Merugu Satyanarayana Vs. State of
Andhra Pradesh & Ors [1982] INSC 75 (18 October 1982)
DESAI, D.A.
DESAI, D.A.
MISRA, R.B. (J)
CITATION: 1982 AIR 1543 1983 SCR (1) 635 1982
SCC (3) 301 1982 SCALE (2)903
CITATOR INFO :
R 1982 SC1548 (5) D 1986 SC2177 (28) RF 1987
SC2098 (7) R 1987 SC2332 (25) F 1990 SC1272 (10)
ACT:
National Security Act, 1980-Section 3(2),
scope of- Passing a detention order under the Act, against persons who are
under judicial custody and thereby lost their liberty, is bad in law-Writ of
Habeas Corpus-The affidavit in opposition supporting the reply to show cause
should be from the person who passed the detention order-The affidavit of a
sub-inspector of police at whose instance the arrest was made cannot satisfy
the constitutional mandate and will be treated as non-est-Detention in
violation of-Assurance before the Supreme Court in an earlier case, that the
preventive detention would not be taken against political opponents, whether
would amount to flagrant violation thereof.
HEADNOTE:
In both the Writ Petitions, when the
petitioners were already in judicial custody and thus have been deprived of
their liberty, the District Magistrate Adilabad passed the detention orders in
exercise of the power conferred under Section 3(2) read with Section 3(3) of
the National Security Act, 1980. The detenu in each of these petitions filed a
petition for writ of habeas corpus in the Andhra Pradesh High Court and both
the petitions were rejected.
In the present petitions, it was contended as
follows:
(i) that in both the cases, the detenus being
in judicial custody were already prevented from pursuing any activity which may
prove prejudicial to the maintenance of public order and, therefore, no order
of detention could be passed against each of them;
(ii) that the affidavit-in-opposition was
filed by a sub-inspector of police and not by the detaining authority, i.e. the
District Magistrate had completely abdicated his powers; and (iii)that in
flagrant violation of the assurances given at the hearing of A.K. Roy's case,
that the drastic and draconian power of preventive detention will not be
exercised against political opponents, the affidavit in opposition would show
that the power of preventive detention was exercised against political
opponents because the detenu in each case was a member and organizer of C.P.I.
(M.L.) (Peoples War Group), a political party operating in this country.
Allowing the petition, the Court 636 ^
HELD: 1:1. A preventive action postulates
that if preventive step is not taken the person sought to be prevented may
indulge into an activity prejudicial to the maintenance of public order. In
other words, unless the activity is interdicted by a preventive detention order
the activity which is being indulged into is likely to be repeated. That this
is the postulate, indisputably transpires from the language employed in
sub-section (2) of Section 3, which says that the detention order can be made
with a view to preventing the person sought to be detained from acting in any
manner prejudicial to the maintenance of public order. If it is shown that the
man sought to be prevented by a preventive order is already effectively
prevented, the power under sub-section (2) of Section 3, if exercised, would
imply that one who is already prevented is sought to be further prevented which
is not the mandate of the section, and would appear tautologous. [640 F-H,
641-A]
1.2 The detaining authority before exercising
the power of preventive detention would take into consideration the past
conduct or antecedent history of the person and as a matter of fact it is
largely from the prior events showing the tendencies of a man that an inference
could be drawn whether he is likely even in the future to act in a manner
prejudicial to the maintenance of public order. If the subjective satisfaction
of the detaining authority leads to this conclusion it can put an end to the
activity by making a preventive detention order. If the man is already detained
a detaining authority cannot be said to have subjectively satisfied himself
that a preventive detention order can be made.
[641 A-C] Ujagar Singh v. State of Punjab,
Jagir Singh v. State of Punjab [1952] S.C.R. 756 and Rameshwar Shaw v. District
Magistrate, Burdwan and Anr. [1964]4 S.C.R. 921 referred to.
1:3. the subjective satisfaction of the
detaining authority must comprehend the very fact that the person sought to be
detained in jail is under detention and yet a preventive detention order is a
compelling necessity. If the subjective satisfaction is reached without the
awareness of this very relevant fact the detention order is likely to be
vitiated. But, it will depend on the facts and circumstances of each case. [642
D-F] Vijay Kumar v. State of J & K and Ors. A.I.R. 1982 S.C. 1023, applied.
