PETITIONER:
SHAFIQ AHMAD
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, MEERUT & ORS.
DATE OF JUDGMENT06/09/1989
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RAY, B.C. (J)
CITATION:
1990 AIR 220 1989 SCR Supl. (1) 56
1989 SCC (4) 556 JT 1989 (3) 659
1989 SCALE (2)565
CITATOR INFO :
R 1990 SC1597 (14)
F 1992 SC1900 (16)
ACT:
National Security Act 1980--Section 3(2) Detention
Order-Validity of--Challenged. Delay occurred in executing
the order of detention--Whether vitiates the detention.
HEADNOTE:
In pursuance of an order of detention dated 15.4.1988,
passed by the District Magistrate, Meerut, the Petitioner, a
bachelor and having no property, was arrested on 2nd October
1988 and detained under Section 3(2) of the National Securi-
ty Act. The petitioner was supplied with the grounds of
detention enumerating therein the' acts committed by him on
2nd, 3rd and 4th April 1988 and on 9.4.88 and the provoca-
tive speeches made by him on the occasion of Shabberat a
Muslim festival to the effect that Hindus had deliberately
"sent their cow on the road" and the "people are silent" and
about teaching "them" a lesson and administration's failure
to fix a long speaker in the mosque- These acts and the
speeches made by the petitioner. were, in the opinion of the
detaining authority, prejudicial to the maintenance of
public order. The representation made by the petitioner
against the order of detention was rejected and the order of
his detention was confirmed.
Thereupon, the petitioner has filed this Writ Petition
under Article 32 of the Constitution challenging his deten-
tion. The contentions of the petitioner are that (i) that
there was inordinate delay in arresting the petitioner which
indicated that the order of detention was not based on a
bona fide and genuine belief that the action and conduct of
the petitioner were such that the same were prejudicial to
the maintenance of Public Order and the so-called "grounds"
were merely make-belief and not genuine grounds; (ii) that
the grounds were not germane to the maintenance of "public
order" and (iii) that the grounds were vague and unintelli-
gible.
Allowing the Writ Petition, this Court,
HELD: Sub-section (2) of section 3 of the Act autho-
rises the Central Government or the State Government, if
satisfied with respect to any person that with a view to
preventing him from acting in any
57
manner prejudicial to the security of the state, it is found
necessary, then the person can be detained. Hence there must
be conduct relevant to the formation of the satisfaction
having reasonable nexus with the actions of the petitioner
which are prejudicial to the maintenance of public order.
Existence of material relevant to the formation of satisfac-
tion and having rational nexus to the formation of the.
satisfaction that because of certain conduct "it is neces-
sary" to make an order "detaining" such person, are subject
to judicial review. [60H; 61A-B]
Delay, unexplained and not justified, by the circum-
stances and the exigencies of the situation, is indicative
of the fact that the authorities concerned were not and
could not have been satisfied that "preventive custody" of
the concerned person was necessary to prevent him from
acting in any manner prejudicial to the maintenance of
public order. Whether there has been unreasonable delay,
depends upon the facts and circumstances of a particular
situation. [61C-D]
Satisfaction of the authorities based on conduct must
precede action for prevention. Satisfaction entails belief.
Satisfaction and belief are subjective. Actions based on
subjective satisfaction are objective indication of the
existence of the subjective satisfaction. Action based on
satisfaction should be with speed commensurate with the
situation. [61E-F]
If in a situation the person concerned is not available
or cannot be served then the mere fact that the action under
section 7 of the Act has not been taken, would not be a
ground to say that the detention order was bad. Failure to
take action, even if there was no scope for action under
section 7 of the Act would not be decisive or determinative
of the question whether there was undue delay in serving the
Order of detention. [62A-B]
The Petitioner has no property, so no property could be
attached and as the Government's case is that he was not
available for arrest, no order under sec. 7 could have been
possibly made. This, however, does not salvage the situa-
tion. The fact is that from 15th April 1988 to 12th May
1988, no attempt had been made to contact the Petitioner. No
explanation has been given for this. There is also
no explanation why from 29th September 1988 to 2nd October
1988, no attempt had been made. It is however stated that
from May to September 1988 the "entire police force" was
extremely busy in controlling the situation. Hence, if the
law and order was threatened and prejudiced, it was not the
conduct of the petitioner but because of "the inadequacy" or
"inability" of the police force of Meerut City to control
58
the situation. Therefore the fact is that there was delay.
