Bombay High Court
Abdul Rasheed Khan Alias Rasheed Mamu ... vs State Of Maharashtra And Anr. on 12 February, 1987
Equivalent citations: 1987(2)BOMCR131
JUDGMENT C.H. Guttal, J.
1. The petitioner Abdul Rasheed Khan son of Abdul Hameedkhan a resident of Aurangabad was detained under the National Security Act, 1980, (hereinafter referred to as the Act), by order dated 3rd June, 1986 made by the District Magistrate, Aurangabad. In this petition he challenges the legality of the order of detention.
I. FACTS GROUNDS OF DETENTION
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2. Briefly stated the facts are as under :
The order of detention was served on the petitioner at 6.30 p.m. on 3rd of June, 1986. The grounds of detention were served on him at 00.10 a.m. on 8th of June, 1986. The petitioner disputes this fact and claims that the grounds of detention were actually served on him at 2 a.m. and not at 00.10 a.m. on 8th of June, 1986. Along with the grounds of detention the petitioner was also supplied with the copies of first information reports, statements of witnesses, panchnamas, etc. The report under section 3(4) of the Act was received by the Government from the District Magistrate on 9th of June, 1986. The Government of Maharashtra approved the detention order on 12th of June, 1986. The report under section 3(5) of the Act was sent to the Government of India on 12th of June, 1986, which was received by the Government of India on 16th of June, 1986. A reference was made to the Advisory Board constituted under the Act on 16th June, 1986. On or about 17th of June, 1986, the petitioner made a representation directly to the Advisory Board constituted under the Act. He did not address any representation to the State Government. The Advisory Board formed its opinion about the detention of the petitioner on 2nd of July, 1986, which was received by the State Government on 18th of July, 1986. On considering the report of the Advisory Board and the petitioner's representation the State Government under section 12 of the Act confirmed the order of detention on 25th of July, 1986. This petition was filed on 25th of September, 1986.
3. The substance of the grounds of detention communicated to the petitioner is this :
(i) The petitioner committed the offences under Chapters VIII, XVI and XVII of the Indian Penal Code thereby creating alarm of communal commotion in the city of Aurangabad. These are four such cases involving the offence against the human body by use of deadly weapons, assault on public servants, public commission of riots with deadly weapons, assaulting the police, Executive Magistrates and Revenue Officers:
(ii) The petitioner is involved in the offences of riots, attempt to commit murder, destruction of public and private properties;
(iii) Disturbance of communal harmony by criminal activities which resulted in the riots in aurangabad on 17-1-1986 and 20-5-1986, in which 25 and 27 offences respectively, were registered;
(iv) The petitioner has the external appearance and reputation of respectability but his underground activities concealed from the public servants are cunning and criminal. He provokes Muslims against Hindus by exploiting religious feelings. These two faces of the petitioner concealed his real role in carrying out illegal activities. He has terrorised the people and at the same time succeeded in remaining out of each of the arms of law;
(v) Particulars of the crimes :
Sr. Crime Date Time Particulars
No. Registered
1. 2. 3. 4. 5.
1. 415 of 1984 5-10-84 4 and Between The petitioners
U/Ss. 143, 4.30 p.m. and others beat
147, 337, Madhubhai s/o Onkarbhai
and pelted stones at
the Ice Factory of Baba
336,427 IPC Farzan and collected
unlawful assembly
along with one Salim Kawam.
2. 32 of 1986 17-1-86 Between The petitioner and his
U/Ss. 147, 466, 2 and associates
427 and 307 IPC 4 p.m. threw stones fired by
gun at the house of
Baba Farzan damaged
the compound wall, cut
telephone wire and threw
burning cotton swabs in
the house. Shouted slo-
gans "Pakistan Zindabad,
Naare Takbir Allaha Ho Akbar.
