JUDGMENT
G.G. Sohani, J.
1. This is a petition under Article 226 of the Constitution of India for a writ of habeas corpus challenging the validity of the order of detention passed by the District Magistrate, Indore on 25-2-1987 under Sub-section (2) of Section 3 of the National Security Act, 1980 (hereinafter referred to as “the Act”), directing that the petitioner be detained and kept in District Jail, Indore.
2. The material facts giving rise to this petition, briefly, are as follows:
On 4-1-87, a report was lodged at the police station, Simrol, near Indore, by one Prahladdas that a Jain ‘sadhwi’ (nun) Induprabha, aged about 21 years, was abducted. While the investigation was in progress, Induprabha appeared at the police station and informed the police that she had not been abducted but that she had accompanied the petitioner of her own free will. Statement of Induprabha was recorded under Section 164, Cr.P. Code, in which she affirmed that she was not abducted and that she wanted to reside with the petitioner. The police, therefore, did not pursue the matter and allowed her to reside with the petitioner. Aggrieved by this action of the police, a petition registered as Miscellaneous Petition No. 40 of 1987 reported in AIR 1987 Madh Pra 132 (Dr. Manhohar Dalai s/o Bapulal v. State of M.P.) was filed in this Court on 7-1-1987 by Dr. Manohar Dalai for issuance of a writ of habeas corpus alleging that Induprabha was illegally detained. It was alleged in that petition that Induprabha was residing with Radheshyam, the present petitioner, against her will and that the State Government had failed to take any action against the offender. In the return filed by the State in that petition, the allegations made against the State Government were denied. The stand taken by the respondent-State in that behalf is set out in para. 5 of the judgment (Annexure ‘B’) delivered by a Division Bench of this Court. The relevant portion of that paragraph is as follows:
The respondents, in reply to the said allegations, have denied the same and have produced documentary evidence to the effect that her statement was recorded under Section 164, Cr.P.C. by the Judicial Magistrate, First Class, Indore, as per Annexure R-2, wherein she has categorically stated that she voluntarily and willingly wants to stay with Radheshyam and that she being a major, is at liberty to move freely and stay wherever she likes, as she finds it very difficult to follow the rituals and the way of life that a Jain Sadhwi is expected to lead according to that religion. Therefore, according to the respondents, Jain Sadhwi Induprabhaji is not in illegal detention or custody.
The petition filed by Dr. Dalai was dismissed by a Division Bench of this Court by its judgment dated 23-2-1987. The learned Judges (Mulye J. and Shrivastava J.) held that Induprabha was not illegally detained by the State Government or by Radheshyam. Thereafter on the next day, i.e. on 24th Feb. 1987, a news item was published in the daily ‘Nai Dunia’ (Annexure ‘D’) that if within three days, Induprabha was not returned to her parents, it would lead to agitation and persons named in Annexure ‘D’ would resort to fast into death, On the next day, the District Magistrate passed the impugned order under Section 3(2) of the National Security Act, 1980, directing detention of the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The petitioner has, by this petition, challenged the validity of that order.
3. It is well settled by a number of decisions of the Supreme Court that the law of preventive detention has to be strictly construed and care has to be taken that the liberty of a person is not jeopardised unless the case falls squarely within the four corners of the relevant law. The object of making an order of detention is to prevent the commission in future of activities in jurious to the community because preventive detention is to protect the society by preventing the wrong being done. It has been held by the Supreme Court in Suraj Pal Sahu v. State of Maharashtra that having regard to the purpose of the Act, the detaining authority must take into consideration rational, proximate reasonable past and present and that should be the basis for the horoscope for the future so as to determine whether the person proposed to be detained comes within the mischief of the Act. It is also well settled that the subjective satisfaction of the detaining authority constitutes the foundation for the exercise of the power of detention and though the Court cannot be invited to consider the sufficiency of the grounds, on which the satisfaction of the detaining authority is based, this does not mean that unfettered discretion, immune from judicial review vests in the detaining authority. As observed by the Supreme Court in Khudiram Das v. State of West Bengal , the Court in the case of preventive detention has power to examine whether power conferred by the Act is exercised for the purpose contemplated by the Act and whether on the grounds furnished to the detenu, any reasonable authority could possibly come to the conclusion to which the detaining authority did.
