Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
ASHOK KUMAR
Vs.
RESPONDENT:
DELHI ADMINISTRATION & ORS.
DATE OF JUDGMENT05/05/1982
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
MISRA, R.B. (J)
CITATION:
1982 AIR 1143 1982 SCR (3) 707
1982 SCC (2) 403 1982 SCALE (1)459
CITATOR INFO :
F 1982 SC1315 (36)
RF 1987 SC 998 (1)
R 1987 SC2332 (19)
RF 1988 SC 208 (11)
R 1989 SC 764 (14)
F 1989 SC1703 (19)
APL 1990 SC 231 (9)
F 1990 SC 496 (8)
R 1990 SC1086 (6,14)
RF 1992 SC 687 (8)
D 1992 SC 979 (11,16)
RF 1992 SC1900 (8)
ACT:
National Security Act 1980, Ss. 3 and 8 and
Constitution of India 1950 Article 22(5).
Detention Order-Period of detention-Specification of-
Whether mandatory.
Grounds of detention-Furnishing of-Delay of two days-
Detention order-Whether rendered invalid.
"Public Order"-"Law and order"-Distinction between.
Words & Phrases-"As soon as may be"-"As soon as
practicable"-Meaning of-National Security Act 1980; S. 8 and
Constitution of India 1950, Article 22(5).
HEADNOTE:
The petitioner who was held at the Central Jail in
connection with some of the offences committed by him, was
served with an order of detention passed by the Commissioner
of Police, under sub-section (2) of section 3 of the
National Security Act 1980, stating that his detention was
necessary with a view to preventing him from "acting in any
manner prejudicial to the maintenance of public order." Two
days later he was served with the grounds of detention and
copies of documents and statements relied upon in the
grounds of detention. The Commissioner made a report to the
Administrator about the passing of the detention order
together with the grounds of detention. The Administrator
approved the detention order and sent the report to the
Central Government, and also informed the petitioner that
the order of detention had been approved by him and that he
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
had a right to make a representation. The case of the
petitioner was placed before the Advisory Board who was of
the opinion that there was sufficient cause for his
detention. The Administrator confirmed the detention order
under sub-section (1) of section 12 and further directed
under section 13 of the Act that the petitioner be detained
for a period of 12 months from the date of his detention.
In his petition under Article 32 of the Constitution
the petitioner contended that: (1) the unexplained delay of
two days in furnishing the grounds of detention was a denial
of the constitutional imperatives of Art. 22(5) read with
section 8 of the Act which cast a duty on the detaining
authority to afford the detenu "the earliest opportunity of
making a representation against the order of detention", (2)
there was a failure on the part of the Commissioner as well
as the
708
Administrator to apply their minds and specify the period of
detention while making the order of detention under sub-
section (2) of section 3 of the Act, and (3) the grounds of
detention served were not connected with "maintenance of
public order", but relate to "maintenance of law and order".
Dismissing the petition,
^
HELD: 1. (i) Sub-section (1) of section 8 of the Act
which is in conformity with Article 22(5) provides that
where a person is detained in pursuance of a detention order
made under sub-section (1) or sub-section (2) of section 3
of the Act, the authority making the order shall, "as soon
as may be", but ordinarily not later than five days and in
exceptional circumstances and for reasons to be recorded in
writing not later than ten days from the date of detention,
communicate to him the grounds on which the order has been
made. Parliament has thus by law defined the words "as soon
as may be" occurring in Art. 22(5) as meaning normally a
period of five days. [711 F]
(ii) The law is that the detaining authority must, as
soon as may be, i.e. as soon as practicable, communicate to
the detenu the grounds on which the order of detention has
been made. That period has been specified by section 8 of
the Act to mean a period ranging from five to ten days
depending upon the facts and circumstances of each case.
