Tripura High Court
Detenu vs The State Of Tripura on 20 February, 2019
Author: Sanjay Karol
Bench: Sanjay Karol, S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C)(HC) No.04/2018
Sri Keshab Sarkar, Son of Kajal Kanti Sarkar alias Kajal, Resident
of Madhyapara, P.S. Jirania, District-West Tripura.
---- Detenu-Petitioner(s).
Versus
1. The State of Tripura, represented by the Secretary, Department
of Home, Government of Tripura, New Secretariat Building, P.O.
Kunjaban, P.S. New Capital Complex, District-West Tripura.
2. The Additional Secretary, Department of Home, Government of
Tripura, New Secretariat Building, P.O. Kunjaban, P.S. New Capital
Complex, District-West Tripura.
3. The District Magistrate, West Tripura, Agartala.
4. The Superintendent of Police, West Tripura.
5. The Union of India, Represented by the Secretary, Department
of Home, New Delhi.
---- Respondent(s).
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. Pijush Kanti Biswas,
Sr. Advocate,
Mr. P. Majumder, Advocate,
Mr. D. Biswas, Advocate.
For the respondents : Mr. Arun Kanti Bhowmik,
Advocate General,
Mr. H. Deb, Asstt. S.G.,
Mr. Babul Choudhury, P.P.
Dates of hearing : 21.01.2019 & 28.01.2019.
Date of pronouncement : 20th February, 2019.
Whether fit for reporting : YES.
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JUDGMENT & ORDER
(Sanjay Karol, C.J.)
Petitioner, a member of the Indian National Congress
Party, who switched over to join the Bharatiya Janata Party,
claims to have been victimized by the political dispensations of the
day, be it the left (CPIM) or the right (BJP). Regardless of the
colour of parties in power, fearlessly he resisted illegal activities of
"local rowdies" having blessings of the "political bigwigs" of
different times and hues, bringing discomfort, thus incurring their
displeasure and wrath. Whereas the left falsely implicated him in
more than 12 cases registered under different provisions of the
Indian Penal Code in which he stands "honourably" acquitted, the
right curtailed his freedom and liberty by passing an order of
preventive detention. This is what a politician, an alleged victim of
politics, contends. Well, uninfluenced and independent of such
pleas, we proceed to decide this case for ascertaining the
fundamental question as to whether right to freedom, a human
and constitutional right of a resident of the State, rightfully stands
curtailed or not.
The order of detention dated 16.08.2018 passed by the
District Magistrate & Collector, West Tripura District as confirmed
by the State vide order dated 29.10.2018 under the provisions of
the National Security Act, 1980 (hereinafter referred to as "the
Act") is subject matter of scrutiny by this Court.
2. On 30.7.2018, the Superintendent of Police, West
Tripura, Agartala sent a report to the District Magistrate &
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Collector, West Tripura, Agartala indicating that the writ petitioner
Keshab Sarkar was creating panic and carrying out noxious
activities in and around the area of Jirania Sub-Division since
2007. Out of fear, such illegal activities for wrongful gain and
vested interests are preventing the people from "opening their
mouth". The grounds, germane to the proposal for initiating action
against the petitioner under the provisions of the Act, in brief, are
summarized as under:-
(a) Registration of 12 No. FIRs from 16.12.2007 till
20.02.2013 against him at Police Station Jirania under different
provisions of the Indian Penal Code (IPC);[PS case No.81/2007,
under Sections 148/149/325 of IPC; PS case No.33/2009, under
Sections 341/323/506 of IPC; PS case No.42/2009, under
Sections 324/379/34 of IPC; PS case No.61/2009, under Sections
325/307/34 of IPC; PS case No.44/2010, under Sections 147/
148/325 of IPC; PS case No.45/2010, under Sections 143/ 147/
427/506/34 of IPC; PS case No.27/2011, under Sections 392 of
IPC; PS case No.87/2011, under Sections 147/ 148/ 448/ 325/
427/379 of IPC; PS case No.20/2012, under Sections 148/ 149/
326/307/427 of IPC; PS case No.23/2012, under Sections 148/
149/427/379/304 of IPC; PS case No.74/2012, under Sections
341/325/427/34 of IPC and PS case No.20/2013, under Sections
506/34 of IPC.]
(b) His continuous noxious activities resulting into
lodging of prosecution reports dated 01.04.2012, 25.03.2012,
03.04.2018, 06.07.2018, 12.07.2018 under the provisions of
Section 107 of the Cr.P.C. In all these reports there is a request to
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bind him down under the preventive laws, for facilitating
maintenance of peace and order at Jirania;
3. Being satisfied with the material placed before him, of
the petitioner having engaged in activities like murder, threat to
commit murder, kidnapping, abduction, arson, dacoity, rape, by
creating lawlessness in order to destabilize the Government,
severely affecting public order and security and that the petitioner
is a habituated criminal, anti-social/rowdy element and ready to
commit serious crime at any place, the District Magistrate &
Collector, West Tripura passed an order dated 16.08.2018
directing the petitioner‟s detention under sub-section (2) of
Section 3 of the Act.
4. It is a matter of record that the said order of detention
was duly served upon the petitioner only on 10.10.2018, for
according to the State, petitioner was absconding, which fact
stands seriously denied.
5. Certain facts are not in dispute. Order of detention
dated 16.8.2018 as approved by the Government, copies of the
FIR, copies of the GD entry, the ground of detention and all other
material relied upon were duly supplied to the petitioner. The
State had issued orders dated 21.06.2018 and 24.09.2018,
authorizing the concerned District Magistrate & Collector, enabling
him to exercise powers under the Act; On 16.8.2018 itself the
Collector forwarded the order to the State Government and such
action stood approved on 27.8.2018; the Central Government was
informed of such fact vide Fax Message dated 28.8.2018;
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petitioner was arrested on 10.10.2018 when order of detention
was served upon him and same day he was got medically
examined; on 12.10.2018 the State forwarded the order of
detention along with the documents, amongst others petitioner‟s
representation dated 10.10.2018; on 25.10.2018, the Advisory
Board after going through the representation and the materials
leading to the passing of order of detention expressed its opinion
in the affirmative and pursuant thereto, on 29.10.2018 the State
Government issued an order under sub-section (1) of Section 12
of the Act, directing the petitioner‟s detention for a period of 12
(twelve) months from the date of his detention.
6. With these facts, petitioner lays challenge to the
impugned order on the following grounds urged in the petition:
(a) he stands politically victimized; (b) non-existence
of sufficient ground warranting such action; (c) total non-
application of mind by the appropriate authority; (d) remoteness
of the alleged nefarious antecedents having no connection or
proximity to the time of passing of order; (e) absence of
subjective satisfaction of the detaining authority in concluding that
the detenu would be indulging in illegal activities in the near
future; (f) non-appraisal of the factum of detenu‟s right to
represent to the State/Central Government and the Advisory
Board to be a fundamental, constitutional and indefensible right;
(g) absence of reference of disposal of petitioner‟s representation
in the order dated 29.10.2018.
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7. The State in its response seriously disputes the
aforesaid grounds raised in the writ petition and justifies its
action, having acted strictly in accordance with law, after due
consideration of all relevant material and circumstances.
8. Mr. Pijush Kanti Biswas, learned senior counsel
appearing for the petitioner, contends and confines to the
following submissions:
(i) Sub-section (3) of Section 3 of the Act mandates
detention only for a period of 3 (three) months to be extended
periodically for such duration. Hence continuous and undue
detention up to a period of 12 (twelve) months is illegal;
(ii) Non-consideration of petitioner‟s representation
dated 10.10.2018 by the State Government has rendered the
order of detention dated 29.10.2018 to be illegal. In support
reliance is sought upon Haradhan Saha vs. The State of West
Bengal and others, (1975) 3 SCC 198, Vimal Chand
Jawantraj Jain vs. Pradhan and others, (1979) 4 SCC 401,
K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India
and others, (1991) 1 SCC 476; Smt. Gracy vs. State of
Kerala and another, (1991) 2 SCC 1; Rajindra vs.
Commissioner of Police, Nagpur Division and others,
(1994) 2 Supp. SCC 716; Usha Agarwal vs. Union of India
and others, (2007) 1 SCC 295; and Union of India and
others vs. Saleena, (2016) 3 SCC 437;
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(iii) Total non-application of mind on the part of the
appropriate authority. For order is verbatim reproduction of the
report of the sponsoring authority; In support reliance is placed
upon Rajesh Vashdev Adnani vs. State of Maharashtra and
others, (2005) 8 SCC 390;
(iv) Absence of record indicating that petitioner had
absconded for a period of 2 (two) months, i.e. the date of passing
of order dated 16.8.2018 and the date of arrest on 10.10.2018;
hence the delay has effaced the substratum, making the order to
be infructuous. In support, reliance is sought upon Hem Lall
Bhandari vs. State of Sikkim and others, (1987) 2 SCC 9 &
Usha Agarwal (supra);
(v) No live-link between the prejudicial activities of
the past with the grounds germane, leading to the passing of the
order of detention; In support reliance is sought upon Shiv
Parsad Bhatnagar vs State of Madhya Pradesh and another,
(1981) 2 SCC 456, Rajinder Arora vs. Union of India and
others, (2006) 4 SCC 796 & Sama Aruna (supra);
(vi) Action initiated on account of political rivalry; as
such, Court can review it on merits;
(vii) Insufficiency of grounds warranting action under
the Act for the alleged illegal activities post 2013, are matter of
adjudication under the provisions of Cr.P.C. In support reliance is
sought upon Abdulla Kunhi (supra) & V. Shantha vs. State of
Telangana and others, (2017) 14 SCC 577.
