Ayya
Alias Ayub Vs. State of U.P. & Anr [1988] INSC 357 (25 November 1988)
Venkatachalliah,
M.N. (J) Venkatachalliah, M.N. (J) Misra Rangnath
CITATION:
1989 AIR 364 1988 SCR Supl. (3) 967 1989 SCC (1) 374 JT 1988 (4) 489 1988 SCALE
(2)1489
CITATOR
INFO : APL 1989 SC 371 (10)
ACT:
Constitution
of India 1950: Article 21--Personal liberty--Greatest of human
freedoms--Preventive detention laws--To be strictly construed--Procedural
safeguards-- Meticulous compliance to be insisted upon.
%
National Security Act 1980: Sections 3 and 5--detention order--Subjective
satisfaction of detaining authority-- Necessity for--What would be a simple
'law and order situation may assume gravity and mischief of 'public order'
problem.
Statutory
Interpretation: Preventive Detention laws to be strictly construed--meticulous
compliance with procedural safeguards to be insisted upon.
HEAD NOTE:
The
petitioner-detenu was involved in three incidents of offensive activity. In the
first two incidents he is alleged to have damaged the buses of one Anil Gautam
whereupon non-cognizable offences under section 504, 427 I.P.C. were registered
against him. In the third incident he is alleged to have caused the death of
Anil Gautam by giving him knife blows and a case under s. 302 I.P.C. was
registered against him.
While
the detenu was in judicial custody, the detaining authority, apprehending his
release on bail, passed the order of detention against him under s. 3(2) of the
National Security Act, 1980. The three grounds of detention related to the
three incidents stated above.
On
behalf of the petitioner in the writ petition, it was contended that the order
of detention was vitiated because (i) the grounds, even assuming to be true,
were incapable in law of producing the satisfaction of any apprehension in
regard to the maintenance of the public- order, and, at the worst, did no more
than to suggest a possible 'law and order' situation; (ii) the object of the
bail since granted to the detenu; and (iii) the detaining authority failed to consider
the telegram sent on behalf of the petitioner complaining that the petitioner
had been PG NO 967 PG NO 968 taken away by the police at 8.00 p.m. earlier that
night while the incident of assault on Anil Gautam, as stated in the third
ground, occurred at about 9.10 p.m. that night.
Ramesh
Yadav v. Distt. Magistrate Etah, AIR 1986 SC 315, relied upon.
On
behalf of the State, it was contended that the three acts attributed to the detenu
had serious adverse effect on the even tempo of life in the locality and
produced a "public-order" problem and that the detention fully
satisfied all the procedural-safeguards.
Allowing
the writ petition and quashing the order of detention it was,
HELD:
(1)
Section 5A of the Act provides that where a person has been detained on two or
more grounds, such order shall be deemed to have been made separately on each
of such grounds. The object of sec. 5A is that if any of the grounds is found
to be vague, non-existent, not relevant, not connected with the detenu or is
invalid for any other reason whatsoever, it should be open to the
detaining-authority to support the detention order on such ground or grounds as
may not be so vitiated. [971B-C]
(2)
Personal liberty protected under Article 21 of the Constitution is held so sacrosant
and so high in the scale of constitutional values that in a habeas corpus
petition the obligation of the detaining-authority is not confined just to meet
the specific-grounds of challenge but is one of showing that the impugned
detention meticulously accords with the procedure established by law. The law
of preventive-detention are strictly construed and compliance with the
procedural safeguards, however technical, is strictly insisted upon by the
courts. [974F-H] Thomas Pelham Dales's, case [1881] 6 QBD 376, referred to.
(3)
The compulsions of the primordial need to maintain order in society, without
which the enjoyment of all rights, including the right to personal liberty,
would lose all its meaning is the true justification for the laws of preventive
detention. The pressures of the day in regard to the imperatives of the
security of the state and of public order might it is true require the
sacrifice of the personal liberty of individuals. [1975G-H] PG NO 969
(4)
The actual manner of administration of preventive detention is of utmost
importance. The law has to be justified by the genius of its administration so
as to strike the right balance between individual liberty on the one hand and
the needs of an orderly society on the other.
