The
State of Rajasthan & Anr Vs. Talib Khan & Ors
[1996] INSC 1311 (24
October 1996)
K. Ramaswamy,
Sujata V. Manohar, G.B. Pattanaik
ACT:
With Crminal
Appeal Nos. 417-18 of 1987 the State of Rajasthan & Anr. V. Beeryram Singh & Anr.
HEAD NOTE:
O R D
E R
Pursuant
to the order of this Court dated August 21, 1987 doubting the correctness of Ibrahim Ahmad Batti vs. State
of Gujarat & Ors. [(1983) 1 SCR 540 = (1982) 3 SCC 440], the case has been
referred to this Bench.
These
appeals by special leave arise from the Division Bench judgment of the High
Court of Rajasthan at Jodhpur in Writ Petition Nos.831/87 and
batch.
The
facts are that the respondents were detained under Section 3(1) of the National
Security Act, 1980 (for short, the `Act'), by proceedings of the District
Magistrate, Jaisalmer dated January 7, 1987.
The exceptional circumstance were recorded on January 11, 1987 for non- supply of the ground and documents to the detenu.
The grounds of detention with the material were supplied on January 16, 1987. The detenu made his representation
on January 20, 1987 to the State Government which was
rejected on February 2,
1987. He made a
representation to the Advisory Board on February 9, 1987 and it was considered and rejected
on February 19, 1987. The State Government confirmed the
order of detention on March
13, 1987 for a period
of one year w.e.f January
7, 1987. When the
orders of detention were challenged, primarily on the ground that the
exceptional circumstances and the reasons recorded by the District Magistrate
were not communicated to the detenu, the order of detention was held violative
of Article 22(5) and the High Court by the impugned order dated June 9, 1987 enlarged the respondents from
detention. It is not necessary to go into the other grounds since the reference
is on the correctness of the view taken by a Bench of two Judges of this Court
in Batti's case.
It is
contended by Shri K.S. Bhatti, Jain Advocate on behalf of the appellant, that
after thorough preparation and analysis of facts, the view taken by the High
Court and this court in Batti's case is no correct in law. The objects and
reasons of the Act disclose the gravity under which detention could resorted
to. Section 3 and Section 8 of the Act are to be read together. The detaining
authority, if satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the security of the
State or the maintenance of public order of supplies and service essential to
the community, it is necessary so to do, may pass an order directing that he be
detained. In case the order is not communication to the detenu within five days
as envisaged in Section 8(1), the detaining authority is required to record
reasons for and the exceptional circumstance under which order could not be communciated
to the detenue, and to serve the grounds of detention within 10 days from the
date of the order of detention. In this case reasons have been recorded. It is
not a condition that exceptional circumstances or reasons need be supplied to
the detenu along with the grounds of detention. The view taken in Batti's case
is not correct in law. It is contended by the learned counsel for the
respondents, Shri Sushil Kumar Jain, that the view of this Court in Batti's
case followed by that of the High Court is correct in law for the reasons that
under Article 22(5) of the Constitution, the detenu is entitled to be supplied
with, as soon as may be, the grounds of detention, with a view to make
representation against his deprivation of liberty at the earliest opportunity.
Unless the reasons and the exceptional circumstances for non-supply of the
order of detention are communicated to the detenu along with the grounds of
detention, the detenu would be prevented to make effective representation
either to the appropriate Government or to the Advisory Board or the court.
Therefore, the communication of exceptional circumstances or reasons recorded
along with the grounds of detention, is a pre- condition. Non-compliance
thereof tantamounts to violation of Article 22(5) of the Constitution. The
view, therefore, is correct in law.
