9.1981 is unsustainable and liable  to be  quashed. There  will be  no order  as  to costs. H.L.C.                                     Petition allowed. 49