4. Keeping in view the aforesaid principles of law, let us turn to the grounds, on which the order of detention is based in this case. These grounds are set out in the impugned order as follows:
[Matter in vernacular hence omitted. -Ed. ]
Along with the aforesaid grounds, particulars of certain facts are set out, which furnish the basis for those grounds. These facts mainly are that on 19-2-87, the officer-in-charge of the police station, Pandharinath Marg noted that the incident relating to abduction of Induprabha has led to unrest amongst the members of the Jain community; that on the same day, a constable reported that there was a rumour that when some members of the Jain community went to Radheshyam, the petitioner, he told them that he was bent on allowing Induprabha to stay with him and had threatened them with dire consequences if they interfered, that another constable reported that the members of the Jain community were insisting on the arrest of Radheshyam, the petitioner, and that there were reports that the petitioner was mobilising members of Gujar community to resist the agitation of the members of the Jain community on the question of his giving shelter to Induprabha.
5. Though in the grounds of detention, it is alleged that the petitioner has enticed Induprabha and that she is in his clutches on account of immoral influence exercised on her, the learned Advocate General appearing for the State, stated that that was not the ground of detention and that the petitioner had not committed any offence. This stand is in conformity with the stand of the State Government in Misc. Petition No. 40 of 1987 : that the District authorities were satisfied that Induprabha, a major girl, was voluntarily and willingly staying with Radheshyam, the petitioner. It has not been urged that the District authorities have changed their opinion and have found that Induprabha is staying with the petitioner against her will. The grounds for detention, therefore, are that the petitioner, a married man, has given shelter to Induprabha, who has renounced the life of a nun; that this fact has led to unrest amongst the members of the Jain community who were insisting on the arrest of the petitioner and that if the petitioner was not arrested, it would result in breach of peace. The short question for consideration is whether detention of a person, who has not committed any offence nor who is likely to commit any offence but whose action has caused unrest amongst the members of a community, who are insisting on his arrest can be held to be detention of that person with a view to preventing him from acting any any manner prejudicial to the maintenance of public order.
6. It was urged before us by the learned Advocate General that for detaining a person under the Act, it is not necessary that he should have committed any offence. Reliance was placed on the decision of the Supreme Court in Giani Bakshish Singh v. Government of India . It is true that preventive detention is not a punishment for an offence. But it is undoubtedly an action to prevent the commission of a wrong being done by the person detained if he is allowed to remain free. In the instant case, there is no indication whatsoever in the grounds of detention to suggest that the petitioner was likely to indulge in committing a wrong if he was not detained. The reason for detaining the petitioner, as set out in the impugned order, is to prevent him from acting in any manner prejudicial to the maintenance of public order. Before passing that order, the detaining authority was, therefore, bound to consider whether the petitioner, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, was likely to act in a manner prejudicial to the maintenance of public order. It is the probable course of conduct of the petitioner and not the probable course of conduct of other persons, that has to be considered for the purpose of detaining the petitioner under the Act. It is true that there were reports from police officials that the members of the Jain community were insisting on the arrest of the petitioner, who had given shelter to Induprabha. But the Act does not contemplate detention of a person because there is a demand for his detention by some members of the society or if there is threat of unrest or breach of peace if that person is not detained. In such a case, the detention would not be’ with a view to prevent the person detained from acting in any manner prejudicial to the maintenance of public order but the detention would be with a view that other persons are prevented from acting in any manner which may result in breach of peace. This is not the purpose contemplated by the Act. The detention of a person for a purpose not contemplated by the Act, cannot be held to be a valid detention. The order of detention, therefore, cannot be sustained in law.
7. For all these reasons, this petition is allowed. The order dt. 25-2-1987 (Annexure R-1) passed by the District Magistrate, Indore, is quashed. The petitioner shall be set at liberty forthwith. In the circumstances of the case, there shall be no order as to costs.