Rajasthan High Court - Jaipur
Kuldeep Singh vs State Of Rajasthan And Ors. on 17 March, 1999
Equivalent citations: 1999CRILJ2557, 1999(3)WLC36
Author: V.G. Palshikar
Bench: V.G. Palshikar
ORDER
1. This petition styled as Habeas Corpus petition is filed by one Kuldeep Singh on behalf of his brother Parmindra alias Kaka, who has been detained under the provisions of the National Security Act, 1980 (hereinafter referred to as 'the Act') by the respondents. Undisputed facts necessary for just and proper disposal of this petition stated briefly are that on 25-9-98 Parmindra alias Kaka (hereinafter referred to as 'the detenue') was called by the police and was detained in Central Jail, Udaipur. The order of detention passed by the District Magistrate, Udaipur (respondent No. 2 herein) was served on the detenue in jail on the same day. On the next day i.e. 26-9-98 respondent No. 3 communicated to the detenue the grounds on which he was being detained, a copy of the grounds being supplied to the detenue on the same day. He was also given list of documents on the basis of which the grounds of detention were framed. A complaint was then made by the detenue regarding the language of the documents, which were in Gujarati and he claimed inability to make effective representation to such documents. Later on, on 5-10-98 the order of detention passed by the District Magistrate, Udaipur was approved.
2. On 6-11-98 the Advisory Board as constituted under the provisions of the National Security Act met Shri Kalla, Advocate along with the present petitioner represented the detenue before the Board and claimed that on several reasons mentioned in the representation, the detention of the detenue is liable to be quashed as it is illegal and unsustainable in law being violative of the fundamental rights guaranteed by the Constitution of India. Several other questions within the framework of the Act purporting to violation of. safeguards provided by the Act, were also raised. The opinion of the Advisory Board is called under the Act opining that the detention of the detenue was justified. On receipt of this opinion, the State Govt. passed an order of confirmation presumably under Section 12 of the Act. However, without waiting for these proceedings before the Advisory Board to culminate, a writ petition was filed, styled as Habeas Corpus petition on 8-10-98 before this Court wherein it was alleged that the detention of the detenue is illegal as whereabouts are not known and, therefore, a writ of Habeas Corpus is liable to be issued. This was presumably done to seek indulgence of this Court in issuing a writ of Habeas Corpus when factually the people concerned knew that the detenue has been detained under the provisions of the Act and is in Udaipur Jail. There also was no question regarding production of body of the detenue, which is the intention of the writ of Habeas Corpus. In fact, the detenue was detained under the provisions of an Act validly made by the legislature i.e. National Security Act and was continued in detention under the provisions of that Act. Strictly speaking, there is no question of issuance of any writ of Habeas Corpus in the present case. It is in pith and substance a petition for issue of writ of Certiorari for quashing the order of detention as it violates the basic safeguard provided by the fundamental rights as also of the statute under which it is passed. However, the nature of the petition need not detain us in adjudicating upon the merits of the case as canvassed before us by the counsel for the petitioner.
3. The first contention raised on behalf of the petitioner in support of the petition is that the petitioner has been detained for a period of one year as mentioned in the order, this fixing of the period of detention is beyond the power of the District Magistrate under Section 3 of the Act and is, therefore, illegal. It is alleged that such peremptory determination of the period of detention has positively prejudiced a fair consideration of the representation of the detenue and is also liable to influence the authority of the Advisory Board while it considered the representation. Reliance was placed on several decisions of the Supreme Court of India in support of this contention basically the judgment in Makhan Singh Tarsikka v. State of Punjab AIR 1952 SC 27 : 1952 Cri LJ 321. Reliance is also placed on the following decisions : Dattatraya Moreshwar v. State of Bombay AIR 1952 SC 181 : 1952 Cri LJ 955, Puranlal Lakhanpal v. Union of India AIR 1958 SC 163 : 1958 Cri LJ 283 and Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51.
4. The second contention was that the representation made by the petitioner, has not been considered either by the State Govt. or by the Central Govt., which is a statutory as also constitutional requirement and, therefore, for non-consideration of the representation, the detention is vitiated. The submission is that the representation contained several grounds on the basis of which the detention was liable to be revoked or not confirmed. The right which vests in the detenue by the rule of Article 22(5) of the Constitution which is a fundamental right is thus violated. The representation contained several grounds on the basis of which these authorities could come to the conclusion that the detention was unjustified or cannot be continued. A fundamental protection granted to the petitioner is, therefore, lost. In Support of this contention, reliance was placed on the following decisions of the Supreme Court of India : Balchand Chorasia v. Union of India 1978 (1) SCC 161 : 1978 Cri LJ 159, Smt. Shalini Soni v. Union of India, (1980) 4 SCC 544 : 1980 Cri LJ 1487, Mahesh Kumar Chauhan alias Banti v. Union of India AIR 1990 SC 1455 : 1990 Cri LJ 1507, Shri Saleh Mohammed v. Union of India (1980) 4 SCC 428 : 1980 Cri LJ 1496, Smt. Gracy v. State of Kerala AIR 1991 SC 1090 : 1991 AIR SCW 559 and Sh. Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad AIR 1996 SC 2998 : 1996 Cri LJ 1981.
