JUDGMENT
A.S. Tripathi, J.
1. The petitioner has been detained under Section 3(3) of National Security Act 1980 (Act No. 65 of 1980)(hereinafter referred to as the Act) by an order passed by the District Magistrate, ‘Gorakhpur on 24-3-1992.
2. Eleven grounds have been given in the detention order, as under :
(1) It has been alleged that on 7-9-1982 at about 11 a.m. the petitioner had beaten one Kapildeo Singh, Clerk in Co-operative Department, for which a case under Section 332, I.P.C. was registered at Police Station Bansgaon.
(2) On 24-4-1983 at about 8 p.m. the petitioner was arrested having a gun of different person and a case under Section 25/27 Arms Act was registered.
(3) On 25-5-1984 between 11 and 12 in the day the petitioner entered the shop of Sanjay Singh in village Dondhar firing his gun and looted Rs. 500/- along with sweets, for which a case under Sections 147, 148, 149, 427 and 323, I.P.C. was registered.
(4) On 19-2-1985 at about 5 p.m. Sri Sharda Prasad Misra, Sub Inspector of Police Station Bansgaon was on official duty. The petitioner obstruced in his official work for which a case under Section 185, 187 and 353, I.P.C. was registered.
(5) On 31-5-1988 at about 9 a.m. one Vinod Kumar was working on his fair price shop in Bansgaon. The petitioner demanded 50 Kilograms of sugar from the shop. On refusal the petitioner had beaten Brij Kishore Singh, cousin of Vinod Kumar and looted Rs. 2500/-for which a case under Sections 392 and 393, I.P.C. was registered and after investigation chargesheet under Sections 452, 323, and 307, I.P.C. was submitted.
(6) On 8-1-1990 at about 9 p.m. it is alleged that the petitioner alongwith Dwarika Singh, Lalji Yadav and Sahab Singh had committed murder of Nand Lal Prasad, Collection Amin, at his residence and a case under Sections 147, 148, 149 and 302, I.P.C. was registered and after investigation chargesheet was submitted which is pending trial before the court.
(7) On 26-1-1990 on the report of Nageshwar Yadav, S.H.O. of police station Bansgaqn a case under Section 3(1) of Gangsters Act was registered against the petitioner which is: also pending trial before the Court.
(8) On 9-3-1990 when the petitioner was in custody in connection with a case under Gangster Act and was handcouffed and produced in court at about 2.30 p.m. in the court premises of Gorakhpur he called Sub Inspector, Sri Suryadeo Singh, near him and even being handcouffed assaulted the said Sub-Inspector for, which a case under Sections 353, 504 and 506, I.P.C. was registered.
(9) On 31-10-1990 at about 7.30 p.m. while Sub Inspector, Sri Nageshwar Yadav went to arrest the petitioner he had obstructed the process of his arrest and fired from MS gun, for which a case under Sections 147, 148, 149, 307, 353, 332 and 323, I.P.C. was registered.
(10) On 1-11-1990 the petitioner was provided with two arm guards and the petitioner forced the two armguards who were police constables, to sign the blank papers at a lonely place for which a case under Sections 384, and 506, I.P.C. was registered. ‘ i
(11) On 23-3-1992 when the petitioner was under civil prison at Tehsil Bansgaon at about 11.30 a.m. assaulted Tahsildar of Bansgaon and pressed his neck with intention to kill him, for which a case under Sections 307, 332, 504, 506 and 353, I.P.C. was registered.
3. On these grounds the District Magistrate, Gorakhpur was satisfied that these activities of the petitioner amounted to breach of public order and accordingly the petitioner was detained under the provisions of National Security Act.
4. The petitioner has challenged his detention on various grounds. The main grounds were that most of the grounds of detention are non-existent and stale, that it was not a breach of public order rather it could be only a case of law and order, that the order of detention was not served within ten days of the order passed; that the State Government did not send the report to the Central Government within seven days and the petitioner was not produced before the Advisory Board within three weeks.
