JUDGMENT
R.S. Garg, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner Raheeman Bee has prayed that the detention order Anncxurc-P 1 dated 4-5-1994 passed by the District Magistrate in relation to her son, Kasim alias Sheroo be quashed and that her son be released.
2. The brief facts leading to the detention order are that on 26-4-1994, Police Superintendent, Jabalpur (II respondent) submitted a report to the District Magistrate suggesting therein that detention order under Section 3(2) of the Act be passed against Kasim. The District Magistrate passed the order of detention. The report and grounds of detention refer to as many as eight grounds which are as under;
(a) That on 4-2-1991 at about 7-45 a.m. at Sanjeevani Nagar, Garha, detenu Kasim wrongfully restrained the complainant Jail Narayan, caused simple injury by knife and abused him. Accordingly, offence No. 89/90 was registered at Police Station, Garha, the accused was arrested, charge-sheet was filed against him and the matter was pending before the competent Court.
(b) On 6-2-1991 at about 8-30 a.m., the detenu was apprehended by the officer of Police Station, Garha as he was found in possession of a knife. Offence No. 92/91 was registered. The accused was arrested for having committed offence under Section 25, Arms Act, charge-sheet was filed and the matter was pending before the competent Court.
(c) On 3-7-1991, the complainant J. N. Agrawal, resident of Lordganj made a report that from the front of his house No. 323, detenu Kasim committed theft of his scooter. On this offence No. 353/91 under Section 379, IPC was registered against the detenu, he was arrested, the scooter was recovered from him, charge sheet was filed and the matter was pending before the competent Court.
(d) On report of Ram Krishan dated 5-4-1992, offence No. 23/93 under Section 324/34, IPC was registered stating therein that at about 6 p.m., detenu Kasim along with his friends caused him injury by razor. Accused was arrested, charge-sheet was pre pared, filed and the matter was pending before the competent Court.
(e) On 11-4-1992, at about 6 p.m., accused Kasim and his friends wrongfully entered the house of the complainant Rahman Khan, abused and beat him. On this report Crime No. 224/92 under
Sections 294, 450,506B, 32,3/34, IPC was registered, the accused persons were arrested, after investigation charge-sheet was filed and the matter was pending before the competent Court.
(f) On report of Ram Krishna, Crime No. 252/92 under Section 286, IPC read with Section 3/5 of the Explosive Substances Act was registered against the detenu. In the report, it was alleged that the accused threw the country made bombs and caused terror in the locality. Charge-sheet was filed and the accused was facing trial.
(g) On 2-6-1993 at about 6 a.m. in the morning, the detenu with his two friends threw country made bombs, caused terror in the locality and therefore offence No. 284/93 under Section 3/5 of the Explosive Substances Act was registered, the detenu was arrested and after investigation, charge-sheet was filed and the trial was pending before the competent Court.
(h) One Sunder made a report that on 3-6-1993′ at mid-night, the detenu along with his friends forcibly entered the house of the complainant, attacked Pyarelal and caused his death. On this report, offence No. 286/93 under
Sections 452, 307/34 and 302, IPC was registered. It is alleged in the report of Superintendent of Police that the detenu Kasim could not be arrested as he was absconding and, therefore, charge-sheet was filed against him under the provisions of Section 299, Cr. P.C. Copy of the said report is filed with the return as Annexure-Rl.
3. The petitioner states that the detenu surrendered at Police Station, Garha on 16-4-1994 as he was wanted in a Criminal case registered against him and was kept in unlawful custody till the date of passing of order of detention i.e. 4-5-1994. The petitioner says that she visited police station from 16-4-1994 to 6-5-1994. She further stated that she was serving meals to the detenu and made repeated requests to the officer-in-charge of Police Station, Garha to produce the detenu before the Court, de spite assurances to produce him before the Court on 6-5-1994 the detenu was escorted by one Head Constable and two Constables from Police Station, Garha to Central Jail, Jabalpur in pursuance of the order of detention.
4. In reply to the above allegations of the petitioner return has been filed denying the material allegations; however, passing of the detention order and lodging of the detenu in the Central Jail are not disputed.