Adjustments
and readjustments are constantly to be made and reviewed in maintaining the
right balance according to the pressures of the day. [976C-E] Ichudevl v. Union
of India, AIR 1980 SC 1983; Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334 and Hem Lall Bhandari
v. Sikkim, AIR 1987 SC 762, referred to.
(5)
There are well recognised objective and judicial tests of the subjective
satisfaction for preventive detention. Amongst other things, the material
considered by the detaining-authority in reaching the satisfaction must be
susceptible of the satisfaction both in law and in logic. [978G]
(6) It
is true that if the only ground of justification for the detention is the
apprehension that the detenu was likely to be enlarged on bail, the detention
might be rendered infirm. But where, as here, there are other grounds, the
reference by the detaining authority to the prospects of grant of bail could be
no more than an emphasis on the imminence of the recurrence of the offensive
activities of the detenu. [979B-F]
(7)
Even a single instance of activity tending to harm "public-order"
might, in the circumstances of its commission, reasonably supply justification
for the satisfaction as to a legitimate apprehension of a future repetition of
similar activity to the detriment of "public- order". [979F]
(8)
Even if a prosecution against a person fails or bail is granted an order of
detention could be passed drawing the satisfaction therefore from the facts and
circumstances in the criminal proceedings. But it is necessary for the
detaining authority to resist the temptation to prefer and substitute, as a
matter of course, the easy experience of a preventive detention to the more cumbe-some
one of punitive detention. [979G-H; 980A]
(9).
What might be an otherwise simple "law and order" situation might
assume the gravity and mischief of a "public-order" problem by reason
alone of the manner or circumstances in which or the place at which it is
carried out. [980E] PG NO 970 Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740, referred to.
(10)
The first two grounds which pertain to the commission of non-cognizable
offences have no rational nexus relatable to the maintenance of public order.
The alleged attacks were directed against the same individual and, even
according to the police, they constituted merely offences of a non-cognizable
nature. [980D-F]
(11)
It is not disputed that the telegram was not placed before and considered by
the detaining authority. If a piece of evidence which might reasonably have
affected the decision whether or not to pass an order of detention is excluded
from consideration, there would be a failure of application of mind which, in
turn, vitiates the detention. [981G-H; 982A]
ORlGlNAL
JURlSDlCTION: Writ Petition (Crl.) No. 210 of 1988.
(Under
Article 32 of the Constitution of India.) R.K. Garg. R.S.M. Verma and Shakil Ahmad Syed for the Petitioner.
V.C. Mahajan,
Yogeshwar Prasad, Ms. A. Subhashini, Dalveer Bhandari, Rachna Joshi and H.K. Puri
for the Respondents.
The
Judgment of the Court was delivered by VENKATACHALIAH, J. By this writ petition
under Article 32 Of the Constitution, the detenu--Ayya alias Ayub, son of Babu
Khan, residence No. 100, Khernagar, P.S. Delhi Gate, Meerut--challenges the
order of detention dated 28/2/1988 passed by the District Magistrate, Meerut,
ordering the detention of the petitioner under Sec. 3(2) of the National
Security Act, 1980, on the said authority's satisfaction that such detention is
necessary with a view to preventing petitioner from acting in a manner prejudicial
to the maintenance of the "public-order". At the time of the passing
of the order, petitioner was already in judicial- custody in connection with a
criminal prosecution arising out of the incident referred to in one of the
grounds of detention.
2.
Section 3(2) of the Act provides, inter alia, that the Central Government or
the State Government, may make an order with respect to any person for purposes
of preventing him from acting in a manner prejudicial to the maintenance PG NO
971 of the public-order. The sub-section provides for detention on certain
other grounds which are not germane to the present matter as the avowed object
of the impugned detention is in relation to, and for the purposes of, the
maintenance of public order. Sec. 5A of the Act also provides that where a
person has been detained on two or more grounds, such order shall be deemed to
have been made separately on each of such grounds. The object of Sec. 5A is
that if any of the grounds is found to be vague, non- existent, not relevant,
not connected with the detenu or is invalid for any other reason whatsoever, it
should be open to the detaining-authority to support the detention order on
such ground or grounds as may not be so vitiated.
3. We
have heard Shri R.K. Garg, learned Senior Counsel for the petitioner and Shri Yogeshwar
Prasad, learned Senior Counsel for the detaining-authority.
