Abdul Razak
Abdul Wahab Sheikh Vs. S.N. Sinha, Commissioner of Police, Ahmedabad & Anr
[1989] INSC 75 (3 March
1989)
Ray,
B.C. (J) Ray, B.C. (J) Pandian, S.R. (J)
CITATION:
1989 AIR 2265 1989 SCR (1) 890 1989 SCC (2) 222 JT 1989 (1) 478 1989 SCALE
(1)542
CITATOR
INFO : R 1989 SC2274 (11) RF 1990 SC1202 (4) RF 1991 SC1640 (12) D 1991 SC2261
(5)
ACT:
Gujarat
Prevention of Anti-Social Activities Act, 1985--Section 3(2)--Detention
order--Whether legal and in accordance with law--Necessity for the detaining
authority to consider all relevant material.
National
Security Act 1980--Section 3--Detention or- der--Subjective satisfaction of
detaining authority based on application of mind--Necessity for making an order
of deten- tion--Past history and antecedents of detenu----When rele- vant.
HEAD NOTE:
The
Commissioner of Police, Ahmedabad, Respondent No. 1 therein passed an order of
detention dated 23.5.1988 against Abdul Latif Abdul Wahab, petitioner's brother
under section 3(2) of the Gujarat Prevention of Anti-Social Activities Act,
1985 and served the same on the detenu, while he was in jail, in pursuance of
an order of remand made by the Desig- nated Court, Ahmedabad in CR No. 40 of
1987. The petitioner, detenu's brother challenged the validity of this order on
the ground, amongst others, that there has been absolute non-application of
mind on the part of the detaining author- ity in making the order of detention.
The
grounds of detention furnished to the detenu, makes mention of three criminal
cases viz. Case no. 372/85, Case no. 456/87 and Case no. 2/88 pending against
the detenu at P.S. Kalupur, out of which case no. 372/85 is stated to be
pending in Court and the other two pending for examination.
The
detaining authority acting on the basis of the said complaints apprehended that
detenu's criminal activities will adversely affect the public order because the
activi- ties, the weapons kept by the detenu and his associates cannot except
create terror in the State of Gujarat. The detaining authority further felt
that the detenu though in jail, there are full possibilities that he may be
released on bail in that offence. It may be pointed out that in case no. 2/88,
the name of the detenu does not find place in the FIR. Likewise in case no.
372/85 aforesaid, detenu's name is not there.
891 In
case no. 456/87, registered on 16.10.87 the detenu was arrested the same day.
The case related to the seizure of a revolver from the person of detenu. The
detaining authority while issuing the order of detention against the detenu,
did not at all consider the fact that the Designated Court declined to grant
bail to the detenu by its order dt. May 13, 1988. The detaining authority also was
not aware that no application for bail by detenu was filed between May 13 to
May 23, 1988 i.e. when the detention order was made.
The
Court in order to decide the various contentions advanced by the parties felt
it necessary to consider the background as well as the various detention orders
passed against the detenu. The first in the series is an order dt. 11th
September, 1984 when the Respondent No. 1 issued to the detenu a notice to show
cause why he should not be externed from the boundaries of Ahmedabad and the
surroundings rural areas. In 1985 the detenu was arrested u/s 307, 143, 147,
148 & 324, I.P.C. CR case no. 37/85 wherein he was granted bail by the
Sessions Judge on February
14, 1985. On 24th March 1985, Commr. of Police passed an order
of detenu's detention. On 6th July 1985
charge-sheet in CR Case No. 37 of 1985 was submitted. On 27th September, 1985 inquiry into the externment
proceedings was completed. On Dec. 12, 1985
the detenu surrendered and was taken into custody. On May 26, 1986, the detenu was acquitted in that
case. The detenu was released from the jail on June 23, 1986 and as soon as he came out of the jail, an order of
detention under Preven- tion of Anti Social Activities Act was served on the detenu
there and then and he was once again taken into custody. It may be mentioned in
this connection that on Jan.
18, 1986, the order of
externment of the detenu from Ahmedabad city and rural areas of Gandhi Nagar
etc. was made when the detenu was in jail. The State Govt. on appeal by the detenu
confirmed the order of externment. However on August 7, 1986, the Govt. revoked the order of detention, as Advisory
Board could not be constituted. On the same day the State Govt. passed the
second order of detention under PASA and the same was served on the detenu the
same day. The detenu challenged the validity of both the externment order as
also the detention order in the High Court. The High Court re- jected the
petition challenging the order of detention and he filed petition for special
leave in this Court. This Court released the detenu on parole on 23.1.87 as he
was to participate in municipal elections which were to take place on 25th Jan. 1987. The detenu was released on parole
on 24th Jan. 1987. He won the election from all the
wards wherefrom he had contested.
