Suraj Pal Sahu Vs. State of
Maharashtra & Ors [1986] INSC 198 (25 September 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) PATHAK, R.S.
MISRA RANGNATH
CITATION: 1986 AIR 2177 1986 SCR (3) 837 1986
SCC (4) 378 JT 1986 538 1986 SCALE (2)484
CITATOR INFO:
R 1986 SC2090 (5) RF 1986 SC2173 (18,23) RF
1987 SC2098 (7) RF 1988 SC 34 (13,34) R 1988 SC1175 (6) R 1988 SC1256 (13) R
1989 SC2265 (16) RF 1990 SC1196 (5,13,17) D 1990 SC1597 (12) RF 1991 SC1640
(12)
ACT:
National Security Act, 1980-S. 3(2)-Detention
Order- Detenu already in Jail-Validity of detention order- Principles for
determination of-Legal mala fides explained.
HEADNOTE:
The detenu was arrested on December 17, 1985
pursuant to a detention order dated December 16, 1985 passed under s.
3(2) of the National Security Act, 1980 and
the grounds of detention were served on him the same day. It was alleged in the
order that since the year 1979 the detenu had been continuously engaging
himself in committing acts prejudicial to the maintenance of supplies and
services essential to the communiy, i.e., removing of permanent way material
stocked along rail lines for maintenance of rail tracks, removing parts of
carriages, wagons and signal telecommunication materials utilised for repair of
railway wagons and maintenance of signals; that he used to arrange to remove
railway property with the help of his 'gang' and stock the same in his godown,
himself remaining behind the scence;
that in a number of cases railway properties
were loaded and carried away in a truck owned by the detenu and, thus, the work
of maintenance of the tracks was hampered and quick movement of the wagons
loaded with essential commodities such as foodgrains, arms, ammunition required
by the general public and the armed forces could not be made.
The grounds indicated six different cases in
which the detenu was involved, out of which in two cases he was acquitted and
four cases were pending against him on the date of the passing of detention
order. Each of the grounds indicated in the detention order individually and
collectively was not only germane but also sufficient to satisfy the detaining
authority with a view to preventing the detenu from acting in any manner
prejudicial to the maintenance of supplies and services essential to the
community and as such it was necessary to detain him.
838 The grounds were communicated to the
detenu under s. 8 of the Act read with Art. 22(5) of the Constitution. Copies
of the documents mentioned in the detention order and placed before the
detaining authority were enclosed with the detention order sent to the detenu.
The detenu was informed that he had a right to make a representation to the
State Government against the order of detention, that he should address it in
the manner indicated therein, that the State Government would within three
weeks from the date of detention make a reference to the Advisory Board
constituted under s. 9 of the Act to make a report of detention and that he had
right to make the representation to the Advisory Board and if he wanted he
would be heard in person by the Advisory Board if necessary.
A reference under s. 10 of the Act was made
to the Advisory Board and the Advisory Board considered the representation
dated January 8, 1986 of the detenu at the time of interviewing him on January
29, 1986. The Board submitted its report under s. 12(1) of the Act on February
3, 1986, which was received by the Government within the stipulated period of 7
weeks from the date of the detention, and the Government after considering the
representation of the detenu and the report of the Advisory Board confirmed the
defention order.
The detenu challenged the detention order
under Article 226 of the Constitution alleging: (i) that the order was mala
fide; (ii) that there was total absence of material;
and (iii) that in any event the provisions of
National Security Act, 1980 were not attracted but the provisions of the
Prevention of Black-marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 would be attracted.
A Division Bench dismissed the petition
holding that permanent way material is essential to the maintenance of railway
track and safety of the railway travelling public;
that there were good grounds for detention
and it was not possible to hold that there were no grounds of detention
relevant for the Act; that only National Security Act was attracted in the
facts and circumstances of the instant case.
In the Special Leave Petition and the
Petition under Article 32, on behalf of the detenu it was contended; (i) that
the grounds of detention were vague, irrelevant and non-existent; (ii) that the
grounds of detention related to as far back as 1979 and, therefore, it was not
open to the detaining authority to order detention on those grounds because in
respect of the alleged grounds criminal cases were pending against him 839 and
he had been enlarged on bail; (iii) that when a judicial authority was
satisfied on the materials placed before it that there were no grounds for
keeping the detenu in detention, on the same materials the executive authority
could not substitute the judicial judgment and order detention to prevent to
detenu from acting in a manner prejudicial to the interest of the community;
(iv) that in view of the fact that the detenu was on bail, the power of
preventive detention had been used to defeat the provisions of the Code of
Criminal Procedure (v) that the alleged grounds were merely allegations of
ordinary criminal cases which either had ended in acquittal or in respect of
which appeals were pending or were pending determination and as such the
formation of the belief by the detaining authority for the detention order was
merely on surmises and on materials which the detaining authority was not
competent to take note of; (vi) that the pending criminal cases did not
disclose any activity of the detenu prejudicial to the maintenance of supplied
and services essential to the community. The connection of the detenu with the
alleged offences was not there and as such the satisfaction could not be there
of the detaining authority. The detenu was in no manner connected with the
alleged theft committed by certain named persons and though the ownership of
the truck attributed to the detenu was not denied or disputed but the involvement
of the detenu did not follow from that fact.
Dismissing the Writ Petition and the Special
Leave Petition, ^ HLED: (1) There was no infraction of any procedural safeguard
engrafted in National Security Act, 1980 and that there was rational subjective
satisfaction arrived at bona fide on the basis of the materials available to
the detaining authority and the materials had rational nexus with the purpose
and object of the detention as contemplated by the Act. The detention order was
therefore valid. [865A- B] (2) In view of the Explanation to s. 3 of the
Prevention of Blackmarketing and Maintenance of Supplies Act, 1980, (Act 7 of
1980) the expression "acting in any manner prejudicial to the maintenance
of supplies of commodities essential to the communities" has certain
particular connotation. But in the instant case, the conduct of the detenu was
prejudicial to the maintenance of supplies and services essential to the
community in general and contemplated by s. 3(2) of the National Security Act
and not in any particular mode contemplated by the Explanation to s. 3(1) of
Act 7 of 1980 and as such is not excluded by the Explanation to sub-s. (2) of
s. 3 of the Act. Therefore the High Court was right in the view it took on this
aspect of the matter. [853B-D] 840 (3) Even the existence of one ground is
sufficient to sustain the detention order. [853F] (4) An order is mala fide
when there is malice in law although there is no malice in fact. The malice in
law is to be inferred when order is made contrary to the objects and purposes
of the Act. Whether in any particular case this is so or not must depend upon
the facts and circumstances of the case. The fact that the person sought to be
detained is in fact under detention is a relevant and material factor but the
allegations or the incidents leading to his detention have also to be borne in
mind co-related to the object of a particular Act under which preventive
detention is contemplated. [854E-F] (5) The National Security Act, 1980
provides for preventive detention in certain cases. Power has been given under
s. 3 authorising preventive detention and sub-s. (2) thereof provides that the
Central Government or the State Government might, if satisfied with respect to
any person that with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order or from acting in any manner
prejudicial to the maintenance of supplies and services essential to the
community it was necessary so to do, make an order directing that such person
be detained then the same can be done. The Explanation to this sub-section
makes it clear that the expression "acting in any manner prejudicial to
the maintenance of supplies and services essential to the community" does
not include "acting in any manner prejudicial to the maintenance of supplies
of commodities essential to the community" as defined in the Explanation
to sub-s. (1) of s. 3 of the Prevention of Black-marketing and Maintenance of
Supplies of Essential Commodities Act 1980. [854F-H; 855A-B] (6) Merely on the
ground that an accused in detention as an under-trial prisoner is likely to get
bail, an order of detention under the National Securuity Act should not
ordinarily be passed. If the apprehension of the detaining authority is true,
the bail application has to be opposed and in case bail is granted, challenge
against that order in the higher forum has to be raised. But this principle
will have to be judged and applied in the facts and circumstances of each case.
