Allowed¶83

Smt. Bimla Dewan v. Lieutenant Governor of Delhi

Supreme Court30 Jul 19821982 INSC 60 · [1983] 1 S.C.R. 421982 INSC 60

Case brief

AI extract

What is this about?

Bimla Dewan v. Lieutenant Governor of Delhi, SC (Varadarajan J.; D.A. Desai and Baharul Islam JJ.), WP(Crl.) 126/1982 under Art. 32, judgment 30.7.1982: NSA 1980 s.3(2) detention order of 25.9.1981 quashed in its entirety because grounds included acquitted/discharged criminal cases; pending-case allegations (liquor, revolver, murder conspiracy, threats, councillor's stone-throwing FIR u/ss 147-149, 323, 427 IPC) held devoid of potentiality to disturb public order — 'even tempo of living' test via Arun Ghosh AIR 1970 SC 1228; maintainability objection left unexamined; petition allowed, no costs.

What did the court decide?

Order of detention dated 25.9.1981 declared unsustainable and quashed; no order as to costs ¶83

Smt. Bimla Dewan versus Lieutenant Governor of… — Writ and Judicial Review | Supreme Court (1983)

What the court decided

AI extract

Outcome

Order of detention dated 25.9.1981 declared unsustainable and quashed; no order as to costs

¶83

Issue for consideration

Whether instances relating to criminal cases in which the detenu had been acquitted or discharged could legitimately be taken into consideration as grounds of detention under s. 3(2) of the National Security Act, and, in the absence of a provision like s. 5A COFEPOSA, whether inclusion of such bad grounds required the entire order of detention to be quashed +2 more

¶10

Court's answer

None of the instances relating to criminal cases in which the detenu had been found not guilty and acquitted (and the instance in which he was discharged) could legitimately be taken into consideration for detaining him under s. 3(2) of the National Security Act.

¶41

Ratio / Principle

Since the detaining authority would naturally have been influenced by the bad grounds (acquittals/discharges) as well in concluding that the detenu required to be detained, the entire order of detention was unsustainable and had to be quashed in its entirety, there being no provision like s. 5A COFEPOSA in the National Security Act.

¶50

Key takeaways

Instances Nos. 25 to 27 and 30 to 32 (serving whisky in the restaurant, recovery of a loaded revolver with live cartridges, alleged conspiracy to murder, police report of apprehended danger, and threat of dire consequences) could not in law amount to any interference with the maintenance of public order and could not constitute grounds for detention under the National Security Act, 1980; it is the potentiality of an act to disturb the even tempo of living that makes it prejudicial to public order (drawing on the passage from Arun Ghosh v. State of West Bengal).ratio¶65
Instance No. 29 rested on a mere allegation in the report of a Municipal Councillor without anything more: there was no allegation that the law enforcement authorities had any valid reason to believe the complaint, nor that the building was in a public place or that apprehension was caused to residents regarding public order; hence it lacked any potentiality to affect public tranquillity and could not constitute a ground for detention.ratio

Detailed headnote1 paragraphs

National Security Act, 1980, s. 3(2) — preventive detention — grounds of detention included numerous criminal cases in which the detenu (Shri Dev Raj Dewan) had been acquitted or discharged, besides pending cases resting on bare complaints. None of the acquittal/disharge instances could legitimately be considered; since the detaining authority would naturally have been influenced by them, the entire detention order was unsustainable and was quashed (no s. 5A-type COFEPOSA provision in the NSA to salvage partial validity). Test for prejudice to public order is the act's potentiality to disturb the 'even tempo of living' (passage of Hidayatullah C.J. in Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228, relied on): serving whisky, revolver recovery, conspiracy allegation, apprehended-danger report, threat complaint, and a bare Municipal Councillor's stone-throwing report all lacked that potentiality and were rejected as grounds. Objection that the Article 32 petition was barred by the prior High Court dismissal was not examined as the respondent did not press it. Petition by the detenu's wife allowed; no order as to costs.

