JUDGMENT
Vinod Shankar Dave, J.
1. The petitioner has filed this habeas corpus petition challenging the detention of his son Gajraj Singh under the National Security Act. Gajraj Singh was detained on 22-5-1986 under the orders of the District Magistrate, Kota issued under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as “the Act”). His detention was confirmed by the Government vide Annexure-II on June 2, 1986 and the grounds of detention were supplied by the District Magistrate, Kota on June 4, 1986. He filed representation to the Government which was rejected by the Government on July 8, 1986 and his detention was also confirmed by the Advisory Board which was communicated to him by the Home Secretary vide letter dated July 19, 1986. It is thereafter that this habeas corpus petition was filed by the father of the detenu praying that Annexures-I to IV be quashed and the detenu be released forthwith. Notice of this petition was given to the State and reply was filed on its behalf wherein the detention was sought to be justified.
2. The main ground for challenging the detention is that reasons assigned for detention are too remote to justify the detention as they are not proximate to the order of detention. It is submitted that sole ground of detention is institution of several criminal cases in previous years and virtually gives out a list of cases which have been instituted against the detenu. According to the list the detaining authority has considered the cases w e.f year 1975 till 1986 and had also taken into consideration the proceedings under Chapter VIII of Cr. PC i.e. regarding security for keeping peace. It is submitted that in most of Criminal cases mentioned therein either the detenu had been acquitted or the final reports given. Some of the cases had been pending trial for long but in recent years, i.e., from 1983 to 1986 there had not been such serious reports against the detenu which could have warranted his detention under the Act. It is submitted that on the other hand there is considerable improvement in the conduct of the detenu and he has been showing marked improvement. It is submitted that there is no case instituted against him in the year 1983. In the year 1984 there has been one case under the Rajasthan Excise Act and the other under Section 4/25 of the Arms Act. In 1985 there was only one case under the Rajasthan Excise Act. In this case also charge sheet has not been submitted. In 1986 there had been a report for a non-cognizable offence and till date there is no case instituted against the detenu in respect of this report. Besides proceedings under the Gunda Act there had been 11 proceedings under Section 107 Cr. PC from year 1978 till 1983, but all of them have been dropped. It is, therefore, submitted that the petitioner should be ordered to be released forthwith. Reliance has been placed on a decision of the Supreme Court in Kamalakar Prasad Chatarvedi v. State of Madhya Pradesh and Anant Sakharam Raut v. State of Maharashtra and Anr. AIR 1987 SC 137.
3. The learned Public Prosecutor supported the order of detention and submitted that there are serious allegations against the detenu and he has been repeatedly committing crimes as is evident from the grounds of detention supplied. It is submitted that he is involved in two criminal cases under Section 54 of the Excise Act and one under the Arms Act during the year 1985-86 and these circumstances persuaded the detaining authority to issue the order of detention. It is submitted that even the Advisory Board has confirmed the detention of the detenu. Reliance has been placed on Shri Shiv Ratan Makim v. Union of India and Ors. : and Surajpal Sahu v. State of Maharashtra and Ors. : .
4. Before we discuss the merits of the case we would be failing if we do not mention that though, this Habeas corpus petition was filed in September, 1986, the State only entered into appearance in November, 1986. The court wanted to know about the progress in the cases mentioned in grounds of detention but after a long interval an incomplete list was furnished. This list if looked into along with the ground of detention, we find that there are 23 cases considered and their position as reported to this court is as under:
(1) Case No. 308/75 under Section 379 IPC of police station, Gumanpura, No information for want of knowledge about the progress of the case;
(2) Case No. 2/76 under Section 392 IPC of police station, Bhimganj Mandi, acquitted;
(3) Case No. 88/76 under Section 457/380 IPC, fixed for evidence:
(4) Case No. 166/76 under Section 392 IPC, fixed for evidence:
(5) Case No. 184/76 under Section 3/25 of the Arms Act, fixed for evidence;
(6) Case No. 107/77 under Section 363 and 366 IPC of police station Gumanpura, acquitted;
(7) Case No. 52/78 under Section 452/427 IPC of police station, Gumanpura, acquitted;
(8) Case No. 114/78 under Section 365/361 IPC of police station, Gumanpura, final report given;
(9) Case No. 226/78 under Section 307 and 323/34 IPC, fixed for evidence;
(10) Case No. 146/79 under Section 380 IPC, police station Udyognagar, for summoning the accused;
(11) Case No. 149/79 under Section 307 IPC police station, Nayapura, acquitted;
(12) Case No. 162/79 under Section 3/25 of the Arms Act, no information furnished;
(13) Case No. 243/79 under Section 392/34 [PC, for summoning accused;
(14) Case No. 78/80 under Section 307/336/34 IPC, police station, Gumanpura, for evidence;
(15) Case No. 387/80 under Section 4/25 of the Arms Act, fixed for evidence;
(16) Case No. 106/81 under Section 4/25 of the Rajasthan Prohibition Act for summoning the accused;
(17) Case No. 461/81 under Section 3/25 of the Arms Act, police station Gumanpura no information;
(18) Case No. 57/82 under Section 394/34 IPC of P.S. Kanvas, no information;
(19) Case No. 123/82 under Section 376/342 IPC for summoning accused;
(20) Case No. 55/84 under Section 54 of the Excise Act, police station, Vigyan-nagar for evidence;
(21) Case No. 56/84 under Section 4/25, Arms Act of police station, Vigyan-nagar, for evidence;
(22) Case No. 368/85 under Section 54 of the Excise Act, no information; and
(23) Case No. 1839/33/86 of police station, Gumanpura, no information.