Where a person accused of certain offences whereunder he is undergoing trial or
has been acquitted, the appeal is pending and in respect of which he may be
granted bail may not in all circumstances entitle an authority to direct
preventive detention and the said principle must apply but where the offences
in respect of which the detenu is acused are so inter-linked and continuous in
character and are of such nature that these affect 841 continuous maintenance
of essential supplies and thereby jeopardise the security of the State, then
subject to other conditions being fulfilled, a man being in detention would not
detract from the order being passed for preventive detention. [855D-G] Ramesh
Yadav v. District Magistrate, Etah and Others [1985] 4 SCC 232 followed.
(7) For maintaining supplies throughout the
country, the railways is per se essential and, therefore, interference with
railway lines would be endangering the maintenance of supplies. [856D] Mohd.
Subrati Alias Mohd. Karim v. State of West Bengal [1973] 2 SCR 990 at 992
followed.
(8) The past conduct or antecedent history on
which the authority purport to act should ordinarily be proximate in point of
time and have a rational connection with the conclusion that the detention of
the person was necessary.
[861F] Rameshwar Shaw v. District Magistrate,
Burdwan & Anr. [1964] 4 SCR 921 followed.
(9) Whether an order of detention could be
passed against a person who was in detention or in jail would always have to be
considered in the facts and circumstances of each case. [864E] Makhan Singh
Tarsikha v. State of Punjab [1964] 4 SCR 932 followed.
(10) Merely because the detaining authority
had chosen to base the order of detention on the discharge of the detenu by
Court for want of evidence it could not be held that the order was bad in law.
This branch of jurisprudence, as interpreted by this Court, has made it futile
for a detenu to urge that because the ground of detention had been subject
matter of criminal cases which had ended in discharge, therefore, the order of
detention was mala fide.
The basic imperative of proof beyond
reasonable doubt did not apply to the component of subjective satisfaction for
imprisonment for reasons of internal security. There might be extreme cases
where the Court had held a criminal case to be false and the detaining
authority for want of evidence claimed to be satisfied about prospective
prejudicial activities based on what a Court had found to be baseless.
There must be a live link between the 842
grounds of criminal activities alleged by the detaining authority and the
purposes of detention. This credible chain is snapped if there was too long and
unexplained interval between the offending acts and order of detention. If the
detaining authority took the chance of conviction and, when the Court verdict
went against it, fell back on its detention power to punish one whom the Court
would not convict, it was an abuse and virtual nullification of the judicial
process. But if honestly, finding a dangerous person getting away with it by
over-awing witnesses or concealing the Commission cleverly, an authority thought
on the material before it that there was need to interdict public disorder at
his instance he might validly direct detention. [862A-D] (11) It was always the
past conduct, activities or the antecedent history of a person which the
detaining authority took into account, in making a detention order. No doubt
the past conduct, activities or antecedent history should ordinarily be
proximate in point of time and should have a rational connection with the
conclusion that the detention of the person was necessary but it was for the
detaining authority who had to arrive at a subjective satisfaction in
considering the past activities and coming to his conclusion if on the basis of
those activities he was to be satisfied that the activities of the person
concerned were such that he was likely to indulge in prejudicial activities
necessitating his detention. Where an earlier order of detention was either
revoked or had expired, any subsequent detention order could be passed only on
fresh facts arising after the expiry or revocation of the earlier order. [861F-
H] Masood Alam Etc. v. Union of the India and Others [1973] 1 SCC 551 followed.
(12) Mere service of detention order in jail
per se is not bad.
(13) The law of preventive detention is a
hard law and therefore should be strictly construed. Care should be taken that
the liberty of the person was not jeopardised, unless the case fell squarely
within the four corners of the releyant law. The law of preventive detention is
not to be used merely to clip the wings of the accused who was involved in a
criminal prosecution. Where a person was enlarged on bail by a competent
criminal Court, great caution should be exercised in scrutinising the validity
of an order of preventive detention which was treated on the very same charge
which was to be tried by the criminal Court. [863A-B] Vijay Narain Singh v.
State of Bihar & Ors. [1984] 3 SCR 435 followed.
843 (14) Having regard to the purpose of the
Act, the detaining authority must take into consideration rational, proximate,
reasonable past and present and that should be the basis for the horoscope for
the future so as to determine whether the person proposed to be detained comes
within the mischief of the Act. If the person is in detention or is under trial
and his conviction is likely but his conduct comes within the mischief of the
Act then the authority is entitled to take a rational view of the matter.
The grounds must be there. The decision must
be bona fide.
[863D-F] (15) The fact that a man is not in
jail per se would not be determinative of the factor that order of preventive
detention could not be passed against him. The fact that a man was found not
guilty in a criminal trial would not also be determinative of the factors
alleged therein. All these factors must be objectively considered and if there
are casual connections and if bona fide belief was formed then there was
nothing to prevent from serving an order of preventive detention even against
the person who was in jail custody if there is imminent possibility of his
being released and set at liberty if the detaining authority was duly
satisified. [864E-G] Ramesh Yadav v. District Magistrate, Etah and Others
[1985] 4 SCC 232, Rameshwar Shah v. District Magistrate Burdwan & Anr.
[1964] 4 SCR, 921 and Makhan Singh Tarsikka v. State of Punjab [1964] 4 SCR 932
distinguished.
Maledath Bharathan Malyali v. The
Commissioner of Police AIR 1950 Bombay 202, Merugu Satyanarayan Etc. Etc. v. State
of Andhra Pradesh and Others [1983] 1 SCR 635, Golam Hussain Alias Gama v. The
Commissioner of Police Calcutta and Others [1974] 3 SCR 613, Sahib Singh Dugal
v. Union of India, [1966] 1 SCR 313, Mohd. Salim Khan v. Shri C.C. Bose
Bengal [1972] 2 SCC 550, Godavari Shamrao
Parulekar v. State of Maharashtra & Others [1964] 6 SCR 446, Gopi Ram v.
State of Rajasthan AIR 1967 SC 241, Masood Alam Etc. v. Union of India and
Others [1973] 1 SCC 551, Dulal Roy v. The District Magistrate, Burdwan &
Others [1975] 1 SCC 837, Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur
and Another, [1975] 4 SCC 164 at 167 and 169, The Barium Chemicals Ltd. &
Anr. v. The Company Law Board and Others [1966] Supp. SCR 311 at 354 and 363,
Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and
Others [1985] Supp. SCC 144 and Shiv Ratan Makim s/o.