The petitioner and his men
shouted slogans "He
Musalmanoki Basti Hai,
Tu Gandu Yahase Chala
Ja". Set fire to the
compound wall and
house of Baba Farzan and
resorted to firing by
revolver; When the public
servants like revenue
and police officers tried
to disperse the crowd,
the petitioner & his asso-
ciates tried to assault
the officers in which some
police personnel were injured;
The petitioner went on the
raised open plot of complaint's
house, provoked and insti-
gated the crowd by use of
the word Logo Hol Kuch
Darne Ki Baat Nahi Yeha
Barehi Mouka Hai, Ham
Sab Dekh Lenge,Tum Iss Aadmi
Ko Khatam Kar do, Iske
Ghar Jala Do, Angar Laga Do, Kuch
Nahi Hota." Then he gave the
slogan of "Pakistan Zindabad"
3. 33/1986 17-1-1986 Between A mob of 300 persons set
U/Ss 307 5 and fire to the Ice Factory of Baba
r/w sec. 5.30 p.m. Farzan. Police and Revenue and
34 IPC Officers went to the spot. One
person tried to assault the Super-
intendent of Police.
The complaint was made by the
Police Constable G.M. Tambade
Buckle No. 1465. One of the per-
sons whom Tambade had caught
stabbed him with Gupti and es-
caped with the crowd.
The culprit was identified as
Irfan. Irfan is an associate of the
petitioner.
4. 50/1986 17-1-1986 Between The procession of Shiv Sena was
U/Ss. 146, 145 and proceeding. Hindus and Muslims
353, 352, 336 2.50 p.m. pelted stones at each other. The
& 307 IPC petitioner and his associate Ilyas
provoked the mob. The gravity
was intensified because of the
provocation. Crimes of arson,
looting and assaulting public
servants on duty registered in 85
cases. Public property and private
property worth lakhs of rupees
were destroyed because of peti-
tioner's provocation.
4. Another incident of rioting and arson occurred on 20th of May, 1986. The police, the District Magistrate and the State Government are in possession of evidence of the petitioner's involvement in this incident. The respondents have declined to disclose the source and contents of this information under section 8(2) of the Act.
On the facts summarised above, the District Magistrate formed an opinion that the petitioner who was working being the curtains provoked the aforementioned incidents involving violence to the members of public, public servants and destruction of property and also communal riots. The activities of the petitioner, according to the District Magistrate, are detrimental to the maintenance of public order.
5. There is a common fabric which runs through all the cases filed against the petitioner. The cases, referred to in paragraph 3 above, which occurred on the same day in succession involved commission of crimes by large crowds. They were not incidents which arose out of individual enmity nor were they motivated by desire to wreak vengeance against individuals though the attacks were directed against the individuals or their properties. A crowd of over 300 and in two cases a crowd of 2000 was instigated into violence by arms, fire and stones. The petitioner was invariably alleged to be the source of the instigation of commit the various crimes. What lent a new dimension was not the crime itself but the slogans which accompanied the commission of these crimes. Slogans like "Pakistan Zindabad", "Yeh Musalmanoki Basti Hai", "We are all one, dill this person", "burn his property" were shouted, public servants on duty were assaulted and a constable was stabbed. It is against the background of these facts that the District Magistrate was called upon to satisfy himself as to whether the events and persons involved threatened public order.
II POINTS URGED
6. Mr. Bajpai, learned Counsel for the petitioner urged four points :
(i) The District Magistrate has not applied his mind to the facts and consequently the order of detention is vitiated;
(ii) In regard to the incident which occurred on 20th May, 1986, the Detaining Authority has refused to disclose the source and contents of information by resorting to section 8(2) of the Act. Withholding of the information is arbitrary;
(iii) The order of detention is motivated by an oblique motive and therefore, it is mala fide.
(iv) There is unexplained delay on the part of the respondent No. 1 in deciding the representation of the petitioner and the order of detention was not served within the time stipulated by section 8(1) of the Act.
