Full Judgment Text
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PETITIONER:
SURAJ PAL SAHU
Vs.
RESPONDENT:
STATE OF MAHARASHTRA &ORS.
DATE OF JUDGMENT25/09/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
PATHAK, R.S.
MISRA RANGNATH
CITATION:
1986 AIR 2177 1986 SCR (3) 837
1986 SCC (4) 378 JT 1986 538
1986 SCALE (2)484
CITATOR INFO :
R 1986 SC2090 (5)
RF 1986 SC2173 (18,23)
RF 1987 SC2098 (7)
RF 1988 SC 34 (13,34)
R 1988 SC1175 (6)
R 1988 SC1256 (13)
R 1989 SC2265 (16)
RF 1990 SC1196 (5,13,17)
D 1990 SC1597 (12)
RF 1991 SC1640 (12)
ACT:
National Security Act, 1980-S. 3(2)-Detention Order-
Detenu already in Jail-Validity of detention order-
Principles for determination of-Legal mala fides explained.
HEADNOTE:
The detenu was arrested on December 17, 1985 pursuant
to a detention order dated December 16, 1985 passed under s.
3(2) of the National Security Act, 1980 and the grounds of
detention were served on him the same day. It was alleged in
the order that since the year 1979 the detenu had been
continuously engaging himself in committing acts prejudicial
to the maintenance of supplies and services essential to the
communiy, i.e., removing of permanent way material stocked
along rail lines for maintenance of rail tracks, removing
parts of carriages, wagons and signal telecommunication
materials utilised for repair of railway wagons and
maintenance of signals; that he used to arrange to remove
railway property with the help of his ’gang’ and stock the
same in his godown, himself remaining behind the scence;
that in a number of cases railway properties were loaded and
carried away in a truck owned by the detenu and, thus, the
work of maintenance of the tracks was hampered and quick
movement of the wagons loaded with essential commodities
such as foodgrains, arms, ammunition required by the general
public and the armed forces could not be made.
The grounds indicated six different cases in which the
detenu was involved, out of which in two cases he was
acquitted and four cases were pending against him on the
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date of the passing of detention order. Each of the grounds
indicated in the detention order individually and
collectively was not only germane but also sufficient to
satisfy the detaining authority with a view to preventing
the detenu from acting in any manner prejudicial to the
maintenance of supplies and services essential to the
community and as such it was necessary to detain him.
838
The grounds were communicated to the detenu under s. 8
of the Act read with Art. 22(5) of the Constitution. Copies
of the documents mentioned in the detention order and placed
before the detaining authority were enclosed with the
detention order sent to the detenu. The detenu was informed
that he had a right to make a representation to the State
Government against the order of detention, that he should
address it in the manner indicated therein, that the State
Government would within three weeks from the date of
detention make a reference to the Advisory Board constituted
under s. 9 of the Act to make a report of detention and that
he had right to make the representation to the Advisory
Board and if he wanted he would be heard in person by the
Advisory Board if necessary.
A reference under s. 10 of the Act was made to the
Advisory Board and the Advisory Board considered the
representation dated January 8, 1986 of the detenu at the
time of interviewing him on January 29, 1986. The Board
submitted its report under s. 12(1) of the Act on February
3, 1986, which was received by the Government within the
stipulated period of 7 weeks from the date of the detention,
and the Government after considering the representation of
the detenu and the report of the Advisory Board confirmed
the defention order.
The detenu challenged the detention order under Article
226 of the Constitution alleging: (i) that the order was
mala fide; (ii) that there was total absence of material;
and (iii) that in any event the provisions of National
Security Act, 1980 were not attracted but the provisions of
the Prevention of Black-marketing and Maintenance of
Supplies of Essential Commodities Act, 1980 would be
attracted.
A Division Bench dismissed the petition holding that
permanent way material is essential to the maintenance of
railway track and safety of the railway travelling public;
that there were good grounds for detention and it was not
possible to hold that there were no grounds of detention
relevant for the Act; that only National Security Act was
attracted in the facts and circumstances of the instant
case.
In the Special Leave Petition and the Petition under
Article 32, on behalf of the detenu it was contended; (i)
that the grounds of detention were vague, irrelevant and
non-existent; (ii) that the grounds of detention related to
as far back as 1979 and, therefore, it was not open to the
detaining authority to order detention on those grounds
because in respect of the alleged grounds criminal cases
were pending against him
839
and he had been enlarged on bail; (iii) that when a judicial
authority was satisfied on the materials placed before it
that there were no grounds for keeping the detenu in
detention, on the same materials the executive authority
could not substitute the judicial judgment and order
detention to prevent to detenu from acting in a manner
prejudicial to the interest of the community; (iv) that in
view of the fact that the detenu was on bail, the power of
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preventive detention had been used to defeat the provisions
of the Code of Criminal Procedure (v) that the alleged
grounds were merely allegations of ordinary criminal cases
which either had ended in acquittal or in respect of which
appeals were pending or were pending determination and as
such the formation of the belief by the detaining authority
for the detention order was merely on surmises and on
materials which the detaining authority was not competent to
take note of; (vi) that the pending criminal cases did not
disclose any activity of the detenu prejudicial to the
maintenance of supplied and services essential to the
community. The connection of the detenu with the alleged
offences was not there and as such the satisfaction could
not be there of the detaining authority. The detenu was in
no manner connected with the alleged theft committed by
certain named persons and though the ownership of the truck
attributed to the detenu was not denied or disputed but the
involvement of the detenu did not follow from that fact.
Dismissing the Writ Petition and the Special Leave
Petition,
^
HLED: (1) There was no infraction of any procedural
safeguard engrafted in National Security Act, 1980 and that
there was rational subjective satisfaction arrived at bona
fide on the basis of the materials available to the
detaining authority and the materials had rational nexus
with the purpose and object of the detention as contemplated
by the Act. The detention order was therefore valid. [865A-
B]
(2) In view of the Explanation to s. 3 of the
Prevention of Blackmarketing and Maintenance of Supplies
Act, 1980, (Act 7 of 1980) the expression "acting in any
manner prejudicial to the maintenance of supplies of
commodities essential to the communities" has certain
particular connotation. But in the instant case, the conduct
of the detenu was prejudicial to the maintenance of supplies
and services essential to the community in general and
contemplated by s. 3(2) of the National Security Act and not
in any particular mode contemplated by the Explanation to s.
