Anand Prakash
Vs. State of U.P. & Ors [1989] INSC 385 (14 December 1989)
Ramaswami,
V. (J) Ii Ramaswami, V. (J) Ii Ray, B.C. (J)
CITATION:
1990 AIR 516 1989 SCR Supl. (2) 479 1990 SCC (1) 291 JT 1989 (4) 557 1989 SCALE
(2)1326
CITATOR
INFO : RF 1991 SC1640 (12)
ACT:
National
Security Act, 1980: S. 8--Detenu likely to be released on bail in criminal
proceedings--Preventive detention of---Whether permissible-Detaining
authority's satisfaction must be based on credible information--Inordinate
delay in making detention. order--Whether vitiates the order.
HEAD NOTE:
The detenu
was arrested on May 2,
1989. On the same date
a bail application was moved on his behalf. On May 3, 1989 he was detained under s. 8 of the National Security Act,
1980. The detention order stated that the detenu was likely to be bailed out
and there was every likelihood that after coming out of jail he would again
indulge in criminal activities injurious to the maintenance of essential
services and supplies required for public life. The facts referred to in the
grounds of detention were that on the basis of a complaint of theft of electric
wire lodged on February 15, 1989 an FIR was registered under s. 379 IPC against
three persons, 'J', 'S' and 'M'. Some of the stolen material was recovered from
the house of 'J' on March
3, 1989 and on the
information provided by him about the purchase of such material the factory of
the detenu was raided on the same day. There 'M', stated to be the servant of
the detenu, was found in possession of about 20 kg. of melted electric wire and
that was seized under a recovery memo. In the confessional statement made by
'M' and recorded in the recovery memo itself, he had stated that he had
purchased the electric wire from 'J' and 'S' and that he had melted and sold
the same to the detenu. These facts led the detaining authority to conclude
that there was inherent criminal propensity in the detenu. Detenu's
representation was rejected by the Advisory Board. The Order was confirmed by
the Government under s. 12(1) of the Act.
In the
writ petition seeking to quash the order of detention, it was contended that
there was no evidence of detenu's complicity with the crime linking him with
the recovery of melted wire, that the criminal case filed under s. 411 IPC was the
first crime alleged against him, that he had no past criminal record from which
it could be inferred that he was likely to indulge in such activity in future,
and that there was an 480 unexplained delay from the date of the alleged crime
and the date of detention vitiating the satisfaction and the detention order
itself.
Allowing
the writ petition, the Court,
HELD:
1. The detaining authority though can take into account the possibility of the detenu
being released on bail in the criminal proceedings, have to be satisfied,
having regard to his past activities or by reason of the credible information
or cogent reasons, that if he is enlarged on bail, he would indulge in such
criminal activities. [487B] In the instant case, except the bald statement that
the detenu would repeat his criminal activities after coming out of the jail,
there were no credible information or material or cogent reasons apparent on
the record to warrant an inference that the detenu if enlarged on bail would
indulge in such criminal activities which were prejudicial to the maintenance
of essential services. There must be something more than what was found in the
record to come to the conclusion that this was not a case of solitary incident
but a case of the detenu indulging in business of receiving stolen electric
wires. Furthermore, the detention order seems to have been made in order to
supplant the criminal prosecution which was not permitted. [487B-D] Ramesh Yadav
v. District Magistrate, Etah, [1985] 4 SCC 232; Rameshwar Shaw v. District
Magistrate, Burdwan & Anr., [1964] 4 SCR 921; Kartic Chandra Guha v. The
State of West Bengal & Ors., [1975] 3 SCC 490; Alian
Mian v. District Magistrate, Dhanbad & Ors., [1983] 4 SCC 301; Smt. ShashiAggarwal
v. State of U. P. & Ors., [1988] 1 SCC 436 and
N. Meera Rani v. Government of Tamil Nadu & Anr., [1989] 4 SCC 418,
referred to.
2. In
spite of the fact that the recovery statement itself was made as early as on March 3, 1989 no action was taken against the detenu
till May 3, 1989. Nothing more was stated in the
detention order. The delay had also not been satisfactorily explained in the
counter statement of the respondents. The ground therefore, could not be a
proximate cause for a sudden decision to take action under the National
Security Act and this also vitiates the order. [487F-G]
ORIGINAL
JURISDICTION: Writ Petition (Crl.) No. 353 of 1989.
(Under
Article 32 of the Constitution of India).
481
P.K. Chatterjee and R.P. Gupta for the Petitioner.