Nandlal Makim v. Union of India and Others
[1986] 1 SCC 404 considered.
844 & ORIGINAL/CRIMINAL APPELLATE
JURISDICTION: Writ Petition (Criminal) No. 296 of 1986.
Under Article 32 of the Constitution of
India.
with Special Leave Petition (Criminal) No.
1265 of 1986 From the the Judgment and Order dated 27.2.1986 of the Bombay High
Court in Crl. Writ Petition No. 1 of 1986.
R.K. Garg and Sunil K. Jain for the
Petitioner.
S.B. Bhasme, A.S. Bhasme and A.K. Khanwilkar
for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Writ Petition No. 296 of 1986 and Sepcial Leave
Petition (Criminal) No. 1265 of 1986 are connected and relate to an order of
detention of one Rampal Sahu dated 16th December, 1985 under section 3(2) of
the National Security Act, 1980 (hereinafter called the said 'Act'). These are
dealt with by this judgment.
The said Rampal Sahu (hereinafter called 'the
detenu' was detained by the aforesaid order which was served on him on 17th
December, 1985 with the grounds of detention.
According to the writ petition as well as the
special leave petition the grounds of detention served on the detenu did not
disclose any violation of the Essential Commodities Act or Essential Services
Maintenance Act. In the premises it is the contention of the petitioner that
the detention was illegal and unconstitutional. The State of Maharashtra
approved the detention on 24th December, 1985.
The detention order as mentioned hereinbefore
was under section 3(2) of the said Act. The detenu was arrested on 17th
December, 1985 and the grounds of detention were served on the same day. The
order alleged, inter alia, that since the year 1979, the detenu had been
continuously engaging himself in committing acts prejudicial to the maintenance
of supplies and services essential to the community i.e., removing of permanent
way material stocked along rail lines for 845 maintenance of rail tracks
removing parts of carriages, Wagons and Signal Telecommunication materials
utilised for repair of Railway Wagons and maintenance of singnals. It was
further alleged that the said detenu used to arrange to remove railway property
with the help of his 'gang' and stock the same in his godown, himself remaining
behind the scene. It was alleged that in a number of cases railway properties
were loaded and carried away in truck No. MHG 6302 which was owned by the
detenu. It was stated that he was indulging in removing railway material which
was stocked along the rail tracks for the maintenance of the tracks, thus the
work of maintenance of the tracks was hampered and quick movement of the wagons
loaded with essential commodities such as food-grains, arms, ammunition
required by the general public and the armed forces could not be made. Such
acts were prejudicial, according to the order of detention, to the maintenance
of supplies and services essential to the community.
The grounds further indicated six different
cases. The case numbers were:
1. P.S. Deori Crime No. 69/83 u/s 379, 34
I.P.C. decided by the J.M.F.C. Sakoli vide C.C. No.
50/84.
2. R.P.E. Post Ajni Crime No. 20/84 u/s 3
R.P. (UP) Act, 1966 An appeal u/s 378 of the code of Criminal Procedure is
being filed in the High Court against the order of aquittal dated 24/5/85
passed by the J.M.F.C., Railway Court Nagpur, vide C.C. No. 362/84.
3. R.P.F. Post Ajni Crime No. 43/84 u/s 3 RP
(UP) Act 1966 pending trial before the J.M.F.C. (Rly.).
Nagpur, vide C.C. No. 153/85.
4. P.S. Kamptee Crime No. 195/84 u/s 379,
411, 34 I.P.C. pending trial before the J.M.F.C., VIII Court, Nagpur, vide C.C.
No. 200/84.
5. P.S. Kamptee Crime No. 53/85 u/s 379, 34
IPC under investigation.
6. R.P.F. Post Ajni Crime No. 41/85 u/s 3
RP(UP) Act pending trial before the J.M.F.C. (Rly.) Court, Nagpur, vide C.C.
No. 212/85.
846 The incident in the first case was
alleged to have taken place on 26th December, 1983. It was alleged that a truck
bearing Registration No. MHG 6302 was standing near the iron bridge on the
National Highway and some thieves were trying to cut the steel girders meant
for constructing road bridge for removing the same. Other particulars were
named therein and the names of two persons were also mentioned. There was some
stealing. The stolen property including steel girders and the truck mentioned above
were seized. It appears that the truck was owned by the detenu.
The detenu was arrested on 26th February,
1984 and the aforesaid two persons were convicted under section 379 read with
section 34 I.P.C. The detenu, however, was acquitted.
In the second case report had been received
that some railway material including 32 Lbs. CST 9 plates and tie bars were
stolen from the railway track in between Borkhedi and Sindi Railway Stations by
a gang of culprits who threatended the witness, i.e., the chowkidar on duty and
took away the railway property in a Matador. During enquiry into the above
complaint, it transpired that the stolen property was unlawfully kept by the
detenu in his godown at Nagpur and a search warrant was obtained and the stolen
railway property valued at Rs.25,000 was recovered from the godown of the
detenu on 19th June, 1984. The detenu was acquitted by the Magistrate but an
appeal had been preferred in the High Court of Nagpur and the same was pending
when the detention order was passed. It was further stated that the permanent
way material was essential for the maintenance of the railway tracks and the
safety of the travelling public. It was normally kept at secure places near the
track for ready availability for replacing the broken or unserviceable material
in the track. The trains were required to be detained as a result of theft
causing loss to the Government and there was delay in making supplies to the
public. It was further alleged that as many as 28 wagons were marked sick for
repairs and were sent to Ajni workshop for repairs, for want of the required
spare parts which were seized from the unlawful possession of the detenu.
According to the order of detention, as a result the Government and public
indents of Wagons totalling 792 could not be cleared for loading different
commodities to be supplied in various parts of the country.
In case No. 3, a report had been received
that at a particular point between Buti Bori & Umrer section at some Km.
near the railway crossing gate, 400 fish plates were stolen. The enquiry had
revealed that the stolen property was unlawfully obtained and kept by 847 the
detenu at certain place at Nagpur. A search warrant was obtained and 400 fish
plates and carriage and Wagon parts were recovered from the godown of the
detenu. In the premises the detenu was arrested on 14th December, 1984 and the
aforesaid case i.e., third case was pending on the date of the order of
detention. It is the case of the Government that due to the unlawful possession
of the railway property by the detenu, as many as ten wagons had to be marked
sick and could not be made available to the public and the Government for
loading different essential commodities to be supplied in different parts of
the country in the month of December, 1984. As a result of this, as many as
3224 indents put up by the Government and the public for the supply of wagons
could not be cleared due to shortage of empty wagons.
The fourth case related to an offence under
section 379 I.P.C. which was registered against the detenu under sections 379,
411 and 34 I.P.C. and was pending trial in Nagpur. The complaint was to the
effect that 128 CST-9 plates were stolen from five points between Kamptee &
Kalmana Railway Line and these were valued at Rs.4608. The property was loaded
in truck bearing No. MHG 6302 owned by the detenu. The truck driver was
arrested and the property was recovered from the godown of the detenu at the
instance of the driver. The detenu was arrested in connection with this case on
3rd December, 1984, and the case was pending on the date of the issue of the
detention order.