3(1) of Act 7 of 1980 and as such is not excluded by the
Explanation to sub-s. (2) of s. 3 of the Act. Therefore the
High Court was right in the view it took on this aspect of
the matter. [853B-D]
840
(3) Even the existence of one ground is sufficient to
sustain the detention order. [853F]
(4) An order is mala fide when there is malice in law
although there is no malice in fact. The malice in law is to
be inferred when order is made contrary to the objects and
purposes of the Act. Whether in any particular case this is
so or not must depend upon the facts and circumstances of
the case. The fact that the person sought to be detained is
in fact under detention is a relevant and material factor
but the allegations or the incidents leading to his
detention have also to be borne in mind co-related to the
object of a particular Act under which preventive detention
is contemplated. [854E-F]
(5) The National Security Act, 1980 provides for
preventive detention in certain cases. Power has been given
under s. 3 authorising preventive detention and sub-s. (2)
thereof provides that the Central Government or the State
Government might, if satisfied with respect to any person
that with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order or from
acting in any manner prejudicial to the maintenance of
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supplies and services essential to the community it was
necessary so to do, make an order directing that such person
be detained then the same can be done. The Explanation to
this sub-section makes it clear that the expression "acting
in any manner prejudicial to the maintenance of supplies and
services essential to the community" does not include
"acting in any manner prejudicial to the maintenance of
supplies of commodities essential to the community" as
defined in the Explanation to sub-s. (1) of s. 3 of the
Prevention of Black-marketing and Maintenance of Supplies of
Essential Commodities Act 1980. [854F-H; 855A-B]
(6) Merely on the ground that an accused in detention
as an under-trial prisoner is likely to get bail, an order
of detention under the National Securuity Act should not
ordinarily be passed. If the apprehension of the detaining
authority is true, the bail application has to be opposed
and in case bail is granted, challenge against that order in
the higher forum has to be raised. But this principle will
have to be judged and applied in the facts and circumstances
of each case. Where a person accused of certain offences
whereunder he is undergoing trial or has been acquitted, the
appeal is pending and in respect of which he may be granted
bail may not in all circumstances entitle an authority to
direct preventive detention and the said principle must
apply but where the offences in respect of which the detenu
is acused are so inter-linked and continuous in character
and are of such nature that these affect
841
continuous maintenance of essential supplies and thereby
jeopardise the security of the State, then subject to other
conditions being fulfilled, a man being in detention would
not detract from the order being passed for preventive
detention. [855D-G]
Ramesh Yadav v. District Magistrate, Etah and Others
[1985] 4 SCC 232 followed.
(7) For maintaining supplies throughout the country,
the railways is per se essential and, therefore,
interference with railway lines would be endangering the
maintenance of supplies. [856D]
Mohd. Subrati Alias Mohd. Karim v. State of West Bengal
[1973] 2 SCR 990 at 992 followed.
(8) The past conduct or antecedent history on which the
authority purport to act should ordinarily be proximate in
point of time and have a rational connection with the
conclusion that the detention of the person was necessary.
[861F]
Rameshwar Shaw v. District Magistrate, Burdwan & Anr.
[1964] 4 SCR 921 followed.
(9) Whether an order of detention could be passed
against a person who was in detention or in jail would
always have to be considered in the facts and circumstances
of each case. [864E]
Makhan Singh Tarsikha v. State of Punjab [1964] 4 SCR
932 followed.
(10) Merely because the detaining authority had chosen
to base the order of detention on the discharge of the
detenu by Court for want of evidence it could not be held
that the order was bad in law. This branch of jurisprudence,
as interpreted by this Court, has made it futile for a
detenu to urge that because the ground of detention had been
subject matter of criminal cases which had ended in
discharge, therefore, the order of detention was mala fide.
The basic imperative of proof beyond reasonable doubt did
not apply to the component of subjective satisfaction for
imprisonment for reasons of internal security. There might
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be extreme cases where the Court had held a criminal case to
be false and the detaining authority for want of evidence
claimed to be satisfied about prospective prejudicial
activities based on what a Court had found to be baseless.
There must be a live link between the
842
grounds of criminal activities alleged by the detaining
authority and the purposes of detention. This credible chain
is snapped if there was too long and unexplained interval
between the offending acts and order of detention. If the
detaining authority took the chance of conviction and, when
the Court verdict went against it, fell back on its
detention power to punish one whom the Court would not
convict, it was an abuse and virtual nullification of the
judicial process. But if honestly, finding a dangerous
person getting away with it by over-awing witnesses or
concealing the Commission cleverly, an authority thought on
the material before it that there was need to interdict
public disorder at his instance he might validly direct
detention. [862A-D]
(11) It was always the past conduct, activities or the
antecedent history of a person which the detaining authority
took into account, in making a detention order. No doubt the
past conduct, activities or antecedent history should
ordinarily be proximate in point of time and should have a
rational connection with the conclusion that the detention
of the person was necessary but it was for the detaining
authority who had to arrive at a subjective satisfaction in
considering the past activities and coming to his conclusion
if on the basis of those activities he was to be satisfied
that the activities of the person concerned were such that
he was likely to indulge in prejudicial activities
necessitating his detention. Where an earlier order of
detention was either revoked or had expired, any subsequent
detention order could be passed only on fresh facts arising
after the expiry or revocation of the earlier order. [861F-
H]
Masood Alam Etc. v. Union of the India and Others
[1973] 1 SCC 551 followed.
(12) Mere service of detention order in jail per se is
not bad.
(13) The law of preventive detention is a hard law and
therefore should be strictly construed. Care should be taken
that the liberty of the person was not jeopardised, unless
the case fell squarely within the four corners of the
releyant law. The law of preventive detention is not to be
used merely to clip the wings of the accused who was
involved in a criminal prosecution. Where a person was
enlarged on bail by a competent criminal Court, great
caution should be exercised in scrutinising the validity of
an order of preventive detention which was treated on the
very same charge which was to be tried by the criminal
Court. [863A-B]
Vijay Narain Singh v. State of Bihar & Ors. [1984] 3
SCR 435 followed.
843
(14) 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. If the person is in
detention or is under trial and his conviction is likely but
his conduct comes within the mischief of the Act then the
authority is entitled to take a rational view of the matter.
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The grounds must be there. The decision must be bona fide.
[863D-F]
(15) The fact that a man is not in jail per se would
not be determinative of the factor that order of preventive
detention could not be passed against him. The fact that a
man was found not guilty in a criminal trial would not also
be determinative of the factors alleged therein. All these
factors must be objectively considered and if there are
casual connections and if bona fide belief was formed then
there was nothing to prevent from serving an order of
preventive detention even against the person who was in jail
custody if there is imminent possibility of his being
released and set at liberty if the detaining authority was
duly satisified. [864E-G]
Ramesh Yadav v. District Magistrate, Etah and Others
[1985] 4 SCC 232, Rameshwar Shah v. District Magistrate
Burdwan & Anr. [1964] 4 SCR, 921 and Makhan Singh Tarsikka
v. State of Punjab [1964] 4 SCR 932 distinguished.
Maledath Bharathan Malyali v. The Commissioner of
Police AIR 1950 Bombay 202, Merugu Satyanarayan Etc. Etc. v.
State of Andhra Pradesh and Others [1983] 1 SCR 635, Golam
Hussain Alias Gama v. The Commissioner of Police Calcutta
and Others [1974] 3 SCR 613, Sahib Singh Dugal v. Union of
India, [1966] 1 SCR 313, Mohd. Salim Khan v. Shri C.C. Bose
JUDGMENT:
Bengal [1972] 2 SCC 550, Godavari Shamrao Parulekar v. State
of Maharashtra & Others [1964] 6 SCR 446, Gopi Ram v. State
of Rajasthan AIR 1967 SC 241, Masood Alam Etc. v. Union of
India and Others [1973] 1 SCC 551, Dulal Roy v. The District
Magistrate, Burdwan & Others [1975] 1 SCC 837, Dr.
Ramakrishna Rawat v. District Magistrate, Jabalpur and
Another, [1975] 4 SCC 164 at 167 and 169, The Barium
Chemicals Ltd. & Anr. v. The Company Law Board and Others
[1966] Supp. SCR 311 at 354 and 363, Prakash Chandra Mehta
v. Commissioner and Secretary, Government of Kerala and
Others [1985] Supp. SCC 144 and Shiv Ratan Makim s/o.
