PETITIONER:
BIRU MAHATO
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, DHANBAD.
DATE OF JUDGMENT15/10/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
MISRA, R.B. (J)
CITATION:
1982 AIR 1539 1983 SCR (1) 584
1982 SCC (3) 322 1982 SCALE (2)899
CITATOR INFO :
R 1982 SC1548 (5)
ACT:
National Security Act, 1980, Section 3(2) Scope of-
Preventive detention of the detenu whose liberty has
otherwise already been prevented by keeping in jail is
impermissible under the N.S. Act-Non-awareness of the
detaining authority about the detenu's detention in jail
would vitiate the order of detention on the ground of non-
application of mind-Affidavit should be that of the
detaining authority who had the subjective satisfaction of
the detention.
HEADNOTE:
Detenu Biru Mahato was arrested on January 13, 1982 on
the allegation that he was involved in two incidents which
occurred, first at 5 p.m. and the second at 5.30 p.m. on
January 12, 1982. In the first occurrence detenu and his
associates were alleged to have committed offences under
sections 341, 323 and 506 of Indian Penal Code, as per the
F.I.R. 25(1)/82 at Bagmara Police Station. In the second
case, F.I.R. 24(1)/82 registered at the same police station,
they were said to have committed offences under sections 307
and 323 I.P.C. After his arrest the detenu was confined in
prison. In respect of the first occurrence bail application
was accepted, but in respect of the second occurrence the
bail application was rejected by the District & Session
Judge, Dhanbad on February 5, 1982, on the ground that in
exercise of powers conferred by sub section (2) read with
sub section (3) of Section 3 of the National Security Act,
1980, the detenu is detained by the order of the District
Magistrate so as to prevent him from acting in any manner
prejudicial to the maintenance of public order and the bail
application has become infructuous. On February 10, 1982,
grounds of detention were served on the detenu in jail where
he was already detained. The grounds of detention referred
to the two incidents occurred on January 12, 1982. The
detenu made a representation on February 15, 1982 which was
rejected by the State Government on February 16, 1982. The
case of the detenu was referred to the Advisory Board and
after receipt of its report the State Government confirmed
the order of detention.
Detenu preferred a petition for a writ of habeas corpus
in the High Court at Patna which was dismissed in limine by
a Division Bench of the High Court. Hence the appeal by
special leave and the writ petition.
Allowing the appeal and the petition, the Court
^
HELD: 1.1 A preventive action postulates that if
preventive step is not taken the person sought to be
prevented may indulge into an activity prejudicial to the
maintenance of public order. In other words, unless the
activity is interdicted by a preventive detention order the
activity which is being indulged
585
into is likely to be repeated, This is the postulate of
section 3 of the National Security Act. And this indubitably
transpires from the language employed in sub section (2)
which says that the detention order can be made with a view
to preventing the person [sought to be detained from acting
in any manner prejudicial to the maintenance of public
order. If, it is shown that the man sought to be prevented
by a preventive order is already effectively prevented, the
power under sub section (2) of Section 3, if exercised,
would imply that one who is already prevented is sought to
be further prevented, which is not the mandate of the
section, and would appear tautologous. [588 C-E]
1.2. The detaining authority before exercising the
power of preventive detention would take into consideration
the past conduct or antecedent history of the person and as
a matter of fact it is largely from the prior events showing
the tendencies or inclinations of a man that an inference
could be drawn whether he is likely even in the future to
act in a manner prejudicial to the maintenance of public
order. If the subjective satisfaction of the detaining
authority leads to this conclusion it can put an end to the
activity by making a preventive detention order. If the man
is already detained a detaining authority cannot be said to
have subjectively satisfied himself that a preventive
detention order need be made. [588 E-H]
Ujagar Singh v. State of Punjab; Jagir Singh v. State
of Punjab, [1952] SCR 756; Rameshwar Shaw v. District
Magistrate, Burdwan and another, [1964] 4 SCR 921; referred
to.
1.3. The subjective satisfaction of the detaining
authority must comprehend the very fact that the person
sought to be detained is in jail or under detention and yet
a preventive detention order is a compelling necessity. If
the subjective satisfaction is reached without awareness of
this very relevant fact, the detention order is likely to be
vitiated. But, it will depend on the facts and circumstances
of each case. [590 B-C]
Vijay Kumar v. State of J & K and others, AIR 1982 SC
1023 applied.
