Davendra vs State of Rajasthan and Another

S.S. Byas, J.—By petition under Article 226 of the Constitution for a writ in the nature of habeas corpus, the petitioner challenges his detention under the National Security Act, 1980 (here in after to be referred to as ''the Act'' or ''NSA'').

As per averments of the petitioner, he was arrested by Police, Jodhpur on February 24, 1987 for an offence u/s 25 of the Arms Act and was lodged in Central Jail, Jodhpur on February 25, 1987. On March 19, 1987, while he was in Central Jail, Jodhpur, he was served with order Annexure-1 issued by the District Magistrate, Jodhpur, communicating to him that he was detained u/s 3(2) of the Act. On March 21, 1987 he was delivered order Annexure-2 along with the grounds of detention enumerated in a separate sheet. The State Government approved the order of the District Magistrate on March 26, 1987. His case was placed before the Advisory Board. The petitioner submitted representation to the State Government against his detention. The Advisory Board took the view that there is sufficient cause for the detention of the petitioner. Thereafter the State Government passed the order Annexure-5 on May 13, 1987 and fixed the period of one year for petitioner''s detention.

The detention is challenged on the following three grounds:

(1) the detenu was already in custody on March 19, 1987. This fact was not taken into consideration by the District Magistrate and that reveals the non-application of mind of the detaining authority;

(2) the detention order of the District Magistrate was approved u/s 3(4) of the Act by the State Government on March 26, 1987. The State Government, however, failed to report the fact to the Central Government, together with the grounds on which the order was passed, within seven days from March 26, 1987. This contravenes the mandatory provisions of Section 3(5) of the Act. The communication of the approval was received by the Central Government on April 3, 1987; and

(3) the grounds of detention disclosed in Annexure-2 accompanying the letter have no nexus or co relation with the maintenance of ''public order''. The grounds contained in Annexure 2 relate to the commission of the crimes against the individual persons. They not furnish any material to show that the activities of the detenu were, in any way prejudicial to the maintenance of public order.

In the return filed by the respondent, the facts were admitted, but it was denied that the fact of the arrest of the detenu and his being in jail on March 19, 1987 was not taken into consideration by the detaining authority. It was submitted that the fact of the arrest of the detenu was taken into consideration and the detention order was passed keeping in view the fact that the detenu was arrested in case u/s 25 of the Arms Act and the possibility of his being released in the near future. As regards the non-compliance of the provisions of Section 3(5) of the Act, the stand taken was that the report was sent to the Central Government by the State Government on March 31, 1987 by a registered post It was, no doubt, received by the Central Government on April 3, 1987. Section 3(5) of the Act does not lay down that the report should be received by the Central Government within seven days of the date of approval. It was, also alleged that the activities of the detenu were not only creating a problem of law and order, but also of public order.

We have heard Mr. M.D. Purohit, learned Counsel for the detenu and the learned Additional Adovcate General Mr. J.P. Joshi. We will deal with the contentions of Mr. Purohit at seriatim.

Re: 1

Admittedly, the detenu was arrested in a case under the Arms Act and was lodged in the Central Jail, Jodhpur. The order of detention was served on him on March 19, 1987 while he was still in Central Jail Jodhpur in connection with his arrest in the criminal case u/s 25 of the Arms Act.

The contention of Mr. Purohit learned Counsel appearing for the detenu is that the fact of his arrest was not taken into consideration by the District Magistrate and that shows that non-application of the mind of the detaining authority. It was aruged that when the detenu was already in jail, there was no sense in keeping him in detention under the NSA. It was, on the other hand, contended by the learned Additional Advocate General that the detenu was arrested in a case u/s 25 of the Arms Act. There was very possibility of his being released on bail in the near future. The detaining authority took this matter into consideration and passed the detention order under the NSA. We have taken the respective submissions into consideration.

Normally, a person who is already in jail custody, is not a position to participate in activities which may be prejudicial to the maintenance of the public order. In such a situation, the detention under the NSA is hardly necessary because the detenu is not free to act at all. However, if the possibility of his being released on bil in the near future is there and that possibility is taken into consideration by the detaining authority, the person can be detained u/s 3(2) of the NSA. If the fact of detention and the possibility of being released on bail has not been taken into consideration by the detaining authority, it reveals the non-application of mind The position has been examined by the Hon''ble Supreme Court from time to time.