This
Court on February 9,
1987 quashed the
detention order and 892 directed the respondents to set the detenu at liberty.
On February 14, 1987 when the detenu went to the police
station with his advocate to mark his presence as required by the earlier bail
order, he was again taken into custody for breach of order of externment of
18.1.1986. He was granted bail.
On February 15, 1987 an order of detention under section
8(a) of the National Security Act was passed against the detenu. The detenu
challenged the same but in the meantime Advisory Board released him.
On October 16, 1987, the detenu was again arrested for
an incident of Feb. 14,
1986. He applied for
bail before the Designated
Court which was
refused. Against that order he preferred an appeal to this Court under section
16 of the Terrorists and Disruptive Activities (Prevention) Act 1985.
This
Court set aside the order of the Designated Court and remitted the matter back to the said Court with a
direction to decide the matter afresh and enlarge the detenu on bail pending
the disposal of the application for bail.
Another
order of detention was passed against the detenu on Jan. 25, 1988 which was later withdrawn as the Advisory Board declined to
confirm the same. The detenu was released on March 14, 1988.
At the
hearing of the appeal by this Court on 7.4.88 an application was made that the detenu
has absconded whereupon this Court ordered that the detenu should surrender
within a week's time. He accordingly surrendered on April 13, 1988.
On May 23, 1988 the order of detention in question
was made which is hereby challenged.
The
contention raised on behalf of the petitioner is that in the grounds of
detention furnished in support of the order of detention, no prejudicial act on
the part of the detenu is alleged between March 14, 1988 and April 13, 1988
during which small period he was a free man; as he was in jail for nearly three
years prior to March 14, 1988 except for short periods when he was on parole,
and after April 13, 1988 again he was under custody. It is urged that no preju-
dicial activity has been shown, when the detenu was on parole. As such the
action of the respondent is wholly vindictive and in total defiance of law.
According to him there has been no application of mind at all to the most
glaring fact that the Designated Court in defiance of this Court's order did
not grant interim bail to the detenu by its order dt. 13.5.88. There was no
possibility therefore of the detenu being released on bail. It was thus impossi-
893 ble to prove the statement made in the grounds of detention that there were
full possibilities that the detenu may be released on bail in this case.
Allowing
the petition, this Court,
HELD:
The detention of a person without a trial is a very serious encroachment on his
personal freedom and so at every stage, all questions in relation to the
detention must be carefully and solemnly considered. [901G] The past conduct or
antecedent history of a person can be taken into account in making a detention
order but the past conduct or antecedent history of the person, on which the
authority purports to act, should ordinarily be proxi- mate in point of time
and would have a rational connection with the conclusion drawn by the authority
that the deten- tion of the person after his release is necessary. [901F-G] There
must be awareness in the mind of the detaining authority that the detenu is in
custody at the time of service of the order of detention on him, and cogent rele-
vant materials and fresh facts have been disclosed which necessitate the making
of an order of detention. [905D-E] In the instant case, the detenu was in jail
custody in connection with a criminal case and the order of detention was
served on him in jail. It is also evident that the application for bail filed
by the detenu was rejected by the Designated Court on May
13, 1988. The
statement in the grounds of detention that at present you are in jail yet
"there are full possibilities that you may be released on bail in this
offence also" clearly shows that the detaining authority was completely
unaware of the fact that no appli- cation for bail was made on behalf of the detenu
for his release before the Designated Court and as such the possi- bility of
his coming out on bail is non-existent. This fact of non-awareness of the
detaining authority clearly estab- lishes that the subjective satisfaction was
not arrived at by the detaining authority on consideration of relevant
materials. The only period during which he was free person was from March 14, 1988 to April 13 1988. During this period no act prejudicial to the maintenance
of public order has been alleged to have been committed by the detenu. [905E-G;
906E-F] A mere bald statement that the detenu is in jail custo- dy is likely to
be released on bail and there are full possibilities that he may continue 894
the offensive activities without reference to any particular case or acts does
not show on the face of the order of detention that there has been subjective
satisfaction by the detaining authority in making the order of detention in
question. [907C-D] The order of detention was accordingly quashed and the detenu
directed to be set at liberty forthwith. [907D] Rameshwar Shaw Burdwan & Anr.
