Kamlakar Prasad Chaturvedi Vs. State of
M. P. & ANR [1983] INSC 150 (7 October 1983)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1984 AIR 211 1984 SCR (1) 317 1983
SCC (4) 443 1983 SCALE (2)729
CITATOR INFO :
R 1984 SC1334 (2,7,18,19) R 1985 SC 18 (14)
ACT:
National Security Act, 1980-Section 3(1) and
(2)-Scope of-Detention order-Made on two or more grounds-Not to be deemed to
have been made separately on each ground-Ground relating to five year old
incident-Too remote and stale- Detention order vitiated.
HEADNOTE:
The petitioner who was detained under sec.
3(2) of the National Security Act, 1980, was conveyed seven grounds of
detention by the Detaining Authority. The first two grounds related to the
incidents that occurred more than 5 years and about 3 years respectively prior
to the date of the order of detention. The petitioner challenged the order of
detention as vitiated on account of the grounds of detention being vague and
stale.
Allowing the writ petition by majority, HELD:
The order of detention is quashed.
(Per Chinnappa Reddy and Varadarajan, JJ.) It
is not open to the Detaining Authority to pick up an old and stale incident and
hold it as the basis of an order of detention under S 3(2) of the Act. Nor it
is open to the Detaining Authority to contend that it has been mentioned only
to show that the detenu has a tendency to create problems resulting in
disturbance to public order, for as a matter of fact it has been mentioned as a
ground of detention. [327 E-F] Shalini Soni v. Union of India, AIR 1981 SC 431;
Mehdi Mohamed Joudi v. State of Maharashtra, (1981) 2 S.C.C. 358;
Taramati Chandulal v. State of Maharashtra
AIR 1981 SC 871;
and Shibban Lal Saksena v. The State of Uttar
Pradesh, (1954) 4 S.C.R. 418 referred to.
In the instant case the first two incidents
which are of 1978 and 1980 are mentioned as grounds of detention in the order
dated 6-5-1983. There can be no doubt that these grounds especially grounds No.
1 relating to an incident of 1978 are too remote and not proximate to the order
of detention. [327 D-E] There is no provision in the National Security Act, 1980
similar to s.5A of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 which says that where a person has been detained
in pursuance of an order of detention under sub-sec. (1) of S.3 which has been
318 made on two or more grounds, such order of detention shall be deemed to
have been made separately on each of such grounds and accordingly (a) such
order shall not be deemed to be invalid or inoperative merely because one or
some of the grounds is or are vague, non-existent, non-relevant, not connected
or not proximately connected with such persons or invalid for any other reason,
and it is not therefore possible to hold that the Government or officer making
such order would have been satisfied as provided in sub-sec. (1) of s.3 with
reference to the remaining ground or grounds and made the order of detention
and (b) the Government or officer making the order of detention shall be deemed
to have made the order of detention under the said sub-sec. (1) after being
satisfied as provided in that sub-section with reference to the remaining
ground or grounds. [327 F-H; 328 A] In the present case, therefore, it cannot
be postulated what view would have been taken by the Detaining Authority about
the need to detain the petitioner under sec. 3(2) of the Act if he had not
taken into account the stale and not proximate grounds 1 and 2 into
consideration in arriving at the subjective satisfaction. [328 A-B] (Per Desai
J.) When criminal activity of a person leads to such a drastic action as
detention without trial, ordinarily a single stray incident may not unless
contrary is shown be sufficient to invoke such drastic power of preventive
detention. In order to avoid the charge that a stray incident was seized upon
to invoke such drastic power of preventive detention the authority charged with
a duty to maintain public order of assure security of the State, may keep a
close watch on the activities of the miscreant for some time and repeated
indulgence into prejudicial activity may permit an inference that unless preventive
detention is resorted to, it would not be possible to wean away such person
from such prejudicial activity. [319 G-H; 320 A-B] In the instant case
therefore, when in 1983, an action was proposed to be taken under sub-sec. (2)
of sec. 3, the Detaining Authority examined the history of the criminal
activity of the detenu and took into account a continuous course of conduct
which may permit an inference that unless interdicted by a detention order,
such activity cannot be put to an end the power under sub-sec. (2) of sec. 3 is
exercised. [320 B-C] If there is a big time lag between the last of the events
leading to the detention order being made and the remote earlier event, the
same cannot be treated as showing a continuity of criminal activity. But if events
in close proximity with each other are taken into account for drawing a
permissible inference that these are not stray or spasmodic events but disclose
a continuous prejudicial activity, the reference to earlier events cannot be
styled as stale or remote which would vitiate the order of detention. [320 D-E]
In the instant case if each event is examined in close proximity with each
other, the events of 1978 and 1980 referred to in grounds Nos. 1 and 2 cannot
be rejected as a stray or not proximate to the making of the detention order.