Nandlal Makim v. Union of India and Others [1986] 1 SCC 404
considered.
844
&
ORIGINAL/CRIMINAL APPELLATE JURISDICTION: Writ Petition
(Criminal) No. 296 of 1986.
Under Article 32 of the Constitution of India.
with
Special Leave Petition (Criminal) No. 1265 of 1986
From the the Judgment and Order dated 27.2.1986 of the
Bombay High Court in Crl. Writ Petition No. 1 of 1986.
R.K. Garg and Sunil K. Jain for the Petitioner.
S.B. Bhasme, A.S. Bhasme and A.K. Khanwilkar for the
Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Writ Petition No. 296 of 1986
and Sepcial Leave Petition (Criminal) No. 1265 of 1986 are
connected and relate to an order of detention of one Rampal
Sahu dated 16th December, 1985 under section 3(2) of the
National Security Act, 1980 (hereinafter called the said
’Act’). These are dealt with by this judgment.
The said Rampal Sahu (hereinafter called ’the detenu’
was detained by the aforesaid order which was served on him
on 17th December, 1985 with the grounds of detention.
According to the writ petition as well as the special leave
petition the grounds of detention served on the detenu did
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not disclose any violation of the Essential Commodities Act
or Essential Services Maintenance Act. In the premises it is
the contention of the petitioner that the detention was
illegal and unconstitutional. The State of Maharashtra
approved the detention on 24th December, 1985.
The detention order as mentioned hereinbefore was under
section 3(2) of the said Act. The detenu was arrested on
17th December, 1985 and the grounds of detention were served
on the same day. The order alleged, inter alia, that since
the year 1979, the detenu had been continuously engaging
himself in committing acts prejudicial to the maintenance of
supplies and services essential to the community i.e.,
removing of permanent way material stocked along rail lines
for
845
maintenance of rail tracks removing parts of carriages,
Wagons and Signal Telecommunication materials utilised for
repair of Railway Wagons and maintenance of singnals. It was
further alleged that the said detenu used to arrange to
remove railway property with the help of his ’gang’ and
stock the same in his godown, himself remaining behind the
scene. It was alleged that in a number of cases railway
properties were loaded and carried away in truck No. MHG
6302 which was owned by the detenu. It was stated that he
was indulging in removing railway material which was stocked
along the rail tracks for the maintenance of the tracks,
thus the work of maintenance of the tracks was hampered and
quick movement of the wagons loaded with essential
commodities such as food-grains, arms, ammunition required
by the general public and the armed forces could not be
made. Such acts were prejudicial, according to the order of
detention, to the maintenance of supplies and services
essential to the community.
The grounds further indicated six different cases. The
case numbers were:
1. P.S. Deori Crime No. 69/83 u/s 379, 34 I.P.C.
decided by the J.M.F.C. Sakoli vide C.C. No.
50/84.
2. R.P.E. Post Ajni Crime No. 20/84 u/s 3 R.P.
(UP) Act, 1966 An appeal u/s 378 of the code of
Criminal Procedure is being filed in the High
Court against the order of aquittal dated 24/5/85
passed by the J.M.F.C., Railway Court Nagpur, vide
C.C. No. 362/84.
3. R.P.F. Post Ajni Crime No. 43/84 u/s 3 RP (UP)
Act 1966 pending trial before the J.M.F.C. (Rly.).
Nagpur, vide C.C. No. 153/85.
4. P.S. Kamptee Crime No. 195/84 u/s 379, 411, 34
I.P.C. pending trial before the J.M.F.C., VIII
Court, Nagpur, vide C.C. No. 200/84.
5. P.S. Kamptee Crime No. 53/85 u/s 379, 34 IPC
under investigation.
6. R.P.F. Post Ajni Crime No. 41/85 u/s 3 RP(UP)
Act pending trial before the J.M.F.C. (Rly.)
Court, Nagpur, vide C.C. No. 212/85.
846
The incident in the first case was alleged to have
taken place on 26th December, 1983. It was alleged that a
truck bearing Registration No. MHG 6302 was standing near
the iron bridge on the National Highway and some thieves
were trying to cut the steel girders meant for constructing
road bridge for removing the same. Other particulars were
named therein and the names of two persons were also
mentioned. There was some stealing. The stolen property
including steel girders and the truck mentioned above were
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seized. It appears that the truck was owned by the detenu.
The detenu was arrested on 26th February, 1984 and the
aforesaid two persons were convicted under section 379 read
with section 34 I.P.C. The detenu, however, was acquitted.
In the second case report had been received that some
railway material including 32 Lbs. CST 9 plates and tie bars
were stolen from the railway track in between Borkhedi and
Sindi Railway Stations by a gang of culprits who threatended
the witness, i.e., the chowkidar on duty and took away the
railway property in a Matador. During enquiry into the above
complaint, it transpired that the stolen property was
unlawfully kept by the detenu in his godown at Nagpur and a
search warrant was obtained and the stolen railway property
valued at Rs.25,000 was recovered from the godown of the
detenu on 19th June, 1984. The detenu was acquitted by the
Magistrate but an appeal had been preferred in the High
Court of Nagpur and the same was pending when the detention
order was passed. It was further stated that the permanent
way material was essential for the maintenance of the
railway tracks and the safety of the travelling public. It
was normally kept at secure places near the track for ready
availability for replacing the broken or unserviceable
material in the track. The trains were required to be
detained as a result of theft causing loss to the Government
and there was delay in making supplies to the public. It was
further alleged that as many as 28 wagons were marked sick
for repairs and were sent to Ajni workshop for repairs, for
want of the required spare parts which were seized from the
unlawful possession of the detenu. According to the order of
detention, as a result the Government and public indents of
Wagons totalling 792 could not be cleared for loading
different commodities to be supplied in various parts of the
country.
In case No. 3, a report had been received that at a
particular point between Buti Bori & Umrer section at some
Km. near the railway crossing gate, 400 fish plates were
stolen. The enquiry had revealed that the stolen property
was unlawfully obtained and kept by
847
the detenu at certain place at Nagpur. A search warrant was
obtained and 400 fish plates and carriage and Wagon parts
were recovered from the godown of the detenu. In the
premises the detenu was arrested on 14th December, 1984 and
the aforesaid case i.e., third case was pending on the date
of the order of detention. It is the case of the Government
that due to the unlawful possession of the railway property
by the detenu, as many as ten wagons had to be marked sick
and could not be made available to the public and the
Government for loading different essential commodities to be
supplied in different parts of the country in the month of
December, 1984. As a result of this, as many as 3224 indents
put up by the Government and the public for the supply of
wagons could not be cleared due to shortage of empty wagons.
The fourth case related to an offence under section 379
I.P.C. which was registered against the detenu under
sections 379, 411 and 34 I.P.C. and was pending trial in
Nagpur. The complaint was to the effect that 128 CST-9
plates were stolen from five points between Kamptee &
Kalmana Railway Line and these were valued at Rs.4608. The
property was loaded in truck bearing No. MHG 6302 owned by
the detenu. The truck driver was arrested and the property
was recovered from the godown of the detenu at the instance
of the driver. The detenu was arrested in connection with
this case on 3rd December, 1984, and the case was pending on
the date of the issue of the detention order.
