Khurvesh @ Pappu @ Pahalwan v. State & Anr

order."

¶15We have specifically noted these observations as they pertain to the city of Delhi itself.

¶16Yet again, the Supreme Court in the context of preventive detention, highlighted the distinction between "public order" "security of state" and "law and order" in the case of Commissioner of Police and Ors. vs. C.Anita (2004) 7 SCC 467 in the following words :- "The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order. 'Public order' has a narrower ambit, and public order could 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 the 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 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 to 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 tranquility of the society undisturbed"? This question has to be faced in every case on its facts.

¶8"Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of West Bengal (1972) 3 SCC 831)

¶9"Public order" is synonymous with public safety and tranquility: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum, which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. (See Dr.

Ram Manohar Lohia (Dr.) v. State of Bihar (1966) 1 SCR 709; 1966 Crl.LJ 608)

¶10'Public Order', 'law and order' and the 'security of the State' fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. [See Kishori Mohan Bera v. The State of West Bengal (1972) 3 SCC 845 : AIR1972SC1749 ; Pushkar Mukherjee v. State of West Bengal (1969) 1 SCC 10; Arun Ghosh v. State of West Bengal (1970) 1 SCC 98; Nagendra Nath Mondal v. State of West Bengal

(1972) 1 SCC 498].

¶17The court highlighted that the true difference 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 the society.

¶18Applying this principle in the case at hand, the Court sustained the detention order in the following terms :- "14. A bare reading of the order of detention shows the detenu was a history sheeter against whom more than 30 cases had been instituted. Two specific instances which indicated the gravity of his acts were

highlighted. Paragraphs 3 and 6 of the grounds of detention read as follows: "3-Your unlawful acts in the area are creating terror in the minds of the public and that the law abiding citizens are afraid of buying plots/lands and building houses due to fear and they are also afraid to come forward to lodge any complaint to the police against you or make any representation. 6-Thus, you are indulging in goondaism land grabbing and your activities are causing a feeling of insecurity and fear in the public and thus are prejudicial to the maintenance of public order."

¶15The Court cannot substitute its own opinions for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. That is the case here. There is no vagueness or staleness. The incidents have been highlighted in the grounds of detention coupled with the definite indication as to the impact thereof which have been precisely stated in paragraph 3 of the grounds of detention quoted above. The two incidents referred to show as to in what manner the detenu was demanding money from whosoever was purchasing land and giving threats to kill if the demands were not met. The incidents clearly substantiate the subjective satisfaction arrived at by the detaining authority as to how the acts of the detenu were prejudicial to the maintenance of public order. These aspects have not been considered by the High Court. Learned counsel for the detenu submitted that even if it is so the judgment of the High Court should not be set aside and the matter could be remitted back to it for fresh decision. We find no substance in such a plea. The order of detention has a specific purpose to serve. That being so, we set aside the judgment of the High Court. The detenu shall forthwith surrender to custody to serve the remainder period of sentence. The appeal is allowed."

¶19When we apply these principles to the facts of the present case, the irresistible conclusion would be to uphold the detention order here as well. We may point out at the outset that the entire thrust of the arguments of the learned counsel for the petitioner was limited to one aspect namely, the presence of the petitioner was not likely to intimidate the witnesses. Though we would revert to this argument at a later stage, it is necessary to point out that the impugned order is not passed on this basis alone. No doubt, after giving the details of 32 criminal cases/activities registered against the petitioner, in the next paragraph at page 2 of the impugned order, it is remarked that the petitioner is so desperate and dangerous criminal that the witnesses in the pending trial court cases are likely to be intimidated by his presence outside the jail. However, after giving the details of the five cases, the detention order is founded on the following: - "The above mentioned criminal activities clearly show that Khurvesh @ Pappu @ Pehalwan is a desperate and hardened criminal whose activities are prejudicial to the maintenance of public order. His acts of violence against the public and property show his complete contempt for the law of the land. Since he usually keeps a firearm with him, people are afraid of deposing against him. His continuous criminal activities have disturbed the peace & tranquility of the society."

¶20The basic and the fundamental ground on which the order is founded is that the petitioner is a desperate and hardened criminal whose activities are prejudicial to the maintenance of the public order.

It is also mentioned that his continuous criminal activities have disturbed the peace and tranquility of the society. An apprehension is expressed that there is a possibility that the petitioner would indulge in similar type of criminal activities "which will adversely affect the maintenance of public order".