2.1. Conceding that in a given case a preventive
detention order is required to be made even against a person
who is already in jail or under detention and that the
detaining authority shows its awareness of the fact
situation and yet passes the detention order, the detention
order must show on the face of it that the detaining
authority was aware of the situation. Otherwise the
detention order would suffer from vice of non-application of
mind.
[590 H, 591 A-B]
2.2. The awareness must be of the fact that the person
against whom the detention order is being made is already
under detention or in jail in respect of some offence. This
would show that such a person is not a free person to
indulge into a prejudicial activity which is required to be
prevented by a deten-
586
tion order. And this awareness must find its place either in
the detention order or in the affidavit justifying the
detention order when challenged. In the absence of it, it
would appear that the detaining authority was not even aware
of this vital fact and mechanically proceeded to pass the
order which would unmistakably indicate that there was no
application of mind to the relevant facts and any order of
such serious consequence when mechanically passed without
application of mind is liable to be set aside as invalid.
[591 B-D]
2.3. A person may be holder of office of District
Magistrate. But when the subjective satisfaction of holder
of office who actually passed the detention order is put in
issue, the mere occupant of office cannot arrogate to
substitute the subjective satisfaction of the holder of the
post who actually passed the detention order. The subsequent
occupant can speak from the record. But the subsequent
holder of office has made an affidavit as if he was
subsequently satisfied a fact in connection with record.
Here, the affidavit of Mr. Brara the subsequent holder of
office of Distt. Magistrate has to be ignored and one must
reach the conclusion that the averments made by the detenu
have remained un-controverted. [592 B-D]
JUDGMENT:
ORIGINAL JURISDICTION : Writ -Petition (Criminal) No.
1125 of 1982.
(Under article 32 of the Constitution of India)
WITH
Criminal Appeal No. 488 of 1982.
(Appeal by special leave from the judgment and order
dated 7-4-1982 of the Patna High Court (Ranchi Bench) in
Writ Jurisdiction Case No. 40 of 1982 (R).
U.P. Singh for the Petitioner/Appellant.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. By our order dated October 8, 1982, the order
of detention dated February 5, 1982, made by the District
Magistrate, Dhanbad, against detenu Biru Mahato was quashed
and set aside by us further stating that the reasons would
follow. Here are the reasons.
Detenu Biru Mahato was arrested on January 13, 1982, on
the allegation that he was involved in two incidents which
occurred, first
587
at 5 p.m. and the second at 5.30 p.m. on January 12, 1982.
In the first occurrence detenu and his associates appear to
have committed offences under ss. 341, 323 and 506 read with
s. 34 of the Indian Penal Code. F.I.R. led to registration
of the offences at Bagmara Police Station numbered as
25(1)/82. F.I.R. No. 24(1)/82 has been registered at Bagmara
Police Station for offences under ss. 307 and 323, I.P.C.
After his arrest the detenu was confined in prison. In
respect of the first occurrence bail application of the
detenu was accepted but in respect of the second occurrence
the bail application was rejected by the learned District &
Sessions Judge, Dhanbad on February 12, 1982. In the mean
time the District Magistrate, Dhanbad, made an order on
February 5, 1982, in exercise of powers conferred by sub-
section (2) read with sub-section (3) of section 3 of the
National Security Act, 1980 (`Act’ for short), directing
that the detenu be detained so as to prevent him from acting
in any manner prejudicial to the maintenance of public
order. On February 10, 1982, grounds of detention were
served on the detenu in jail where he was already detained.
The grounds of detention referred to the two incidents which
occurred on January, 12, 1982. The detenu made a
representation on February 15, 1982, which was rejected by
the State Government on February 16, 1982. Case of the
detenu was referred to the Advisory Board and after receipt
of its report the State Government confirmed the order of
detention.
Detenu perferred a petition for a writ of habeas corpus
in the High Court at Patna which was dismissed in limine by
a Division Bench of the High Court. Detenu has filed this
writ petition under Article 32 as also appeal by special
leave under Art. 136. Both the appeal and writ petition are
being disposed of by this common judgment.
