Full Judgment Text
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PETITIONER:
VASHISHT NARAIN KARWARIA
Vs.
RESPONDENT:
STATE OF U.P. AND ANR.
DATE OF JUDGMENT28/03/1990
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1990 AIR 1272 1990 SCR (2) 212
1990 SCC (2) 629 JT 1990 (1) 566
1990 SCALE (1)604
ACT:
National Security Act, 1980: Section 3(3), 5A: Preven-
tive Detention--subjective satisfaction--Copies of police
reports? alleging that detenu is a hardened criminal and
habitual offender against whom many criminal cases are
registered, placed before the detaining authority while only
one criminal case was registered against the detenu--Held
Detention order is vitiated for taking into consideration
extraneous material.
Constitution of India, 1950: Article 22(5)--Preventive
Detention --Detention order--Grounds and documents communi-
cated to detenu --No details or particulars .furnished
supporting allegations--Whether deprival of making an effec-
tive and purposeful representation.
HEADNOTE:
The petitioner was detained under section 3(3) of the
National Security Act, 1980, under an order passed by the
detaining authority after consideration of the documents
placed before it by the sponsoring authority alleging that
the detenu was a hardened criminal and habitual offender
against whom many cases were registered. The documents
placed before the detaining authority were also served on
the detenu along with the ground of detention.
The appellant filed a writ of Habeas Corpus in the High
Court challenging the validity of the detention which was
dismissed. Hence this appeal. The appellant also filed a
writ petition in this Court challenging his detention. In
this appeal it was contended on behalf of the appellant that
the detaining authority had acted on irrelevant and extrane-
ous matters therefore the detention order is liable to be
quashed. On behalf of the respondent it was contended that
the order of detention was not invalid merely because some
extraneous materials were placed before the detaining au-
thority since the impugned order could be sustained on the
material set out in the grounds of the detention itself.
Allowing the appeal and disposing the Writ Petition, this
Court,
213
HELD: 1. The averments made in the documents, the copies
of which are furnished to the detenu along with grounds of
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detention unequivocally and clearly spell out that the
detenu is a hardened criminal, having a gang under his
control often committing heinous crimes, that many cases are
against the detenu are registered in various police stations
and that he is in the habit of committing offences. These
averments which are extraneous touching the character of the
detenu though not referred to in the grounds of detention,
might have influenced the mind of the detaining authority to
some extent one way or other in reaching the subjective
satisfaction to take the decision of directing the detention
of detenu. Had these extraneous materials not been placed
before the detaining authority, he might or might not have
passed this order. Therefore the detention order is suffer-
ing from the vice of consideration of extraneous materials
vitiating the validity of the order. detention order is
therefore quashed. [217B-E]
Ram Krishna Paul v. The Government Of West Bengal &
Ors., [1972] 1 SCC 570; Smt. Pushpa v. Union of India &
Ors., [1980] Supp. SCC 391; Merugu Satyanarayana v. State of
A.P. & Ors., [1982] 3 SCC 301 and Mehboob Khan Nawab Khan
Pathan v. Police Commissioner, Ahmedabad & Anr., [1989] 3
SCC 568; followed.
2. Section 5A provides that where there are two or more
grounds covering various activities of the detenu, each
activity is a separate ground by itself and if one of the
grounds is vague, non-existent, not relevant, not connected
or not proximately connected with such person or invalid for
any other reason whatsoever, then that will not vitiate the
order of detention. In the instant case the impugned order
has not been made on two or more grounds covering various
activities of the detenu. but has been passed on the sole
ground relatable to a single incident. The conclusion ar-
rived at is only on the basis that the extraneous materials
placed before the detaining authority might have influenced
the mind of the detaining authority, but not on the ground
that one of the grounds of the detention order has become
invalid or inoperative for the reasons mentioned in Section
5(A)(a). Therefore the submission that the factual material
set out in the grounds of detention alone led to the passing
of the order with a view to preventing the detenu from
acting in any manner prejudicial to the public order is not
correct. [218B-D]
Prakash Chandra Mehta v. Commissioner and Secretary
Government of Kerala & Ors., [1985] Supp. SCC 144; distin-
guished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 219
of 1990.
214
WITH
Writ Petition (Crl.) No. 92 of 1990.
From the Judgment and Order dated 12.12.1989 of the
Allahabad High Court in Habeas Corpus W.P. No. 13644 of
1989.
A. Jaitley, Additional Solicitor General, R.K. Jain,
Yogeshwar Prasad, Gaurav Jain, Abha Jain, D. Bhandari, Ms.
A. Subhashini and R.B. Misra for the Appearing Parties.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. Leave granted in the Special
Leave Petition.
This appeal is against the judgment and order dated
12.12.89 in Habeas Corpus Writ Petition No. 13644/89 passed
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by the High Court at Allahabad dismissing the writ petition
filed by the appellant, Vashisht Narain Karwaria, the detenu
herein.
