K.K. Sarin vs Meenakshi Datta Ghosh and Another

Prakash Narain, J.

(1) The petitioner, K. K. Sarin, filed this petition under Article 226 of the Constitution of India praying that in as much as he has been illegally detained, a writ in the nature of habeas corpus be issued and it be ordered that he be set at liberty. Briefly ,the contention was that the petitioner was being detained bythe second respondent Superintendent, Central Jail, Tihar, New Delhi ,by virtue of an illegal and invalid order passed by the first respondent ,Mrs. Meenakshi Datta Ghosh, Additional District Magistrate (New Delhi) Delhi, under the Maintenance of Internal Security Act ,1971, hereinafter called the Act. It was prayed that the said order of detention be quashed and the petitioner be set at liberty. We accepted this petition and directed the release of the petitioner. We now proceed to record our reasons for our decision.

(2) The petitioner is a citizen of India who was in February, 1977 working as a Director in the Planning Commission. An F.I.R. bearing No. 26 of 1977 was lodged in Police Station, Srinivaspuri, New Delhi ,to the effect that the petitioner had committed the offence postulated by Sections 3, 5 and 9 of the Indian Official Secrets Act read with Section 120-B of the Indian Penal Code. Accordingly, the petitioner was arrested during the night of 3rd and 4/02/1977. On Feb. 15/02/1977 an order of "deemed suspension" with effect from 4/02/1977 was passed in respect of the petitioner under the provisions of Rule 10(2) of the Central Civil Services(Classification, Control & Appeal) Rules, 1965. The petitioner, on arrest ,had been produced before a Magistrate and had been remanded to police custody till 17/02/1977. During this period, IT is alleged by the petitioner, he was subjected to continuous and intense interrogation, sometimes the interrogation lasting for as much as 12 hours at a stretch. It is alleged that he was denied food and fluids at one stage for 72 hours. It is further alleged that he was subjected to mental torture, threats and intimidation like his family members being arrested and he himself being detained under the Act indefinitely if he refused to make a confessional statement. Third degree methods were used for extracting various statements of facts of which, the petitioner says, he had no knowledge. Thoroughly broken down both physically and mentally and from a sheer sense of survival, the petitioner agreed to make a confessional statement as dictated by the Police. In this condition, it is alleged, the petitioner was brought to Tihar Jail on the evening of 17/02/1977 and kept in a solitary cell till the morning of 19/02/1977. On 18/02/1977, it is alleged, the petitioner was visited by two plain clothes men from the Police and handed over a prepared statement which he was directed to memorise for being given as confessional statement before a Metropolitan Magistrate. On 19/02/1977 a confessional statement purported to have been made by the petitioner was recorded by Shri D. R. Jain, Metropolitan Magistrate .Thereafter he was brought back and on 20/02/1977 an order of detention under the Act dated 11-2-1977 and made by the first respondent was served on the petitioner. This order stated that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of security of India it was necessary to make an order directing that he be detained and, therefore ,an order to that effect is made in exercise of the powers conferred by sub-clause (i) of clause (a) of sub-section (1) of Section 3 of the Act. The petitioner states that along with the said order of detention he was served with a cyclostyled declaration u/s 16A of the Act made by the first respondent. On February, 1977 the petitioner states that he retracted his confession by sending through the jail a letter of that date addressed to the Secretary, Planning Commission, New Delhi. Copy of this letter has been produced on the record by the petitioner and is Annexure P-9. On 21/03/1977the order of detention dated 11/02/1977 was revoked by the first respondent. She, however, passed another order of detention in respect of the petitioner on the same day directing that he be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of security of India. This order was passed in exercise of powers conferred by sub-clause (i) of clause (a) of subsection (1) of Section 3 of the Act. Inasmuch as Section 16A. of the Act had ceased to operate on account of the proclamation of emergency being revoked by the President of India, grounds of detention dated 21/03/1977 were also served on the petitioner. These grounds were, however, served on 4/04/1977. The detention order dated 21/03/1977 was also revoked by the first respondent by an order of 21/04/1977. Yet another order of detention was, however, passed on 21/04/1977. This order and the grounds of detention both signed by the first respondent were served on the petitioner. Inasmuch as sixty days had elapsed since the-petitioner was arrested in connection with F. I. R. 26 of 1977, Police Station Srinivaspuri, a bail application was moved and he was ordered to be enlarged on bail by an Additional Sessions Judge, Delhi. The bail bond and surety was given and the same was accepted. The order of the Additional Sessions Judge granting bail was passed on 22/04/1977.