III NON-APPLICATION OF MIND
7. While urging the first point namely; the non-application of mind a few circumstances have been referred to with reference to the grounds of detention. Some of the arguments stem from a mis-conception of the meaning of "grounds" of detention. It is necessary to have a clear notion of what constitutes "grounds". The grounds of detention have two constituents. One is the factual constituent which includes the facts of the crime based on the reports of crime such as the first information reports, the statements of witnesses and reports of the Police Officer. The second aspect is the conclusion based on such factual constituents. Therefore, it follows that when a Detaining Authority is required to furnish the grounds of detention he should furnish the factual constituent as also the conclusions or facts. As held by the Supreme Court in Vakil Singh v. State of Jammu & Kashmir, and State of Maharashtra v. Atmaram Shridhar Vaidya, , the grounds are not complete detailed recital of all the facts. The grounds must contain the pith and substance of primary facts and the conclusions but they need not set out subsidiary facts or details of the evidence. The provisions of law are sufficiently complied with if the basic facts and conclusions drawn from them are supplied to the detenu.
8. The first point has been described by Counsel as "non-application of mind". But the supplemented the arguments by referring to other points, such as want of nexus, statements of grounds, sufficiency of a solitary incident etc. It was possible to urge them as independent points and facilitate an ordered treatment of the arguments. Be that as if may we have tried to deal with them.
9. It was urged that the petitioner has not been named in the complaints which have been summarised above. This is factually incorrect. In each of the crimes namely; Crime Nos. 32/1986, 33/1986, 50/1986 and 415/1984 the petitioner has been expressly named. Rashid Mamu and some others are the persons named in these complaints. Besides, it is not the complaints themselves that were placed before the District Magistrate but he had before him all the documents connected with the investigation of these cases. These documents include the statements of witnesses who implicate the petitioner and others, panchnamas where under the weapons were seized and all other relevant material. Even if it is assumed for the sake of argument that the first information report does not name the detenu, the statements recorded subsequently in which the witnesses named the detenu and others are relevant material. If the District Magistrate had before him this material, it cannot be said that he had no material on the basis of which he could apply his mind to the question whether the petitioner's act threatened public order.
Then it was urged that there was no evidence of provocation by the petitioner. This is again factually incorrect. For instance, in Crime No. 50 of 1986 with regard to the incident which occurred on 17th of January, 1986, between 1-45 to 2-50 p.m., Rashid Mamu and Ilyas have been named as the persons who instigated the mob.
In the four incidents which occurred on 17th of January, 1986, as many as 85 offences were registered. The submission of the petitioner that there was no material on the basis of which the District Magistrate could conclude that the petitioner was involved in these incidents of arson and riots is factually incorrect.
10. An incident occurred on 20th of May, 1986, the details of which were not furnished to the petitioner. In this incident 27 offences were registered. They were of similar kind involving a large mob instigated by the petitioner and others. The District Magistrate considered that it was not in public interest to disclose the sources and details of this incident. Paragraph 31 of the affidavit of the District Magistrate that the petitioner was behind this incident too and the source cannot be disclosed in the public interest has to be accepted. It is impossible to hold that the District Magistrate took into consideration the incident of 20th of May, 1986, without any material merely because such material was not supplied to the petitioner. It is not possible nor desirable to compel the Detaining Authority to disclose such sensitive material especially when communal rights were rampant around the time when the incident occurred. The petitioner referred to the decision of this Court in Birju Makadwala alies Birji Satya v. The State of Maharashtra and others, . In the case the first information report referred to the motive for the assault as "sudden quarrel". Relying on the judgment of the Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others this court considered that such an incident which involved individual quarrels did not constitute prejudice to the maintenance of public order. The judgment has no application to the facts of this case for the simple reason that the incidents which gave rise to this petition were not between individuals. Grave danger to public order is writ large in the very nature of assaults, slogans raised and participation by large crowds led by the petitioner.
