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Judgment
Arunachalam, J.—The Petitioner himself is the detenu. In this writ petition, he has prayed for the issue of a habeas for his production before
this court, to be set at liberty, after quashing the impugned order of detention dated 15.2.1991, passed by the first respondent against him in
exercise of the powers conferred by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as
amended, with a view to preventing him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging
in concealing or keeping smuggled goods. The facts which led to the passing of the impugned order of detention will have to be stated.
On the basis of intelligence, the Officers of Directorate of Revenue Intelligence, Trichy and Madras, while keeping surveillance intercepted the
detenu on 6.10.90 around 3.15 p.m. in front of the Office of the Assistant Director, Handloom Cloth and Yarn, situated at Sathyamoorthy Road,
Ramnagar, Coimbatore. The detenu was searched and six gold bars with foreign markings kept concealed in cloth pieces and tied below the knee
in each of his legs were recovered. The detenu did not possess any documents for the licit origin of the gold bars with foreign markings and,
therefore, on the reasonable belief the said gold bars were smuggled into India in contravention of the provisions of the Customs Act, they were
seized. On the clue provided by the detenu, the residential portion of L.K. Sankara Sekar alias Sekar was searched wherefrom Indian currency of
great value were recovered. The gold bars possessed by the detenu were valued at Rs.2,50,565/-. The detenu volunteered a confessional
statement on 6.10.90. Thereafter, he was arrested and produced before the concerned court. After follow up action, the impugned order of
detention was clamped.
Mr. K.A. Jabbar, learned counsel representing the detenu, has urged several contentions to persuade us to quash the impugned order of
detention. We will mention those contentions in passing, for, we intend disposing of the writ petition, on one ground which relates to the non-
application of mind by the detaining authority on the possibility of the detenu involving himself or continuing in future in similar activity. The first
contention was that there was delay in considering the representation of the detenu dated 12.3.1991. The representation was disposed of on
8.4.1991. The next contention was that documents relating to adjudication later to the detention order have not been placed before the confirming
authority. The third ground was that certain documents which the detenu had requested have been furnished to him only after disposal of his
representation and that had substantially prevented him from making an effective representation. It was also urged that the documents at pages 44
and 47 of the paper book supplied were illegible and that alone would be sufficient to vitiate the detention order. On all these grounds we have
heard the Additional Central Government Standing Counsel and we are not inclined to agree with any of those contentions. The reasons therefor
need not have to be stated, since the petitioner is bound to succeed on the single ground mentioned earlier by us.
The single ground posed for our consideration is that the grounds of detention do not disclose any satisfaction arrived at by the detaining
authority, to the effect that the detenu was likely to indulge in the prohibited activity in future and a reading of the grounds in respect of the
detention order created an impression that the detention order had been made as a substitute to punitive action.
Since an important and substantial question of law has been raised, based on the language of section 3 of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, vis-a-vis disclosure of satisfaction arrived at, of the likelihood of the detenu indulging in future
prohibited activities, we thought it necessary to hear apart from Mr. K.A. Jabbar, Mr. Habibullah Basha, learned Senior Counsel and Mr. B.
Kumar. We also heard apart from Mr. T. Srinivasamurthi, Additional Central Government Standing Counsel in charge of this writ petition, Mr.
C.A. Sundaram, Additional Central Government Standing Counsel, Mr. B. Sriramulu, the learned Public Prosecutor and Mr. Illias Ali, Additional
Central Government Standing Counsel.
To appreciate the contention of the learned counsel it is better to refer to the relevant paragraphs in the impugned order of detention. Paragraphs
18 and 19 of the order of detention are extracted hereunder:
I have carefully gone through the facts and circumstances of the case including the statements recorded, mahazars drawn, bail petitions filed and the
orders of the Courts thereon and other documents. On the basis of the aforesaid materials, I have no hesitation in arriving at the conclusion that you
have been engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in keeping or concealing smuggled
goods. I am also aware that you have been indulging in similar prejudicial activities on prior occasions also.
Even though adjudication and prosecution proceedings under the Customs Act, 1962 are likely to be initiated against you, I am satisfied that you
should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) with a view to
preventing you from transporting smuggled goods and dealing in smuggled goods, otherwise than by engaging in keeping or concealing smuggled
goods.