(3) The petitioner''s contention was that the successive orders of detention as well as the grounds of detention dated 21/03/1977and 21/04/1977 were issued not on the subjective satisfaction of the first respondent but under dictate from superior or other authorities. It was further contended that the orders of detention and the grounds of detention were illegal, mala fide and were issued in abuse of the powers conferred by the Act. The further contention was that the petitioner''s detention was not ordered to effectuate the purposes contemplated by the Act but for ulterior motives. The validity of the grounds of detention and the order of detention was also challenged for non-compliance with the provisions of the Act and as being vocative of Articles 21 and 22(5) of the Constitution.

(4) Rule nisi was obtained by the petitioner on 8/06/1977. Byway of return both the respondents filed their respective affidavits. The petitioner filed rejoinders to both the counter-affidavits. The respondents have denied the allegations of the petitioner and have submitted that the detention of the petitioner was valid and legal. The first respondent has further submitted in her affidavit that she had passed the various orders from time to time on full consideration of the reports submitted to her by responsible officers and on being satisfied that the detention of the petitioner was essential in order to prevent him from acting in any manner prejudicial to the activity mentioned in the respective detention orders. She admits that she received a D.O. letter of the Director (IS). Government of India. Ministry of Home Affairs dated 11/02/1977 and states that she had no reason to disbelieve that letter and after giving earnest thoughts to the allegations made in it, she issued the detention order. She filed a copy of the D.O. letter, which is Annexure R-11 to the affidavit. Regarding the first detention order of 11/02/1977. the first respondent has stated in her affidavit: "As per Section 16A, 6(b) of MISA(Amendment) Ordinance, 1975, it was not necessary to disclose to any person detained under Misa under the provisions of Section 16A(3) the grounds of detention. The petitioner, was, however, served with a declaration as required under the provisions of the Act." She has not said anything about the petitioner''s contention that Along with the detention order of 11/02/1977 he was served with a cyclostyled declaration u/s 16A of the Act. Another notable feature in the affidavit of the first respondent is her averment.

"THE detention orders dated 21-3-1977 were revoked on 21-4-1977on the advice of the Home Department of Delhi Administration. The detention orders dated 21-3-1977 were revoked purely on technical point "She has not explained what was the technical point. In paragraph 170 of the petition the petitioner states :

(A) that the grounds of detention supplied to him were wholly irrelevant to the alleged purpose of the petitioner''s detention, namely, the maintenance of security of India; (b) that the grounds did not indicate how the information and confidential documents alleged to have been passed on by the petitioner to the foreign agent were connected with India''s security ;(c) that the grounds did not even state that the disclosure of the secret information and passing of the confidential documents was likely to affect India''s security; (d) that as to what were the grounds for holding that the disclosure of secret information and passing of confidential documents affected the security of India; or (e) what were those documents. The reply of the first respondent is as follows :-

"IT is denied that the grounds of detention are irrelevant and detention based on these grounds is illegal. It is also denied that it has not been stated in the grounds that the disclosure of the secret information and passing of the confidential documents affected the security of the country. Inpara 1 of the grounds of detention, dated 21-4-77 it is clearly mentioned that:

''ON perusal of the record of activities of Shri K. K. Sarin, Director, Planning Commission, New Delhi, I am satisfied that his activities are prejudicial to ''.he security of India "

This can hardly be regarded as a reply to the contentions. Why we say this would be apparent from a discussion of the various aspects hereafter .In reply to the allegations in paragraph 17 (D) of the petition that the impugned orders were passed without application of mind and the grounds do not disclose how any or every confidential document could affect the security of India or that a document may be secret within the meaning of the Official Secrets Act but may not jeopardise the security of India or that the first respondent failed to consider that the petitioner could not in future be expected to indulge in the activities which he allegedly indulged in earlier on account of his being suspended from service, the first respondent has merely made a denial that she has not passed the orders carelessly and without application of mind. In paragraph 17(F) of the petition the petitioner has mentioned about the retraction of the confession and has alleged that the grounds of detention were supplied without any application of mind. In reply the first respondent has stated as under :-

"IT is denied that respondent No. 1 acted in a casual and careless manner and that the detention order is mala fide or illegal .The grounds of detention had been furnished to me by the Ministry of Home Affairs, Government of India and by the S.P. C.I.D.(S.B.). Since these were conveyed to me by responsible authorities. I had no reason to disbelieve the grounds of detention."