In
view of the diverse contentions, the question that arises for consideration is:
whether the view expressed by this Court in Batti's case is correct in law? The
Act was enacted for various reasons, viz., the prevailing situation of communal
disharmony, social tensions, extremist activities, industrial unrest and
increasing tendency on the part of various interested parties to engineer
agitation on different issues; it was considered necessary that the law and
order situation in the country needed to be tackled in a most determined and
effective way. The anti-social and anti- national elements including
secessionists, communal and pro- caste elements and also other elements who
adversely influence and affect the services essential to the community, pose a
grave challenge to the lawful authority and sometimes even hold the society to
ransom. Therefore, in view of the complexity and nature of the problems, it was
felt that the defence, security, public order and maintenance of essential
supplies or services to the community require to be maintained, with a view to
streamline the administration in a determined way and to provide the teeth to
effectively handle the nagging aforesaid situation and to deal with such
situations, the Act was enacted. Section 3 is pivotal provision under which the
authority has been given to the State to exercise such a power. If the Central
or State Government is satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the defence of India,
the relations of India with foreign powers or the security of India, or if it
is satisfied with respect to any person that with a view to preventing him from
acting in any manner prejudicial to the security of the State or from acting in
any manner prejudical to the maintenance of public order or from acting in any
manner prejudicial to maintenance of supplies and services essential to the
community, it is necessary so to do, it may make an order directing that such
person be detained. In certain circumstance, the liberty of the person gets
restrained subject to the protection given to him under the Act. The grounds of
detention and the material in support thereof, unless the later touches the
sensitive and confidential evidence/material, must be supplied to him, as early
as possible, ordinarily within 5 days from the date of detention so as to
enable him to make a representation to the appropriate Government etc. What is
mandated by Article 22(5) is that the detenu must be supplied with the grounds
of detention and material without undue delay. Power has been given to the
State to delegate such a power to the District Magistrate or the Commissioner
of Police under sub- Section (3) thereof. In this case, the District
Magistrate, Jaisalmer had delegated that power under sub-section (3) of Section
3 of the Act and exercised his subjective satisfaction and passed the detention
order under Section 3(2). After the detention order has been made, it is
mandatory under Section 8(1) of the Act to supply the grounds of detention to
the person affected by the order.
Sub-section
(1) reads as under:
"(1)
when a person is detained in pursuance of a detention order, the authority making
the order shall, as soon as may be, but ordinarily not later than five days and
in exceptional circumstance and for reasons to be recorded in writing, not
later than ten days from the date of detention, communicate to him the grounds
on which the order has been made and shall afford him the earliest opportunity
of making a representation against the order to the appropriate
Government." A reading thereof would, therefore, manifest that when a
person is detained in pursuance of his detention order, the authority making
the order shall as soon as may be, but ordinarily not latter than five days,
and in exceptional circumstances and for reasons to be recorded in writing, not
later than ten days from the date of the detention, communicate to him the
grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order to the appropriate
Government. Section 8(1) circumscribe the range and amplitude of the phase
"earliest opportunity to supply the grounds of detention" and sweep
of the phrase "as soon as possible", i.e., ordinarily within five
days an in exceptional circumstances within 10 days. It would thus be seen that
the detenu is entitled to be supplied with the grounds on which the order of
detention has been made and shall, with a view to afford him an earliest
opportunity of making a representation against the order to the appropriate
Government, the grounds of detention be supplied ordinarily within that
prescribed period. The period during which the grounds of detention are to be
supplied has also been indicated. The grounds shall be communicated, as soon as
may be, i.e., ordinarily not later than five days, In order words, the five
days limit has been prescribed by the statute to supply the grounds of
detention to the detenu. If due to administrative exigencies of exceptional
circumstances, the detaining authority could not communicate the grounds, it
should record reasons for non-supply of the grounds within five days as
envisaged in the first part. As to what are the exceptional circumstances due
to which the grounds of detention could not be supplied within five days but
was done within 10 days from the date of detention is always a question of
fact. In A.K. Roy vs. Union of India & Ors. [(1982) 1 SCC 271 = (1983) 1
SCR 540], the Constitution Bench of this Court was required to consider the
constitutionality of Section 8(1) In that behalf, this Court had held that :
"The
objection of the petitioners against the provisions contained in Section 8(1)
is that it unreasonably allows the detaining authority to furnish the grounds
of detention to the detenu as late as five days and in exceptional cases ten
days after the date of detention. This argument overlocks that the primary
requirement of Section 8(1) is that the authority making he order of detention
shall communicate the grounds of detention to the detenu "as soon as may
be". The normal rule, therefore, is that the grounds of detention must be communitcated
to the detenu without meet the practical exigencies of administrative affairs
that the detaining authority is permitted to communicate the grounds of
detention not later than five days ordinarily, and not later than ten days if
there are exceptional circumstances. If there are any such circumstance, the
detaining authority is required by Section 8(1) to record its reason in
writing. We do not think that this provision is open to any objection." It
would thus be seen that the requirement of the supply of the grounds, as soon
as may be, indicates that normally the detenu is entitled to be communicated
with the grounds of detention within five days, With a view tide over
unavoidable circumstances due to which the detaining authority could not have
the grounds of detention supplied, the statute engrafted a leverage and
directed him to record reasons therefor in writing and the administration
should supply the grounds of detention, before the expiry of ten days. So, the
delay should be exceptional and those exceptional and those exceptional circumstance
are required to be recorded in writing. What are exceptional circumstances is
always a question of fact in each case.