v. Distt. Magistrate Burdwan & Anr., [1964] 4, SCR 921 referred to; Alijan Mian
v. Distt. Magistrate Dhanbad & Ors. etc., [1983] 4 SCC 301 referred to; Ramesh
Yadav v. Distt. Magistrate, Etah & Ors., [1985] 4 SCC 232 referred to; Suraj
Pal Sahu v. State of Maharashtra & Ors., [1986] 4 SCC 378 referred to;
Vijay Narain Singh v. State of Bihar & Ors., [1984] 3 SCR 459 referred to; Raj
Kumar Singh v. State of Bihar & Ors., [1986] 4 SCC 407 referred to; Binod
Singh v. Distt. Magis- trate Dhanbad & Ors., [1986] 4 SCC 416 at 420-21; Poonam
Lata v.M.L. Wadhawan and Anr., [1987] 4 SCC 48 referred to and Smt. Shashi Aggarwal
v. State of U.P. & Ors., [1988] 1 SCC 436 at 440, referred to.
ORIGINAL
JURISDICTION: Writ Petition (Criminal) No. 307 of 1988.
(Under
Article 32 of the Constitution of India) Ram Jethmalani, U.R. Lalit, Ms. Kamini Jaiswal and Arvind Nigam for
the Petitioner.
T.U.
Mehta, Dushiant Dave, M.N. Shroff and Mrs. S. Dikshit for the Respondents.
The
Judgment of the Court was delivered by RAY, J. The petitioner who is the
brother of detenu, Adbul Latif Abdul Wahab Sheikh of Ahmedabad has challenged
in this writ petition the order of detention dated May 23, 1988 passed by the
respondent No. 1, the Commissioner of Police, Ahmedabad City, Gujarat issued
under Section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985
and served on the detenu while the detenu was in custody at Sabarmati Central
Prison under a judicial order of remand made by the Designated Court, Ahmedabad
in respect of C.R.
No. 40
of 1987, on the grounds inter alia that there has been absolute non-application
of mind on the part of the detaining authority 895 in clamping the order of
detention and also on other grounds.
In
order to decide the various contentions raised in this writ petition, it is
necessary to consider the back- ground as well as the various orders of
detention passed against the detenu by the detaining authority, the respond- ent
No. 1. On September 11, 1984, the detenu was served with a show-cause notice
under Section 59 of the Bombay Police Act, 1951 calling upon him to show cause
as to why he should not be externed from the limits of Ahmedabad City Police
Commissioner's jurisdiction and its surrounding areas as also from the rural
areas of Gandhinagar, Kheda and Mehsana District limits for the activities of
February, 1983. In 1985 the detenu was arrested for alleged offences under
Sections 307, 143, 147, 148, 149 and 324 of Indian Penal Code in C.R. No. 37 of
1985. On February 14,
1985 the detenu was
granted bail in the said case by the Sessions Court, Ahmedabad. On March 18, 1985 communal riots broke out in Ahmedabad
city and on March 24, 1985 an order of detention under the
National Security Act was passed against the detenu by the respondent No. 1.
During the communal riots one Police Sub-Inspector, Mr. Rana was killed in Kalupur
P.S.F.I.R. was lodged against the detenu and six other accused on May 9, 1985. In the FIR the detenu was named as accused No. 2.
On July 6, 1985 charge-sheet was submitted in C.R.
No. 37 of 1985. On September 27, 1985 enquiry was completed in externment
proceedings and arguments were heard. On November 12, 1985, the detenu
surrendered to police and he was arrested and taken into custody. In the said
case accused Nos. 6 and 7 were discharged, the detenu along with accused No. 4
was tried in the said charge by the Principal Judge, Sessions Court who by his
Judgment dated May, 26, 1986 acquitted the detenu and the co-accused after
recording of the evidence of witnesses and considering the same. The detenu
was, however, enlarged on bail by the Magistrate in the said case vide his
order dated June 23, 1986 as no case was made out against the detenu under Sec-
tion 307 I.P.C. and the offence, if any, was only under Section 324 I.P.C. The detenu
was released from jail on June 23, 1986 and immediately as he came out, an
order of deten- tion under the Prevention of Anti-Social Activities Act (PASA)
was served on the detenu there and then and he Was once again taken into
custody. It is relevant to mention in this connection that on January 18, 1986
the order of ex- ternment of the detenu from Ahmedabad City and rural areas of Gandhinagar
etc. was made while he was in custody. The detenu preferred an appeal against
the externment order which was heard by the Deputy Secretary (Home). The State
Government confirmed the order of externment on June 23, 1986. On August 7,
1986, 896 the State Government revoked the order of detention dated June 23,
1986 on the ground that no Advisory Board was constituted. On the same day,
however, the State Government passed the second order of detention under PASA
and the same was served on the detenu on the same day. The detenu filed a
Special Criminal Application No. 862 of 1986 challenging the externment order
dated January 18, 1986 and its confirmation order dated June 23, 1986 before
the High Court of Gujarat.