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Regarding the fifth case it may be mentioned that an
offence was alleged to have been committed by the detenu
under section 379 read with section 34 I.P.C. on the
complaint of certain person who was working as a Manager of
the Jamshedpur Transport Corporation, Nagpur. It was
reported that three bundles of Aluminium wire weighing about
500 kgs. valued at Rs.1,60,000 were stolen by some unknown
criminals on 21st March, 1985. During investigation it was
disclosed that the culprits belonged to the ’gang’ of the
detenu and that they had threatened the chowkidars on duty
and forcibly removed the aluminium wire bundles. It was
stated in the detention order that the detenu was the main
brain behind this big daring robbery and he used his truck
bearing No. MHG 6302 for transporting the stolen property.
The detenu anticipating arrest moved the court and obtained
anticipatory bail with a view to avoid arrest by the police.
The case was pending investigation. It was further stated
that the aluminium wire which was stolen was meant for the
use of various public and Govt. departments and due to
aforesaid criminal activity as indicated above the supply of
848
the wire could not be maintained as it was broken into
pieces and made unserviceable.
In respect of the sixth case it was further alleged
that on receiving information that 90 Lbs, rails 31 meters
long were received and kept unlawfully by the detenu in his
godown at Nagpur, the inspector of the C.I.B. and Railway
Protection Force raided the godown on 22nd May, 1985 and
seized 90 Lbs. rails about 30 meters long, break and some
new steel sleepers and other materials. The stolen property
was worth Rs.20,000. The detenu was arrested in this case on
22nd May, 1985. The case was pending trial on the date of
the issue of the detention order in Nagpur. It is the case
of the detaining authority that due to this unlawful
possession of break-locks by the detenu, four wagons were
marked sick and had to be sent to the Railway Carriage and
Wagon Workshop at Ajni for repair, as a result was indents
put up to the Railway Administration by the Public and the
Government to provide the empty wagons for supply of the
different commodities in the different parts of country
could not be complied with.
In the backdrop of the aforesaid grounds it was further
stated that the activities of the detenu were prejudicial to
the maintenance of supplies and services essential to the
community. It was further alleged that each of the grounds
indicated above individually and collectively was not only
germane but also sufficient to satisfy the detaining
authority with a view of preventing the detenu from acting
in any manner prejudicial to the maintenance of supplies and
services essential to the community and as such it was
necessary to detain him. It was further stated that these
grounds were communicated to the detenu under setion 8 of
the aforesaid Act read with article 22(5) of the
Constitution of India upon which the detention order had
been made. Copies of the documents mentioned in the said
order which were placed before the detaining authority were
enclosed with the detention order sent to the detenu. He was
further informed that he had a right to make a
representation to the State Government against the order of
detention and would be afforded the earliest opportunity to
make such a representation. He was further informed that he
should address it in the manner indicated therein. He was
informed that the State Government would within three weeks
from the date of detention of the detenu make a reference to
and place the requisite material before the Advisory Board
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constituted under section 9 of the said Act and asking them
to make a report of detention within seven weeks. He was
informed that he had a right to make the representation to
the Advisory Board and if
849
he wanted, he would be heard in person by the Advisory Board
in the course, if it found it necessary.
In this petition under article 32 of the Constitution,
it is the case of the petitioner on behalf of the detenu
that the grounds of detention were vague, irrelevant and
non-existent. It was further urged on behalf of the
petitioners that the grounds of detention on which the
detenu was detained relating to as far back as 1979. It was
not open to the detaining authority to order detention of
the detenu on the said grounds. It was highlighted that in
respect of alleged grounds, criminal cases were pending
against the detenu and he had been enlarged on bail. It was
submitted that when a judicial authority was satisfied on
the materials placed before it that there were no grounds
for keeping the detenu in detention, on the same materials
the executive authority namely, the detaining authority
could not substitute the judicial judgment and order
detention to prevent the detenu from acting in a manner
prejudicial to the interest of the community.
It was submitted by Mr. Garg on behalf of the detenu
that in this case in view of the fact that the detenu was on
bail, the power of preventive detention was being used to
defeat the provisions of the Code of Criminal Procedure and
ordinary normal procedure. It was further the submission of
Mr. Garg that the alleged grounds were merely allegations of
ordinary criminal cases which either had ended in acquittal
or in respect of which appeals were pending or were pending
determination and as such the formation of the belief by the
detaining authority for the detention order was merely on
surmises and on materials which the detaining authority was
not competent to take note of. With reference to the various
pending cases, it was submitted on behalf of the detenu that
these criminal cases did not disclose any activity of the
detenu prejudicial to the maintenance of supplies and
services essential to the community. The connection of the
detenu with the alleged offences was not there and as such
the satisfaction could not be there of the detaining
authority. The detenu according to the petitioner, was in no
manner connected with the alleged theft committed by certain
named persons and though the onwership of the truck
attributed to the detenu was not denied or disputed but the
involvement of the detenu did not follow from that fact, it
was submitted on behalf of the detenu.
It is further the case on behalf of the detenu and the
submission of Mr. Garg that it was not open to the detaining
authority to use the allegations of the criminal cases to
justify ’preventive detention’. It
850
was further his submission that these did not establish
proximate relation either with the maintenance of supplies
or services essential to the life of the community nor did
these involve any violation of relevant laws made by the
Parliament dealing with the maintenance of supplies of
essential commodities or maintenance of essential services.
It is the case on behalf of the detenu that preventive
detention is no substitute for detention under the ordinary
criminal law. According to the petitioner, there was no
allegation against the detenu of any violation of Essential
Commodities Act or any provision of the Maintenance of
Essential Services Act. The grounds mentioned were cases of
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ordinary theft and should have been proceeded against under
the ordinary law of crimes. The detenu was released on bail.
The connection of the detenu with the removal of fish plates
for the supply of wagons was too remote to be any basis of
satisfaction. In fourth case the detenu was on bail and
detenu could not be kept under preventive detnetion in
derogation of his liberty granted by bail by the appropriate
judicial authority. Regarding the fifth case, the detenu had
already been granted anticipatory bail. The order of the
court could not be defeated by keeping the detenu in
preventive detention, it was submitted by Mr. Garg. It was
urged that requisite satisfaction required under section
3(2) of the said Act was not in fact formed and could not
have been formed on the grounds alleged nor was there any
rational connection for the formation of such satisfaction.
The alleged incidents were denied and it was further
submitted that if at all mere infractions of ordinary law
could not fall in the category of public order or violation
of any law indicated to the maintenance of supply or
essential services. It was open to justify the order of
detention even if one or more of the six grounds were found
to be relevant. The documents, further, did not disclose
factual connection with the alleged offences. No statement
of the witnesses had been supplied except one related in
ground No. 5, it was urged in the petition.
It was further submitted that the provisions of Act 7
of 1980 being Prevention of Blackmarketing and Maintenance
of Supplies of Essential Commodities Act, 1980 could perhaps
have application and in view of Explanation to Section 3(2)
of the Act, the impugned order was bad. Our attention was
drawn to the provisions of the said Act of 1980. Section
3(1) and (2) of the said Act reads as follows:
"Power to make orders detaining certain persons-
(1) The Central Government or a State Government
or any officer of the Central Government, not
below the rank of a Joint Secretary to that
Government specially
851
empowered for the purposes of this section by that
Government, or any officer of a State Government,
not below the rank of a Secretary to that
Government specially empowered for the purposes of
this section by that Government, may, if
satisfied, with respect to any person that with a
view to preventing him from acting in any manner
prejudicial to the maintenance of supplies of
commodities essential to the community it is
necessary so to do, make an order directing that
such person be detained.