Regarding the fifth case it may be mentioned
that an offence was alleged to have been committed by the detenu under section
379 read with section 34 I.P.C. on the complaint of certain person who was
working as a Manager of the Jamshedpur Transport Corporation, Nagpur. It was
reported that three bundles of Aluminium wire weighing about 500 kgs. valued at
Rs.1,60,000 were stolen by some unknown criminals on 21st March, 1985. During
investigation it was disclosed that the culprits belonged to the 'gang' of the
detenu and that they had threatened the chowkidars on duty and forcibly removed
the aluminium wire bundles. It was stated in the detention order that the
detenu was the main brain behind this big daring robbery and he used his truck
bearing No. MHG 6302 for transporting the stolen property.
The detenu anticipating arrest moved the
court and obtained anticipatory bail with a view to avoid arrest by the police.
The case was pending investigation. It was
further stated that the aluminium wire which was stolen was meant for the use
of various public and Govt. departments and due to aforesaid criminal activity
as indicated above the supply of 848 the wire could not be maintained as it was
broken into pieces and made unserviceable.
In respect of the sixth case it was further
alleged that on receiving information that 90 Lbs, rails 31 meters long were
received and kept unlawfully by the detenu in his godown at Nagpur, the
inspector of the C.I.B. and Railway Protection Force raided the godown on 22nd
May, 1985 and seized 90 Lbs. rails about 30 meters long, break and some new
steel sleepers and other materials. The stolen property was worth Rs.20,000.
The detenu was arrested in this case on 22nd May, 1985. The case was pending
trial on the date of the issue of the detention order in Nagpur. It is the case
of the detaining authority that due to this unlawful possession of break-locks
by the detenu, four wagons were marked sick and had to be sent to the Railway
Carriage and Wagon Workshop at Ajni for repair, as a result was indents put up
to the Railway Administration by the Public and the Government to provide the
empty wagons for supply of the different commodities in the different parts of
country could not be complied with.
In the backdrop of the aforesaid grounds it
was further stated that the activities of the detenu were prejudicial to the
maintenance of supplies and services essential to the community. It was further
alleged that each of the grounds indicated above individually and collectively
was not only germane but also sufficient to satisfy the detaining authority
with a view of preventing the detenu from acting in any manner prejudicial to
the maintenance of supplies and services essential to the community and as such
it was necessary to detain him. It was further stated that these grounds were
communicated to the detenu under setion 8 of the aforesaid Act read with
article 22(5) of the Constitution of India upon which the detention order had
been made. Copies of the documents mentioned in the said order which were
placed before the detaining authority were enclosed with the detention order
sent to the detenu. He was further informed that he had a right to make a
representation to the State Government against the order of detention and would
be afforded the earliest opportunity to make such a representation. He was
further informed that he should address it in the manner indicated therein. He
was informed that the State Government would within three weeks from the date
of detention of the detenu make a reference to and place the requisite material
before the Advisory Board constituted under section 9 of the said Act and
asking them to make a report of detention within seven weeks. He was informed
that he had a right to make the representation to the Advisory Board and if 849
he wanted, he would be heard in person by the Advisory Board in the course, if
it found it necessary.
In this petition under article 32 of the
Constitution, it is the case of the petitioner on behalf of the detenu that the
grounds of detention were vague, irrelevant and non-existent. It was further
urged on behalf of the petitioners that the grounds of detention on which the
detenu was detained relating to as far back as 1979. It was not open to the
detaining authority to order detention of the detenu on the said grounds. It
was highlighted that in respect of alleged grounds, criminal cases were pending
against the detenu and he had been enlarged on bail. It was submitted that when
a judicial authority was satisfied on the materials placed before it that there
were no grounds for keeping the detenu in detention, on the same materials the
executive authority namely, the detaining authority could not substitute the judicial
judgment and order detention to prevent the detenu from acting in a manner
prejudicial to the interest of the community.
It was submitted by Mr. Garg on behalf of the
detenu that in this case in view of the fact that the detenu was on bail, the
power of preventive detention was being used to defeat the provisions of the
Code of Criminal Procedure and ordinary normal procedure. It was further the
submission of Mr. Garg that the alleged grounds were merely allegations of
ordinary criminal cases which either had ended in acquittal or in respect of
which appeals were pending or were pending determination and as such the
formation of the belief by the detaining authority for the detention order was
merely on surmises and on materials which the detaining authority was not
competent to take note of. With reference to the various pending cases, it was
submitted on behalf of the detenu that these criminal cases did not disclose
any activity of the detenu prejudicial to the maintenance of supplies and
services essential to the community. The connection of the detenu with the
alleged offences was not there and as such the satisfaction could not be there
of the detaining authority. The detenu according to the petitioner, was in no
manner connected with the alleged theft committed by certain named persons and
though the onwership of the truck attributed to the detenu was not denied or
disputed but the involvement of the detenu did not follow from that fact, it
was submitted on behalf of the detenu.
It is further the case on behalf of the
detenu and the submission of Mr. Garg that it was not open to the detaining
authority to use the allegations of the criminal cases to justify 'preventive
detention'. It 850 was further his submission that these did not establish proximate
relation either with the maintenance of supplies or services essential to the
life of the community nor did these involve any violation of relevant laws made
by the Parliament dealing with the maintenance of supplies of essential
commodities or maintenance of essential services.
It is the case on behalf of the detenu that
preventive detention is no substitute for detention under the ordinary criminal
law. According to the petitioner, there was no allegation against the detenu of
any violation of Essential Commodities Act or any provision of the Maintenance
of Essential Services Act. The grounds mentioned were cases of ordinary theft
and should have been proceeded against under the ordinary law of crimes. The
detenu was released on bail.
The connection of the detenu with the removal
of fish plates for the supply of wagons was too remote to be any basis of
satisfaction. In fourth case the detenu was on bail and detenu could not be
kept under preventive detnetion in derogation of his liberty granted by bail by
the appropriate judicial authority. Regarding the fifth case, the detenu had
already been granted anticipatory bail. The order of the court could not be
defeated by keeping the detenu in preventive detention, it was submitted by Mr.
Garg. It was urged that requisite satisfaction required under section 3(2) of
the said Act was not in fact formed and could not have been formed on the
grounds alleged nor was there any rational connection for the formation of such
satisfaction.
The alleged incidents were denied and it was
further submitted that if at all mere infractions of ordinary law could not
fall in the category of public order or violation of any law indicated to the
maintenance of supply or essential services. It was open to justify the order of
detention even if one or more of the six grounds were found to be relevant. The
documents, further, did not disclose factual connection with the alleged
offences. No statement of the witnesses had been supplied except one related in
ground No. 5, it was urged in the petition.
It was further submitted that the provisions
of Act 7 of 1980 being Prevention of Blackmarketing and Maintenance of Supplies
of Essential Commodities Act, 1980 could perhaps have application and in view
of Explanation to Section 3(2) of the Act, the impugned order was bad. Our
attention was drawn to the provisions of the said Act of 1980. Section 3(1) and
(2) of the said Act reads as follows:
"Power to make orders detaining certain
persons- (1) The Central Government or a State Government or any officer of the
Central Government, not below the rank of a Joint Secretary to that Government
specially 851 empowered for the purposes of this section by that Government, or
any officer of a State Government, not below the rank of a Secretary to that
Government specially empowered for the purposes of this section by that
Government, may, if satisfied, with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the maintenance of
supplies of commodities essential to the community it is necessary so to do,
make an order directing that such person be detained.