.A 42

SMt. lllMLA DEW AN

v .

• LIEUTENANT GOVERNOR OF DELHI

¶5

¶6

July 30, 1982

¶7

[D.A. DESAI, BAl!ARUL ISLAM AND A. VARADARAJAN, JJ .]

¶8

National Security Act, 7980-Section 3(2)-Nature of acts prejudicial to c maintenance of public order-Inclusion of past cases of acquittal in grounds of detention-Validity.

¶9

The husband of the petitioner was detained by an order made under section 3(2) of the Act., The grounds of detention in support of the order rCferred fo a number of criminal cases involving the detenu in many of which he had been acquitted. The allegations in cases pending against the detenu were : D that a Municipal Councillor had complained that when the staff of the Corpora- tioo warited to apprehend some persons for purposes of prosecution, the detenu alOng with 70 others bad Pelted stones etc. resulting in damage to a building; that whisky was being served in his restaurant; that a loadCd revolver along with live cartridges had been rec_overed from his restaurant; that a J~dy had <::omplained that he had conspired for the murder of her husband; that a police officer had reported that two ladies of the family of a deceased person appi:ehended danger E from him; and that ~ lady had complained that he had threatened her with dfre consequences. ll was stated in the grounds that these acts of the detenu showed that he was a desperate and dangerous character who was prone to act in a mannet prejudicial to the maintenance of public order and therefore his detention under the provisions of the Act had been considered essential.

¶10

(1 The detenu had challenged his detention by a writ petition filed under Article 226 but the High Court which had heard the matter several mcnths before the fiing of the present petition under Article 32, had not passe any order thereon. It was alleged in the pe_tition tha.t the detenu was a social worker who was G active in politics, that due to political rivalry be had been involved frotn time to time in a !lunlber of false cases, that he had succeeded in proving his innocence in most of them and that he h?d now been detaiced on account of political ven 4 detta. It was submitted that the alleged activities of the detenu, even if true, did not fall within the concept of threat to public order. Counsel for the petitioner contended that since the National Security Act did· not contain a provision like H section SA of the Conservation of Foreign Exchange and Prevention of Smuggling Act; if one of the grounds was bad, the order of detention had to be ·quashed in its entirety.

¶11

¶12

••

¶13

B!MLADEWAN_v.~T.GOVERNOR(Varadarajan,_J.) 4~ Allowing the petition, HELD :_1:_None of the instances in whichthe.detenu had been found tobe not guilfy and acQuittetl could have legitimately been taken into considera-. tion for detaining the detenu under section.3(2)ofthe Natiorial SecurityAct. Since the detainingauthoritywould naturally have been iDfluenced by these grounds as well for coming to the conclusion that the detenu was requiredtobe detained under the provisionsofthe Act, the entire orderofdetention was unsustainable.[45F-G:46-B) 2.Itisthepotentialityofthe act to disturbth'eeven tempoofliving in a Communityorsociety which makesitPrejudicial to the maintenanceofpublic orderorpublic tranquillity. A mere al1egation in the complaintofthe Municipal Councillor without anything more couldnotconstitute a ground for detention under the Act. There was no allegation in that instance that· thela.wenforce- ment authorities had any valid reason to believeth_atthe allegations made in the complaint were true. There was also no a1legation that the buildingatwhich stones etc. were allegedtohave been thrown was situate·in apublic PJaceand that the alleged actofthe detenu and70other personshadcaused apprehension inthe mindsofthe residentsofthe localityinregardtomaintenanceofPublic order. This instance could .not constitute a ground for detention Under the Act as.it had no potentialitytofnterfere withoraffecf public orderorpublic tran- quillity. The instancesmentioD.edinothercases pending against the detcnu could nOtin law amounttoany interference with the maintenanceofpublicorderand Cotildnot constitute groundsofdetention under the Act.[47G; 46E-F; 47E·G;47C] _Arun Ghosh_v.StateofWest Bengal,-AIR1970S.C. 1228, referred to. • ORIGINALJURISDICTION: Writ Petition (Criminal) No.126of 1982. (Under Article32ofthe Constitutionoflndia) _Ram Jethmalani, Miss Rani Jethmalani, Harjinder Singh_an~ _KK.Sood_for the Petitioner. _O.P. Rana_and_R.N. Poddar_for the Respondent. ' The Judgmentofthe Courtwasdeliveredby	.' , · -
VARADARAIAN,J. On 31st March, 1982, after hearing learned counsel for both the parties,wequashed 'the orderofdetention in this case, observing that our reasons wili"follow. Weproceed to givethereasc>ns. This Writ Petition under Article32ofthe ConstitutionofIndia isbySmt. BimlaDewn,wifeofthe detenu Shri Dev RajDean,