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9. On the other hand, learned Advocate General
appearing for the State has made the following submissions:-
(i) Proviso to sub-section (3) of Section 3 of the Act
relates to the empowerment of the District Magistrate in passing
the order of detention, and not the duration of the period for
which a detenu can be detained;
(ii) The detenu was informed of his right of making
representation, both to the Central Government and the State
Government which is sufficient compliance of the provisions of the
Act as laid down in Haradhan Saha (supra); Commissioner of
Police and others vs. C. Anita (Smt.), (2004) 7 SCC 467 &
Union of India and others vs. Laishram Lincola Singh alias
Nicolai, (2008) 5 SCC 490;
(iii) Petitioner‟s representation dated 15.10.2018,
after consideration by the Government was placed before the
Advisory Board along with entire materials. Only after personally
hearing the petitioner, did the Board express its opinion;
(iv) The submission on the issue of non-disposal of
the petitioner‟s representation by the State Government, as
formulated in the submissions filed on behalf of the State reads as
under:-
"(f) The Advisory Board considered all the orders
passed by the District Magistrate and the Government
also appreciated the records as well as representation
of the detenu dated 15.10.2018 and submitted their
Report on 25.10.2018 and affirmed the detention Order
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dated 16.08.2018, having been found the justification
of the detention having been based on sufficient
grounds. Hence there is no infirmity of the detention of
the petitioner under the Act, and no right of the
petitioner has been infringed by the State, and no
prejudice was caused to the detenu at any step.
(g) The conjoint reading of the Section 8 and 10
the National Security Act, 1980 would clearly connote
that, the detenu has the right to submit his
representation before the Government and the
Government has to place the representation of the
detenu before the Advisory Board, as per Section 10 of
the Act. Which is herein complied with in its true letter
and spirit, after consideration of the said representation
and observance of all necessary procedure and
consideration of all steps as detailed in para 6 to 13 to
the counter affidavit the detention order reached its
finality as per Section 13 of the NS Act."
In effect it is argued that consideration of the
petitioner‟s representation by the Advisory Board is sufficient
compliance of the provisions of law. To elaborate, it is argued that
State is under no obligation to independently decide the same.
(v) The order passed is in terms of provisions of
Section 5A and 7 of the Act; reliance is sought upon Magan Gope
vs. The State of West Bengal, (1975) 1 SCC 415;
(vi) Acting on the report of the Board, the
Government passed the final order which is totally sustainable in
law, with no ground for judicial review made out; reliance is
placed on Magan Gope (supra) and Tanzeel Khan vs. State of
Madhya Pradesh and others, (2013) 3 MPLJ 490.
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10. Before we deal with the rival contention, let us first
examine the relevant provisions of the statute under which the
impugned order stands passed.
CONSTRUCTION OF STATUTORY PROVISIONS:
11. The National Security Act, 1980 was introduced for
tackling, in a most determined and effective way, the law and
order situation having arisen in the country on account of
activities of anti-social and anti-national elements including
secessionist, communal and pro-caste elements as also other
elements who would adversely influence and affect the services
essential to the community, posing a grave challenge to the lawful
authority, at times even holding the society to ransom. Communal
disharmony, social tensions, activities of the extremist, industrial
unrest and the increase in tendency on the part of various
interested parties to engineer agitation on different issues was the
prevalent situation in the country, prompting the legislatures to
enact the Act.
12. The object of the Act, as is evident from the Preamble, is
to provide for preventive detention in certain cases and for
matters connected therewith.
13. Section 2 is the definition clause which inter alia defines
the "appropriate Government" to include the State Government,
as respect a detention order made by a State Government or by
an officer subordinate to it.
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14. Section 3 contains 5 sub-sections. By virtue of sub-
Section (1), inter alia, the Central Government and the State
Government upon being satisfied that detention of any person is
necessary for preventing him from acting, in any manner,
prejudicial to (a) the security of the State; (b) maintenance to
public order or (c) maintenance of supplies and services essential
to the community, are empowered to pass order to such effect.
By virtue of sub-Section (3), the State Government is
also empowered to authorize the District Magistrate or the
Commissioner of Police, of the area where the detenu resides, to
exercise all such powers so conferred by virtue of sub-section (2).
However, such delegation, at the first instance, shall not exceed a
period of 3(three) months and is subjected to periodical extension
for a period of 3(three) months from time to time.
By virtue of sub-section (4), the delegatee, in the event
of passing of an order under sub-section (2), is duty bound to
report to the Government the factum of having passed such an
order, together with the grounds and particulars leading to the
formation of his opinion. Life of any such order, unless so
approved by the State Government, is only for a period of 12/15
days, as the case may be. The obligation of the State Government
does not rest with the approval of the order passed by the
delegatee, for, by virtue of sub-Section (5), it is duty bound to
forward its report to the Central Government together with the
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grounds on which the order stands passed and such other
particulars, having a bearing on the necessity thereof.
15. Section 4 prescribes the manner in which the order of
detention is to be executed. Section 5 prescribes the power to
regulate the place and conditions of detention. The grounds of
detention are severable by virtue of sub-section 5(A). Section 6
lays down the grounds on which the order cannot be held to be
invalid or in-operative.
16. Section 7 prescribes the manner in which the order of
detention is to be executed in relation to a person who is
absconding or concealing himself.
17. Section 8 mandates that when a person is detained in
pursuance of an order of detention, the authority making the said
order shall, as soon as may be, but not later than 5(five) days and
with exceptional circumstances with reasons recorded in writing,
not later than 10(ten) days from the date of detention,
communicate to the detenu the grounds on which order stands
passed, affording him the earliest opportunity of making a
representation against the order to the appropriate Government.
However, the authority is not obliged to disclose such facts which
in public interest, ought not to be so done.
18. Section 9 and Section 11 provides for the constitution
of the Advisory Boards and the procedure to be followed by them.
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19. By virtue of Section 10, the appropriate Government is
mandatorily required to, within 3(three) weeks from the date of
detention of a person, place before the Advisory Board the
grounds on which the order stands passed and the representation,
if any, made by the person affected by the order and in case
where the order has been made by an officer authorized under
sub-section (3) of Section 3, also the report of such officer.
20. By virtue of Section 11, the Advisory Board shall, after
considering the material placed before it or calling for such
information, as may be deemed necessary and after hearing the
detenu in-person, if so required and desired, submit its report to
the appropriate Government within 7(seven) weeks from the date
of detention of the person concerned. The Advisory Board is duty
bound to submit its report along with its opinion specifying as to
whether or not there is sufficient cause for the detention of the
person concerned.
21. Section 12 can be split into two parts. By virtue of sub-
section (1), where the Advisory Board, in its opinion, has found
sufficient cause for detention of a person, the appropriate
Government may confirm such order of detention for such period
as it deems fit. However, such period, which by virtue of Section
13, cannot be for more than 12(twelve) months from the date of
detention. Significantly, notwithstanding the opinion and report of
the Advisory Board, the Government has the option to confirm or
not to confirm the order of detention. That discretion lies with the
Government. But, however, as per sub-section (2), if the Advisory
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Board finds no sufficient cause for detention of the person, the
appropriate Government is mandatorily duty bound to revoke the
order of detention and cause the person detained to be released
forthwith.
22. Further, by virtue of Section 14, the appropriate
authority is empowered to revoke or modify the order of
detention.
23. Having examined the relevant statutory provisions, we
now proceed to consider as to how the Apex Court has construed
the principles of Preventive Detention both under Part-III of the
Constitution of India and several statutes of the land.
PERSONAL LIBERTY IN THE CONTEXT OF PREVENTIVE
DETENTION:
24. There is no gainsaying in stating that there is nothing
more precious than personal freedom and liberty of an individual.
Krishna Iyer, J; in Bhut Nath Mete vs. The State of West
Bengal, (1974) 1 SCC 645 has crystallized the fundamentals of
the constitutional mandate contained under Article 22, in the
following term:
"10. ...........The fundamental Constitutional mandates
are that the authority (a) shall communicate to the
detainee 'the grounds on which the order has been
made' nothing less than all the material grounds which
operate to create that subjective satisfaction in the
authority which spells suspension of the citizen's liberty
and (b) shall afford him the earliest opportunity of
making a representation against the order no avoidable
delay, no shortfall in the material communicated shall
disable the prisoner making an early, yet
comprehensive say on every particular or fact which
has influenced the detainer or other body to order,
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approve or advice the deprivation of an individual's
freedom. Such is the fairness and justice 'untouchably'
entrenched in Article 22(5) when administrative action
preventively drowns a sacred human right in the name
of public good and organised society....."