2:1. the awareness of the detaining authority
must be of the fact that the person against whom the detention order is being
made is already under detention. This would show that such a person is not a
free person to indulge into a prejudicial activity which is required to be
prevented by detention order. And this awareness must find its place either in
the detention order or in the affidavit justifying the detention order when
challenged. The absence of this awareness would permit an inference that the
detaining authority was not even aware of this vital fact and mechanically
proceeded to pass the order which would 637 unmistakably indicate that there
was non-application of mind to the most relevant fact and any order of such
serious consequences resulting in deprivation of liberty, if mechanically
passed without the application of mind is liable to be set aside as invalid.
[643 D-G] 3:1. A sub-inspector of police cannot arrogate to himself the
knowledge about the subjective satisfaction of the District Magistrate on whom
the power of detention is conferred by the National Security Act. If the power
of preventive detention is to be conferred on an officer of the level and
standing of a sub-inspector of police, we would not be far from a police state.
[644 E-F] 3:2. Parliament has conferred power primarily on the Central
Government and in specific cases, if the conditions set out in sub-section (3)
of section 3 of the Act are satisfied and the Notification is issued by the
State Government to that effect, this extra-ordinary power of directing
preventive detention can be exercised by such highly placed officers as
District Magistrate or Commissioner of Police. [644 F-G] 3:3. In this case, (a)
the District Magistrate, the detaining authority has not chosen to file his
affidavit, (b) the affidavit in opposition filed by the sub-inspector would
imply either he had access to the file of the District Magistrate or he had
influenced the decision of the Magistrate for making the detention order and in
any case the District Magistrate completely abdicated his functions in favour
of the sub-inspector of Police because (i) the sub-inspector does not say in
the affidavit how he came to know about the subjective satisfaction of the
District Magistrate or that he had access to the file, and (ii) the file was
not made available to the Court. If the District Magistrate is to act in the
manner he has done in this case by completely abdicating his functions in
favour of an officer of the level of a sub-inspector of Police, the safe-
guards noticed by the Supreme Court are likely to prove wholly illusory and the
fundamental right of personal liberty will be exposed to serious jeopardy.
Hence the affidavit in opposition cannot be taken notice of, here.
[644 G-H, 646 A-C] A.K. Roy v. Union of India
& Ors. [1982] 1 SCC 271, referred to.
4. The affidavit-in-opposition filed in the
present case would show that the power conferred for ordering preventive
detention was exercised on extraneous and irrelevant consideration in respect
of each detenu he being a member of and organiser of C.P.I. (M.L.) (People War
Group), a political party operating in this country which fact motivated the
order and, therefore, a flagrant violation of the assurances given on the floor
of Parliament and while hearing the case of A.K. Roy wherein the constitutional
validity of the Act was challenged that the drastic and draconian power of
preventive detention will not be exercised against political opponents. But it
is unnecessary to examine this aspect on merits, in view of the fact that the
detention orders have been found to be invalid for more than one reason.
Non-examination of the contention need not lead to the inference that the
contention is rejected but kept open to be examined in an appropriate case.
[646 D-E, 647 A-B] 638
ORIGINAL JURISDICTION: Writ Petition (Criminal)
No. 1166 of 1982.
(Under article 32 of the Constitution of
India) AND Writ Petition (Criminal) No. 1167 of 1982 (Under article 32 of the
Constitution of India) Gobinda Mukhoty, N.R. Choudhury and S.K. Bhattacharya
for the Petitioners.
P. Ram Reddy and G.N. Rao for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. On October 8, 1982, we quashed and set aside the detention order
dated December 26, 1981 in respect of detenu Merugu Satyanarayana s/o
Ramchander, deferring the giving of the reasons to a later date.
On the same day we quashed the detention
order dated February 13, 1982, in respect of detenu Bandela Ramulu @ Lehidas @
Peddi Rajulu @ Ramesh, s/o Venkati, deferring the giving of the reasons to a
later date.
Identical contentions were raised in both
these petitions and, therefore, by this common order we proceed to give our
reasons on the basis of which we made the aforementioned orders. WP. 1166/82.