11. It was urged that all the four incidents which provided the impetus for the detention occurred on the same day and since the facts about the case registered on 20th of May, 1986, have not been disclosed to the petitioner, the conclusion that the petitioner was likely to repeat the criminal acts is unfounded. In the first place the assumption that the incident of 20th of May, 1986, did not involve the petitioner is factually incorrect. All that it can be said is that the petitioner has not been supplied the grounds based on the facts of the incident. But this has been done by the Detaining Authority in exercise of his legitimate right under section 8(2) of the Act. We are unable to agree that the incident of 20th of May, 1986, is not relevant merely because the sources and its contents have not been disclosed to the petitioner. The four incidents though of the same day had unique quality of their own. They are marked by acts of destruction by a mob which shouted slogans like 'Pakistan Zindabad' and slogan having communal content. They assaulted public servants, threw burning swabs of cotton and generally created terror. The fact that they occurred on the same day in quick succession is a measure of their organised character. Though the day was solitary, the incidents were not isolated. On the basis of these incidents it was for the District Magistrate to decide upon subjective satisfaction whether public order was imperilled. In Raisuddin v. State of Uttar Pradesh, 1983 Cri.L.J. 1785, the Supreme Court held that the ground of inciting and fomenting communal hatred and violence and creating an atmosphere of fear and tension in the town at a time when grave communal disturbances then prevailing in the town, criminal cases were pending, was irrelevant. In (Re Sushanta Goswami)6, A.I.R. 1969 Supreme Court 1004 the detenu was acting with large number of associates and committed acts which created disturbances of public order. The Court held that the grounds were relevant for detention. In the present case not only did the petitioner inside and foment violence against the community creating thereby an atmosphere of fear and tension but also gave slogans like 'Pakistan Zindabad' which had the potential of causing further disturbance of public order. On these facts the District Magistrate who is entrusted with the duty of forming his opinion came to the conclusion that the petitioner's activities were prejudicial to the maintenance of public order. We see no reason to find fault with the satisfaction of the District Magistrate because it was based on material which was relevant.
12. It was also suggested that the occurrence of incidents on a single day does not necessarily lead to an inference that the petitioner would repeat them. As already stated, this is factually incorrect because on 20th of May, 1986, the petitioner is alleged to have committed similar acts. Again the assumption behind this submission that a single act of criminality is not relevant in forming the requisite opinion is erroneous. The inference in each case will depend on the nature of the act and attendant circumstances. Saraswati Sheshgiri v. The State of Kerala, . It all depends upon the nature of the act and the attendant circumstances. What were the facts of this case? Four incidents in quick succession on the same day involving large crowds shouting slogan such as "Pakistan Zindabad" and committing offences not only against individuals but also against public servants on duty had taken place. The gravity of the situation was such that the Detaining Authority considered them sufficient to warrant an inference that similar acts prejudicial to public order were likely to be repeated. It is not for the Court to evaluate the facts and judge whether it would come to the same conclusion as that of the District Magistrate. All that needs to be considered is whether such material was relevant to the decision of the Detaining Authority. Again it must be remembered that it is the quality and nature of incidents and not the quantity that is material. Even one incident may be sufficient to satisfy the Detaining Authority. Alijan Miya v. The District Magistrate, . Similarly, in Abdul Latif v. District Magistrate, Malda, the solitary incident of organised stopping of running goods train and looting them was held to justify the detention. In Dharus Kanu v. State of West Bengal, the solitary incident of removal of fish plates from a running track justified an inference that the petitioner it let at large would indulge in similar activities in future.
13. Thus, there is not cut and dried formula to determine as to what should satisfy the Detaining Authority. There are cases and cases, incidents and incidents. A solitary incident may be so unique in its gravity and potential that the Detaining Authority may be justified in being satisfied that it was necessary to prevent it by detention of the detenu. The incidents of 17th of January, 1986, were so unique and exceptional in gravity that they demonstrated their potential for continuing criminality against community thereby terrorising the people and creating communal hatred. The case of Babulal Das v. State of West Bengal, is instructive. The Supreme Court observed that the act of organised decoity in a running railway train by armed gang equipped with file arms and putting innocent passengers to peril of life and property is so manifestly suggestive of desperate daring, organised, ganging and habitual proclivity to violence that it cannot be held unreasonable to infer therefrom a trendy course of criminal conduct, although intercepted or detected but once like to break public order in a brazen manner and panicking the community by show of force.
Another case in point is Anil Dev v. State of West Bengal, . The detenue committed robbery of signal materials involving catastrophic disruption of the railway services. It was held that the single act cannot live in isolation and necessarily cannot a course of previous conduct where by some specialisation has been acquired, some specialised agencies have been fabricated and some special mischief has been planned to be perpetrated. Thus, it is clear that even a single incident would be relevant for the purpose of holding that it was necessary to detain the petitioner in the interest of public order.