Shri Garg
strenuously contended that the impugned detention is an instance of a
demonstrable abuse of power and the grounds are wholly ultra vires of the power
of detention in that--quite apart from the falsity of the allegations and other
legal infirmities--the grounds, even assuming to be true, are incapable in law
of producing the satisfaction of any apprehension in regard to the maintenance
of the public-order. The grounds, at the worst, Learned Counsel contends do no
more than to suggest a possible 'law and order' situation and not a
'public-order' situation. The detention, it is urged, is also vitiated by a
non-application of mind by an omission to consider material capable of
influencing the satisfaction.
Shri Yogeshwar
Prasad, however, sought to support the order of detention, relying upon the
records of the proceedings and the affidavit filed by the detaining- authority.
The concerned police officers have also filed their counter-affidavits.
4. In
order to appreciate the contentions urged at the hearing, it is necessary to
advert to the three grounds on which the satisfaction on the part of the
detaining- authority for the need for the detention was reached. They are:
1.
'That on 6.2.88 at Ghursal Mor. near Jamaniya Bagh R.T.O. Road, P.S. Railway
Road at 3.50 P.M. you along with your other companions stopped Mini Bus No.
U.S.Q. 9278 and you immediately started breaking the glass screens of the PG NO
972 bus with an iron rod and your companions hurled brick-bats at the glasses
of the bus and extended abuses to the driver.
On
being told about above incident by Shri Chandrapal, Driver of Mini Bus, Shri
Anil Gautam made a written complaint on the basis of which a report No. 8 of
non- cognizable offence was registered u/s 504, 427 of I.P.C.
Your
aforesaid misdeed caused fear and terror among the common public and in this
way you committed an act which is prejudicial to the maintenance of public
order." "2. That, on 13.2.1988 at about 11.45 P.M. in front of Faize-e-Aam
Inter College, Meerut on the open road you alongwith your other companions
displayed "gundaism" and stopped Bus No. U.S.N. 8377 which was going
from Medical College to City Station and you had broken the glass screens of
the said bus and abused Shri Balram the driver and Vipin the conductor of the
bus, which caused fear and terror among the general public. On the basis of the
information given by Shri Anil Gautam the Report No. 15 for non-cognizable
offence u/s 427, 504 of I.P.C. was registered at P.S. Delhi Gate. In this way
you acted in such a manner which is prejudical to the maintenance of public
order."
3.
That, on 18.2.1988 near Caltex Petrol Pump on Delhi- Muzzafar Nagar Road at
about 9.10 O'clock at night you alongwith your other three companions reached
at the Book stall situated at the aforesaid petrol pump, and holding him by
neck you pulled Shri Anil the book seller and you, with intent to kill him gave
blows of knife on his neck and chest and you also assaulted with knife on other
parts of his body, because of which the nearby shops were closed down due to
fear and terror caused by you and the people were alarmed. You committed the
above misdeed because on 30th
December 1987 at about
7.00 P.M. you had teased a girl who was the
daughter of an Army Major, while she was buying a magazine from the aforesaid
Book-stall and this was objected by Mr. Anil but you did not refrain from
teasing the girl, then Anil had beaten you. On which you and your companions PG
NO 973 threatened Mr. Anil that this Enmity will be too expensive for him.
On the
basis of a written information given by Mr. Brij Mohan, Crime No. 59 under
Section 307 I.P.C. was registered against you which, after the death of injured
Anil in the Hospital, was covered into an offence under Section 302 of I.P.C.
and this offence is under investigation. Your aforesaid misdeed has caused fear
and terror among the general public and in this way you have committed an act which
is prejudicial to the maintenance of public order.