Detenu M. Satyanarayana was working in
Belampalli Coal Mines. According to him he was arrested on October 22, 1981,
but was kept in unlawful custody till October 31, 1981, when he was produced
before the Judicial Magistrate who took him in judicial custody and sent him to
Central Jail, Warangal.
According to the respondents detenu was
arrested on October 30, 1981, and was produced before the Judicial Magistrate
on October 31, 1981. When he was thus confined in jail a detention order dated
December 26, 1981 (in the counter- affidavit the date of the detention order is
shown to be December 28, 1981) made by the District Magistrate, Adilabad, in
exercise of the power conferred by sub-s. (2) read with sub-s. (3) of s. 3 of
the National Security Act, 1980 ('Act' for short) 639 was served upon him on
December 29, 1981. The District Magistrate also served upon the detenu grounds
of detention on January 2, 1982. It is not clear from the record or from the
counter affidavit filed on behalf of respondents 1 to 3 whether any
representation was made by the detenu and when the matter was disposed of by
the Advisory Board. WP. 1167/82.
Detenu Bandela Kamulu according to him was
arrested on January 1, 1982, and he was produced before the Judicial Magistrate
on January 11, 1982. The dates herein mentioned are controverted by the
respondents and they assert in the counter affidavit that the detenu was
arrested on January 8, 1982, and was produced before the Judicial Magistrate on
January 9, 1982. During the period of his incarceration the District
Magistrate, Adilabad in exercise of the power conferred by sub-s. (2) read with
sub-s (3) of s. 3 of the Act made an order of detention which was served on the
detenu in District Jail, Nizamabad, on February 14, 1982.
Even in this case it is not clear from the
record whether the detenu made any representation on how his case was dealt
with by the Advisory Board.
The detenu in each of these petitions filed a
petition for writ of habeas corpus in the Andhra Pradesh High Court It appears
both the petitions were rejected. Thereafter the present petitions were filed.
It may be stated at the outset that there is
some dispute about the date of arrest of detenu in each case. But in order to
focus attention on the substantial contention canvassed in each case we would
proceed on the assumption that the date of arrest given in each case by the
respondents is correct. We do not mean to suggest that the averment of the
respondents with regard to the date of arrest is correct but that would be
merely a presumption for the purpose of disposal of these petitions.
Mr. Gobinda Mukhoty, learned counsel who
appeared for the detenu in each petition urged that on the date on which the
detention order came to be made against each detenu he was already deprived of
his liberty as he was already arrested and was confined in jail and, therefore,
he was already prevented from pursuing any activity which may prove prejudicial
to the maintenance of public order. Hence no order of detention could be made
against him.
640 The impugned detention order in each case
recites that the detaining authority, the District Magistrate of Adilabad, made
the impugned detention order with a view to preventing the detenu from
continuing to act further in the manner prejudicial to the maintenance of
public order.
The fact situation in each case as transpires
from the counter affidavit filed on behalf of the respondents is that detenu
Merugu Satyanarayan was in jail since October 31, 1981, and the detention order
in his case was made on December 28, 1981, meaning thereby that the detenu was
already confined in jail for a period of nearly two months prior to the date of
the detention order. Similarly, in the case of detenu Bandela Ramulu according
to the counter- affidavit he was arrested on January 8, 1982, and was confined
to jail under the orders of the First Class Magistrate from January 9, 1982.
The detention order in his case was made on February 13, 1982, meaning thereby
that the detenu was already confined to jail for a period of one month and four
days prior to the date of the detention order. It is in the background of this
fact situation in each case that the contention canvassed on behalf of the
detenu by Mr. Mukhoty may be examined Sub-section (2) of s. 3 of the Act
confers power on the Central Government or the State Government to make an
order of detention with a view to preventing any person from acting in any
manner prejudicial to the security of the State or from acting in any manner
prejudicial to the maintenance of public order, etc. In this case the detaining
authority has made the order on being satisfied that it is necessary to detain
the detenu with a view to preventing him from acting in any manner prejudicial
to the maintenance of public order. A preventive action postulates that if
preventive step is not taken the person sought to be prevented may indulge into
an activity pre-judicial to the maintenance of public order. In other words,
unless the activity is interdicted by a preventive detention order the activity
which is being indulged into is likely to be repeated. This is the postulate of
the section. And this indubitably transpires from the language employed in
sub-s.