Explanation-For the purposes of this sub-section,
the expression "acting in any manner, prejudicial
to the maintenance of supplies of commodities
essential to the community" means:-
(a) committing or instigating any person to commit
any offence punishable under the Essential
Commodities Act, 1955 (10 of 1955), or under any
other law for the time being in force relating to
the control of the production, supply or
distribution of, or trade and commerce in, any
commodity essential to the community; or
(b) dealing in any commodity-
(i) which is an essential commodity as
defined in the Essential Commodities Act,
1955 (10 of 1955), or
(ii) with respect to which provisions have
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been made in any such other law as is
referred to in clause (a),
with a view to making gain in any manner which may
directly or indirectly defeat or tend to defeat
the provisions of that Act or other law aforesaid.
(2) Any of the following officers, namely:
(a) District Magistrates:
(b) Commissions of Police, wherever they have
been appointed,
may also, if satisfied as provided in sub-section
852
(1), exercise the powers conferred by the said
sub-section.
In answer to the petition in the affidavit of the
opposition filed on behalf of the respondent, it was stated
that the detenu Rampal Sahu was detained and a reference had
been duly made under section 10 of the said Act to the
Advisory Board. The detenu was interviewed by the Advisory
Board on 29th January, 1986 and the Board had submitted its
report under section 12(1) of the said Act on 3rd February,
1986 which had been received by the Department on the same
day. As such the report of the Advisory Board was received
by the Government within the stipulated period of seven
weeks from the date of detention as required by the law.
The detenu had submitted his representation dated 8th
January, 1986 to the Advisory Board which was considered by
the Board at the time of his interview before the Board on
29th January, 1986. The said representation was received by
the Home Department along with the report of the Advisory
Board and was considered together with the report of the
Advisory Board by Government and the detention order was
confirmed by the Government Order. All procedural safeguards
of law were duly followed. There was no breach of the same.
It is not necessary to reiterate the affidavit in reply.
As has been mentioned hereinbefore, on the same facts,
the petition under article 226 had been filed in the High
Court at Nagpur. The said application was dismissed by a
Division Bench of the High Court on 27th February, 1986. The
petitioner has come up from the said decision which is the
next matter being Special Leave Petition No. 1265 of 1986
and same will be disposed of by this judgment.
The High Court in its judgment referred to the grounds.
It reiterated that permanent way material is essential to
the maintenance of railway track and safety of the railway
travelling public. After referring to the various grounds
referred to hereinbefore, the High Court has noted that
three points were urged before it on behalf of the detenu
namely; (1) the order was mala fide, (2) there was total
absence of material, and (3) in any event the provisions of
the Prevention of Black-marketing and Maintenance of
Supplies of Essential Commodities Act, 1980 being Act of
1980 would be attracted. The High Court referred to the
affidavits of the Commissioner of Police who passed the
detention order which was filed in the High Court and found
that there were good grounds for detention and it was not
possible to hold that there were no grounds of detention
relevant for the Act.
853
The High Court referred to the expression ’acting in
any manner, prejudicial to the maintenance of supplies of
commodities essential to the community’ as mentioned in
Explanation to section 3 of the Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980. The High Court was of the view that
it was clear that only National Security Act was attracted
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in the facts and circumstances of this case.
In view of the Explanation to section 3 of Act 7 of
1980, it appears "acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the
community" has certain particular connotation. But in the
instant case the Act under consideration, the conduct of the
detenu was prejudicial to the maintenance of supplies and
services essential to the community in general as
contemplated by section 3(2) and not in any particular mode
contemplated by Explanation to section 3(1) of Act 7 of 1980
and as such is not excluded by the Explanation to sub-
section (2) of section 3 of the Act. In the premises we are
therefore of the opinion that the High Court was right in
the view it took on this aspect of the matter. We are also
of the opinion that for the same reason, the same
contentions urged before us in support of the writ petition
cannot be sustained.
As mentioned hereinbefore, before the High Court also
the insertion of section 5A of the Act by the National
Security (Second Amendment) Act, 1984 was challenged under
which even the existence of one ground is sufficient. Before
us no ground was canvassed about the validity of the said
Amendment and inclusion of section 5A of the Act.
It must therefore be held that even the existence of
one ground was sufficient to sustain the detention order.
Mr. Garg drew our attention to certain observations of
Chagla, C.J., in a Full Bench decision of the High Court of
Bombay in Maledath Bharathan Malyali v. The Commissioner of
Police AIR 1950 Bombay 202. That was a case under the Bombay
Public Security Measure Act being Act No. 6 of 1947. There
was an order of detention under section 2(A1) of the Act for
the collateral purpose. It was held that when the detaining
authority had made up his mind to detain a person who was
alleged to have committed an offence, then, the detaining
authority had made his choice and it would not be
permissible, according to that decision, for him to
investigate the offence while still keeping the person under
detention and not complying with the provi-
854
sions of the law with regard to investigation. If the
purpose of detaining a person was a collateral purpose i.e.,
to deprive him of his rights and safeguards under the
Criminal Procedure Code and to carry on an investigation
without the supervision of the Court then the detention was
mala fide and could not be justified. Chagla, C.J. at page
203 speaking for the Full Bench observed that an order of
detention under the Security Act could only be justified in
a Court of law provided it was made bona fide; and order of
detention could not be made for an ulterior motive or for a
collateral purpose. The detaining authority, it was further
observed, must only consider the objects for which the Act
was passed and the only consideration which must weigh with
the detaining authority was public safety, maintenance of
public order and the preservation of peace and tranquility
in the Province of Bombay. If in making the order his mind
was influenced by any consideration extraneous to the Act,
then the order would be bad and could not be upheld. The
question that the Court had to consider in that case was
whether in making the order the Commisioner of Police was
influenced by any collateral purpose and whether any
extraneous factor had weighed on his mind when he made the
order. When we speak of an order being made mala fide, it
did not mean that the Court attributed to the detaining
authority any improper motive.
An order is mala fide when there is malice in law
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although there is no malice in fact. The malice in law is to
be inferred when an order is made contrary to the objects
and purposes of the Act. Whether in any particular case this
is so or not must depend upon the facts and circumstances of
the case. The fact that the person sought to be detained is
in fact under detention is a relevant and material factor
but the allegations or the incidents leading to his
detention have also to be borne in mind and co-related to
the object of a particular Act under which preventive
detention is contemplated. In the instant case, the Act was
The National Security Act, 1980. It was an Act to provide
for preventive detention in certain cases and for matters
connected therewith. Power has been given under section 3
authorising preventive detention of any person from acting
in any manner prejudicial to the defence of India, the
relations of India with foreign powers and of the security
of India. Sub-section (2) of section 3 provides that the
Central Government or the State Government might, if
satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the
security of the State or from acting in any manner
prejudicial to the maintenance of public order or from
acting in any manner prejudicial to the maintenance of
supplies and services essential to the community it was
necessary so to do, make an order
855
directing that such person be detained then the same can be
done, (emphasis supplied). The Explanation to this sub-
section makes it clear that the expression "acting in any
manner prejudicial to the maintenance of supplies and
services essential to the community" does not include
"acting in any manner prejudicial to the maintenance of
supplies of commodities essential to the community" as
defined in the Explanation to sub-section (1) of section 3
of the Prevention of Black-Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980, as we have
noted before.
