High Court of Punjab and HaryanaCWP/18054/2024dismissed

Parveen Alias Dada v. Union Of India And Others

2024-12-20The Chief Justice,Mr. Justice Anil Kshetarpal24 pages

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Present:

Mr. Siddharth Sihag, Advocate Mr. Nitin Kadyan, Advocate Ms. Sakshi Sharma, Advocate for the petitioner. Mr. Satya Pal Jain, Additional Solicitor General of India with Mr. Dheeraj Jain, Advocate (through v.c.) for respondent'Union of India.

Mr. Deepak Balyan, Additional Advocate General, Haryana. * * * * *

43 1 4 1.

This petition filed under Article 226/227 of the Constitution of India assails the order of preventive detention passed by District Magistrate, Rohtak, on 01.05.2024 (Annexure P'1) and all subsequent orders of State Government approving and extending the detention.

4% 9 2.

Several grounds in support of challenge to the aforesaid are made by learned counsel for petitioner, which are delineated below:' (i) The nature of offences registered against the petitioner are insufficient to give rise to a cause of breach of public order. (ii) The impugned order of preventive detention is passed in violation of Section 3(5) of National Security Act, 1980 (NSA for brevity) in as much as failure of State Government to forward the order of preventive detention together with its grounds to the Central Government within a period of seven days.

(iii) The order of preventive detention is vitiated since no mind was applied to the fact that petitioner was already in custody when impugned order was passed.

(iv) The impugned order does not pass the tests laid down by the decision of Apex Court in

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(v) There is no live and proximate link between proposal made by Superintendent of Police, Rohtak as early as on

##! while the impugned order of preventive detention was passed by District Magistrate, Rohtak, as late as 01.05.2024.

Learned counsel for the rival parties are heard on the question of admission and final disposal.

3.1 The grounds demonstrated by State in support of impugned order of preventive detention are described below in a tabular illustration: '

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From the aforesaid details it reveals that out of 20 offences registered against petitioner, four ended in acquittal while in seven offences, the petitioner was convicted. The offences, which are still pending investigation/trial against the petitioner, are at Serial No.1, 6, 7, 13, 15, 17, 18, 19 and 20, in the aforesaid table.

The affidavit filed by District Magistrate, Rohtak, in response to the present petition lays emphasis on three offences registered against the petitioner i.e. FIR No.55, dated 08.03.2023, alleging offences punishable under Sections 148, 149, 506, 307, 120'B of IPC read with Section 25/27 of the Arms Act, 1959, FIR No.7, dated 04.01.2023, alleging offences punishable under Sections 148, 149, 323, 506 of IPC and FIR No.80 dated 08.03.2024, alleging offences punishable under Section 25 of the Arms Act, 1959, to justify the aura of fear and panic spread by the activities of petitioner while

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committing these offences, which allegedly lead to break down of public order.

This Court is conscious of the law laid down by the Apex Court where a clear distinction has been made between breach of law and order on one hand and breach of public order on the other. 7.

There are myriads of decisions of Apex Court for explaining the said distinction holding that the relevant factor to identify breach of public order is not the number of offences registered against the detenue but the repercussions entailing the antecedents which jeopardise public order rendering curtailment of right to liberty of proposed detenue, a dire necessity. Even a single incident may be enough to breach public order provided its consequences are enough to instil fear in the minds of the members of the general public thereby obliging the State/District Magistrate to invoke extraordinary powers of preventive detention. 8.

This Court for convenience and ready reference extracts the relevant portions of various decisions of the Apex Court on the subtle but evident distinction between "law & orders" and "public order" as follows: ' i) In * $ , -

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The Constitution while recognizing the right to life and personal liberty under Article 21 of the Constitution of India prescribes curtailment of this right in exceptional circumstances by following due process of law as contained in Clause (4) of Article 22 of the Constitution of India which reads thus:'

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I 10.