(2) which says that the detention order can
be made with a view to preventing the person sought to be detained from acting
in any manner prejudicial to the maintenance of public order. Now, if it is
shown that the man sought to be prevented by a preventive order is already
effectively prevented, the power under sub-s. (2) of s. 3, if exercised, would
imply that one who is already is sought to be further prevented which is not
the mandate 641 of the section, and would appear tautologous. An order for
preventive detention is made on the subjective satisfaction of the detaining
authority. The detaining authority before exercising the power of preventive
detention would take into consideration the past conduct or antecedent history
of the person and as a matter of fact it is largely from the prior events
showing the tendencies or inclinations of a man that an inference could be
drawn whether he is likely even in the future to act in a manner prejudicial to
the maintenance of public order. If the subjective satisfaction of the
detaining authority leads to this conclusion it can put an end to the activity
by making a preventive detention order.
(see Ujagar Singh v. State of Punjab, and
Jagir Singh v. State of Punjab)(1). Now, if the man is already detained, can a
detaining authority be said to have been subjectively satisfied that a
preventive detention order be made ? In Rameshwar Shaw v. District Magistrate,
Burdwan & Anr.(2), this Court held that as an abstract proposition of the
law detention order can be made in respect of a person who is already detained.
But having said this, the Court proceeded to observe as under:
"As an abstract proposition of law,
there may not be any doubt that s. 3(1)(a) does not preclude the authority from
passing an order of detention against a person whilst he is in detention or in
jail, but the relevant facts in connection with the making of the order may
differ and that may make a difference in the application of the principle that
a detention order can be passed against a person in jail. Take for instance, a
case where a person has been sentenced to rigorous imprisonment for ten years.
It cannot be seriously suggested that soon after the sentence of imprisonment
is pronounced on the person, the detaining authority can make an order
directing the detention of the said person after he is released from jail at
the end of the period of the sentence imposed on him. In dealing with this question,
again the consideration of proximity of time will not be irrelevant. On the
other hand, if a person who is undergoing imprisonment, for a very short
period, say for a month or two or so, and it is known that he would soon be
released from jail, it may be possible for the authority to consider the
antecedent history of the said person and decide whether after he is released
from jail, and if the authority is bona fide satisfied that such detention is
necessary, he can make a 642 valid order of detention a few days before the
person is likely to be released. The antecedent history and the past conduct on
which the order of detention would be based would, in such a case, be proximate
in point of time and would have a rational connection with the conclusion drawn
by the authority that the detention of the person after his release is
necessary. It may not be easy to discover such rational connection between the
antecedent history of the person who has been sentenced to ten years' rigorous
imprisonment and the view that his detention should be ordered after he is
released after running the whole of his sentence.
Therefore, we are satisfied that the question
as to whether an order of detention can be passed against a person who is in
detention or in jail, will always have to be determined in the circumstances of
each case." One can envisage a hypothetical case where a preventive order
may have to be made against a person already confined to jail or detained. But
in such a situation as held by this Court it must be present to the mind of the
detaining authority that keeping in view the fact that the person is already
detained a preventive detention order is still necessary. The subjective
satisfaction of the detaining authority must comprehend the very fact that the
person sought to be detained is already in jail or under detention and yet a
preventive detention order is a compelling necessity. If the subjective
satisfaction is reached without the awareness of this very relevant fact the
detention order is likely to be vitiated. But as stated by this Court it will
depend on the facts and circumstances of each case.
The view herein taken finds further support
from the decision of this Court in Vijay Kumar v. State of J & K and Ors
(1), wherein this Court recently held as under:
"Preventive detention is resorted to, to
thwart future action. If the detenu is already in jail charged with a serious
offence, he is thereby prevented from acting in a manner prejudicial to the
security of the State. Maybe, in a given case there yet may be the need to
order preventive detention of a person already in jail. But in such a situation
the detaining authority must disclose awareness of the fact that 643 the person
against whom an order of preventive detention is being made is to the knowledge
of the authority already in jail and yet for compelling reasons a preventive
detention order needs to be made.
