Ashok Kumar Vs. Delhi Administration
& Ors [1982] INSC 50 (5 May 1982)
SEN, A.P. (J) SEN, A.P. (J) VENKATARAMIAH,
E.S. (J) MISRA, R.B. (J)
CITATION: 1982 AIR 1143 1982 SCR (3) 707 1982
SCC (2) 403 1982 SCALE (1)459
CITATOR INFO :
F 1982 SC1315 (36) RF 1987 SC 998 (1) R 1987
SC2332 (19) RF 1988 SC 208 (11) R 1989 SC 764 (14) F 1989 SC1703 (19) APL 1990
SC 231 (9) F 1990 SC 496 (8) R 1990 SC1086 (6,14) RF 1992 SC 687 (8) D 1992 SC
979 (11,16) RF 1992 SC1900 (8)
ACT:
National Security Act 1980, Ss. 3 and 8 and
Constitution of India 1950 Article 22(5).
Detention Order-Period of
detention-Specification of- Whether mandatory.
Grounds of detention-Furnishing of-Delay of
two days- Detention order-Whether rendered invalid.
"Public Order"-"Law and
order"-Distinction between.
Words & Phrases-"As soon as may
be"-"As soon as practicable"-Meaning of-National Security Act
1980; S. 8 and Constitution of India 1950, Article 22(5).
HEADNOTE:
The petitioner who was held at the Central
Jail in connection with some of the offences committed by him, was served with
an order of detention passed by the Commissioner of Police, under sub-section
(2) of section 3 of the National Security Act 1980, stating that his detention
was necessary with a view to preventing him from "acting in any manner
prejudicial to the maintenance of public order." Two days later he was
served with the grounds of detention and copies of documents and statements
relied upon in the grounds of detention. The Commissioner made a report to the
Administrator about the passing of the detention order together with the
grounds of detention. The Administrator approved the detention order and sent
the report to the Central Government, and also informed the petitioner that the
order of detention had been approved by him and that he had a right to make a
representation. The case of the petitioner was placed before the Advisory Board
who was of the opinion that there was sufficient cause for his detention. The
Administrator confirmed the detention order under sub-section (1) of section 12
and further directed under section 13 of the Act that the petitioner be
detained for a period of 12 months from the date of his detention.
In his petition under Article 32 of the
Constitution the petitioner contended that: (1) the unexplained delay of two
days in furnishing the grounds of detention was a denial of the constitutional
imperatives of Art. 22(5) read with section 8 of the Act which cast a duty on
the detaining authority to afford the detenu "the earliest opportunity of
making a representation against the order of detention", (2) there was a
failure on the part of the Commissioner as well as the 708 Administrator to
apply their minds and specify the period of detention while making the order of
detention under sub- section (2) of section 3 of the Act, and (3) the grounds
of detention served were not connected with "maintenance of public
order", but relate to "maintenance of law and order".
Dismissing the petition,
HELD: 1. (i) Sub-section (1) of section 8 of
the Act which is in conformity with Article 22(5) provides that where a person
is detained in pursuance of a detention order made under sub-section (1) or
sub-section (2) of section 3 of the Act, the authority making the order shall,
"as soon as may be", but ordinarily not later than five days and in
exceptional circumstances and for reasons to be recorded in writing not later
than ten days from the date of detention, communicate to him the grounds on
which the order has been made. Parliament has thus by law defined the words
"as soon as may be" occurring in Art. 22(5) as meaning normally a
period of five days. [711 F] (ii) The law is that the detaining authority must,
as soon as may be, i.e. as soon as practicable, communicate to the detenu the
grounds on which the order of detention has been made. That period has been
specified by section 8 of the Act to mean a period ranging from five to ten
days depending upon the facts and circumstances of each case.
[712 D] In the instant case, the petitioner
was served with the grounds of detention within a period of two days i.e.
within the period allowed by section 8 of the Act and that was "as soon as
practicable." The order of detention is therefore not rendered invalid
merely because the grounds of detention were furnished two days later. [712
E-F] (iii) In A.K. Roy v. Union of India, [1982] 1 S.C.C. 271 this Court has
not laid down that the detaining authority making an order of detention under
sub-section (1) or sub-section (2) of section 3 of the Act or the authority
approving of the same, must specify the period of detention in the order. [714
B]
2. Under the scheme of the Act, the period of
detention must necessarily vary according to the exigencies of each case i.e.