5. The allegations were controverted by counter affidavits filed by the District Magistrate, Gorakhpur, Deputy Jailor, District Jail Agra, where the petitioner has been detained and on behalf of the State Government.
6. An other counter affidavit was also filed by Deputy Jailor of Gorakhpur. The allegations made in the petition were controverted in the counter affidavits that the acts of the petitioner had disturbed the public order in the locality, that the grounds of detention were not stale, that representation of the petitioner was sent to the State Government and Central Government promptly and the petitioner was produced before the Advisory Board on 17-4-1992 and the report of Advisory Board was accepted by the Government on 28-4-1992 and order of detention was contirmed by the State Government on 5-5-1992 and also the order of confirmation was served on the petitioner on 18-5-1992. It was averred in the counter affidavit that there was no delay at any stage and the matter has been promptly considered and the representation was rejected and after due consideration within statutory period provided.
7. We have heard the learned counsel for the parties at great length and perused the record carefully.
8. The main point argued on behalf of the petitioner was that the grounds mentioned for detention are stale and not connected with each other. The grounds for detention could be a case of law and order and had no concern with the disturbance of public order.
9. We now proceed to examine the grounds of detention as mentioned in the impugned order of detention.
10. Ground No. 1 was that on 7-9-1981 the petitioner had beaten one Kapildeo Singh, a Clerk of Co-operative Department. That case was tried and the petitioner was acquitted on 7-9-1982.
Second ground of recovery of the gun from possession of the petitioner also relates to the year 1983. It is a stale ground. Moreover, the gun admittedly belonged to the uncle of the petitioner, namely, Sri Shyam Singh, who had filed an affidavit to that effect in court. This fact is not controverted.
Ground No. 3 was that on 25-5-1984 the petitioner had looted the shop of Sanjay Singh. That case ended in acquittal after trial.
Ground No. 4 relates to the year 1985 and alleged to have obstructed the official work of a Sub-Inspector. This too could not be disturbing the public order and is stale ground for detention under the National Security Act.
Ground No. 5 in respect of the fact that on 31-5-1988 the petitioner had looted the fair-price shop is again a stale ground and the trial ended in acquittal.
Ground No. 6 was that the murder of one Collection Amin, Sri Nand Lal Prasad, had taken place and the case was pending trial. In this case admittedly as it has come in the affidavit and counter affidavits the petitioner was not named. His name came to light after five days in the statement of witnesses under Section 161, Cr.P.C. Trial of the case is still going on. This case does not relate to the disturbance of public order or disturbance of even tempo of the community. It was an individual act against individual.
Ground No. 7 was that a report under U.P. Gangestor Act was made which is still pending trial. This ground again unless established that the petitioner was a gangster after trial could not be the basis for detention under the National Security Act.
Ground No. 8 that the petitioner while being handcouffed had assaulted a Sub Inspector in court compound at Gorakhpur is again an individual act and could not disturb even tempo of the community.
Ground No. 9 is again in respect of the fact that the petitioner is said to have obstructed official work of Sub Inspector of Police and the trial is pending. This again could not be a case for disturbing the even tempo of the community.
Ground No. 10 is dated 1-11-1990 when it is alleged that the petitioner had got some blank paper signed by his own body-guards. The case is again pending trial.
Ground No. 11 is for the assault of Tahsildar, Bansgaon when the petitioner was called upon to pay land revenue. In this incident it is alleged that the petitioner had assaulted a Tahsildar by pressing his neck and this case is also pending trial.
11. All those cases before the year 1990 could not be the immediate cause for detention under that National Security Act. Only last case of 23-3-1992 when the petitioner had assaulted Tahsildar, Bansgaon resulted in petitioner’s detention under the provisions of National Security Act on 24-3-1992 itself.
12. The learned counsel for the petitioner has placed reliance on the case of Ajay Dixit v. State of U.P. reported in AIR 1985 SC 18 : (1985 Cri LJ 487). It was held in that case that at page 492 (of Cri LJ) :
“It is necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant, or not for considering whether the detention of the detenu is necessary for maintenance of public order. Thus where one of the grounds mentioned in the order of detention was old arid stale and other grounds are also unfortunate and conduct of the alleged detenu was reprehensible and moreover in view of the allegations mentioned in the grounds, the grounds were not of such nature as to lead to any apprehension that the even tempo of the community would be endangered, the petitioner’s detention under the provisions of Section 3(2) of the Act was not justified.”