Explanation-For the purposes of this
sub-section, the expression "acting in any manner, prejudicial to the
maintenance of supplies of commodities essential to the community" means:-
(a) committing or instigating any person to commit any offence punishable under
the Essential Commodities Act, 1955 (10 of 1955), or under any other law for
the time being in force relating to the control of the production, supply or
distribution of, or trade and commerce in, any commodity essential to the
community; or (b) dealing in any commodity- (i) which is an essential commodity
as defined in the Essential Commodities Act, 1955 (10 of 1955), or (ii) with
respect to which provisions have been made in any such other law as is referred
to in clause (a), with a view to making gain in any manner which may directly
or indirectly defeat or tend to defeat the provisions of that Act or other law
aforesaid.
(2) Any of the following officers, namely:
(a) District Magistrates:
(b) Commissions of Police, wherever they have
been appointed, may also, if satisfied as provided in sub-section 852 (1),
exercise the powers conferred by the said sub-section.
In answer to the petition in the affidavit of
the opposition filed on behalf of the respondent, it was stated that the detenu
Rampal Sahu was detained and a reference had been duly made under section 10 of
the said Act to the Advisory Board. The detenu was interviewed by the Advisory
Board on 29th January, 1986 and the Board had submitted its report under
section 12(1) of the said Act on 3rd February, 1986 which had been received by
the Department on the same day. As such the report of the Advisory Board was
received by the Government within the stipulated period of seven weeks from the
date of detention as required by the law.
The detenu had submitted his representation
dated 8th January, 1986 to the Advisory Board which was considered by the Board
at the time of his interview before the Board on 29th January, 1986. The said
representation was received by the Home Department along with the report of the
Advisory Board and was considered together with the report of the Advisory
Board by Government and the detention order was confirmed by the Government
Order. All procedural safeguards of law were duly followed. There was no breach
of the same.
It is not necessary to reiterate the
affidavit in reply.
As has been mentioned hereinbefore, on the
same facts, the petition under article 226 had been filed in the High Court at
Nagpur. The said application was dismissed by a Division Bench of the High
Court on 27th February, 1986. The petitioner has come up from the said decision
which is the next matter being Special Leave Petition No. 1265 of 1986 and same
will be disposed of by this judgment.
The High Court in its judgment referred to
the grounds.
It reiterated that permanent way material is
essential to the maintenance of railway track and safety of the railway
travelling public. After referring to the various grounds referred to
hereinbefore, the High Court has noted that three points were urged before it
on behalf of the detenu namely; (1) the order was mala fide, (2) there was
total absence of material, and (3) in any event the provisions of the
Prevention of Black-marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 being Act of 1980 would be attracted. The High Court
referred to the affidavits of the Commissioner of Police who passed the
detention order which was filed in the High Court and found that there were
good grounds for detention and it was not possible to hold that there were no
grounds of detention relevant for the Act.
853 The High Court referred to the expression
'acting in any manner, prejudicial to the maintenance of supplies of
commodities essential to the community' as mentioned in Explanation to section
3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980. The High Court was of the view that it was clear that
only National Security Act was attracted in the facts and circumstances of this
case.
In view of the Explanation to section 3 of
Act 7 of 1980, it appears "acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the community" has
certain particular connotation. But in the instant case the Act under
consideration, the conduct of the detenu was prejudicial to the maintenance of
supplies and services essential to the community in general as contemplated by
section 3(2) and not in any particular mode contemplated by Explanation to
section 3(1) of Act 7 of 1980 and as such is not excluded by the Explanation to
sub- section (2) of section 3 of the Act. In the premises we are therefore of
the opinion that the High Court was right in the view it took on this aspect of
the matter. We are also of the opinion that for the same reason, the same
contentions urged before us in support of the writ petition cannot be
sustained.
As mentioned hereinbefore, before the High
Court also the insertion of section 5A of the Act by the National Security
(Second Amendment) Act, 1984 was challenged under which even the existence of
one ground is sufficient. Before us no ground was canvassed about the validity
of the said Amendment and inclusion of section 5A of the Act.
It must therefore be held that even the
existence of one ground was sufficient to sustain the detention order.
Mr. Garg drew our attention to certain observations
of Chagla, C.J., in a Full Bench decision of the High Court of Bombay in
Maledath Bharathan Malyali v. The Commissioner of Police AIR 1950 Bombay 202.
That was a case under the Bombay Public Security Measure Act being Act No. 6 of
1947. There was an order of detention under section 2(A1) of the Act for the
collateral purpose. It was held that when the detaining authority had made up
his mind to detain a person who was alleged to have committed an offence, then,
the detaining authority had made his choice and it would not be permissible,
according to that decision, for him to investigate the offence while still
keeping the person under detention and not complying with the provi- 854 sions
of the law with regard to investigation. If the purpose of detaining a person
was a collateral purpose i.e., to deprive him of his rights and safeguards
under the Criminal Procedure Code and to carry on an investigation without the
supervision of the Court then the detention was mala fide and could not be
justified. Chagla, C.J. at page 203 speaking for the Full Bench observed that
an order of detention under the Security Act could only be justified in a Court
of law provided it was made bona fide; and order of detention could not be made
for an ulterior motive or for a collateral purpose. The detaining authority, it
was further observed, must only consider the objects for which the Act was
passed and the only consideration which must weigh with the detaining authority
was public safety, maintenance of public order and the preservation of peace
and tranquility in the Province of Bombay. If in making the order his mind was
influenced by any consideration extraneous to the Act, then the order would be
bad and could not be upheld. The question that the Court had to consider in
that case was whether in making the order the Commisioner of Police was
influenced by any collateral purpose and whether any extraneous factor had
weighed on his mind when he made the order. When we speak of an order being
made mala fide, it did not mean that the Court attributed to the detaining
authority any improper motive.
An order is mala fide when there is malice in
law although there is no malice in fact. The malice in law is to be inferred
when an order is made contrary to the objects and purposes of the Act. Whether
in any particular case this is so or not must depend upon the facts and
circumstances of the case. The fact that the person sought to be detained is in
fact under detention is a relevant and material factor but the allegations or the
incidents leading to his detention have also to be borne in mind and co-related
to the object of a particular Act under which preventive detention is
contemplated. In the instant case, the Act was The National Security Act, 1980.
It was an Act to provide for preventive detention in certain cases and for
matters connected therewith. Power has been given under section 3 authorising
preventive detention of any person from acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers and of the
security of India. Sub-section (2) of section 3 provides that the Central
Government or the State Government might, if satisfied with respect to any
person that with a view to preventing him 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 or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community it was
necessary so to do, make an order 855 directing that such person be detained
then the same can be done, (emphasis supplied). The Explanation to this sub-
section makes it clear that the expression "acting in any manner
prejudicial to the maintenance of supplies and services essential to the
community" does not include "acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the community" as
defined in the Explanation to sub-section (1) of section 3 of the Prevention of
Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980,
as we have noted before.
