JUDGMENT
A.P. Ravani, J.
1. In both these petitions the petitioner is Lok Adhikar Sangh – a civil liberty organisation – which, as stated in the petitions is committed to the protection of civil liberties and democratic rights of the poor and deprived sections of the people in the State of Gujarat. In Special Criminal Application No. 217 of 1992 the petitioner has challenged the legality and validity of order of detention dated January 9, 1992 against Shri Shyambhai Urfe Irfanbhai Asgarali Engineer (Vohra)(detenu); while in Special Criminal Application No. 228 of 1992 the petitioner has challenged the legality and validity of order of detention dated January, 9, 1992 passed against Shri Virsinghbhai Vishrambhai Patel. Since both these petitions involve common question of law and facts, born of them are being heard together and are being decided together by this common judgment and order.
2. Both the detenus have been preventively detained by order dated January 9, 1992 passed by the District Magistrate, Dangs, Ahwa. The orders of detention have been passed under the provisions of Sub-section (2) of Section 3 of the National Security Act. 1980. The detenus have been detained pursuant to the order of detention on the same day. The detenu in Special Criminal Application No. 217 of 1992 has been committed to Central Prison, Vadodara, while detenu in Special Criminal Application No. 228 of 1992, namely, Shri Virsinghbhai Vishrambhai Patel has been ordered to be committed to Central Prison, Bhuj. The grounds of detention in respect of both the detenus are dated January 13, 1992. Detenu Shri Shyambhai Urfe Irfanbhai Asgarali has been served with the grounds of detention of January 13, 1992, while detenu Shri Virsinghbhai Vishrambhai Patel has been served with the grounds of detention on January 14, 1992. The grounds of detention in both the cases are almost identical.
3. It is stated in the grounds of detention that the area of activities of the detenu were following villages and the forest area round about these villages:
1. Koshimada
2. Dardi
3. Savarkhadi
4. Godadiya
5. Patali
6. Dabdar
7. Chikar (Talav Faliya)
8. Ghoghalpada
9. Dhudhuniya
10. Ghodi
11. Dhadhra
It is alleged in the grounds of detention that the tribals residing in the aforesaid villages were being incited by the detenu against the officers of the Forest Department and Police Department; that the tribals were being told that if the officers of the Forest Department and Police Department obstructed them from cultivating forest land they should violently assault the officers, beat them and see that the officers run away. It is further alleged that for achieving the aforesaid object the detenu had formed ‘Bhoomiheen Kisan Hakk Samraksha Samiti (Committee for the protection of rights of landless farmers). It is also alleged that the detenu was persuading the tribals to become members of the said committee. The tribals were being told that whosoever becomes member of the committee would get five acres of forest land for cultivation. The tribals were told that this object would be achieved by the detenus. It is further alleged that as per the provisions of Article 51A(g) of the Constitution of India it is a fundamental duty of citizens to protect and improve the natural environment including forests. However, the detenu was acting contrary to the aforesaid constitutional provision as regards fundamental duty; that the detenu threatened the officers and employees, intimidated them and even beat them.
4. Thus as per the allegations the detenu had created an atmosphere so as to adversely affect the maintenance of public order in the area of Dangs District. It is also alleged that the forests of Dangs were declared as protected forests under the provisions of the Indian Forests (Conservation) Act, 1980, that if any land is to be exempted from the provisions of the said Act, necessary permission of the Central Government was required to be taken. Despite this provision, the detenu was acting contrary to the provisions of the Indian Forests (Conservation) Act, 1980 and the tribals were being misled; that the tribals were being induced to become members of the committee by giving false hopes; that by collecting fees from tribals they were bring falsely incited on the promise that land will be secured for them by giving fight to the Government. It was alleged that the detenu was carrying on this activity by giving false promise and thereby inciting the tribals. Details of about fifteen criminal cases have been mentioned in the grounds of detention. Only one of these cases is pending in the Court and rest of the cases are under police investigation.
5. The grounds of detention served upon both the petitioners arc dated January 13, 1992. As stated earlier the grounds of detention served upon the detenu in each case are almost identical. It is stated in the impugned order of detention that the detaining authority was satisfied with respect to the detenu that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Dangs District it was necessary to pass order of detention and hence the order of detention.