B!MLADEWAN_v.~T.GOVERNOR(Varadarajan,_J.)
4~
Allowing the petition,
HELD :_1:_None of the instances in whichthe.detenu had been found
tobe not guilfy and acQuittetl could have legitimately been taken into considera-.
tion for detaining the detenu under section.3(2)ofthe Natiorial SecurityAct.
Since the detainingauthoritywould naturally have been iDfluenced by these
grounds as well for coming to the conclusion that the detenu was requiredtobe
detained under the provisionsofthe Act, the entire orderofdetention was
unsustainable.[45F-G:46-B)
2.Itisthepotentialityofthe act to disturbth'eeven tempoofliving in a
Communityorsociety which makesitPrejudicial to the maintenanceofpublic
orderorpublic tranquillity. A mere al1egation in the complaintofthe Municipal
Councillor without anything more couldnotconstitute a ground for detention
under the Act. There was no allegation in that instance that· thela.wenforce-
ment authorities had any valid reason to believeth_atthe allegations made in the
complaint were true. There was also no a1legation that the buildingatwhich
stones etc. were allegedtohave been thrown was situate·in apublic PJaceand
that the alleged actofthe detenu and70other personshadcaused apprehension
inthe mindsofthe residentsofthe localityinregardtomaintenanceofPublic
order. This instance could .not constitute a ground for detention Under the Act
as.it had no potentialitytofnterfere withoraffecf public orderorpublic tran-
quillity. The instancesmentioD.edinothercases pending against the detcnu could
nOtin law amounttoany interference with the maintenanceofpublicorderand
Cotildnot constitute groundsofdetention under the Act.[47G; 46E-F; 47E·G;47C]
_Arun Ghosh_v.StateofWest Bengal,-AIR1970S.C. 1228, referred to.
•
ORIGINALJURISDICTION: Writ Petition (Criminal) No.126of
1982.
(Under Article32ofthe Constitutionoflndia)
_Ram Jethmalani, Miss Rani Jethmalani, Harjinder Singh_an~
_KK.Sood_for the Petitioner.
_O.P. Rana_and_R.N. Poddar_for the Respondent.
'
The Judgmentofthe Courtwasdeliveredby

.'

, ·

-

VARADARAIAN,J. On 31st March, 1982, after hearing learned
counsel for both the parties,wequashed 'the orderofdetention in
this case, observing that our reasons wili"follow.
Weproceed to
givethereasc>ns.
This Writ Petition under Article32ofthe ConstitutionofIndia
isbySmt. BimlaDewn,wifeofthe detenu Shri Dev RajDean,

[1983) 1 s.C.R.

suPREMa COtJllT REPollts

¶23

A . resident of House No. 53, Gadodia Road, 146/2 Than Singh Nagar, Anand Parbat, Delhi, for quashing ·the order of _detention dated 25.9.1981 issued by the Commissioner of Police, Delhi under s. 3 (2) of the National Security Act, 1980. <The detenu was detained from 26.9.1981. The order of detention is said to have been approved by the respondent, Lieutenant, Governor, Delhi, by order B dated· 1.10.1981 under sec. 3 (4) of the Act. The detenu. had been detained . in the Central ' Jail, Tihar, New Delhi.