[712 D]
In the instant case, the petitioner was served with the
grounds of detention within a period of two days i.e. within
the period allowed by section 8 of the Act and that was "as
soon as practicable." The order of detention is therefore
not rendered invalid merely because the grounds of detention
were furnished two days later. [712 E-F]
(iii) In A.K. Roy v. Union of India, [1982] 1 S.C.C.
271 this Court has not laid down that the detaining
authority making an order of detention under sub-section (1)
or sub-section (2) of section 3 of the Act or the authority
approving of the same, must specify the period of detention
in the order. [714 B]
2. Under the scheme of the Act, the period of detention
must necessarily vary according to the exigencies of each
case i.e. the nature of the prejudicial activity complained
of. It is not that the period of detention must in all
circumstances extend to the maximum period of 12 months as
laid down in section 13 of the Act. [714 E]
3.(i) The true distinction between the areas of ’public
order’ and ’law and order’ lies not in the nature or quality
of the act, but in the degree and extent of its reach upon
society. The distinction between the two concepts of ’law
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
and order’ and ’public order’ is a fine one but this does
not mean that there can be no overlapping. Acts similar in
nature but committed in different contexts and circumstances
might cause different reactions. In one case it might affect
specific individuals only and therefore touch the problem of
’law and order’ while in another it might affect ’public
order’. The act by itself therefore is not determinant of
its own gravity. It is the potentiality of the act to
disturb the even
709
tempo of the life of the community which make it prejudicial
to the ’maintenance of public order.’ [715 C-E]
(ii) Preventive detention is devised to afford
protection to society. The object is not to punish a man for
having done something but to intercept before he does it and
to prevent him from doing. Justification for such detention
is suspicion or reasonable probability and not criminal
conviction which can only be warranted by legal evidence. It
follows that any preventive measures, even if they involve
some restraint or hardship upon individuals, do not partake
in any way of the nature of punishment, but are taken by way
of precaution to prevent mischief to the State. [715 F-G]
(iii) The Executive can take recourse to its power of
preventive detention in those cases where the Court is
genuinely satisfied that no prosecution could possibly
succeed against the detenu because he is a dangerous person
who has overawed witnesses or against whom no one is
prepared to depose. [716 B]
(iv) What essentially is a problem relating to ’law and
order’ may due to sudden sporadic and intermittent acts of
physical violence on innocent victims in a metropolitan city
result in serious ’public disorder’. It is the length,
magnitude and intensity of the terror wave, unleashed by a
particular act of violence creating disorder that
distinguished it as an act affecting ’public order’ from
that concerning ’law and order’. Some offences primarily
injure specific individuals and only secondarily the public
interest, while others directly injure the public interest,
and affect individuals only remotely. [717 D-E]
In the instant case the particular acts enumerated in
the grounds of detention clearly shows that the activities
of the detenu cover a wide field and fall within the
contours of the concept of ’public order’. [717 G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
8061 of 1981.
(Under article 32 of the Constitution of India.)
Dr. N.M. Ghatate for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
SEN, J. By this petition under Art. 32 of the
Constitution, one Ashok Kumar seeks issuance of a writ of
habeas corpus challenging the validity of the order of
detention dated August 11, 1981, passed by the Commissioner
of Police, Delhi under sub-s. (2) of s. 3 of the National
Security Act, 1980 (for short ’the Act’) on being satisfied
that his detention was necessary with a view to preventing
him from "acting in any manner prejudicial to the
maintenance of
710
public order". The main issue is as to whether the
activities of the petitioner fall within the realm of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
’public order’ or ’law and order’.
It appears that on August 12, 1981 while the detenu was
held at the Central Jail, Tihar in connection with some of
the offences committed by him, he was served with the
aforesaid order of detention passed a day earlier i.e. on
August 14, 1981. Two days later i.e. on August 14, 1981 he
was furnished with the grounds of detention as well as with
copies of documents and statements relied upon in the
grounds of detention. It seems that the Commissioner of
Police forthwith made a report to the Administrator about
the passing of the detention order together with the grounds
of detention and all other particulars bearing on the same.
