2015 (7) TMI 1396 - HC - Indian Laws

Validity of detention order - initiation of proceedings against the detenu is on the basis that he is a known rowdy - effect on public order Public health or public safety - tempo of the society was disturbed or not - applicability of ordinary law of land - non application of mind of the detaining authority - higher ups and authorities in the official hierarchy - vital materials have been suppressed by the sponsoring authority before the detaining authority - constitutional requirement flowing from Article 22(5) of the Constitution of India. Irrespective of the fact whether the acts committed by the detenu will bring him within the scope of the term rowdy or known rowdy the detaining authority was bound to subjectively satisfy itself as to whether the acts alleged of the detenu do threaten the public order to pass a valid order of detention - As the detaining authority has failed to satisfy itself that the acts of the detenu has affected public order Public health or public safety the issuance of the order under S. 3 of the Act stands vitiated - The various crimes alleged to have been committed by the petitioner are directed against individuals and those crimes which include a solitary case of murder cannot be held sufficient to hold that the even tempo of the society was disturbed and consequently the public order - The ordinary law of land was sufficient to deal with the cases in which the detenu was involved and therefore the order of detention curtailing the freedom of the detenu should not have been issued - HELD THAT - There were ample materials before the detaining authority to conclude on the basis of materials produced that the acts committed by the detenu are prejudicial to public order and that that was every likelihood and potentiality of the detenu in committing offences disregarding the actions taken by the state to curtail him. The satisfaction arrived at by the detaining authority that the reach of the acts of the detenu its degree extent and magnitude has caused disturbance to the even tempo of life of the community so as to amount to disturbance of the public order cannot be doubted or faulted. We hold that the challenge raised by the detenu that his acts merely amount to violation of law and order cannot be sustained - the contention that the crimes committed by the detenu has not disturbed the even tempo of the society and thus to disturb the public order has to fail - decided against the detenu. Non application of mind of the detaining authority is writ large as the detention order was passed when the detenu was in Jail with no prospects of being released in the near future - HELD THAT - The detaining authority has taken note of the fact that the detenu is an extremely wealthy person with no regard for law or the law enforcement agencies and he is in the habit of committing crimes and could have approached any forum for grant of bail to effectuate his purpose. The detenu is not a person who got involved in a solitary crime. Having regard to the antecedents previous history predilections of the detenu to indulge in crimes affecting public order the nature and conditions of bail order passed and the possibilities of imminent release on bail it cannot be said that the subjective satisfaction of the detaining authority was not exercised in the proper manner - the challenge raised also has to fail. Ext. P1 detention order is vitiated as materials on record would reveal that the same was passed on the dictates of the higher ups and authorities in the official hierarchy and thus the detaining authority has abdicated her responsibility in passing the order - HELD THAT - Reliance placed in Supreme Court in DR. B. SINGH VERSUS UNION OF INDIA ORS. 2004 (3) TMI 740 - SUPREME COURT wherein it was held that information of fact found in a newspaper Journal or Magazine or any other form of communication cannot be regarded as gospel truth. It was held that newspaper reports per se do not constitute legally acceptable evidence. After going through exhibit P1 detention order we do not think that the detaining authority has abdicated its responsibility. The contention of the petitioner has to fail on this ground as well. Necessary and vital materials have been suppressed by the sponsoring authority before the detaining authority which materials if supplied would have influenced the mind of the authority to refrain from issuing Exhibit P1 - HELD THAT - The allegations would reveal that the detenu has assaulted the security staff in the presence of the other security men and there is no case that any person including the deceased had even an occasion to resist the acts of the detenu. It is a one sided assault by the detenu on the security person on his failure to open the gate. The assault on the security staff commenced from the public road and went on inside the apartment complex. It does not appear to us that the said document can be said to be so vital so as to have any relevance in the facts and circumstances of the instant case. Moreover it is not the law that every document or material in the possession of the sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document is not placed by the sponsoring authority before the detaining authority the formation of opinion and the subjective satisfaction will get vitiated - Only when the said document is likely to affect the formation of opinion and the satisfaction of the detaining authority can it be said that it is a vital document. In the facts of the instant case it does not appear to us that the wound certificate would have influenced the formation of opinion. The contention raised on this count also has to necessarily fail. The failure of the detaining authority to inform the detenu that he has a right of representation before the detaining authority is a constitutional requirement flowing from Article 22(5) of the Constitution of India and failure to comply with the same will vitiate the order - HELD THAT - The responsibility or the burden cast upon the detaining authority under Article 22(5) of the Constitution and S. 7(2) of the KAAPA while passing orders for detaining known goondas or known rowdies under S. 3 of the Act will stand discharged by affording an earliest opportunity to make a representation and communication of the availability of such opportunity/right to represent to the Government and before the Advisory Board against his detention. The detaining authority is not bound as per the scheme of Act 34 of 2007 to inform the detenu of his right to represent before the detaining authority himself as there exist no such right - in the instant case the burden on the detaining authority must be held to be adequately discharged when the detenu is informed of his right to make a representation at the earliest available opportunity. That has been successfully discharged in this case. The contention raised by the petitioner also has to fail. Petition dismissed.

Summary

Issues Involved:
1. Classification as "known rowdy."
2. Subjective satisfaction of the detaining authority.
3. Impact on public order.
4. Adequacy of ordinary law.
5. Detention while in judicial custody.
6. Influence of higher authorities.
7. Suppression of vital materials.
8. Right to representation before the detaining authority.

Issue-wise Detailed Analysis:

1. Classification as "known rowdy":
The petitioner did not challenge the classification as a "known rowdy." The crimes pending against the detenu were sufficient to classify him under S. 2(p) of Act 34 of 2007.

2. Subjective satisfaction of the detaining authority:
The detaining authority must subjectively satisfy itself that the detenu's acts threaten public order to pass a valid detention order. The detaining authority's satisfaction was based on seven crimes committed by the detenu, which were sufficient to classify him as a "known rowdy."

3. Impact on public order:
The crimes committed by the detenu were directed against individuals and did not disturb the even tempo of society. The detaining authority must be satisfied that the antisocial activities affect public order. The detenu's actions, including a solitary case of murder, were not sufficient to hold that public order was disturbed.

4. Adequacy of ordinary law:
The ordinary law of the land was sufficient to deal with the cases involving the detenu. The preventive detention was unnecessary as the crimes committed were ordinary crimes.

5. Detention while in judicial custody:
The detention order was passed while the detenu was in judicial custody. The detaining authority must satisfy itself that there was a possibility of the detenu being released on bail. The detaining authority considered the possibility of the detenu being released on bail and concluded that there was a likelihood of him being released and indulging in antisocial activities.

6. Influence of higher authorities:
The detaining authority did not act on the dictates of higher authorities. The newspaper clippings produced by the petitioner were not given much value as they were considered hearsay evidence. The detaining authority exercised its power independently.

7. Suppression of vital materials:
The sponsoring authority did not suppress vital materials. The wound certificate of the detenu, showing minor injuries, was not considered vital enough to influence the formation of opinion by the detaining authority.

8. Right to representation before the detaining authority:
The detenu has no right to make a representation before the detaining authority. The right to make a representation is to the Government and the Advisory Board. The detaining authority is not bound to inform the detenu of his right to represent before the detaining authority itself.

Conclusion:
The detaining authority had ample materials to conclude that the detenu's acts were prejudicial to public order. The subjective satisfaction of the detaining authority was properly exercised. The petitioner's contentions on all grounds were dismissed, and the writ petition was dismissed.