¶24

'<'

¶25

¶26

It is alleged in the petition that the detenu is a soclal worker, who is in active politics, and had· contested the· Municipal Elections of tbe Municipal Corporation of Delhi from the Anand Parbat c constituency in 1977 and was defeated )Jy a Congress-I candidate by a narrow margin of .360 votes, and due to political rivalry he has been il)volved from time to time in a number of false cases, in most of which he has succeeded in proving his innocence and was acquitted. It is further alleged .in the petitio_n that out of sheer pol-itical D. vendetta the detenu .has been detained maliciously with full knowledge that the alleged activities of the deten_u, even if true, do not fall within the concept of threat to public order. The· arrest or prosecution of the detenu, cannot by itself, be a ground of detention. It is only .the material on the basiS of which the detenu is arrested, prosecut.cd or convicted that can constitute a ground of deiention. E But no su.ch material, including the blue ·film· meptioned in item 28 of paragraph 2 of fbe grounds of detention has been supplied fo the detenuand it has, therefore, become impossible for him to make any effective representation against his detention. No opportunity was given to the detenu to make a reptesentation to the detaining authority. -The detenu challenged his detention by filing Criminal F Writ Petition· No. 126 of 1981 in the High Conrt of Delhi on 13.10.1981. But since no order had been passed in that ptition though arguments were head in November 1981, this Writ petition has been filed in the Supreme Court on 3.3.1982.

' '

It is alleged in the grounds of detention in wh"ich 32 instances G have been given that those acts of the detenu show that he is a desperate and dangerous character who acts in a manner which is prejudicial to maintenance of public order, that his activities are 'hazardous to the community a~d he has not stopj)ed his violent, ff anti-social and criminal activities in spite of his prosecution in a number of cases, and that in these circumstances his detention under

¶31

BIMLA DEVI v. u. GOVERNOR (Varadarajan, J:) 45

¶32

¶33

s. 3 .(2) of the National security Act, 1980 has been considered essential in order to stop his criminal activities.

¶34

¶35

In the counter-affidavit it is stated at the outsei that the High Court of Delhi has by an order dated 4.3.1982 dismissed Criminal • Writ Petition No. 126 · of 1981· which was filed for quashing _the very same order ofdetention dated 25.9.f981 and that the present Writ Petition is consequent])' not ·maintainable and only an ,appeal to this Court.against the judgment of the High Cort couidbe filed: It is contended tha! there is nothing on record , to show that ihe tletenu is a scial worker. The counter-affidaxit further proceeds to state that the. criminal history of ·the detenu as'disclosed in the .·grounds of deten.tiqn goes to show that he has been a serious threat to aintenance of public order and that whenever any police officer or any other agency tried to _interfere in the matter he had assaulted, obstructed or attempted to murder him and that detention m1der the Act is . the only way to prevent -him from indu_Iging in activities which are prejudicial to maintenance of public order. It is stated that copies' of all first information reports mentioned in the grounds . of detention were supplied to the detenu and that the detaining authority bas specifically mentioned in the grounds of detention that 'tbe detenu has a right of representation to the Lieutenant Goveror and the Advis~ry Board. The respondent has prayed.for dismissal of the.Writ Petition for the aforesaid reasons.

i ti

. E

Instances Nos. I to 22, 24 and .28 relate to criminal cases, in all of which. the detenu bas been . found to be not guilty and acquit- · ted. 'instance No. 23 relates to a case in which the detenu bas been discharged. Instance No. 28 relates to' a blue film· of naked picture for public circulation/exhibition alleged to have been recovered on 23/24.6. I 979 by the Police from the Kamal Restaurant of the detenu. Since all these instances relate to· cases in· which the detenu 'has been. found to. be not guilty and acquitted none of.these instances can legitimately be taken into consideration for detaining the detenu · under s. 3 (2) of the Nalional Security Act. Mr: Ram Jethmalani, Senior Advocate ;.ho appeared. for the petitioner in.this.case submitted that in the National Security Act ther" is no provision like s. 5A in . COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Act) and, therefore, If' pne of the grounds iS bad the order of detention has to be quashed in its entirety and that as the detainin!J aut~ority bas based the order of detention on

(1983) I s.c.R.

