Kamla Pandey Vs. State of Madhya Pradesh and anr. - Court Judgment

S.K. Dubey, J.

1. This is habeas corpus petition under Article 226 of the Constitution of India on behalf of the detenu Omprakash alias Bhola who has been detained by an order dated 31-3-1995 passed under Section 3(2) of the National Security Act, 1980 (for short 'the Act'), by the District Magistrate Sarguja, at Ambikapur.

2. The facts giving rise to this petition are these: A report (Annexure R. 1) to the return date 31-3-1995 by the Superintendent of Police was submitted to the District Magistrate, Sarguja wherein after stating the instances of activities of the detenu a prayer was made that an order under Section 3(2) of the Act be passed with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. Along with the report copies of Rojnamcha San has right from 11th June, 1989 were also enclosed. The detaining Authority on his subjective satisfaction in relation to the activities which were prejudicial to the maintenance of public order, passed the order of detention (Annexure R. 2) on the same day, which was served upon the petitioner along with the grounds of detention (Annexure R. 3) on 7-4-1995. The detention order was sent for approval of the State Government vide Annexure R. 4A dated 31st March, 1995, 10th April, 1995. The State Government vide Annexure R. 5 dated 12-4-1995 passed the order of approval of detention under Section 3(4) of the Act. An information along with report in the Pro forma No. 1 was also sent to the Central Government under Section 3(5) of the Act. The record of the proceedings of the detention was sent to the Advisory Board which after giving an opportunity of the representation and hearing to the petitioner-detenu in accordance with Section 11 of the Act opined on 12-5-1995 (Annexure R. 7) that there is sufficient cause for detention of Omprakash alias Bhola. After the receipt of the opinion, the State Government in exercise of its powers under Section 12(1) of the Act, vide order dated 16-5-1995 (Annexure R. 10) confirmed the order of detention and continued the detention for a period of 12 months from the date of detention that is up to 6-4-1996, which was communicated to the detenu through Jail authorities.