319 But they provide the genesis of the
continuity of the prejudicial activity of the detenu and they appear to have
been relied upon for that limited purpose. [321 A-B] Gora v. State of West
Bengal, [1975] 2 S.C.R. 996; Smt. Rekhaben Virendra Kapadia v. State of Gujarat
and Ors.,[1979] 2 S.C.C. 566; and Firrat Raza Khan v. State of Uttar Pradesh
and Ors., [1982] 2 S.C.C. 449, referred to.
ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 584 of 1983.
(Under article 32 of the Constitution of
India) R.K. Garg and D.K. Garg for the Petitioner.
Ravindra Bana and A.K. Sanghi for the
Respondent.
The following Judgments were delivered,
DESAI, J. I have very carefully gone through the opinion prepared by my learned
brother Varadarajan, J. But I regret my inability to agree with the same.
All the relevant facts and the grounds on
which the order of detention was made against the petitioner have been
succinctly set out by my learned brother and therefore, it is not necessary to recapitulate
them here. However, the only ground examined by my learned brother is that the
order of detention is vitiated on account of taking into consideration grounds
Nos. 1 and 2 which were stale and not proximate to the time when detention
order was made and therefore, they are irrelevant, and would vitiate the order
of detention. Grounds Nos. 1 and 2 relate to the events that occurred on March
20, 1978 and August 9, 1980. The order of detention is made on May 6, 1983. In
between there are four other incidents involving the detenu dated July 13,
1982, July 26, 1982, September 8, 1982 and January 10, 1983. The order of
detention is grounded on the subjective satisfaction of the Detaining Authority
that with a view to preventing the detenu from acting in any manner prejudicial
to the security of Satna City, it was necessary to detain the detenu. When
criminal activity of a person leads to such a drastic action as detention
without trial, ordinarily a single stray incident may not unless contrary is
shown be sufficient to invoke such drastic power of preventive detention.
Ordinarily, drastic power of preventive detention without trial is invoked when
the normal administration of criminal justice would fail. to prevent the person
so acting in a manner set out in sub-sec. (2) of Sec. 3 of the National 320
Security Act, 1980. In order to avoid the charge that a stray incident seized
upon to invoke such drastic power of preventive detention, the authority
charged with a duty to maintain public order or assure security of the State,
may keep a close watch on the activities of the miscreant for some time and
repeated indulgence into prejudicial activity may permit an inference that
unless preventive detention is resorted to, it would not be possible to wean
away such person from such prejudicial activity. Therefore, when in 1983, an
action was proposed to be taken under sub-sec. (2) of Sec. 3, the Detaining
Authority examined the history of the criminal activity of the detenu and took
into account a continuous course of conduct which may permit an inference that
unless interdicted by a detention order, such activity cannot be put to an end
the power under sub-sec. (2) of Sec.
3 is exercised. Obviously, if there is a big
time lag between the last of the events leading to the detention order being
made and the remote earlier event, the same cannot be treated as showing a
continuity of criminal activity. But if events in close proximity with each
other are taken into account for drawing a permissible inference that these are
not stray or spasmodic events but disclose a continuous prejudicial activity,
the reference to earlier events cannot be styled as stale or remote which would
vitiate the order of detention. In this connection, one may refer to Gora v.
State of West Bengal. This Court after a review of the earlier decisions
observed that the test of proximity is not a rigid or mechanical test to be
blindly applied by merely counting the number of months between the offending
acts and the order of detention. The question is whether the past activities of
the detenu are such that the detaining authority can reasonably came to the
conclusion that the detenu is likely to continue in his unlawful activities.
This view was affirmed in Smt. Rekhaben Virendra Kapadia v. State of Gujarat
and Others. In a recent decision in Firrat Raza Khan v. State of Uttar Pradesh
and Ors. this Court held that when both the incidents are viewed in close
proximity, the propensity of the petitioner to resort to prejudicial activity
becomes manifest and the Court therefore, rejected the contention that the
earlier event was not proximate in point of time and had no rational connection
with the conclusion that the detention was necessary for maintenance of public
order.