6. Reading the grounds of detention in each case, it becomes evident that the grounds of detention have been formulated after the order of detention was passed and executed. The order of detention is dated January 9, 1992 while the grounds of detention are dated January 13, 1992. It is obvious from reading of the, grounds of detention that it is a case of formulating the grounds subsequently and it is not a case of putting on paper the grounds already formulated and lying in file. In the grounds of detention there is reference to letter dated January 12, 1992 written by the Additional District Superintendent of Police, Ahwa. This letter of January 12, 1992 is also taken into consideration by the detaining authority and it is specifically referred to in the grounds of detention. After referring to this letter and other details it is stated in the grounds of detention that it was not possible to take other alternative measures of externment and other less drastic remedy. Thereafter it is stated: “with a view to prevent your such activity, as a last alternative, I am passing this order of taking you in detention under the aforesaid Act”. To be precise, what is stated in Gujarat is as follows:
Even though the order of detention is passed on January 9, 1992, it is made to appear that order is being passed on January 13, 1992. But it is evident that the grounds have been formulated on January 13, 1992, that is, subsequent to the order of detention dated January 9, 1992.
7. In view of the aforesaid factual position, both the cases are covered by Supreme Court’s decision in the case of Krishna Murari Aggarwal v. Union of India and Ors. . In para 7 of the reported decision of the Supreme Court it is inter alia observed as follows:
Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory….
In the case of State of Bombay v. Atma Ram Shridhar Vaidya , it is observed in para 7 of the reported decision as follows:
These grounds, therefore, must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed racital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall.
In the case of Parshottam Dahyabhai Chunara v. State of Gujarat and Ors. decided by a Division Bench of This Court reported in 1988 (1) XXIX (1) GLR 342, This Court has observed as follows:
That before passing order of detention, the detaining authority is required to be satisfied that it was necessary to make order of detention. The grounds of detention are required to be communicated to the detenu as soon as practicable. The grounds are conclusion of facts and this conclusion of facts must be in existence when the order of detention is made. That is the basis on which the requisite satisfaction can be arrived at and, therefore, the grounds of detention must be in existence when in the order of detention is made.
8. In view of the aforesaid settled legal position it is evident that the grounds of detention should be in existence when the order of detention is passed and the grounds can be the basis of the order of detention. In the instant case the order of detention is passed on January 9, 1992, while the grounds of detention are dated January 13, 1992. In both the cases in the grounds of detention, events which have taken place subsequent to the order of detention have also been taken into consideration. The detaining authority. has specifically mentioned that it was on the basis of the grounds that he passed the order of detention. These grounds have been formulated subsequent to the order of detention having been passed. The grounds were not formulated when the order of detention was passed. In view of this position of law and facts, the order of detention in both the cases cannot be sustained.
9. Both these petitions for habeas corpus have been filed on January 13, 1992 and the Court has admitted the same on January 31, 1992, making the rule returnable on February 10, 1992. The Hon’ble the Acting Chief Justice has specially assigned both these matters to This Court and thereafter they were placed for final hearing on the board of This Court on March 20, 1992. Though the order of rule was passed on January 31, 1992 and it was made returnable on February 10, 1992 affidavits-in-reply are filed in both the matters today only. On March 20, 1992 an application was shown to This Court by the learned A.P.P. appearing for the respondent Government wherein prayer for adjournment was made on the ground that the District Magistrate was busy in other work. Somehow or the other, that application has not been placed before us. Therefore we do not wish to make any observation as regards the contents of the application except to say that at attempt was made to seek adjournment for a period of about two weeks. Today when the matter was called out learned A.P.P. appearing for the State Government of Gujarat again tried to seek adjournment on the ground that the learned Additional Advocate General was appearing in both the matters. It was stated that since the learned Additional Advocate General had gone to Supreme Court for some urgent work the matters may be adjourned. Since both the cases pertain to liberty of citizens, we did not think it proper to grant adjournment on the ground that the Counsel appearing for the respondent Government was busy in other Court. The Government could have and should have made alternative arrangement.
10. Moreover, after hearing the Learned Counsel for the petitioners it became evident that the orders of detention were palpably unsustainable and it would not be proper to deprive the detenus of their liberty on the ground that the Counsel engaged by the Government was busy in some other case. Therefore, we asked the learned A.P.P. appearing for the State as to whether he wished to make any submission. He has not made any submission on the ground that the matters were entrusted to the learned Additional Advocate General. However, it may be noted that when the judgment was being dictated learned A.P.P. appearing for the State made statement that the orders of detention have been revoked by the Government today only. Therefore he submitted that This Court may not pass order on merits and may act upon the statement made by him that the orders of detention have been revoked by the Government today only. Learned Counsel appearing for the petitioners has objected to the statement being accepted by the Court. In his submission the order of revocation was not in genuine exercise of powers, but it was passed with ulterior motive to use the same grounds of detention for passing fresh order of detention. Learned Counsel for the petitioners severely criticized the way in which attempts have been made by the Advocates appearing for the respondents for stalling the hearing of the matter on flimsy grounds, and for adopting unfair devices by which the same grounds can be used for passing fresh orders of detention. Having regard to the overall facts and circumstances of the case we do not think that it would be proper to refrain ourselves from passing the order on merits. We make it clear that both the petitions are being decided on merits.