Prithvi
Raj, Dalveer Bhandari and Prashant Choudhary for the Respondents.
The
Judgment of the Court was delivered by V. RAMASWAMI, J. This writ petition has
been filed under Article 32 of the Constitution praying for the issue of a writ
of certiorari to quash the order of detention dated 3.5.1989 passed by the
District Magistrate, Farrukhabad, U.P. as confirmed by the Government of U.P.
in their order dated 20.6.1989 detaining one Lakhmi Chand Gupta under the
National Security Act and to issue a writ of habeas corpus releasing the said detenu
from such detention. The order of detention was made under section 8 of the
National Security Act, 1980 by the District Magistrate on the ground that with
a view to prevent the detenu from indulging in unlawful activities which are
prejudicial to the maintenance of essential services and supplies required for
public life it was necessary to keep 'him under detention. The detenu made his
representation to the Advisory Board. On receipt of the report of the Advisory
Board to the effect that in its opinion there are sufficient grounds for
detention, the Government after a consideration of the report confirmed the
order of detention under section 12(1) of the Act and directed that the said Lakhmi
Chand Gupta be detained for a period of 12 months from 3.5.1989 the date of
detention order. This writ petition for habeas corpus has been filed by the
brother-in-law of the detenu.
The
learned counsel for the petitioner contended that there are absolutely no
grounds or basis on which the detaining authority could have satisfied himself
that the detenu had been engaged in criminal activities which are injurious to
the maintenance of essential services and supplies required for public life or
that the detenu is likely to indulge in any such activity in future. Secondly,
there is an unexplained delay from the date of the alleged incident or crime
and the date of detention vitiating the satisfaction and the detention order
itself. The circumstances referred to in the order of detention does not lead
to nor there was anything on which the District Magistrate can come to a
conclusion that there is inherent criminal propensity in the detenu which could
lead the District Magistrate to infer that there is every likelihood of the detenu
repeating the alleged unlawful activity.
The
facts relating to the incident which is referred to in the order 482 of
detention as the ground for detention are as follows: On the 15th of February,
1989 the Junior Engineer, Tubewell Electrification Sub Division, Sarvodaya Nagar,
Kanpur lodged a complaint with the Station House Officer, Police Station Chhibranau,
Distt. Farrukhabad that electric wires to a length of about 2900 mtrs. in 11
K.V. Visya Bank Feeder had been cut and stolen away on 14.2.1989 by some
unknown persons and that the value of the loss to the Electricity Board
amounted to Rs.21,500. This F.I.R. was registered as Crime Case No. 51 of 1989
under section 379 IPC in the said Police Station and it was shown therein that
three persons, namely, Jagdish, Santosh and Munshi Sharma were the accused. Santosh
is the brother of Jagdish. On the 3rd of March, 1989 the house of Jagdish was raided and two bags filled with stolen aluminium
electric wire recovered. Jagdish gave an information that a person at Vishnugarh Road claiming himself to be a resident of
Delhi used to purchase stolen electric
wire from the person cutting the electric wire stealthily. On this information
of Jagdish the factory of the detenu at Vishnugarh Road was raided. One Munshi Sharma who is stated to be the
servant of the detenu was found in possession of about 20 k.g. of melted
electric wire and that was seized from him under a recovery memo. The order of
detention stated that Munshi Sharma had confessed that the stolen electric wire
had been purchased by him from Jagdish and Santosh. The detenu was arrested on the 2nd of May, 1989. On the same date the bail
application was moved on behalf of the accused. After setting out this incident
the grounds of detention stated:
"This
act on your part has disrupted the electric system resulting in non-operation
of tubewells, dearth of water for crops, nonsupply of drinking water for
general public and cattle. This unlawful act of yours and that of your
accomplices is against the maintenance of essential services and supplies
required for public order and life. This act of yours have caused injury to the
national economy and created terror in the general public and poses a serious
threat to the public life." The order of detention further stated:
"At
present you are detained in the District Jail of Fatehgarh in connection with
case No. 51/89 under section 379/411 of I.P.C. and in the P.S. Chhibranau in
connection with case No. 56/89 under section 379 of I.P.C and your well wishers
and sympathisers are trying to get you bailed 483 out in the aforesaid cases
and a bail application in this behalf has already been moved in the court and
you are likely to be bailed out.
There
is every likelihood that after coming out of jail you will again indulge in
your criminal activities." It is on the basis of this the order stated
that the detaining authority was satisfied that the detenu had been engaged in
criminal activities injurious to the maintenance of essential services and
supplies required for public life and that with a view to prevent him from
indulging in such unlawful activities it has become necessary to keep him under
detention.