There is nothing to indicate the awareness of
the detaining authority that detenu was already in jail and yet the impugned
order is required to be made. This, in our opinion, clearly exhibits
non-application of mind and would result in invalidation of the order."
Mr. Mukhoty next contended that even if a hypothetical case can be envisaged as
contemplated by the decision of this Court in Rameshwar Shaw that a preventive
detention order becomes necessitous in respect of a person already confined to
jail, the detaining authority must show its awareness of the fact that the
person in respect of whom detention order is being made is already in jail and
yet a detention order is a compelling necessity. It was urged that this
awareness must appear on the face of the record as being set out in the
detention order or at least in the affidavit in opposition filed in a
proceeding challenging the detention order. Otherwise, according to Mr.
Mukhoty, the detention order would suffer from the vice of non- application of
mind. The awareness must be of the fact that the person against whom the
detention order is being made is already under detention or in jail in respect
of some offence or for some reason. This would show that such a person is not a
free person to indulge into a prejudicial activity which is required to be
prevented by detention order. And this awareness must find its place either in
the detention order or in the affidavit justifying the detention order when
challenged. The absence of this awareness would permit an inference that the
detaining authority was not even aware of this vital fact and mechanically
proceeded to pass the order which would unmistakably indicate that there was
non-application of mind to the most relevant fact and any order of such serious
consequence resulting in deprivation of liberty, if mechanically passed without
application of mind, is obviously liable to be set aside as invalid. And that
is the case here.
Coming to the facts of each case, the
detention order refers to the name of the detenu and the place of his
residence. There is not even a remote indication that the person against whom
the detention order is being made is already in jail in one case for a period
of roughly two months and in another case for a period of one month and four
days. The detenu is referred to as one who is staying at a 644 certain place
and appears to be a free person. Assuming that this inference from the mere
description of the detenu in the detention order is impermissible, the
affidavit is conspicuously silent on this point. Not a word is said that the
detaining authority was aware of the fact that the detenu was already in jail and
yet it became a compelling necessity to pass the detention order. Therefore,
the subjective satisfaction arrived at clearly discloses a non- application of
mind to the relevant facts and the order is vitiated.
The next contention urged by Mr. Mukhoty was
that the detaining authority has not filed an affidavit in opposition but the
same has been filed by one Sub-Inspector of Police and it speaks about the
subjective satisfaction of the detaining authority viz., the District
Magistrate and this would show that the District Magistrate had completely
abdicated his functions in favour of the Sub-Inspector of Police. The affidavit
in opposition on behalf of respondents 1 to 3 who are the State of Andhra
Pradesh, the District Magistrate, Adilabad and the Jailor, Central Prison,
Hyderabad, has been filed by M. Venkatanarasayya who has described himself as
Sub-Inspector of Police. The same Sub- Inspector has filed
affidavit-in-opposition in both the cases. In para 1 of the affidavit in
opposition it is stated that the deponent as a Sub-Inspector of police is well
acquainted with all the facts of the case. In para 7 of the affidavit in
opposition in writ petition 1166/82 he has stated that: 'Only after deriving
the subjective satisfaction, the detaining authority passed order of detention
against the detenu, as his being at large, will prejudice the maintenance of
public order. We are completely at a loss to understand how a Sub Inspector of
Police can arrogate to himself the knowledge about the subjective satisfaction
of the District Magistrate on whom the power is conferred by the Act. If the
power of preventive detention is to be conferred on an officer of the level and
standing of a Sub-Inspector of Police, we would not be far from a Police State.
Parliament has conferred power primarily on the Central Government and the
State Government and in some specific cases, if the conditions set out in sub
s. (3) of s. 3 are satisfied and the notification is issued by the State
Government to that effect, this extra-ordinary power of directing preventive
detention can be exercised by such highly placed officers as District
Magistrate or Commissioner of Police. In this case the District Magistrate, the
detaining authority has not chosen to file his affidavit. The affidavit in opposition
is filed by a Sub-Inspector of Police. Would this imply that Sub-Inspector of
Police had access to the file of the District Magistrate or was the
Sub-Inspector the person who influenced the 645 decision of the District
Magistrate for making the detention order ? From the very fact that the
respondents sought to sustain the order by filing an affidavit of Sub-Inspector
of Police, we have serious apprehension as to whether the District Magistrate
completely abdicated his functions in favour of the Sub-Inspector of Police.