the nature of the prejudicial activity complained of. It is not that the period
of detention must in all circumstances extend to the maximum period of 12
months as laid down in section 13 of the Act. [714 E] 3.(i) The true
distinction between the areas of 'public order' and 'law and order' lies not in
the nature or quality of the act, but in the degree and extent of its reach
upon society. The distinction between the two concepts of 'law and order' and
'public order' is a fine one but this does not mean that there can be no
overlapping. Acts similar in nature but committed in different contexts and
circumstances might cause different reactions. In one case it might affect
specific individuals only and therefore touch the problem of 'law and order'
while in another it might affect 'public order'. The act by itself therefore is
not determinant of its own gravity. It is the potentiality of the act to
disturb the even 709 tempo of the life of the community which make it
prejudicial to the 'maintenance of public order.' [715 C-E] (ii) Preventive
detention is devised to afford protection to society. The object is not to
punish a man for having done something but to intercept before he does it and
to prevent him from doing. Justification for such detention is suspicion or
reasonable probability and not criminal conviction which can only be warranted
by legal evidence. It follows that any preventive measures, even if they
involve some restraint or hardship upon individuals, do not partake in any way
of the nature of punishment, but are taken by way of precaution to prevent
mischief to the State. [715 F-G] (iii) The Executive can take recourse to its
power of preventive detention in those cases where the Court is genuinely
satisfied that no prosecution could possibly succeed against the detenu because
he is a dangerous person who has overawed witnesses or against whom no one is
prepared to depose. [716 B] (iv) What essentially is a problem relating to 'law
and order' may due to sudden sporadic and intermittent acts of physical
violence on innocent victims in a metropolitan city result in serious 'public
disorder'. It is the length, magnitude and intensity of the terror wave,
unleashed by a particular act of violence creating disorder that distinguished
it as an act affecting 'public order' from that concerning 'law and order'.
Some offences primarily injure specific individuals and only secondarily the
public interest, while others directly injure the public interest, and affect
individuals only remotely. [717 D-E] In the instant case the particular acts
enumerated in the grounds of detention clearly shows that the activities of the
detenu cover a wide field and fall within the contours of the concept of
'public order'. [717 G]
ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 8061 of 1981.
(Under article 32 of the Constitution of
India.) Dr. N.M. Ghatate for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
SEN, J. By this petition under Art. 32 of the Constitution, one Ashok Kumar
seeks issuance of a writ of habeas corpus challenging the validity of the order
of detention dated August 11, 1981, passed by the Commissioner of Police, Delhi
under sub-s. (2) of s. 3 of the National Security Act, 1980 (for short 'the
Act') on being satisfied that his detention was necessary with a view to
preventing him from "acting in any manner prejudicial to the maintenance
of 710 public order". The main issue is as to whether the activities of
the petitioner fall within the realm of 'public order' or 'law and order'.
It appears that on August 12, 1981 while the
detenu was held at the Central Jail, Tihar in connection with some of the
offences committed by him, he was served with the aforesaid order of detention
passed a day earlier i.e. on August 14, 1981. Two days later i.e. on August 14,
1981 he was furnished with the grounds of detention as well as with copies of
documents and statements relied upon in the grounds of detention. It seems that
the Commissioner of Police forthwith made a report to the Administrator about
the passing of the detention order together with the grounds of detention and
all other particulars bearing on the same.
The said report and the other particulars
were considered by the Administrator and he, by his order dated August 20,
1981, approved of the detention order under sub-s. (4) and sent a report to the
Central Government as required under sub-s. (5) of s. 3 of the Act. The
Administrator by his order dated August 20, 1981 informed the petitioner that
his order of detention had been approved by him and that he had a right to make
a representation. The case of the petitioner was placed before the Advisory
Board who was of the opinion that there was sufficient cause for the detention
of the petitioner and accordingly the Administrator by his order dated
September 15, 1981 confirmed the aforesaid detention order under sub-s. (1) of
s. 12 and further directed under s. 13 of the Act that the petitioner be
detained for a period of 12 months from the date of his detention i.e. w.e.f.
August 12, 1981.
In support of the petition, four points are
canvassed.
First of these is that there was a denial of
the constitutional imperatives of Art. 22(5) read with s. 8 of the Act which
cast a duty on the detaining authority to afford the detenu "the earliest
opportunity of making a representation against the order of detention"
inasmuch as there was unexplained delay of two days in furnishing the grounds
of detention; secondly, there was a failure on the part of the Commission of
Police as well as the Administrator to apply their mind and specify the period
of detention while making the order of detention under sub-s.
(2) of s. 3 of the Act and therefore the
impugned order of detention is invalid; thirdly, the grounds of detention
served on the detenu are not connected with "maintenance of public
order", but they relate to "maintenance of law and order" and
fourthly, the facts as set out in the grounds of detention did not 711 furnish
sufficient nexus for forming the subjective satisfaction of the detaining
authority and further they were vague, irrelevant and lacking in particulars.
