JUDGMENT U.S. Tripathi, J.
1. The above two writ petitions have separately been filed by each of the petitioners for quashing the detention order dated 11-9-2002 passed by District Magistrate, Agra, respondent No. 1 under Section 3(2) of National Security Act.
2. Each of the petitioners was separately served with the grounds of detention along with order of detention, which stated that on 30-8-2002 at about 8.30 a. m. 10-45 persons of Mohallas Shiv Nagar and Radhey Wali Gali came to police out post Sarai Khawaja and informed Officer Incharge of the said police out post that cow was being slaughtered in the house of petitioner Naeem situate in Mohalla Shiv Nagar Radhey Wali gali. They also told that several persons of Hindu community armed with lathis, dandas had surrounded the said house of Naeem and were saying loudly that it was insult to Hindu religion. On above information, Officer Incharge of police out post informed higher authorities on telephone and he visited the spot along with heavy police force. On reaching the spot he found that several persons had surrounded the house of Naeem and their religious feeling was badly hurt. They were enraged to take revenge. There was atmosphere of, chaos and communal tension was at the peak. Public order was badly disturbed. The Police Officer tried to control the crowd, but anger of the people was being increased. The police force knocked the door and after some time it was opened. In opening the door the Police Officer saw that petitioner Naeem was slaughtering a cow by cutting its neck by a big iron gandasa. Ibrahim was separating head of the cow from its trunk and was further cutting it into pieces. Nijamuddin was cutting front legs with Chhuri and Pappu was cutting back legs of cow by Chhuri. Bhagwan Singh was cutting trunk and Mahadevi was peeling off skin and pulling out intestine and other digestional parts. One Salim, associate of petitioner climbed the roof of house and ran away. At about 9-15 a.m. the petitioners along with other three persons were apprehended on the spot. The Arresting Officer prepared arrest memo and took into possession blood stained cutting instruments, five big chhuris, 9 Sariyas and hooks, one iron balance 7 pieces of weights measurements and the cut pieces of cow. The people of Mohallas Shiv Nagar and neighbouring Mohallas were coming out of their houses and assembled on the road. Assessing the situation additional force of P.S. Jagdishur, Loha Mandi and Nai ki Mandi was called and crowd was controlled. Public order of entire locality was badly disturbed. The people were raising slogans. Their religious feeling was being hurt. The people of nearby Mohallas blocked road and even tempo of life was badly disturbed. A case at crime No. 434 of 2002 under Sections 3/8 U. P. Prevention of Cow Slaughter Act was registered at P.S. Shahganj against the petitioner Salim and his six associates.
3. The petitioners were arrested on 30-8-2002 and were detained in jail in connection with above case. They had also moved bail application before the Sessions Judge. There was real possibility of their being released on bail. In case of release on bail, there was real possibility that petitioners would indulge in similar activities of slaughtering cow, which would adversely affect the maintenance of public order.
4. On the above facts and materials the detaining authority was satisfied that detention of petitioner under National Security Act was essential to prevent them from indulging in similar activities prejudicial to the maintenance of public order.
5. The detaining authority also informed each of the petitioners that he had right to make representation before the detaining authority (District Magistrate) and in case he wanted to make such representation, he could do so through jail authorities where he was detained. In case the representation of the detenu to the detaining authority was received after approval by State Government, it would not be considered. It was further informed that each of the petitioners had right to make representation before the State Government, Advisory Board and Central Government and in case he wanted to do so, he could make representation through jail authorities.
6. Both the writ petitions are connected with each other and common questions of facts and law are involved in both the petitions. Therefore, both the writ petitions are being disposed of by a common order with the consent of the learned counsel for the parties.
7. We have heard Sri Tejpal, learned counsel for the petitioners, learned A.G.A. and learned Standing Counsel for the respondents and have perused the record.
8. Learned counsel for the petitioners raised following points for challenging the detention order :--
(1) The incident in question took place in a close room and two Hindus were also involved in it. It was simply a law and order problem and it had no effect or impact on public order.
(2) The grounds of detention were not explained to the petitioner, as they were illiterate and therefore, they could not make proper representation.
(3) The District Magistrate has not considered the representation of the petitioner.
9. Point No. 1 :-- It was contended by learned counsel for the petitioners that FIR of case crime no. 434 of 2002 as well as grounds of detention and site plan. Annexure-4 revealed that alleged slaughtering of cow was being done inside a close room. There was no mention in the FIR that the cow meat was thrown out side the place of occurrence and two Hindus were also involved in the said incident. Therefore, it was simply a case of law and order and petitioners could be easily dealt with under the provisions of Prevention of Gow Slaughter Act. Therefore, the detaining authority was not justified to pass detention order on solitary incident. Reliance was placed on Apex Court decision in Darpan Kumar Sharma v. State of Tamil Nadu, (2003) 2 SCC 313 : (AIR 2003 SC 971) and a Division Bench case of this Court in Israr Ahmad v. State of U.P., 2003 Cri LJ 176.