The said report and the other particulars were considered by
the Administrator and he, by his order dated August 20,
1981, approved of the detention order under sub-s. (4) and
sent a report to the Central Government as required under
sub-s. (5) of s. 3 of the Act. The Administrator by his
order dated August 20, 1981 informed the petitioner that his
order of detention had been approved by him and that he had
a right to make a representation. The case of the petitioner
was placed before the Advisory Board who was of the opinion
that there was sufficient cause for the detention of the
petitioner and accordingly the Administrator by his order
dated September 15, 1981 confirmed the aforesaid detention
order under sub-s. (1) of s. 12 and further directed under
s. 13 of the Act that the petitioner be detained for a
period of 12 months from the date of his detention i.e.
w.e.f. August 12, 1981.
In support of the petition, four points are canvassed.
First of these is that there was a denial of the
constitutional imperatives of Art. 22(5) read with s. 8 of
the Act which cast a duty on the detaining authority to
afford the detenu "the earliest opportunity of making a
representation against the order of detention" inasmuch as
there was unexplained delay of two days in furnishing the
grounds of detention; secondly, there was a failure on the
part of the Commission of Police as well as the
Administrator to apply their mind and specify the period of
detention while making the order of detention under sub-s.
(2) of s. 3 of the Act and therefore the impugned order of
detention is invalid; thirdly, the grounds of detention
served on the detenu are not connected with "maintenance of
public order", but they relate to "maintenance of law and
order" and fourthly, the facts as set out in the grounds of
detention did not
711
furnish sufficient nexus for forming the subjective
satisfaction of the detaining authority and further they
were vague, irrelevant and lacking in particulars. We are
afraid, none of these contentions can prevail.
There is no substance in the contention that there was
denial of the constitutional imperatives of Art. 22(5) read
with s. 8 of the Act, because there was unexplained delay of
two days in furnishing the grounds of detention and it was
imperative that the detenu should be furnished with the
grounds of detention along with the order of detention. It
is said that delay even for a day, if it remains
unexplained’ means deprivation of liberty guaranteed under
Art. 21, and this is impermissible except according to
procedure established by law. The contention that the
constitutional safeguards in Art. 22(5) were not complied
with merely because the detenu was not ’simultaneously’
furnished with the grounds of detention along with the order
of detention and was thereby deprived of the right of being
afforded ’the earliest opportunity of making a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
representation against the order of detention’ as enjoined
by Art. 22(5) read with with s. 8 of the Act, cannot be
accepted. The language of Art. 22(5) itself provides that
where a person is detained in pursuance of an order made
under any law providing for preventive detention, the
authority making the order shall, "as soon as may be",
communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order. Sub-s. (1) of
s. 8 of the Act which is in conformity with Art. 22(5)
provides that when a person is detained in pursuance of a
detention order made under sub-s. (1) or sub-s. (2) of s. 3
of the Act, the authority making the order shall, as soon as
may be, but ordinarily not later than five days and in
exceptional circumstances and for reasons to be recorded in
writing, not later than ten days from the date of detention,
communicate to him the grounds on which the order has been
made. Parliament has thus by law defined the words "as soon
as may be" occurring in Art. 22(5) as meaning normally a
period of five days.
The matter is no longer res integra. Chandrachud, C.J.
in A.K. Roy v. Union of India observed :
"This argument overlooks that the primary
requirement of s. 8(1) is that the authority making the
order of
712
detention shall communicate the grounds of detention to
the detenu "as soon as may be". The normal rule
therefore is that the grounds of detention must be
communicated to the detenu without avoidable delay. It
is only in order to meet the practical exigencies of
administrative affairs that the detaining authority is
permitted to communicate the grounds of detention not
later than five days ordinarily and not later than 10
days if there are exceptional circumstances. If there
are any such circumstances, the detaining authority is
required by s. 8(1) to record its reason in writing. We
do not think that this provision is open to any
objection."