The
learned counsel contended that the detenu had no past criminal record. The
present criminal case filed under section 411 of I.P.C. is the first crime
which had been alleged against him. The learned counsel further contended that
there is absolutely no evidence of detenu's complicity with the crime and
making link of the detenu with the recovery of 20 k.g. of melted wire recovered
from Munshi Sharma at the behest of Jagdish. In this connection he also
contended that the statement said to have been made bY Munshi Sharma had not
been supplied to him and that would also vitiate the order of detention. In the
counter affidavit filed in this Court the respondent stated that there was no
separate confessional statement recorded from Munshi Sharma and the
confessional statement referred to in the detention order is the one that is
found in the recovery memo a copy of which had already been supplied to the detenu.
The learned counsel for the petitioner drew our attention to the recovery memo
and contended that if the statement of Munshi Sharma in the recovery memo is
the only material available that cannot be a basis of satisfaction for an order
of detention under the National Security Act. The statement of Munshi Sharma
relied on by the detaining authority and found in the recovery memo reads as
follows:
"When
the gauge of that melted wire was measured it was found that of the Government
wire, therefore, the said melted wire weighing 20 k.g. was taken in the
possession of police and thoroughly sealed in a sack. But before sealing the
same a separate specimen of melted wire and the specimen of wire were taken and
the specimens were sealed. The accused Munshi Sharma on his being arrested
stated that he had purchased that property from both Santosh i.e the brother of
Jagdish and Jagdish, he further stated that 484 he melted and sold the same to Lakhmi
i.e. the owner of the said factory. The said property after being melted cannot
be identified and it is used for making utensils thereafter." ' In this
statement it may be seen that Munshi Sharma did not say that he purchased the
stolen wire for the detenu or on the instructions of the detenu. In fact he did
not even say that he is the servant or agent of the detenu. He had merely
stated that 20 k.g. of melted wire recovered from him was purchased by him from
Santosh and his brother Jagdish and that he had melted and sold the same to the
detenu. After it is melted in the melted form it could not be distinguished
from any other melted wire of legal origin. The statement also does not impute
knowledge on the part of the detenu that the same was from stolen wires. In any
case it was not possible to say on the basis of this statement that the detenu
was in league with other persons in the activity of stealing wire or purchasing
of the same. In fact it is not known how from the melted wire weighing 20 k.g.
the detaining authority or the investigating officers came to the conclusion
that the gauge of the melted wire was found to be that of Government wire.
Again only 20 k.g. was found in the factory and that too in the possession of Munshi
Sharma though inside the factory. The statement of Munshi Sharma in, the
recovery memo and melted wire recovered from Sharma were the only material
available before the detaining authority. In the light of the absence of past
criminal history on the part of the detenu we have no doubt that the statement
found in the recovery memo could not form basis of satisfaction for the
detention.
The
learned counsel took strong exception to the view of the detaining authority
that the detenu is likely to get bail and there is every likelihood that after
coming out of jail the detenu will again indulge in criminal activities and
that, therefore, it is necessary to detain him. In this connection he relied on
the decision of this Court in Ramesh Yadav v. District Magistrate, Etah, [1985]
4 SCC 232 where it was held that merely on such apprehension a detention order
under National Security Act, 1980 should not ordinarily be passed. This Court
observed:
"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 485 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
higher 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. We
are inclined to agree with counsel for the petitioner that the order of
detention in the circumstances is not sustainable and is contrary to the well
settled principles indicated by this Court in series of cases relating to
preventive detention. The impugned order, therefore, has to be quashed."
This Court had considered in a number of cases the validity of orders of
detention made when a person is in jail custody but the detaining authority
considered the likelihood of the detenu getting a bail and in that view
proceeding to consider the necessity for detaining him under the preventive
detention proceedings. In Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,
[1964] 4 SCR 921 their Lordships observed:
"On
the other hand, if a person who is undergoing imprisonment, for a very short
period, say for a month or two or so, and it is known that he would soon be
released from jail, it may be possible for the authority to consider the
antecedent history of the said person and decide whether the detention of the
said person would be necessary after he is released from jail, and if the
authority is bona fide satisfied that such detention is necessary, he can make
a valid order of detention a few days before the person is likely to be
released.