Our attention was drawn to several authorities where
this Act has been considered.
In a recent decision of this Court, one of us
(Ranganath Misra, J) had to consider the effect of passing
order for preventive detention where the detenu was in jail.
In Ramesh Yadav v. District Magistrate, Etah and Others
[1985] 4 SCC 232 it was held that merely on the ground that
an accused in detention as an under-trial prisoner was
likely to get bail, an order of detention under the National
Security Act should not ordinarily be passed. If the
apprehension of the detaining authority was true, Court
observed, the bail application had to be opposed and in case
bail was granted, challenge against that order in the higher
forum had to be raised. We respectfully agree with this
conclusion. But this principle will have to be judged and
applied in the facts and circumstances of each case. Where a
person accused of certain offences whereunder he is
undergoing trial or has been acquitted, the appeal is
pending and in respect of which he may be granted bail may
not in all circumstances entitle an authority to direct
preventive detention and the principle enunciated by the
aforesaid decision must apply but where the offences in
respect of which the detenu is accused are so inter-linked
and continuous in character and are of such nature that
these affect continuous maintenance of essential supplies
and thereby jeopardize the security of the State, then
subject to other conditions being fulfilled, a man being in
detention would not detract from the order being passed for
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preventive detention. Merugu Satyanarayana Etc. Etc. v.
State of Andhra Pradesh and Others [1983] (1) SCR 635 was a
case dealing with an order under section 3(2) of the Act.
There this Court found that the affidavit in opposition
supporting the reply to the show cause notice was not from
the person who passed the detention order. There the
affidavit was of a sub-inspector of police at whose instance
the arrest was made and could not therefore satisfy the
constitutional mandate
856
that will be treated as nonest. In the instant case before
us a point was made that the counter was made by a desk
clerk of the Home Department in writ petition. This would
have been a fatal defect and the government’s view could not
have been considered but there was an application under
article 226 of the Constitution before the High Court
challenging the identical detention order on the same
grounds. Before the High Court Sree Malhotra and Sree S.K.
Seth who were the Commissioners of Police had filed two
separate affidavits upholding the issue of the detention
order and explaining the grounds and the reasons for the
same. If those affidavits are taken into consideration, as
these must-be then there is no substance in this ground. In
the aforesaid case assurance was given before this Court in
an earlier case that preventive detention would not be
resorted to against political opponents. In the said
decision the facts were entirely different. That was a case
affecting the liberty of a subject on political
consideration.
For maintaining supplies throughout the country the
railways was per se essential, and, therefore, interference
with railway lines would be endangering the maintenance of
supplies-see the observations of this Court in Mohd. Subrati
Alias Mohd. Karim. v. State of West Bangal [1973] 2 SCR 990
at 992.
This Court in Remeshwar Shaw v. District Magistrate,
Burdwan & Anr., [1964] 4 SCR, 921 had to deal with
preventive detention of a person who was in jail custody.
There the petitioner was detained by an order of the
District Magistrate under the provisions of the Preventive
Detention Act, 1950. The order recited that the District
Magistrate was satisfied that it was necessary to detain the
petitioner with a view to prevent him from acting in a
manner prejudicial to the maintenance of Public order. This
order was served on the petitioner on the 15th February,
1963, while he was in jail custody as an under-trial
prisoner in connection with a criminal case pending against
him.
It was urged on behalf of the petitioner in that case
that the detention of the petitioner was not justified by
the provisions of section 3(1) of the Preventive Detention
Act, 1950. It was noted by Justice Gajendragadkar at page
925 of the report speaking for the Court that the basis of
the order of detention which the authority was empowered to
pass against a person under section 3(1)(a) was that if the
said order was not passed against him, he might act in a
prejudicial manner. In other words, the authority considered
the material brought before it in respect of the person,
examined the said material and reached the conclusion that
the material showed that the said person
857
might indulge in prejudicial activities if he was not
prevented from doing so by an order of detention. The Court
then posed the question how could the authority come to the
conclusion that the person who was in jail custody might act
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in a prejudicial manner unless he was detained. The learned
judge was of the view that the scheme of the section
postulated that if an order of detention was not passed
against a person, he would be free and able to act in a
prejudicial manner. In other words, at the time when the
order of detention was brought into force, the person sought
to be detained might have freedom of action. That alone
would justify the requirement of the section that the order
of detention was passed in order to prevent a prejudicial
conduct, of the person which took place in that case ten
years before the date of detention and nothing was known
against the person indicating i.e., the tendency to act in a
prejudicial manner. Even if it was ten years old, the
authority was satisfied that detention was necessary. The
court also noted that the past conduct or antecedent history
on which the authority purported to act should ordinarily be
proximate in point of time and have a rational connection
with the conclusion that the detention of the person was
necessary. The court, however, further held that as an
abstract proposition of law, there might not be any doubt
that section 3(1)(a) of the said Act did not preclude the
authority from passing an order of detention against a
person while he was in detention or in jail. But the
relevant facts in connection with the making of the order
might be different and that might make a difference in the
application of the principle that the order of detention
could be passed against a person in jail. The Court,
however, was reluctant to lay down any inflexible test. In
that case the petitioner was ordered to be released on the
ground that he was served with the order of detention while
he was in jail custody. In the instant case before us, the
petitioner is not in jail custody.
In Makhan Singh Tarsikka v. State of Punjab [1964] 4
SCR 932 the court was concerned more or less with the same
facts. The court observed at p. 937 of the report that the
aspect of the matter which was emphasised in the case of
Rameshwar Shaw (supra) was the relevance of considerations
of proximity of time and concluded that whether an order of
detention could be passed against a person who was in
detention of in jail would always have to be considered in
the facts and circumstances of each case. The order of
detention in that case was also set aside in view of the
facts mentioned therein.
In Golam Hussain Alias Gama v. The Commissioner of
Police, Calcutta and Others [1974] 3 SCR 613 the question
arose under sec-
858
tions 3(1) and 3(2) of the Maintenance of Internal Security
Act, 1971. There pursuant to an order under section
3(1)(a)(ii) read with section 3(2) of the said Act the
petitioner in that case was arrested for hurling soda water
bottles, brick-bats and bombs indiscriminately on a group of
persons on different dates. The order of detention said that
if left free and unfettered the petitioner was likely to
continue to disturb maintenance of public order by acting in
similar manner. In an earlier criminal case the petitioner
was discharged since no witness deposed against him in open
court. Thereafter the petitioner was detained under the Act.
In a petitioner under article 32 of the Constitution, it was
contended that the detention was mala fide because it was
after his discharge by the court for want of evidence and
secondly, there had been a long interval of nine months
between the criminal incidents and the detention order,
thirdly the order of detention which did not specify a
period as was violative of section 12 of the said Act and
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lastly the detention was founded on prevention of public
disorder while the acts imputed to the petitioner were aimed
at a particular person, not the general public.