It is worth-noting that the first respondent has made no reply with regard to the retraction of the confession. She has not even cared to find out when she filed the counter-affidavit whether any such retraction existed and if it did why it was not brought to her notice. In paragraph17(G) of the petition there is an allegation of casual approach and noneupply of material particulars. In her counter affidavit there is no specific denial of this fact nor any assertion that all material facts were disclosed to the petitioner in the grounds communicated to him. In paragraph 17(H) of the petition it has been alleged that the successive orders of detention were passed in order to defeat Section 10 of the Act and prevent the matter being placed before the Advisory Board within 30 days from the date of detention. Respondent No. 1 has denied that the order is mala fide and illegal but has not explained the circumstances which led to successive detention orders being passed by revoking the earlier detention orders. In paragraph 17(1) of the petition the petitioner alleged that he was in-charge of prospective planning in the Planning Commission and he had no access to confidential information and documents. He has further alleged that the documents to which he had access were normally made public in a short time from ; their being known to the petitioner. In reply to this allegation the first respondent says: "As per the grounds of detention furnished to me bythe Ministry of Home Affairs and S.P. CID(SB), the petitioner had access to confidential information. The rest of the para needs no comments". We need not set out the allegations in the petition and the replies any further.

(5) As far as the second respondent is concerned he has stated that he held the petitioner in jail under proper and valid orders of detention. He has denied the allegations of solitary confinement or the visit by anybody while the petitioner was in jail.

(6) Learned counsel appearing for the petitioner raised the following contentions:-

I. It is clear from the counter affidavit of the detaining authority Respondent No. 1 that the impugned order was not really based on her own satisfaction but was made on the direction of her superior officers. Even the grounds of detention were not drafted by her but were sent to her by the Home Department and were passed on by her to the petitioner.

II. In any case the impugned order was passed by respondent No. 1 without any application of mind, without any sense of responsibility and in a casual manner and was malafide in law because (i) Respondent No. 1 did not ascertain for herself whether the documents alleged to be passed on to a foreign agent or agents had any bearing on the security ofIndia; (ii) Respondent No. 1 did not care to inquire whether the petitioner''s alleged confession was voluntary and true and whether it was retracted, although the alleged confession was the sole basis of the order of detention according to the grounds supplied to the petitioner;(iii)Respondent No. 1 did not take into consideration that the petitioner having been suspended from service, had no access to any confidential documents and it was quite unnecessary to subject him to preventive detention; and(iv). Respondent No. 1 nowhere says in the grounds of detention that the anticipated activities of the petitioner were such as to require his preventive detention ; and

III. The impugned order is illegal because its intention and its effect was to defeat the mandatory provisions of section 10 of the Act which required that the petitioner''s case ought to have been submitted ''to the Advisory Board within 30 days of his detention. Respondent No. 1 has given no reason why the detention order dated 21-3-1977 (Annexure P-4)was revoked and replaced by another detention order dated21-4-1977 (Annexure P-7, the impugned order), just before the lapse of the period of 30 days.

VI. The grounds of detention are wholly irrelevant because they do not show that the documents alleged to have been passed by the petitioner to a foreigner agent or agents had any bearing on India''s security. Even the averment of the petitioner that "confidential" documents of his department(Department of Planning Commission) used to be published after the lapse of a short period, has not been denied by Respondent No. 1.

V. The grounds of detention are vague and insufficient for effective representation as they do not furnish any particulars such as the names of the agents, names of the foreign countries ,the nature and number of documents passed bythe petitioner, the dates and places where they were passed the amounts for which they were passed etc."

(7) At this stage we must place on record our appreciation of the attitude of the learned counsel appearing for the respondents. He very fairly placed the record of the detaining authority before us. We have perused it. Certain salient features from this record may be noticed before we go on to comment upon the contentions put forth on behalf of the petitioner.