(emphasis supplied)
25. C.K. Thakker, J; in State of Maharashtra and Ors.
Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 opined
for the Bench that:
"23. There can be no doubt that personal liberty is a
precious right. So did the Founding Fathers believe
because, while their first object was to give unto the
people a Constitution whereby a Government was
established, their second object, equally important, was
to protect the people against the Government. That is
why, while conferring extensive powers on the
Government like the power to declare an emergency,
the power to suspend the enforcement of Fundamental
Rights or the power to issue Ordinances, they assured
to the people a Bill of Rights by Part III of the
Constitution, protecting against executive and
legislative despotism those human rights which they
regarded as 'fundamental'. The imperative necessity to
protect those rights is a lesson taught by all history and
all human experience. Our Constitution makers had
lived through bitter years and seen an alien
government trample upon human rights which the
country had fought hard to preserve. They believed like
Jefferson that "an elective despotism was not the
government we fought for." And therefore, while
arming the Government with large powers to prevent
anarchy from within and conquest from without, they
took care to ensure that those powers were not abused
to mutilate the liberties of the people [vide A.K. Roy v.
Union of India, (1982) 1 SCC 271; and Attorney
General for India v. Amritlal Pranjivandas, (1994) 5
SCC 54].
24. It has been observed in R. v. Secy. of State for
the Home Deptt., ex p Stafford, (1998) 1 WLR 503
(CA):
"The imposition of what is in effect a substantial
term of imprisonment by the exercise of executive
discretion, without trial, lies uneasily with ordinary
concepts of the rule of law."
(emphasis supplied)
Page - 16 of 59
26. Katju, J; in Rekha vs. State of Tamil Nadu through
Secretary to Government and Another, (2011) 5 SCC 244
observed that:
"39. Personal liberty protected under Article 21 is so
sacrosanct and so high in the scale of constitutional
values that it is the obligation of the detaining authority
to show that the impugned detention meticulously
accords with the procedure established by law. The
stringency and concern of judicial vigilance that is
needed was aptly described in the following words in
Thomas Pelham Dale's case, (1881) 6 QBD 376(CA):
"Then comes the question upon the habeas
corpus. It is a general rule, which has always been
acted upon by the Courts of England, that if any person
procures the imprisonment of another he must take
care to do so by steps, all of which are entirely regular,
and that if he fails to follow every step in the process
with extreme regularity the court will not allow the
imprisonment to continue."
(emphasis supplied)
CONSTRUCTION AND INTERPRETATION OF LAWS PERTAINING
TO PREVENTIVE DETENTION:
27. The Constitution Bench (5 Judges) in A.K. Gopalan vs.
State of Madras, AIR 1950 SC 27 is perhaps the first judgment
dealing with the provisions of preventive detention and the statute
being the Preventive Detention Act, 1950. We need not refer to
the principles laid down therein for the said decision, on a limited
point, though of prime importance and significance, with which we
are not concerned, i.e. interplay of the provisions of Part-III of the
Indian Constitution, stands subsequently overruled in the latest
decision rendered in Justice K.S. Puttaswamy (Retd.) and
another vs. Union of India and others, (2017) 10 SCC 1,
but, however, only for a limited purpose we refer to the same, for
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we find the principles with which we are concerned to have been
subsequently followed by other Constitution Benches of the Apex
Court in several decisions. The ratio laid down in the said decision
immediately came up for consideration before the Apex Court in
Ashutosh Lahiry vs. The State of Delhi and Ors., AIR 1953
SC 451 (6 Judge Bench) wherein also the Court was examining
the provisions of similar statute.
28. The Constitution Bench (6 Judges-2 of whom
dissented) in The State of Bombay vs. Atma Ram Shridhar
Vaidya, AIR 1951 SC 157 while examining the provisions of the
Constitution and the Preventive Detention Act laid down the
following principles:
(a) Article 22 Clause (5) postulates fulfillment of three
conditions; (i) existence of ground and the satisfaction of the
detaining authority; (ii) the communication thereof to the detenu;
(iii) apprising the detenu of his right of making the
representation, which opportunity undoubtedly has to be at the
earliest;
(b) Grounds which formed the basis of the satisfaction
when formulated are bound to contain certain facts;
(c) The powers of Preventive Detention under the Act are
in addition to those contained under Cr.P.C. where preventive
detention is followed by an inquiry or trial;
(d) The satisfaction alone is that of the Central/State
Government. What are the parameters and yardstick for
examining such "satisfaction" of existence of the "grounds", alone
is to be viewed from the mind of a "rational human being";
(e) Detention orders are passed on information and
materials which may not be strictly admissible as evidence under
the Evidence Act in a court, but which the law, taking into
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consideration the needs and exigencies of administration, has
allowed to be considered sufficient for the subjective decision of
the Government;
(f) The subjective satisfaction is that of the Government
which cannot be substituted by an objective test in a Court of law;
(g) The grounds cannot be vague inasmuch as the detenu
must be made aware of the conclusions drawn by the authorities
which would indicate the kind of prejudicial act the detenu is
suspected of being engaged enabling him to make a
representation setting out his innocent activities to dispel the
suspicion against him, for without getting information sufficient to
make representation against the order of detention would not be
possible to make a representation, thus making the "right to be
illusory" and "not a real right" as envisaged under the
Constitution;
(h) The grounds can only be supplemented by additional
material and no new ground can form basis justifying passing of
an order of detention;
(i) The expression "as soon as may be" necessarily would
have to be at the earliest opportune moment.
29. The principles stand reiterated vide yet another
Constitution Bench (5 Judge) judgment in Ujagar Singh and
another vs. State of Punjab, AIR 1952 SC 350 wherein it
further observed that:
(a) Non-specification of any definite period in the order of
detention is not a material omission rendering the order itself to
be invalid;
(b) On past conduct or antecedent, it observed that:
"xxxx The past conduct or antecedent history of
a person can be taken into account when making
a detention order, and, as a matter of fact, it is
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largely from prior events showing the tendencies or
inclinations of the 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 authority satisfied himself that the original
ground was still available and that there was need for
detention on its basis, no mala fides can be attributed
to the authority from this fact alone."
(c) The expression "as soon as may be" connotes
reasonable dispatch and what would be that, is dependent upon
facts of each case, for no arbitrary time limit can be laid down.
30. As to whether "vague ground" would stand on the
same footing as "irrelevant ground" or not come up for
consideration of another Constitution Bench (6 Judge) of the Apex
Court in Tarapada De and others vs. The State of West
Bengal, AIR 1951 SC 174 wherein the Apex Court observed
that:
"8. ........ An irrelevant ground has no connection at all
with the satisfaction of the Provincial Government
which makes the order of detention."
31. In Union of India (UOI) and Anr. vs. Shrimati
Chaya Ghoshal and Anr., (2005) 10 SCC 97 (2 Judge Bench)
have held that even a single act of the detenu would be enough to
constitute a ground for preventive detention.
32. Where an order of detention can be challenged on the
ground of lack of bona fides or not again came up for
consideration before the Apex Court in yet another Constitution
Bench (5 Judge) of the Apex Court in Lawrence Joachim Joseph
D'Souza vs. The State of Bombay, AIR 1956 SC 531 wherein
the Court observed:
Page - 20 of 59
"We are unable to imply any such obligation under
Article 22(5) and (6). The necessity for such a
communication would arise only if the detenu, feeling
the grounds to be vague, asks for particulars. An
obligation to communicate the decision not to disclose
facts considered prejudicial to public interest may well
be implied in such a situation. But in the absence of
any such request by the detenu, the non-
communication of the decision cannot be held to have
hampered his constitutional right of representation and
an obligation to communicate cannot be implied in
these circumstances."
"3. ......We also agree with the view of the High
Court that, what has got to be made out is not the
want of bona fides on the part of the police, but want of
bona fides, as well as the non-application of mind, on
the part of the detaining authority, viz. the
Government, which for this purpose must be taken to
be different from the police."
33. Further the Constitution Bench (5 Judge) in
Rameshwar Shaw vs. District Magistrate, Burdwan and
others, AIR 1964 SC 334 has held that:
(a) In a case of preventive detention, the material
provisions of the Act must be strictly construed and the
safeguards provided therein, for the protection of citizens, must
be liberally interpreted;
(b) The reasonableness of the satisfaction of the detaining
authority cannot be questioned in a Court of law. The adequacy of
the material on which the said satisfaction purports to rest also
cannot be so examined;
(c) The grounds basing satisfaction of the detaining
authority must be supplied to the detenu entitling him to make
representation. However, this principle is flexible as each case
establishing the action to be bona fide has to be examined
independently;
Page - 21 of 59
(d) There is no bar preventing the authority from passing
an order of detention against a person whilst in detention or in
jail, but its validity would always have to be determined in the
attending facts and circumstances.
34. It is thus clear that plea of mala fides or lack of mala
fides has to be construed in the backdrop of Atma Ram,
Lawrence Joachim Joseph D'Souza and Rameshwar (supra).
