Madhya Pradesh High Court
Sharad Dadu vs The District Magistrate And Anr. on 30 May, 1990
Equivalent citations: 1991CRILJ369
JUDGMENT S.K. Seth, J.
1. The District Magistrate, Bhopal in exercise of powers vested in Mm under Sub-section (2) read with Sub-section (3) of Section 3 of the National Security Act, 1980, made an order of detention dated 15-10-1988 against one Kishore Dadu son of Thakur Dadu, aged 21 years, r/o MACT Hostel No. 6, Bhopal on the ground that it was necessary to do so with a view to preventing the said person from acting in any manner prejudicial to the maintenance of public order. In execution of the said order, the said person was taken into custody and lodged in the Central Jail Bhopal on 18-11-1988. Thereafter, on the basis of the advice of the Advisory Board, the detention order passed against the said detenu was confirmed by the State Government under Sub-section (1) of Section 12 of the Act vide its order dated 6-1-1989. It was specified in its confirmatory order that the detention of the detenu would continue for a period of twelve months from the date of his detention i.e. upto 17-11-1989.
2. During the period of detention, the State Government, in exercise of its powers Under Section 15 of the Act, directed the, temporary release of the detenu for a total period of nine months vide orders dated 14-3-1989, 12-6-1989 and 8-9-1989 passed by it from time to time. Under the last of the said orders i.e. one dated 8-9-1989 the detenu was directed to report back to the Supdt., Central Jail, Bhopal after the expiry of the period of his temporary release on 16-12-1989. Thereafter, a further order was passed by the State Government on 30-11-1989 informing the detenu that as a result of his nine months' release on parole as aforesaid, the figure of '17-11-1989' mentioned in the confirmatory order dated 6-1-1989 would stand modified and substituted by the figure of '16-8-1990' i.e. in other words, his detention under the detention order in question would continue upto '16-8-1990' instead of '17-11-1989'. It is the legality and constitutional validity of the order dated 30-11-1989 passed by the State Government, extending the period of detention upto '16-8-1990' in place of '17-11-1989', by adding to the original period of twelve months a further period of nine months during which he had been temporarily released Under Section 15 of the Act, which is challenged on behalf of the detenu in this petition for the issue of a writ of habeas corpus filed by his cousin.
3. Now, it is apparent that since the National Security Act is a law providing for 'preventive detention' as permitted by Clauses (4) to (7) of Article 22 of the Constitution, its provisions are to be read subject to and in the light of the safe-guards against their possible misuse contained in the said Clauses and the other provisions of the Constitution. Before proceeding to deal with the question arising for consideration in the petition, it is convenient to have a look at the relevant provisions of the Act. It is Sub-section (2) of Section 3 of the Act which confers powers to make a preventive order of detention on the appropriate Government. The said sub-section reads as follows : "The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and service essential to the community it is necessary so to do, make an order directing that such person be detained." Sub-section (3) of Section 3 of the Act provides for conferment of power upon District Magistrates or Commissioners of Police to make orders of detention under Sub-section (2) of Section 3 under certain circumstances and subject to certain conditions.
4. The provisions with regard to the maximum period for which any person may be detained under the provisions of the Act are contained in Section 13 of the Act. The said Section is preceded by Sections 11 and 12. Consistent with the constitutional safe-guard provided by Clause (4) of Article 22 of the Constitution, Section 11 of the Act requires the Advisory Board to submit its opinion as to whether there is sufficient cause for the detention of the person concerned to the appropriate Government within seven weeks from the date of detention of the said person. Thereafter, Sub-section (1) of Section 12 provides that in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit, (emphasis supplied). As stated earlier, the provisions with regard to the maximum period for which such person may be detained are contained in Section 13 of the Act. In the said regard, therefore, Section 12 is controlled by Section 13. Section 13 reads as follows : "The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention." (Emphasis supplied).