5. The return and the original records of the District Magistrate, Jabalpur show that on 4-5-1994, the matter was placed before the District Magistrate, Jabalpur as case No. 22/94. The District Magistrate considered the report of Superintendent of Police and copies of the eight entries in Crime Register forwarded along with the report, came to the conclusion that the detenu was a hardened criminal engaged in criminal activities associated with anti social elements and committing offences was a habitual offender using bombs, committing rioting, entering houses of people, attacking people with knife or razor and that he had created a serious dent to the public order and was acting in a manner prejudicial to the maintenance of the public order. The District Magistrate was of the opinion that as the detenu was terrifying people, none was ready to give evidence against him in Court of law and that detention order must be passed under Section 3(2) of the National Security Act, 1980. From the record, it appears that the matter was thereafter referred to the State Govt. under Section 3(4) of the Act. The State Government approved the order on 11 -5-1994. The matter was also referred to the Central Government which also approved it. The mailer was placed before the advisory Board which found adequate grounds for the detention order on 23-6-1994. The matter was again placed before the State Government which by its order dated 7-7-1994 ordered that in view of the opinion of the Advisory Board, the order of detention deserves to be confirmed and the period of detention was fixed as one year.
6. Regarding the factual controversy in relation to unlawful custody of the detenu from 16-4-1994 to 4-5-1994,. we do not propose to conduct any enquiry.
7. Shri A. K. Soni appeared for the petitioner and submitted:
(a) That the materials produced before the District Magistrate were not sufficient for subjective satisfaction for passing an order of detention as (a) copies of the first information reports were not produced before the District Magistrate. (b) even the entries in the crime register and the report of Superintendent of Police (Annexure-RI) were not correct and in fact were misleading. This vitiated the satisfaction of the District Magistrate, so also for want of the true and material facts along with documents, the satisfaction stands vitiated.
(b) There was no live link in the incidents and the detention order. The last of the crimes was committed on 3-6-1993 and the detention order was passed on 4-5-1994 after a lapse of 11 months and there was no satisfactory explanation either in Annexure-RI, the report of Superintendent of Police or in the detention order or even in the return filed before this Court explaining the delay. Therefore on this grounds, the detention was liable to be quashed.
(c) The order of the detention was passed in mechanical manner; it does not show application of mind and it rests only upon the report of superintendent of Police and the extracts of the crime register.
(d) Ground No. 8 related to murder of one Kichhar alias Pyarelal. The contents of first information report at. Annexure-P17 shows that the en tries in the crime register and the report submitted by the Superintendent of Police were false and this has also vitiated the subjective satisfaction of the District Magistrate.
(e) Copies of the first information report and the other relevant materials were not supplied to the detenu to enable him to make an effective representation.
8. Replying to the above grounds, it was submitted that though copies of the first information reports were not produced before the District-Magistrate, the entries in the crime register were produced and sufficient to show the materials against the detenu. It was conceded before us that the first information reports in none the 8 cases were placed before the District Magistrate. It was also submitted that the principle of live link is not a rigid one. There should not be an unreasonable delay, but no hard and fast rule can be made. It was next urged that there was no unreasonable delay by the District Magistrate in passing the detention order which was passed within 10 days of the receipt of the report of the Superintendent of Police. It was also submitted that the order was not passed mechanically but after due application of mind. It was conceded that the Superintendent of Police gave wrong information regarding the ground No. 8 since from the first information report Annexure-P 17, it is clear that the two accused namely Guddu and Aeyya alias Purushottam entered the house of complainant, after some altercation with the complainant Sunder alias Ram Prasad, came out, took a knife and a sword from Guddu, Ayub and Kisim who were standing near a culvert, went back in the house and caused grievous injury to deceased Kichhar alias Pyarelal. Relying upon the affidavit of District Magistrate, it was contended that copies of First Information Report, crime Register and other material were supplied to the detenu.
9. Learned Additional Advocate General further submitted that even if the information regarding ground No. 8 was wrong, the same may be ignored as non-existent in view of Section 5(a) of the Act. He placed reliance on Meera v. Govt. of Tamil Nadu, and submitted that if any ground is rendered invalid, it is to be treated as non-existent, but the remaining grounds would support the order of detention. It was also submitted that assuming the copies of the First Information Reports were not submitted before the District Magistrate and/or were not supplied to the detenu it would not make much of a differences because the District Magistrate was possessed of the sufficient materials and the detenu was already possessed of these first information reports since the. respective Courts must have furnished the same to him.
10. It was also submitted for the State Government that under the provisions of Section 5(A) of the Act where a person has been detained in pursuance of an order of detention under Section 3 made on two or more grounds, the order shall be deemed to have been made separately on each of such grounds and shall not be deemed to be invalid or inoperative merely because on or some of the grounds is or are vague, non-existent, not relevant, not proximately connected with such person, or invalid for any other reason whatsoever, the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
11. The District Magistrate has filed an affidavit stating that he had passed the order under Section 3(2) of National Security Act on 4-5-94 and the copy of the order along with documents including first information reports, the details of crime committed by the detenu were supplied on 5-5-94. It is noteworthy that the original records produced before us do not have the copies of the first information reports. The District Magistrate by his memo dated 4-5-94 has informed the detenu in pursuance of provisions of Section 3 of National Security Act that the detention order has been made against the detenu on the grounds which were attached and the particulars which have bearing on the matter were specified in the schedule given below. The detenue was also apprised of his right to make a representation to the State Government/Secretary Government of India etc. The schedule contains the list of following documents supplied to the detenue.