At
present you are confined in District Jail, Meerut, and you are trying to get released on bail and there is every
possibility of you being released on bail." (Emphasis Supplied) Shri Garg
submitted that the first two grounds which, even according to the
detaining-authority, constitute non- cognizable offences negate th6e requisite
degree or gravity of the activity which could reasonably be said to be
productive of a "public-order" situation. The adhered activities are
liable to be dealt with in accordance with the ordinary law of the land and
that in both the cases a certain Anil Gautam was the complainant and the attack
was against the bus belonging to him, it being incidentally suggested that the
driver and the conductor of the bus were also released. It was not a part of
the grounds, says learned counsel, that there were passengers in the bus at the
time and conduct of the petitioner caused a scare amongst them. The inference
drawn by the detaining-authority that the activities referred to in grounds (I)
and (II) did create a "public-order" situation is therefore, contends
counsel, vitiated by a lack of rational nexus between the activity attributed
to the petitioner and a "public-order" situation. Learned counsel
submitted that the satisfaction to be reached by the detaining-authority,
subjective though it be must rest on material which is capable in law of
producing the satisfaction and the concept of "public-order" is what
law understands and recognises as such and not what the detaining-authority
misunderstands it to be.
5. In
regard to the third ground of detention, learned counsel said, the petitioner
was taken into custody at 8.00 P.M. on 18.2.1988 and that the wireless message
sent at 8.07 P.M. by the Mobile Van to the Circle Police Officer and the
Superintendent of Police had specifically referred to the attack on Anil Gautam
and had clearly omitted to mention the PG NO 974 name of the petitioner and the
alleged witnesses. Shri Garg submitted that the allegations that the attack on
Anil Gautam at 9.10 PM that day, as now asserted in Ground No. III would stand
disproved if the original "Log-Book" recording the wireless-messages
had been produced. He submitted the sheaf of loose sheets purporting to be
"Log- Book" produced before this Court was not the original
"Log- Book". These loose-sheets, it is urged, had been discarded by
the Learned Sessions Judge who had since granted Bail to the petitioner.
Learned Counsel submitted that the object of the present detention was avowedly
to render nugatory the benefit of the Bail. Shri Garg relied upon the
pronouncement of this Court in Ramesh Yadav v. Distt Magistrate Etah, AIR 1986
SC 315, to contend that if the detention is ordered because the detaining-authority
was apprehensive that in case the detenu was released on bail he would carry on
his criminal activity, it would not be a proper exercise of the power to
detain.
6. Shri
Garg submitted that at 12.30 A.M. that very night, on 18.2.1988 a certain Mirazuddin
acting on behalf of the petitioner, had sent a telegram to the Senior
Superintendent of Police, Meerut, complaining that the petitioner had bee6n
taken away by the police at 8.00 PM earlier that night. Shri Garg submitted
that this document which improbablised petitioner's participation in the
incident alleged at 9.10 P.M. that night ought to have been placed before and
considered by the detaining-authority and a non-consideration of this document
vitiated the order of detention for non-application of mind.
Shri Yogeshwar
Prasad submitted that the three acts attributed to the detenu had serious
adverse effect on the even tempo of life in the locality and produced a
'public- order' problem and that the detentionfully satisfied all the
procedural-safeguards.
7.
Personal liberty protected under Article 21 of the Constitution is held so
sacrosanct and so high in the scale of constitutional values that this Court
has shown great anxiety for its protection and wherever a petition for writ of
habeas-corpus is brought-up, it has been held that the obligation of the
detaining-authority is not confined just to meet the specific-grounds of
challenge but is one of showing that the impugned detention meticulously
accords with the procedure established by law. Indeed the English Courts a
century ago echoed the stringency and concern of this judicial vigilance in
matters of personal liberty in the following words:
PG NO
975 "Then comes the question upon the habeas corpus. It is a general rule,
which has always been acted upon by the Courts of England, that if any person
procures the imprisonment of another he must take care to do by steps, all of
which are entirely regular, and that if he fails to follow every step in the
process with extreme regularity the Court will not allow the imprisonment to
continue." [Thomas Pelham Dales' case, (1881) 6 QBD 376 at page 461].
It has
been said that the history of liberty has largely been the history of
observance of procedural safeguards. The procedural sinews strengthening the
substance of the right to move the court against executive invasion of personal
liberty and the due dispatch of judicial-business touching violations of this
great is stressed in the words of Lord Dinning:
"Whenever
one of the King's Judges takes his seat, there is one application which by long
tradition has priority over all others. Counsel has but to say 'My Lord, l have
an application which concerns the liberty of the subject' and forth-with the
Judge will put all other matters aside and hear it. It may be an application
for a writ of habeas corpus, or an application for bail, but, whatever form it
takes, it is heard first." [Freedom under the Law, Hamlyn Lectures, 1949]
8.
