B.R. Arora, J.
1. Smt. Sujata Bhardwaj (the wife) and Mr.Rakesh Kumar Bhardwaj - the brother of the detenue, who are interested in the personal liberty and welfare of detenue Ashwani Kumar Bhardwaj, by these two Habeas Corpus Petitions, have challenged the validity of the order of detention dated 31.8.96 passed by the District Magistrate, Chittorgarh under Section 3(2) of the National Security Act. The District Magistrate, Chittorgarh, on the basis of the material placed before him by the Superintendent of Police, Chittorgarh, was satisfied that the activities of Ashwani Kumar Bhardwaj are prejudicial to the maintenance of public order and, therefore, in order to prevent him to engage in such activities in future, he passed the order Annexure. 2 dated 31.8.96 under Section 3(2) of the National Security Act (for short, 'the Act') for his detention and sent the order of detention to the Jailor, Sub-Jail, Chittorgarh, to be served on the detenue who was confined in the Sub-Jail, Chittorgarh. The copy of the order was served on the detenu in the Sub Jail, Chittorgarh on the same day. This order was, also, served on Shri Dalip Sarkar - the brother of petitioner Smt. Sujata Bhardwaj. Copies of this order were, also, sent to the State Government and the Central Government. A copy of this order was, also, sent to Smt. Sujata - the wife of the detenu - which was served upon her, also. The detenue was, also, informed that if he wants to make any representation to the State Government then he can make such representation.
2. On 14.9.96 the detenu submitted six copies of his representation to the Jailor, Sub-Jail, Chittorgarh, who forwarded these representations to the District Magistrate, Chittorgarh, i.e., the Detaining Authority. The Detaining Authority, on the same day, sent these representations to the State Government, wherefrom the representation were sent to the Central Government and the Advisory Board.
3. The order passed by the Detaining Authority was approved by the State Government on 9.9.96. The representation made by the detenu was considered by the State Government and was rejected on 26.9.96. An information regarding rejection of the representation of the detenu, was conveyed to him by the Detaining Authority on 27.9.96. The detenue appeared before the Advisory Board on 30.9.96. He was heard by the Advisory Board. The Advisory Board, after considering the representation made by the detenu, approved the detention of Ashwani Kumar Bhardwaj. The State Government, after considering the report of the Advisory Board, the representation made by the detenu and taking into consideration the relevant record of the case, approved the detention of Ashwani Kumar Bhardwaj for a period of one year, i.e., with effect from 31.8.96 to 30.8.97.
4. The petitioners have challenged the order dated 31.8.96 passed by the Detaining Authority under Section 3(2) of the Act on the grounds that (i) the grounds of detention and the detention order have not been made contemporaneously or simultaneously; (ii) the detenu has not been informed of his right to make a representation to the Advisory Board and to the Central Government; (iii) the detenue was already in the jail and there was no compelling necessity to pass the detention order; (iv) there is complete non-application of mind by the Detaining Authority at the time of passing the detention order; (v) affidavits reply to the Habeas Corpus Petitions have not been filed by the proper person, i.e., by the Detaining Authority; (vi) there is a complete violation of Article 22(5) of the Constitution of India as the documents considered by the Detaining Authority at the time of passing the detention order, were not communicated to the detenu; (vii) irrelevant material like the cases against the detenu under the Narcotic Drugs and Psycotropic Substances Act were considered by the Detaining Authority while passing the detention order; (viii) all the cases forming the grounds of detention relate to the law and the order and not the 'public order'; (ix) the detenu's brother and friend(s) were not allowed to appear before the Advisory Board at the time of hearing, while the higher ranking Police Officers were present there; (x) the representations made by the 'detenu were neither sent to the Advisory Board nor to the Central Government; (xi) the representations made by the detenue were considered after the disposal of the matter by the Advisory Board; and (xii) the legal interview to the wife of the detenue before making the representation was not granted and the brother and the lawyer of the detenu were granted the opportunity of legal interview only in the presence of the Police Inspector. The contention of the learned Counsel for the petitioners, therefore, is that these procedural safe-guards provided under the Act, were not protected and the detention order Annexure-2 dated 31.8.96, as approved by the State Government and the Advisory Board, therefore, deserves to be quashed and set-aside.