It was held that merely because the detaining authority
had chosen to base the order of detention on the discharge
of the petitioner by court for want of evidence it could not
be held that the order was bad in law. This branch of
jurisprudence, as interpreted by this Court, has made it
futile for a detenu to urge that because the grounds of
detention had been the subject matter of criminal cases
which had ended in discharge, therefore, the order of
detention was mala fide. The basic imperative of proof
beyond reasonable doubt did not apply to the component of
subjective satisfaction for imprisonment for reasons of
internal security. There might be extreme cases where the
court had held a criminal case to be false and the detaining
authority for want of evidence claimed to be satisfied about
prospective prejudicial activities based on what a court had
found to be baseless. In the present case the order of
discharge was made purely for want of evidence on the scope
that witnesses were too afraid to depose against to
desperate character, cannot come under the exceptions carved
out by the court to this category. It was further emphasised
that there must be a live link between the grounds of
criminal activities alleged by the detaining authority and
the purpose of detention. This credible chain is snapped if
there was too long and unexplained interval between the
offending acts and order of detention. If the detaining
authority took the chance of conviction and, when the court
verdict went against it, feel back on its detention power to
punish one whom the court would not convict, it was an abuse
and virtual nullification of the judicial process. But if
859
honestly, finding a dangerous person getting away with it by
overaweing witnesses or concealing the commission cleverly,
in authority thought on the material before it that there
was need to interdict public disorder at his instance he
might validly direct detention. In the present case, the
acts were serious, being bomb hurling and brickbat throwing
in public places creating panic. Involvement of the
petitioner was discovered only during the investigation. It
was further held that the argument that detention without
defined duration is ipso jure invalid could not be
sustained. No responsible government should or would be
unresponsive to the claim of citizen’s freedom. The nature
of the act from the circumstances of its commission, the
impact on the people around and such factors constitute the
pathology of public disorder. These acts could not be
isolated from their public setting nor was it possible to
analyse its molecules as in a laboratory but to take its
total effect on the flow of orderly life. It might be a
question of degree and quality of activity of the
sensitivity of the question involving people. To dissect
further is to defeat the purpose of social defence which is
the paramount purpose of the preventive detention.
If, however, a detention order is malafide then the
same is bad. Reliance was placed for this proposition on the
decision of this Court in Sahib Singh Dugal v. Union of
India. [1966] 1 SCR 313.
Mohd. Salim Khan v. Shri C.C. Bose & Another [1972] 2
SCC 607 depended upon the particular facts of that case, so
is the position with Borjahan Gorey v. State of West Bengal
[1972] 2 SCC 550 to which our attention was drawn, where it
was highlighted that judicial trial for punishing the
accused for the commission of an offence was a jurisdiction
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distinct from that of detention under the Act which had in
view the object of preventing the detenu from acting
prejudicial to the security of the State and maintenance of
public order. The fields of these two jurisdictions were not
co-extensive nor were they alternatives. It must be
remembered that the grounds of detention related to past
acts on which an opinion as to the likelihood of the
repetition of such or similar acts could be based.
It was submitted that in order to invoke the provisions
of these Acts for securing preventive detention under the
National Security Act, there must be something imminent. In
Godavari Shamrao Parulekar v. State of Maharashtra & Others
[1964] 6 SCR 446 where referring to several authorities
Wanchoo, J. speaking for the Court observed at page 452 of
the report that in those cases it was held by this Court
that where a person was detained in jail as an under-trial-
pris-
860
oner no order of detention either under the Preventive
Detention Act or under the Rules could be served on him
because one of the necessary ingredients which go to make up
the satisfaction of the detaining authority is necessarily
absent in such a case. It was pointed out in Rameshwar
Shaw’s case (supra) that before an authority can
legitimately come to the conclusion that the detention of
the person was necessary to prevent him from acting in a
prejudicial manner, the authority had to be satisfied that
if the person was not detained, he would act in a
prejudicial manner and that inevitably postulated freedom of
action to the said person at the relevant time. The Court
noted two types of cases. Those two cases were concerned
with the service of an order of detention under the
Preventive Detention Act or under the Rules on a person who
was in jail in one of two circumstances namely-where he was
in jail as an under-trial prisoner and the period for which
he was in jail was indeterminate or where he was in jail as
a convicted person and the period of his sentence had still
to run for some length of time. In those cases the service
of the order of detention under the Preventive Detention Act
or under the Rules in jail would not be legal for one of the
necessary ingredients about which the authority had to be
satisfied would be absent, namely, that it was necessary to
detain the person concerned which could only be postulated
of a person who was not already in prison. But in other
types of cases this Court had to deal with G.S. Parulekar’s
case. The appellants were not under detention either as
under-trial prisoners for an indeterminate time or as
convicted persons whose sentences were still to run for some
length of time. They were detained under the Preventive
Detention Act by an order dated 7th November, 1962 which had
been reported to Government for approval and which order
could only remain in force for 12 days under section 3(3) of
the said Act unless in the meantime it had been approved by
the State Government. In those cases the principles of the
decision referred to in Rameshwar Shaw’s case and other
cases could not be applied.
If there was an imminent possibility of the man being
set at liberty and his detention coming to an end, then it
appears, as a principle, if his detention is otherwise
necessary and justified then there is nothing to prevent the
appropriate authorities from being satisfied about the
necessity of passing an appropriate order detaining the
person concerned.
In Gopi Ram v. State of Rajasthan, AIR 1967 SC 241
Mudholkar, J. reiterated the principle that law does not
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permit double detention and referring to Rameshwar Shaw’s
case it was reiterated that when a
861
person was in jail custody and the criminal proceedings were
pending against him, the appropriate authority might in a
given case take the view that criminal proceedings might end
very soon and might terminate in his acquittal. In such a
case, it would be open to the appropriate authority to make
an order of detention, if the requisite conditions of the
Rule or the section were satisfied, and serve it on the
person concerned even after he was acquitted in the said
criminal proceedings.
Masood Alam Etc. v. Union of India and Others [1973] 1
SCC 551 was a case where it was held that if the grounds
were relevant and germane to the object of the detaining Act
then merely because the objectionable activities covered
thereby also attracted the provisions of Chapter VIII,
Criminal Procedure Code, the preventive detention could not
for that reason alone be considered to be mala fide provided
the authority concerned was satisfied of the necessity of
the detention as contemplated by the Act. The jurisdiction
of preventive detention sometimes described as jurisdiction
of suspicion depended on subjective satisfaction of the
detaining authority. If the detaining authority was of
opinion on grounds which were germane and relevant, that it
was necessary to detain a person from acting prejudicially
as contemplated by section 3 of the Act then it was not for
this court to consider objectively how imminent was the
likelihood of the detenu indulging in those activities.
There was no legal bar in serving an order of detention on a
person who was in jail custody if he was likely to be
released soon thereafter and there was relevant material on
which the detaining authority was satisfied that if free,
the person concerned was likely to indulge in activities
prejudicial to the security of the State or maintenance of
public order. The Court stressed upon the fact that it was
always the past conduct, activities or the antecedent
history of a person which the detaining authority took into
account in making a detention order. No doubt the past
conduct, activities or antecedent history should ordinarily
be proximate in point of time and should have a rational
connection with the conclusion that the detention of the
person was necessary but it was for the detaining authority
who had to arrive at a subjective satisfaction in
considering the past activities and coming to his conclusion
if on the basis of those activities he was to be satisfied
that the activities of the person concerned were such that
he was likely to indulge in prejudicial activities
necessitating his detention. Where an earlier order of
detention was either revoked or had expired, any subsequent
detention order could be passed only on fresh facts arising
after the expiry or revocation of the earlier order.