What
is mandatory is the supply of the grounds of detention before expiry of ten
days but after the expiry of five days.
It is
well settled legal position that the phrase "as soon as may be" means
within a reasonable dispatch when there is no avoidable delay. What is
avoidable delay is always a question of fact.
The
question is : whether the non-supply of the exceptional circumstances and the
reasons recorded for non- supply of the grounds of detention before the expiry
of five days but within the outer limit of ten days, long with the grounds of
detention, vitiates the order of detention? The Division Bench has taken the
view that detenu has a valuable right of representation against the order of
detention to the appropriate Government or to the Advisor Board. Unless the
exceptional circumstances and the reasons for non-supply of the grounds of
detention and the documents in support thereof or communicated to the detenu,
by necessary implication, the valuable right of representation at the earliest
opportunity, as envisaged under Article 22 (5), is breached. Thereby, the detenu
becomes entitled to be released from detention. It could be seen that what is
material and mandatory is the communication of the grounds of detention to the detenu
together with documents in support of subjective satisfaction reached by the
detaining authority. When the representation has been made by the detenu to the
appropriate Government or to the Advisory Board, it may be one of the grounds
for him to impugn the order of detention that he was not supplied with the
grounds within the time prescribed and thereby he was unjustifiably detained,
without any reasonable justification. When such a ground has been raised and
pressed for consideration, it would be for the detaining authority to satisfy
the appropriate Government or Advisory Board or in an appropriate case in the
proceedings under Article 226 of the Constitution. The exceptional
circumstances are those due under which the grounds and the documents could not
be supplied to the detenu and that the same were recorded in writing in the
record of the detaining authority. If the appropriate Government or the Advisory
Board or the Court are not satisfied with the recorded exceptional
circumstances due to which the grounds of detention could not be supplied,
after five days but before the expiry of 10 days, that may be one of the
circumstances which the appropriate Government or Advisory Board or the Court
may consider whether the detention order is vitiated or is an infraction of
Article 22(5) of the Constitution. But since the Act does not envisage
communication of the exceptional circumstances and the reasons recorded for
non-supply of the grounds that ground of non-communication or their non-supply
by itself is not sufficient to hold that the order of detention is in violation
of Article 22(5) of the Constitution. The Division Bench, therefore, was not
right in concluding that the detenu has been deprived of his making a
representation at the earliest opportunity for non- supply of the grounds of
exceptional circumstances and the reasons recorded for non-supply of the
grounds of detention.
Thus,
we hold that the view taken in Batti's case is not correct in law. The District
Magistrate in his proceedings dated January 11, 1987 has recorded as under:
"Officer-in-charge
(judicial) has informed that in the cases so far 2/3rd Photostat copies have
been prepared and in the absence of copies have been prepared and in the
absence of copies, it is not possible to furnish the grounds of detention to
the detenu before the expiry of prescribed minimum period of five days. Since
in all 35 cases, about 16,000 photostat copies are to be prepared and the sets
are also to be prepared. But due to frequent Power failure, fluctuation;
machine being the private, its owner cannot be compelled to sit and work for
extra-time difficulty is being faced in completing the work.
Therefore
using the maximum period of 10 days for furnishing the grounds of detention to
the detenu, as provided under Section 8(1) of the National Security Act, 1980,
the State Government was informed of this decision." In view of the
grounds mentioned therein, we are of the view that the District Magistrate was
prevented due to those exceptional circumstances as recorded in the proceeding
that the grounds of detention and the documents in support thereof could no be
supplied to the detenu within five days but the same came to be supplied within
ten days, as envisaged in Section 8(1) of the Act. Therefore, the High Court
was not justified in law to hold that non- communication of the ground of
exceptional circumstances as reasons recorded by the District Magistrate, vitiate
the order of detention. Since the time for detention of one year has expired by
efflux of time, we do not propose to interfere with the order.
The
appeals are accordingly allowed.
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