Under our constitutional system, therefore, it is not
the law that no person shall be detained in pursuance of an
order made under a law providing for preventive detention
without being informed of the grounds for such detention.
The law is that the detaining authority must, as soon as may
be, i.e. as soon as practicable, communicate to the detenu
the grounds on which the order of detention has been made.
That period has been specified by s. 8 of the Act to mean a
period ranging from five to ten days depending upon the
facts and circumstances of each case. Admittedly, the detenu
here was served with the grounds of detention within a
period of two days i.e. within the period allowed by s. 8 of
the Act and that was "as soon as practicable".
This is not a case where the detenu alleges that his
detention was for non-existent grounds. Nor does he
attribute any mala fides on the part of the detaining
authority in making the order. The order of detention is
therefore not rendered invalid merely because the grounds of
detention were furnished two days later.
We find it difficult to conceive of any discernible
principle for the second submission. It is submitted by
learned counsel appearing for the detenu that the right to
make a representation under Art. 22(5) of the Constitution
read with s. 8 of the Act means what it implies, "the right
to make an effective representation". It is urged that
unless the period of detention is specified, there can be no
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
meaningful representation inasmuch as the detenu had not
only the right of making a representation against the order
for his detention but also the period of detention. On this
hypothesis, the contention is that the impugned order of
detention is rendered invalid. The
713
entire submission rests on the following observations of
Chandrachud, C.J. in A.K. Roys case, supra :
"We should have thought that it would have been
wrong to fix a minimum period of detention, regardless
of the nature and seriousness of the grounds of
detention. The fact that a person can be detained for
the maximum period of 12 months does not place upon the
detaining authority the obligation to direct that he
shall be detained for the maximum period. The detaining
authority can always exercise its discretion regarding
the length of the period of detention."
The majority decision in A.K. Roys case, supra, as
pronounced by Chandrachud, C.J. is not an authority for the
proposition that there is a duty cast on the detaining
authority while making an order of detention under sub-s.
(1) or (2) to specify the period of detention. The learned
Chief Justice made the aforesaid observations while
repelling the contention advanced by learned counsel for the
petitioner that s. 13 of the Act was violative of the
fundamental right guaranteed under Art. 21 read with Art. 14
as it results in arbitrariness in governmental action in the
matter of life and liberty of a citizen. The challenge to
the validity of s. 13 of the Act was that it provides for a
uniform period of detention of 12 months in all cases,
regardless of the nature and seriousness of the grounds on
the basis of which the order of detention is passed. In
repelling the contention, the learned Chief Justice observed
that there was no substance in that grievance because, any
law of preventive detention has to provide for the maximum
period of detention, just as any punitive law like the Penal
Code has to provide for the maximum sentence which can be
imposed for any offence. In upholding the validity of s. 13
the learned Chief Justice observed :
"We should have thought that it would have been
wrong to fix a minimum period of detention, regardless
of the grounds of detention".
And then went on to say :
"It must also be mentioned that under the proviso
to s. 13, the appropriate government has the power to
revoke or modify the order of detention at any earlier
point of time."
714
It would thus be clear that the Court was there
concerned with the validity of s. 13 of the Act and it is
not proper to build up an argument or by reading out of
context just a sentence or two. There is no doubt in our
mind that the Court has not laid down that the detaining
authority making an order of detention under sub-s. (1) or
sub-s. (2) of s. 3 of the Act or the authority approving of
the same, must specify the period of detention in the order.
It is plain from a reading of s. 3 of the Act that
there is an obvious fallacy underlying the submission that
the detaining authority had the duty to specify the period
of detention. It will be noticed that sub-s. (1) of s. 3
stops with the words "make an order directing that such
person be detained", and does not go further and prescribe
that the detaining authority shall also specify the period
of detention. Otherwise, there should have been the
following words added at the end of this sub-section "and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
shall specify the period of such detention". What is true of
sub-s. (1) of s. 3 is also true of sub-s. (2) thereof. It is
not permissible for the courts, by a process of judicial
construction, to alter or vary the terms of a section. Under
the scheme of the Act, the period of detention must
necessarily vary according to the exigencies of each case
i.e. the nature of the prejudicial activity complained of.