Personal liberty, is by every reckoning, the greatest of human freedoms and the
laws of preventive- detention are strictly construed and a meticulous
compliance with the procedural safeguards, however technical, is strictly
insisted upon by the courts. The law on the matter did not start on a clean
state. The power of courts against the harsh incongruities and unpredictabilities
of preventive detention is not a merely 'a page of history but a whole volume. The
compulsions of the primordial need to maintain order in society. without which
the enjoyment of all rights, including the right to personal liberty, would
lose all their meaning are the true justifications for the laws of preventive
detention. The pressures of the day in regard to the imperatives of the
security of the State and of public- order might. it is true, require the sacrifice
of the personal-liberty of individuals. L~ws that provide for preventive
detention posit that an individual's conduct prejudicial to the maintenance of
public-order or to the security of State provides grounds for a satisfaction
for a reasonable prognostication of a possible future PG NO 976 manifestations
of similar propensities on the part of the offender. This jurisdiction has been
called a jurisdiction of suspicion; but the compulsions of the very
preservation of the values of freedom, of democratic society and of social
order might compel a curtailment of individual liberty. "To lose our
country by a scrupulous adherence to the written law" said Thomas Jeferrson
"would be to lose the law itself, with life, liberty and all those who are
enjoying with us; thus absurdly sacrificing the end to the needs." This
is, no doubt, the theoretical justification for the law enabling preventive
detention.
But
the actual manner of administration of the law of preventive detention is of
utmost importance. The law has to be justified by the genius of its
administration so as to strike the right balance between individual-liberty on
the one hand and the needs of an orderly society on the other.
But
the realities of executive excesses in the actual enforcement of the law have
put the courts on the alert, ever-ready to intervene and confine the power
within strict limits of the law both substantive and procedural. The paradigms
and value judgments of the maintenance of a right balance are not static but
vary according as the "pressures of the day" and according as the
intensity of the imperatives that justify both the need for and the extent of
the curtailment to be individual liberty. Adjustments and readjustments are
constantly to be made and reviewed. No law is an end in itself. The "inn
that shelters for the night is not journey's end and the law, like the traveller,
must be ready for the morrow." As to the approach to such laws which
deprive personal liberty without trial, the libertarian judicial faith has made
its choice between the pragmatic view and the idealistic or doctrinaire view.
The approach to the curtailment of personal liberty which is an axiom of
democratic faith and of all civilised like is an idealistic one for, loss or
personal liberty deprives a man of all that is worth living for and builds up
deep resentments. Liberty belongs what correspond to man's inmost self. Of this
idealistic view in the judicial traditions of the free- world, Justice Dougla
said:
"Faith
in America is faith in her free institutions or it is nothing. The Constitution
we adopted launched a daring and bold experiment. Under that compact we agreed
to tolerate even ideas we despise. We also agreed never to prosecute people
merely for their ideas or beliefs ......." [See: On Misconception of the
Judicial Function and the PG NO 977 Responsibility of the Bar, Columbia Law
Review, Vol. 59, p. 232] Judge Stanley H. Fuld of the New York Court of Appeals
said:
"It
is a delusion to think that the nation's security is advanced by the sacrifice
of the individual's basic- liberty. The fears and doubts of the moment may loom
large, but we lose more than we gain if we counter with a resort to alian
procedures or with a denial of essential constitutional guarantees. " [Quoted
by Justice Douglas at p. 233--On Misconception of the Judicial Function and the
Responsibility of the Bar;
Columbia
Law Review Vol. 59] It was a part of the American judicial faith that the
Constitution and Nation are one and that it was not possible to believe that
national security did require what the Constitution appeared to condemn.
Under
our Constitution also the mandate is clear and the envoy is left under no
dilemma. The constitutional philosophy of personal liberty is an idealistic
view, the curtailment of liberty for reasons of State's security, public-order,
disruption of national economic discipline etc. being envisaged as a necessary
evil to be administered under strict Constitutional restrictions.
In Ichudevi
v. Union of lndia AIR 1980 SC 1983, Bhagwati J. spoke of this Judicial
commitment.
....
The Court has always regarded personal liberty as the most precious possession
of mankind and refused to tolerate illegal detention, regardless of the social
cost involved in the release of a possible renegade.