There cannot be any straightjacket formula and each case has to
be construed on the attending facts and circumstances.
35. It is also clear that the expression "as soon as may be"
as provided under the Article 22 Clause(5) of the Constitution
connotes reasonable dispatch and what is that reasonable
dispatch again has to be understood and weighed in the attending
facts and circumstances. Of course, no arbitrary timeline can be
set down in that regard.
SUBJECTIVE SATISFACTION:
36. The meaning of the words "subjective satisfaction" in
Atma Ram & Rameshwar Shaw (supra) stands reiterated by
the Apex Court in Khudiram Das vs. The State of West Bengal
and others, (1975) 2 SCC 81 (4 Judge Bench) wherein the
Court further clarified that subjective satisfaction has to be that of
the detaining authority and none else and that the "grounds"
would "constitute the basic facts and material particulars,
therefore, which are the foundation of the order of detention, will
also be covered by 'grounds' within the contemplation of Article
Page - 22 of 59
22(5) and Section 8, and are required to be communicated to the
detenu unless their disclosure is considered by the authority to be
against the public interest and sufficient to enable him to make a
representation which on being considered may give relief to him."
SCOPE OF JUDICIAL REVIEW:
37. The next question which arises for consideration is as
to what is the scope of judicial review not only stands elaborately
discussed in Atma Ram and Lawrence Joachim Joseph
D'Souza (supra), but also in Khudiram (supra) wherein the
Court held that:
"11. This discussion is sufficient to show that there is
nothing like unfettered discretion immune from judicial
review-ability. The truth is that in a Government under
law, there can be no such thing as un-reviewable
discretion. "Law has reached its finest moments", said
Justice Douglas, "when it has freed man from the
unlimited discretion of some ruler, some official, some
bureaucrat.........Absolute discretion is a ruthless master.
It is more destructive of freedom than any of man's
other inventions". United States v. Wunderlick 342 U.S.
98. And this is much more so in a case where personal
liberty is involved. That is why the Courts have devised
various methods of judicial control so that power in the
hands of an individual officer or authority is no misused
or abused or exercised arbitrarily or without any
justifiable grounds."
(emphasis supplied)
JUDICIAL REVIEW AT THE PRE-EXECUTIOIN STAGE:
38. The issue as to whether a writ would lie quashing the
order of detention prior to the detenu being detained came up for
consideration before the Apex Court in Govt. of India vs. Alka
Subhas Gadia, (1992) Suppl.1 SCC 496; Bhaurao Punjabrao,
(supra); Deepak Bajaj vs. State of Maharashtra, (2008) 16
Page - 23 of 59
SCC 14 & Subhash Popatlal Dave vs. Union of India, (2012)
7 SCC 533 and the Courts have invariably interfered whereas the
authorities are found to have illegally or unfairly impinged upon
the constitutional freedom of an aggrieved person.
39. In Alka Subhas Gadia (supra), the Hon‟ble Supreme
Court (3 Judge Bench) laid down five parameters on which the
order of preventive detention can be challenged at the pre-
execution stage in the following term:
"The courts have the necessary power and they have
used it in proper cases as has been pointed out above,
although such cases have been few and the grounds on
which the courts have interfered with them at the pre-
execution stage are necessarily very limited in scope
and number, viz., where the courts are prima facie
satisfied
(i) that the impugned order is not passed under the Act
under which it is purported to have been passed,
(ii) that it is sought to be executed against a wrong
person,
(iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and
irrelevant grounds or
(v) that the authority which passed it had no authority
to do so."
40. Further on the question whether the review of pre-
execution detention order will restrict to the five parameters
stated in Alka's Judgment (supra) the Hon‟ble Supreme Court in
Subhash Popatlal Dave (supra) held as below:
".......By prefacing the five exceptions in which the
Courts could interfere with an order of detention at the
pre-execution stage, with the expression "viz", Their
Lordships possibly never intended that the said five
examples were to be exclusive. In common usage or
parlance the expression "viz" means "in other words".
Page - 24 of 59
There is no aura of finality attached to the said
expression. The use of the expression suggests that the
five examples were intended to be exemplar and not
exclusive. On the other hand, the Hon'ble Judges
clearly indicated that the refusal to interfere on any
other ground did not amount to the abandonment of
said power.
"......The exercise of powers vested in the superior
Courts in judicially reviewing executive decisions and
orders cannot be subjected to any restrictions by an
order of the Court of law. Such powers are
untrammelled and vested in the superior Courts to
protect all citizens and even non-citizens, under the
Constitution, and may require further examination."
DELAY IN APPRAISING THE ORDER OF DETENTION TO THE
AUTHORITY:
41. In Hem Lall (supra), (2 Judge Bench) held that if the
original time of 5 days has to be extended, such extension must
be supported by an order recording reasons. If reasons are not so
recorded the order of detention will automatically fail. Even if
reasons are recorded they have to inspire confidence in the Court
and are subject to legal scrutiny. If the reasons are unsatisfactory,
Courts would still quash the order of detention.
INORDINATE DELAY IN PASSING OR SERVING ORDER OF
DETENTION:
42. Unexplainable delay in passing or serving the order of
detention itself ipso facto can be a ground to invalidate the order
of detention for each case has to be considered in the attending
facts and circumstances.
In Saeed Zakir Hussain Malik vs. State of
Maharashtra and Ors., (2012) 8 SCC 233; (2 Judge Bench),
Page - 25 of 59
the Apex Court by relying on its previous judgments held the
order of detention to be bad by observing that:
"17. In Pradeep Nilkanth Paturkar v. S. Ramamurthi
and Ors. 1993 Supp (2) SCC 61, the effect of delay in
passing the detention order has been considered in
detail. After analyzing various earlier decisions, this
Court held that delay ipso facto in passing an order of
detention after an incident is not fatal to the detention
of a person, in certain cases delay may be unavoidable
and reasonable. However, what is required by law is
that the delay must be satisfactorily explained by
the Detaining Authority."
Similar view is taken in Rajinder, Usha Agarwal
(supra) and Abdul Nasar Adam Ismail through Abdul
Basheer Adam Ismail vs. State of Maharashtra and others,
(2013) 4 SCC 435.
TRANSLATED COPIES OF DOCUMENTS NEED NOT NECESSARY TO
BE FILED:
43. As to whether non-availability of translated copies of
the relevant documents would vitiate the order of detention for
non-application of mind was held, by the majority, not to be so in
A.C. Razia vs. Government of Kerala and Ors., (2004) 2 SCC
621(3 Judge Bench).
However, non-placement of complete material before
the detaining authority enabling it to form a proper opinion would
vitiate the order of detention. [Deepak Bajaj (supra)]
ORDER AGAINST THE DETENU IN JAIL :
44. The order of detention can be passed even against a
detenu who has been in jail. For the Court in Kamarunnissa and
Page - 26 of 59
Ors. vs. Union of India (UOI) and another, (1991) 1 SCC
128 has held in the following terms:
"13. ......... It seems to us well settled that even in a
case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be
had to the law of preventive detention."
PERIOD OF DETENTION TO COMMENCE FROM THE DATE OF
DETENTION :
45. It is also settled principle of law that the period of
detention would commence not from the date of passing of the
order but from the date of actual detention is so held in State of
Gujarat vs. Adam Kasam Bhaya, (1981) 4 SCC 216 (2 Judge
Bench).
NOT NECESSARY THAT THE ACTS ARE PERMISSIBLE UNDER
PENAL LAW :
46. It is not the mandate of law that act of the detenu
must be such that it would construe an offence punishable under
the penal laws resulting into imprisonment. [Union of India
(UOI) and Ors. vs. Venkateshan S. and Ors., (2002) 5 SCC
285; (2 Judge Bench) and Dropti Devi and Anr. vs. Union of
India (UOI) and Ors., (2012) 7 SCC 499. (2 Judge Bench)]
LIVE LINK/STALE GROUND:
47. This brings us to another contentious issue and that
being as to whether there has to be a live link between the
prejudicial activity and the date of passing of order of detention or
not. Conversely, as to whether the grounds which are stale or that
Page - 27 of 59
of the past, can be used against the detenu in holding that the
activity is prejudicial or not came up for consideration before the
Apex Court on several occasions.
48. Whereas in Shiv Parsad Bhatnagar (supra);
Yumman Ongbi Lembi Leima V State of Manipur, (2012) 2
SCC 176; Subramanian vs. State of Tamil Nadu and Anr.,
(2012) 4 SCC 699, the Courts have held the orders to be invalid
on account of delay but however, in Licil Antony Vs. State of
Kerala, (2014) 11 SCC 326, the Court clarified that if there is
sufficient explanation on the record, establishing the live link
between the activity of the past and the satisfaction of the
authority in connection thereto, necessitating passing of the order
of detention, then such order, per se, would not be invalid. But
prior thereto in Ujagar Singh(supra) the Constitutional Bench
had observed that past conduct or antecedent history of a person
can be taken into account when making an order of detention.