SUPREME COUR7 REPORTS

¶48

¶49

¶50

grounds Nos. I to 24 and 28 also, the order of detention is unsustainable. The learned counsel for the resondent did not submit anything to controvert that submission of Mr. Ram Jethmalani. We are of the opinion that since the detaining authority would naturally have been influenced by these grounds as well for coming to the concl.usion that the detenu requires to be detained under the pro vi- sions of the Act, the entire order of detention i unsustainable.

¶51

•

¶52

Before considering the other instances, it is necessary to note what Hidayatull~h, C.J. IJ!ls observed in Arun Ghosh v. State of West Bengal.(') Jt is this :

"Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. ·He may annoy them and also the management b~t he does riot cause disturbance of public order. He. may even have · a fracas with the friends of one of the girls but even then it would . be a case of breach of law and order only. Take . -another c;ase of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being way-laid and assaulted. The activity of this man in its essential quality is not different from the act of the other man hut in its potentiality and in its effect upon the public tranquillity there is a vast difference. The act of ihe man who molests the girls in lonely places causes a disturbance in the even tempo of living which i; the first requirement of public order. He disturbs the society and the c9mmunity. His act makes all the women apprehensive of their honour and he can be said 'to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies."

¶58

)

¶59

Instances Nos. 25 to 27 and .29 to 32 relate to criminal cases which are said to have been pending against the detenu on the date of order of detention. Wo shall ~rst consider instances Nos. 25 to G 27 and 30 to 32. Instances 25 and 27 relate to cases in which the detenu is alleged to have been arrested for the. reason that whisky was being served in a restaurant belonging to him. Instance No. 26 relates to the alleged recovery of a loaded English revolver and 5' Jive cartridges from the detenu's Kamal Restaurant on 24.6.1979. H Instance No. 30 relates to a case in which the detenu is said to have

¶60

(I) Al R. 1970 S.C. 12is.

•

BIMLA DEVI v. LT. GOVERNOR (Varadarajan, J.)

¶65

been arrested on the complaint of a lady that the detenu had conspired for the murder of her husband, who ;,,as murdered while he was returning after seeing ·a cinema on 16.8.1981. Instance No. ·31 relates to a case arising out of a report sent by a Sub-Inspector Of Police, Anand· Parbat against th.e detenu 'alleging that Smt. Praveen Kapoor and Smt. Shielawati Kapoor, members of thtJamily of deceased Vinod Kapoor apprehended danger to their lives at the hands of the detenu. Instance No. 32 relates to the arrest o.f the detenu on tl)e complaint of Smt. Sheilawati Kapoor that the detenu threatened her with dire consequences when she went to Tees Hazari Courts to see her son Ashok on 10.9.1981. We are clearly of the opinion that these instances cannot in law amount to any interference with· the maintenance of public order and could not constitute grounds for detention under the National Security Act 1980.