In Devi Lal v. State of Bihar 1982 Cri LR 485, it was observed:

The detaining authority must show awareness of this fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet for the reason which may appeal to the District Magistrate on which his subjective satisfaction is grounded a preventive detention order is required to be made. It clearly discloses the non-application of mind and following the afore-mentioned decisions it must be held that the order of preventive detention having been mechanically made and suffering from the vice of non-application of mind is vitiated.

In Vijay Kumar Vs. State of Jammu and Kashmir and Others, it was observed:

Preventive detention is restored to, to thwart future action. If the detenu is already in jaii charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail arid yet for compelling reasons a preventive detention order needs to be made.

In Biru Mahato Vs. District Magistrate Dhanbad, , the position was again examined and it was laid down:

A preventive order may be made against a person already confined to jail or detained. But in such a situation it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact, the detention order is likely to be vitiated.

The same view was reiterated in Suraj Pal Sahu Vs. State of Maharashtra and Others,

Recently, in Gulab Mehra v. State of Utter Pradesh 1987 (3) SVLR 108, all the available authorities on the point were noticed and discussed and it was observed that the awareness should there be on the part of the detaining authority that the detenu was already in jail, the prospects of his being released on bail soon were there and his activities are likely to prejudice the maintenance of the public order. If that awareness is not there on the part of the detaining authority, the detention order stands vitiated. The non-awareness reveals the non-application of mind on the part of the detaining authority. It was observed in Gulab Mehra''s case:

There is nothing to show that there was awareness in the mind of the District Magistrate, the detaining authority of the fact that the appellant was in jail at the time of clamping of the order of detention, & the detaining authority was satisfied in considering his antecedents and previous criminal acts, that there is likelihood of his indulging in criminal activites jeopardizing public order if he is enlarged on bail and there is very likelihood that the appellant will be released on bail within a short time. On this ground alone, the order of detention is invalid. It may also be stated in this connection that the respondents can very well oppose the bail application when it comes for hearing and if at all the appellant is released on bail the respondents are not without any remedy. They can also file application in revision for cancellation of the bail application. In such circumstances we cannot but hold that the passing of the order of detention of the appellant who is already in custody is fully bad and as such the same is invalid in law.

Now, whether the awareness was there on the part of the detaining authority and he took the matter of the detenu''s already being in jail into consideration or not, can be found out in two ways, namely, (1) the order of detention speaks about the detenu''s already being in jail and the possibibity of his being released on bail; and (2) from the return filed by the determining authority that he had taken this fact into consideration and thereafter passed the detaintion order The return must be accompanied with an affidavit of the detaining authority to satisfy the Court that the jurisdictional requirement was fulfilled before the detention order was passed.

In the instant case, the District Magistrate, Jodhpur, who had passed the detention order had filed his affidavit. Along with the return, the copy of the letter received by the District Magistrate from the Superintendent of Police was also filed, in which it has been mentioned that the detenue was arrested in criminal case u/s 25 of the Arms Act on February 23, 1987 and there was every possibility of his being released on bail in that criminal case. In the affidavit filed by the District Magistrate, he has stated that the order of detention under the NSA was passed by him after taking consideration the pendency of the case u/s 25 of the Arms Act and also the fact that the petitioner was in jail. The learned Additional Advocate General also made the original record available to us for our perusal. The record shows that the District Magistrate had taken into consideration the fact that the detenu was arrested in a criminal case u/s 25 of the Arms Act on February 23, 1987. He was lodged in the Central Jail, Jodhpur and the possibility of his being released soon was there. And yet, the District Magistrate thought it proper to detain the detenu under the NSA in order to restrain his activities prejudicial to the maintenance of the public order.

Thus, the awareness was there on the part of the District Magistrate. Of course, this awareness has not been mentioned in the detention order served on the detenu. But that has no material consequence as it was necessary to communicate this awareness to the detenu. The detention of the detenu, is, therefore, not invalid on the ground that he was already in detention when the order of detention was passed against him u/s 3(3) of the NSA. The first contention has, thus, no substance.