49. Even as late as Sama Aruna (supra), (2 Judge Bench)
the position stands reiterated that "only activities so far back" can
be considered as furnished a cause for preventive detention in the
present. That is, only those activities so far of the past is allowed
that the detenu is likely to engage or prepare to engage in the
immediate future can be taken into account. The detention order
must be passed on a reasonable prognosis of the future behaviour
of the person based on his past conduct in the light of the
surrounding circumstances. The Court observed that:
Page - 28 of 59
"16. .......... There is little doubt that the conduct or
activities of the detenu in the past must be taken into
account for coming to the conclusion that he is going to
engage in or make preparations for engaging in such
activities, for many such persons follow a pattern of
criminal activities. But the question is how far back?
There is no doubt that only activities so far back can be
considered as furnish a cause for preventive detention
in the present. That is, only those activities so far back
in the past which lead to the conclusion that he is likely
to engage in or prepare to engage in such activities in
the immediate future can be taken into account.
17. ......... The detention order must be based on a
reasonable prognosis of the future behavior of a person
based on his past conduct in light of the surrounding
circumstances. The live and proximate link that must
exist between the past conduct of a person and the
imperative need to detain him must be taken to have
been snapped in this case."
PUBLIC ORDER, LAW & ORDER AND SECURITY OF THE STATE:
50. The distinction between public order, law & order and
the security of the State was drawn by the Apex Court in C. Anita
(supra) in the following terms:
"10. "Public Order", "law and order" and the "security
of the State" fictionally draw three concentric circles,
the largest representing law and order, the next
representing public order and the smallest representing
security of the State. Every infraction of law must
necessarily affect order, but an act affecting law and
order may not necessarily also affect the public order.
Likewise, an act may affect public order, but not
necessarily the security of the State. The true test is
not the kind, but the potentiality of the act in question.
One act may affect only individuals while the other,
though of a similar kind, may have such an impact that
it would disturb the even tempo of the life of the
community. This does not mean that there can be no
overlapping, in the sense that an act cannot fall under
two concepts at the same time. An act, for instance,
affecting public order may have an impact that it would
affect both public order and the security of the State.
[See Kishori Mohan Bera v. State of West Bengal,
(1972) 3 SCC 845; Pushkar Mukherjee v. State of West
Bengal, (1969) 1 SCC 10; Arun Ghosh v. State of West
Page - 29 of 59
Bengal, (1970) 1 SCC 98 and Nagendra Nath Mondal v.
State of West Bengal, (1972) 1 SCC 498].
....................................
12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order"
comprehends disorders of less gravity than those affecting "public order" just as "public order comprehends disorders of less gravity than those affecting "security of State". [See Kuso Sah v. State of Bihar, (1974) 1 SCC 185; Harpreet Kaur v. State of Maharashtra, (1992) 2 SCC 177; T.K. Gopal v. State of Karnataka, (2000) 6 SCC 168 and State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57.]"
PARALLEL PROCEEDINGS UNDER DIFFERENT LAWS OF THE LAND:
51. The issue as to whether there can be two parallel proceedings initiated against a person, one that of preventive detention and the other that of prosecution under the penal laws stands considered by the Apex Court. In a case where the accused stood discharged by a criminal Court, the order of preventive Page - 30 of 59 detention served upon him by the District Magistrate in relation to the very same incident, in which he stood discharged was not held to be invalid, more so, on the ground of it being mala fide. For the Apex Court in Mohd. Salim Khan vs. Shri C.C. Bose and Anr., (1972) 2 SCC 607 (2 Judge Bench) relying upon Sahib Singh Dugal v. Union of India, AIR 1966 SC 340 (Five Judge Bench) reiterated that:
"9. ........The mere fact, however, that criminal proceedings in connection with the same incidents had been adopted against the petitioner and he had been discharged by the trying Magistrate does not mean that no valid order of detention could be passed against him in connection with those very incidents, or that such an order can for that reason be characterised as mala fide. It might well be that a magistrate trying a particular person under the CrPC has insufficient evidence before him, and therefore, has to discharge such a person. But the detaining authorities might well feel that though there was not sufficient evidence admissible under the Evidence Act for a conviction, the activities of that person, which they had been watching, were of such a nature to justify an order of detention. From the mere fact, therefore, that the Magistrate discharged the petitioner from the criminal case lodged against him it cannot be said that the impugned order was incompetent, nor can it be inferred that it was without a basis or mala fide, see Sahib Singh Dugal v. Union of India AIR 1966 SC
340."
52. However, subsequently, in Biram Chand V. State of U.P, (1974) 4 SCC 573, the Apex Court (2 Judge Bench) took a contrary view, holding that in relation to the very same crime, there can be no order of detention passed for the detenu would be prevented from making an effective representation, inasmuch as he would be bound to disclose his defence.
Page - 31 of 59
53. However this principle and the decision were overruled by the Apex Court in Haradhan Saha (supra) (Constitutional Bench-5 Judge) wherein the Court laid down the following principles:
"34. ...........The principles which can be broadly stated are these.
First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the CrPC would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the CrPC and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention.
Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order.
Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances."
54. Though this position stood reiterated in Bhaurao Punjabrao Gawande (supra) but in Rekha's case (supra), the 3 Judge Bench of the Apex Court took yet a contrary view and Justice Katju, J speaking for the Bench clarified as under:
Page - 32 of 59 "33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha's case (supra) that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained).
Articles 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him opportunity of placing his defense through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (Indian Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.
34. Hence, the observation in para 34 in Haradhan Saha's case (supra) cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law."
55. Such opinion of Katju, J stood reiterated in Yumman Ongbi Lembi Leima (supra); Munagala Yadamma vs. State of A.P. and Ors., (2012) 2 SCC 386, K. Nageswara Naidu vs. Collector and District Magistrate Kadapa, Y.S.R. District, A.P., (2012) 13 SCC 585. But then again a 2 Judge Bench in The Secretary to Government vs. Nabila, (2015) 12 SCC 127 reiterated the principle laid down in Haradhan Saha (supra).
56. Hence, on this issue, this Court is duty bound not only to follow the latest position but also the position rendered by the larger Bench, i.e. the Constitution Benches in Atma Ram, Sahib Singh Dugal and Haradhan Saha (supra).
Page - 33 of 59 RIGHT OF REPRESENTATION:
(A) ITS CONSIDERATION:
57. It is the mandate of the Constitution that where any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. There are several statutes containing a provision of preventive detention. The language varies from statute to statute. Also the manner and the period in which the grounds are to be communicated and the opportunity to represent afforded.
58. An endeavour is made to extract the relevant provisions, for comparative analysis of various statutes, specifically dealing with provision providing for "right to represent". They are as under:
1. Preventive Detention Section 7 - Grounds of order of detention to Act, 1950 be disclosed to persons affected by the order:
Repealed by Act 4 of (1) When a person is detained in pursuance of a 2018, S. 3 and Sch. II, detention order, the authority making the order shall, as soon as may be, but not later than five dated 8-1-2018 days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
Section 9 - Reference to Advisory Boards: In every case where a detention order has been made under this Act the appropriate Government shall, within thirty days from the date of detention under the order place before the Advisory Board constituted by it under section 8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order and in case where the order has been made by an officer also the report by such officer under sub-section (5) of section 3. Page - 34 of 59
2. The National Security Section 8 - Grounds of order of detention to be Act, 1980 disclosed to persons affected by the order:
(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
Section 10 - Reference to Advisory Board:
Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-section (4) of that section.
3. The Maintenance of Section 8 - Grounds of order of detention to be Internal Security Act, disclosed to persons affected by the order:
1971 (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
Section 10 - Reference to Advisory Boards: Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board constituted by it under section 9 the grounds on which the order has been made and the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3. Page - 35 of 59
4. The Conservation of Section-12A. Special provisions for dealing Foreign Exchange and with emergency:
Prevention of Smuggling Subsection-(4) In making any consideration, Activities Act, 1974 review or reconsideration under sub-section (2) or (3), the appropriate Government or officer may, if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.
5. ANDHRA PRADESH Section 8 - Grounds of order of detention to PREVENTION OF be disclosed to persons affected by the DANGEROUS order:
ACTIVITIES OF (1) When a person is detained in pursuance of a BOOT-LEGGERS, detention order, the authority making the order DACOITS, DRUG- shall, as soon as may be, but not later than five OFFENDERS, GOON- days from the date of detention, communicate to DAS, IMMORAL him the grounds on which the order has been TRAFFIC OFFENDERS made and shall afford him the earliest opportunity AND LAND- of making a representation against to order to the Government.
GRABBERS ACT, 1986 Section 10 - Reference to Advisory Boards:
In every case where a detention order has been made under this Act, the Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3.
6. JAMMU AND Section 6 - Power to prohibit circulation KASHMIR PUBLIC within the State or entry into the State of SAFETY ACT, 1978 certain documents:
Provided further that a person aggrieved by such order may, within ten days of the passing thereof, make a representation to the Government which may on consideration confirm, modify or rescind the order within 21 days of the making of the representation after giving the aggrieved party an opportunity of being heard:
Provided also that in case the representation is rejected by the Government, the aggrieved person may within a period of two months from the date of the order rejecting the representation apply to the High Court to set-aside such order. Every such application shall be heard and determined by a Special Bench of the High Court composed of three Judges.