The District Magistrate, Allahabad, in exercise of
powers conferred on him under Section 3(3) of the National
Security Act 1980 (hereinafter referred to as ’Act’) passed
the impugned order of detention on 31.3.88 against the
detenu on reaching his requisite subjective satisfaction on
consideration of the materials placed before him that it had
become necessary to pass the detention order with a view to
preventing the detenu from acting in any manner prejudicial
to the maintenance of public order.
The salient and material facts which necessitated the
detaining authority to pass the impugned order, as set out
in the grounds of detention are as follows:
On 30.3.1988 at about 3.30 P.M. the auction of liquor
shops for the sale of Indian made foreign liquor was held in
the campus of Collectorate at Allahabad. A large number of
bidders were present. Among them, the detenu along with his
three other associates also participated in the auction. At
about 3.30 P.M. the auction of the liquor shop within the
area of Mooratganj took place. For this shop the first bid
was from one Ajai Kumar for Rs. one lakh. The next bid for
the same shop was of Chedi Lal for Rs. one lakh and ten
thousand. The moment the said two persons made their bid,
the detenu along with his associates stood UP in ,the
,presence of all prospective bidders and told Ajai Kumar,
Chedi Lal and others that the above said shop fell within
his area and, therefore, if anybody dared to bid the shop in
the auction he Would shoot him and also the entire members
of his
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family. So saying the detenu along with his associates
advanced towards Ajai Kumar and Chedi Lal threatening them
with dire consequences. This created terror and panic among
all the bidders. As the situation was becoming worse, Shri
Rana Pratap Singh, Station House Officer along with other
police officials advanced towards the detenu and his associ-
ates to apprehend them. On seeing the police party advanc-
ing, the detenu fired at the police party with his country
made pistol. Fortunately, no body was hurt. The detenu,
however, escaped on being chased by the police party. The
detenu fired another two shots and hurled bombs on the
police party while fleeing away. His repeated firing and
explosion of bombs created further panic and the people
assembled for bidding the auction started running away and
the nearby shopkeepers pulled down their shutters of their
shops. The vehicles parked there fled away. Thus the public
order was completely disrupted. In connection with this
incident, a case was registered in crime No. 221/88 in the
Colenolganj Police Station under Section 307 and 506 of
Indian Penal Code. The case is still under investigation.
On the basis of the above material the detaining author-
ity on being satisfied that there was apprehension of com-
mission of act of violence at the hands of the detenu, which
would be prejudicial to the maintenance of public order,
passed this impugned order and directed the detenu to be
kept under detention.
Admittedly, along with his ground of detention 4 docu-
ments were enclosed and served on the detenu. Those docu-
ments are:
(1) Report of S.S.P. Allahabad dated 31.3. 1988.
(2) Report of the S.H.O. Colenolganj Police Station.
(3) Copy Chik No.199, Crime No. 221 of 1988 under Section
307/506 I.P.C. in Colenolganj Police Station, Allahabad.
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(4) Copy of G.D. No. 37 relating to the aforesaid offence.
The detenu challenged the validity of this order
before the High Court, but became unsuccessful. Feeling
aggrieved by the impugned judgment, this appeal is now
preferred.
Mr. R.K. Jain, the learned Sr. counsel appearing on
behalf of the appellant made a number of submissions at the
hearing, one of which being that the sponsoring authority
had placed
216
certain irrelevant and extraneous matters before the detain-
ing authority which should have influenced the mind of the
detaining authority and stealthily crept into the decision
of the said authority directing detention of the detenu and
as such the impugned order is liable to be quashed. This
argument was resisted by Shri Dalveer Bhandari, the learned
counsel appearing on behalf of the respondents that the
detaining authority had not considered any other material
save the material referred to in the grounds of detention’.
Therefore, the short question for our consideration is
whether the sponsoring authority has placed before the
detaining authority any extraneous and irrelevant materials
which might have influenced the mind of the detaining au-
thority. It cannot be disputed--indeed there is none that
the four documents referred to above, copies of which were
furnished to the detenu have been placed before the detain-
ing authority. It follows that the detaining authority
passed this order only on consideration of the above said
materials. In the confidential letter dated 31st March 1988
sent by the Senior Superintendent of Police, Allahabad to
the detaining authority it is stated thus:
"It is stated that the accused is a hardened criminal and
has a gang. Such persons are committing heinous crimes often
which adversely affects the public order. There are many
cases/offences against accused Vashistha narayan registered
in various police stations. It has become his habit to
commit offences .......... Hence I recommend that an order
for atleast 12 months detention be passed against Shri
Vashisht Narayan Karwaria alias Bhukkhal son of late Shri
Jagat Narayankarwaria, the aforesaid accused under Section
3(2) of the above mentioned Act."