1. Grounds of detention dated 4-5-1994.
2. Report of Superintendent of Police, Jabalpur,
3. True copy of first information report case No crimes No. 89/91, 92/91, 353/91, 252/92, 224/92, 223/92, 286/93 and 284/93.
By another letter which purports to be a translation of the above referred letter shows in the schedule as :-
(1) Grounds of detention dated 4-5-1994.
(2) Report of Superintendent of Police. Jabalpur.
(3) Copy.
It would be important to note here that the words are deleted from the item No. 3 of schedule, it has been added in the hand-writing of some one ‘Wakal Jarayam 89/91,92/91, 259/91. 224/92, 223/92, 286/93 and 284/93″. This we have mentioned in details to show that prima-facie, the affidavit of the District Magistrate is far from being true and is misleading. Since the copies of the first information reports were never produced before the District Magistrate he could not have supplied the copies to the detenue. Even the letter of the District Magistrate clearly states that only Jarayam Wakel were supplied to the detenue and not the first information reports. The affidavit if the District Magistrate which exhibits a sorry state of affairs establishes non-application of mind and would effect his subjective satisfaction.
12. We fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against the detenue we also fail to understand as to how the cryptic and cavelier entries in the crime register would be a substitute for the material allegations which contained in the first information report. We are not saying that in every case, non-production of the first information report before the District Magistrate would vitiate his order, but in the instant case, it would certainly vitiate the order because ground No. 8 is factually wrong and misleading. The subjective satisfaction of the District Magistrate is vitiation.
13. The last crime was committed on 3-6-1993 and the detention order was passed on 4-5-1994. after a lapse of eleven months. Shri Soni pressed into service the judgment of the Gujarat High Court in Makdum Abdul Majid Sheikh v. State of Gujarat. (1993) 2 Crime 407. The Gujarat High Court, con sidering the various Supreme Court judgments, came to the conclusion that –
(a) The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order.
(b) There can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention.
(c) The test of proximity is not rigid or mechanical test to be blindly applied by merely the number of months between “offending acts and the order of detention.
(d) Prejudicial activity or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of a person is necessary.
(e) No authority, acting rationally, can be satisfied, subjectively or otherwise of future mischief merely because long age the detenu had done some thing evil.
(f) When an unreasonable period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the two, but such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there is no-real nexus between the two.
(g) Unexplained long delay will be fatal to the plea of subjective satisfaction
It further held that –
“In some case a gap of some months may not be said to be fatal. In some case it cannot be said that merely because long lapse of time between the registration of the case and the order of detention, the subjective satisfaction would be rendered non genuine and sham but all these are the questions of fact”.
14. The learned additional Advocate General has placed reliance upon Gora v. State of West Bengal, . The Supreme Court has held that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a principle evolved by the court for the purpose of determining the main question whether the past activities of the detenu are such that therefrom a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it sub serve that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organized operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future. Accordingly, the live link or the close proximity or the nexus between the last incident and the order of detention was considered to be of importance.
15. In Shri Shiv Ratan Makim v. Union of India, the Supreme Court held that there should not be unreasonable delay between the acts committed by the detenu and the order of detention. The Supreme Court was further of the opinion that no hard and fast rule regarding the proximity or live link can be laid down. In Hemlata v. State of Maharashtra, AIR 1982 SC 81 : (1982 Cri LJ 150) the Supreme Court was of the opinion that if there is delay, the same must be explained. In Yogendra Murari v. State” of U.P., , the Supreme Court held that in each case facts must be considered but in any case, delay has to be explained and unless the delay is explained properly, the order of detention would be vitiated, In T. A. Abdul Rahman v. State of Kerala, , the Supreme Court observed that the question whether the prejudicial activities of a person necessitating an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinize whether the detaining authority has satisfactorily explained such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case.
16. In the instant case, the last offence was committed on 3-6-1993 and the detention order was passed on 4-5-1994: No explanation is forthcoming in the return. It is argued that the S.P.’s report states that the detenu was absconding and case was filed under Section 299, Cr. P.C. The period during which he was allegedly absconding is not disclosed. In these circumstances, we are of the opinion that the live link between the alleged incident or the series of incidence and the detention order is snapped and there is no proximity between the crime committed and the order of detention.
17. In this view, it is unnecessary for us to consider the other contentions urged by the petitioner.
18. For the above reasons, the detention order (Annexure-P-1) is liable to be and is hereby quashed. If the detenu is not wanted in any other crime, he be released immediately.