The detenu
also filed another Special Criminal Application No. 889 of 1986 before the High
Court challenging the second order of detention dated August 7, 1986. The
Special Crimi- nal Application No. 889 of 1986 was dismissed by the High Court
on October 21, 1986. Against this judgment the detenu filed a Special Leave
Petition (Crl.) No. 3762 of 1986 before this Court and the said Petition was
finally heard in part on January
23, 1987 and it was
adjourned to February
3, 1987. This Court
released the detenu on parole only on January 23, 1987 for the reason that the detenu was
required to be in Ahmedabad because the Corporation elections were to take
place on January 25,
1987. Unfortunately,
the mother of the detenu expired on January 23, 1987, but in spite of the order of
parole made by this Court, the State Government permitted the detenu to attend
his mother's funeral by granting him parole for only four hours and after the funer-
al, the detenu was again taken into custody. Thereafter, the detenu was
released on parole on January
24, 1987. The
elections for the Corporation were held on January 25, 1987 and the detenu was declared elected
from all the wards from which he had contested.
On February 3, 1987, the appeal of the detenu was heard
finally by this Court and this Court extended the parole granted to him till
the judgment was delivered in the case.
However,
on February 3, 1987 in spite of the orders of parole,
the detenu was kept in custody and was released only on the next day i.e. February 4, 1987. This Court by its judgment dated February 9, 1987 quashed the detention order and
directed the respondents to set the detenu at liberty forthwith.
The detenu
in terms of his earlier bail orders was required to be present before Kalupur
P.S. every morning at 11
a.m. and he continued
to do so from February 9 to Febru- ary 14, 1987. On February 14, 1987 when the detenu reported at Kalupur P.S. along with his
Advocate to record his presence, he was asked to wait there. At about 12.30 p.m., he was informed that he was taken into custody for
breach of orders of externment dated January 18, 1986. The FIR against this case was
registered and the detenu was produced before the Metropolitan Magistrate at
about 1.30 p.m. The Metropol- itan Magistrate 897
granted bail to the detenu. At that time the detenu received the news that
disturbances had broken out in the city of Ahmedabad and, therefore, he
declined to avail of the bail order and requested the Magistrate to take him
into custody.
On
February 15, 1987, the order of detention under Section 8(a) of the National
Security Act was passed against the detenu by the Commissioner of Police, Ahmedabad
City. The detenu was served with the order which was confirmed by the State
Government on February 18, 1987. This order of deten- tion was challenged by
the detenu by a writ petition under Section 32 of the Constitution of India
before this Court being Writ Petition (Crl.) No. 246 of 1987. This Court issued
rule returnable on April 4, 1987. Pending disposal of the writ petition, the detenu
was released on April 3, 1987 by the AdviSory Board constituted under the
National Securi- ty Act. Furthermore, to harass the detenu two FIRs being C.R.
Nos. 34 and 40 of 1987 were lodged against the detenu in Kalupur P.S. On June
22, 1987 the detenu on receiving notices of two meetings, one of the General
Body and the other of Suez Refugee Committee of the Ahmedabad Municipal
Corporation to be held on June 26 and June 23, 1987 respec- tively, made an
application to the Home Secretary, Govern- ment of Gujarat seeking permission to
visit Ahmedabad for one month. As no reply was received by the detenu, the detenu
moved Crl. Misc. Petition No. 1345 of 1987 before the High Court for permission
to visit Ahmedabad. the aforesaid Miscellaneous applications were rejected by
the High Court.
Thereafter,
the detenu filed Special Leave Petition (Crl.) No. 1952 of 1987 before this
Court against the impugned order of externment of the detenu for a period of
two years with effect from January 18, 1986. Notice was issued on the said
petition but as the period of externment expired, the said petition was finally
disposed of by this Court.
On
October 16, 1987, the detenu was arrested by the police for an alleged offence
committed by the detenu in respect of the incident of February 14, 1987 i.e. breach
of externment order dated January 18, 1986. The detenu applied for bail to the
Designated Court, Ahmedabad but the bail application was rejected vide order
dated November 24, 1987. The detenu filed an appeal before this Court under
Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1985.