5. Thus, out of 23 cases mentioned aforesaid, information could not be furnished in 6 cases. Accused have been acquitted or final report given in 5 cases and 4 cases are pending for summoning the accused and 8 cases are pending in court for want of evidence. This breakup discloses as to how the State machinery is proceeding in dealing with the cases. For last 3 months information could not be furnished in about 6 cases mentioned above and in 4 cases the accused is required to be summoned. It is regrettable that an accused who had either been attending the other cases or was detained under the National Security Act yet remains to be summoned even in cases relating to years 1979 and 1980. This speaks volumes of inefficiency on the part of the prosecuting agency of the District concerned.
6. Coming to the merits of this application it is clear from the grounds that basis is the past conduct of the detenu which shows that he is indulged in series of criminal cases. We have already given the breakup above as what is the position of these cases. It is clear from the same that accused had a tendency of committing criminal act and for that he had faced so many cases but recent trend is otherwise. He has shown better conduct since last 3 years. So far as other cases are concerned, it is surprising to note that evidence has not been completed even in cases which are pending since 1976. In reply filed by the State there is no allegation that the accused has in any way, hampered the progress of the cases. It is also not in the reply that any effort has been made to tamper with the evidence in any of the cases or the witnesses have been prevented from appearing in the court and even if it is so, then it is open to the Public Prosecutor to apply for the cancellation of the bail in the cases where the witnesses are being tried to be over-awed or terrorised. Therefore, if any effort is made by the detenue to tamper with the evidence it is always open to the prosecution to move for cancellation of the bail and the conduct of the accused should be brought to the notice of the appropriate court which, we are sure, would consider the circumstances as also has been held in Anant Sakharam Raut v. State of Maharashtra and Anr. (supra) where their Lordships held that if the petitioner is found disturbing the law and order or misusing the bail granted to him the authorities would be at liberty to move the appropriate court to get the bail order cancelled.
7. Pendency of old criminal cases alone cannot be considered as ground for detaining the accused under the National Security Act coupled with the reason when the State has failed to furnish proper information required by this Court. In Kamlakar Prasad Chaturvedi v. The State of M.P. and Another (supra) their Lordships have held as under:
It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under Section 3(2) of the Act. Now there is no provision in the National Security Act, similar to Section 5A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, which says that where a person has been detained in pursuance of an order of detention under Sub-section (I) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such order shall not be deemed to be invalid or inoperative merely, because one or some of the grounds is or are vague, non-existent, non-relevant, not connected or not proximately connected with such persons or invalid for any other reason, and it is not therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Sub-section (1)of Section 3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds Therefore, in the present case it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under Section 3(2) if he had not taken into account the stale and not proximate grounds into consideration in arriving at the subjective satisfaction.
The order of detention in the instant case under Section 3(2) was held unsustainable as some of the grounds for detention were found too remote and not proximate to the order of detention viz. they related to incidents which were more than 5 and 6 years prior to the date of order of detention.
8. The present case is squarely covered by the aforesaid case. In the instant case also the detaining authority has considered the cases pending from 1975 to 1982 which are too remote to lay the foundation for detaining the detenue. Recently there is a marked decline in the activity of the detenue particularly which can be said to be prejudicial to the interest of the State or dangerous to national security. In fact as mentioned above we have found more slackness on the part of the State to deal with the cases either under the Indian Penal Code or under the Excise Act or the Arms Act against the detenue in regular court. It behaves the authorities to move the appropriate court to expedite the trial against the accused and if need be old cases should be requested to be taken up day-to-day. We are convinced that the Detaining Authority has taken into account the stale and not proximate grounds into consideration in arriving at the subjective satisfaction. It would have been better had the District Magistrate simultaneously moved the appropriate authorities for pulling up those who are responsible for keeping the criminal cases pending. He should direct the Public Prosecutor to move for taking up the cases day to day and instruct the Investigating Officer to keep witness in attendance.
9. The learned Public Prosecutor has relied on Shri Shiv Ratan Makim v. Union of India and Ors. (supra). The law laid down in this case has no application in the facts of the present case. The case before their Lordships of the Supreme Court was under the COFEPOSA and the detenue was found in possession of the foreign mark gold and had also been found indulged in other smuggling activities. Similarly in Suraj Pal Sahu v. State of Maharashtra and Ors. (supra) the detenue was found indulged in subversive activities in as much as he had been removing the Railway properties. This case also is not applicable in the facts of the present.
10. For the reasons mentioned above, we accept this habeas corpus petition and direct that the detenue shall be released forthwith. There will be no order as to costs.