3. Shri Arvind Shrivastava, learned counsel for the petitioner contended that the grounds of detention and the order of detention clearly shows that the detaining authority has not applied its mind for arriving at a subjective satisfaction for passing an order of detention under Section 3 of the Act. A look to the grounds of detention shows that grounds are stale and has no relevance with Public order but to law and order. Grounds Nos. 1 to 16 are stale from the year 1988 to 1991 pertaining to commission of penal offences like theft, trespass, wrongful confinement, causing hurt and of threatening or are of preventing acts under Section 107/116, Cr.P.C. which relates to law and order and not public order. Ground No. 16 relates to a quarrel with one Lachand Gupta on 6-3-1992 and another quarrel with Ganesh Shukla on 21-5-1992 of which complaint was made in the police station, Ground No. 17 relates to an offence registered at Crime No. 220/92 under Section 302 of the Indian Penal Code which is pending in the Court. Ground No. 18 relates to an offence alleged to have been committed by the detenu under Sections 307, 452 of the Indian Penal Code of which offence was registered vide Crime No. 40/94. Ground No. 19 relates to Crime No. 47/94 under Sections 279, 337 registered against the detenu of which challan has been filed in court. Ground No. 20 relates to an offence registered in Crime No. 40/94 due to which proceedings under Section 107/116, Cr.P.C. were initiated in court on 30-3-1995. It was submitted that for the offence under Sections 307 and 452 of the Indian Penal Code, the detenu was in custody from 26-1-1993 to 30-3-1995 and when he was released on bail, preventive action was taken under Section 107/116, Cr.P.C. that is next day of his release. It was submitted the Superintendent of Police in his report did not stays the fact that the detenu is in jail for the offence under Section 307/452 of the Indian Penal Code in Crime No. 40/94 registered. Superintendent of Police also did not report that for the offence under Section 302 of the Indian Penal Code registered at Crime No. 220/92 the detenu was discharged vide order dated 30-9-1993 passed in Sessions Trial No. 213/93 by the Additional Sessions Judge, Manendragarh. The Superintendent of Police also did not state the fact that so far as the ground No. 8 is concerned, the detenu was prosecuted under Section 411 and not under Section 447 and 380 of the Indian Penal Code which resulted into acquittal of the detenu the judgment of which was passed on 30th Dec. 1993 in Case No. 2181/88 by the Judicial Magistrate First Class Manendragarh. The report was sent by the Superintendent of Police, to the District Magistrate on 31st March, 1995 as the detenu was to be released on bail on the same day. Without considering the relevant facts and circumstances the District Magistrate passed the order mechanically without considering whether the activities of detenu are against the Public Order or not. As the activities were not prejudicial to the maintenance of Public order, the order passed under Section 3(2) of the Act deserves to be quashed, reliance was placed on Ramesh v. State of Gujarat, AIR 1989 SC 1881: (1989 Cri LJ 2094), State of M.P. v. Kamal Kishore, AIR 1988 SC 208 : (1988 Cri LJ 405), Mohinuddin v. District Magistrate, AIR 1987 SC 1977, Smt. Shashi' Agarwal v. State of U.P., (1988) 1 SCC 436: (1988 Cri LJ 839), Slate of O.P. V. Harishankar Tiwari, AIR 1987 SC 998 : (1987 Cri LJ 840), Merugu Satyanarayan v. State of Andhra Pradesh, AIR 1982 SC 1543: (1982 Cri LJ 2357), Ayya alias Ayub v. State of U.P., AIR 1989 SC 364 : (1989 Cri LJ 991), Biru Mehta v. District Magistrate Dhandbad, AIR 1982 SC 1539 : (1982 Cri LJ 2354), M. Satyanarayana v. State of M.P., AIR 1982 SC 2351 (sic), Nandlal v. State of Punjab, 1981 Cri LJ 1501 : (AIR 1981 SC 2041) and Raisuddin alias Babu Tamchi v. State of Uttar Pradesh, (1983) 4 SCC 537.

4. Shri R.P. Agrawal, Addl. Advocate General on behalf of the State contended that the detenu has not pointed out any procedural defect in the order of detention. The detention order cannot be said to be vitiated merely because of the grounds are non-existent or non-germane, it is cumulative effect of the activities of the detenu which is to be taken into consideration while passing the detention order by the detaining authority. The detaining authority has considered the totality of the criminal conduct of the detenu right from the year 1985, who in spite of taking preventive action against him did riot-improve, hence, the order of detention was passed as no one comes forward to give statement against the detenu which results either in the acquittal or' discharge of the detenu. Therefore, that itself is suggestive of activity prejudicial to the maintenance of public order as the past activities completely gave an impression that the detenu is a terror in the locality because of his notorious activities and, therefore, the District Magistrate considering the over all circumstances and conduct of the detenue on his subjective satisfaction passed the order of detention. This court will not examine the truthfulness or falsity of the grounds annexed with the order of detention nor the Court will act as an appellate Court or make the judicial review of the order passed by the detaining authority as the detaining authority has passed the order of detention on subjective satisfaction that the activities of the detenu are prejudicial to the maintenance of public order. Reliance was placed on the decision in Meera Ram v. Government of Tamil Nadu, (1989) 4 SCC 418: (AIR 1989 SC 2027), Rajkumar Singh v. State of Bihar, (1986) 4 SCC 407 : (1986 Cri LJ 2042), Fitrat Raza Khan v. State of U.P., (1982) 2 SCC 449: (1982 Cri LJ 338), Wasiuddin Ahmed v. District Magistrate, Aligarh, (1981)4 SCC 521: (1981 Cri LJ 1825).