10. The distinction between public order and law and order has been made by Apex Court and this Court in several cases.
11. In Smt. Angoori Devi for Ram Ratan v. Union of India, 1989 (26) ACC 1 : (AIR 1989 SC 371) : (1989 Cri LJ 950) (SC) the Apex Court observed as below at page 373; of AIR :--
"The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquillity, it may fall within the orbit of the public order. This is precisely the distinguishing feature between two concepts. Sometimes, as observed by Venkatachaliah, J. in Ayya alias Ayub v. State of U.P., (AIR 1989 SC 364) "What might be an otherwise simple 'law and order' situation might assume the gravity and mischief of a 'public order' problem by reason alone of the manner or circumstances in which or the place at which it is carried out." Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it."
12. In the case of Harpreet Kaur (Mrs) Harvinder Singh Bedi v. State of Maharashtra, 1992 (1) JT (SC) 502 : (1992 Cri LJ 769 : AIR 1992 SC 979) it was held as below at page 984 of AIR :--
"Crime is a revolt against the whole society and an attack on the civilisation of the day. Order is the basic need of any organised civilised society and any attempt to disturb that order affects the society and the community. The distinction between breach of order is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affect 'law and order' and those which disturb 'public order' may not be different but in their potentiality and effect upon even tempo of the society and public tranquillity there is a vast difference. In each case, therefore, the Courts have to see length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of 'public order' or only law and order.
'There is no gainsaying that in the present state of law' a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed. Where the prosecution case fails, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial effect on the society as a whole or not. If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of 'public order' and are not merely prejudicial to the maintenance of 'law and order'."
13. In the case of Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228 : (1970 Cri LJ 1136) the Apex Court held as below :--
"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Individual act can be a ground for detention only if it leads to disturbance of the current of life of the community so as to amount a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed.
Public order embraces more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished which does not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which amounts only to a breach of law and order."
14. Perusal of grounds of detention shows that though the petitioners were slaughtering cow inside the house of petitioner Naeem, but the news of slaughtering cow was spread in the Mohalla and several persons of Mohalla Shiv Nagar and neighbouring Mohallas had assembled on the spot and had surrounded the house. They were so enraged that they were raising slogans and were ready to take revenge. The religious feeling of the persons of Hindu community was badly hurt and therefore the place of slaughtering cow was not very much material, as it was being done in broad day light and was known to all and the people had assembled and had probably seen the slaughtering of cow by the petitioners. The alleged act and the manner in which it was being done by the petitioners had the potentiality of un-leasing communal disharmony and it did create the communal tension and disturbed the public order. It is also clear from the grounds of detention that the local administration had to take steps to deploy additional police force of neighbouring police stations to control the crowd and to reduce the tension prevailing in the locality and to control the situation.
15. The materials on record further show that the news of incident was published in news papers and other people of the district and nearby locality knew about the incident and that was certainly to disturb the public tranquillity of the area and shattered harmony between people of two different communities. It is also clear from the report of Sponsoring Authority and the grounds of detention that the temper of the people was running high. The publication of the news of incident in newspapers certainly had added fuel to fire to enrage the people and to hurt their religious feeling. The incident in question and its effect if considered in the light of materials available on record, it would appear that it certainly pertained to public order and not to simply law and order. Disturbing religious feeling of a community is question of public order as it is not confined to an individual and therefore the incident in question related to public order.
16. The decisions of Apex Court in Darpan Kumar Sharma v. State of Tamil Nadu (supra) relied on by learned counsel for the petitioner and Israr Ahmad v. State of U.P. (supra) are clearly distinguishable from the facts of the present case. In Darpan Kumar's (supra) three alleged incidents to which the Commissioner of Police had referred to were thefts arising under Section 379 IPC and therefore it was held that there was only a solitary incident wherein the detenu was alleged to have robbed in a public place one Kumar. Therefore, there was no material on record to show that reach and potentiality of the single incident of robbery was so great as to disturb even tempo or normal life of the community in the locality or disturb general peace and tranquillity or create a sense of alarm and insecurity in the locality.
17. In the case of Israr Ahamad (supra) the detenu was engaged in business activity and had licence for transportation of meat, and meat belonging to family of cow was recovered from his house, but there was no finding of the analyst that it was cow's meat and no incidence of violence occurred as a result of said recovery. Therefore, it was held that it was simple law and order problem.
18. In the instant case, the facts are totally different. As mentioned above coming to know about slaughtering of cow inside the house of petitioner Naeem, the people of locality and nearby Mohallas assembled, They were enraged. Their temper was high and they were in a mood to take revenge as their religious feeling was badly hurt. The news of incident published in the newspapers also reached the people of Hindu Community and therefore, the incident was to disturb the even tempo or normal life of the community in the locality and to disturb general peace and tranquillity to create communal tension and sense of alarm and insecurity in the locality.