¶66

We now come to instance No. 29 which relates to the arrest of the detenu on the complaint of one Prem Kumar Narang Munici:pal Councillor that when the Corporation Staff wanted some persons for prosecution, one Ram Singh came to rescue them and that later on the detenu came alongwith 70 other p~;sons and started' throwing stones etc. result)ng in ~amage to a building. On that complaint a· First lnformaiion Report dated 28.12.1979 under ss. 147, 148, 149, 323 and 427 I.P.C. is said to have been submitted by the Police. A mere allegation in ihe report of the Municipal Councillor, witho.ut . anything more, cannot constitute a ground for detentfon under the . National Security Act. There is no allegation in that instance tha.t law enforcement authorities had any valid reason to believe the . allegations made in· the complaint to be true even "l'hile the case registered on that complaint was pending trial and posted to 29.10.1981. There is no allegation in that instance that the building at which stones etc. are alleged to have been thrown is situate in a public place and that the alleged act of the detenu and 70 other ·persons has caused apprehension in the minds of the residents of the locality in regard to maintenance of public order. We are, tl1ere: fore, unable to bold that this instance has any potentiality to interfere with and bas effect' upon the public tranquillity and order and · that it cannot constitute a ground for detention under the ·National ·Security Act 1980.

. .

in . the . It .Writ Petition itself ~ ilnecessary to mention in passing that Criminal the Writ fact Petition No. 126 that it is admitted . of 1981 hall >een filed in the High .court of Oelbi on l~.10.19$1

· H

•

•

[1983] l S.C.R.

SUPREME COURT REPORTS

¶81

A for quashing the very same order of detention d~ted 25.9) 981 and that arguments in that Petition bad been beard in November 1981. itself. In the counter-affidavit it is stated that the High Court of Delhi has by an order dated 4.3.1981 dismissed that Writ Petition and, therefore, only an appeal against that order would lie to this Courtjand this Writ _Petition is not maintainable. Though the B learned counsel for the respondent invit.ed our attention to certain portions of that order dated 4.3. 1982 of a Division Bench of the Delhi High.Court dismissing Writ Petition No. 126 of 1981 it was not contended by him that only an appeal against 'that order would lie to this Court and that this Writ Petition is noi maintainable.. It is, therefore, unnecessary for us to go in detail into this ground of c objection taken in the counter-affidavit.

¶82

¶83

F9r the reasons mentioned above we are of the opinion that the order of deiention dated 25.9;1981 is unsustainable and liable to be quashed. There will be no order as to costs.

¶84

¶85

. . H.L.C. Petition allowed .

¶86

<br>

¶87

·.

¶88

~l '.

Issues for consideration

3 issues framed by the court

AI extract

1.
Whether instances relating to criminal cases in which the detenu had been acquitted or discharged could legitimately be taken into consideration as grounds of detention under s. 3(2) of the National Security Act, and, in the absence of a provision like s. 5A COFEPOSA, whether inclusion of such bad grounds required the entire order of detention to be quashed¶10
The court held
None of the instances relating to criminal cases in which the detenu had been found not guilty and acquitted (and the instance in which he was discharged) could legitimately be taken into consideration for detaining him under s. 3(2) of the National Security Act.ratio¶41
2.
Whether the alleged activities of the detenu in the pending cases (instances Nos. 25 to 27 and 29 to 32), even if true, had the potentiality of disturbing public order so as to constitute valid grounds of detention under the National Security Act, 1980¶26
The court held
Instances Nos. 25 to 27 and 30 to 32 (serving whisky in the restaurant, recovery of a loaded revolver with live cartridges, alleged conspiracy to murder, police report of apprehended danger, and threat of dire consequences) could not in law amount to any interference with the maintenance of public order and could not constitute grounds for detention under the National Security Act, 1980; it is the potentiality of an act to disturb the even tempo of living that makes it prejudicial to public order (drawing on the passage from Arun Ghosh v. State of West Bengal).ratio¶65
3.
Whether the writ petition under Article 32 was maintainable in view of the dismissal of the parallel writ petition in the High Court of Delhimedium confidence¶81
The court held
The Court found it unnecessary to examine in detail the objection in the counter-affidavit that the Article 32 petition was not maintainable because only an appeal against the High Court's order would lie, since the respondent's counsel did not press that contention.obiter¶81

Smt. Bimla Dewan v. Lieutenant Governor of Delhi

Case brief

What is this about?

What did the court decide?

Smt. Bimla Dewan v. Lieutenant Governor of Delhi

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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