It is not that the period of detention must in all
circumstances extend to the maximum period of 12 months as
laid down in s. 13 of the Act.
The most crucial question on which the decision must
turn is whether the activities of the detenu fall within the
domain of ’public order’ or ’law and order’. The contention
is that the grounds of detention served on the detenu are
not connected with ’maintenance of ’public order’ but they
relate to ’maintenance of law and order’ and therefore the
impugned order of detention purported to have been passed by
the detaining authority in exercise of his powers under sub-
s. (2) of s. 3 of the Act is liable to be struck down. It is
urged that the facts alleged in the grounds of detention
tend to show that he is engaged in criminal activities and
it is an apparent nullification of the judicial process if,
in every case where there is a failure of the prosecution to
proceed with a trial or where the case ends with an order of
discharge or acquittal, the Executive could fall back on its
power of detention because the verdict of the Court goes
against it. Put differently, the contention is that resort
cannot be had to the Act to direct preventive detention of a
person under sub-s. (2) of s. 3 of the Act for the Act is
not a law for the
715
preventive detention of gangsters and notorious bad
characters. The detention here, it is said, is not so much
for the "maintenance of public order" but as a measure for
the past criminal activities of the detenu. It is further
urged that the grounds of detention have no rational
connection with the object mentioned in the Act for which a
person may be detained. Further, that there is no sufficient
nexus between the preventive action and the past activities
of the detenu which are not proximate in point of time but
are too remote. There is no substance in any of these
contentions advanced.
The true distinction between the areas of ’public
order’ and ’law and order’ lies not in the nature or quality
of the Act, but in the degree and extent of its reach upon
society. The distinction between the two concepts of ’law
and order’ and ’public order’ is a fine one but this does
not mean that there can be no overlapping. Acts similar in
nature but committed in different contexts and circumstances
might cause different reactions. In one case it might affect
specific individuals only and therefore touch the problem of
law and order, while in another it might affect public
order. The act by itself therefore is not determinant of its
own gravity. It is the potentiality of the act to disturb
the even tempo of the life of the community which makes it
prejudicial to the maintenance of public order. That test is
clearly fulfilled in the facts and circumstances of the
present case.
Those who are responsible for the national security or
for the maintenance of public order must be the sole judges
of what the national security or public order requires.
Preventive detention is devised to afford protection to
society. The object is not to punish a man for having done
something but to intercept before he does it and to prevent
him from doing. Justification for such detention is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
suspicion or reasonable probability and not criminal
conviction which can only be warranted by legal evidence. It
follows that any preventive measures, even if they involve
some restraint or hardship upon individuals, do not partake
in any way of the nature of punishment, but are taken by way
of precaution to prevent mischief to the State. It is a
matter of grave concern that in urbanised areas like cities
and towns and particularly in the metropolitan city of Delhi
the law and order situation is worsening everyday and the
use of knives and firearms has given rise to a new violence.
There is a constant struggle to control the criminal
activities of the persons engaged in such organised crimes
for the maintenance of public
716
order. It is difficult to appreciate the argument that the
detention here is with a view to punish the detenu for a
series of crimes that he is alleged to have committed, but
which the law enforcement agency is not able to
substantiate. There is no reason why the Executive cannot
take recourse to its power of preventive detention in those
cases where the Court is genuinely satisfied that no
prosecution could possibly succeed against the detenu
because he is a dangerous person who has overawed witnesses
or against whom no one is prepared to depose.