Re: 2

It was argued by Mr. Purohit that the order of detention passed by the District Magistrate on March 19, 1987 was approved by the State Government u/s 3(4) of the NSA on March 26, 1987. u/s 3(5) of the NSA, this approval should have been reported to the Central Government within seven days. The order of approval dt. 26-3-87, was received by the Central Govt. on April 3, 1987 that is to say, after seven days from March 26, 1987. Since the approval was not communicated within seven days, the detention of the detenu is rendered invalid. Reliance in support of the contention was placed on Sher Mohammad alias Seru Vs. The State of West Bengal, , Vinayak Ramchandra and Ors v. D. Ramchandran etc. 1985 Cri LJ 1257 decided by a Division Bench of the Bombay High Court) and Gurucharan Singh v. Superintendent, Central Jail, Bareilli and Ors. 1986 All LJ 1172(DB). On the basis of authorities, it was argued that the approval made by the State Government u/s 3(5) of the NSA must be received by the Central Government within seven days of the order of approval. In the instant case, the order of approval was passed by the State Government on March 26, 1987 and it was received by the Central Government on April 3, 1987, that is to say beyond seven days from March 26 1987. The prolonged detention of the detenu after March 26, 1987, thus, becomes invalid.

It was, on the other hand, submitted by the learned Additional Advocate General that is required u/s 3(5) of the NSA is that the State Government should report the fact of the approval of the detention order to the Central Government within seven days. It is not, at all, necessary under the said provision that the order of approval should be received by the Central Government within seven days. Reliance in support of the contention was placed on Yogendra Singh v. State of Bihar 1985 Cri LJ 889. It was also argued by the learned Additional Advocate General that the use of word "communication" in Slier Mohammed''s case (supra) was made in casual manner. Their Lordships of the Supreme Court never intended to mean that the word "report" used in Section 3(5) of the NSA means "communication". The matter before the Hon''ble Supreme Court in Sher Mohammed''s case was entirely different. We have taken the respective submissions into consideration.

It would be useful to first read Sub-section (5) of Section 3 of the NSA, which reads as under:

3(5)--When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Govt. together with the ground on which detention has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

The word "report", which occurs in Sub-section (5) also occurs in Sub-section (4) of the same section. The word "report" has been used in both these Sub-sections, because the matter is to be reported by a subordinate to the Superior, under Sub-section (4) by the District Magistrate to the State Government and under Sub-section (5) by the State Government to the Central Government. The use of any other word like "Communicate" would be entirely misfit. Therefore, we are to see whether the word "report" mentioned in Sub-section (5) simply requires that a report is to be despatched or whether it implies that the report must be received by the Central Government within the specified time of seven days.

In Yogendra Singh''s case (supra), the learned Judge of the Patna High Court took the view that what is required u/s 3(5) is that the State Government should make a report to the Central Government within seven days. It does not require that the report of the State Government should be received by the Central Government within seven days. They further held that the obligation imposed upon the State Government u/s 3(5) is that the State Government should send a report and it is not that the report should reach within a period of seven days to the Central Government. It may be mentioned at once that Sher Mohammed''s case (supra) was not brought to the notice of the learned Judges of the Patna High Court.

In Sher Mohammed''s case (supra), the provisions of Section 3(4) of the MISA (Act No. XXVI of 1971) were examined. The provisions of Section 3(4) of the MISA are identical and pari materia with those of Section 3(5) of the NSA. The word used in Section 3(4) of the MISA is "report". In para 3 of the judgment, their Lordships observed:

A fair reading of Section 3 indicates that the State Government may directly issue an order of detention or, it is done by a lesser authority, approve of such detention order as provided in the statute. Sub-section (4) of Section 3, which we have extracted, obligates the State Government to communicate, within seven days of the order of detention it makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relevant particulars. Even assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Government within the time specified. This procedural mandate is inviolable except on peril of the order being voided.

Their lordships took the view that the word "report" is synonymous with the word "communicate." The use of word "communication" in para 3 was discussed at length by the learned Judges of Bombay and Allahabad High Courts in the cases quoted above.

In Vinayak''s case (supra), the learned Judges of the Bombay High Court, relying upon Sher Mohammed''s case, observed:

Section 3(5) casts a duty on the State Government to report the fact to the Central Government within seven days together with the grounds on which order has been made and such other particulars, as in the opinion of the State Government, have bearing on the necessity of the order. Therefore, unless the report sent by the State Government u/s 3(5) of the Act is received by the Central Government, it cannot be said that the fact of detention together with the grounds on which the order has been made is communicated or reported to the Central Government within the meaning of Section 3(5) of the Act.