This
appeal being Criminal Appeal No. 316 of 1988 was dis- posed of by this Court on
April 27, 1988 setting aside the impugned order of the Designated Court
rejecting application for bail and remitting the case to the Designated Court
for a decision afresh. The Designated Court was also directed to enlarge the
applicant on bail on such terms as it deems fit pending disposal of the
application 898 for bail on merits. The respondents being afraid that this
Court may allow the said Criminal Appeal No. 3 16 of 1987 made another order of
detention on January 25, 1988 and served the order on the detenu on the same
day. This deten- tion order was made under Section 3 of the Gujarat Preven- tion
of Anti-Social Activities Act, 1985. This order of detention was challenged by
Criminal Writ Petition No. 114 of 1988 before this Court. Rule was issued and
the petition was heard on merits. The detention order was withdrawn as the
Advisory Board refused to confirm the order of deten- tion. The detenu was
released on March 14, 1988. The detenu accordingly went home. However, when
Criminal Appeal No. 316 of 1988 came up for hearing before this Court on April
7, 1988 an allegation was made that detenu had absconded. This Court however,
ordered on April 7, 1988 that the detenu should surrender within a week. In
compliance of the said order the detenu surrendered on April 13, 1988 and on
May 23, 1988 the order of detention was made as stated hereinbe- fore.
It has
been stated in the writ petition that in the grounds of detention in support of
the present order of detention dated May 23, 1988, no act on the part of the detenu
is alleged between March 14, 1988 and April 13, 1988.
It has
also been stated that it was the only period of less than a month during which
the detenu was a free man. After April 13, 1988 the detenu has been
continuously in custody and prior to March 14, 1988 also the detenu was
continuously in custody for nearly three years save for short periods during
which he was released on parole by this Court. No prejudicial act has been
alleged against the detenu during the days when the detenu was out on parole.
It has
been further stated that no prejudicial activity of any kind is alleged against
the detenu after March 14, 1988 being the date on which the earlier order of
detention stood revoked by virtue of the Advisory Board's decision.
The
action of respondents is plainly vindictive in total defiance of law and
disgraceful blot on any civilised admin- istration of justice. It has also been
stated that there has been no application of mind at all to the most glaring
fact that the Designated Court in defiance of this Court's order did not grant
interim bail to the detenu by its order dated May 13, 1988. There was no
possibility therefore, of the detenu being released on bail. It is impossible
to justify the statement made in the grounds of detention that there are full
possibilities that the detenu may be released on bail in this case. This
statement, it has been stated is recklessly false. It has also been stated that
the entire material which forms the basis of the present order of detention and
the grounds of detention was available at the 889 time of the detention order
of January 25, 1988.
The
detaining authority, the respondent No. 1 has filed an affidavit in reply. In para
16 of the said affidavit it has been stated that it is true that the detenu was
released by the Advisory Board on April 3, 1987; but it is not true to say that
two FIRs were lodged against the detenu with a view to harass him. These two FIRs
i.e.C.R. Nos. 34 and 40 of 1987 were registered against the detenu on February 14, 1987 at P.S. Kalupur i.e. prior to the
order dated April 3,
1987 passed by the
State Government. C.R. No. 34/87 was registered at P.S. Kalupur against the detenu
for breach of externment order while C.R. No. 40/87 was registered against the detenu
at P.S. Kalupur for an offence of provocative speech made by the detenu. "
In para 32, the respondent No. 1 merely denied the aver- ments made in para
3(III) of the petition wherein it was specifically averred that there was no
specific material for passing the detention order against the detenu. In para
34, the respondent No. 1 has denied the statement that there is no application
of mind to the facts of the case stated in the petition. It has also been
stated that the statement that there is no material to justify the action taken
by the competent authority is not true.
It
appears from the grounds of detention which was served under section 9 of the
said Act that three criminal cases have been mentioned. These are:
1.
P.S. Kalupur U/s 25(a)(c) of Arms pending in Court Case No. 372/85 Act,
Sections 4, 5 of Explosive Act.
2.
P.S. Kalupur U/s 120(b) of I.P.C. Pending for Case No. 456/87 U/s 25(1)(e)(c)
of examination Arms Act and U/s (1) of the Terrorists Act, 1985
3.
P.S. Kalupur U/s 307, 120(b) of IPC Pending for Case No. 2/88 U/s 3(1) of
Terrorists examination.
Act,
U/s 4, 5 of Explo- sives Act, U/s 25(1)(c) (1) of Arms Act and U/s 135(1) of
Bombay Police Act.
900 It
has also been stated therein that after careful consideration of the facts of
the complaint of the aforesaid offences it is apprehended that detenu's
criminal activities will adversely affect the public order because the activi-
ties, the weapons kept by the detenu and his associates cannot except create
terror in the State of Gujarat.