The further fact is that the delay is unexplained.or not
warranted by the facts/ situation. To shift the blame for
public order situation and raise the bogey of the conduct of
the petitioner would not be proof of genuine or real belief
about the conduct of the petitioner but only raising a red
herring. [62B-E]
The Court quashed the order of detention and directed
the petitioner to be set at liberty forthwith. [65B]
Nizamuddin v. The State of West Bengal, [1975] 2 SCR
593; Bhawarlal Ganeshmalji v. State of Tamil Nadu & Ant.,
[1979] 2 SCR 633 at p. 638; Indradeo Mahato v. State of West
Bengal, [1973] 4 SCC 4; State of Gujarat v. Adam Kasam
Bhaya, [1982] 1 SCR 740; Subhash Bhandari v. Distt. Magis-
trate, Lucknow & Ors., [1987] 4 SCC 685 and Kanu Biswas v.
State of West Bengal, [1973] 1 SCR 546, referred to.
JUDGMENT:
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crimi-
nal) No. 200 of 1989.
(Under Article 32 of the Constitution)
C.P. Mittal for the Petitioner.
Anil Dev Singh, Yogeshwar Prasad, Ms. Kitty Kumar Manga-
lam, Ms. A Subhashini, Anil Malik and D. Bhandari for the
Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This petition under Article 32
of the Constitution challenges the detention of the peti-
tioner–a ,detenu, under s. 3(2) of the National Security
Act, 1980 (hereinafter called ‘the Act’). The petitioner is
a bachelor. He does not own any property. The order for
detention under s. 3(2) of the Act was passed on April 15,
1988 by the District Magistrate, Meerut. In the grounds of
detention it is stated that on the night of 2/3rd April,
1988 which was an occasion of “Shabberat” festival, a muslim
festival, the religious celebration was going on at Gudfi
Chaupala. At about 11 p.m. in the night on that day, a cow
belonging to the muslims of Ismail Nagar came from Sabun
Garan towards Chaupal Gudri and was going towards Ismail
Nagar and, according to the order of detention, ‘some unde-
sirable elements’
59
present there did not allow the cow to go on the right way
and .she again came towards Chaupala Gudri, and was made to
run avoiding the crowd towards Nakaar Chian but near the
shop of Haj Dhola, ‘some undesirable elements’ stopped the
cow and poked a wood piece on her back. Due to this the cow
started pumping and himping and ran inside the celebration.
It is stated that at this the petitioner came to the stage,
got excited and spread the rumor that “the police had not
made any arrangements”. It was stated that the cow belonged
to the Hindus and had been deliberately sent inside the
festival and “other provoking” things. Due to the aforesaid,
the people started running and communal feelings got around.
It is stated in the order of detention that in this way the
petitioner had committed an act which was prejudicial to the
maintenance of public order. Again on 9th April, 1988 at
about 9 p.m. near Transformer at Gudri Chaupala P.S. Kotwa-
li, the petitioner is alleged to have “provoked some per-
sons” of the muslim community by saying that “the adminis-
tration even now has not allowed to get a loud speaker fixed
here and all of you are silent, get a loud speaker on the
Mosque and we will see. I am with you.” It is also stated
that the petitioner had also said that on the occasion of
Shabberat these Hindus had deliberately “sent their cow on
the road” for their festive celebrations and the “people are
silent”. He had also said about teaching “them” a lesson.
It was stated that due to the “aforesaid bad act”,
communal feelings got aroused in the Meerut City and fear
and terror got spread, and in this way the petitioner had
done an act which was “prejudicial to maintenance of public
law and order”. In the aforesaid, it was stated that for the
reasons mentioned hereinbefore, there was possibility of the
petitioner doing such an act, and therefore in order to
restrain the petitioner from doing so, it is necessary to
detain him. Accordingly, the order was passed with conse-
quential directions and information.
As mentioned hereinbefore, the alleged incidents were on
2/3/4th April, 1988 as well as 9th April, 1988. The order of
detention (hereinafter referred to ‘the order’) was made on
15th April, 1988. The petitioner was arrested pursuant to
the said order on 2nd October, 1988. There was representa-
tion but the same was rejected and the order of detention
was confirmed.