Our attention was drawn to several
authorities where this Act has been considered.
In a recent decision of this Court, one of us
(Ranganath Misra, J) had to consider the effect of passing order for preventive
detention where the detenu was in jail.
In Ramesh Yadav v. District Magistrate, Etah
and Others [1985] 4 SCC 232 it was held that merely on the ground that an
accused in detention as an under-trial prisoner was likely to get bail, an
order of detention under the National Security Act should not ordinarily be
passed. If the apprehension of the detaining authority was true, Court
observed, the bail application had to be opposed and in case bail was granted,
challenge against that order in the higher forum had to be raised. We respectfully
agree with this conclusion. But this principle will have to be judged and
applied in the facts and circumstances of each case. Where a person accused of
certain offences whereunder he is undergoing trial or has been acquitted, the
appeal is pending and in respect of which he may be granted bail may not in all
circumstances entitle an authority to direct preventive detention and the
principle enunciated by the aforesaid decision must apply but where the
offences in respect of which the detenu is accused are so inter-linked and
continuous in character and are of such nature that these affect continuous
maintenance of essential supplies and thereby jeopardize the security of the
State, then subject to other conditions being fulfilled, a man being in
detention would not detract from the order being passed for preventive
detention. Merugu Satyanarayana Etc. Etc. v. State of Andhra Pradesh and Others
[1983] (1) SCR 635 was a case dealing with an order under section 3(2) of the
Act.
There this Court found that the affidavit in
opposition supporting the reply to the show cause notice was not from the
person who passed the detention order. There the affidavit was of a
sub-inspector of police at whose instance the arrest was made and could not
therefore satisfy the constitutional mandate 856 that will be treated as
nonest. In the instant case before us a point was made that the counter was
made by a desk clerk of the Home Department in writ petition. This would have
been a fatal defect and the government's view could not have been considered
but there was an application under article 226 of the Constitution before the
High Court challenging the identical detention order on the same grounds.
Before the High Court Sree Malhotra and Sree S.K. Seth who were the
Commissioners of Police had filed two separate affidavits upholding the issue
of the detention order and explaining the grounds and the reasons for the same.
If those affidavits are taken into consideration, as these must-be then there
is no substance in this ground. In the aforesaid case assurance was given
before this Court in an earlier case that preventive detention would not be
resorted to against political opponents. In the said decision the facts were
entirely different. That was a case affecting the liberty of a subject on
political consideration.
For maintaining supplies throughout the
country the railways was per se essential, and, therefore, interference with
railway lines would be endangering the maintenance of supplies-see the
observations of this Court in Mohd. Subrati Alias Mohd. Karim. v. State of West
Bangal [1973] 2 SCR 990 at 992.
This Court in Remeshwar Shaw v. District
Magistrate, Burdwan & Anr., [1964] 4 SCR, 921 had to deal with preventive
detention of a person who was in jail custody.
There the petitioner was detained by an order
of the District Magistrate under the provisions of the Preventive Detention
Act, 1950. The order recited that the District Magistrate was satisfied that it
was necessary to detain the petitioner with a view to prevent him from acting
in a manner prejudicial to the maintenance of Public order. This order was
served on the petitioner on the 15th February, 1963, while he was in jail
custody as an under-trial prisoner in connection with a criminal case pending
against him.
It was urged on behalf of the petitioner in
that case that the detention of the petitioner was not justified by the
provisions of section 3(1) of the Preventive Detention Act, 1950. It was noted
by Justice Gajendragadkar at page 925 of the report speaking for the Court that
the basis of the order of detention which the authority was empowered to pass
against a person under section 3(1)(a) was that if the said order was not
passed against him, he might act in a prejudicial manner. In other words, the
authority considered the material brought before it in respect of the person,
examined the said material and reached the conclusion that the material showed
that the said person 857 might indulge in prejudicial activities if he was not
prevented from doing so by an order of detention. The Court then posed the
question how could the authority come to the conclusion that the person who was
in jail custody might act in a prejudicial manner unless he was detained. The
learned judge was of the view that the scheme of the section postulated that if
an order of detention was not passed against a person, he would be free and
able to act in a prejudicial manner. In other words, at the time when the order
of detention was brought into force, the person sought to be detained might
have freedom of action. That alone would justify the requirement of the section
that the order of detention was passed in order to prevent a prejudicial
conduct, of the person which took place in that case ten years before the date
of detention and nothing was known against the person indicating i.e., the
tendency to act in a prejudicial manner. Even if it was ten years old, the
authority was satisfied that detention was necessary. The court also noted that
the past conduct or antecedent history on which the authority purported to act
should ordinarily be proximate in point of time and have a rational connection
with the conclusion that the detention of the person was necessary. The court,
however, further held that as an abstract proposition of law, there might not
be any doubt that section 3(1)(a) of the said Act did not preclude the
authority from passing an order of detention against a person while he was in
detention or in jail. But the relevant facts in connection with the making of
the order might be different and that might make a difference in the
application of the principle that the order of detention could be passed
against a person in jail. The Court, however, was reluctant to lay down any
inflexible test. In that case the petitioner was ordered to be released on the
ground that he was served with the order of detention while he was in jail
custody. In the instant case before us, the petitioner is not in jail custody.
In Makhan Singh Tarsikka v. State of Punjab
[1964] 4 SCR 932 the court was concerned more or less with the same facts. The
court observed at p. 937 of the report that the aspect of the matter which was
emphasised in the case of Rameshwar Shaw (supra) was the relevance of
considerations of proximity of time and concluded that whether an order of
detention could be passed against a person who was in detention of in jail
would always have to be considered in the facts and circumstances of each case.
The order of detention in that case was also set aside in view of the facts
mentioned therein.
In Golam Hussain Alias Gama v. The
Commissioner of Police, Calcutta and Others [1974] 3 SCR 613 the question arose
under sec- 858 tions 3(1) and 3(2) of the Maintenance of Internal Security Act,
1971. There pursuant to an order under section 3(1)(a)(ii) read with section
3(2) of the said Act the petitioner in that case was arrested for hurling soda
water bottles, brick-bats and bombs indiscriminately on a group of persons on
different dates. The order of detention said that if left free and unfettered
the petitioner was likely to continue to disturb maintenance of public order by
acting in similar manner. In an earlier criminal case the petitioner was
discharged since no witness deposed against him in open court. Thereafter the
petitioner was detained under the Act.
In a petitioner under article 32 of the
Constitution, it was contended that the detention was mala fide because it was
after his discharge by the court for want of evidence and secondly, there had
been a long interval of nine months between the criminal incidents and the
detention order, thirdly the order of detention which did not specify a period
as was violative of section 12 of the said Act and lastly the detention was
founded on prevention of public disorder while the acts imputed to the
petitioner were aimed at a particular person, not the general public.