The preamble of the letter submitted by the Station
House Officer of Colenolganj, Allahabad dated 31.3. 1988 to
the Senior Superintendent of Police, Allahabad reads as
follows:
"It is submitted that Shri Vashisht Narayan Karwaria alias
Bhukkal, the aforesaid accused is a hardened criminal and
has a gang. In his gang his son Kapil and two other big
offenders Ram Chandra Tripathi and Santosh Kumar Tripathi
son of Gaya Prasad, resident of Ganspur, P.S. Poormufti,
District Allahabad, are included. These
217
people often used to commit heinous crimes, by which terror
and fear prevails in the people. Many crimes are registered
against Vashisht Narayan Karwaria in many Police Stations."
The above averments made in the above two letters, the
copies of which are furnished to the detenu along with
grounds of detention unequivocally and clearly spell out
that the detenu is a hardened criminal, having a gang under
his control often committing heinous crimes, that many cases
against the detenu are registered in various police stations
and that he is in the habit of committing offences. No
doubt, these averments are not made mention of in the
grounds of detention. But can it be said that these materi-
als placed before the authority might not have influenced
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the mind of the detaining authority in taking the decision
of detaining the detenu? In our view, the above averments
which are extraneous touching the character of the detenu
though not referred to in the Grounds of detention, might
have influenced the mind of the detaining authority to some
extent one way or other .in reaching the subjective satis-
faction to take the decision of directing the detention of
the detenu. As rightly pointed out by Mr. Jain, had these
extraneous materials not been placed before the detaining
authority, he might or might not have passed this order.
Therefore, we have to hold that the detention order is
suffering from the vice of consideration of extraneous
materials vitiating the validity of the order. There are
several pronouncements of this Court, on this point, of
which we will make mention of to the following decisions:
Ram Krishna Paul v. The Government of West Bengal &
Ors., [1972] 1 SCC 570: Smt. Pushpa v. Union of India &
Others, [1980] Supp. SCC 39 1; Merugu Satyanarayana v. State
of Andhra Pradesh & Ors., [1982] 3 SCC 30 1 and Mehboob Khan
Nawab Khan Pathan v. Police Commissioner, Ahmedabad and
Another, [1989] 3 SCC 568.
Mr. Dalveer Bhandari relying on Section 5A of the Act
urged that the order of detention should not be deemed to be
invalid or inoperative merely on the ground that some extra-
neous materials were placed before the detaining authority
since those alleged extraneous materials have no bearing on
the validity of this impugned order which can be sustained
on the material set out in the Grounds of detention itself.
Placing reliance on decision of this Court in Prakash Chan-
dra Mehta v. Commissioner and Secretary, Govt. of Kerala and
Others, [1985] Supp. SCC 144 wherein it has been observed
that the ’grounds’ under Article 22(5) of the Constitution
do not mean mere factual
218
inferences but mean factual inferences plus factual material
submitted that in the present case the factual material set
out in the grounds of detention alone led to the passing of
the order with a view to preventing the detenu from acting
in any manner prejudicial to the maintenance of public
order. We are unable to see any force in the above submis-
sion. What Section 5A provides is that where there are two
or more grounds covering various activities of the detenu,
each activity is a separate ground by itself and if one of
the grounds is vague, nonexistent, not relevant, not con-
nected or not proximately connected with such person or
invalid for any other reason whatsoever, then that will not
vitiate the order of detention.
It is not the case that this impugned order has been
made on the two or more grounds covering various activities
of the detenu, but on the other hand the order has been
passed on the sole ground relatable to a single incident.
The conclusion arrived at by us is only on the basis that
the aforesaid extraneous materials, placed before the de-
taining authority might have influenced the mind of the
detaining authority, but not on the ground that one of the
grounds of the detention order has become invalid or inoper-
ative for the reasons mentioned in Section 5(A)(a).
The next submission made by Mr. Jain on behalf of the
detenu is on the basis of Ground Nos. VII & VIII of the
Special Leave Petition in which the appellant has expressed
his grievance that he had been deprived of making an effec-
tive and purposeful representation as envisaged under Arti-
cle 22(5) of the Constitution of India since no particulars
or details are given in documents I & H enclosed with the
grounds of detention in regard to the alleged ’many
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cases/offences’ said to have been registered in various
police stations against him and in regard to the allegations
that he was a hardened criminal and had a gang often commit-
ting heinous crimes and that it had become the habit of the
detenu to commit offences. In support of this contention
reference was made to the decision in Mehboob Khan Nawab
Khan Pathan’s case (ibid). No denial is made in the counter
filed on behalf of the first respondent. This latter submis-
sion, in our opinion, cannot be rejected as having no force.
In the result, we without going into the merits of the
other contentions allow this appeal, quash the detention
order and direct the detenu to be set at liberty forthwith.
219
ORDER
The Writ Petition is connected with the Criminal Appeal No.
219 of 1990 arising out of SLP (Crl.) No. 2473/89. The
detention order under challenge in both the proceedings is
the one passed by the District Magistrate, Allahabad on
31.3.1988 under Section 3(.3) of the National Security Act
1980. As we have now set aside the order of detention in the
Criminal Appeal, no order is necessary in this Writ Peti-
tion. The Writ Petition is disposed of accordingly.
T.N.A. Appeal allowed and
Petition disposed of.
220