In this petition various grounds have been taken before
this Court challenging the order under Article 32 of the
Constitution. Mr. C.P. Mittal, learned counsel for the
petitioner, however, urged
60
before us three grounds upon which he contended that the
said order be quashed or set aside. It was submitted by Mr.
Mittal that there was inordinate delay in arresting the
petitioner pursuant to the order, which indicated that the
order was not based on a bona fide and genuine belief that
the action or conduct of the petitioner were such that the
same were prejudicial to the maintenance of public order and
that preventive detention of the petitioner was necessary
for preventing him from such conduct. He .further submitted
that delay in the circumstances of this case in arresting
the petitioner and or in acting pursuant to the order indi-
cated that the “so-called grounds” were merely make-belief
and not genuine grounds upon which the satisfaction of the
authority concerned was based.
In answer to this contention, on behalf of the Distt.
Magistrate, Meerut, by an affidavit affirmed on 28th August,
1989 and filed in these proceedings, stated that raids on
the petitioner’s premises for the service of the order dated
15.4.1988 were conducted. It was further stated that the
respondent authorities had made all efforts to serve the
order on the petitioner and for this purpose the house of
the petitioner was raided on several occasions and a refer-
ence was made to the general diary report, details whereof
were extracted in the affidavit. The details indicate that
in respect of the order dated 15.4.1988 the first raid was
made in the house of the petitioner on 12th May, 1988,
followed by eight other attempts up to the end of May, 1988
to arrest the petitioner but he was not available. There
was, however, no attempt in the months of June, July, Au-
gust’ 88 but on 23, 25 & 29th September, 1988 three attempts
were made and as such, it was stated on behalf of the re-
spondents, the order could not be served before 2nd October,
1988. According to the District Magistrate, the respondent
authorities did not leave any stone unturned to arrest the
petitioner. It was, however, stated that from May, 1988 to
September, 1988 the entire police force of Meerut City was
extremely busy in maintaining law and order, but the peti-
tioner was all along absconding in order to avoid the serv-
ice of the order. The District Magistrate has further stated
that during the period from May to September, 1988 great
communal tension was prevailing in the Meerut City and a
large number of people were arrested on account thereof. The
question that requires consideration is, whether there was
in ordinary delay. The detention under the Act is for the
purpose of preventing persons from acting in any manner
prejudicial to the maintenance of public order. Subsection
(2) of section 3 of the Act authorises the Central Govt. or
the State Govt., if satisfied with respect to any person
that with a view to preventing him from acting in any manner
prejudicial to the security of
61
the State, it is found necessary then the person can be
detained. Hence, there must be conduct relevant to the
formation of the satisfaction having reasonable nexus with
the action of the petitioner which are prejudicial to the
maintenance of public order. Existence of materials relevant
to the formation of the satisfaction and having rational
nexus to the formation of the satisfaction that because of
certain conduct “it is necessary” to make an order “detain-
ing” such person, are subject to judicial review. Counsel
for the petitioner contends that in the aforesaid facts and
the circumstances if the conduct of the petitioner was such
that it required preventive detention, not any punitive
action, for the purpose of “preventing” the person concerned
from doing things or indulging in activities which will
jeopardise, hamper or affect maintenance of public order
then there must be action in pursuance of the order of
detention with promptitude. Delay, unexplained and not
justified, by the circumstances and the exigencies of the
situation, is indicative of the fact that the authorities
concerned were not or could not have been satisfied that
“preventive custody” of the person concerned was necessary
to prevent him from acting in any manner prejudicial to the
maintenance of public order. Whether there has been unrea-
sonable delay, depends upon the facts and the circumstances
of a particular situation. Preventive detention is a serious
inroad into the freedom of individuals. Reasons, purposes
and the manner of such detention must, therefore, be subject
to closest scrutiny and examination by the courts. In the
interest of public order, for the greater good of the commu-
nity, it becomes imperative for the society to detain a
person in order to prevent him and not merely to punish him
from the threatened or contemplated or anticipated course of
action. Satisfaction of the authorities based on conduct
must precede action for prevention. Satisfaction entails
belief. Satisfaction and belief are subjective. Actions
based on subjective satisfaction are objective indication of
the existence of the subjective satisfaction. Action based
on satisfaction should be with speed commensurate with the
situation. Counsel for the petitioner submitted that in this
case there was no material adduced on behalf of the Govt.