Page - 36 of 59 Section 13 - Grounds of order of detention to be disclosed to persons affected by the order:
(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, 1[but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention] communicate to him grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government.
Section 15 - Reference to Advisory Board:
In every case where a detention order has been made under this Act, the Government shall, within four weeks 1[from the date of detention under the order] place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of section 8.
7. Gujarat Prevention of Section 9: Grounds of order of detention to be disclosed to detenu :
Anti-Social Activities Act Act 1985 (1): When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, but not later than seven days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
Section 11: Reference to Advisory Board:
In every case where a detention order has been made under this Act the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 10 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and where the order has been made by an authorised officer, also the report made by such officer under sub-section (3) of section 3.
8. Karnataka Prevention of Section 8: Grounds of order of detention to be disclosed to persons affected by the Dangerous Activities of order:
Bootleggers, Drug Offenders, Gamblers, Sub-clause (1): When a person is detained in pursuance of a detention order, the authority Goondas, Immoral Traffic making the order shall, as soon as may be, but Offenders and Slum not later than five days from the date of detention, communicate to him the grounds on Grabbers Act, 1985 which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
Page - 37 of 59 Section 10: Reference to Advisory Board:
In every case where a detention order has been made under this Act the State Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made against the order, and in case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3.
9. Tamil Nadu Prevention of Section 8: Grounds of order of detention to be disclosed to persons affected by the Dangerous Activities of order:
Bootleggers, Drug Offenders, Forest (1): When a person is detained in pursuance of a detention order, the authority making the order Offenders, Goondas, shall, as soon as may be, but not later than five Immoral Traffic days from the date of detention, communicate to him the grounds on which the order has been Offenders, Sand made and shall afford him the earliest opportunity Offenders, Slum Grabbers of making a representation against the order to and Video Pirates Act, the State Government. 1982. Section 10: Reference to Advisory Board:
In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3.
59. Noticeably, on „the right to represent‟, the provisions of National Security Act, 1950, MISA, Andhra Pradesh, Jammu & Kashmir, Gujarat, Karnataka, Tamil Nadu are similar/identical.
60. As noticed earlier, right to represent necessarily has to be effective and not illusionary. There is no form in which such a representation is required to be made. What is important is that the detenu must have knowledge of such right and be served with the grounds enabling him to represent in regard thereto [Atma Ram; Lawrence Joachim; Rameshwar Shaw and Abdulla Kunhi (supra)]. Here only we may observe that the decisions Page - 38 of 59 referred to on the issue are under different statutes relevant provisions whereof are reproduced supra, which, in fact, are pari materia with the statute with which we are concerned.
61. The authority to whom and the manner in which such representation is to be decided has been subject matter of consideration by the Apex Court in its various judicial pronouncements.
62. The Apex Court in Abdul Karim and Ors. vs. State of West Bengal, (1969) 1 SCC 433 (3 Judge Bench) while dealing with the provisions of the Preventive Detention Act has held that Constitution expressly does not provide as to whom the representation has to be made and how the detaining authority is required to deal with the same. However, by necessary implication, considering the language of Article 22, such representation is to be made to the Government (State/Central) and is necessarily required to be disposed of expeditiously. Mere constitution of an Advisory Board would not relieve the Government of its obligation to consider and decide the representation of the detenu.
63. Contrary view taken in A.K. Gopalan (supra) was subsequently overruled in John Martin vs. State of West Bengal, (1975) 3 SCC 836 while dealing with the provisions under MISA where the Court further clarified that order rejecting the representation should be a reasoned one.
Page - 39 of 59
64. Similar view was taken in Vimalchand Jawantraj (supra) wherein the Court specifically observed that:
"4. .........It is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and then made a report expressing itself in favour of detention. Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and it may still on considering the representation of the detenu or otherwise, decline to confirm the order of detention and release the detenu. The detaining authority is, therefore, bound to consider the representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu."
(emphasis supplied) (B) REPRESENTATION TO BOARD, NOT GOVERNMENT- GOVT. NOT OBLIGED TO DECIDE:
65. The issue as to whether the Government was obliged to decide the representation so made to the Advisory Board and not to itself, come up for consideration in Gracy (supra), wherein the Court held that notwithstanding the consideration of the representation by the Advisory Board, independently the Government (Central), was also obliged to do the same. For the Court thought it as a dual obligation of consideration of the detenu‟s representation flowing from Article 22.
66. However, this position stood explained and distinguished subsequently in R. Keshava vs. M.B. Prakash and Ors., (2001) 2 SCC 145, wherein the Court noticing an earlier Constitution Bench in Abdulla Kunhi (supra) observed that the Page - 40 of 59 Government was under no obligation to decide any such representation so made to the Advisory Board for the ambit, scope and jurisdiction of the Article 22 and the statute, obligated the detenu to make representation to the respective authorities so constituted, for it was a corresponding duty on the part of the authority to decide the same in accordance with law.
In Golam Biswas vs. Union of India (UOI) and Ors., (2015) 16 SCC 177, the Court held that if the representation was rejected prior to the grounds and the representation being forwarded to the Advisory Board, the order would be invalid. But, we notice that this view is not in conformity with the principles laid down by the larger Bench in Abdul Karim and Abdulla Kunhi (supra) with which we are bound.
In Saleena, (supra), the Apex Court in the attending facts and circumstances found non-communication of order of rejection of representation not to be fatal.
67. The Constitution Bench in Abdulla Kunhi (supra) reiterated that representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be"
occurring in Clause (5) of Article 22 reflects the concern of the Page - 41 of 59 Framers of the Constitution that the representation should be expeditiously considered and disposed of with a sense of urgency and without any avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be "supine indifference slackness" or "callous attitude" in considering the representation. "Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative"
and it "would render the continued detention impermissible and illegal". This has been emphasised and re-emphasised by a series of decisions including Atma Ram (supra).
68. Relying upon Abdul Karim(supra), in Kamleshkumar Ishwardas Patel vs. Union of India (UOI) and Ors., (1995) 4 SCC 51 (5 Judge Bench) reiterated its view by observing that:
"14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."
(emphasis supplied) Page - 42 of 59
69. The question as to whether there was failure on the part of the Government to consider the representation before forwarding the same to the Advisory Board came up for consideration before the Constitution Bench of the Apex Court in Pankaj Kumar Chakrabarty and Ors. vs. The State of West Bengal, (1969) 3 SCC 400 and the Court answered the same in the negative, holding that right to decide the representation is that of the authority and not the Advisory Board. The position stands reiterated in Usha Agarwal (supra).
70. The issue as to whether representation can be decided after submission of information by the Board stands settled by the Apex Court in Abdulla Kunhi (supra) wherein the Court answered the same by holding that what is required to be seen is expeditiousness and efficacy in deciding the representation for the obligation to do so, is that of the State and not the Advisory Board and as such, what is required to be seen in the attending facts and circumstances; is whether there has been any delay in that regard or not. The principle stands reiterated in Usha Agarwal vs. Union of India (UOI) and Ors., (1996) 3 SCC 194.
71. Merely, that the authority deciding the representation considered the report of the Advisory Board cannot be held to be a ground invalidating the order of detention, holding the authority not to have considered and independently decided the representation in accordance with law. [Union of India & Ors.
vs. Manish Bahal @ Nishu, (2001) 6 SCC 36] Page - 43 of 59 (C) REPRESENTATION TO PRESIDENT & NOT GOVERNMENT - NOT INVALID:
72. Representation made to the President and not the Government was found not to have invalidated the order of detention, by the Apex Court in Chaya Ghoshal (supra) in the following terms:
"25. In law the President or the Governor, as the case may be, cannot be impleaded as a party. Therefore, there is no question of their explaining as to what happened after representation was received by the office of the President or the Governor, as the case may be. The Central Government or the Detaining Authority are also not authorized and competent in law to say what happened after representation is received in the office of the President or the Governor, as the case may be. The Detaining Authority or the concerned authority of the Central Government has to explain the action taken by the said authority after receipt of the representation by it."
(D) FOR DECIDING REPRESENTATION-REMARKS OF DETAINING OFFICER CALLED FOR -
PERMISSIBLE:
73. The issue as to whether it is permissible for the authority empowered to decide the representation, calling upon the grounds of the Detaining Officer came up for consideration before the Apex Court in Dr. Prakash vs. State of Tamil Nadu and Ors., (2002) 7 SCC 759 and the Court repelled the contention that calling for such remarks/opinion would amount to deciding the representation without application of mind.
(E) REPRESENTATION-RESPONSE OF SPONSORING AUTHORITY CAN BE CALLED FOR:
74. Similarly, in Union of India (UOI) vs. Yumnam Anand M. @ Bocha @ Kora @ Suraj and Anr., (2007) 10 SCC Page - 44 of 59 190, the Court held that there was nothing illegal in the authority calling response of the Sponsoring Authority before decision of representation of the detenu.
