JUDGMENT
R.A. Jahagirdar, J.
1. This petition under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus has been filed by the petitioner and he challenges the order dated 24th of May, 1989 passed by the Commissioner of Police, Greater Bombay, under section 3 of the National Security Act. As the order mentions, the petitioner has been detained with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order. Along with the order of detention, the grounds of detention on which the order of detention is based have also been furnished to the petitioner. The petitioner, however, has made a grievance that some of the documents on which the detaining authority necessarily relied before arriving at the subjective satisfaction leading to the passing of the order of detention have not been furnished to him. This is the first line of attack adopted by Mr. Gupte, the learned advocate appearing in support of the petition, though several other grounds have been mentioned in the memo of the petition by way of challenge to the order of detention. In our view, this first point is well founded and, therefore, we are refraining from discussing the other grounds of challenge.
2. In order to appreciate the contention of Mr. Gupte in this regard, it is necessary to briefly refer to the document in which the grounds of detention have been formulated by the Detaining Authority. The document opens by saying that the Detaining Authority informs the petitioner as mentioned thereafter. In the first paragraph, an incident which took place on 8th of June, 1986. In which the petitioner along with his associates assaulted a hotel owner with a knife in Parel area has been mentioned. It has also been stated that a case under section 324, read with section 114, of the Indian Penal Code has been registered against the petitioner and his associates.
3. Thereafter in the second paragraph, another incident which took place on 4th of April, 1987 in which the petitioner along with his associates assaulted one Sharad Narayan Bandre in Dadar area has been mentioned. The said Bandre subsequently expired, as a result of which a case under section 302, read with section 114, of the Indian Penal Code was registered. The third paragraph describes an incident which took place on 23rd of October, 1987 in which the petitioner and his associates assaulted a taxi driver and an appropriate case has been registered.
4. The fourth paragraph, the opening part, of this document describes in great details an incident that took place on 1st of October, 1988 when the petitioner along with his associates hi jacked a taxi and assaulted the taxi driver and a case under section 397 read with other sections of the Indian Penal Code has been registered.
5. One more incident which took place on 26th of October, 1988 has been described in the subsequent paragraph and in this incident the petitioner and his associates assaulted one Aslam Hamid Siddiqui. After mentioning all these incidents, the details of which have been given and after mentioning the precise role played by the petitioner along with his associates, the Detaining Authority has stated in the subsequent paragraph as follows :—
“Thus I am satisfied that you were habitually committing offences involving breach of public order and you are so desperate and dangerous being a security hazard to the community; Chapter proceedings under section 110 of the Code of Criminal Procedure were initiated against you on 28-7-1988. In the wake of a recent High Court judgment, the said proceedings is now stayed for the time being.”
6. After mentioning the various facts, which we have summarised above, the Detaining Authority then proceeds to say that in pursuance of section 8 of the National Security Act, he communicates to the petitioner the grounds on which the detention order has been passed by him. Thereafter in five lengthy paragraphs, the detaining Authority has enumerated and described the various incidents which took place on different dates and in which the petitioner was a participant. We are not referring to the contents of these paragraphs, because if we accept, as we are inclined to accept, Mr. Gupte’s contention that the incidents which have been described in the first part of this document have weighed with the Detaining Authority, then it was incumbent upon the Detaining Authority to furnish copies of the documents from which the Detaining Authority gathered material.
7. It is true that the Detaining Authority has not stated that he has relied upon the five incidents which have been described by him in the earlier part of this document. Specifically he states that he has passed the order of detention on the grounds mentioned in the second part of this document. Those grounds are five in number. But in our opinion, this by itself cannot preclude the Court from inquiring into the question as to whether the Detaining Authority has relied upon the material which has been mentioned in the first part of the document. It is the contention of Mr. Gupte that the manner in which the details of each of the five incidents have been narrated shows that this material must have necessarily influenced the mind of the Detaining Authority before he proposed to pass the order of detention. This is especially so because he had mentioned that he was satisfied that the petitioner was “habitually committing offences involving breach of public order”.
8. In our opinion, this contention of Mr. Gupte is well founded. When the Detaining Authority mentions in such great details the various incidents in which the petitioner has indulged in the alleged prejudicial activities, he must have necessarily relied upon certain material or documents which were placed before him. If it is so, then naturally in law he is duty bound to furnish to the detenu copies of those documents which disclosed to the Detaining Authority the alleged prejudicial activities of the petitioner.
9. Mrs. Desai, the learned Public Prosecutor, however, has sought to support the order of detention by contending that what has been mentioned in the earlier part of the document before the Detaining Authority actually formulated the grounds of detention is by way of background information or by way of a preamble and mentioning certain information by way of background or by way of preamble is not impermissible in law. According to Mrs. Desai, the information that has been mentioned in the earlier part of the document was considered by the Detaining Authority for the purpose of pointing out that those activities of the petitioner led to the initiation of proceedings under section 110 of the Code of Criminal Procedure and it has also been mentioned that those proceedings were stayed in the light of the judgment of this Court. It is only for the purpose of showing that certain other proceedings had been taken against the petitioner in the light of certain incidents that the details of those incidents have been given in the earlier part of this document.
10. The question as to whether the incidents which have been mentioned in the earlier part of the document in such great details were considered merely by way of background information or were narrated by way of preamble has to be decided on the facts and circumstances of this case. Mrs. Desai relied upon the judgment of the Supreme Court in Dhananjoy Das v. District Magistrate, , in support of her contention that the enumeration of certain material by way of preamble before formulating the grounds of detention is permissible. Before we consider the judgment in Dhananjoy Das’s case, we think it appropriate to refer to certion earlier judgments of the Supreme Court which will help us in understanding the correct position in law on the question which has arisen in this case.
11. In Panna Jadhav v. State of West Bengal, , the detenu had been detained on the basis of the incidents, the facts of which were communicated of the detenu. One incident had taken place on 19th of July, 1973 and the other had taken place on 25th July, 1973. In response to the rule nisi issued by the Court, the District Magistrate who had passed the impugned order of detention had stated in his affidavit that the grounds furnished to the detenu were the only grounds on which he had based his satisfaction for making the order of detention, but he had also admitted that other materials were placed before him. The other materials included the history sheet of the detenu. The Supreme Court noticed that the history sheet which was scrutinised by the Detaining Authority disclosed two other criminal incidents similar to those mentioned in the grounds of detention. The facts pertaining to those two incidents were admittedly not communicated to the detenu. The Supreme Court proceeded to say as follows :—
“It is difficult to believe the ipse dixit of the Detaining Authority that the only grounds on which he based his subjective satisfaction were those which were communicated to the detenu. From these two incidents within a span of ten days, it was not reasonably possible to spoil out a course of conduct and tendency on the part of the detenu to inhibit which the preventive action has been ostensibly taken.”
12. The judgment in panna jadhav’s case in an authority for the proposition that if certain incriminating material relating to the proposed detenu is placed before the Detaining Authority and that material is not disclosed to the detenu while furnishing the grounds of detention, the order of detention would be rendered invalid. A mere statement by the Detaining Authority that he did not take that material into consideration cannot be accepted by the Court. The judgment in Panna Jadhav’s case was delivered by Sarkaria, J., and Krishna Iyer, J., and Goswami, J., were both parties to the same.
13. The same Bench has examined a similar question again in Bablu Das v. State of West Bengal, . The detenu in that case was detained on the basis of a single ground that on 11th of October, 1972, he had indulged in attacking a wagon of a goods train. The Supreme Court was doubtful as to whether a single incident could have persuaded the authority into the satisfaction about the future prejudicial activity of disrupting supplies and services essential to the life of the community. The Counsel for the State fairly agreed to produce the file relevant to the point and that file disclosed that there were several other injurious circumstances of the immediate past. In fact the Detaining Authority in the counter-affidavit stated that “the petitioner is a notorious wagon-breaker and railway criminal and was indulging in committing thefts from goods train”. The Supreme Court held that a ‘notorious’ wagon breaker implies a course of conduct and not a single instance. The ground of detention furnished to the detenu gave only one instance of wagon-breaking. The Detaining Authority had been obviously impressed by the fact that the detenu had indulged in more than one case of wagon-breaking. If this is so, then that fact was not disclosed to the detenu. On that ground, the order of detention was held to be invalid.
14. It is true that in neither of there two cases to which we have made reference, the question as to whether there could be a preamble to the grounds of detention did not directly arise. We have, however, taken the liberty of referring to these two judgments because they are helpful in understanding as to what could legitimately be included in a preamble. If there is material on which the Detaining Authority relies before passing the order of detention, then that material must necessarily be furnished to the detenu. As we understand, the judgments to which reference has already been made and the other judgments which we are now proceeding to consider, even if in a preamble certain instances, incidents or materials are mentioned which have relevance to the passing of an order of detection, then those materials must necessarily be furnished to the detenu and the Detaining Authority cannot take shelter behind the so-called permissibility of having a preamble to the grounds of detention.
15. In Mohd. Yousuf Rather v. State of Jammu and Kashmir, the question as to what could be a preamble directly arose and the same has been considered in great length. The detenu in that case had been detained by an order passed by the District Magistrate of Anantnag on 12th of April, 1979. It had been mentioned that the detenu was a die hard Naxalite and he was notorious for his activities which were proving prejudicial to the maintenance of public order. It had also been stated that he was in the habit of organising meetings in which he instigated the people to create lawlessness which spread panic in the minds of common people. Proceeding further it was stated as follows :—
“You are reported to have recently started a campaign in villages, asking the inhabitants not to sell their extra paddy crop to the Government and in case they are compelled to do so, they should manhandle the Government officials deputed for the purpose of purchasing shali on voluntary basis from the villagers.”
16. Thereafter specific instances of the prejudicial activities of the detenu were mentioned. None of these specific instances had a direct nexus with the general description of the activities of the detenu given in the first part of the grounds of detention. The documents relating to the material mentioned in the first part of the grounds of detention had not been furnished to the detenu. It was urged on behalf of the State that the first part of the grounds of detention was by way of a preamble and it was not necessary to furnish the material on which the recitals in the preamble were based.
17. The Supreme Court referred to the Oxford English Dictionary in which “preamble ” has been defined to mean a preliminary statement, in speech or writing; an introductory paragraph, section or clause; a preface prologue, introduction. The preamble means an introductory paragraph which introduces the material which follows later. The preamble thus betokens that which follows. It must, therefore, mean that it has got a direct nexus with the material of which it is a preamble.
18. In the light of this meaning of the word “preamble” the Supreme Court found that the first paragraph was vague in several respects and the activities mentioned therein were not relatable to the activities which had been described in greater details in the subsequent paragraphs which properly constituted the grounds of detention. In other words, the first paragraph was not held to be a preamble at all but it was taken to be a substantive ground of detention. Since that ground was vague and in any case the material on the basis of which that ground was formulated had not been furnished to the detenu, the order of detention was held to be invalid. This is the view of Shinghai, J., speaking for himself and on behalf of Sarkaria, J.
19. Chinnadpa Reddy, J. concurred with the said view, though in a separate judgment. Chinnappa Reddy, J., refused to accept that the factual allegations, such as those contained in paragraphs 1 to 5 of the grounds of detention, could be said to be merely introductory or as constituting the background. All allegations of fact which had led to the passing of the order of detention must be held to be grounds of detention. The learned Judge also did not accept the argument that the most proximate ground should be taken as the relevant ground for the order of detention. “The last straw which breaks a camel’s back does not make weightless the other loads on the camel’s back”.
20. From this judgement, it can be safely deduced that a preamble, if it is so properly called, must be only by way of an introduction to the material which follows in order that the reader may understand the subsequent paragraphs clearly. If what has been mentioned in the so-called preamble contains material independent of what is mentioned in the subsequent paragraphs, then it cannot be called preamble as correctly understood. This has been, with great respect, more lucidly explained in the later judgment of the Supreme Court in Dhananjoy Das v. District Magistrate, . The document containing the grounds of detention in that case described in the first paragraph that the detenu was aged about 50 years and was the President of a local Parishad. His profession had also been described and it had been stated that he had been playing a leading part in the agitation on foreigners issue in collaboration with other active agitators who were leaders of certain organisations mentioned therein. Thereafter, in the subsequent paragraphs, which were three in number, the activities of the detenue were mentioned in details. The question before the Supreme Court was whether the first paragraph wherein the description of the detenue and his activities had been given could be regarded as the ground of detention or whether it was merely by way of a preamble.
21. Referring to some earlier judgments of the Supreme Court, including Mohd. Yousuf Rether’s case, to which we have made reference earlier, the Supreme Court said that it was difficult to accept the contention that there could be no introductory paragraph in the grounds of detention. The Supreme Court, however, said that whether a particular paragraph in the grounds amounts only to a preamble or an introduction is to be determined on the facts and circumstances of each case and it is open to the Court to come to its own conclusion whether that paragraph is only an introductory paragraph or contains the grounds on the basis of which the Detaining Authority had the subjective satisfaction for passing the order of detention.
22. As in Mohd. Yousuf Rather’s case, the Supreme Court in Dhananjoy Das’s case also referred to the Oxford English Dictionary and found that ‘preamble’ meant a preliminary statement in speech or writing, an introductory paragraph. It was repeated that the preamble betokens that which follows. Examining what was contained in the document containing the grounds of detention, which was served upon the detenu, the Supreme Court found that the first paragraph only contemplated that the various organizations have been taking part in the current agitation against the foreigners issue in the various modes enumerated therein. More specifically in paragraph 13 of the judgment, the Supreme Court observed as follows :—
“The grounds of detention read as a whole leave no room for doubt that paragraph 1 of the grounds of detention was only by way of introduction or as a preamble. In substance, it only indicates the modus operandi adopted by the various organisations to the current agitation on foreigners issue in Assam. The 2nd and 3rd paragraphs of the grounds of detention allege a specific part played by the appellant in that agitation. On a perusal of grounds of detention as a whole we are satisfied that the view taken by the High Court that the 1st paragraph of the grounds of detention was only a preamble, prelude, or introductory para is correct. If this be the position then the vagueness in the 1st paragraph cannot be made a ground of attack on the impugned order.”
23. Reading all these judgments, we are of the opinion that there could be a preamble before the grounds of detention, but that preamble must mean necessarily something which tells the reader the nature of the material that is to follow in the subsequent paragraphs. To use the language of the Supreme Court, the preamble thus betokens that which follows. If a paragraph contains specific material which is independent of the material in the subsequent paragraphs, then the first paragraph cannot be said to be a preamble. The preamble can contain a general description of the person, character, occupation and habitation of the proposed detenu and even a description of the general activity, illustrations of which, however, must necessarily be found in the subsequent paragraphs. It is only when a paragraph contains such material that it can be called legitimately a preamble.
24. Mrs. Desai, however, states that this is not exhaustive of the manner in which the grounds of detention can be formulated. She contends, that even specific instances can be legitimately mentioned in the earlier part of the document which contains the grounds of detention and these instances can be by way of a background information in this connection, she relied upon Ramakrishna v. Dist. Magistrate, Jabalpur, . The document in which the grounds of detention had been formulated in that case contained the history of the previous order of detention which had been subsequently set side. The Detaining Authority had enumerated several incidents in which the detenu had engaged and which had led to the passing of the order of detention earlier, that is on 4th of June, 1973. That order was revoked by the State Government in September 1973 and the impugned order was passed on 28th of January, 1974. It was contended before the Supreme Court that no material which showed that the detenue had indulged in several activities prior to 4th of June, 1973 had been furnished to the detenu and since those incidents were mentioned in the document containing the grounds of detention, they must be regarded as the grounds of detention. On this ground, the validity of the order of detention was challenged. The argument was characterised as attractive, but was not found to be based on sound principles. The Supreme Court found that those paragraphs contained only a narration of the antecedents or the past history of the detenu. In particular, it was noticed that in the grounds of detention which weighed with the Detaining Authority, no specific reference at all had been made to any incident which happened prior to 4th of June, 1973. The past events which had been recited in the earlier paragraph before the actual grounds of detention were held to constitute one chain culminating in the previous detention of the petitioner. The Supreme Court, therefore, said that those paragraphs constituted only the background and not the grounds of detention on which the impugned order was passed. It was only the subsequent paragraphs that truly related to the grounds on which the Detaining Authority based its satisfaction.
25. In our opinion, the reliance placed by Mrs. Desai on this judgment is not justified. As a fact, the Supreme Court found that the earlier incidents had been mentioned by way of background information. It was not demonstrated before the Supreme Court that those incidents which had culminated in the earlier order of detention had been taken into account by the Detaining Authority. If he had taken into account those incidents which had culminated in the earlier order of detention which had been subsequently revoked, the entire order of detention would have been struck down because when an order of detention is revoked, a fresh order of detention on the same grounds cannot be passed. See Chhagan Bhagwan Kahar v. N.L. Kalna, .
26. Returning to the facts of the case before us, it is clear that the earlier paragraphs in which the activities of the petitioner have been graphically described cannot be described as a preamble because each one of these activities is an independent activity. None of these paragraphs purports to or pretends to explain or introduce what has been mentioned in the subsequent paragraphs which, the Detaining Authority says contain the grounds of detention. Every one of the incidents in the earlier paragraphs discloses some offence committed by the petitioner, and his associates. The Detaining Authority has also mentioned that he was satisfied that the petitioner was habitually committing offence involving breach of public order. It is not possible to accept the contention of the Detaining Authority that the order of detention had been made by him only on the basis of the incidents described in the subsequent paragraphs. It is not possible to accept the ipse dixit of the Detaining Authority in this case that he had relied only on the materials described in some paragraphs and not on the materials described in the other paragraphs. The richness of the materials contained in the earlier paragraphs is suggestive of the fact that several documents containing the detailed information were necessarily placed before him and it is from these documents that he gathered the materials mentioned in the earlier paragraphs of the grounds of detention. Admittedly, copies of the documents on the basis of which these incidents have been described have not been supplied to the petitioner. Therefore, it must be held that the grounds of detention have not been communicated to the petitioner in the manner required by law. On this ground, the impugned order of detention is liable to be set aside.
27. In the result, this petition succeeds Rule is made absolute in terms of prayer Clauses (a) and (b) of the petition.