11. Both the petitions have been filed by a voluntary organization-LOK Adhikar Sangh – which is committed to the protection of civil liberties and democratic rights of the poor and deprived sections of people in the State of Gujarat. As disclosed from the grounds of detention it is clear that the detenus are working for the protection of the rights of the tribals. Thus it is evident that the detenus are not anti-social elements. It may be that according to the detaining authority the activities of the detenus may be unlawful. But the fact remains that the activities alleged in relation to each detenu is such that the detenu and his associates are trying to organise the poor, ignorant tribals who form part of the disadvantaged and deprived section of the society. These tribals are not conscious of their rights. They do not have the means to obtain justice, nor have they capacity to fight injustice and secure their legitimate rights. The activites carried on by each detenu may not be within the four corners of law from the view point of the concerned Government Officers. It may even be assumed that at times they might have contravened the statutory provisions of law. But, for such contravention of law they are to be tried in accordance with law. Even if the detaining authority comes to the conclusion that their activity is likely to adversely affect the maintenance of public order, and they need to be preventively detained for maintenance of public order, they cannot be dealt with otherwise then in accordance with law. Liberty of no citizen can be deprived except in accordance with law.
12. It has got to be realised that in recent years the concept of ‘State’ has undergone drastic changes. ‘State’ cannot be conceived as simply a coercive machinery exercising thunderbolt of authority and keeping the citizens under its control. ‘State’ has to be viewed mainly as a service corporation. “If we clearly grasp the character of the State as a social agent, understanding it rationally as a form of service and not mystically as an ultimate power, we shall differ only in respect of the limits of its ability to render service” (See: Mac Iver, ‘The Modern State’ 183, quoted by the Supreme Court in the case of Sukhdev Singh v. Bhagat Ram reported in AIR 1975 SC 1331 (para 80) If one looks at the provisions of the Constitution of India, it would be evident that different organs of the Government are ‘State’ (Art. 12 of the Constitution). Provisions of Part IV of the Constitution gives a picture of the services which the State is expected to undertake and render for the welfare of the people. But the ‘State’ is not free to act in any manner it likes. It is subject to the several limitations, particularly the limitations contained in Part III relating to fundamental rights of the people.
13. Again it may be noted that ‘State’ is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. When the Government takes action against the citizen, may be with an avowed object of serving the society, it cannot act ignoring the inherent limitations imposed upon it under the Constitution. Even for laudable object if the Government is permitted to act otherwise than in accordance with law, it would be an invitation to extinction of rule of law. In such cases, State machinery itself would become ‘terrorist’ not bound by any law. As a natural corollary, one of the inherent limitations which flows from the constitutional provisions and from the scheme of the working of our system is that in Court proceedings the Government is required to maintain highest traditions and it is required to be just and fair both to the citizens as well as to the Court. Even if it were a case of detention of an alleged anti-social element, it would be expected of the Government Counsels to maintain highest standard of professional ethics and see that the rule of law is maintained. In the instant case, though we do not agree fully with the criticism made by the Learned Counsel for the petitioners about the conduct of the Counsels appearing for the respondents, we do feel that we have carried an impression that attempts have been made to stall the final hearing of the matters and attempts were made to ask for adjournment on untenable grounds.
14. In the result, both the petitions are allowed. In Special Criminal Application No. 217 of 1992 the order of detention dated January 9, 1992 produced at Annexure ‘B’ to the petition is quashed and set aside. The detenu Shri Shyambhai alias Irfanbhai Asgarali Engineer (Vohra) is ordered to be set at liberty forthwith, if not required in any other case. Similarly, in Special Criminal Application No. 228 of 1992 the order of detention dated January 9, 1992 produced at Annexure ‘B’ is quashed and set aside. The detenu Shri Virsinghbhai Vishrambhai Patel is ordered to be set at liberty, if not required in any other case. Rule made absolute to the aforesaid extent in both the petitions.