Lala @ Ahmed vs State of M.P. and Others

Shambhoo Singh, J.

The petitioner has filed this petition under Article 226 of the Constitution of India for issuance of a writ of Habeas Corpous for his release.

The facts of the case, in brief, are that on 6-9-99 District Magistrate Badwani, being subjectively satisfied on the material produced by Superintendent of Police, Badwani, that it was necessary to put the petitioner in detention to prevent him from acting in a manner prejudicial to the maintenance of public order and disturbing communal harmony, passed detention order Ex. P-1, u/s 3(2) of the National Security Act, 1980 (hereinafter referred as ''the Act''). The petitioner was arrested on 12-9-99 and was put in detention on 13-9-99 in Badwani jail. On 16-9-99 the State Govt. approved the order of detention (R-5). On 23-9-99 the detention order was sent for consideration of Advisory Board u/s 10 of the Act. The Advisory Board opined on 5-10-99 that there was sufficient cause for detention of the petitioner vide Annexure (R-8). Thereafter the State Govt. confirmed this order vide order dated 21-10-99 (R-9) for 12 months detention.

The case of the petitioner is that the detaining authority passed the impugned order mechanically without application of mind. The grounds of detention do not have any nexus to the maintenance of public order. The detaining authority did not supply the petitioner all factual material and sources for submitting effective representation, due to this the petitioner could not submit his representation under Article 22(5) of the Constitution of India. The petitioner was not supplied the copies of the statements recorded u/s 161 of the Cr.P.C., F.I.Rs. and other documents of criminal cases mentioned in the schedule and, thus, he was deprived of exercising his valuable right under Clause 5 of the Article 22. The criminal cases mentioned in ground Nos. 1 to 5 are false and related to individuals and not to the public order. The conclusion of the detaining authority that the petitioner was acting prejudicial to the maintenance of public order and was engaged in disturbing communal harmony, could not be arrived at by a prudent person, The crime Nos. shown in grounds Nos. 1, 2, 3, 4 and 5 are bailable offences except Section 294 and they are related to individual. The incident mentioned in ground Nos. 6 to 8 were not related to public order. Ground Nos. 9 to 11 were false. Most of the offences are compoundable. The respondent No. 1, State Govt. illegally confirmed the detention order without considering his representation.

Respondent-State in its return denied the averments made by the petitioner in the petition. It was affirmed that the District Magistrate, Badwani after perusing the record sent by sponsoring authority and after being subjectively satisfied that the petitioner was acting in a manner prejudicial to the maintenance of public order and was engaged in disturbing communal harmony, passed detention order. He was supplied grounds of orders alongwith the copies of the documents on the basis of which, the impugned order was passed. Copies of the statements recorded u/s 161 Cr.P.C., F.I.Rs. have been supplied in the respective criminal case. The petitioner himself informed in writing that he will not submit his representation, it will be submitted by his counsel. The allegation that the detention order was passed without application of mind, was false.

Shri A. Salim, learned counsel for the petitioner, submitted that the detention order is illegal as it was passed without application of mind. He further submitted that he was not supplied the copies of the documents and as such he was not afforded opportunity of filing his effective representation and, thus, Article 22(5) of the Constitution was violated. He also argued that record of the Advisory Board was not sent alongwith its opinion to the State Govt. Thus, the State Govt. passed confirmation order without application of mind. On the other hand, Shri Desai, learned Dy. A.G. contended that the District Magistrate on being satisfied from the documents submitted by the sponsoring authority that the petitioner was acting in a manner prejudicial to the maintenance of public order and was engaged in disturbing the communal harmony, passed detention order. In spite of supply of all relevant documents, the petitioner chose not to make representation, therefore, the question that confirmation order was passed without considering his representation and without application of mind, does not arise. He submitted that it must be presumed that the Advisory Board sent its opinion alongwith record and the State Govt. passed confirmation order after considering the same.

We considered the arguments advanced by counsel for both sides and perused the record.