It is very clear from paragraph 18 extracted above, that the detaining authority had carefully gone into the facts and circumstances of the case
including the statements recorded, mahazars drawn, bail petitions and orders of Court. On the basis of such materials, the detaining authority had
concluded that in the past the detenu had been engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging
in keeping or concealing smuggled goods. Paragraph 18 also shows that the detenu had been involved in similar prejudicial activities on prior
occasions also. The sum and substance of the averments found in paragraph 18 will show the involvement in prejudicial activities by the petitioner,
not only in the ground instance, but also in similar activities, on prior occasions. In Paragraph 19, the detaining authority has stated, that prosecution
and adjudication were likely to be initiated, but still he was satisfied that the petitioner should be detained with a view to preventing him from
transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in keeping or concealing smuggled goods. Nowhere in this
order of detention has it been stated, that the petitioner, if allowed to remain at large, will indulge in further future prejudicial activities, needing
clamping of the preventive order. We have perused several orders of detention either passed by the State Government or the Central Government,
placed before us by either party. In almost all cases it is seen, though the language used may be different, that on the basis of the role played by the
detenu and the circumstances pursuant thereto, the detaining authority was satisfied that unless prevented, the detenu would continue the prejudicial
activities and, therefore, his detention was considered essential with a view to preventing the detenu in repeating the prohibited activity.
Mr. Mahendra Prasad, the officer specially empowered u/s 3 of the Act who had passed the impugned order of detention, had made similar
orders of detention, which have been placed before us in which his application of mind regarding the possibility of the detenu continuing his future
similar prejudicial activity has been mentioned. Unfortunately, the same Officer empowered had not applied his mind to the scope of future
involvement of the detenu in similar prejudicial activities while promulgating the impugned order of detention. There is no difficulty to at once agree
as argued by the Additional Central Government Standing Counsel as well as the learned Public Prosecutor that the very purpose of detention was
to prevent future prejudicial activities of the concerned detenus, but in the process of arriving at the need to prevent any detenu, statements of past
activities and present activity alone will not be sufficient, since the application of mind must relate to the future possible prejudicial activity in which
the detenu may indulge himself in.
Section 3 of the Act reads as hereunder:
Powers to make orders detaining certain persons:-1. The Central Government or the State Government or any officer of the Central
Government, not below the rank of a Joint Secretary to that Government, or any officer of a State Government, not below the rank of a Secretary
to that Government, especially empowered for the purpose of this Section by that Government may, if satisfied, with respect to any person
(including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation of augmentation of foreign
exchange or with a view to preventing him from
i) Smuggling goods, or
ii) abetting the smuggling of goods, or
iii) engaging in transporting or concealing or keeping smuggled goods, or
iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods or
v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.
it is necessary so to do, make an order directing that such person be detained.
When any order of detention is made by a State Government by an officer empowered by a State Government, the State Government shall
within ten days, forward to the Central Government a report in respect of an order.
For the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of
the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in
exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
The words ''it is necessary so to do'' found in section 3(1) of the Act appear to be significant and important. If those words are excluded and the
section were to be read, it permits specially empowered officer on his being satisfied with respect to any person, with a view to preventing him
from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling
goods or allied activities mentioned in the section, to make an order directing the said person to be detained. The effect of the words ''it is
necessary so to do'' will necessarily take in the application of mind by the detaining authority of the future prejudicial activity in which the detenu
was likely to indulge himself in which and which alone would permit an order of preventive detention being made. The present and past activities
may be sufficient for punitive action. To make an effective order of preventive detention, the necessity to detain him on the basis of possible future
activity must be apparent from the order of detention. The section also takes in its fold communication of the grounds of detention to the detenu
within a time frame. What exactly ''communication'' contemplated in the section would mean, we will advert to, a little later.
Mr. T. Srinivasamurthy, Additional Central Government Standing Counsel, vehemently argued, that the past conduct taken along with the
present conduct, must be deemed to be a possible estimate of the future conduct. He contended, that the word ''necessary'' had different meanings
in different contexts and the past and present conduct were only means to an end. Mr. C.A. Sundaram, Additional Central Government Standing
Counsel, contended that awareness of the possible future prejudicial activity on the part of the detaining authority need not have to be expressly
stated, but may have to be deduced from the totality of facts stated in the order of detention. In other words, the need for an order of detention, if
can be culled out from the order of detention, that would suffice for promulgating an order u/s 3 of the Act. He went on to add, that if a line of
reasoning was expected, it would then turn out to be an objective satisfaction. What was required was the spirit of the order and not the letter of
the order. He then submitted that expectation of an objective test for future, will only amount to a surmise. The test could be whether a reasonable
person could have come to the conclusion, dehors what had been stated or not stated in the order of detention. He submitted that statement of
possible punitive action and adjudication portraying the mind of the detaining authority would be sufficient to infer the possibility of the detenu
involving himself in future prejudicial activities. Mr. B. Sriramulu and Mr. Illias Ali while adopting the arguments of the two Additional Central
Government Standing Counsel, contended that ex facio the detention order need not contain about the future activity, since it was inferential.