14. A few judicial decisions relied on by Mr. Bajpai may now be considered.
In Ram Bahadur Rai v. The State of Bihar and others it was held that the decision to start "Gujarat type agitation" did not imply a clarion call to violence. The grounds of detention did not trying out the allegation that the detenu preached violence. The grounds were vague and uncertain. It was held that it was wholly improper to pronounce on the prognosis of the political events like Gujarat agitation. In the present case the allegations against the petitioner to which the District Magistrate applied his mind were clear, specific and adequate to pronounce on the prognosis of criminal acts and public order. It was argued that since the petitioner's name and the material have not been disclosed, the cases occurring on a single day namely; 17th of January, 1986, cannot lead to the prognosis. We have already referred to the various decisions of the Supreme Court wherein it has been held that a single incident is sufficient to lead to such prognosis if those incidents were pregnant with the potential to cause communal disturbances and threaten public order.
In Mohmood Abubakar Marwari v. Union of India and others, 1982 Cri.L.J. 53 the grounds of detention were neither formulated nor framed by the Detaining Authority. They were not signed by the Detaining Authority at about the same time of making order of detention (see paragraph 9 of the report). The Supreme Court held that relevant and irrelevant material was not sifted and consequently, there was no application of mind. In this case the facts are different.
In the context of the case of Mohmood Abubakar Marwari case. Mr. Bajpai referred to the first information report in Case No. 32 of 1986 in which the attacking mob has been described as "residents of our lane" which is Deodi Bazar, Lota Karanja, Aurangabad. It is claimed that the petitioner does not reside at Deodi Bazar. This description being in-applicable to the petitioner the Detaining Authority it is alleged, has not applied his mind. But learned Counsel for the petitioner ignores that this first information report and statements of witnesses who implicate the petitioner were supplied. It is not his case that the witnesses do not implicate him. The judgment of the Supreme Court has no application to the facts of this case.
In regard to Crime No. 33 of 1986, similar contention was raised by Mr. Bajpai but the material placed before the District Magistrate reveals that the witness by name Rajnikant identified the petitioner. Although the petitioner has not been named in the first information report, the statement of Rajnikant was supplied to the petitioner. It cannot, therefore, be said that the petitioner's connection with the offence was not placed before the Detaining Authority.
In Atul Gunvantrai Bhatt v. Commissioner of Police, Ahemadabad and others, 1982 Cri.L.J. 1895 the Gujarat High Court found that the detenu was not shown to have been connected with the agitation. In this case the District Magistrate had sufficient material which connected the petitioner with the crimes.
Narayan Shankar Patil v. Commissioner or Police, Thane, is a case where the grounds of detention furnished no facts but set out allegations that the detenu was spreading fear, carried weapons and in recent times had committed offences. In the absence of the facts which was necessary to lead to the opinion of the Detaining Authority the Court held that the grounds were vague. In that case vital yet injurious facts were not supplied to the petitioner. But in the present case the Detaining Authority has not used the adjectival words but has in fact considered concrete facts on the basis of which he formed his opinion.
15. In the present case the petitioner was released on bail on 18-2-1986. It is urged that there was no record of crime afterwards and therefore the prognosis of future disturbances could not have been made. This argument is factually incorrect. The incident of 20th of May, 1986, occurred after the petitioner was released on bail. Therefore, the argument that there was no material of the petitioner's involvement in any incident after 18-2-1986 is not founded on facts. In this connection the decision in Jaya Mala's case was relied on. In that case the detenu was alleged to have committed two offences. One involved threatening of the bus conductor and attacking him later. The second offence involved threatening with knife a lemon water vendor who demanded money. The Court considered that the normal process of trial should have been resorted as the offences were isolated and not directed against public order. The distinction between the facts of that case and the case before us is so clear that the case has no application. Besides, the possibility of launching criminal proceedings is not an absolute bar to order preventive detention provided that the Detaining Authority is satisfied on relevant material that it was necessary to detain the petitioner see K.M. Choksi v. State of Gujarat, and Alijan Miya's case cited above.