5. The third contention is that the copies of the documents supplied to the detenue were illegible being in Gujarat. In fact, it prevented the petitioner from making representation effective in nature and thereby denying the basic right to him. On this ground also, it is alleged that the detention is illegal. Reliance again was placed on several judgments of the Supreme Court of India.
6. In addition to these, the learned counsel appearing on behalf of the petitioner desired to argue the matter on several other questions.
7. The learned Addl. Advocate General appearing on behalf of the respondents justified the detention by pointing out to this Court that all the necessary measures and safeguards provided by the Act in relation to the preventive detention effected under that Act, have been taken and, therefore, there is no question of the detention being illegal. He pointed out to the Court that the representation as made by the petitioner on be half of the detenue was duly considered by the Advisory Board and following the opinion of the Board, the detention was confirmed by the State Govt. and consequently, the provisions of the Act have been complied with. However, the learned Addl. Advocate General was unable to point out from the record of the case that the representation as made by the detenue or on his behalf, was independently considered by the State Govt. or the Central Govt. and it, therefore, appears that the contention raised on behalf of the detenu in elation to non-consideration of his representation also may appear to be well-founded.
8. However, we do not propose to deal with any other contention raised on behalf of the detenue as in our opinion, the order of detention is liable to be quashed by reason of the fact that the period of detention was determined by respondent No. 2 and also by respondent No. 3 itself, when according to us, he had no jurisdiction to do so. As will be seen from the reasons mentioned hereinafter, the detaining authority does not have jurisdiction to circumscribe and define the period of detention for which the detention was continued. It is the prerogative of the State to be exercised by it after the opinion of the Advisory Board is sought. Since the detention order is liable to be quashed on this ground alone, we do not desire to elaborately deal with or decide any of the other submissions and contentions made on behalf of the detenue.
9. It would be, therefore, necessary for proper adjudication of the contention raised on behalf of the petitioner that the District Magistrate under the provisions of Section 3 of the Act has no jurisdiction to determine the period for which the detenue shall be detained.
10. According to the scheme of the National Security Act, 1980, it will be seen that the Act was legislated in the year 1980 to replace the previous legislation in regard to preventive detention and to provide a preventive legislation for providing detention in matters connected there with. Section 3 of the Act empowers the Central Govt. and the State Govt. to make an order directing that a person may be detained if his action was prejudicial to the defence of India in any matter. Similar orders of detention can be made by both the Governments if action of any person in any manner is prejudicial to the security of the State or prejudicial to the maintenance of public order or maintenance of supplies and services essential to the community. In effect Section 3 empowers both the Central Govt. and the State Govt. to put in a preventive detention, any person if his activities are prejudicial to the State on any of the grounds mentioned in Sub-sections (1) and (2). Sub-section (3) of Section 3 then empowers the State Govt. to delegate its jurisdiction or power to order detention of any person in accordance with the provisions of Sub-sections (1) and (2) of Section 3 if circumstances prevailing in the local area requires conferal of such jurisdiction. It is in exercise of this provision that the District Magistrate has been empowered by the State of Rajasthan to make order of detention under Section 3. Subsection (4) of Section 3 then provides that whenever an order of detention is made under Sub-section (3) by the District Magistrate, he shall forthwith report the fact to the State Govt. to which he is subordinate and unless the order is confirmed by the State within 12 days, it will automatically come to an end. Then Sub-section (5) of Section 3 enjoins the State Govt. to report the matter to the Central Govt. After it approves the order made under Sub-section (3) or where the order is made by the State itself under Section 3(1) of 3(2) along with the grounds of detention.