It was held that merely because the detaining
authority had chosen to base the order of detention on the discharge of the
petitioner by court for want of evidence it could not be held that the order
was bad in law. This branch of jurisprudence, as interpreted by this Court, has
made it futile for a detenu to urge that because the grounds of detention had
been the subject matter of criminal cases which had ended in discharge,
therefore, the order of detention was mala fide. The basic imperative of proof
beyond reasonable doubt did not apply to the component of subjective
satisfaction for imprisonment for reasons of internal security. There might be
extreme cases where the court had held a criminal case to be false and the
detaining authority for want of evidence claimed to be satisfied about
prospective prejudicial activities based on what a court had found to be
baseless. In the present case the order of discharge was made purely for want
of evidence on the scope that witnesses were too afraid to depose against to
desperate character, cannot come under the exceptions carved out by the court
to this category. It was further emphasised that there must be a live link
between the grounds of criminal activities alleged by the detaining authority
and the purpose of detention. This credible chain is snapped if there was too
long and unexplained interval between the offending acts and order of
detention. If the detaining authority took the chance of conviction and, when
the court verdict went against it, feel back on its detention power to punish
one whom the court would not convict, it was an abuse and virtual nullification
of the judicial process. But if 859 honestly, finding a dangerous person
getting away with it by overaweing witnesses or concealing the commission
cleverly, in authority thought on the material before it that there was need to
interdict public disorder at his instance he might validly direct detention. In
the present case, the acts were serious, being bomb hurling and brickbat
throwing in public places creating panic. Involvement of the petitioner was
discovered only during the investigation. It was further held that the argument
that detention without defined duration is ipso jure invalid could not be
sustained. No responsible government should or would be unresponsive to the
claim of citizen's freedom. The nature of the act from the circumstances of its
commission, the impact on the people around and such factors constitute the
pathology of public disorder. These acts could not be isolated from their
public setting nor was it possible to analyse its molecules as in a laboratory
but to take its total effect on the flow of orderly life. It might be a
question of degree and quality of activity of the sensitivity of the question
involving people. To dissect further is to defeat the purpose of social defence
which is the paramount purpose of the preventive detention.
If, however, a detention order is malafide
then the same is bad. Reliance was placed for this proposition on the decision
of this Court in Sahib Singh Dugal v. Union of India. [1966] 1 SCR 313.
Mohd. Salim Khan v. Shri C.C. Bose &
Another [1972] 2 SCC 607 depended upon the particular facts of that case, so is
the position with Borjahan Gorey v. State of West Bengal [1972] 2 SCC 550 to
which our attention was drawn, where it was highlighted that judicial trial for
punishing the accused for the commission of an offence was a jurisdiction
distinct from that of detention under the Act which had in view the object of
preventing the detenu from acting prejudicial to the security of the State and
maintenance of public order. The fields of these two jurisdictions were not
co-extensive nor were they alternatives. It must be remembered that the grounds
of detention related to past acts on which an opinion as to the likelihood of
the repetition of such or similar acts could be based.
It was submitted that in order to invoke the
provisions of these Acts for securing preventive detention under the National
Security Act, there must be something imminent. In Godavari Shamrao Parulekar
v. State of Maharashtra & Others [1964] 6 SCR 446 where referring to
several authorities Wanchoo, J. speaking for the Court observed at page 452 of
the report that in those cases it was held by this Court that where a person
was detained in jail as an under-trial- pris- 860 oner no order of detention
either under the Preventive Detention Act or under the Rules could be served on
him because one of the necessary ingredients which go to make up the
satisfaction of the detaining authority is necessarily absent in such a case.
It was pointed out in Rameshwar Shaw's case (supra) that before an authority
can legitimately come to the conclusion that the detention of the person was
necessary to prevent him from acting in a prejudicial manner, the authority had
to be satisfied that if the person was not detained, he would act in a
prejudicial manner and that inevitably postulated freedom of action to the said
person at the relevant time. The Court noted two types of cases. Those two
cases were concerned with the service of an order of detention under the Preventive
Detention Act or under the Rules on a person who was in jail in one of two
circumstances namely-where he was in jail as an under-trial prisoner and the period
for which he was in jail was indeterminate or where he was in jail as a
convicted person and the period of his sentence had still to run for some
length of time. In those cases the service of the order of detention under the Preventive
Detention Act or under the Rules in jail would not be legal for one of the
necessary ingredients about which the authority had to be satisfied would be
absent, namely, that it was necessary to detain the person concerned which
could only be postulated of a person who was not already in prison. But in
other types of cases this Court had to deal with G.S. Parulekar's case. The
appellants were not under detention either as under-trial prisoners for an indeterminate
time or as convicted persons whose sentences were still to run for some length
of time. They were detained under the Preventive Detention Act by an order
dated 7th November, 1962 which had been reported to Government for approval and
which order could only remain in force for 12 days under section 3(3) of the
said Act unless in the meantime it had been approved by the State Government.
In those cases the principles of the decision referred to in Rameshwar Shaw's
case and other cases could not be applied.
If there was an imminent possibility of the
man being set at liberty and his detention coming to an end, then it appears,
as a principle, if his detention is otherwise necessary and justified then
there is nothing to prevent the appropriate authorities from being satisfied
about the necessity of passing an appropriate order detaining the person
concerned.
In Gopi Ram v. State of Rajasthan, AIR 1967
SC 241 Mudholkar, J. reiterated the principle that law does not permit double
detention and referring to Rameshwar Shaw's case it was reiterated that when a
861 person was in jail custody and the criminal proceedings were pending
against him, the appropriate authority might in a given case take the view that
criminal proceedings might end very soon and might terminate in his acquittal.
In such a case, it would be open to the appropriate authority to make an order of
detention, if the requisite conditions of the Rule or the section were
satisfied, and serve it on the person concerned even after he was acquitted in
the said criminal proceedings.
Masood Alam Etc. v. Union of India and Others
[1973] 1 SCC 551 was a case where it was held that if the grounds were relevant
and germane to the object of the detaining Act then merely because the
objectionable activities covered thereby also attracted the provisions of
Chapter VIII, Criminal Procedure Code, the preventive detention could not for
that reason alone be considered to be mala fide provided the authority
concerned was satisfied of the necessity of the detention as contemplated by
the Act. The jurisdiction of preventive detention sometimes described as
jurisdiction of suspicion depended on subjective satisfaction of the detaining
authority. If the detaining authority was of opinion on grounds which were
germane and relevant, that it was necessary to detain a person from acting
prejudicially as contemplated by section 3 of the Act then it was not for this
court to consider objectively how imminent was the likelihood of the detenu
indulging in those activities.
There was no legal bar in serving an order of
detention on a person who was in jail custody if he was likely to be released
soon thereafter and there was relevant material on which the detaining
authority was satisfied that if free, the person concerned was likely to
indulge in activities prejudicial to the security of the State or maintenance
of public order. The Court stressed upon the fact that it was always the past
conduct, activities or the antecedent history of a person which the detaining
authority took into account in making a detention order. No doubt the past
conduct, activities or antecedent history should ordinarily be proximate in
point of time and should have a rational connection with the conclusion that
the detention of the person was necessary but it was for the detaining
authority who had to arrive at a subjective satisfaction in considering the past
activities and coming to his conclusion if on the basis of those activities he
was to be satisfied that the activities of the person concerned were such that
he was likely to indulge in prejudicial activities necessitating his detention.