5. The learned Additional Advocate General, on the other hand, has supported the order of detention (Annexure.2 dated 31.8.96) passed by the District Magistrate, Chittorgarh and submitted that (i) the grounds of detention were formulated on 31.8.96 before passing the detention order and the copy of the grounds, which was sent to the detenu, was prepared on 2.9.96 and while preparing the copy, the factual position, as existed on that day, were mentioned. It was only the necessary correction relating to the latest position which was made in the ground; (ii) the representations made by the detenu were sent to the Central Government, the State Government and the Advisory Board, and, therefore, even if the detenu was not informed regarding his right to make representations to these authorities, that will not affect the detention order because the representations made by the detenu were forwarded to the Central Government as well as to the State Government; (ill) there was compelling necessity to pass the order of detention because there was likelihood of the detenu being released on bail; (iv) the Detaining Authority, after considering the relevant material available on record and after applying the mind to the facts and circumstances of the case, passed the order which is clear from the affidavit filed by the Detaining Authority alongwith the reply; (v) three affidavits have been filed alongwith the reply: one is of the Officer Incharge in support of the reply who has filed the affidavit on the basis of the material available on record, the second affidavit has been filed of the Sponsoring Authority regarding the allegations of malafide made against him and the third affidavit is of the Detaining Authority regarding application of mind, likelihood of the grant of bail to the detenu and the other relevant facts; (vi) there is no violation of Article 22(5) of the Constitution of India. All the materials, which were considered by the Detaining Authority while passing the detention order, have been communicated to the detenue; (vii) no irrelevant material was considered by the Detaining Authority. The detention order Annexure. 2 dated 31.8.96 was passed by the Detaining Authority taking into consideration the activities of the detenu and the cases pending against him and while passing the order under the National Security Act, the cases pending against the detenu under the N.D.P.S. Act can, also, be taken into consideration; (viii) the detenu has no statutory right to be represented by his friend(s) or brother and no request was made by the detenu before the Advisory Board to be represented by his friend or brother and the Detaining Authority has no say in the matter; (ix) the representations made by the detenu were sent to the Advisory Board as well as to the Central Government and his representation was considered and rejected by the Advisory Board. It is wrong to say that the representation made by the detenu was considered by the Advisory Board after disposal of the case; and (x) the detenu's wife, inspite of the permission granted to her, did not meet the detenu in the Jail, Chittorgarh and the brother and the Advocate of the detenu were granted the opportunity of legal interview to the detenu. According to the learned Additional Advocate General, as all the procedural formalities were observed, the order passed by the Detaining Authority, therefore, does not require any interference.
6. We have considered the submissions made by the learned Counsel for the parties.
7. It is not necessary to decide all the arguments advanced by the learned Counsel for the petitioners except the first one, which, in our opinion, merits acceptance and both the Habeas Corpus Petitions can be disposed of on this ground alone.
8. The contention of the learned Counsel for the petitioners is that the grounds of detention and the detention order have not been formulated, framed and prepared contemporaneously or simultaneously. The detention order was passed on 31.8.96 whereas the ground, which were communicated to the detenu on 2.9.96, were framed on 2.9.96 itself, which is clear from the copy of the grounds itself. As such there is a clear violation of the mandatory provisions of the National Security Act, which violates the provisions of Article 21 of the Constitution of India.
9. Prevention detention is a precautionary measure and the power of preventive detention has been recognised as a necessary evil and is to lerated even in the democratic set-up, in the larger interest of the society for the maintenance of public order as well as in the interest of Security of the State. It is a drastic power to detain a person without trial. The personal liberty of a person is curtailed and he is detained with a view to prevent him from doing any harm to the society or to the public order in future.
10. Article 22(5) of the Constitution of India confers right on the detenu to make representations to the concerned authorities against his detention. It casts a duty upon the Detaining Authority to communicate to the person detained the grounds on which the order of detention has been made and shall afford an earliest opportunity of making a representation against the order. The language of Article 22(5) of the Constitution of India, thus, makes it clear that the order of detention can be passed on the basis of the 'Grounds' formulated by the Detaining Authority. The formulation of the grounds while passing the detention order, is a condition precedent. Unless the grounds are there, which satisfy the Detaining Authority that the activities of the detenu are prejudicial to the public order, the order of detention cannot be passed. The detention order can be passed only on the basis of the grounds available with the Detaining Authority. The grounds of detention, therefore, have to be framed contemporaneously or simultaneously alongwith the detention order. Formulation or framing of the grounds subsequent to passing of the detention order, vitiates the detention order itself as those were not the grounds available with the Detaining Authority, on the basis of which the decision was arrived-at by the Detaining Authority. The 'grounds of detention' are the conclusion of the facts appearing against the detenu and they must be in existence when the order of detention was made and these conclusions of the facts arrived at by the Detaining Authority, have to be communicated to the detenu as early as possible, as required under the law
11. It has been held by the Supreme Court in : Krishna Murari Aggarwala v. Union of India and Ors. : 1975CriLJ1648 , at page 489 of the judgment, that:
It is obvious that unless the order made and grounds prepared, are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Further more, since the order is passed on the grounds to be served on the detenu, the order of detention could be passed only If the grounds are in existence and are prepared contemporaneously, otherwise, the order of detention becomes purely illusory.