It has
been further stated that:
"You
are arrested for committing the said offences, even though you are released on
bail from the Court. At present you are in jail in the case registered in Kalupur
Police Station offence register No. 40/87 and there are full possibilities that
you may be released on bail in this offence also." Out of these cases in
respect of Case No. 2/88 which was registered on January 2, 1988 the name of
the detenu is not mentioned in the F.I.R. In Case No. 372/85 also which was
registered on June 26, 1985, the name of the detenu is not in the FIR. The detenu,
however, was arrested on October 17, 1987 i.e. after a lapse of more than two
years and three months. In Case No. 456/87 which was registered on October 16,
1987, the detenu was arrested on October 16, 1987. This case related to the
seizure of a revolver from the person of the detenu who kept the same without
any licence in viola- tion of the provisions of Arms Act. The detaining
authority while issuing the order of detention against the detenu, the brother
of the petitioner who is already in custody, did not at all consider the fact
that the Designated Court declined to grant bail to the detenu by its order
dated May 13, 1988 in Crl. Misc. No. 511 of 1988. The detaining authority also
was not aware that no application for bail on behalf of the detenu was filed between
May 13 to May 23, 1988 i.e. the date when the detention order was made. Had
this fact been known to the detaining authority, the detaining authority could
have considered whether in such circumstances he would have been subjectively
satisfied on the basis of cogent materials, fresh facts and evidences that it
was necessary to detain him in order to prevent him from acting in a manner
prejudicial to the maintenance of public order.
In Rameshwar
Shaw v. District Magistrate, Burdwan & Anr., [1964] 4 SCR 921 the petitioner_was
detained by the order of the District Magistrate under the provisions of
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
901 order was served on the petitioner 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 that the detention was not justified
under the provisions of Section 3(1)(a) of the Act and as such it was invalid.
It was held that the satisfaction of the de- taining authority under section
3(1)(a) is his subjective satisfaction and as such it is not justiciable. It is
not open to the detenu to ask the Court to consider the question as to whether
the said satisfaction of the detaining author- ity can be justified by the
application of objective tests.
The
reasonableness of the satisfaction of the detaining authority cannot be
questioned in a court of law; the ade- quacy of the material on which the said
satisfaction pur- ports to rest also cannot be examined by a court of law. It
has also been observed that if any of the grounds furnished to the detenu is
found to be irrelevant while considering the application of clauses (i) to
(iii) of Section 3(1)(a) and in that sense of the Act, the satisfaction of the
de- taining authority on which the order of detention is based is open to
challenge and the detention order is liable to be quashed. Similarly, if some
of the grounds supplied to the detenu are so vague that they would virtually
deprive the detenu of his right of making an effective representation that
again may introduce a serious infirmity in the order of his detention. It has
been further observed that an an abstract proposition of law, there may not be
any doubt that Section 3(1)(a) of the Act does not preclude the authority from
passing an order of detention against a person whilst he is in detention in
jail but in deciding the question as to whether it is necessary to detain a
person, the detaining authority has to be satisfied that if the said person is
not detained he may act in a prejudicial manner and this conclu- sion can be
reasonably reached by the authority generally in the light of the evidence
about the past prejudicial activi- ties of the said person. The past conduct or
antecedent history of a person can be taken into account in making a detention
order, but the past conduct or antecedent history of the person, on which the
authority purports to act, should ordinarily 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. The detention
of a person without a trial is a very serious encroachment on his personal
freedom and so at every stage, all questions in relation to the said detention
must be carefully and solemnly considered. The detaining authority considered
the antecedent history and past conduct which was not proximate in point of
time to the order of detention and as such the detention order was held to be
not justified and so the same was set aside.
902 In
Alijan Mian v. District Magistrate, Dhanbad and Ors. etc., [1983] 4 SCC 301 detention
orders were served on the petitioners in jail. The detaining authority was
alive to the fact that the petitioners were in jail custody on the date of the
passing of the detention orders as evident from the grounds of detention. It
was stated therein that the position would have been entirely different if the
petition- ers were in jail and had to remain in jail for a pretty long time. In
such a situation there could be no apprehension of breach of public order from
the petitioners. But the detain- ing authority was satisfied that if the
petitioners were enlarged on bail, of which there was every likelihood, it was
necessary to prevent them from acting in a manner preju- dicial to public
order.
It was
held that the pendency of a criminal prosecution is no bar to an order of
preventive detention, nor is an order of preventive detention a bar to
prosecution. it is for the detaining authority to have the subjective satisfac-
tion whether in such a case there is sufficient material to place a person
under preventive detention in order to pre- vent him from acting in a manner
prejudicial to public order or the like in future.