From the aforesaid it is obvious that the concept of preventive detention is constitutionally permissible subject to fulfilment of certain conditions and following the procedures prescribed by law. The law promulgated by the Parliament relevant to the subject is the National Security Act, 1980 (for brevity 'NSA'), which provides a detailed procedure to be followed, substantial breach of which can lead to vitiation of the order of preventive detention.

4 11.

In the light of the law laid down by the Apex Court, this Court needs to analyse the aforesaid five grounds of challenge made by the petitioner enumerated in paragraph'2 of this order (supra). 12.

Taking up the first ground of the nature of offences registered against the petitioner being insufficient to give rise to a cause of breach of public order, it is seen from the reply of the respondent'State of Haryana that

there were 20 cases registered against the petitioner in about last 10 years in which the petitioner was convicted for the following offences:'

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Besides suffering the above convictions, the petitioner was acquitted in the following offences:'

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In the backdrop of the aforesaid convictions in cases mentioned in paragraph'12 of this order, the respondent'State has laid emphasis on three FIRs registered against the petitioner.

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#> " . ), , ) ,) 4-( # ,) #< " /( -1 ?(), -4,,.5@0,651 .,@A ( 3 ) This FIR arises out of a recent incident which led to formation of an opinion by the competent authority that allowing the petitioner to enjoy his right to personal liberty would be prejudicial to the same right of the society at large. Thus, there is a need to elaborate the said incident and understand the consequences, this incident casts over the peace and tranquillity and public order in the society. This FIR stems from an incident of 07.03.2023 when the complainant received a call from the petitioner and co'accused Rahul threatening the complainant of dire consequences followed by the incident which took place on the same day at 12.

40 AM midnight when the petitioner along with co'accused Rahul and 22 to 25 other persons came to the house of complainant, exhorted the complainant to come out and fired 25 rounds of bullet at the complainant. Empty shells were recovered from the place of incident. The CCTV footage recovered during investigation of the said incident revealed 22 to 25 persons approaching the complainant house in four vehicles and indulging in indiscriminate firing towards the house of the complainant. After investigation, 13 accused persons were arrested which led to filing of three charge'sheets against the petitioner which were submitted in Court on 16.08.2023.

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The aforesaid incident dated 07.03.2023 as revealed by the State in its reply created a sense of fear and panic among the public at large. After the said incident, it is alleged that the village where the incident took place wore a deserted look for many days as the villagers feared to step out of their homes. Additional police force was deployed in the village as well as at the house of the complainant for restoration of peace. It is also alleged in the reply that this incident created shock waves amongst the residents of the village.

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-4,46-,1.1$,6)?'*> In the aforesaid incident relating to FIR No. 55 dated 08.03.2023, the petitioner was released on bail vide order dated 07.12.2023 but the petitioner misused the bail bonds conditions by committing further crime of having in his possession illicit firearm and misusing the same, for which this FIR No. 80 dated 08.03.2024 was registered. In this FIR, it was revealed that during investigation, a country made weapon and four live cartridges were recovered from the possession of the petitioner who was planning to commit murder of the members of his rival gang by using illicit firearms.

iii)

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##:5)4-( 1 !+1:#:1 =". ), ,)1 -4,& .,@$,6)?'*> This FIR was registered on 04.01.2023 due to an incident where the petitioner committed an offence after being released on bail from judicial custody by misusing the conditions of bail bonds in an earlier offence qua FIR No. 459 dated 01.07.2022 under Sections 307 read with Section 34 of the Indian Penal Code and 25 of the Arms Act, registered at Police Station City Rohtak.

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Reply of the respondent'State of Haryana further reveals that the petitioner has been continuously indulging in repeated offences while being an active member of '

and the factum of the petitioner being in custody does not deter the petitioner's tendency to indulge in further crime. Reply further reveals that large number of calls were exchanged between the petitioner and co'accused Pawan and Raj Kumar alias Shyamu who are active members of Azad Gang during January'2023 to January'2024.