(F) MORE THAN ONE REPRESENTATION-SECOND
REPRESENTATION ON SAME GROUND-
GOVERNMENT NOT BOUND TO CONSIDER:
75. The decision as to whether there can be more than one representation or not, the Act does not prohibit the detenu from making more than one representation. However, non- consideration of the second representation on the very same ground on which the earlier representation stood dismissed was held not to be fatal by the Apex Court in Abdul Razak Dawood Dhanani vs. Union of India (UOI) and Ors., (2003) 9 SCC 652; Usha Agarwal (supra).
(G) UNEXPLAINED DELAY IN DECIDING THE REPRESENTATION WOULD RENDER THE ORDER OF DETENTION TO BE INVALID:
76. In Abdulla Kunhi (supra) as we have noticed, any unexplained delay in the disposal of representation would be breach of the constitutional imperative, rendering the detention to be impermissible and illegal. Referring to the said decision in the given facts, the Court in Usha Agarwal (supra) held the order of detention to be illegal.
77. Prior thereto, the Apex Court in Kundanbhai Dulabhai Shaikh vs. Distt. Magistrate, Ahmedabad and others, (1996) 3 SCC 194 observed that:
Page - 45 of 59 "21. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the "liberty and freedom" to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earlier."
(emphasis supplied)
78. The anguish stood expressed in Abdulla Kunhi (supra).
We have already noticed in Chaya Ghoshal (supra) that a representation made to the President and not to the Government would not invalidate the order of detention. However, the position thereto stood explained in a different context by a two Judge Bench of the Apex Court in Jasbir Singh vs. Lt. Governor and another (1999) 4 SCC 228. Here, the detenu‟s representation was addressed to the Advisory Board and not to the Central Government. The detaining authority was the Lieutenant Governor of Delhi to whom also no representation was made. The Apex Court formed an opinion that if the representation not addressed to the Central Government, even though indicated in the grounds of detention, would not make the order invalid despite its knowledge though such representation stood made to the Advisory Board. The Apex Court clearly distinguished and explained the view taken in Licil Antony (supra) wherein the Court had earlier held that notwithstanding Page - 46 of 59 the consideration of the representation by the Advisory Board, independently the Central Government was obliged to decide the same, regardless as to whether the same was addressed to the Advisory Board and not the Government.
Similar view stands reiterated in Chaya Ghoshal (Supra); Ummu Sabeena Vs. State of Kerala (2011) 10 SCC 781; Abdul Nasar Adam (supra).
79. Thus having discussed the law, we now proceed to deal with the submissions.
Submission No.I :
80. By adopting any principle of interpretation, the Section cannot be said to be dealing with the period for which the detenu may be detained, for which purpose, there are other provisions.[sub-Section (1) of Section 12 and Section 13]. Sub- section (3) of Section 3 reproduced supra deals with the case where if the State Government is satisfied that circumstances are either prevalent or likely to prevail in the area within the local limits of jurisdiction of the District Magistrate or a Commissioner of Police, and after recording satisfaction of its necessity to do so, may, by order in writing, direct that during such period as may be stated in the order, the said officer(s) may also, if satisfied, as provided, exercise the powers conferred by sub-Section (2). The proviso to the sub-section qualifies the period for which such order of authorization can be passed by the State Government. At the first instance, such authorization shall not exceed 3(three) months and if satisfied that it is necessary to do so, amend such order to Page - 47 of 59 extend such period from time to time, by further period not exceeding 3 (three) months at any one time. The words "any period not exceeding 3(three) months at one time" is in reference to the period of authorization of the delegatee and not with reference to the period for which the detenu can be detained.
81. The language is unambiguously clear. The Section only deals with the power of delegation. Instead of the State Government considering the prevalent ground realities and the emergent situations, the legislatures in its wisdom thought it fit to have the power delegated to the officers handling the situation at the ground level. To us, it appears, restriction of period of authorization perhaps is with a purpose. For right to freedom cannot be allowed to be curtailed endlessly by a delegatee whose action, in any case, mandates approval of the State Government. Preventive detention is a serious matter and needs to be examined and handled at an appropriate level by an appropriate authority, with the attached seriousness, which it deserves. Only under circumstances which are likely to prevail, that too after recording its satisfaction, with regard to the necessity of authorization, in writing, would the State Government empower the officers to exercise such powers of preventive detention. The periodicity is restricted and limited in nature and the authorization renewed depending upon the prevalent fact situation.
82. One notices that the order of detention passed by the delegatee, unless so approved by the State Government, cannot remain in force for more than 12/15 days as the situation may Page - 48 of 59 arise. This is evidently clear from the bare reading of sub-section (4) of Section 3. The Act provides the checks and balances, ensuring that any order passed by the delegatee/Appropriate Government is not only made known to the detenu along with the grounds affording him the earliest opportunity of making a representation but also making a reference to the Advisory Board, enabling them to submit its report and opinion within the statutory period, further enabling the Appropriate Government to take action thereupon and if permissible, detain the person for such period as it thinks fit, for not more than 12(twelve) months from the date of detention.
83. Hence the contention needs to be rejected. Submission No.II:
84. Before us it is not in dispute that the order of detention dated 16.8.2018 was served upon the petitioner at the time of his arrest on 10.10.2018. It is a matter of record that the said order of detention was approved by the State Government on 27.8.2018. It is also a matter of record that the said order of detention was approved by the State Government on 27.8.2018. The Central Government was duly informed of the orders within 7 days i.e. with a communication dated 28.8.2018. Thus, there has been sufficient compliance of the provisions of sub-sections (4) and (5) of Section 3.
85. It is also a matter of record that upon being detained on 10.10.2018, the very same day, the detenue made a Page - 49 of 59 representation to the Superintendent of Jail which on 11.10.2018 was forwarded to the District Magistrate(empowered officer) passing the order of detention who in turn sent the same to the State Government for appropriate action. On 12.10.2018 the State Government forwarded all the papers including the grounds of detention and the petitioner‟s representation to the Advisory Board. Pursuant to the order dated 15.10.2018, the detenu appeared before the Advisory Board in-person on 15th and 22nd October, 2018 at the time of hearing. On 22.10.2018 itself, the Advisory Board passed an order approving the order of detention and according to the State, also rejecting the petitioner‟s representation whereafter the State Government passed an appropriate order dated 29.8.2018 directing the petitioner‟s detention "until the expiration of 12 months from the date of detention".
86. Now, in so far as compliance of mandatory provisions and the time frame within which the events were required to be fulfilled is concerned, we find there is no infraction of any one of the provisions of the statute, be it Section 8, Section 10, Section 11 or Section 12. However, there being one exception to it, which in fact is crucial for determination of the present case. And that being as to whether the petitioner‟s representation so made to the State ought to have been considered and decided by the appropriate authority or not and as to whether consideration by the Advisory Board was sufficient compliance of the provisions of law or not.
Page - 50 of 59
87. At this juncture, we may state that the affidavit filed by the State is not honest, insofar as disclosure of complete facts is concerned. Petitioner may or may not disclose complete facts. He may take the risk of not doing so, for it would be to his peril. But, however, the State under all circumstances is duty bound to disclose all facts, more so, in a case of such nature.
88. We have perused the record so made available to us. The affidavit is conspicuously silent about the subsequent representation made by the petitioner seeking release under Section 15 of the Act. Noting portion of the file reveals that the first representation was dealt with by the Principal Secretary, Home and he opined that the same be referred to the Advisory Board. The Chief Secretary and the Hon‟ble Chief Minister consented for the same. On this count, perhaps the Chief Secretary and the Hon‟ble Chief Minister were not correctly advised and this we say so for the reason that right from Atma Ram; Ujagar Singh; Lawrence Joachim Joseph; Rameshwar Shaw; Vimal Chand Jawantraj, the Apex Court has been reiterating that obligation to decide the representation is on the appropriate authority which, in our considered view, is definitely not the Advisory Board. The representation was addressed to the State and as such, had to be decided by the State. We notice that even in the impugned order dated 29.10.2018 passed by the Additional Secretary, Government of Tripura, there is no reference of consideration of the petitioner‟s representation either by the State or by the Advisory Board. Equally, the Advisory Board had Page - 51 of 59 only considered and not rejected the petitioner‟s representation though it would not make any difference for the appropriate authority to consider and pass an appropriate order on the representation is not the Advisory Board. The purpose of forwarding the representation to the Advisory Board is to enable its members to form their opinion and submit their report after carefully examining the entire material and more so, the detenu‟s point of view.
89. Record reveals that even after passing of the order dated 29.10.2018, petitioner had made a representation seeking revocation/modification of the order of detention. The Principal Secretary, Home took opinion of the Secretary, Law who simply opined that since the order of detention stands approved by the Government and the Advisory Board, as such, it would not be advisable to consider the application. Such opinion was accepted by the Chief Secretary and the Hon‟ble Chief Minister on 04.11.2018. Even this fact was not brought to our notice. Even at this point in time the earlier representation was not considered or order passed thereupon. Further the record does not reveal as to whether this order was communicated to the petitioner or not. Be that as it may, the fact of the matter being that the petitioner‟s initial representation was not considered by the State at all. We are of the considered view that consideration and rejection of subsequent representation would not, in any manner, cure the illegality surfaced on record.