The file was not made available to the Court at the time of hearing of the
petitions. But number of inferences are permissible from the fact that the
District Magistrate though a party did not file his affidavit justifying the order
and left it to the Sub-Inspector of police to fill in the bill. And the Sub-
Inspector of Police does not say how he came to know about the subjective
satisfaction of the District Magistrate. He does not say that he had access to
the file or he is making the affidavit on the basis of the record maintained by
the District Magistrate. Therefore, the inference is irresistible that at the
behest of the Sub-Inspector of Police who appears to be the investigating
officer in some criminal case in which each of the detenu is implicated, the
District Magistrate completely abdicating his responsibilities, made the
detention order. This Court in A.K. Roy v. Union of India & Ors.(1), while
upholding the validity of the National Security Act, repelled the contention
that it is wholly unreasonable to confer upon the District Magistrate or
Commissioner of Police the power to issue orders of detention for reasons
mentioned in sub-s.
(2) of s. 3, observing that the District
Magistrate or the Commissioner of Police can take the action under sub-s. (2)
of s. 3 during the periods specified in the order of the State Government only.
This Court also noticed another safeguard, namely, that the order of the State
Government under sub-s. (3) of s. 3 can remain in force for a period of three
months only and it is during this period that the District Magistrate or the
Commissioner of Police, as the case may be, can exercise power under sub-s. (2)
of s. 3.
The further safeguard noticed by this Court
is that both these officers have to forthwith intimate the fact of detention to
the State Government and no such order of detention can remain in force for
more than 12 days after the making thereof unless, in the meantime, it has been
approved by the State Government. The Court observed that in view of these in
built safeguards it cannot be said that excessive or unreasonable power is
conferred upon the District Magistrate or the Commissioner of Police to pass
orders under sub-s. (2) (see para 72).
646 If the District Magistrate is to act in
the manner he has done in this case by completely abdicating his functions in
favour of an officer of the level of a Sub-Inspector of Police, the safeguards
noticed by this Court are likely to prove wholly illusory and the fundamental
right of personal liberty will be exposed to serious jeopardy. We only hope
that in future the District Magistrate would act with responsibility,
circumspection and wisdom expected of him by this Court as set out earlier.
However, the conclusion is inescapable that the errors pointed out by the
petitioners which have appealed to us remain uncontroverted in the absence of
an affidavit of the detaining authority. We refuse to take any notice of an
affidavit in opposition filed by a Sub-Inspector of Police in the facts and
circumstances of this case.
The last contention canvassed by Mr. Mukhoty
is that even though assurances were given on the floor of Parliament as well as
while hearing the case of A.K. Roy wherein constitutional validity of the Act
was challenged that the drastic and draconian power of preventive detention
will not be exercised against political opponents, in flagrant violation
thereof the affidavit in opposition would show that the power of preventive
detention was exercised on extraneous and irrelevant consideration, the detenu
in each case being a member and organiser of CPI (ML) (People's War Group), a
political party operating in this country. In the affidavit in opposition in
writ petition 1166/82, the relevant averments on this point read as under:
"In reply to para 7 of the petition
these answering respondents submit that it is not correct to say that the
grounds of detention failed to disclose any proximity with the order of detention
and underlying purpose and object of the Act inasmuch as the detenu is one of
the active organisers of CPI (ML) (People's War Group) believing in violent
activities with the main object to overthrow the lawfully established
Government by creating chaotic conditions in rural and urban areas by
annihilating the class enemies, went underground to preach the party ideology
and to build up the cadres by indoctrinating them for armed struggle".
There is a similar averment in the affidavit
in opposition in the connected petition also. We would have gone into this
contention 647 but for the fact that having found the detention order invalid
for more than one reason, it is unnecessary to examine this contention on
merits. Non-examination of the contention need not lead to the inference that
the contention is rejected. We keep it open to be examined in an appropriate
case.
These were the reasons for which we quashed
and set aside the order of detention in each case.
S.R. Petitions allowed.
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