5. The only other Section of the Act which is relevant for our present purpose is Section 15. Unlike Section 13, which deals with the maximum period for which any person may be detained in pursuance of a detention order, Section 15 has for its subject matter 'temporary release' of any person detained in pursuance of a detention order. Section 15 reads as follows : "15. Temporary release of persons detained.-- (1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release. (2) In directing the release of any person under Sub-section (1), the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction. (3) Any person released under Sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be. (4) If any person fails without sufficient cause to surrender himself in the manner specified in Sub-section (3), he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. (5) If any person released under Sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof."
6. In the light of the above said statutory provisions of the National Security Act, the question which arises for determination in the present writ petition is whether once a detention order passed against any person under Sub-section (2) of Section 3 of the Act is confirmed by the appropriate Government under Sub-section (1) of Section 12, and his detention is consequently directed by the said Government to be continued for such period as it thinks fit, subject to the maximum period of twelve months from the date of his detention as prescribed under Section 13, it is within its power later on to extend the original period of detention fixed in the manner as aforesaid on the ground that since during the period of such detention he was granted the benefit of being temporarily released for a certain period under Section 15 of the Act the period of his such release is liable to be added to his said period of detention?
7. In our opinion, bearing in mind the nature and object of preventive detention, as permitted by Clauses (4) to (7) of the Constitution, and as finding its manifestation in the relevant provisions of the Act in question i.e. the National Security Act, the answer to the abovesaid question has to be clearly in the negative. In other words, in our opinion, once a detention order passed against any person under Sub-section (2) of Section 3 is confirmed by the appropriate Government under Sub-section (1) of Section 12, and his detention is consequently directed by the said Government for such period as it thinks fit, subject to the maximum period of twelve months from the date of his detention as prescribed under Section 13, it i.e. the said Government is thereafter left with no power to extend the detention of the said person beyond the period already fixed by it in the manner as aforesaid under Sub-section (1) of Section 12 read with Section 13. In our opinion, as per its very nature, the period of temporary release, if any granted to such person under Section 15 of the Act, has to fall within the period of detention already fixed in respect of him as aforesaid under Sub-section (1) of Section 12 read with Section 13 and there is no warrant in any provision of the Act for adding the same to that period.
8. In the above connection, in our opinion, it is of utmost importance to bear in mind the vital distinction between the preventive detention on one hand and the punitive detention i.e. sentence of imprisonment under the criminal law on the other. While in the case of punitive detention the person concerned is detained by way of punishment after being found guilty of wrong doing where he has the fullest opportunity to defend himself, the preventive detention is not by way of punishment at all but is intended to prevent a person from indulging in any conduct injurious to the society or prejudicial to the maintenance of public order, etc. The preventive detention is taken recourse to by way of a precautionary measure. The object is not to punish a man for having done some thing but to intercept him before he does it and to prevent him from doing it. In the case of such detention, no offence is proved, nor any charge is formulated. It is without any trial and the justification for it is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. (See, apart from old Cases, two recent decisions of the Supreme Court in State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 : (1990 Cri LJ 584) and Kubicdarusz v. Union of India (1990) 1 SCC 568 : (1990 Cri LJ 796).
9. It follows from the abovesaid distinction between the preventive detention and the punitive detention that while in the case of punitive detention the purpose underlying the sentence awarded under the criminal law is to punish the offender, in the case of preventive detention the object underlying detention under the preventive law is to ensure that the detenu is prevented from continuing his activities which are injurious to the society or prejudicial to the maintenance of public order, etc. Thus, while in the case of the former, the emphasis is on the point that the full period of sentence is undergone by the person convicted of an offence, in the case of the latter, the emphasis is on the point that certain time-limit upto which a detenu has to be detained is fixed so that upto that point of time he would not be in a position to carry on his activities which are injurious to the society or prejudicial to the maintenance of public order, etc.