Two contentions were canvassed on behalf of the detenu
: (1) the date on which the detention order came to be made
the detenu was already deprived of his liberty as he was
arrested and was confined in jail and, therefore, he was
already prevented from pursuing any activity which may prove
prejudicial to the maintenance of public order, hence no
order of detention could be made against him; (ii) the
detaining authority was not even aware that the detenu was
already in jail and the order suffers from the vice of non-
application of mind. In our opinion both the grounds are
weighty
588
and go to the root of the matter and would vitiate the
detention order.
Sub-section (2) of s. 3 of the Act confers power on the
Central Government or the State Government to make an order
of detention with a view to preventing any person from
acting in any manner prejudicial to the security of the
State from acting in any manner prejudicial to the
maintenance of public order, etc. In this case the detaining
authority has made the order on being satisfied that it is
necessary to detain the detenu with a view to preventing him
from acting in any manner prejudicial to the maintenance of
Public order. A preventive action postulates that if
preventive step is not taken the person sought to be
prevented may indulge into an activity prejudicial to the
maintenance of public order. In other words, unless the
activity is interdicted by a preventive detention order the
activity which is being indulged into is likely to be
repeated. This is the postulate of the section. And this
indubitably transpires from the language employed in sub-s.
(2) which says that the detention order can be made with a
view to preventing the person sought to be detained from
acting in any manner prejudicial to the maintenance of
public order. Now, if it is shown that the man sought to be
prevented by a preventive order is already effectively
prevented, the power under sub-s. (2) of s. 3, if exercised,
would imply that one who is already prevented is sought to
be further prevented which is not the mandate of the
section, and would appear tautologous. An order for
preventive detention is made on the subjective satisfaction
of the detaining authority. The detaining authority before
exercising the power of preventive detention would take into
consideration the past conduct or antecedent history of the
person and as a matter of fact it is largely from the prior
events showing the tendencies or inclinations of a man that
an inference could be drawn whether he is likely even in the
future to act in a manner prejudicial to the maintenance of
public order. If the subjective satisfaction of the
detaining authority leads to this conclusion it can put an
end to the activity by making, a preventive detention order.
(see Ujagar Singh v. State of Punjab, and Jagir Singh v.
State of Punjab).(1) Now, if the man is already detained can
a detaining authority be said to have been subjectively
satisfied that a preventive detention order be made ? In
Rameshwar Shaw v. District Magistrate, Burdwan &
589
Anr.(1) this Court held that as an abstract proposition of
law the detention order can be made in respect of a person
who is already detained. But having said this, the Court
proceeded to observe as under:
“As an abstract proposition of law, there may not
be any doubt that s. 3 (1) (a) does not preclude the
authority from passing an order of detention against a
person whilst he is in detention or in jail, but the
relevant facts in connection with the making of the
order may differ and that may make a difference in the
application of the principle that a detention order can
be passed against a person in jail. Take for instance,
a case where a person has been sentenced to rigorous
imprisonment for ten years. It cannot be seriously
suggested that soon after the sentence of imprisonment
is pronounced on the person, the detaining authority
can make an order directing the detention of the said
person after he is released from jail at the end of the
period of the sentence imposed on him. In dealing with
this question, again the consideration of proximity of
time will not be irrelevant. On the other hand, if a
person who is undergoing imprisonment, for a very short
period, say for a month or two or so, and it is known
that he would soon be released from jail, it may be
possible for the authority to consider the antecedent
history of the said person and decide whether the
detention of the said person would be necessary after
he is released from jail and if the authority is bona
fide satisfied that such detention is necessary, he can
make a valid order of detention a few days before the
person is likely to be released. The antecedent history
and the past conduct on which the order of detention
would be based would, in such a case, be proximate in
point of time and would have a rational connection with
the conclusion drawn by the authority that the
detention of the person after his release is necessary.
It may not be easy to discover such rational connection
between the antecedent history of the person who has
been sentenced to ten years rigorous imprisonment and
the view that his detention should be ordered after he
is released after running the whole of his sentence.
Therefore, we are satisfied that the question as
590
to whether an order of detention can be passed against
a person who is in detention or in jail, will always
have to be determined in the circumstances of each
case”.