19. As mentioned above, in the case of Israr Ahmad there was no material on record to show that meat recovered from the possession of the petitioner was cow's meat. In the instant case the report of Veterinary surgeon, Annexure-5 to the writ petition, indicated that in carcass of cow, which was about 4 years of age, skin was intact with the body with gravid colour. Teats vagina and other female organs were present with the carcass. A cross incision was clear in the neck that would show that the cow was slaughtered. The blood vessels were devoid of blood the muscles were of light reddish in colour and there were morbilling appearance of tissues. Fatty tissues were of yellowish in colour and firm. After examination the Veterinary Surgen opined that cow was slaughtered about 5 to 7 hours before the time of examination. Thus, there was sufficient material on record to show that the carcass recovered from the spot by police was of recently slaughtered cow. Moreover, Officer-in-Charge of police out post Sarai Khawaja also observed the slaughtering of cow by the petitioner and their other associates. No doubt, two Hindus namely Bhagwan Singh and Smt. Mahadevi also indulged in slaughtering the cow, but it was immaterial. The religious feeling of the persons of the Hindu community, who worship cow would have affected even if some Hindus were also involved in it. In these circumstances, the above decisions are not applicable to the present case.
20. Division Benches of this Court in the case of Tauqeer v. State of U.P., 2002 (44) ACC 1088, Bhaddu alias Jamal v. State of U.P., 2002 (45) ACC 1085 and Nebulal v. District Magistrate, Basti, 2002 (45) ACC, 869 : (2003 Cri LJ 2056 : 2003 All LJ 705) held that slaughtering of cow in public gauge is a public order. As it offended religious faith of a section of society and act is liable to create communal tension between two communities and would disturb public tranquillity of the area and harmony between the people of divergent section of the society would be shattered.
21. In view of our above discussions we are of the view that incident in question related to public order and it was not only a law and order problem. Therefore, the contention of the petitioners learned counsel on above incident was not justified.
22. Point No. 2 -- The next contention of the learned counsel for the petitioners was that petitioners were illiterate and the grounds of detention was not read over and explained to them, therefore, they were deprived of making suitable representation. It was further contended that the petitioners have deposed in their affidavit dated 9-12-2002 that the grounds of detention were not read over and explained to them and when they were brought to District Court in connection with criminal case pending against them, they showed papers to his counsel Rajveer Singh, who also could not understand how to make representation.
23. The counter-affidavit of Sanjai Kumar Singh, Deputy Jailor, District Jail, Agra shows that the detention order dated 11-9-2002 was passed by the District Magistrate, Agra, which was received in jail on 13-9-2002 and the petitioner was served with the same along with other materials and contents were read over and explained to him. The petitioner was further informed regarding his right of representation against the detention order before the authorities concerned. The above counter-affidavit shows that the grounds of detention were read over and explained to the petitioner. Further it was contended by the learned counsel for the petitioners that para 4 of the counter-affidavit of Deputy Jailor was verified on the basis of record. We have also directed the learned A.G.A. to produce record of the case which he did, perusal of the record shows that the grounds of detention order were served on the petitioner along with relevant materials forming the grounds of detention and there is thumb impression of each of the petitioner on each paper. No doubt, para 4 of the counter-affidavit of the Deputy Jailor was verified on the basis of record. But it was a question of record also and therefore, there was proper verification of the above counter-affidavit. In these circumstances, we find no force in the above contention.
24. Point No. 3 -- The detaining authority had informed each of the petitioners that he had right to make representation to detaining authority and in case he wanted so he could do so through jail authorities before the approval of the detention order of the State Government. Learned counsel for the petitioners placed reliance on Division Bench case of this Court in Bhura v. District Magistrate, Aligarh, 2003 (46 ACC 301 (2003 Cri LJ 91 : 2003 All LJ 119). In the said case the detaining authority did not inform the petitioner, of his right to make a representation to detaining authority and therefore it was held that detention order as invalid. In the present case the detaining authority had informed the detenu regarding his right to make representation to him. Therefore, above decision is not applicable to the facts of this case.
25. The detaining authority has disclosed in para 14 of the counter-affidavit that detention order was approved by State Government on 21-9-2002 and the petitioner submitted representation on 27-9-2002, hence in view of the facts and circumstances and after considering the representation, the prayer of the petitioner for revocation could not be accepted by the deponent. This shows that the detaining authority has considered the representation of the petitioner and rejected the same. Therefore, in this case, there was communication regarding right to make representation to the detaining authority and the detaining authority has considered and rejected the representation of the detenu.
26. In view of our above discussions and observations, we find no force in the petitions. Both the writ petitions are, accordingly, dismissed.