10. Needless to say, the National Security Act being a preventive detention law, its relevant provisions i.e. Sub-section (1) of Section 12 read with Section 13 on one side and Section 15 on the other have to be interpreted in the light of the vital distinction between the preventive detention and the punitive detention. Thus, it is clear that when it is provided in Sub-section (1) of Section 12 that in any case where the detention order is confirmed by the appropriate Government it may continue the detention of the person concerned for such period as it thinks fit, and it is further provided in Section 13 that the maximum period for which any person may be detained in pursuance of a detention order which has been confirmed Under Section 12 shall be twelve months from the date of detention, the intention behind the award of such detention to the person concerned Sub-section (1) of Section 12 read with Section 13 is not to punish him or to make him undergo the full period of detention, but only to ensure that he is prevented from continuing his activities which are injurious to the society or prejudicial to the maintenance of public order etc. and for the said purpose certain time-limit is fixed upto which he has to be detained so that he would not be in a position to carry on such activities.
11. In our opinion, bearing in mind the vital distinction between the preventive detention and the punitive detention as explained earlier, and the intention behind the enactment of Sub-section (1) of Section 12 read with Section 13 of the preventive law in question i.e. the National Security Act as pointed out above, it is not difficult to understand as to why merely because in the case of punitive detention under the criminal law there exists a rule in the matter relating to grant of temporary release to the effect that the period spent on parole shall not be counted as a part of sentence of imprisonment awarded to a person found guilty of an offence, there is any need or justification for implying the existence of any such rule in the case of preventive detention under the National Security Act in so far as the matter relating to grant of temporary release dealt with the Section 15 of the said Act is concerned. As per its basic nature, the period of detention awarded to a detenu under Sub-section (1) of Section 12 read with Section 13 of the Act does not amount to a 'sentence' or 'punishment'. It is, therefore, apparent that in the event of he being granted the benefit of temporary release for any period under Section 15 of the Act, there arises no question of he being made to complete his 'full sentence' later on by excluding the period of such temporary release from the period of detention awarded to him.
12. It is a matter of satisfaction to us that the view expressed by us hereinabove finds support from the decision of a Division Bench of the Andhra Pradesh High Court (presided over by K. Bhaskaran, CJ) in M. Michael Vijayakumar v. State of Andhra Pradesh 1987 Cri LJ 467. It has been stated by the Division Bench in para 6 of its decision as follows : "Having given our anxious thought to the scheme of the Penal Code and the Criminal Procedure Code on the one hand and the preventive detention laws on the other, we are of the opinion that what is laid down by the Rule with respect to the parole vis-a-vis the sentence would not be applicable to the detention under the provisions of the preventive detention laws in the absence of provisions express or inferable by necessary implication, to that effect." Again, in para 8 of its decision, the Division Bench has observed as follows : "When there is no provision in the National Security Act, which specifically or by necessary implication lays down that the period of temporary release shall not be counted as part of the period of detention, there is no justification for reading into the section such a clause. In fact, the other things being equal, the Court should be inclined to interpret the provision in favour of the detenu, rather-than in favour of the detaining authority". Needless to say, both the abovesaid observations made by the Division Bench of the Andhra Pradesh High Court in M. Michael Vijayakumar's case (1987 Cri LJ 467) have our respectful concurrence.
13. In fact, in our opinion, there is another good reason in support of the view taken by us that the period of detention awarded to a detenu or fixed in respect of him under Sub-section (1) of Section 12 read with Section 13 of the National Security Act cannot be extended by adding to the same the period of his temporary release, if any, under Section 15 of the Act. As stated earlier, the period of detention awarded to a detenu under Sub-section (1) of Section 12 read with Section 13 of the Act, represents a definite time-limit to be reckoned from the date of his initial detention under Sub-section (2) of Section 3 of the Act upto which the appropriate Government deems fit to detain him with a view to preventing him from carrying on any activities injurious to the society or prejudicial to the maintenance of public order, etc. Thus, the period of detention so awarded to a detenu or so fixed in respect of him under the said provisions is necessarily based on the application of mind by the appropriate Government regarding its sufficiency or adequacy from the point of view of the object intended to be achieved by it. It, accordingly, follows that in case the period of detention awarded to a detenu under Sub-section (1) of Section 12 read with Section 13 of the Act is allowed to be extended by adding to the same the period of temporary release, if any, granted to him under Section 15, the detention of the detenu during such extended period is bound to suffer from the vice of non-application of mind and is bound to be unconstitutional and illegal.