(8) Prior to the issue of the detention order dated 11/02/1977 the first respondent admits that she received copy of a letter dated 11/02/1977 written by Shri S. C. Vaish, Director (IS) in the Ministry of Home Affairs, Government of India, New Delhi, to ShriSushil Kumar, then Chief Secretary, Delhi Administration. Indeed, she herself filed a copy of this letter along with her counter- affidavit. Para 2 of this letter reads as under :-

''PENDING further investigation of Srinivaspuri P.S. Case No. 26dated 26/01/1977 U/s 3 & 9 of the Official Secrets Act read with Section 120-B Indian Penal Code , the following persons involved in this case may be detained under Misa :-

(I)...

(II)...

(III)...

(IV)K. K. Sarin, Director, Planning Commission.

(V)...

For obvious reasons it will not be possible to disclose the grounds of detention and hence Section 16-A of the Act will have to be invoked. We may be informed after The Action is taken."

(9) According to the nothings on the file the first respondent carefully perused the above letter of 11/02/1977 and recorded that she was satisfied that the activities of the petitioner are prejudicial to the maintenance of security of India and, Therefore, ordered his detention. She has also recorded :-

"I further hold that the detention of the said Shri K. K. Sarin is necessary for dealing effectively with the Emergency proclaimed by the President under Article 352(1) of Constitution of India on 25-6-1975.

Issue detention order and the declaration placed below. . . . .IT is not necessary to disclose to any person detained under MISA under the provision of Sec. 16-A(3) the grounds of his detention."

(10) As noticed earlier, this order of detention was revoked on M 21/03/1977. According to the record shown to us the first respondent has made a noting that as the emergency proclaimed had been revoked by the President of India, Therefore Section 16A of the Act had lapsed. She directed issue of revocation order and release of the detenu. The following note was also recorded by her:

"HOWEVER, it is still considered necessary to redetain the said Shri K. K. Sarin under the normal provisions of MISA with a view to preventing him from acting in any manner prejudicial to the maintenance of security of India. Issue fresh detention order and a copy thereof be sent to Delhi Administration ,Delhi for the approval of the Administrator or as required u/s 3(3) of the MISA."

(11) Inasmuch as grounds of detention had to be communicated along with the order of detention dated 21/03/1977, we find from the file, that grounds of detention had also been drawn up and issued. On a perusal of the grounds of detention we find that they are almost a copy of the grounds of detention which were sent to the District Magistrate ,Delhi, for being served on various persons including the petitioner with a communication No. 905/Z dated 22/03/1977signed by Shri K. S. Bajwa, Superintendent of Police, Cid, S.D. Delhi. The letter of 22/03/1977 from the Superintendent of Police, interalia, reads as under :-

"THE following 8 accused persons were arrested in case FIR No. 26 dated 26-1-77 u/s 3, 4, 5, 9 Ios Acts and 120-B IPC of Police Station S. N. Puri, South District, New Delhi. They were also detained under MISA. Since the emergency has been lifted, their previous orders of detention stand revoked automatically .Their detention under Misa, however, absolutely necessary for the security and defense of the country. Therefore, detailed notes giving grounds of detention of each (in triplicate) are enclosed herewith or issue of their detention orders afresh :-. . ."

(12) As noticed earlier, the detention orders dated 21/03/1977 were revoked and fresh detention orders dated 21/04/1977 were issued .The relevant file in this behalf has a very interesting note on it, recorded by the first respondent. This note reads as under :-

"DETENTION orders u/s 3(l)(a)(i) of Misa 1971,were issued against Shri K. K. Sarin, Director, Planning Commission on 21-3-77 with a view to preventing him from acting in any manner prejudicial to the maintenance of security of India. A copy of the said order was also sent to Delhi Administration, Delhi for approval of the Administrator as required u/s 3(3) of the Misa, 1971. The Administrator has not so far approved the said detention order .

Shri T. R. Kalia, Deputy Secretary (Home), vide his letter dated20-4-77 has stated that the expression of the word "maintenance of" in the detention order is not correct. He has accordingly requested to issue fresh detention orders. Since the detention order dated 21-3-1977 has not been approved by the Administrator, Delhi so far, issue there vocation order directing Supdt. Jail to release the detenu.