¶21When confronted with this part of the order and the law laid down by the Apex Court in the aforesaid judgments, learned counsel for the petitioner could hardly give any convincing reply. It is, at this stage that he had mentioned that if there is any judgment on which he seeks to place reliance, he would provide the copy thereof, but has not done so. Going by the principles laid down by the Supreme Court in the aforesaid judgments and applying the same to the facts of this case, the impugned order is held to be justified. In this context, we may also refer to the Division Bench judgment of this court in the case of Mohd. Afzal vs. Union of India and Ors. 2004 Crl.L.J. 3461, the detention order in that case was passed almost under similar circumstances and was upheld by this court in the aforesaid judgment. In that case also, the detention order provided that the detenue had started his criminal activities in the year 1990 at the age of about 19 years and was involved in 18 criminal cases enlisted in the grounds. He had been acquitted/discharged in most of the cases. In 5 cases he was facing trial and 3 cases were under investigation when the detention order was passed. Though reference to 18 cases was made in the grounds of

detention, 2 cases which were stated to be under investigation had been specifically relied upon in the grounds of detention. On the basis of this material, the detaining authority had come to the conclusion that the said criminal activities clearly showed that the detenu was a desperate and dangerous criminal whose activities were prejudicial to the maintenance of the public order; his acts of violence against the public and property shows his complete contempt for the law of the land; he was usually found in possession of fire arms; the prosecution witnesses were extremely terrified to depose against him in court; his criminal activities had disturbed the normalcy of the society and he was such a dangerous and desperate criminal that he did not even spare the police officials in attacking them. Taking note of the exposition of law on "public order" and "law and order" [which exercise has already been undertaken by us above], the writ petition was dismissed, upholding the detention order, in the following terms: - "13. Examining the grounds of detention, briefly referred to above, on the touchstone of the legal position as emerging from the afore-mentioned decisions, we are of the view that the activities relied upon by the detaining authority to come to the afore-mentioned conclusion cannot be said to be mere disturbance of "law and order". As noted in the grounds of detention, the criminal activities of the petitioner pertained to criminal intimidation, obstructing public servants in discharge of their official duties, etc. which, obviously, are not directed against a single individual but against the public at large having the effect of disturbing the even tempo of life of the community and thus, breaching the "public order". Thus, we are unable to hold that there was no material before the detaining authority to

come to the conclusion, it did, to say that the petitioner is a person of desperate and dangerous character and a menace to the society. The detaining authority is justified in forming the belief that the results in the trials in criminal cases were because of his dangerous character as even the persons directly affected were not coming forward to give evidence against him. We have, thereforee, no hesitation in holding that the instances of petitioner's activities, enumerated in the grounds of detention, clearly show that his activities cover a wide field and fall within the contours of the concept of "public order" and the detaining authority was justified in law in passing the impugned order of detention against the petitioner.

¶14As regards the plea of learned counsel for the petitioner that the impugned order is vitiated because it has been passed with a mala fide intention to frustrate the bail allowed to the petitioner, we are of the view that there is no substance in the contention. It is settled by a catena of decisions of the Apex Court that even when a person is in custody, a detention order can validly be passed if the authority passing the order is aware of the fact of his being in custody and he has reason to believe, on the basis of material placed before him, that there is imminent possibility of his being released on bail and that on being so released, he would in all probability indulge in prejudicial activities and to prevent him from doing so, it is necessary to detain him. A detention order cannot be struck down on the ground that the proper course for the authority was to oppose the bail application and if bail is granted notwithstanding such opposition, to question it before a higher Court, as is sought be pleaded by learned counsel for the petitioner. (See: Kamarunnissa Vs . Union of India

(1991) 1 SCC 128 : 1991 Crl.LJ 2058 and Yogendra Murari Vs. State of U.P, AIR 1988 SC 1335 : 1988CriLJ1825 ). On the facts in hand, we are unable to accept the contention of learned counsel for the petitioner that the impugned detention order was passed merely to frustrate the order of the Court, granting bail to the petitioner."

¶22In the present case, we also find that the cases mentioned at serial no.23, 24, 25, 27, 28, 29, 31 and 32 are still pending trial. In the last four cases referred to above, evidence is yet to be recorded. Apprehension of the detaining authority that as the petitioner keeps a fire arm with him, people are afraid of deposing against him and, therefore, "witnesses are likely to be intimidated by his presence outside jail", cannot be said to be an unfounded opinion.