Mr. Habibullah Basha, learned Senior Counsel and Mr. B. Kumar, contended that a person is preventively detained for what he was likely to
do in future and, therefore, mere awareness by itself on the part of the detaining authority would not be sufficient, but the awareness must manifest
itself by a definite expression. They pointed out that the awareness of the possibility of the detenu committing future prejudicial activity must be
spelt out. Mr. Kumar specifically argued that grounds are insisted since they would show application of mind. That is why apart from the materials,
grounds are formulated on such materials and insisted as a necessity. He then submitted that communication to the detenu of the ground on which
preventive detention was felt necessary was essential. If such communication was not apparent in the grounds of detention, the impugned order of
detention cannot be sustained.
The counsel who addressed arguments have placed reliance upon certain authorities, which we will presently consider. Before referring to the
authorities it has to be stated that u/s 3 of the Act, unless the detaining authority is satisfied with respect to the contemplation therein, he cannot
proceed under the said provision, to preventively detain a person. Of course, it will be neither possible nor desirable to lay down any hard and fast
rule on the materials upon which the detaining authority ought to be satisfied before he decides to pass an order u/s 3 of the Act. It is entirely the
subjective satisfaction of the detaining authority, but indisputably, it must depend on the facts and materials placed before him. The detaining
authority has to apply his mind to those facts and materials and form his own independent judgment. The satisfaction arrived at by the detaining
authority must be evident from the order of detention. In other words, the ground of satisfaction must be apparent. The detaining authority will not
be justified in acting merely upon the opinion of the sponsoring authority, but has to apply his own mind and arrive at his independent conclusion. It
also appears to be the intention of law, that the detaining authority should not only have sufficient grounds for proceeding u/s 3 of the Act, but that
he should inform the detenu of the grounds on which he was proceeding. We should also consider, if the lapse pointed out by the learned counsel
in the impugned order of detention, was a mere irregularity which would not be sufficient to quash the detention order. If the intention of the law
maker was not aimed at including in the process of arriving at a decision the possible future prejudicial activity of the detenu and the past and
present activity alone would be sufficient, there is no reason why the words ''it is necessary so to do'' should be included in section 3 of the Act. An
analogy to this need can be pointed out referentially to the delay in the passing of detention order and the change in the march of law. The arrival of
the subjective satisfaction is certainly based on a mental process. The mental process has necessarily to exhibit itself. If there is no exhibition of the
mental process, which went into the making of the impugned order, doubtlessly there is lack of communication on this salient aspect, which again
would be sufficient to vitiate the order of detention.
''Communicate'' is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively
and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. The
Supreme Court has so stated in Kubic Dariusz v. Union of India extracting these observations from Shri. Lallubhai Jogibhai Patel Vs. Union of
India (UOI) and Others, . If the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed must
be sufficient to attain that end. In other words, the detenu must be furnished with adequate particulars of the basis on which he was sought to be
preventively detained. If that be the object, the detenu must be certainly informed that the order of preventive detention was clamped on him not
because of his past conduct or present conduct which can rightfully lead to punitive action, but because of subjective satisfaction arrived at by the
detaining authority, of a possible prejudicial activity in future, of course based on the past and present conduct. If the order of detention indicated,
that to prevent the detenu from indulging, in future prejudicial activity, which the detaining authority apprehended on the basis of materials before
him, it will also be possible for the detenu to place a variety of causes before the Advisory Board or even the detaining authority in his
representation that indulging in future prejudicial activity on a given set of circumstances, was not at all feasible. Communication to the detenu of
that awareness in the mind of the detaining authority, suitably exhibited in the order of detention, appears to be the sine-qua-non which alone would
make the representation purposeful and effective.
The Supreme Court in Hem Lall Bhandari Vs. State of Sikkim and Others, has stated, that it was not permissible in matters relating to the
personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the
liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions
of law. A citizen is entitled to protection within the meaning of Article 22(5) of the Constitution of the procedural guarantees envisaged by law. The
court frowns upon any deviation or infraction of the procedural requirements. That in fact is the only guarantee to the citizen against the State''s
action of preventive detention-so stated the Supreme Court in Ahamedhussain Shaikhhussain v. Commr. of Police 1990 SCC (Cri.) 86. The law
enunciated makes it abundantly clear, that the grounds should specify not only the bare conclusions of fact, but also must contain the basic facts
and materials on which such conclusions were based.
In Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, , the apex court stated as follows:
Whatever angle from which the question is looked at, it is clear that ''grounds'' in Art. 22(5) do not mean more factual inferences but mean factual
inferences plus factual material which led to such factual inferences.
In other words, the law enunciated by the Supreme Court will show that drawing of an inference must be shown to be drawn. The inference itself
cannot be allowed to be a matter of inference. It is only in this area the question of non-application of mind would have a significant bearing.
In Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, , the Supreme Court indicated the logical process which must be
followed by the detaining authority in taking action u/s 3(1)(a) of the Act. The first stage in the process was to examine the materials adduced
against the person to show either from his conduct or his antecedent history that he had been acting in a prejudicial manner. If the said material
appears satisfactory to the authority, then the authority has to consider whether it was likely that the said person would act in a prejudicial manner
in future, if he was not prevented from doing so by an order of detention. If this question was answered against the petitioner, then the detention
order can be properly made. It was obvious that before an authority can legitimately come to the conclusion that the detention of a person was
necessary to prevent him from acting in a prejudicial manner, the authority had to be satisfied that if a person was not so detained he would act in a
prejudicial manner and that inevitably postulated freedom of action to the said person at the relevant time. The Supreme Court further observed,
that at the point of time when an order of detention was to be served on a person it must be patent that the said person would act prejudicially if he
was not detained and that was a consideration which would be absent when the authority was dealing with a person already in detention. The
satisfaction that was necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner was thus the basis of the
order u/s 3(1)(a) and that basis was clearly found absent in the case decided by the Supreme Court.
Though the Supreme Court was considering a case in which the person concerned was already in jail custody, section 3 of the Act cannot
have a different impact on the person who was already enjoying freedom, when the impugned order of detention was clamped. It appears to us
that a greater amount of caution must be exercised by the detaining authority after bail had been ordered and this caution must dictate to the
detaining authority to consider about the possibility of the person sought to be detained, indulging in future prejudicial activity. Otherwise, there will
be a missing link. Every word in a statute will have to be given a meaning and, therefore, the words ''it is necessary so to do'' found in section 3
cannot be ignored as otiose. The very question posed before us was considered by a Division Bench of the Karnataka High Court in M. Abdul
Majeed Vs. A.K. Batabyal and Another, After extracting the grounds of detention, the Division Bench of the Karnataka High court found that
nowhere had it been stated in the grounds that the detaining authority apprehended that the detenu was likely to repeat the act which was
prohibited under the provisions of the Act. Nowhere had it been stated that the detenu was likely to engage himself in transporting smuggled goods
thereafter. It was emphasised before the Karnataka High court, that the order of detention had to be made only on the satisfaction of the detaining
authority that the detenu was likely to engage himself in transporting smuggled gold in future. After quoting the observations of the Supreme Court
in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, the Karnataka High court observed as hereunder:
9A. At the time of making a detention order, the authority should arrive at a proper satisfaction and the said satisfaction should be reflected clearly
and in categorical terms in the order of detention. It is not possible for us to agree with the contentions of the learned standing counsel that the
satisfaction can be inferred by the very making of the order which says that it was necessary to prevent the detenu from acting in a manner
prejudicial falling within the mischief of S.3 of the Act. This is an indirect way of asserting that the satisfaction has to be inferred by the very
exercise of power.
The detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said
material should be reflected in the order of detention by an expression of the satisfaction.
The Bombay High Court in Anthony Steven Pinto Vs. State of Maharashtra and others, took an identical view as that of the Karnataka High
Court. The Bombay High Court had extracted the observations made by the earlier Division Bench of that court in Criminal Writ Petition No. 794
of 1988 which had brought out the ratio with clarity. The following is the said passage:
In the grounds of detention it has not been stated by the detaining authority that in the light of what has transpired the detenu was likely to indulge in
future in similar activities. The influence on the basis of which the detaining authority passed the order of detention is a ground of detention. The
grounds of detention do not merely mean the facts but the inference drawn from the facts and the documents. So considered in the present case it
is seen that the detenu has not been communicated a very important inference drawn by the detaining authority, namely that the detenu on the basis
of his activities, was likely to indulge in similar activities in future.... If the detaining authority drew an inference from the past conduct of the detenu
in the present case, the inference has not been incorporated in paragraph 11 of the grounds of detention as it ought to have been done because the
inference itself is a ground on the basis of which the order of detention is based.