However, on consideration of the material before me, supplied by Superintendent of Police, Cid (SB) it is considered necessary to redetain the said Shri K. K. Sarin u/s 3(l)(a)(i) of Misa with a view to preventing him from acting in any manner prejudicial to the security of India .Issue fresh detention order and a copy of the said detention order be sent to Delhi Administration, Delhi for the approval of the Administrator, Delhi as required u/s3(3) of the Misa, 1971."

The grounds of detention dated 21/04/1977 are an exact copy of the grounds of detention supplied in connection with the detention order dated 21/03/1977. As noticed earlier, these grounds had been supplied to the respondent by the Superintendent of Police.

(13) In view of what has been noticed by us from the record of the detaining authority produced before us it is not necessary to deal with all the points urged on behalf of the petitioner. In our view the impugned detention order was liable to be quashed for the reasons that the same was made on dictate from others, the grounds of detention were not formulated by the first respondent but were formulated by someone else and were communicated mechanically without application of mind to the petitioner. Furthermore, the grounds of detention lacked in material particulars and the detention was illegal and mala fide. The satisfaction postulated by Section 3 of the Act also cannot be said to have been arrived at on consideration of all and full relevant material and ,Therefore, the impugned order was not passed in accordance with the provisions of the Act or under the Act. [See Smt. Manekben v .U.O.I., 1975(11) Delhi 820.

(14) The law regarding an order passed under the dictate of someone else has already been laid down by us in our judgment in Criminal Writ No. 19 of 1977, Mahabir Prashad v. Shri V. K. Duggal and others, announced on 21/07/1977(2).

(15) The letters of Shri Vaish dated 11/02/1977 and Shri K. S. Bajwa, Superintendent of Police, Cid (SB), Delhi. 22/03/1977 have been noticed earlier. We are convinced on a reading of these letters and the notes made by the first respondent on her file on receipt of these communications that she was acting under the dictate of the Home Ministry and the Superintendent or Police and not on the application of her own independent judgment. We are not persuaded to accept a routine averment or assertion in her affidavit that she acted upon her own bona fide satisfaction. Indeed, the only materials she had on which she could act were the letter of Shri Vaish or the communication of the Superintendent of Police and these materials cannot be said to be something on which her satisfaction could be formulated or having any probative value. The whole trend of nothings on the file shows a subordinate officer acting in accordance with the dictate or wishes of a superior officer.

(16) That the grounds of detention were issued on the dictate of others and in a mechanical manner is obvious from the nothings on the file to which we have already adverted. The first respondent has herself admitted in her affidavit that the grounds of detention were furnished to her by the Ministry of Home Affairs and the Superintendent of Police which she communicated to the petitioner. It is worth noting that the grounds of detention as communicated to the petitioner are verbatim copy of the grounds of detention which had been sent by the Superintendent of Police along with his communication of 22/03/1977. The grounds were not formulated by her as being the grounds of her personal satisfaction. We, Therefore, come to the conclusion that the grounds as communicated were not the grounds which were the basis of the satisfaction of the first respondent but those on which the satisfaction of someone else who had in turn asked for the detention of the petitioner was based. This completely vitiates the grounds of detention.

(17) The grounds of detention as communicated to the petitioner lack material particulars. As to what constitutes the" grounds" which have to be communicated, has been clearly laid down by the Supreme Court in Khudiram Das Vs. The State of West Bengal and Others, . We have had an occasion to dilate on this aspect in several decisions and one of them is the case of Mahabir Parshad, above referred to. The material particulars which are completely missing from the grounds are the particulars and details of document the disclosure of which allegedly jeopardised the security of India. As we have observed in MahabirParshad''s case supply of sensitive secret documents may be an offence under the Official Secrets Act or under the Penal Code but it has to be shown that the nature of the documents was such which imperiled the security of India. If this is not so, the constitutional safeguard of Article 22(5) is jeopardised as also the statutory requirement of Section 8 of the Act. The extent to which the courts require material particulars to be disclosed in the "grounds" has been very clearly laid down by the Supreme Court in Chaju Ram Vs. The State of Jammu and Kashmir, . The grounds supplied are, Therefore, held to be violative of Article 22(5) of the Constitution or Section 8 of the Act.