We are afraid, none of these contentions can prevail.
There is no substance in the contention that
there was denial of the constitutional imperatives of Art. 22(5) read with s. 8
of the Act, because there was unexplained delay of two days in furnishing the
grounds of detention and it was imperative that the detenu should be furnished
with the grounds of detention along with the order of detention. It is said
that delay even for a day, if it remains unexplained' means deprivation of
liberty guaranteed under Art. 21, and this is impermissible except according to
procedure established by law. The contention that the constitutional safeguards
in Art. 22(5) were not complied with merely because the detenu was not
'simultaneously' furnished with the grounds of detention along with the order
of detention and was thereby deprived of the right of being afforded 'the
earliest opportunity of making a representation against the order of detention'
as enjoined by Art. 22(5) read with with s. 8 of the Act, cannot be accepted.
The language of Art. 22(5) itself provides that where a person is detained in
pursuance of an order made under any law providing for preventive detention,
the authority making the order shall, "as soon as may be",
communicate to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against
the order. Sub-s. (1) of s. 8 of the Act which is in conformity with Art. 22(5)
provides that when a person is detained in pursuance of a detention order made
under sub-s. (1) or sub-s. (2) of s. 3 of the Act, the authority making the
order shall, as soon as may be, but ordinarily not later than five days and in
exceptional circumstances and for reasons to be recorded in writing, not later
than ten days from the date of detention, communicate to him the grounds on
which the order has been made. Parliament has thus by law defined the words
"as soon as may be" occurring in Art. 22(5) as meaning normally a
period of five days.
The matter is no longer res integra.
Chandrachud, C.J.
in A.K. Roy v. Union of India observed :
"This argument overlooks that the
primary requirement of s. 8(1) is that the authority making the order of 712
detention shall communicate the grounds of detention to the detenu "as
soon as may be". The normal rule therefore is that the grounds of
detention must be communicated to the detenu without avoidable delay. It is
only in order to meet the practical exigencies of administrative affairs that
the detaining authority is permitted to communicate the grounds of detention
not later than five days ordinarily and not later than 10 days if there are
exceptional circumstances. If there are any such circumstances, the detaining
authority is required by s. 8(1) to record its reason in writing. We do not
think that this provision is open to any objection." Under our
constitutional system, therefore, it is not the law that no person shall be
detained in pursuance of an order made under a law providing for preventive
detention without being informed of the grounds for such detention.
The law is that the detaining authority must,
as soon as may be, i.e. as soon as practicable, communicate to the detenu the
grounds on which the order of detention has been made.
That period has been specified by s. 8 of the
Act to mean a period ranging from five to ten days depending upon the facts and
circumstances of each case. Admittedly, the detenu here was served with the
grounds of detention within a period of two days i.e. within the period allowed
by s. 8 of the Act and that was "as soon as practicable".
This is not a case where the detenu alleges
that his detention was for non-existent grounds. Nor does he attribute any mala
fides on the part of the detaining authority in making the order. The order of
detention is therefore not rendered invalid merely because the grounds of
detention were furnished two days later.
We find it difficult to conceive of any
discernible principle for the second submission. It is submitted by learned
counsel appearing for the detenu that the right to make a representation under
Art. 22(5) of the Constitution read with s. 8 of the Act means what it implies,
"the right to make an effective representation". It is urged that
unless the period of detention is specified, there can be no meaningful
representation inasmuch as the detenu had not only the right of making a
representation against the order for his detention but also the period of
detention. On this hypothesis, the contention is that the impugned order of
detention is rendered invalid. The 713 entire submission rests on the following
observations of Chandrachud, C.J. in A.K. Roys case, supra :
"We should have thought that it would
have been wrong to fix a minimum period of detention, regardless of the nature
and seriousness of the grounds of detention. The fact that a person can be
detained for the maximum period of 12 months does not place upon the detaining
authority the obligation to direct that he shall be detained for the maximum
period. The detaining authority can always exercise its discretion regarding
the length of the period of detention." The majority decision in A.K. Roys
case, supra, as pronounced by Chandrachud, C.J. is not an authority for the
proposition that there is a duty cast on the detaining authority while making
an order of detention under sub-s.
(1) or (2) to specify the period of
detention. The learned Chief Justice made the aforesaid observations while
repelling the contention advanced by learned counsel for the petitioner that s.
