9911796707
TMI Blog1989 (1) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was obtained against him under Sections 82 and 83 of the Criminal Procedure Code on May 4, 1988 and the said order was executed on May 4, 1988. Thereafter the petitioner surrendered himself in Court on July 4, 1988 and he was sent to the District Jail at Meerut where he was served the detention order and the grounds of detention on July 5, 1988. In the grounds of detention three grounds were set out for the detention of the petitioner and they read as follows: 1. On 8.7.87 at about 9.30 P.M. in the night at Kasba Sardhana, Police Station Sardhana (Meerut) you alongwith your other companions went to the garden of Lala Om Prakash Jain which is in the possession of Yusuf S/o Ismail on contract. You said to Yusuf etc. who were present there that they do not pay the (CHAUTH) fee for GUNDAGARDI of the Mango, therefore, you using abusive language said Kill the Salas, so they may vanish for ever and you people with an intention to kill Yusuf etc. assaulted them. On the information of Shri Yusuf a case has been registered against you as Crime No. 211 under Sections 307, 323 I.P.C., which is under consideration of the Court. Due to your aforesaid misdeed terror in Sardhana and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Advisory Board; (3) That if the petitioner so desired he could also make representation to the Government of India by addressing the representation to the Secretary, Government of India, Ministry of Home (Internal Security Department), North Block, New Delhi through the Superintendent of the Jail, and (4) That if under the provisions of Section 11(1) the petitioner desired to have a personal hearing by the Advisory Board he should specifically make mention of it in his representation or he should inform the State Government of his desire through the Jail Superintendent. It is common ground that the petitioner made a representation to the Government against his detention and the order passed therefore. Therein he had set out that he wished to have the services of a friend at the time of the meeting of the Advisory Board to make representations on his behalf. The representation was received by the District Magistrate, Meerut on July 15, 1988. After receipt of the comments of the SSP, Meerut the representation along with the comments of the District Magistrate were sent to the State Government on July 21, 1988. Even prior to it the copies of the representation were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in anti-social acts which affected the maintenance of public order. (3) The petitioner was denied opportunity to have the assistance of a friend when he appeared before the Advisory Board on August 2, 1988. Besides these contentions Mr. Jain also raised a fourth contention that under Section 3(5) of the Act the State Government is enjoined to send a report within seven days to the Centre Government, of the detention of any detenu under the Act together with the grounds on which the order had been made and on receipt of such a report the Central Government is bound to consider the matter and either approve the detention or revoke the same in exercise of its powers under Section 14 of the Act. In this case there was no material to show that the Central Government had performed its duty under the Act. Since this contention was not raised in the petition and since the Central Government had not been impleaded a party respondent, the petitioner s counsel filed a petition and sought leave of Court for raising an additional ground and for impleading the Central Government as a party respondent. These prayers were acceded and on notice being issued to the Central Government, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand expected to be complied with by all owners or contractors of mango groves in the locality. In such circumstances the demand made and the attack launched would undoubtedly cause fear and panic in the minds of all the owners and contractors of mango groves in that area and this would have affected the even tempo of life of the community. Similarly, the second ground pertains to the petitioner going to the shop of one Ashok Kumar and making a demand of ₹ 10,000 and threatening him that unless the money was paid on the following day or the day after the shopkeeper would be killed. The shopkeeper had reported the matter to the police authorities and a case has been registered against the petitioner u/s 506 I.P.C. This incident must also be viewed in the same manner in which the first incident has been construed. It is not as if the demand and the threat following it were made against Ashok Kumar in an insolated manner. On the other hand, the demand had been made as part of a scheme to extort money from all the shopkeepers under a threat that their continuance of business and even their lives would be in danger if chauth was not paid. The demand made on Ashok Kumar would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 490 referring to S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816 and Ashok Kumar v. Delhi Administration, [1982] 2 SCC 403 it was held as follows: Conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle. Thus whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order. Viewed in this perspective, it cannot be said that the demands made and threats given by the petitioner to the contractors and shopkeepers as mentioned in the grounds would have its reach only to the limited extent of affecting the law and order situation and not go so far as to affect the maintenance of public order. We are therefore, unable to sustain the first contention urged on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni, AIR 1988 SC 208 at 213 would be of relevance in this case. It was held in that case that if firing is made in a public street during the day time, the incident would undoubtedly. affect public order as its reach and impact would disturb public tranquility and it would affect the even tempo of the life of the people in the locality concerned. Therefore the decision in Gulab Mehra s case (supra) cannot be of any avail to the petitioner. In so far as the 3rd contention is concerned, it was urged that in spite of the petitioner having specifically asked for the assistance of a friend at the time he was heard by the Advisory Board, he was denied opportunity to have such assistance. The petitioner has averred in his petition as follows: The petitioner orally as well as in writing requested the Chairman of the Advisory Board to allow him to engage a counsel or atleast a person who is acquainted with the law to represent him before the Advisory Board, as the petitioner was illiterate and was not capable of representing his case before the Advisory Board. Unfortunately, the Advisory Board rejected the request of petitioner and did not allow him to engage a legal counsel or atleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. also drew our attention to the radiogram sent by the Government to the District Magistrate wherein it has been clearly stated that on request of detenu his next friend (non-advocate) may also be allowed to appear with him. Mr. Yogeshwar Dayal also made available to us the file containing the original records relating to the detention of the petitioner. We find from the records that the radiogram had been served on the petitioner through the Superintendent of the Meerut District Jail. The petitioner has affixed his signature in English therein and also written the word date but he has not filled up the date. (It is stated in the counter affidavit that the petitioner is not an illiterate but has studied upto Intermediate). This would falsify the averment in the rejoinder affidavit filed by the petitioner s wife Smt. Shobha Tyagi that the copy of the telegram annexed to the counter affidavit of the respondent No. 2 was not served upon the detenu; the detenu was never informed that he was entitled to be represented by a friend who is not an advocate. Mr. Jain s contention was that even if the radiogram had been shown to the petitioner, it must have been done belatedly and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d raise a contention that the detention order is illegal because he was not represented by a friend at the meeting of the Advisory Board. This position is a settled one and we may only refer to the observation of this Court in Vijay Kumar v. Union of India, AIR 1988 SC 934 at 939: It appears from the observation made by the High Court that the appellant, without making any prayer before the Advisory Board for the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness. The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses, who were standing outside. The appellant, however, did not make any such request to the Advisory Board. There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an advocate or friend at the time of hearing, but the appellant did not avail himself of the same. In the circumstances, we do not think that there is any substance in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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