indicating that the petitioner was “absconding”. It was
urged that there are no material at all to indicate that the
petitioner was evading arrest or was absconding. It was
submitted that s. 7 of the Act gave power to the authorities
to take action in case the persons were absconding and in
case the order of detention cannot be executed. It is stated
that in this case no warrant under s. 7 of the Act has been
issued in respect of his property or person. Hence, it was
contended that the respondent was not justified in raising
the plea that the petitioner was absconding. We are, howev-
er- unable to accept this contention. If in a situation the
62
person concerned is not available or cannot be served then
the mere fact that the action under s. 7 of the Act has not
been taken, would not be a ground to say that the detention
order was bad. Failure to take action, even if there was no
scope for action under s. 7 of the Act, would not be deci-
sive or determinative of the question whether there was
undue delay in serving the order of detention. Furthermore,
in the facts of this case, as has been contended by the
Government, the petitioner has no property, no property
could be attached and as the Govt. ‘s case is that he was
not available for arrest, no order under s. 7 could have
been possibly made. This, however, does not salvage the
situation. The fact is that from 15th April, 1988 to 12th
May, 1988 no attempt had been made to contact or arrest the
petitioner. No explanation has been given for this. There is
also no explanation why from 29th September, 1988 to 2nd
October, 1988 no attempt had been made. It is, however,
stated that from May to September, 1988 the ‘entire police
force’ was extremely busy in controlling the situation.
Hence, if the law and order was threatened and prejudiced,
it was not the conduct of the petitioner but because of ‘the
inadequacy’ or ‘inability of the police force of Meerut City
to control the situation. Therefore, the fact is that there
was delay. The further fact is that the delay is unexplained
or not warranted by the facts situation.
To shift the blame for public order situation and raise
the bogey of the conduct of the petitioner would not be
proof of genuine or real belief about the conduct of the
petitioner but only raising a red herring. This question was
examined by this Court in Nizamuddin v. The State of West
Bengal, [1975] 2 SCR 593. The question involved therein was
under s. 3(2) of the Internal Security Act, 1971. There was
delay of about two and a half months in detaining the peti-
tioner pursuant to the order of detention and the Court
considered that unless the delay was satisfactorily ex-
plained, it would throw considerable doubt on the genuine-
ness of the subjective satisfaction of the Distt. Magistrate
recited in the order of detention. Mr. Justice Bhagwati, as
the learned Chief Justice then was, speaking for the Court
observed at page 595 of the report that it will be reasona-
ble to assume that if the Distt. Magistrate was really and
genuinely satisfied after proper application of mind to the
materials before him that it was necessary to detain the
petitioner with a view to preventing him from acting in a
prejudicial manner, he would have acted with greater promp-
titude in securing the arrest of the petitioner immediately
after invoking of the order of detention, and the petitioner
would not have been allowed to remain at large for such a
long period of time to carry on his nefarious activities. It
is, however, not the law that whenever there is some delay
63
in arresting the subjective satisfaction of the detaining
authority must be held to be not genuine or colourable. Each
case must depend on its own peculiar facts and circum-
stances. In this case, from the facts and the circumstances
set out hereinbefore we find no reasonable or acceptable
explanation for the delay. In a situation of communal ten-
sion prompt action is imperative. It is, therefore, not
possible for this Court to be satisfied that the District
Magistrate had applied his mind and arrived at “real” and
“genuine” subjective satisfaction that it was necessary to
detain the petitioner to “prevent” him from wrong doing. The
condition precedent, therefore, was not present. But as
Justice Chinnappa Reddy explained in Bhawarlal Ganeshmalji
v. State of Tamil Nadu & Anr., [1979] 2 SCR 633 at page 638
that there must be ‘live and proximate link’ between the
grounds of detention alleged by the detaining authority and
the avowed purpose of detention, and in appropriate cases it
is possible to assume that the link is ‘snapped’ if there is
a long and unexplained delay between the date of the order
of detention and the arrest of the detenu. Mr Yogeshwar
Prasad, learned counsel for the State of U.P. drew our
attention to the decision of this Court in Indradeo Mahato
v. State of West Bengal, [1973] 4 SCC 4. That was also a
case of arrest under the Maintenance of Internal Security
Act, 1971. It was urged in that case that there was no real
or genuine apprehension that the petitioner there was likely
to act in a manner prejudicial to the maintenance of public
order. This Court in the facts of that case, was unable to
accept the said contention. The Court held that mere failure
to take recourse to ss. 87 & 88 of the Criminal Procedure
Code would be a warrant to believe that the delay was unrea-
sonable. Whether the delay was unreasonable depends on the
facts and the circumstances of each case. We are satisfied,
in view of the facts and circumstances of the case mentioned
before, that by the conduct of the respondent authorities,
there was undue delay, delay not commensurate with the facts
situation in this case. the conduct as aforesaid betrayed
that there was no real and genuine apprehension that the
petitioner was likely to act in any manner prejudicial to
public order. The order, therefore, is bad and must go.