321 Turning to the facts of this case, if
each event is examined in close proximity with each other, the events of 1978
and 1980 referred to in grounds Nos. 1 and 2 cannot be rejected as a stray or
not proximate to the making of the detention order. But they provide the
genesis of the continuity of the prejudicial activity of the detenu and they
appear to have been relied upon for that limited purpose.
I would therefore, find it difficult to quash
the detention order on the short ground that incidents set out in grounds Nos.
1 and 2 are stale and would be irrelevant and therefore, the detention order is
vitiated. I would therefore uphold the detention order.
VARADARAJAN, J. This writ petition under
Article 32 of the Constitution is for quashing the Order of detention dated
6.5.1983 passed by the second respondent District Magistrate, Satna as being
arbitrary and unreasonable and for the issue of a writ of habeas corpus
directing the immediate release of the petitioner Kamlakar Prashed Chaturvedi.
There is also another prayer in the petition, which cannot be granted in these
proceedings, and that is to direct the first respondent State of Madhya Pradesh
to pay compensation to the petitioner for the wrongful detention.
The second respondent passed the Order of
detention dated 6.5.1983 against the petitioner under S. 3 (2) of the National
Security Act, 1980. The grounds of detention were served on the petitioner in
jail and copy thereof was served on the petitioner's brother on 6.5.1983. The
following are the grounds:- (1) On 20.3.1978 petitioner unauthorisedly entered
the Nagar Mahapalika at Satna and beat the Revenue Inspector Ram Biswas Tiwari
in the presence of other Government employees as a result of which those employees
ran away on account of fear and a first information report has been lodged
against the petitioner for offences under Ss. 323 and 353 I.P.C.;
(2) On 9.8.1980, petitioner and his
associates Vijay Shankar and three others formed themselves into an unlawful
assembly and unauthorisedly entered the Badri Hotel situate at Station Road and
beat Surender Kumar Srivastava with sticks and rod, as 322 a result of which
the customers in the hotel and passers by ran away in panic, and a first
information report has been lodged against the petitioner and others for
offences under Ss. 307, 147, 149 and 501 I.P.C.;
(3) On 13.7.1983, petitioner and his
associate Kamlesh entered the Land Development Bank and beat Gaya Prasad Pandey
in the presence of the Manager of the Bank and threatened to beat him with
shoes at the road crossings in Satna and on account of the terror the staff of
the Bank ran away and Gaya Prasad Pandey has not lodged any report;
(4) On 26.7.1982, petitioner unauthorisedly
entered the office of the Public Works Department and tried to obtain by force
approval of a wood contract from the Office Secretary R.P. Sharma and on his
refusal to comply with his demand the petitioner took away papers and intended
to beat the Office Secretary, and the office staff ran away due to the terror
and a first information report has been lodged against the petitioner for
offences under Ss. 353 and 448 I.P.C.;
(5) On 8.9.1982, petitioner unauthorisedly
entered the office of the Land Development Bank at Satna and threatened to beat
the Chairman Ram Asray Prasad, M.L.A. and he again threatened to beat that
person on 1.10.1982 at the Guest House at Bhopal in the presence of one Gulshar
Ahmed;
(6) On 1.1.1983, petitioner with his
associates entered the Land Development Bank, Satna and threatened the Guard
and broke the telephone and beat one Tara Chand Jain at the Dharamshala later,
and a first information report was lodged at the Police Station about that
incident, and on 15.1.1983 Ram Asray Prasad, M.L.A. has reported to the police
at Jahangirabad, Bhopal that at the Tara Chand Jain Guest House the petitioner
threatened to break his arm as a result of which Harijans employed in the Land
Development Bank were feeling insecure and a 323 first information report has
been lodged against him on 6.1.1983;
(7) On 25.3.1983 at night, petitioner with
his associates threatened Bijju Prasad Misra and Shanti Prasad Misra near
Dashrath Singh garage saying that he would kill them if they gave evidence
against Anup Singh and Ram Charan and a case has been registered against him on
26.3.1983 under Ss. 107 and 117 I.P.C. and a notice calling upon him to appear
in the Court on 2.4.1983 had been served on him and he left the Court without
signing the order sheet.
The petitioner's case is that the detention
Order is politically motivated and has been passed at the instance of the
Congress (I) M.L.A.Ram Asray Prasad as the petitioner is a social worker who
had always raised his voice against goondas who are protected by the Congress
(I) Party in Madhya Pradesh and had organised a number of rallies against the
unscrupulous and uncivilized behaviour of the Block Development Officers with
illiterate and poor farmers of the State. The second respondent has passed the
Order of detention mechanically without applying his mind to the facts and
circumstances of the case on the basis of the first information, reports lodged
against the petitioner.