The main contention of Shri A. Salim, learned counsel for the petitioner, is that the Advisory Board did not forward the record of its proceedings to the State Government alongwith its opinion and the State Government without considering the material on record of the Advisory Board, confirmed the detention order. It shows that this order has been passed without application of mind and, therefore, the detention of the petitioner is illegal. Shri Salim relied on the decision of the Apex Court in case of Nandlal Bajaj v. State of Punjab and Anr. 1981 SCC (Cri) 841.

Under Section 10 of the Act, the appropriate Govt. has to place the detention order, grounds and representation, if made, before the Advisory Board for its opinion. u/s 11 of the Act, the Advisory Board is empowered to call further information from the Govt. or from any person or from the detenu and it can also hear the detenu if it considers essential to do so or the detenu desires so. Detenu can also offer even oral or documentary evidence before the Advisory Board in order to rebut the allegation made by the detaining authority against him. (See 1982 SC 710). After considering the material, the Advisory Board gives its opinion as to whether or not there is sufficient cause for the detention of the person. It is true that the report of the Board is only a recommendation & the ultimate decision on the basis of the report as to what further action has to be taken is for the appropriate Govt. to make. The use of the words ''may'' in Section 12(1) and ''shall'' in Section 12(2) makes it clear that if the Board opines that there is no sufficient cause for the detention, the appropriate Govt. is bound to revoke the detention order and cause the person concerned to be released forthwith. However, if Advisory Board opines that there is sufficient cause for the detention of the person, the Govt. may confirm the detention or revoke it. The Advisory Board sends its record to the Govt. for taking decisions about confirmation or revocation of the detention order. In taking decision in this regard, the Govt. is required not only to peruse the report of the Advisory Board but also to apply its mind to the material on record, therefore, if the record of the proceedings of the Advisory Board is not sent to the Govt., the detenu is deprived of the advantage of consideration of the information collected by the Advisory Board and evidence produced by the detenu before it by the appropriate Govt. at the time of passing order u/s 12 of the Act. Under such circumstances, the information and material produced before the Advisory Board play important roll in taking decision u/s 12 of the Act. Thus, the confirmation order, passed without considering the record of the proceedings of the Advisory Board, becomes illegal. Their Lordships of the Supreme Court in case of Nand Lal Bajaj v. State of Punjab and Anr. 1981 SCC (Cr.) 841, observed :--

"We were informed that the Advisory Board did not forward the record of its proceedings to the State Government. If that be so, then the procedure adopted was not in consonance with the procedure established by law. The State Government while confirming the detention order u/s 12 of the Act has not only to peruse the report of the Advisory Board, but also to apply its mind to the material on record. If the record itself was not before the State Government, it follows that the order passed by the State Government u/s 12 of the Act was without due application of mind. This is a serious infirmity in the case which makes the continued detention of the detenu illegal."

In the instant case from the perusal of the opinion of the Advisory Board (Annexure R-8) and the confirmation order passed by the State Govt. (Annexure R-9), it does not appear that the Advisory Board sent the record of its proceedings alongwith its opinion to the State Govt. and the State Govt. took into consideration the proceedings of the Advisory Board. We do not agree with Shri Desai, learned Dy. A.G. that it should be presumed that the Advisory Board sent its record to the State Govt. and the State Govt. took into consideration the same and passed confirmation order (Annexure R-9). It appears from the confirmation order that the State Govt. perused the opinion of the Advisory Board alone. There is no mention that the Govt. considered the record of the proceedings of the Advisory Board.

As the record of the proceedings of the Advisory Board was not sent to the State Govt. and the confirmation order was passed without consideration of the record of the Advisory Board which was mandatory, therefore, the confirmation order became illegal and consequently the continued detention of the detenu has become illegal.

In view of the fact that the continued detention has become illegal on the above ground, we do not think it necessary to express our opinion on other grounds.

For the reasons stated above, the order of detention passed by the District Magistrate, Badwani, Ex. P-1 dated 6-9-1999 is quashed and we direct that the detenu Lala @ Ahmed be set at liberty forthwith if not required in any other case.