It may be pointed out that the contention of the Central and State Government that mere sending of a report is enough u/s 3(5) of the Act and it is not necessary that the report should also be received by the Central Government within the period of seven days, was repelled and rejected.

In Gurucharan Singh''s case (supra) the learned Judges of the Allahabad High Court, in view of the law laid down in Sher Mohammed''s case held:

Therefore, it is quite obvious that unless the fact of the detention is communicated to the Central Government within seven days, it cannot be said that the mandate of Section 3(5) is complied with.

It was contended by the learned Additional Advocate General that the word "communication" was inadvertantly used in para 3 of the judgment in Sher Mohammed''s case Only a casual reference was made to word "communication" and it should not, therefore, be inferred that their Lordships of the Supreme Court took the word "communication" as synonymous for the word "report" used in Section 3(5) of the Act. We are unable to agree with him. Para 3 of the judgment, which we have reproduced above, clearly shows that the word "communication" was not unmeaningfully used by their Lordships. The word "communication" was used to lay emphasis that the report u/s 3(5) of the NSA should be received by the Central Government within seven days. In our opinion, the State Government cannot be relieved of its duty merely by despatching the report u/s 3(5) of the Act. If the mere despatching of the report is taken as sufficient u/s 3(5) of the Act, at times, it may cause a serious harm to the detenu. If the report is lost in transit, the Central Government may not come to know of it. In order to avoid such contingencies, it is necessary that the report u/s 3(5) should reach the Central Government within seven days.

In the instant case, the order of the District Magistrate was approved by the State Government on March 26, 1987. It was stated during arguments by the learned Additional Advocate General that the said approval was despatched on March 31, 1987 u/s 3(5) of the Act and was received by the Central Government on April 3, 1987. The approval was, thus, received by the Central Government after the expiry of seven days from March 29, 1987. The Act does not lay down the method as to how the approval u/s 3(5) of the Act should be reported to the Central Government. It depends on the State Government to adopt any method to send the report, but it must ensure that it reaches the Central Government within seven days. The report can be despatched through special massenger, by telegram or telex or any other method, taking the time factor into consideration. The State Government, in the instant case, was expected that since the approval was made on March 26, 1987, the report to the Central Government should be sent by such means that it reaches there within the prescribed period of seven days. The duty of the State Government does not come to an end u/s 3(5) of the Act by merely despatching the report. When the approval was despatched on March 31, 1987 (that is to say, on the 6th day of the approval), the State Government must have adopted a quick method to ensure that the report reaches the Central Government within seven days of the approval.

It was also contended by the learned Additional Advocate General that even the late receipt of the report by the Central Government causes no prejudice to the detenu because the Act does not lay down the period within which the Central Government is to consider the matter u/s 14 of the Act. The contention has no substance in view of the law laid down in State of Punjab and Others Vs. Jagdev Singh Talwandi, . Their Lordships observed:

Preventive detention is a necessary evil, but essentially an evil. Therefore, deprivation of personal liberty, if at all, have to be on the strict terms of the Constitution. Nothing less, preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that the safeguardes against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as fundamental rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution; and the Courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set out by the Constitution and Legislature have been transgressed. It has always been the view of the Supreme Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil or community resulting from anti-social activities can never furnish any adequate reason for invaliding the personal liberty of citizen except in accordance with the procedure established by law. It is well-settled that the law of preventive detention is a hard law and, therefore, it should be strictly construed.

We may state that under the preventive detention laws, the personal liberty of the citizen is curtailed down. When the liberty is curtailed down under the preventive detention, it is imperative that a faithful compliance should be made of the provisions of the law of prevention detention. The citizen, who has been detained under the law of preventive detention, has a right to contend that the provisions of the law have been breached & as such his detention is illegal. In the instant ease, there is a clear breach of the mandate contained in Section 3(5)of the Act. The prolonged detention of the Detenue is therefore, invalid. The petition should be allowed and the detenu should be freed.

We need not touch the merits of the grounds of detention served on the detenu as we are allowing the petition on the non-compliance of the mandate contained in Section 3(5) of the NSA.

In the result, the petitition is allowed and the respondents are directed to forthwith release the detenu Davendra, if not wanted in any other case.