14. Again, in our opinion, bearing in mind the scheme of preventive detention contained in the provisions of the National Security Act, there is no reason to think that the object or purpose which is meant to be achieved by awarding the particular period of detention to a detenu under Sub-section (1) of Section 12 read with Section 13 of the Act is intended to be kept in abeyance during the period of temporary release, if any, granted to him under Section 15. It is significant to note that the temporary release, if any, of a detenu for a specified period under Section 15 of the Act can be directed either without conditions or upon such conditions specified in the direction as the detenu accepts. It is also significant to note that such temporary release can be cancelled by the appropriate Government at any time. We are clear in our mind that the said provisions have been incorporated in the said section with a view to ensure that the object or purpose for which the particular period of detention was awarded to a detenu under Sub-section (1) of Section 12 read with Section 13 is continued to be served during the period of his temporary release under Section 15 of the Act. Accordingly, we see no reason why the period of temporary release enjoyed by a detenu under Section 15 should not be treated as having marged into the period of detention awarded to the detenu under Sub-section (1) of Section 12 read with Section 13 of the Act. In the said view of the matter, we also see no reason why there should remain any need or justification for extending the period of detention awarded to a detenu under Sub-section (1) of Section 12 read with Section 13 of the Act by adding to the same the period of temporary release, if any, granted to him under Section 15.
15. We may mention that in support of his general argument that the period of temporary release or parole cannot be treated as a part of detention under a preventive detention law, the learned counsel for the State-respondent drew our attention to the three decisions of the Supreme Court in State of Gujarat v. Adam Kasam AIR 1981 SC 2005 : (1981 Cri LJ 1686), Poonam Lata v. M.L. Wadhawan AIR 1987 SC 1383 : (1987 Cri LJ 1130)and Pushpadevi v. M.L. Wadhawan AIR 1987 SC 1748 : (1987 Cri LJ 1888), all of them rendered by Division Benches of the Supreme Court presided over by A.P. Sen, J. It was submitted by the learned counsel that the law declared by the Supreme Court in the said three decisions was binding on this Court under Article 141 of the Constitution.
16. Now, in our opinion, it is significant to note that in all the abovesaid cases before the Supreme Court, the detenus concerned had been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act') and none of the said cases was concerned with a detenu detained under the provisions of the National Security Act as in the present case. Again, excepting for the last of the said three cases, the Supreme Court, in none of the two remaining cases, was concerned with interpreting the provisions relating to grant of temporary release contained in the Act in the light of the provisions relating to fixation of detention in respect of a detenu contained in the said Act. The position under consideration by the Supreme Court in the said two cases was with regard to an absconding detenu or a detenu whose detention had been broken by an illegal order of the Court. It is apparent that the said position could not be equated with that of a detenu who for compelling reasons was temporarily released for short periods in accordance with the provisions of the very Act under which his detention was ordered.