Where an earlier order of detention was either revoked or had expired, any
subsequent detention order could be passed only on fresh facts arising after
the expiry or revocation of the earlier order.
862 Golan Hussain Alia Gama v. Commissioner
of Police, Calcutta, and Others (supra) highlights the need for causal
connection between the grounds and the action proposed. The jurisprudence
dealing with prohibitory detention or preventive detention is well-settled and
it can no longer be a valid contention that because the accused had been
discharged in a criminal case, the ground of charge could not be relied upon by
the appropriate authority passing an order of preventive detention. The former
related to the punitive branch of criminal law and relied on the past
commissions, the latter to the preventive branch of social defence and
protected the community from future injury. It is not possible to urge that
simply because a man has been discharged in a criminal case, those grounds
could not be grounds for preventive detention. But there must be live- link
between the grounds of criminal activities alleged by the detaining authority
and the purpose of detention. This credible chain would be snapped if there was
too long and unexplained an interval between the offending acts and the order
of detention. There must be proximity, but no mechanical test of counting
months of interval can be laid down-it depends on the nature of the acts
alleged or relied, gravity of the situation and the reason for the delay. It is
in that background only it can be said that causal connection is broken. The
power to detain and the right to liberty must be harmoniously balanced in the
larger interest of the community.
Dulal Roy v. The District Magistrate, Burdwan
& Others [1975] 1 SCC 837 stressed that the scheme of section 3(1) (a) of
the Maintenance of Internal Security Act, 1971 presupposed that on the date of
the order of detention or in the near future the person sought to be detained
had or would have freedom of action. If a person therefore was serving a long
term of imprisonment or was in jail custody as an undertrial and there was no
immediate or early prospect of his being released on bail or otherwise, the
authority could not legitimately be satisfied on the basis of his past history
or antecedents that he was likely to indulge in similar prejudicial activities
after his release in the distant or indefinite future. To the similar effect
are the observations in Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur
and Another. [1975] 4 SCC 164 at 167 and 169.
Mere service of detention order in jail per
se is not bad.
In Vijay Narain Singh v. State of Bihar &
Ors., [1984] 3 SCR 435 it was highlighted by two learned judges (O. Chinnappa
Reddy & E.S. Venkataramiah, JJ) of the three judges bench consisting of O.
Chinnappa Reddy, A.P. Sen & E.S. Venkataramiah, JJ. that the law of 863
preventive detention was a hard law and therefore should be strictly construed.
Care should be taken that the liberty of the person was not jeopardized unless
the case fell squarely within the four corners of the relevant law. The law of
preventive detention was not to be used merely to clip the wings of the accused
who was involved in a criminal prosecution. Where a person was enlarged on bail
by a competent criminal court, great caution should be exercised in
scrutinising the validity of an order of preventive detention which was treated
on the very same charge which was to be tried by the criminal court. The Court
was considering the expression 'habitual offender' under the Bihar Control of
Crimes Act, 1981.
Assuming the facts alleged to be right and
there is a causal connection between the facts alleged and the purpose of
detention and the formation of the opinion is not mala fide, then the
sufficiency of the grounds and the truth of the grounds is not germane. See the
observations of this Court in The Barium Chemicals Ltd. & Anr. v. The
Company Law Board and Others [1966] Supp. SCR 311 at 354 and 363.
It has to be borne in mind that having regard
to the purpose of the Act, the detaining authority must take into consideration
rational, proximate grounds and that should be the basis for the horoscope for
the future so as to determine whether the person proposed to be detained comes
within the mischief of the Act. If the person is in detention or is under trial
and his conviction is unlikely but his conduct comes within the mischief of the
Act then the authority is entitled to take a rational view of the matter. The
grounds must be there. The decision must be bona fide.
In Prakash Chandra Mehta v. Commissioner and
Secretary, Government of Kerala and Others [1985] Supp. SCC 144 it was noted
that preventive detention unlike punitive detention which was to punish for the
wrong done, was to protect the society by preventing wrong being done. Though
such powers under those Acts must be very cautiously exercised as not to
undermine the fundamental freedoms guaranteed to our people, the procedural
safeguards are to ensure that yet these must be looked at from a pragmatic and
commonsense point of view.
An understanding between those who exercised
powers and the people over whom or in respect of whom such power is exercised
is necessary. The purpose of exercise of all such powers by the Government must
be to promote common well- being and must be to subserve the common good. It is
necessary to protect therefore the individual rights insofar as practicable
which are not inconsistent with the security and well- 864 being of the
society. Observance of written law about the procedural safeguards for the
protection of the individual is normally the high duty of public official but
in all circumstances not the highest. The law of self-preservation and
protection of the country and national security may claim in certain
circumstances higher priority.
In Shiv Ratan Makim s/o Nandlal Makim v.
Union of India and Others [1986] 1 SCC 404 it was stressed that the
jurisdiction to make orders for preventive detention was different from that of
judicial trial in courts for offences and of judicial orders for prevention of
offences. Even unsuccessful judicial trial or proceeding would not operate as a
bar to a detention order or render it mala fide. A fortiori therefore the mere
fact that a criminal prosecution can be instituted cannot operate as a bar
against the making of an order of detention. If an order of detention is made
only in order to bypass a criminal prosecution which may be irksome because of
the inconvenience of proving guilt in a court of law, it would certainly be an
abuse of the power of preventive detention and the order of detention would be
bad. But if the object of making the order of detention was to prevent the
commission in future of activities injurious to the community, it would be a
prefectly legitimate exercise of power to make the order of detention. The
court would have to consider all the facts and circumstances of the case in
order to determine on which side of the line the order of detention falls.
In view of the aforesaid principles that
emerged, it is necessary to consider the grounds and determine whether there
are causal connections. The fact that a man is not in jail per se would not be
determinative of the factor that order of peventive detention could not be
passed against him. The fact that a man was found not guilty in a criminal
trial would not also be determinative of the factors alleged therein. All these
factors must be objectively considered and if there are causal connections and
if bona fide belief was formed then there was nothing to prevent from serving
an order of preventive detention even against a person who was in jail custody
if there is imminent possibility of his being released and set at liberty if
the detaining authority was duly satisfied.
Before us no substantial point was made of
infraction of any procedural safeguard engrafted in the Act. The documents
relied on were duly supplied. We have examined that question from the records
and materials available before us. Proper opportunity to make a rep- 865
resentation was given and the representation made to the Advisory Board was
duly considered by the Advisory Board.
Their recommendations were also duly
considered by the State Government. In the premises there is no substance in
the grievance that the procedural safeguards had not been followed. It further
appears to us that there was rational subjective satisfaction arrived at bona
fide on the basis of the materials available to the detaining authority and the
materials had rational nexus with the purpose and object of the detention as
contemplated by the Act.
Judged by the standards laid down by various
decisions mentioned hereinbefore and in view of the fact that procedural
safeguards had been observed, we are of the opinion that there is no substance
in the challenge made in the writ petition. We are further of the opinion that
the High Court was right in dismissing the writ petition before it. Special
leave application from the said decision therefore must fail and the writ
petition filed in this Court also fails for the reasons indicated before.
A.P.J. Petitions dismissed.
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