(page
1988) (Emphasis Supplied) "This is an area where the court has been most
strict and scrupulous in ensuring observance with the requirements of the law,
and even where a requirement of the law is breached in the slightest measure,
the court has not hesitated to strike down the order of detention ...."
(P. 1988) (Emphasis Supplied) PG NO 978 In Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334 Justice Chinnappa
Reddy J. in his concurring majority view said:
"....I
do not agree with the view that those who are responsible for the national
security or for the maintenance of public order must be the sole judges of what
the national security or public order requires. It is too perilous a pro-
position. Our Constitution does not give a carte blanche to any organ of the
State to be the sole arbiter in such matters ...." (p. 1336) "....
There are two sentinels, one at either end. The legislature is required to make
the law circumscribing the limits within which persons may be preventively
detained and providing for the safeguards prescribed by the Constitution and
the courts are required to examine, when demanded, whether there has been any
excessive detention, that is, whether the limits set by the Constitution and
the legislature have been transgressed . . ." ( p 1336) In Hem Lall Bhandari
v. Sikkim, AIR 1987 SC 762 at 766, it was observed:
"It
is not permissible in matters relating to the personal liberty and freedom of a
citizen to take either a liberal or a generous view of the lapses on the part
of the officers .......".
10.
There are well recognised objective and judicial tests of the subjective
satisfaction for preventive detention. Amongst other things, the material
considered by the detaining-authority in reaching the satisfaction must be
susceptible of the satisfaction both in law and in logic.
The
tests are the usual administrative law tests where power is couched in
subjective language. There is, of course, the requisite emphasis in the context
of personal liberty.
Indeed
the purpose of public-law and the public law courts is to discipline power and
strike at the illegality and unfairness of Government wherever it is found. The
sufficiency of the evidentiary material or the degree of probative criteria for
the satisfaction for detention is of course in the domain of the
detaining-authority.
PG NO
979 To lose sight of the real and clear distinction between the
"public-order" and "law and order" might lead, in the
process of obliteration of their outlines, to the impermissible engrafting of
the latter on the former.
11. In
the present case, we are not, however, impressed with the submission of Shri Garg
that the detention was solely for the purpose of rendering nugatory the order
of bail, the grant of which the detaining-authority had then considered quite
imminent. It is true that if the only ground or justification for the detention
is the apprehension that the detenu was likely to be enlarged on bail, the
detention might be rendered infirm. Sri Garg relied upon the following
observations in Ramesh Yadav's case (supra):
"On
a reading of the grounds, particularly the paragraph which we have extracted
above, it is clear that the order of detention was passed as the detaining
authority was apprehensive that in case the detenu was released on bail he would
again carry on his criminal activities in the area. If the apprehension of the
detaining authority was true the bail application had to be opposed and in case
bail was granted, challenge against that order in the higher6 forum had to be
raised. Merely on the ground that an accused in detention as an undertrial
prisoner was likely to get bail an order of detention under the National
Security Act should not ordinarily be passed ......." [AIR 1986 SC 315 at
316] But, where, as here, there are other grounds, the reference by the
detaining authority to the prospects of grant of bail could be no more than an
emphasis on the imminence of the recurrence of the offensive activities of the detenu.
Even a single instance of activity tending to harm "public-order" might,
in the circumstances of its commission, reasonably supply justification for the
satisfaction as to a legitimate apprehension of a future repetition of similar
activity to the detriment of "public- order". Likewise, without
merit, is the contention as to the impermissibility of an order of detention
being made against a person already in judicial custody. Even if a prosecution
against a person fails or bail is granted an order of detention could be passed
drawing the satisfaction therefor from the facts and circumstances of each
case. But it is necessary for the detaining authority to resist the temptation
to prefer and substitute, as a matter of course, PG NO 980 the easy expedience
of a preventive detention to the more cumbersome one of punitive detention. In
Vijay Narain Singh's case (supra) this Court said:
"
.........It is well settled that the law of preventive detention is a hard law
and therefore it should be strictly construed. Care should be taken that the
liberty of a person is not jeopardised unless his case falls squarely within
the four corners of the relevant law. The Law of preventive detention should
not be used merely to clip the wings of an accused who is involved in a
criminal prosecution..." (P. 1345) " ..... When a person is enlarged
on bail by a competent criminal court, great caution should be exercised in scrutinising
the validity of an order of preventive detention which is based on the very
same charge which is to be tried by the criminal court ." ( P. 1345)
12.