17. It is only in the last of the said three cases i.e. in Pushpadevi's case (1987 Cri LJ 1888) (SC) that in paras 30 and 31 of its decision the Supreme Court was concerned with the question whether the period of parole i.e. temporary release granted to a detenu under the provisions of Section 12 of the COFEPOSA Act should be treated as a part of the detention period awarded to him under Clause (f) of Section 8 read with Section 10 of the said Act. Now, it would be clear from a perusal of the relevant provisions contained in the COFEPOSA Act including Sections 8(f), 10 and 12 thereof that the same are undoubtedly more stringent and harsher than those contained in the corresponding sections of the National Security Act. In our opinion, the negative answer given by the Supreme Court to the abovesaid question on the basis of analysis of more stringent and harsher provisions of the COFEPOSA Act could not be regarded as laying down any invariable rule or principle of law which would be applied as a matter of course for the interpretation of relevant provisions contained in all other preventive detention laws especially such preventive detention laws like the National Security Act wherein the corresponding provisions were not so stringent or so harsh.
18. In the above connection, we would like to elaborate on the point that the rule or principle of law laid down by the Supreme Court on the particular question in Pushpadevi's case (1987 Cri LJ 1888) is based on the analysis of more stringent and harsh provisions of the particular preventive detention law i.e. the COFEPOSA Act. As discussed earlier in the context of Section 15 of the National Security Act, viewed in the light of Sub-section (1) of Section 12 read with Section 13 of the said Act, we have expressed the view that when there is no provision in the said Act, which specifically or by necessary implication lays down that the period of temporary release shall not be counted as part of the period of detention, there is no justification for reading into the Section such a provision. Now, Section 15 of the National Security Act corresponds to Section 12 of the COFEPOSA Act. It is significant to note that the said Section of the COFEPOSA Act contains a more stringent and harsher provision in the shape of Sub-section (6) of the said Section which is absent and does not find any place in Section 15 of the National Security Act. The said provision reads as follows : "Notwithstanding anything contained in any other law and save as otherwise provided in this Section, no person against whom a detention order made under this Act is in force shall be released whether on bail or bail bond or otherwise." It is also significant to note that in para 31 of its decision in Pushpadevi's case it is on the basis of the presence of Sub-section (6) in Section 12 of the COFEPOSA Act that it is explained by the Supreme Court that there was no necessity for the legislature to make a provision similar to Sub-section (4) of Section 389 of the Code of Criminal Procedure for excluding the period of bail from the term of detention period. In our opinion, since there is no provision similar to Sub-section (6) of Section 12 of the COFEPOSA Act contained in Section 15 of the National Security Act, we are justified in taking the view that as there is no provision in the National Security Act, which specifically or by necessary implication lays down that the period of temporary release shall not be counted as part of the period of detention, there is no justification for reading into the Section (Section 15) such a provision. While accepting the said view, we rely on the salutory principle enunciated by the Supreme Court in Ravel and Co. v. K.G. Ramachandran, AIR 1974 SC 818 to the effect that any general observation made by the Supreme Court cannot apply in interpreting the provisions of an Act unless the Court has applied its mind to and analysed the provisions of that particular Act.
19. For the reasons stated above, we are of the opinion that once a detention order passed against any person under Sub-section (2) of Section 3 of the National Security Act is confirmed by the appropriate Government under Sub-section (1) of Section 12, and his detention is consequently directed by the said Government to be continued for such period as it thinks fit, subject to the maximum period of twelve months from the date of his detention as prescribed under Section 13, it i.e. the said Government is thereafter left with no power to extend the detention of the said person beyond the period already fixed by it in the manner as aforesaid under Sub-section (1) of Section 12 read with Section 13 of the Act. In our opinion, as per its very nature, the period of temporary release, if any, granted to such person Under Section 15 has to fall within the period of detention already fixed in respect of him as aforesaid under Sub-section (1) of Section 12 read with Section 13 of the Act and there is no warrant for adding the same to that period.
20. Consequently, we allow the petition and quash the order dated 30-11-1989 passed by the State Government extending the period of detention of detenu Kishore Dadu upto 16-8-1990 in place of 17-11-1989, by adding to the original period of 12 months a further period of 9 months during which he had been temporarily released under Section 15 of the Act. The period of detention of the said detenu having already expired on 17-11-1989 we direct that he shall be released forthwith unless required to be detained in connection with any other matter.