17. The last case cited by Mr. Bajpai is Anant Sakharam Raut v. State of Maharashtra and another, . In that case the detenu was under-trial prisoner in three cases and had actually moved the courts for grant of bail. The order of detention made no mention of the fact that the detenu-an under-trial prisoner had applied for bail. For this reason the Supreme Court considered that the District Magistrate who was not aware of these facts had not applied his mind. The case has no application to the fact of the case before us.
IV REMOTENESS OF INCIDENTS
18. As part of the argument in support of the first point it was urged that the first incident of commission of crime involving the petitioner occurred on 5-10-1984 in Crime No. 415 of 1984. All the four incidents which occurred on the same day were dated 17th January, 1986. The last incident about which the particulars have not been disclosed to the petitioner occurred on 20th May, 1986. It is urged by Mr. Bajpai that the incident of 5-10-1984 is so remote in point of time to the incidents of 17-1-1986 and 20-5-1986 that it should be considered stale in the absence of proximity between the incidents and the date of detention and the detention should be held illegal.
19. We will once again refer to the fact that a solitary act of criminality can be sufficient to form the basis of a valid order of detention. It is the nature of act and attendent circumstances and quality of the incident that are of importance. In Saraswati Sheshgiri's case, a solitary incident of exporting a large amount of Indian currency, in Alijan Miya's case, A.I.R. 1963 S.C. 1130 a solitary incident of organised stopping of goods train and looting them, in Dharus Kanu's case, a solitary incident of removal of fish plates from a running track and in Babulal Das's case, the solitary incident of organised armed train dacoity were held sufficient to establish the nexus with the detention. There is therefore, no cut and dried formula for determining as to what should satisfy the Detaining Authority as sufficiently proximate incident. The quality of the incident, its potential for threatening public order, propensity of the detenu to repeat such crimes and organised nature of the activity are factors which naturally weigh with the Detaining Authority. If these relevant factors are present one or more of them be enough to lead to the subjective satisfaction necessary for making the order of detention. The incident of 5-10-1984 may by itself appear to be somewhat distant from the two latest incidents of 17-1-1986 and 20-5-1986. Their gravity propensity of the petitioner to organise, instigate and execute crimes and his capacity to wear the mask of innocence and respectability and parade himself as social worker and benefactor of the police and operate behind the curtains to perpetuate crimes, are factors which were taken into account by the Detaining Authority. To lay too much emphasis on the incident of 5-10-1984 and ignore the grave incidents of 17-1-1986 and 20-5-1986 is to distort the perspective. We wish to draw attention to the grounds of detention which exhaustively bring out the factual constituents if the activities of the petitioner and rational inferences drawn by the Detaining Authority. The crime committed on 5-10-1984 was not different in quality from the crimes committed subsequently. They all involved unlawful assembly, rioting and use of weapons. The statements of witnesses who supported the complainant were supplied to the petitioner. All the incidents were elaborately set out except the one which was withheld under section 8(2) of the Act. The inferences drawn by the Detaining Authority that the petitioner and his associates are likely to repeat the anti-social and communalistic activities riots and assault on public servants, destruction of public property and disturbance of communal harmony are based on relevant factual material. The qualitative nexus is clearly established. We do not agree that the incidents were not proximate and therefore, stale.
20. Mr. Bajpai relied on the judgment of the Supreme Court in Jagan Nath Biswas v. The State of West Bengal, . In that case the order of detention was made on 27-2-1973 and the incidents on which the detention was based were dated 8th November, 1971, and 25th August, 1972. Between the first and second incident there was a gap of two years and between the third and the date of detention there was a gap of six months. What is important is that the delay was unexplained. In our opinion, the judgment has no application to the fact of this case. It should be remembered that in this case the dimensions of the petitioner's involvement became known on 17-1-1986. The petitioner always projected himself as a respectable citizen and was associating with Police Officers as a person useful to them and tried behind the mask of respectability. It is indeed difficult for the public servants to openly accuse such persons of committing crimes. This too is a circumstance which was relevant for the purpose of formation of the opinion by the District Magistrate.