¶23We, thus, find that the present writ petition is completely devoid of any merit and, therefore, dismiss the same. No costs.

(A.K. SIKRI) JUDGE

(AJIT BHARIHOKE) JUDGE

JANUARY 25th, 2010. sk

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(Crl.) No. 1490/2009 and Crl.M.A. No. 12273/2009 % Reserved on : 06th January, 2010. Date of Decision: 25th January, 2010. Khurvesh @ Pappu @ Pahalwan . . . Petitioner through : Mr.Vikas Arora, Advocate. VERSUS State & Anr. . . .Respondents through: Mr.Vikas Pahwa, Addl. Standing Counsel with Mr. Piyush Singh, Advocate. CORAM :- THE HON'BLE MR. JUSTICE A.K. SIKRI THE HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The petitioner has been detained vide orders dated 8th June, 2009 passed by the Commissioner of Police, Delhi, in exercise of his powers under sub-Section 2 of Section 3 of the National Security Act, 1980 (hereinafter called "the Act") recording the satisfaction that such detention is necessary to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. This order was approved by the Lt. Governor/respondent no.2 on 18th June, 2009. The Advisory Board has also confirmed this order of detention on the basis of which the respondent no.2 has passed the order dated 5th August, 2009 directing that the petitioner shall be detained for a period of 12 months from the date of detention i.e. 8th June, 2009. Before filing the present petition, the petitioner had made a representation before the respondent no.2 to recall the aforesaid orders, but without any success in as much as respondent no.2 rejected the said representation on 9th September, 2009. Left with no other departmental remedy, the petitioner has knocked the doors of this court seeking issuance of a writ of certiorari thereby quashing the said detention order dated 5th August, 2009 and directing release of the petitioner from jail. 2. Before we highlight the grievance of the petitioner on the basis of which the impugned order is challenged, it would be appropriate to take note of the material contained in the said detention order dated 8th June, 2009 to find out the basis for the passing of such an order. The impugned order dated 8th June, 2009 contains the grounds of detention and these grounds start with the observations that the petitioner is a desperate character and a hardened criminal of the area of police station Nand Nagri, Delhi. It is further alleged that he started his criminal activities in the year 1996 at the age of 18 years and has been involved in 32 criminal cases including that of voluntary causing hurt, wrongful restraint, criminal intimidation, extortion, robbery, rape, obstructing public servants from discharging their official duties, culpable homicide, attempt to murder and murder etc. apart from committing the acts punishable under the Arms Act. Even preventive action under the provisions of Section 107/151 of the Code of Criminal Procedure had been taken against him. Criminal record of the petitioner is tabulated thus :- S.No. Case FIR No. Date Under Section P.S. Remarks 5.4.96 308/34 IPC Nand Nagri Acquitted 26.12.96 341/323/34 IPC Nand Nagri Compromised 29.3.97 25 A. Act Seema Puri Acquitted 10.8.97 341/324/314 IPC Nand Nagri Acquitted 24.3.98 323/341/376/506/34 IPC Nand Nagri Acquitted 6.5.99 324/34 IPC Nand Nagri Compromised 16.10.00 324/34 IPC Nand Nagri Compromised 25.12.00 392/397/34 IPC Nand Nagri Acquitted 10.2.01 382/34 IPC Nand Nagri Acquitted 16.2.01 307/34 IPC M.S. Park Acquitted 25.3.01 392/397/411/34 IPC Nand Nagri Acquitted 3.4.01 392 IPC Sahibabad UP Acquitted 9.4.01 392 IPC Sahibabad UP Discharged 12.4.01 392 IPC Sahibabad UP Acquitted 19.4.01 393/34 IPC Nand Nagri Acquitted 22.4.01 186/353/307/34 IPC Gokul Puri Acquitted 10.5.01 302/120-B/34 IPC and 25/27 A. Act Nand Nagri Acquitted 12.8.01 25 A. Act Ch. Puri P. Trial 30.4.03 384/386/511/34 IPC Nand Nagri Acquitted 15.5.03 186/353/332/307 IPC and 25/27 A. Act Nand Nagri P. Trial 6.6.04 341/394/397/307/34 IPC