The grounds of detention must be precise,
pertinent, proximate and relevant. Vagueness and staleness would vitiate the
ground of detention as held in Shiv Prasad Bhatnagar v. State of Madhya
Pradesh. All the seven grounds do not fall within the realm of public order but
relate only to law and order. Grounds 1 to 4 suffer from want of proximity to
the order of detention. Grounds 5 and 6 are vague. Ground 7 is irrelevant. The
State Government has not considered the petitioner's representation dated
25.5.1983 expeditiously. The Order of detention contravenes Article 22 (5) of
the Constitution and is consequently liable to be quashed.
The petition is opposed. The District
Magistrate, Satna has contended in his counter affidavit that the petitioner's
detention has been ordered because his recent activities coupled with the past
incidents are prejudicial to the maintenance of public order. The Order of
detention was considered necessary to prevent him from 324 repeating the
offences because the petitioner has a tendency to go on violating the laws. The
grounds of attack made in the petition have been denied in the counter
affidavit and it is stated that the State Government had considered the
petitioner's representation and rejected it on 4.6.1983 and even the Advisory
Board has rejected his representation.
In addition to the above grounds of attack on
the Order of detention the petitioner has stated in para 13 of the Writ
Petition that the Detaining Authority has not "suggested the relevant
documents on the basis of which the satisfaction of passing the detention Order
has been framed". Perhaps, what is meant to be conveyed by that allegation
of the petitioner is that relevant documents on the basis of which the
subjective satisfaction of the Detaining Authority had been reached have not
been supplied to the petitioner. The learned counsel for the petitioner
submitted in the course of his arguments before us that the copies of the first
information reports referred to in the grounds of detention had not been
supplied to the petitioner alongwith grounds of detention. The said allegation
in para 13 of the Writ Petition does not naturally appear to have been
understood by the second respondent who has not stated anything about it in his
parawise reply in the counter affidavit.
It is not necessary to consider all the other
objections raised by the petitioner in his Writ Petition as we propose to
dispose of the petition on the ground of want of proximity of grounds 1 and 2,
particularly ground 1 to the order of detention dated 6.5.1983. Those grounds
relate to alleged incidents of 20.3.1978 and 9.8.1980 which are more than 5 years
and about 2 years respectively prior to the date of the Order of detention.
This Court has taken a strict view of the law of preventive detention which
deprives the citizen of his freedom without a trial and full fledged
opportunity for him to prove his innocence. In Shalini Soni v. Union of India
to which one of us was a party, it is observed:- "Quite obviously, the
obligation imposed on the detaining authority, by Art. 22 (5) of the
Constitution, to afford to the detenu the earliest opportunity of making a
representation, carries with it the imperative implication 325 that the
representation shall be considered at the earliest opportunity. Since all the
constitutional protection that a detenu can claim is the little that is
afforded by the procedural safeguards prescribed by Art. 22 (5) read with Art.
19, the Courts have a duty to rigidly insist that preventive detention
procedures be fair and strictly observed. A breach of the procedural imperative
must lead to the release of the detenu. The representation dated July 27, 1980
was admittedly not considered and on that ground alone the detenu was entitled
to be set at liberty.
In the view that we have taken on the
question of the failure of the detaining authority to consider the
representation of the detenu it is really unnecessary to consider the second
question raised on behalf of detenu in Criminal Writ Petition No. 4344 of 1980.