The next ground urged in support of this application was
that the grounds mentioned were not germane to maintenance
of ‘public order’. It was submitted that the petitioner has
only alleged inefficiency or incompetency of the police
either in providing a loud speaker or in ensuring that the
cows do not enter into or within the arena of muslim festi-
vals. It was submitted that the criticism of the administra-
tion is not endangering public order. Mr. Mittal submitted
that it was not a question of law and order but public order
that is important in
64
this case. What the petitioner has alleged to have done may
have some relevancy to the purpose of securing law and order
but there cannot be any rational nexus with the satisfaction
regarding the maintenancy of public order. By the conduct
alleged or the saying attributed as mentioned above, public
order was not prejudiced. Criticism of Police does not
prejudice public order, it is said. The Court has to ensure
that the order of detention is based on materials before it.
If it is found that the order passed by the detaining au-
thority was on materials on record, the Court can examine
the record only for the purpose of seeing whether the order
of detention was based on no material or whether the materi-
als have rational nexus with satisfaction that public order
was prejudiced. Beyond this, the Court is not concerned. See
the observations of The State of Gujarat v. Adam Kasam
Bhaya, [1982] 1 SCR 740. The difference between public order
and law and order is a matter of degree. If the morale of
the police force or of the people is shaken by making them
lose their faith in the law enforcing machinery of the State
then prejudice is occasioned to maintenance of public order.
Such attempts or actions which undermine the public faith in
the police administration at a time when tensions are high,
affects maintenance of public order and as such conduct is
prejudicial. See in this connection Indradeo Mahato’s case
(supra), Subhash Bhandari v. Distt. Magistrate, Lucknow &
Ors., [1987] 4 SCC 685 and Kanu Biswas v. State of West
Bengal, [1973] 1 SCR 546. Therefore, we are unable to accept
the contention that the grounds were not relevant for the
order of detention under the Act. This contention of Mr.
Mittal must, therefore, fail.
The last contention was that the grounds mentioned were
vague and unintelligible. It was not stated, it was urged,
that as to what the petitioner said, to whom the rumour was
spread as mentioned in ground No. 1 and what “other provok-
ing things” the petitioner is alleged to have said as al-
leged in the grounds mentioned before. It was urged, it is
further not clear as to whom the petitioner wanted to teach
a lesson. It has to be borne in mind that if more than one
grounds are stated in the grounds then the fact that one of
the grounds is bad, would not alter order of detention after
the amendment of the Act in 1984 provided the other grounds
were valid. But quite apart from the same, it appears to us
that none of the grounds were vague. The grounds must be
understood in the light of the background and the context of
the facts. It was quite clear what the detaining authorities
were trying to convey was that the petitioner stated things
of the nature and it was to teach Hindus a lesson. Hence, it
was meant to create communal tension. We find no irrelevancy
or vagueness in the
65
grounds. On this ground the challenge cannot be sustained.
However, in the view taken by us on the first ground the
order of detention must be quashed and set aside. We order
accordingly. Let the petitioner be set at liberty forthwith
unless he is required for any other offence under any other
Act. The application is disposed of accordingly.
Y. Lal Petition
allowed.
66