21. Mr. Jadhav, Additional Public Prosecutor, for the respondents, referred to the judgement in Raj Kumar Singh v. State of Bihar and others. In that case the incidents referred to in the grounds of detention showing criminal propensity of the detenu had taken place one year prior to the date of passing of detention order. Yet the Supreme Court held that the incidents referred to by the Detaining Authority revealed criminal propensity and the authority charged with the implementation of the Bihar Control of Crimes Act, 1981, cannot be said to have arrived at the satisfaction without any rational basis. The substance of the matter is that passage of time in terms of number of months or years are not conclusive. It is the quality of the crimes and other circumstances that are of significance. He reject the submission made by Mr. Bajpai.
V FACTS WITHHELD-SECTION 8(2)
22. The second submission is that withholding of the facts from the petitioner by resorting to section 8(2) of the Act is arbitrary. The District Magistrate has asserted in the grounds and in the affidavit in reply that the sources revealed to him disclosed that the petitioner had a plan to create communal disturbances in Aurangabad city on the lines which occurred recently on 17-1-1986. The 20th May of 1986 was fixed as the date for such communal riots. After setting out these facts the District Magistrate states that the sources and contents of these facts cannot be disclosed in public interest.
23. It is the absolute privilege of the Detaining Authority not to disclose the facts which it considers to be against public interest to disclose. The right of the detenu to furnish with particulars is subject to the limitation that the Detaining Authority may withhold such information if it is considered to be against public interest. We do not see how this is arbitrary. The decision to withhold information under section 8(2) of the Act intended to be in absolute discretion of the Detaining Authority. There is no substance in this point.
24. The next point urged by Counsel for the petitioner is that the detention has been motivated by oblique motive by the District Magistrate and the police. We inquired of Counsel as to where the mala fides or supposed oblique motive has been set out in the petition. Our attention was drawn to para 2 of the petition, where, this is what the petitioners says :
"The petitioner is humbly challenging the detention order............ on the grounds of mala fide and colourable exercise of powers".
There is no other sentence in the petition which refers to mala fides of oblique motive. It is elementary that where a respondent is expected to met the allegations of mala fides particulars of such, mala fides, or obligue motive must be set out. The use of word 'mala fide' as if it were an adjective, is no substitute for it particulars. The respondents cannot meet such a point. There is no merit in this argument.
VI DELAY
25. The last point is about delay. The petitioner was detained on 3rd June, 1986. The grounds of detention were served on 00.10 a.m. on 8th of June, 1986. According to the petitioner, this exceeds the limit of five days set out by section 8(1) of the Act. We do not agree at all that the service of grounds is beyond five days stipulated by section 8(1) of the Act. The original service of grounds was shown to us with the signature of the petitioner thereon. The petitioner received that grounds at 00.10 a.m. on 8th June, 1986. This fact has been set out in the affidavit in reply of the District Magistrate. According to the petitioner, the period of five days expired at 00.00 hours on 7th of June, 1986. The service of grounds was beyond the time by ten minutes. Even assuming that it is beyond the time by ten minutes, this does not amount to such a delay in service as to vitiate the detentions. The delay of ten minutes is marginal and does not vitiate the detention.
26. Secondly, it was urged that the petitioner sent the representation on 17th of June, 1986. The Advisory Board decided it on 2nd July, 1986. The Government received the opinion of the Advisory Board on 8-7-1986 and took seven days to confirm the detention. According to him, there has been delay in considering the petitioners's representation and therefore, his continued detention is invalid. We do not accept that there is any such delay which vitiates the detention. The petitioner did not address any representation to the Government but sent it to the Advisory Board directly. Even so after receipt of the report of the Advisory Board the Government considered his case. The Government received the report of the Advisory Board on 18th July, 1986 and took the decision on it on 25th July, 1986. In our opinion 7 days' time for considering the opinion of the Advisory Board and the representation of the petitioner does not constitute delay which vitiates the continued detention.
VII ORDER
27. For all these reasons, we hold that there is no merit in this petition. Accordingly, the petition is dismissed.