In Ramesh
Yadav v. District Magistrate, Etah and Ors., [1985] 4 SCC 232 the order of
detention under section 3(2) of National Security Act, 1980 was made at a time
when the petitioner had already been in Mainpur jail as an under- trial
prisoner in connection with certain pending criminal cases. The grounds of
detention were served on the petition- er along with the order of detention. The
petitioner asked for certain papers with a view to making an effective repre- sentation
but when the request was rejected, the petitioner made a representation. The
Board did not accept the peti- tioner's plea. The petitioner's detention was
confirmed by the State Government. This was challenged in the writ peti- tion.
Apart from specifying five grounds in the grounds of detention, a reference was
made to the fact that the detenu creates public terror on account of his
criminal activities which are absolutely prejudicial to' the maintenance of
public order. It was further mentioned in the detention order that though the
petitioner was detained in district jail yet he filed an application for bail
in the court of law and the same has been fixed for heating on September 17,
1984, and there is a positive apprehension that after having bail he will be
out of jail and the detaining authority is convinced that after being released
on bail he will indulge in activities prejudicial to the maintenance of public
order. It was observed that:
903
"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 activi- ties in the area. If the
apprehension of the detaining authority was true, the bail appli- cation 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 under-trial prisoner was likely to get bail an order of
detention under the National Security Act should not ordinarily be
passed." In Suraj Pal Sahu v. State of Maharashtra and Ors., [1986] 4 SCC
378 Sabyasachi Mukharji, J while agreeing with the views expressed in Ramesh Yadav
v. District Magistrate, Etah & Ors., (supra) observed that the principle
enunciated in the said case would 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 interlinked 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.
In
Vijay Narain Singh v. State of Bihar & Ors., [1984] 3 SCR 435 at 459
wherein an order of detention under Section 12(2) of Bihar Control of Crimes
Act, 198 1 was served on the petitioner while he was in jail as an under-trial pris-
oner in a criminal case under Section 302 I.P.C. and was allowed to be enlarged
on bail by the High Court but not yet enlarged, it was held that:
"It
is well settled that the law of preventive detention is a hard law and
therefore it should be strictly construed .... the law of preventive detention
should not be used merely to clip the wings of an accused who is in- volved in
a criminal prosecution." 904 In the case of Raj Kumar Singh v. State or
Bihar and Ors., [1986] 4 SCC 407 Mukharji, J. observed that while adequacy or
sufficiency is no ground for a challenge, rele- vancy or proximity is relevant
in order to determine whether an order of detention was arrived at irrationally
or unrea- sonably. It has been further observed that:
"Preventive
detention as reiterated is hard law and must be applied with circumspection rationally,
reasonably and on relevant materi- als. Hard and ugly facts make application of
harsh laws imperative. The detenu's rights and privileges as a free man should
not be unnec- essarily curbed." In Binod Singh v. District Magistrate, Dhanbad,
Bihar and Ors., [1986] 4 SCC 416 at 420-21 the petitioner was arrested in
connection with the criminal case and he was already in custody. The order of
detention dated January
2, 1986 under Section
3(2) of National Security Act was served on the petitioner in jail. It was
observed by the Court that;
"
..... There must be awareness of the facts necessitating preventive custody of
a person for social defence. If a man is in custody and there is no imminent
possibility of his being released, the power of preventive detention should not
be exercised.
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." In Poonam Lata v.M.L. Wadhawan & Anr., [1987] 4 SCC 48 the
court observed that:
"The
fact that the detenu is already in deten- tion does not take away the
jurisdiction of the detaining authority in making an order of preventive
detention. What is necessary in such a case is to satisfy the court when
detention is challenged on that ground that the detaining authority was aware
of the fact that the detenu was already in custody and 905 yet he was
subjectively satisfied that his order of detention became necessary." In Smt.
