Cutting beef at home cannot be ground for detention under NSA: Allahabad HC

Cutting Beef Image Courtesy:livelaw.in

The Allahabad High Court quashed a detention order passed under the National Security Act (NSA) against persons caught cutting beef in the confines of their home for the purpose of selling. The Division bench of Justices Saroj Yadav and Ramesh Sinha observed that an act of slaughtering a cow in the secrecy of one’s own house in the wee hours, probably because of poverty or lack of employment or hunger, would perhaps only involve a law and order issue, and not one that involves the infractions of public order.

The bench was dealing with three habeas corpus petitions filed by the kin of the detainees, Parvez, Irfan and Rahamtullah who were detained by an order passed by District Magistrate, Sitapur on August 14, 2020 under Section 3 (2) of the NSA. This order was confirmed by the Advisory Board in October 2020. The petitioners also sought the quashing of an order passed in February by the state government, extending their detention period for 9 months from the date of detention.

The background of the case is that a few police officials on their daily patrol were informed that two butchers after slaughtering a cow elsewhere, have brought beef in the house of Rahmatullah in village Emalia and they were cutting the beef in small pieces for selling. The police thus raided the home and found them cutting the lump of beef. When the recovered beef was eventually sent to a Veterinary doctor, it was found that the meat was of a cow. The three detainees were booked under U.P. Prevention of Cow Slaughter Act; thereafter another FIR under UP Gangsters and Anti-Social Activities (Prevention) Act was also filed.

While the detenues/petitioners were in jail in connection with the aforesaid criminal cases, the Station House Officer, Police Station Talgaon, District Sitapur had submitted a report dated on August 1, 2020 that due to cow slaughtering, a large number of people from the Hindu community had gathered, due to which the public order was badly disturbed. The report also stated that a sense of insecurity and terror had spread in the whole area due to this offence. It further stated that the fallout of the incident had culminated in the chaos, disturbing congenial atmosphere, flaring horrific feeling, affecting the maintenance of public order.

The bail applications of the detainees were rejected. Based on the SHO’s report, the matter was referred to the DM, Sitapur who then invoked NSA and passed the detention order.

Arguments

The counsel for the petitioners argued that there was no need to direct their preventive detention merely on the basis of a solitary incident of cutting beef in pieces to sell it, which was carried out in the secrecy of their home and that when the said beef was brought by co-accused, Rafi and Karim. He further argued that it could not be inferred that the detenues/petitioners on being released from jail would repeat the activities that might be prejudicial to maintenance of public order. He contended that the solitary incident of cutting beef in pieces could not have disturbed public order as there was no material to show that any untoward incident had taken place in the village.

The Additional Government Advocate urged that only the subjective satisfaction of the detaining authority that the action of the detenues/petitioners could have disturbed even the tempo of life was sufficient for clamping an order of preventive detention and the same could not be subject to judicial review as the said order was necessary for the protection of society. He submitted that the cutting of beef to sell it offends religious faith and feelings of a section of the society, which certainly disturbs public tranquility, peace and communal harmony, and hence it is a clear cut case of breach of public order which affected the even tempo of society.

The court’s findings

The court noted that the detainees had no criminal history and there was no material to indicate that they would again indulge in the activity of cutting cow beef to sell. The court cited Ramveer Jatav Vs. State of U.P. and others : (1986) 4 SCC 762 where the apex court held that it is possible for the detaining authority to assume that the accused could repeat the action, but for reaching that conclusion there must be some material and circumstances on record, to justify such a conclusion. In this case, Ramveer Jatav was accused for broad daylight murder and it was observed by the Apex Court that it was difficult to infer from a solitary incident that such an act would disturb public order or that if the petitioner was not detained, he would be likely to indulge in such an activity in future.

Taking cue from the Ramveer Jatav case, the Allahabad High Court observed that this case of cutting cow beef in pieces in the secrecy of his own house, can at best be described as a matter affecting law and order and not public order. The court also observed that there was no material for reaching the conclusion that the petitioners/detenues would repeat the activity in future.

The court stated that in detention cases, the subjective satisfaction is open to limited judicial scrutiny and there was no embargo, as stated by the state’s counsel, on powers of the Court to look at the sufficiency of the ground for detention.

The court pointed out that the petitioners’ counsel has not disputed itself but his contention is that the incident took place in the secrecy of the home of the petitioners, and it was not an act, which was intended to cause a conflagration or an act of confrontation where number of cows may have been slaughtered or assault made on persons, who protested the slaughtering.

The court stated that under Article 226 of the Constitution, it has limitations in considering the sufficiency of the evidence for ascertaining the factual involvement of a detainee, but it can certainly see whether the activities complained of have resulted in an infringement of public order or only involve a law and order issue.

Pointing to the facts and circumstances, the court said, “We also do not know whether the cause was poverty, lack of employment or hunger, which may have compelled the petitioners and the other co-accused to take such a step.” The court stated that it was a matter “of quality and degree whether the act has been done in public gaze and in an aggressive manner with scant regard to the sentiments of the other community or whether it has been done in a concealed manner, which can resolve the question whether the case is one involving public order, or is only a matter affecting law and order.”

The court observed that the arrival of the police in the early hours of the morning pacified the crowd and they were also disbursed and the accused were caught.

“Thus, an act of slaughtering a cow in the secrecy of one’s own house in the wee hours probably because of poverty or lack of employment or hunger, would perhaps only involve a law and order issue and could not be said to stand on the same footing as a situation where a number of cattle have been slaughtered outside in public view and the public transport of their flesh or an incident where aggressive attack is made by the slaughterers against the complaining public, which may involve infractions of public order,” the court held.

The court opined that “there was no material to indicate that the petitioners/detenues had any criminal history and it was only a surmise based on no material or evidence that the petitioners/detenues might have been earlier involved in such an incident and he may show such a repetitive tendency, in case they will be released on bail.”

The court thus, quashed the detention order and the subsequent order extending the detention and directed that the detainees be forthwith released.

Law & order vs. public order

On August 2 the Supreme Court quashed a detention order passed against a man booked for duping people for money promising high returns, while observing that mere contravention of law cannot be said to affect ‘public order’, unless it affects the community or the public at large.

The court further observed, “There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

“Considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large,” held the court.

The Allahabad high court order may be read here: