PETITIONER:
ABDUL RAZAK ABDUL WAHAB SHEIKH
Vs.
RESPONDENT:
S.N. SINHA, COMMISSIONER OF POLICE, AHMEDABADAND ANOTHER
DATE OF JUDGMENT03/03/1989
BENCH:
RAY, B.C. (J)
BENCH:
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.
HEADNOTE:
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.
JUDGMENT:
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.
908