862
Golan Hussain Alia Gama v. Commissioner of Police,
Calcutta, and Others (supra) highlights the need for causal
connection between the grounds and the action proposed. The
jurisprudence dealing with prohibitory detention or
preventive detention is well-settled and it can no longer be
a valid contention that because the accused had been
discharged in a criminal case, the ground of charge could
not be relied upon by the appropriate authority passing an
order of preventive detention. The former related to the
punitive branch of criminal law and relied on the past
commissions, the latter to the preventive branch of social
defence and protected the community from future injury. It
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is not possible to urge that simply because a man has been
discharged in a criminal case, those grounds could not be
grounds for preventive detention. But there must be live-
link between the grounds of criminal activities alleged by
the detaining authority and the purpose of detention. This
credible chain would be snapped if there was too long and
unexplained an interval between the offending acts and the
order of detention. There must be proximity, but no
mechanical test of counting months of interval can be laid
down-it depends on the nature of the acts alleged or relied,
gravity of the situation and the reason for the delay. It is
in that background only it can be said that causal
connection is broken. The power to detain and the right to
liberty must be harmoniously balanced in the larger interest
of the community.
Dulal Roy v. The District Magistrate, Burdwan & Others
[1975] 1 SCC 837 stressed that the scheme of section 3(1)
(a) of the Maintenance of Internal Security Act, 1971
presupposed that on the date of the order of detention or in
the near future the person sought to be detained had or
would have freedom of action. If a person therefore was
serving a long term of imprisonment or was in jail custody
as an undertrial and there was no immediate or early
prospect of his being released on bail or otherwise, the
authority could not legitimately be satisfied on the basis
of his past history or antecedents that he was likely to
indulge in similar prejudicial activities after his release
in the distant or indefinite future. To the similar effect
are the observations in Dr. Ramakrishna Rawat v. District
Magistrate, Jabalpur and Another. [1975] 4 SCC 164 at 167
and 169.
Mere service of detention order in jail per se is not
bad.
In Vijay Narain Singh v. State of Bihar & Ors., [1984]
3 SCR 435 it was highlighted by two learned judges (O.
Chinnappa Reddy & E.S. Venkataramiah, JJ) of the three
judges bench consisting of O. Chinnappa Reddy, A.P. Sen &
E.S. Venkataramiah, JJ. that the law of
863
preventive detention was a hard law and therefore should be
strictly construed. Care should be taken that the liberty of
the person was not jeopardized unless the case fell squarely
within the four corners of the relevant law. The law of
preventive detention was not to be used merely to clip the
wings of the accused who was involved in a criminal
prosecution. Where a person was enlarged on bail by a
competent criminal court, great caution should be exercised
in scrutinising the validity of an order of preventive
detention which was treated on the very same charge which
was to be tried by the criminal court. The Court was
considering the expression ’habitual offender’ under the
Bihar Control of Crimes Act, 1981.
Assuming the facts alleged to be right and there is a
causal connection between the facts alleged and the purpose
of detention and the formation of the opinion is not mala
fide, then the sufficiency of the grounds and the truth of
the grounds is not germane. See the observations of this
Court in The Barium Chemicals Ltd. & Anr. v. The Company Law
Board and Others [1966] Supp. SCR 311 at 354 and 363.
It has to be borne in mind that having regard to the
purpose of the Act, the detaining authority must take into
consideration rational, proximate grounds 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. If the person is in
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detention or is under trial and his conviction is unlikely
but his conduct comes within the mischief of the Act then
the authority is entitled to take a rational view of the
matter. The grounds must be there. The decision must be bona
fide.
In Prakash Chandra Mehta v. Commissioner and Secretary,
Government of Kerala and Others [1985] Supp. SCC 144 it was
noted that preventive detention unlike punitive detention
which was to punish for the wrong done, was to protect the
society by preventing wrong being done. Though such powers
under those Acts must be very cautiously exercised as not to
undermine the fundamental freedoms guaranteed to our people,
the procedural safeguards are to ensure that yet these must
be looked at from a pragmatic and commonsense point of view.
An understanding between those who exercised powers and the
people over whom or in respect of whom such power is
exercised is necessary. The purpose of exercise of all such
powers by the Government must be to promote common well-
being and must be to subserve the common good. It is
necessary to protect therefore the individual rights insofar
as practicable which are not inconsistent with the security
and well-
864
being of the society. Observance of written law about the
procedural safeguards for the protection of the individual
is normally the high duty of public official but in all
circumstances not the highest. The law of self-preservation
and protection of the country and national security may
claim in certain circumstances higher priority.
In Shiv Ratan Makim s/o Nandlal Makim v. Union of India
and Others [1986] 1 SCC 404 it was stressed that the
jurisdiction to make orders for preventive detention was
different from that of judicial trial in courts for offences
and of judicial orders for prevention of offences. Even
unsuccessful judicial trial or proceeding would not operate
as a bar to a detention order or render it mala fide. A
fortiori therefore the mere fact that a criminal prosecution
can be instituted cannot operate as a bar against the making
of an order of detention. If an order of detention is made
only in order to bypass a criminal prosecution which may be
irksome because of the inconvenience of proving guilt in a
court of law, it would certainly be an abuse of the power of
preventive detention and the order of detention would be
bad. But if the object of making the order of detention was
to prevent the commission in future of activities injurious
to the community, it would be a prefectly legitimate
exercise of power to make the order of detention. The court
would have to consider all the facts and circumstances of
the case in order to determine on which side of the line the
order of detention falls.
In view of the aforesaid principles that emerged, it is
necessary to consider the grounds and determine whether
there are causal connections. The fact that a man is not in
jail per se would not be determinative of the factor that
order of peventive detention could not be passed against
him. The fact that a man was found not guilty in a criminal
trial would not also be determinative of the factors alleged
therein. All these factors must be objectively considered
and if there are causal connections and if bona fide belief
was formed then there was nothing to prevent from serving an
order of preventive detention even against a person who was
in jail custody if there is imminent possibility of his
being released and set at liberty if the detaining authority
was duly satisfied.
Before us no substantial point was made of infraction
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of any procedural safeguard engrafted in the Act. The
documents relied on were duly supplied. We have examined
that question from the records and materials available
before us. Proper opportunity to make a rep-
865
resentation was given and the representation made to the
Advisory Board was duly considered by the Advisory Board.
Their recommendations were also duly considered by the State
Government. In the premises there is no substance in the
grievance that the procedural safeguards had not been
followed. It further appears to us that there was rational
subjective satisfaction arrived at bona fide on the basis of
the materials available to the detaining authority and the
materials had rational nexus with the purpose and object of
the detention as contemplated by the Act.
Judged by the standards laid down by various decisions
mentioned hereinbefore and in view of the fact that
procedural safeguards had been observed, we are of the
opinion that there is no substance in the challenge made in
the writ petition. We are further of the opinion that the
High Court was right in dismissing the writ petition before
it. Special leave application from the said decision
therefore must fail and the writ petition filed in this
Court also fails for the reasons indicated before.
A.P.J. Petitions dismissed.
866