Shashi Aggarwal v. State of U.P. and Ors., [1988] 1 SCC 436 at 440 the detenu
was detained by the District Judge, Meerut by an order dated August 3, 1987
made under Section 3(2) of National Security Act, 1980. The detention order was
approved by the State Government on receipt of the opinion of the Advisory
Board. It was chal- lenged by a writ petition before this Court. The Court
observed that:
"In
the instant case, there was no material made apparent on record that the detenu,
if released on bail, is likely to commit activi- ties prejudicial to the
maintenance of public order. The detention order appears to have been made
merely on the ground that the detenu is trying to come out on bail and there is
enough possibility of his being bailed out. We do not think that the order of
detention could be justified on that basis." On a consideration of the
aforesaid decisions the prin- ciple that emerges is that there must be
awareness in the mind of the detaining authority that the detenu is in custo- dy
at the time of service of the order of detention on him and cogent relevant
materials and fresh facts have been disclosed which necessitate the making of
an order of deten- tion. In this case, the detenu was in jail custody in con- nection
with a criminal case and the order of detention was served on him in jail. It
is also evident that the applica- tion for bail filed by the detenu was
rejected by the Desig- nated Court on 13th May, 1988. It is also not disputed that
thereafter no application for bail was made for release of the detenu before
the order of detention was served on him on 23rd May, 1988. It appears that in the grounds of deten- tion there is a
statement that at present you are in jail yet "there are full
possibilities that you may be released on bail in this offence also." This
statement clearly shows that the detaining authority was completely unaware of
the fact that no application for bail was made on behalf of the detenu for his
release before the Designated
Court and as such the
possibility of his coming out on bail is non-exist- ent. This fact of
non-awareness of the detaining authority, in our opinion, clearly establishes
that the subjective satisfaction was not arrive&at by the detaining
authority on consideration of relevant materials. There is also nothing to show
from the grounds of detention nor any fresh facts have been disclosed after the
detention order dated January 25, 1988 was set aside by the Advis- 906 ory
Board on March 13, 1988, on the basis of which the detaining authority could
come to his subjective satisfac- tion that the detenu, if released on bail will
indulge in acts prejudicial to the maintenance of public order and as such an
order of detention is imperative. In the grounds of detention three criminal
cases have been mentioned. Out of those three criminal cases, criminal case No.
372/85 was lodged on June
26, 1985 i.e. much
before the present deten- tion order and several orders of detention were made
in the meantime. This criminal case is, therefore, not proximate in time to the
making of the order of detention. So it is a stale ground. Another criminal
case No. 456/87 is dated October
16, 1987 on the basis
of which the previous order of detention was made. This case has nothing to do
with the maintenance of public order as it pertains to the recovery of a
revolver from the detenu on a search of the person of the detenu, without any
valid licence under the Arms Act.
The
third case No. 2/88 is dated January 2, 1988.
This case was in existence at the time of making of the detention order dated January 25, 1988. Moreover, the name of the detenu
is not in the F.I.R. The statements of some of the associates of the detenu
have been annexed to the grounds of detention. These statements do not disclose
any activity after 14th
March, 1988 or any
activity of the time when the detenu was a free person. Considering all these
facts and circumstances we are constrained to hold that there has been no
subjective satisfaction by the detaining authority on a consideration of the
relevant materials on the basis of which the impugned order of detention has
been clamped on the detenu. It also appears that the detenu was in detention as
well as in jail custody for about three years except released on parole for
short; periods. The only period during which he was a free person was from 14th March, 1988 to 13th April, 1988. During this period no act prejudicial to the maintenance
of public order has been alleged to have been committed by the detenu. It is
convenient to mention here that Section 15(2) of PASA Act says that a detention
order may be revoked by State Government; but such revoca- tion on expiry of
detention order will not bar making of a fresh detention order provided where
no fresh facts have arisen after expiry or revocation of the earlier detention
order made against such person. The maximum period of deten- tion in pursuance
of subsequent detention order cannot extend beyond twelve months from the date
of detention of earlier order. This Court in considering similar provision in
Section 13(2) of Preventive Detention Act in Kshetra Gogoi v. The State of
Assam, [1970] 1 SCC 40 at 43 held the order of detention as illegal stating
that:
"
..... Under Section 13(2) what is required is that fresh 907 facts should have
arisen after the expiry of the previous detention. Facts arising during the
period of detention are, therefore, not relevant when applying- the provisions
of Section 13(2)." It is highlighted in this connection that in the affida-
vit-in-reply filed by the respondent No. 1, the detaining authority, he merely
denied the specific averments made in para 3(III) that no act prejudicial to
the maintenance of law and order on the part of the detenu is alleged to have
been committed by the detenu between 14th March to 13th April, 1988 etc.
without specifically denying those state- ments. In this background, a mere
bald statement that the detenu who is in jail custody is likely to be released
on bail and there are full possibilities that he may continue the above
offensive activities without reference to any particular case or acts does not
show on the face of the order of detention that there has been subjective satisfac-
tion by the detaining authority in making the order of detention in question.
We,
therefore, quash the order of detention and direct the respondents to set the detenu
at liberty forthwith.
Y.L.
Petition allowed.
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