5. After hearing counsel for the parties, we are of the opinion that it is not necessary for the court to go into the various contentions raised by the learned counsel for the parties because we are of the opinion that in the present case admittedly the detenue was in jail for last 14 months immediately prior to his detention. This fact was not stated in the report of the Superintendent of Police which was placed before the District Magistrate. Not only this, the District Magistrate did not indicate that he was aware and conscious of the fact that the detenu who is already in custody in connection with a criminal case and who has been released on bail only on 30th March, 1995. The District Magistrate has also not recorded his satisfaction that his preventive detention is necessary to prevent him from indulging in the activities prejudicial to the public order, as he would indulge in the activities prejudicial to the maintenance of public order, if he is allowed to remain at large.

6. In case of Raj Kumar Singh, 1986 Cri LJ 2042 (SC) (supra), the Supreme Court has observed that, Preventive detention for the social protection of the community is a hard law but, it is a necessary evil in the modern society and must be pragmatically construed, so that it works, does not endanger social defence or the defence of the community and at the same time does not infringe the liberties of the citizens. A balance should always be struck.

7. Every citizen in this country has the right to have recourse to law. He has the right to move the Court for bail when the is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the Court for bail by claiming an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a baled statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. See the case of Smt. Shashi Agarwal and of Meera Rani, 1988 Cri LJ 839 (supra).

8. True, the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct 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 is necessary. See Wasiuddin's case 1981 Cri LJ 1825 (SC) (supra).

9. In case of M. Satyanarayana (sic) (supra) while the detenu was in jail, the Supreme Court has observe in para 11 and 12 thus:-

11. Sub-section (2) of Section 3 of the Act confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State of from acting in any manner prejudicial to the maintenance of public order, etc. In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order. In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated. This is the postulate of the section. And this indubitably transpires from the language employed in sub-section (2) which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order. Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under Sub-section (2) of Section 3, if exercised, would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section and would appear tautologous. An order for preventive detention is made on the subjective satisfaction of the detaining authority. The detaining authority before exercising the power to preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order. (See Ujagar Singh v. State of Punjab, AIR 1952 SC 350 : 1952 SCR 756 : (1953 Cri LJ 146) and Jagjit Singh v. State of Punjab. Now, if the man is already detailed, can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made? In Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334 : (1964) 4 SCR 921: (1964(1) Cri LJ 357) this Court held that as an abstract proposition of law the detention order can be made in respect of a person who is already detained. But having said this, the court proceeded to observe as under:

As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigourous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the consideration of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon, be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigourous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.12. One can envisage a hypothetical case. Where a preventive order may have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. But as stated' by this Court it will depend on the facts and circumstances of each case.

10. In case of Biru Mahato 1982 Cri LJ 2354 (SC) (supra), the Supreme Court observed that the awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence. This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by a detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. In the absence of it, it would appear that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non-application of mind to the relevant facts and any order of such serious consequence when mechanically passed without application of mind is invalid.

11. In the present case the detenu as released on bail but no circumstances have been placed on record from 30th March, 1995 or on 31st March, 1995 that after the release of the detenu from jail the detenu indulged into any activity prejudicial to the maintenance of public order but it seems from the facts of the case that the Superintendent of Police concerned was aware of the fact that the detenu is likely to be released on bail and therefore sent his report hurriedly on 30-3-1995 to the District Magistrate which was received by him on 31st March, 1995. The District Magistrate without being aware of the fact that the detenu was in the custody and after his release from Jail he would indulge in the activities prejudicial to the maintenance of public order, which is required to be prevented by a detention order. This awareness is absent in the order, because the fact of the detenu being in jail and is likely to be released on bail on 30th March, 1995 was not placed before the District Magistrate which apparently shows that the detaining authority was not even aware of this vital fact who mechanically proceeded to pass the order which would unmistakably indicate that the order so passed of such serious consequence was without application of mind to the relevant facts of the case, hence, is invalid.

12. In the result, the petition is allowed. The order of detention passed against the detenu Omprakash alias Bhola is quashed. He shall be released forthwith.