However, we are persuaded to the view that the contention of Shri Garg that,
the first two grounds which pertain to the commission of non-cognizable
offences have no rational nexus relatable to the maintenance of public order is
to be accepted. It is true that the acts themselves, in relation to their
effect on public-order which might otherwise be free from the vice of affecting
public-order might assume a sinister colour and significance from the
circumstances under and the manner in which they are done.
What
might be an otherwise simple "law and order" situation might assume
the gravity and mischief of a "public-order" problem by reason alone
of the manner or circumstances in which or the place at which it is carried
out. These are graphically dealt with by Hidayatullah, J. in Ram Manohar Lohia
v. State of Bihar, AIR 1966 SC 740. In the present
case the alleged attacks were directed directed the same individual, a certain
Anil Gautam, and, even according to the police, they constituted Merely
offences of a non- cognizable nature. in the facts of the case, it is difficult
to impart to these acts, which were liable to be dealt with under the ordinary
laws of the land, a "public-order" dimension within the meaning of
and for purposes of the extra-ordinary law of preventive detention.
13. So
far as the third ground is concerned it is no doubt a serious charge. The
victim is the same Anil Gautam.
The
Sessions Court has since enlarged the petitioner on bail. It is alleged that
the attack, in the manner in which PG NO 981 it was made, spread tremors of
fear in A the neighbourhood and the shop-keeper in the vicinity pulled down
their shutters.
On the
contrary, Petitioner avers that he had been taken into custody earlier at 8.00 P.M. and his alleged presence at the scene of occurance,
which admittedly took place at 9.10 P.M., was
wholly imaginary and concocted. The police version is that the arrest was made
only at 10.00 A.M. the next-day. These matters are to
be decided at the sessions- trial. We cannot decide them here. It is not also
necessary to go into the controversy about the wireless message or the
genuineness of the "Log-Book" recording the message.
The
Inspector General of Police. Meerut Zone and the Home Secretary have stated n
their affidavits that the extant practice is to keep the "Log-Book"
in the form of loose sheets stapled together. The practice might perhaps
required improvement; but it is not necessary to say that the sheets produced
are not genuine. Learned Sessions Judge at the time of gran of bail did not, however,
accept them as the original log-book' It is equally unnecessary to decide
whether the telegram dispatched by Mirazuddin was at 12.30 mid-night on
18.2.1988 or as suggested by the Respondents at 12.30 noon on 19.2.1988 It is
extremely probable that it was sent not at 12.30 mid night as claimed by the
petitioner. but only at 12.30
noon on 19.2.1988 as
suggested by Sri Yogeshwar Prasad. But it cannot be disputed that such a
telegram was sent. This telegram asserts, for whatever it was worth, that petitioner
was taken into custody at 8.00 P.M. on
18.2.1988. The contention of Shri Garg is that the non- consideration of this
telegram, which had a bearing on the complicity or otherwise of the petitioner
in the alleged offence vitiates the detention for non-application of mind. The
detaining authority in its affidavit says:
".....Deponent
is not in a position to say about the facts of the telegram. It might have been
given in pesh- bandi." What weight the contents and assertions in the
telegram should carry is an altogether a different matter. It is not disputed
that the telegram was not placed before and considered by the
detaining-authority. There would be vitiation of the detention on grounds of
non-application, of mind if a piece of evidence, which was relevant though not
binding, had not been considered at all. If a piece of evidence which might
reasonably have affected the decision whether or not to pass an order of
detention is excluded from consideration. there would be a failure of
application PG NO 982 of mind which, in turn, vitiates the detention. The
detaining-authority might very well have come to the same conclusion after
considering this material; but in the facts of the case the omission to
consider the material assumes materiality.
14. In
the result, for the foregoing reasons, the writ petition is allowed, the order
of detention impugned in the petition quashed and the petitioner is directed to
be set at liberty forthwith, unless he is held in custody pursuant to any other
order under any lawful authority. No costs.
R.S.S.
Petition allowed.
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