13 of the Act was violative of the fundamental right guaranteed under Art. 21
read with Art. 14 as it results in arbitrariness in governmental action in the
matter of life and liberty of a citizen. The challenge to the validity of s. 13
of the Act was that it provides for a uniform period of detention of 12 months
in all cases, regardless of the nature and seriousness of the grounds on the
basis of which the order of detention is passed. In repelling the contention,
the learned Chief Justice observed that there was no substance in that
grievance because, any law of preventive detention has to provide for the
maximum period of detention, just as any punitive law like the Penal Code has
to provide for the maximum sentence which can be imposed for any offence. In
upholding the validity of s. 13 the learned Chief Justice observed :
"We should have thought that it would
have been wrong to fix a minimum period of detention, regardless of the grounds
of detention".
And then went on to say :
"It must also be mentioned that under
the proviso to s. 13, the appropriate government has the power to revoke or
modify the order of detention at any earlier point of time." 714 It would
thus be clear that the Court was there concerned with the validity of s. 13 of
the Act and it is not proper to build up an argument or by reading out of context
just a sentence or two. There is no doubt in our mind that the Court has not
laid down that the detaining authority making an order of detention under
sub-s. (1) or sub-s. (2) of s. 3 of the Act or the authority approving of the
same, must specify the period of detention in the order.
It is plain from a reading of s. 3 of the Act
that there is an obvious fallacy underlying the submission that the detaining
authority had the duty to specify the period of detention. It will be noticed
that sub-s. (1) of s. 3 stops with the words "make an order directing that
such person be detained", and does not go further and prescribe that the
detaining authority shall also specify the period of detention. Otherwise,
there should have been the following words added at the end of this sub-section
"and shall specify the period of such detention". What is true of
sub-s. (1) of s. 3 is also true of sub-s. (2) thereof. It is not permissible
for the courts, by a process of judicial construction, to alter or vary the terms
of a section. Under the scheme of the Act, the period of detention must
necessarily vary according to the exigencies of each case i.e. the nature of
the prejudicial activity complained of.
It is not that the period of detention must
in all circumstances extend to the maximum period of 12 months as laid down in
s. 13 of the Act.
The most crucial question on which the
decision must turn is whether the activities of the detenu fall within the
domain of 'public order' or 'law and order'. The contention is that the grounds
of detention served on the detenu are not connected with 'maintenance of
'public order' but they relate to 'maintenance of law and order' and therefore
the impugned order of detention purported to have been passed by the detaining
authority in exercise of his powers under sub- s. (2) of s. 3 of the Act is
liable to be struck down. It is urged that the facts alleged in the grounds of
detention tend to show that he is engaged in criminal activities and it is an
apparent nullification of the judicial process if, in every case where there is
a failure of the prosecution to proceed with a trial or where the case ends
with an order of discharge or acquittal, the Executive could fall back on its
power of detention because the verdict of the Court goes against it. Put
differently, the contention is that resort cannot be had to the Act to direct
preventive detention of a person under sub-s. (2) of s. 3 of the Act for the
Act is not a law for the 715 preventive detention of gangsters and notorious
bad characters. The detention here, it is said, is not so much for the
"maintenance of public order" but as a measure for the past criminal
activities of the detenu. It is further urged that the grounds of detention
have no rational connection with the object mentioned in the Act for which a
person may be detained. Further, that there is no sufficient nexus between the
preventive action and the past activities of the detenu which are not proximate
in point of time but are too remote. There is no substance in any of these
contentions advanced.
The true distinction between the areas of
'public order' and 'law and order' lies not in the nature or quality of the
Act, but in the degree and extent of its reach upon society. The distinction
between the two concepts of 'law and order' and 'public order' is a fine one
but this does not mean that there can be no overlapping. Acts similar in nature
but committed in different contexts and circumstances might cause different
reactions. In one case it might affect specific individuals only and therefore
touch the problem of law and order, while in another it might affect public
order. The act by itself therefore is not determinant of its own gravity. It is
the potentiality of the act to disturb the even tempo of the life of the community
which makes it prejudicial to the maintenance of public order. That test is
clearly fulfilled in the facts and circumstances of the present case.
Those who are responsible for the national
security or for the maintenance of public order must be the sole judges of what
the national security or public order requires.
Preventive detention is devised to afford
protection to society. The object is not to punish a man for having done
something but to intercept before he does it and to prevent him from doing. Justification
for such detention is suspicion or reasonable probability and not criminal
conviction which can only be warranted by legal evidence. It follows that any
preventive measures, even if they involve some restraint or hardship upon
individuals, do not partake in any way of the nature of punishment, but are
taken by way of precaution to prevent mischief to the State. It is a matter of
grave concern that in urbanised areas like cities and towns and particularly in
the metropolitan city of Delhi the law and order situation is worsening
everyday and the use of knives and firearms has given rise to a new violence.