The
antecedent history and the past conduct' on which the order of detention would
be based would, in such a case, be proximate in point of time and would have a
rational connection with the conclusion drawn by the authority that the
detention of the person after his release is necessary." In Kartic Chandra
Guha v. The State of West Bengal and Ors., [1975] 3 SCC 490 the order of
detention stated that having regard to the activities of the detenu, as
discussed in the grounds of detention, and having regard to the possibility of
his being enlarged on bail the detaining authority was satisfied that the detenu
should be detained under the Act. This order was upheld on the ground "the
District 486 Magistrate on information received by him thought that the
petitioner was likely to be released on bail in which case having regard to his
past activities it was open to the District Magistrate to come to the
reasonable conclusion that having regard to the desperate nature of the aCtivities
of the petitioner his enlargement on bail would be no deterrent to his
desperate activities." In Alijan Mian v. District Magistrate, Dhanbad and
Others, [1983] 4 SCC 301 it was again held that a detention order would not
become invalid merely because the detention order was passed on the detaining
authority being apprehensive of the likelihood of the detenu's release on bail.
In Smt.
Shashi Aggarwal v. State of U.P. & Ors., [1988] 1 SCC 436 this Court
observed:
"Every
citizen in this country has the right to have recourse to law. He has the right
to move the court for bail when he is arrested under the ordinary law of the
land. If the State thinks that he does not deserve bail the State could oppose
the grant of bail. He cannot, however, be interdicted from moving the court for
bail by clamping an order of detention. The possibility of the court granting
bail may not be sufficient. Nor a bald statement that the person would repeat
his criminal activities would be enough. There must also be credible
information or cogent reasons apparent on the record that the detenu, if enlarged
on bail, would act prejudicially to the interest of public order. That has been
made clear in Binod Singh v. District Magistrate, Dhanbad, where it was
observed:
[1986]
SCC (Crl.) 490 @ 495 (para7) A bald statement is merely an ipse dixit of the officer.
If there were cogent materials for thinking that the detenu might be released
then these should have been made apparent. Eternal vigilance on the part of the
authority charged with both law and order and public order is the price which
the democracy in this country extracts from the public officials in order to
protect the fundamental freedoms of our citizens." All these cases were
again considered in a latest judgment of this Court in N. Meera Rani v.
Government of Tamil Nadu and Another, [1989] 4 SCC 418, and it was held that
all those decisions of the Court on this aspect have to be read in the light of
the Constitution Bench 487 decision in Rameshwar Shaw's case (supra) and that
the conclusion about the validity of the detention order in each case was
reached having regard to the facts and circumstances in the particular case.
Thus
the detaining authority though can take into account the possibility of the detenu
being released on bail in the criminal proceedings,. have to be satisfied,
having regard to his past activities or by reason of the credible information
or cogent reasons, that if he is enlarged on bail, he would indulge in such
criminal activities. In the present case except the bald statement that the detenu
would repeat his criminal activities after coming out of the jail, there are no
credible information or material or cogent reasons apparent on the record to
warrant an inference that the detenu if enlarged on bail would indulge in such
criminal activities which are prejudicial to the maintenance of essential
services. There must be something more than what is found in the record here to
come to the conclusion that this is not a case of solitary incident but a case
of the detenu indulging in business of receiving stolen electric wires. On the
other hand it appears to us that the detention order has been made in order to
supplant the criminal prosecution which is not permitted.
The
learned counsel also contended that there is an unexplained delay which makes
the ground of detention not proximate vitiating the order of detention itself.
The theft of the wire was on 14.2.1989 and the F.I.R. was registered on
15.2.1989. On that day itself as seep from the record Jagdish, Santosh and Munshi
Sharma were shown as accused on the basis of some information. The house of Jagdish
was raided on 3.3.1989 and on the same day the factory of the detenu was raided
and 20 k.g. of melted wire was recovered from Munshi Sharma but no action was
taken till 2.5.1989 against the detenu. On being arrested on 2.5.1989 the detenu
moved a bail application and the detention order itself was made on 3.5.1989.
Though bail was granted, in view of the detention order he could not be
released from jail. In spite of the fact that the recovery statement itself was
made as early as on 3.3.1989 no action was taken till 3.5.1989.
Nothing
more is stated in the detention order. The delay has also not been
satisfactorily explained in the counter statement of the respondents. The
ground instance, therefore, could not be a proximate cause for a sudden
decision to take action under the National Security Act and this also vitiates
the order.
In the
result we allow this writ petition, set aside the order of detention and direct
that the detenu be released forthwith.
P.S.S.
Petition allowed.
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