One can envisage a hypothetical case where a preventive
order may have to be made against a person already confined
to jail or detained. But in such a situation as held by this
Court it must be present to the mind of the detaining
authority that keeping in view the fact that the person is
already detained a preventive detention order is still
necessary. The subjective satisfaction of the detaining
authority must comprehend the very fact that the person
sought to be detained is already in jail or under detention
and yet a preventive detention order is a, compelling
necessity. If the subjective satisfaction is reached without
the awareness of this very relevant fact the detention order
is likely to be vitiated. But as stated by this Court it
will depend on the facts and circumstances of each case.
The view herein finds further support from the decision
of this Court in Vijay Kumar v. State of J & K and Ors.,(1)
wherein this Court recently held as under :
“Preventive detention is resorted to, to thwart
future action. If the detenu is already in jail charged
with a serious offence, he is thereby prevented from
acting in a manner prejudicial to the security of the
State. Maybe, in a given case there yet may be the need
to order preventive detention of a person already in
jail. But in such a situation the detaining authority
must disclose awareness of the fact that the person
against whom an order of preventive detention is being
made is to the knowledge of the authority already in
jail and yet for compelling reasons a preventive
detention order needs to be made. There is nothing to
indicate the awareness of the detaining authority that
detenu was already in jail and yet the impugned order
is required to be made. This, in our opinion, clearly
exhibits non-application of mind and would result in
invalidation of the order.”
This leads us to the second limb of the submission.
Conceding that in a given case a preventive detention order
is required
591
to be made even against a person who is already in jail or
under detention and that the detaining authority shows its
awareness of the fact situation and yet passes the detention
order, the detention order must show on the face of it that
the detaining authority was aware of the situation.
Otherwise the detention order would suffer from vice of non-
application of the mind. The awareness must be of the fact
that the person against whom the detention order is being
made is already under detention or in jail in respect of
some offence. This would show that such a person is not a
free person to indulge into a prejudicial activity which is
required to be prevented by a detention order. And this
awareness must find its place either in the detention order
or in the affidavit justifying the detention order when
challenged. In the absence of it, it would appear that the
detaining authority was not even aware of this vital fact
and mechanically proceeded to pass the order which would
unmistakably indicate that there was non-application of mind
to the relevant facts and any order of such serious
consequence when mechanically passed without application of
mind is liable to be set aside as invalid.
Turning to the facts of this case the detention order
refers to Biru Mahato son of Mohan Mahato of Village
Jamdiha, P.S. Bagmara, Distt. Dhanbad. There is not even a
whimper of the detenu being in jail for nearly three weeks
prior to the date on which the detention order was made.
The detenu is referred to as one who is staying at a
certain place and is a free person. Assuming that this
inference from the mere description of the detenu in the
detention order is impermissible the affidavit is
conspicuously silent on this point. Not a word is said that
the detaining authority was aware of the fact that the
detenu was already in jail and yet it became a compelling
necessity to pass the detention order. Therefore, the
subjective satisfaction arrived at clearly discloses a non-
application of mind to the relevant facts and the order is
vitiated.
Mr. U.P. Singh, learned counsel for the detenu urged
that this Court should not take into consideration the
affidavit filed by Dr. J.S. Brara on behalf of the
respondent. Dr. J. S. Barara, describing himself as District
Magistrate, Dhanbad, has made the affidavit as if he was the
detaining authority. When this statement was challenged on
behalf of the detenu, Mr. Goburdhan, learned
592
counsel for the respondent went to the extreme length of
asserting that Mr. Brara was the detaining authority. At
that stage Mr. U. P. Singh, learned counsel for the detenu
produced the original order of detention signed by one Shri
D. Nand Kumar as District Magistrate. This was shown to Mr.
Goburdhan and he was unable to sustain his submission that
Mr. Brara who has filed the affidavit was the detaining
authority. In fact, at one stage we were inclined to take a
very serious view of the conduct of Mr. Brara in making the
affidavit as if he is the detaining authority. In para 1 he
has described himself as District Magistrate being the
detaining authority of the petitioner which statement is not
borne out by the record. He may be the holder of office of
District Magistrate. But when the subjective satisfaction of
holder of office is put in issue the mere occupant of office
cannot arrogate to substitute his subjective satisfaction.
He may speak from the record but that is not the case here.
Therefore, the affidavit of Mr. Brara has to be ignored and
one must reach the conclusion that the averment made by the
detenu have remained uncontroverted.
For these reasons we have quashed and set aside the
order of detention.
S.R. Appeal and Petition allowed.
593