12.1 In the case of Ajay Dixit six grounds were taken for detention. They were all against individuals. Also there was a case of recovery of unlicensed arm and firing on a police party. Hon’ble Supreme Court in that case held that these grounds were against individual and were not connected so that even tempo of the community was endangered.
13. The facts of the present case are similar to the case of Ajai Dixit, referred, above and the law laid down by Hon’ble Supreme Court in that case fully applies.
14. Some of the cases which are mentioned in the grounds of detention ended in acquittal. Ground No. 5 which has been made the basis for detention was a case under Sections 452, 323 and 307, I.P.C. Originally the allegations were that a fair price shop in the town of Bansgaon was raided and an attempt on the life of Brij Kishore Singh was made by the petitioner. This case also ended in acquittal as asserted by the petitioner in paragraph No. 19 of the petition. The fact of acquittal was not controverted in the counter affidavits. In the grounds of detention this fact was suppressed and it was simply mentioned that the case was pending trial. This was a material suppression of fact which could influence the mind of the detaining authority and on that ground the detention is vitiated as the material fact was suppressed.
15. The question as to whether there has been a breach of public order is a question of fact and depends upon the facts and circumstances of each case. The test is that the action of the detenu had created such a situation where by common man of the society reasonably feels that the same may happen with him at any time. If that is the effect of the act done by the detenu the same is certainly said to be disturbing the even tempo of the community and is breach of public order. Applying this test we find that none of the grounds mentioned in; the order of detention is of such nature which could make ibhei members of society in general to apprehend similar fate at the hands of the petitioner. As such, in the circumstances of this case it can safely be derived that none of the acts attributed to the petitioner had so disturbed the even tempo of the community.
16. The learned counsel for the petitioner also placed reliance on the case of Abhishek Malviya alias Munnu v. State of U.P. reported in 1990 ACC 187: (1990 Cri LJ 747). Similar view was expressed in that case also.
17. There are number of decisions on this point. The crux of the matter is as to whether the facts of the case constitute the disturbance of public order. We are of the opinion that to arrive at a result the facts of each case have to be examined and only then it could be concluded as to whether it was a breach of public order or it was a case of only law and order. In order to draw inference from the facts of each case as to whether it had disturbed the even tempo of community, cumulative effect of the acts have to be judged. The points depend upon the fact as to whether the alleged act committed by the detenu has its extent and reach to disturb the society. So long it is restricted to a particular individual or a group of individuals it simply breaches the law and order but if the effect and reach is so deep to affect the community at large, only then it becomes a case of breach of public order and when life of the community is disturbed by the acts of the detenu then it could be said that it had disturbed the public order. There is a fine distinction between the disturbance of public order and the case of law and order and the court has to examine the alleged act in that perspective. Unless it is found that the acts committed by the detenu had created a panic and disturbed the even tempo of the community at large, only then it could be justified to detain the petitioner under the provisions of the Act. But when individual acts may be quite in number are only against individuals and public at large is not disturbed the same could not be a case of breach of public order.
18. In the present case most of the grounds mentioned in the order of detention are individual acts of the petitioner against individuals and in the circumstances could not be said to have disturbed the public order. Some of the grounds mentioned in the detention order are old and stale relating to the incidents of years back. In the recent incidents which have been mentioned in the grounds as discussed above are the individual acts of the detenu against individuals not connected with each other. In our opinion, therefore, in the circumstances of the case, it is not a case of breach of public order; The incidents quoted above relate only to the breach of law and order. The petitioner is detained since 24-3-1992. Continued detention of the petitioner under the provisions of National Security Act is not justified. Other grounds taken by the petitioner need not be considered, as they were not pressed.
19. We, therefore, allow the petition and direct that the petitioner be released forthwith if not wanted in any other case.