However, this question has been squarely and
directly raised and, indeed, it was the only question raised in the other two
Criminal Writ Petitions and we have, therefore, to deal with it." In Mehdi
Mohamed Joudi v State of Maharashtra to which one of us was a party the Order
of detention was set aside on the ground that the materials and documents were
not supplied pari passu the grounds of detention and that there was delay of
more than a month in disposing of the representation of the detenu. In Taramati
Chandulal v. State of Maharashtra to which one of us was a party the Order of
detention was set aside on the ground that the documents relied upon in the
Order of detention were not supplied as part of the grounds alongwith the
grounds of detention. In Shibban Lal Saksena v. The State of Uttar Pradesh it
is observed:
"The petitioner was arrested on the 5th
of January, 1953, under an order, signed by the District Magistrate of
Gorakhpur, and the order expressly directed the detention of the petitioner in
the custody of the Superintendent, 326 District Jail, Gorakhpur, under
sub-clauses (ii) and (iii) of clause (a) of section 3(1) of the Preventive Detention
Act, 1950, as amended by later Acts. On the 7th of January following, the
grounds of detention were communicated to the detenu in accordance with the
provisions of section 7 of the Preventive Detention Act and the grounds, it
appears, were of a two-fold character, falling respectively under the two
categories contemplated by sub-clause (ii) and sub- clause (iii) of section
3(1) (a) of the Act. In the first paragraph of the communication it is stated
that the detenu in course of speeches delivered Ghugli on certain dates exhorted
and enjoined upon the cane- growers of that area not to supply sugar cane to
the sugar mills or even to withhold supplies from them and thereby interfered
with the maintenance of supply of sugar cane essential to the community. The
other ground specified in paragraph 2 is to the effect that by using
expressions, some of which were quoted under-neath the paragraph, the
petitioner incited the cane-growers and the public to violence against
established authority and to defiance of lawful orders and directions issued by
Government officers and thereby seriously prejudiced the maintenance of public
order.............
"The sufficiency of the grounds upon
which such satisfaction purports to be based, provided they have a rational
probative value and are not extraneous to the scope of purpose of the
legislative provision, cannot be challenged in a court of law except on the
ground of mala fides. A court of law is not even competent to enquire into the
truth or otherwise of the facts which are mentioned as grounds of detention in
the communication to the detenu under section 7 of the Act.
What was happened, however, in this case is somewhat
peculiar. The Government itself, in its communication dated the 13th of March,
1953, has plainly admitted that one of grounds upon which the original order of
detention was passed is unsubstantial or nonexistent and cannot be made a
ground of detention. The question is, whether in such circumstances the
original order made under section 3(1) (a) of the Act can be allowed to stand,
327 The answer, in our opinion, can only be in the negative. The detaining
authority gave here two grounds for detaining the petitioner. We can neither
decide whether these grounds are good or bad, nor can we attempt to assess in
what manner and to what extent each of these grounds operated on the mind of
appropriate authority and contributed to the creation of the satisfaction on
the basis of which the detention order was made. To say that the other ground,
which still remains is quite sufficient to sustain, the order, would be to
substitute an objective judicial test for the subjective decision of the
executive authority which is again the legislative policy underlying the
statute. In such cases, we think, the position would be the same as if one of
these two grounds was irrelevant for the purpose of the Act or was wholly
illusory and this would vitiate the detention order as a whole." The first
two incidents which are of 1978 and 1980 are mentioned as grounds of detention
in the order dated 6.5.1983. There can be no doubt these grounds especially
ground No. 1 relating to an incident of 1978 are too remote and not proximate
to the Order of detention. It is not open to the Detaining Authority to pick up
an old and stale incident and hold it as the basis of an Order of detention
under S. 3(2) of the Act. Nor it is open to the Detaining Authority to contend
that it has been mentioned only to show that the detenu has a tendency to
create problems resulting in disturbance to public order, for as a matter of
fact it has been mentioned as a ground of detention. Now there is no provision
in the National Security Act, 1980 similar to S. 5A of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 which says
that where a person has been detained in pursuance of an Order of detention
under sub-section 1 of S. 3 which has been made on two or more grounds, such
Order of detention shall be deemed to have been made separately on each of such
grounds and accordingly (a) such Order shall not be deemed to be invalid or
inoperative merely because one or some of the grounds is or are vague,
non-existent, non-relevant, not connected or not proximately connected with
such persons or invalid for any other reason, and it is not therefore possible
to hold that the Government or officer making such order would have been
satisfied as provided in sub-section 1 of S. 3 with reference to the remaining
ground or grounds and made the order of detention and (b) the Government or
officer making 328 the order of detention shall be deemed to have made the
order of detention under the said sub-section 1 after being satisfied as
provided in that sub-section with reference to the remaining ground or grounds.
Therefore in the present case it cannot be postulated what view would have been
taken by the Detaining Authority about the need to detain the petitioner under
section 3(2) of the Act if he had not taken into account the stale and not
proximate grounds 1 and 2 into consideration in arriving at the subjective
satisfaction. We are, therefore, of the opinion that the petitioner's detention
is unsustainable in law. Accordingly, we quash the order of detention and
direct that the petitioner be set at liberty forthwith.
H.S.K. Petition allowed.
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