There is a constant struggle to control the
criminal activities of the persons engaged in such organised crimes for the
maintenance of public 716 order. It is difficult to appreciate the argument
that the detention here is with a view to punish the detenu for a series of
crimes that he is alleged to have committed, but which the law enforcement
agency is not able to substantiate. There is no reason why the Executive cannot
take recourse to its power of preventive detention in those cases where the
Court is genuinely satisfied that no prosecution could possibly succeed against
the detenu because he is a dangerous person who has overawed witnesses or
against whom no one is prepared to depose.
The prejudicial activities of the detenu
leading to public disorder, as revealed in the grounds of detention, consist of
a consistent course of criminal record. Although the criminal activities of the
detenu in the past pertained mostly to breaches of law and order, they have now
taken a turn for the worse. From the facts alleged it appears that the detenu
has taken to a life of crime and become a notorious character. His main
activities are theft, robbery and snatching of ornaments by the use of knives
and firearms. The area of operation is limited to South Delhi, such as Greater
Kailash, Kalkaji and Lajpat Nagar. A perusal of the F.I.Rs. shows that the
petitioner is a person of desperate and dangerous character. This is not a case
of a single activity directed against a single individuals. There have been a
series of criminal activities on the part of the detenu and his associates
during a span of four years which have made him a menace to the society. It is
true that they are facing trial or the matters are still under investigation.
That only shows that they are such dangerous characters that people are afraid
of giving evidence against them.
To bring out the gravity of the crimes
committed by the detenu, we would just mention four instances. On November 19,
1979 Smt. Anupam Chander of B-5/10, Safdarjang Enclave reported that she was
robbed of her gold-chain near East of Kailash and on investigation the
petitioner along with his associates was arrested for this high-handed robbery
and there is a case registered against them which is pending trial. Just a
month after i.e. on December 11, 1979, one Munna of Lajpat Nagar reported that
he was robbed of his wrist-watch and cash by three persons who were travelling in
a three-wheeler. On investigation, the petitioner and his associate Rajendra
Kumar were arrested and the police recovered the stolen property. They are
facing trial in these cases. On July 18, 1981 717 Kumari G. Radha reported that
she had been robbed of her gold-chain and a pair of tops in Lajpat Nagar at the
point of knife by persons in the age group of 21/22 years. On investigation,
the petitioner and his associate Rajendra Kumar were arrested and the entire
booty was recovered. The case is still under investigation. It appears that the
detenu was enlarged on bail and two days after i.e. on July 20, 1981, he was
again arrested on the report of Smt. Ozha that she was robbed of her gold-chain
near Shanti Bazar, Khokha Market, Lajpat Nagar by two persons in the age group
of 21-25 years at the point of knife. On investigation, the petitioner and his
companion Rajendra Kumar were arrested and she identified them to be the
culprits and the booty was recovered from them. The case is under
investigation. There have been similar incidents of a like nature.
What essentially is a problem relating to law
and order may due to sudden sporadic and intermittent acts of physical violence
on innocent victims in the metropolitan city of Delhi result in serious public
disorder. It is the length, magnitude and intensity of the terror wave
unleashed by a particular act of violence creating disorder that distinguishes
it as an act affecting public order from that concerning law and order. Some
offences primarily injure specific individuals and only secondarily the public
interest, while others directly injure the public interest and affect
individuals only remotely. The question is of the survival of the society and
the problem is the method of control. Whenever there is an armed hold-up by
gangsters in an exclusive residential area like Greater Kailash, Kalkaji or
Lajpat Nagar and persons are deprived of their belongings like a car,
wrist-watch or cash, or ladies relieved of their gold-chains or ornaments at
the point of a knife or revolver, they become victims of organised crime. There
is very little that the police can do about it except to keep a constant vigil
over the movements of such persons. The particular acts enumerated in the
grounds of detention clearly show that the activities of the detenu cover a
wide field and fall within the contours of the concept of public order.
The contention that the facts alleged in the
grounds of detention did not furnish sufficient nexus for forming the
subjective satisfaction of the detaining authority and further that they were
vague, irrelevant or lacking in particulars, cannot be accepted. A bare perusal
of the grounds of detention along with the particulars 718 of the 36 cases
furnished in the accompanying chart, shows that the grounds furnished were not
vague or irrelevant or lacking in particulars or were not adequate or
sufficient for the subjective satisfaction of the detaining authority.
In the result, the petition must fail and is
dismissed.
N.V.K. Petition dismissed.
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