Reply also reveals that the petitioner despite being in or out of custody is highly active on social media platform like and where he is seen brandishing illicit fire arms, taking pride in being a Gangster, showing no remorse for the crimes committed by him. The video clips uploaded on social media led to influencing the young and immature minds of the youth of the area concerned inducing them to commit crime. The petitioner also has a large fan following on the social media and therefore, there is a high possibility of a large number of youth deviating from righteous and virtuous path and getting sucked into the quagmire of the dark world of crime. iv) Another instance has been cited by the State in its reply that when the petitioner was released on bail from District Jail, Sunaria, District Rohtak on 22.12.

2023, a huge crowd of persons with criminal antecedents gathered outside to give a Hero's welcome to the petitioner. The video'clip of this welcome was posted on the Instagram page. This caused huge ruckus outside the jail premises compelling the police to deploy additional force to restore public order. Upon verifying the names of the participants of this welcome group, it was found that 20 persons in the group had criminal antecedents.

16. In the backdrop of the aforesaid factual matrix, it is obvious that the nature of crimes registered against the petitioner may not ostensibly appear to be serious since they do not attract a sentence of more than 2'3 years (except offence punishable under Section 307 IPC) but the sense of fear and terror arising therefrom was taken note of by the competent authority to arrive at the satisfaction that if an order of preventive detention is not passed, then the petitioner would commit further offences of similar or graver nature which can be prejudicial to public order.

Thus, this Court is of the considered view that the consequences, the aftermath and the fear and terror resulting from the acts of the petitioner while committing various offences were sufficient for the competent authority to form an opinion in the interest of maintaining public order by passing order of preventive detention with the ultimate object of dissuading petitioner from committing further breach of public order.

17.

Coming to the other ground of procedural lapse in passing of the impugned order of preventive detention i.e. violation of Section 3(5) of NSA, learned counsel for the petitioner contends that it is mandatory upon the State Government to report, to the Central Government together with the grounds on which the order of preventive detention is passed, within seven days of the approval by the State Government of the said order.

17.1. It is urged by petitioners that State Government approved the order of preventive detention on 08.05.2024 whereafter it was forwarded to the Government of India on 16.05.2024 and after receipt of the same by the Government of India on 17.05.2024, the Government of India concurred

with the opinion of the State Government on 20.05.2024. In this factual background, it is contended that forwarding to the Government of India by the State Government was made after seven days and thus the order of preventive detention stands vitiated.

17.2 It is an admitted position that the State Government forwarded the approval of orders of preventive detention with supportive grounds, after a period of seven days. The delay thus caused is attributed to the State Government in forwarding the approval of State Government with supportive material, beyond a period of seven days as prescribed in Section 3(5) of the NSA.

17.3 State Government in its reply has not denied the aforesaid delay but instead has laid stress on the seriousness of certain allegations arising out of the incidents as narrated above, which were likely to adversely affecting public order if the petitioner was not preventively detained. 17.4 Thus, undoubtedly there is delay, but the delay is only of (1) day. Seven days if calculated from 08.05.2024 when the State Government approved order of preventive detention, comes to 15.05.2024. The State Government forwarded the preventive detention order along with its approval and supportive material on 16.05.2024 to the Government of India, the delay thus is only of (1) day.

17.5 No doubt, the Apex Court in -

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supra) has held that the timeline prescribed by NSA is to be strictly adhered to but considering the fact that this Court is upholding the order of preventive detention on'merits, disturbing the same on single day delay in forwarding by State Government to Government of India would be travesty of justice. For ready reference and convenience, the operative paragraph'28 of -

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I 17.6 From the aforesaid verdict of the Apex Court, it is obvious that the Constitutional Courts are entitled to examine that the timeline as provided by NSA has been strictly adhered to or not. 17.7 In the instant case, the timeline provided under Section 3(5) of the NSA has been exceeded only by one day. The State Government has succeeded in satisfying this Court that the past action of the petitioner reflected from various offences registered against him particularly the offences arising from FIR No. 7 of 2023, FIR No. 55 of 2023 and FIR No. 80 of 2024 could have entailed breach of public order compelling the competent authority to take preventive action of invoking Section 3(3) of NSA. Thus, the said ground is decided against the petitioner. 18.