Page - 52 of 59
90. As such, the mandatory provisions of law stands infringed and petitioner‟s detention any further cannot be said to be legal. In Abdul Nasar Adam (supra), the Apex Court observed as under:
"22. In Harish Kumar, this Court was again considering an order of detention issued under the provisions of the said Act. This Court reiterated the same view and held that:
"14. ........ The detention order ... passed at the satisfaction of the detaining authority on the basis of the material available in no manner gets vitiated for the reason of non-consideration of the representation ... made by the [detenu] to the Central Government."
It was held that initial order of detention was not rendered void ab initio.
23. It may be noted that even the Constitution Bench of this Court in K.M. Abdulla Kunhi, held that any unexplained delay in disposal of the representation of the detenu would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal and set aside the continued detention of the detenu.
24. In view of this clear legal position, we hold that the order of detention dated 16-4-2012 is valid. However, on account of delay in disposal of the representation of the detenu by the State Government, the continued detention of the detenu is rendered illegal. ..............." Hence, in view of the aforesaid law, continued detention of the detenu is certainly illegal though the order of detention may not be vitiated on this ground. Submission No.III:
91. In the given facts and circumstances it cannot be said that there has been total non-application of mind on the part of the appropriate authority in passing the order. To contend that verbatim reproduction of report of the sponsoring authority Page - 53 of 59 indicates non-application of mind of the appropriate authority is fallacious for the report of the sponsoring authority necessarily has to be referred to and considered by the appropriate authority in its order.
The decision in Rajesh Vashdev Adnani (supra) was, in the given facts and circumstances, totally distinguishable from the instant fact, for here the detaining authority has specifically expressed its satisfaction in the order of detention. Report of the sponsoring authority has to be referred, for that is the basis on which the detaining authority formed its opinion, while recording its satisfaction.
Submision No.IV:
92. It is not in dispute that the order of detention dated 16.8.2018 was served upon the petitioner only on 10.10.2018 for according to the Sate, petitioner was "absconding". Precisely the language used in the affidavit filed by the State is that "different attempts were made by different officers of Jirania Police Station and others in and around the areas of Jirania and Agartala including his permanent residence Jirania, Madhya Para and Agartala but on all occasions he was found absconding to evade detention order and that attempts were made to be continued for execution of the detention order."
93. Reports of the duty officer Annexure R-9(colly) only records that on 27th August, 30th August, 31st August, 2018 and on 1st September, the duty/police officer had visited the house of Page - 54 of 59 the detenu and other places and inquired about his whereabouts.
Though the detenu was not available but on one occasion his mother informed that her son had left the house 3-4 days back and was staying at Agartala, particulars whereof, she was not knowing. Consequently, the officer did make inquiry from the concerned Police Station at Agartala. In the affidavit filed by the State it is mentioned that further attempts to trace the detenu were made. Well, we have no reason to disbelieve the same for such fact remains unrefuted.
94. However, on this issue we do not find the officer(delegatee) to have complied with the provisions of Section 7 of the Act. There is neither any recording of belief on the part of the empowered/authorized officer nor any report made to the Metropolitan Magistrate or the Judicial Magistrate of the first class of the place where the said detenu ordinarily resides to the effect that the detenue was absconding. Hence to contend that the detenu was absconding for a period of two months cannot be said to be borne out from the record.
95. However, we are not in agreement with the learned counsel that mere non-compliance of Section 7 would itself vitiate the order of detention or the delay would efface the substratum making the order to be infructuous. The Apex Court in Hem Lall Bhandari and Usha Agarwal(supra) on which reliance is placed did not hold the order of detention to be vitiated solely on this ground. For it stood clarified that there can be no specific or mechanical test for determining whether there has been "undue Page - 55 of 59 delay" and only where there is "unexplained delay" in either making or serving the order, it would vitiate the order of detention. [Saeed Zakir, Rajinder, Usha Agarwal and Abdul Nasar (supra) are clear on this aspect.] Here the officer had been making attempt to serve the detenu. Efforts were put up to serve him. Inaction on the part of authority is distinct from the conduct of the detenu. The delay of 2 (two) months in serving the order, in our considered view, cannot be said to be un-explainable. After all, police had visited his house several times and inquired about his whereabouts and a political person cannot live in oblivion. Submission No.V:
96. To contend that there is no live link between the activities of the past, prejudicial in nature with the grounds germane leading to the instant order of detention, in our considered view, is not correct. No doubt, it is true that 12 FIRs registered against the petitioner pertain to the period from 16.12.2007 till 02.02.2013 but then there is nothing on record to substantiate that in all the cases, after trial, the accused was acquitted "honorably".
97. It may be a case of discharge; withdrawal of the prosecution; non-establishment of the charge for technical reasons or the prosecution failed to have established its case beyond reasonable doubt. For it is not the case of the petitioner that in any one of such cases, the trial Court had found the petitioner to have been falsely implicated.
Page - 56 of 59
98. Not only that, we find that reports of continuous noxious activities of the petitioner also pertain to the year 2012 and 2018. The reports are very many, spread over a period of time. In the year 2018 itself there are three reports starting from the month of April till July.
99. It is not a simple case of breach of peace. There is nothing on record to establish the political status or stature of the petitioner. Also one finds no reason to discredit the report of the sponsoring authority as also the appropriate authority in finding the activities of the petitioner to be such, necessitating action under the provisions of the Act. Reliance on the decisions referred to in Shiv Parsad Bhatnagar, Rajinder Arora and Sama Aruna(supra) is also of not much assistance for each case has to be considered on the attending facts and circumstances.
100. In fact, in Sama Aruna (supra), the Court explained the expression "only activities so far back" which can be considered has furnished a cause for preventive detention are to be accounted for. The past activities means reasonable prognosis of the future behaviour of the person based on his past conduct in the light of surrounding circumstances. Equally, in Licil Antony (supra), it is clarified that if there is sufficient explanation on record, establishing the live link between the activities of the past and the satisfaction of the authority in connection thereto, necessitating passing of the order of detention, then the order, per se, would not be invalid.
Page - 57 of 59
101. Here, we may also note that the Apex Court in Sahib Singh Dugal (supra) had also observed that even though the activity of the detenu can be subject matter of adjudication under the different provisions of the penal/procedural laws, but then that fact in itself, would not be a ground of not accounting for such activities in recording satisfaction by the appropriate authority. In the very same decision, the Court clarified that though the detaining authority might well feel that there was no sufficient evidence admissible under the Evidence Act for a conviction but, however, they may be sufficient enough to justify passing of order of detention. Now, in the instant case, it is true that for a period of 5(five) years there is nothing on record to establish any illegal activity on the part of the detenu. From the year 2013 till the year 2018, there is no record to such effect. But then, it is equally true that the activities which the petitioner have been indulging in from the year 2007 till 2012, to the satisfaction of the authorized officer are such that are likely to be continued in future and in relation thereto at least 3(three) recent reports were made prior to the passing of the order of detention. It is under these circumstances, we are of the considered view that the contention needs to be rejected.
Submission No.VI :
102. To contend that the action initiated is on account of political rivalry also remains unsubstantiated on record and as such, we find no reason to interfere in this count.
Page - 58 of 59 Submission No.VII :
103. It would be equally fallacious to contend that no action under the Act can be initiated against the detenu for the illegal activities can be adjudicated under the penal laws of the land. Reliance on Abdulla Kunhi and V. Shantha(supra) is inappropriate in view of the law laid down by the Apex Court in Mohd. Salim Khan, Sahib Singh Dugal; Haradhan Saha; Bhaurao Punjabrao Gawande and Nabila (supra) which are not only decisions of larger Benches but latest in point in time. We need not reiterate what we have already discussed under the heading "Parallel Proceedings Under Different Laws of The Land"
(supra).
104. In view of the aforesaid discussion, we are of the considered view that:
(i) Sub-section (3) of Section 3 of the Act does not deal with the period for which the detenu can be put under detention;
(ii) Non-consideration of the petitioner‟s representation by the State Government has rendered his further detention to be illegal;
(iii) It cannot be said that there is no proper application of mind on the part of the appropriate authority in passing the order of detention;
(iv) It cannot be said that the accused was absconding for a period of 2(two) months, for there is no compliance of Page - 59 of 59 provisions of Section 7 of the Act. However, in the attending facts, on this count the order of detention cannot be said to be illegal and inoperative;
(v) It cannot be said that there is no live link between the past activities with the grounds germane, leading to the passing of the instant order of detention;
(vi) The malice on facts on account of political rivalry remains unsubstantiated;
(vii) Action under the Act is totally in consonance with the principles of law laid down by the Apex Court and cannot be faulted solely for the reason that the activities of the detenu can be adjudicated under the provisions of the penal/procedural laws of the land.
105. In view of the aforesaid discussions, we are of the considered view that the petitioner‟s detention is absolutely illegal and he needs to be released forthwith.
Ordered accordingly.
106. The writ petition stands disposed of.
(S. TALAPATRA), J (SANJAY KAROL), CJ Sukhendu/Pulak