The prejudicial activities of the detenu leading to
public disorder, as revealed in the grounds of detention,
consist of a consistent course of criminal record. Although
the criminal activities of the detenu in the past pertained
mostly to breaches of law and order, they have now taken a
turn for the worse. From the facts alleged it appears that
the detenu has taken to a life of crime and become a
notorious character. His main activities are theft, robbery
and snatching of ornaments by the use of knives and
firearms. The area of operation is limited to South Delhi,
such as Greater Kailash, Kalkaji and Lajpat Nagar. A perusal
of the F.I.Rs. shows that the petitioner is a person of
desperate and dangerous character. This is not a case of a
single activity directed against a single individuals. There
have been a series of criminal activities on the part of the
detenu and his associates during a span of four years which
have made him a menace to the society. It is true that they
are facing trial or the matters are still under
investigation. That only shows that they are such dangerous
characters that people are afraid of giving evidence against
them.
To bring out the gravity of the crimes committed by the
detenu, we would just mention four instances. On November
19, 1979 Smt. Anupam Chander of B-5/10, Safdarjang Enclave
reported that she was robbed of her gold-chain near East of
Kailash and on investigation the petitioner along with his
associates was arrested for this high-handed robbery and
there is a case registered against them which is pending
trial. Just a month after i.e. on December 11, 1979, one
Munna of Lajpat Nagar reported that he was robbed of his
wrist-watch and cash by three persons who were travelling in
a three-wheeler. On investigation, the petitioner and his
associate Rajendra Kumar were arrested and the police
recovered the stolen property. They are facing trial in
these cases. On July 18, 1981
717
Kumari G. Radha reported that she had been robbed of her
gold-chain and a pair of tops in Lajpat Nagar at the point
of knife by persons in the age group of 21/22 years. On
investigation, the petitioner and his associate Rajendra
Kumar were arrested and the entire booty was recovered. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
case is still under investigation. It appears that the
detenu was enlarged on bail and two days after i.e. on July
20, 1981, he was again arrested on the report of Smt. Ozha
that she was robbed of her gold-chain near Shanti Bazar,
Khokha Market, Lajpat Nagar by two persons in the age group
of 21-25 years at the point of knife. On investigation, the
petitioner and his companion Rajendra Kumar were arrested
and she identified them to be the culprits and the booty was
recovered from them. The case is under investigation. There
have been similar incidents of a like nature.
What essentially is a problem relating to law and order
may due to sudden sporadic and intermittent acts of physical
violence on innocent victims in the metropolitan city of
Delhi result in serious public disorder. It is the length,
magnitude and intensity of the terror wave unleashed by a
particular act of violence creating disorder that
distinguishes it as an act affecting public order from that
concerning law and order. Some offences primarily injure
specific individuals and only secondarily the public
interest, while others directly injure the public interest
and affect individuals only remotely. The question is of the
survival of the society and the problem is the method of
control. Whenever there is an armed hold-up by gangsters in
an exclusive residential area like Greater Kailash, Kalkaji
or Lajpat Nagar and persons are deprived of their belongings
like a car, wrist-watch or cash, or ladies relieved of their
gold-chains or ornaments at the point of a knife or
revolver, they become victims of organised crime. There is
very little that the police can do about it except to keep a
constant vigil over the movements of such persons. The
particular acts enumerated in the grounds of detention
clearly show that the activities of the detenu cover a wide
field and fall within the contours of the concept of public
order.
The contention that the facts alleged in the grounds of
detention did not furnish sufficient nexus for forming the
subjective satisfaction of the detaining authority and
further that they were vague, irrelevant or lacking in
particulars, cannot be accepted. A bare perusal of the
grounds of detention along with the particulars
718
of the 36 cases furnished in the accompanying chart, shows
that the grounds furnished were not vague or irrelevant or
lacking in particulars or were not adequate or sufficient
for the subjective satisfaction of the detaining authority.
In the result, the petition must fail and is dismissed.
N.V.K. Petition dismissed.
719