11. From the provisions of Section 3 considered above, it will, therefore, be seen that preventive measure can be ordered either by the Central Govt. or the State Govt. and when ordered by the State Govt, or its delegated officer under Subsection (3), the fact of detention and the grounds of detention shall be communicated to the Central Govt. within the stipulated period. Obviously where such detention is ordered by the Central Govt. itself, no such communication is necessary. It is then contemplated by the Act that the Central Govt. as also the State Govt. shall constitute Advisory Boards for considering the matter of detention ordered under the Act. Section 10 then provides that where a detention order has been made under this Act, the appropriate Govt. shall, within three weeks from the date of detention place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected by the order of detention. Then by reason of Section 11, the Advisory Board has a duty to decide the representation and opine on justification of the order of detention on considering the materials placed before it and submit its report to the appropriate Govt. within seven weeks from the date of detention of the person concerned regarding the feasibility or otherwise of the detention. Section 12 then provides for the action to be taken on the report of the Advisory Board and it is mandatory by law that where the Advisory Board has reported that the detention is on sufficient cause, the appropriate Govt. may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Sub-section (2) of Section 12 provides that the Govt. shall revoke the order of detention where the report of the Advisory Board is that there is no sufficient cause of detention. It is worthwhile to note at this stage that continuation of detention on sufficient cause, after the Advisory Board has opined that there is sufficient cause, is left to the discretion of the State. But where the Advisory Board has opined that it has not found sufficient cause, it is mandatory that the appropriate Govt. shall revoke the detention order and cause the person concerned to be released forthwith. Thus, due importance is given to the opinion of the Advisory Board as rendered by it on deliberations under Section 11. Section 13 then provides the maximum period for which a person can be detained. 12. From the scheme of the Act as explained above, it will be seen that in view of the grounds mentioned in Section 3. The order of detention can be made by : i) Central Govt. (ii) State Govt. or (iii) by the Officer authorised by the State Govt. under Section 3(3) of the Act. The detention so ordered is liable to be considered and confirmed by the State thereafter within a stipulated period. Even it is done by the Officer mentioned in Sub-section (3) of Section 3 of the Act. Thus, only after confirmation of the order of the detention by the State in the manner prescribed that the proceedings before the Advisory Board commence and the Advisory Board then opines on the sufficiency of the cause of detention ordered by the order under Section 3. It is only after the Advisory Board has opined that the detention is for sufficient cause that the appropriate Govt. may confirm the order of detention and prescribe the period for which it is to be continued, the maximum being provided by Section 13 of the Act. It is, therefore, obvious that the Act confers the power of continuing the period of detention only on the appropriate Govt. The only words in Section 12 are, therefore, made "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit." (Emphasis supplied). The determination of the period of detention is, therefore, the duty of the appropriate Govt. only. According to the legislature, therefore, the detaining authority may order detention of a person for certain reasons and the appropriate Govt. may continue the same after the opinion of the Advisory Board is obtained for such period as it thinks fit. It is for the appropriate Govt. to consider for what period the detention is made and the delegated Officer can continue and for that purpose it will have to take into consideration not only the grounds on which the detention is ordered but also the circumstances in which it is ordered as also the opinion of the Advisory Board. In such circumstances, determining the period of detention in the order of detention by respondent No. 3 would be premature and peremptory as can be seen from the following illustration:--
Assume that a man is habituated to holding sugar, edible oil and other essential edibles during the festival of Diwali. Every time it renders a serious injury to the community where the holding takes place and is a real hazard for the maintenance of supplies and services essential to the community of that area and, therefore, the designated Officer of that area forms an opinion that detention of such person under the provisions of Section 3 of the Act is essential and, accordingly, make an order of detention, which is duly considered thereafter by the Advisory Board and the Advisory Board opines that the detention is on sufficient cause. The appropriate Govt. thereafter considers all these aspects of the detention and can come to a conclusion that the detention of this man for a period of one month each preceding and following Diwali is sufficient and the appropriate Govt. may, therefore, fix the period of detention for three months preceding and following the Diwali. If the order of detention thus says that the detention shall be for a period of 12 months or 6 months or 9 months, it will positively have the effect of prejudice and bias in the mind of the appropriate Govt. while determining the period of detention under Section 12. The appropriate Govt. may not in such circumstances independently apply its mind to the question of period of detention. The same having been suggested in the detention order itself. Happening of such kind, definitely prejudices the detenue in the matter of his detention being continued unnecessarily by reason of such suggestion and it is for this reason that since the inception of law on preventive detention, it has been held by the Courts in India including the Hon'ble Supreme Court of India that the designated authority was having no jurisdiction to determine the period of limitation. We arrive to this conclusion on examination of several decisions of the Supreme court of India in this regard, some of which have already been quoted above. It has been held by the Supreme Court of India in Makhan Singh's case 1952 Cri LJ 321 (supra). "It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that, the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself is, therefore, contrary to the scheme of the Act and cannot be supported." To the same effect are several subsequent judgments. These judgments were, however, delivered under provisions of the Preventive Detention Act, 1950 and the Maintenance of Internal Security Act, 1971 but the provisions of the National Security Act, which is under consideration in the present case are pari materia with the provisions under these enactments and, therefore, we are also bound by the ratio of the above Supreme Court judgments even under the National Security Act.
13. In the present case, it will be seen that the order of detention itself specifies the period of detention as will appear from the reason mentioned hereinbefore, such determination is serious prejudicial to the case of the detenue and the detention is, therefore, vitiated. Since we have found that the detention vitiates on this ground alone, as already stated above, we see no reason to deal with other contentions raised in this behalf by the counsel for the petitioner. The learned Addl. Advocate General has also cited before us several decisions in reply to other contentions raised on behalf of the petitioner. However, in the view we have taken, we see no reason to deal with those citations also.
14. In the result, the petition succeeds and is allowed. The order of detention dated 25-9-98 is quashed. The detenue be set at liberty forthwith.