(18) That the detention order is illegal and mala fide must also be inferred in the circumstances of the case. The rule laid down bythe Supreme Court in Bhut Nath Mete Vs. The State of West Bengal, is clearly attracted to the facts and circumstances of this case. The trend of nothings in the record shown to us also brings in a feature where the present case may well be compared to the circumstances obtaining in Regina v. Governor of Brixton Prison, 1963(2) Q.B.D. 243. Respondent No. 1may have acted innocently and in her view in the discharge of her duties but malice in law has to be inferred from the manner in which the various detention orders were issued culminating in the impugned detention order being issued in April, 1977.19. The impugned detention order and the ground are also vitiated on the ratio of the judgment of a bench of this Court IN a Mrs. Bhagwati Devi, v. Union of India etc. 1975 (2) Delhi 791. Two important aspects which were required to be considered bythe detaining authority before passing the impugned .order of 21/04/1977 were not brought to her notice. These two important factors were the retraction of the confessional statement alleged to have been made by the petitioner and his "deemed suspension'' from Government service. In preventive detention the object of detention is to prevent a person from indulging in the mischief in future in which he is alleged to have indulged in in the past. The petitioner being under suspension with effect from the date of his arrest and he having no access to Government record he could not, perhaps, in future pass on secret or sensitive documents which could jeoparadise the security of India. However, this aspect had to be considered but was not considered. The grounds of detention dated April 21,1977 appear to be based on an alleged confession made by the petitioner before Shri D. R. Jain, Metropolitan Magistrate on February II, 1977. According to the petitioner this forced confession was retracted by him on 26/02/1977. As noticed earlier, the first respondent is not even aware of the existence of the communication dated 26/02/1977. It was relevant material and had to be considered by the detaining authority. What is the effect of not considering the relevant material has been commented upon in Mrs. Bhagwati Devi''s case. As was observed therein :-

"THE order of detention is also vitiated, in our view, by the omission on the part of the detaining authority to take into consideration certain relevant facts. According to the grounds of detention, the detenues are involved in the incidents mentioned in the grounds only by reason of the disclosures alleged to have been made by Maganbhai, Dudhabhai and Mohd. Ali. These disclosures were made on 26-5-1974. They were arrested on the same date and they were detained in custody till they were produced before the Additional Chief Metropolitan Magistrate ,New Delhi, on 28-5-1974. On the date, they filed the bail application in which they alleged that they were tortured and their statements had been obtained from them by coercion. In other words, these persons had retracted their statements at the earliest opportunity .They had made these retractions before a Magistrate in the proceedings instituted against them bythe Customs authorities themselves. The Customs authorities were, Therefore, aware of these retractions made by these persons. These retractions were, Therefore, relevant facts which ought to have been brought to the notice of the detaining authority and considered by him. Admittedly ,they were not brought to the notice of the detaining authority nor considered by him at the time of passing the detention order. . . . .These retractions were relevant facts which ought to have been placed before the detaining authority for his consideration. Admittedly, they were not placed before him nor were considered by him at the time of passing the detention order "

(19) We may notice one other argument addressed on behalf of the respondents before we close. It was urged that the first respondent in making the impugned order of detention relied on: (1) evidence collected by the Police and disclosed to her during her discussion with the officers concerned, (2) confessional statement of the petitioner, and (3) information imparted to her by the Home Ministry with the suggestion that there was enough material against the petitioner which warrants his detention. It is neither said on affidavit by the first respondent nor does her record show thai all these three items of material mentioned by the learned counsel were available to the first respondent or formed the basis of her coming to the conclusion which can be regarded as the satisfaction postulated by Section 3 of the Act. Assuming that it is so, the detention is vitiated because all these material particulars are not given in the grounds of detention which violates the constitutional imperative of Article 22(5) of the Constitution and the statutory requirement of Section 8 of the Act in terms of the law laid down in Bhut Nath Mate''s case .We are unable to find as a matter of fact that the first respondent had the record of the police investigation of the alleged offences for which the petitioner was originally arrested to arrive ather subjective satisfaction, as postulated by Section 3 of the Act the contention, Therefore, has to be rejected.

(20) In view of what we have stated above, the petition is accepted and the rule is made absolute. The impugned detention order and the grounds of detention dated 21/04/1977 are quashed anda writ in the nature of habeas corpus is issued to the respondents to set the petitioner at liberty forthwith.