Coming to the ground of non'application of mind on the part of the competent authority in the backdrop of petitioner being in custody when the order of preventive detention was passed is concerned, the same too does not impress this Court. The material on record especially the contents of the reply of the District Magistrate reveals that the offences registered against the petitioner were not ostensibly serious in nature, there was all likelihood for the petitioner to be admitted to bail by the Court of competent jurisdiction. Thus, to pre'empt any such possibility of petitioner enjoying liberty and again becoming a potential danger to the society at large, the competent authority rightly invoked the extraordinary power of preventive detention.

19.

The last ground raised is the absence of live and approximate link between the proposal made by the Superintendent of Police, Rohtak as early as on 05.03.2024 while the impugned order of preventive

detention was passed as late as on 01.05.2024. By so contending, learned counsel for the petitioner submits that if the proposal of Superintendent of Police, Rohtak dated 05.03.204 was not acted upon by the District Magistrate for almost two months, then the emergent situation which arose on account of likely breach of public order, got diffused thereby obviating the need for passing of an order of preventive detention.

19.1. If the proposal of Superintendent of Police, Rohtak is perused, it makes it clear that the petitioner had indulged in certain acts which disturbed public order. There were various instances where the petitioner had breached the terms and conditions of bail to commit subsequent offences. The petitioner on being released on bail on 22.12.2023 collected huge crowd of people welcoming him as Hero and the said video clips were made viral on the social platform, which invited large number of ' ', it was obvious that the youth of the area concerned are being misled in following nefarious activities of the petitioner. The District Magistrate took timely steps to prevent the younger generation from being spoiled any further by passing the impugned order of preventive detention.

The activities of the petitioner had not remained within the confines of personal rivalry between the complainant and the petitioner but had assumed wider ramifications where petitioner being an active member of Azad Gang was committing repeated offences with impunity. The petitioner was eulogised by the younger generation who because of being gullible were unknowingly following the wrong path. It is thus imperative for the District Magistrate to step in and prevent any further serious crime from being committed by the petitioner by passing the impugned order of preventive detention.

20.

Once this Court finds that the impugned order of preventive detention has been passed by applying mind by the District Magistrate for good and sufficient reasons though subjectively but based on objective material, this Court deems it appropriate not to interfere with the order of preventive detention passed by the District Magistrate and also the subsequent orders of confirmation by the higher authorities. 21.

Before concluding this Court may observe that the breach of timeline provided in Section 3(5) of NSA is only marginal and not substantial. More so, justiciability of an order of preventive detention, cannot be assessed dehors various compelling circumstances of glaring breach of public orders faced by District Magistrate, Rohtak. 21.1 In the instant case, various factors which compelled the District Magistrate to pass the impugned order of preventive detention can cumulatively be reiterated as the petitioner being an active member of Azad Gang, repeatedly violating the terms and conditions on which he was granted bail; the petitioner setting a wrong example for the youngsters of following the path of crime, the petitioner having suffered seven convictions in the last 10 years and being subjective to investigation or criminal trials in 9 offences. 22.

In the given facts and circumstances and the attending factual matrix, it would have been a travesty of justice if the District Magistrate had not exercised his extra ordinary powers of preventive detention. Thus, this Court upholds the order of preventive detention and all the subsequent orders passed by the higher authorities.

23.

Accordingly, we find no merit in the petition and the same stands dismissed.

All the pending miscellaneous applications, if any, are also disposed of.

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Whether speaking/reasoned √Yes/No Whether reportable √Yes/No