12. In : Smt. Shalini Soni and Ors. v. Union of India and Ors. : 1980CriLJ1487 the Supreme Court, while considering the necessity of formulation of the grounds simultaneously at the time of passing the detention order, in para 7 of the judgment, held as under:
Article 22(5) has two facts : (1) communication of the grounds on which the order of detention has been made; (2) opportunity of making a represent ion against the order of detention. Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of mind of the detaining authority to the facts and materials before it, that is to say, to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of mind).
13. In: Naresh Chandra Ganguli, for Shri Ram Das v. State of West Bengal : 1959CriLJ1501 , the question, which came-up for consideration before the Supreme Court, was regarding the rights of the detenu to be informed of the grounds, on which the order of detention has been made and the existence of the grounds, and the Supreme Court observed:
The grounds for making an order of detention, which have to be communicated to the detenu as soon as practicable, are the conclusion of the facts and are not the complete recital of all the relevant facts. Therefore, the grounds, that is to say, those conclusions of the facts, must be in existence when the order of detention is made and this conclusion of the fact have to be communicated to the detenu as soon as may be.
14. In: State of Bombay v. Atma Ram Shridhar Vaidya AIR 1958 SC 157 the question before the Supreme Court was the interpretation of Article 22(5) of the Constitution of India relating to the rights of the detenu and it was held by the Supreme Court as under:
Article 22(5) postulates two rights. The first part of Article 22 Clause (5) gives a right to the detained person to be furnished with 'the grounds on which the order has been made' and that has to be done 'as soon as may be.' The second right given to such person is of being afforded the 'earliest opportunity of making a representation against the order.' It is obvious that the grounds for making the order, as mentioned above, are the grounds on which the Detaining Authority was satisfied that it was necessary to make the order. These grounds, therefore, must be in existence when the order is made.
15. The law, therefore, requires that the order of detention can be passed by the Detaining Authority if he is satisfied, from the material available on record, that the activities of the detenu are prejudicial to the 'public order' and his detention is necessary. For passing the detention order, therefore, formulation of the grounds must be contemporaneous or simultaneous. The grounds must be in existence at the time of passing the order of detention.
16. In the present case, in D.B. Habeas Corpus Petition No. 3239 of 1996 (Rakesh Kumar Bhardwaj v. State of Rajasthan and Ors.) it has been specifically stated that in ground at serial No. 7 (Ch) FIR No. 408/96 of Annexure. 3, the fact has been mentioned that challan has been filed on 2.6.96 whereas the detention order has been passed on 31.8.96 and this case was considered by the Detaining Authority for forming a subjective satisfaction. In reply to this, it has been stated by the respondents that it is true that the detention order was passed on 31.8.96 but the grounds of detention were supplied to the detenu on 2.9.96 and as the charge-sheet was submitted in the Court on 2.9.96, it was rightly mentioned in the grounds of detention.
17. The grounds communicated to the detenu on 2.9.96 clearly show that they were formulated, framed and prepared on 2.9.96 and not on 31.9.96. If they would have been framed on 31.8.96, the facts mentioned in ground 7(Ch) that the challan has been filed, would not have found place in the ground. The grounds, admittedly, were signed by the Detaining Authority on 2.9.96, i.e., after the charge-sheet was submitted. The Detaining Authority has not filed any affidavit of his own controverting this fact mentioned in the writ petitions as well as in the rejoinder. These were the facts which the Detaining Authority alone could have denied and the affidavit of Mr. Nisar Ahmed- the Officer Incharge-denying this allegation, is of no consequence.
18. Even at page 255 of the reply to the rejoinder, these allegations have not been denied by Mr. Nisar Ahmed, also. In the absence of any affidavit of the Detaining Authority showing that the grounds were framed simultaneously, and the facts mentioned in the grounds, make it clear that the grounds communicated to the detenu were not formulated simultaneously but were framed and formulated only on 2.9.96 and, therefore, the fact of filing the challan in the Court on 2.9.96 finds mention in Ground (Ch). The detention order can be passed only on the existing grounds and not on the grounds formulated, framed and prepared after the detention order is passed. When a specific ground was taken by the petitioners that the grounds were not prepare simultaneously and there is no denial to this effect and moreover the denial could have been made only by the Detaining Authority who has passed the detention order and not by any other person, which is not there, and since the grounds were not formulated and prepared at the time when the detention order Annexure.2 was passed and it was prepared subsequently, therefore, the order of detention (Annexure.2) dated 31.8.96 deserves to be quashed and set-aside.
19. In the result, the writ petitions filed by the petitioners are allowed. The detention order Annexure.2 dated 31.8.96 passed by the District Magistrate, Chittorgarh (the Detaining Authority) detaining Ashwani Kumar Bhardwaj, is quashed and set-aside being violative of the provisions of the National Security Act and Article 22(5) of the Constitution of India. The detenu, if in custody, shall be released forthwith if he is not required in any other case or if he is not being detained under an order of competent Court.