Mr. C.A. Sundaram, learned Additional Central Government Standing Counsel, contended that the decisions of the Karnataka and Bombay
High Courts were easily distinguishable and there was a world of difference between the impugned order of detention and those found by the
Bombay and Karnataka High Courts. He contended that the vital difference between punitive and preventive detention had been kept in mind and
that alone would suffice and the court should not expect or depend upon a particular terminology, to exhibit awareness. He urged that if
consideration of the material had been done over again, that should be held to be sufficient to project application of mind by the detaining authority.
We have carefully considered this contention and we are unable to agree with the hairsplitting difference sought to be brought out. The simple
question is whether the detention order shows application of mind to the important facet of the likelihood of the detenu indulging in the future
prejudicial activity or not. If application of mind does not get exhibited, as rightly observed by the Karnataka High Court, that would be an indirect
way of asserting that satisfaction had to be inferred by the very exercise of the power. We have already extracted section 3 of the Act and the
mere mechanical repetition of the words in the section will not serve the purpose. The Officer specially empowered is expected to act in a
responsible manner while formulating the grounds and arriving at the subjective satisfaction. The communication of the subjective satisfaction
arrived at must in all cases be manifest, to ordinary lay-man. The possible indulgence in future prejudicial activity which is the basis, must not only
be exhibited - mere awareness cannot be decided on objective standards - but must also be communicated to the detenu to facilitate his making an
effective and purposeful representation.
In Dharmendra Suganchand Chelawat and another Vs. Union of India and others, , though the question considered by the apex court was
slightly different, the principle laid down would be attracted to the present case. This decision would be an authority for the proposition that
awareness of the detaining authority must be spelt out. That was a case where the consideration related to the awareness of the detaining authority
to the fact that the detenus were already in detention and the availability of compelling reasons justifying detention, despite the fact that the detenus
were already in detention. It was observed that in the case before it, the first contention of awareness of the detaining authority of the fact that the
detenus were already in detention had been satisfied. As far as the second condition was concerned, it was contended by the learned Attorney
General that the appellants had been remanded to judicial custody upto October 13, 1988, only and that further remand could be refused by the
Magistrate and the appellants would be released from custody on October 13, 1988. In effect the submission was, that keeping in view the
activities of the appellants and the likelihood of their being released from custody and the order of remand being not extended by the Magistrate on
October 13, 1988, the detaining authority on October 11, 1988 when it passed the order of detention, was satisfied that the detention of the
appellants was necessary even though they were in custody at that time. The apex court after a careful consideration stated, that they were unable
to agree with the said contention. The observations in that context read as follows:
In the grounds of detention the detaining authority has only mentioned the fact that the appellants have been remanded to judicial custody till
October 13, 1988. The grounds of detention do not show that the detaining authority apprehended that the further remand would not be granted
by the Magistrate on October 13, 1988, and the appellants would be released from custody on October 13, 1988. Nor is there any material in the
grounds of detention which may lend support to such an apprehension.... The grounds of detention disclose that the appellants were engaged in
activities which are offences punishable with imprisonment under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It
cannot, therefore, be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13, 1988 and
their being released from custody at the time when the order for preventive detention of that appellant was passed on October 11, 1988.
In the impugned order of detention, not only awareness has not been spelt out, but it is even doubtful whether there was awareness at all, of
this material aspect. We are unable to agree with the Additional Central Government Standing Counsel that if the possibility of future prejudicial
activity was within the inferential awareness of the detaining authority, nothing more was required to preventively detain the detenu. The
communication contemplated u/s 3(3) of the Act, if properly interpreted, would take in, that the inference, if any drawn, must be disclosed, for,
otherwise, the purpose of Art.22(5) of the Constitution would stand frustrated. It will be useful to extract at this stage the following observations of
the Supreme Court in Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, :
On the first question, the Attorney-General argued that the grounds must be read as a whole and so read, the ground mentioned in sub-para (e)
could reasonably be taken to mean, that the petitioner was organizing the movement by enrolling volunteers from the 4th to 10th March in the area
known as Bara Hindu Rao. This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents,
can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the Attorney-General. Surely, it
is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting
the grounds.
Mr. T. Srinivasamoorthy referred to the judgment of the Supreme Court in Suraj Pal Sahu Vs. State of Maharashtra and Others, to contend
that assuming the facts alleged to be right and there was a casual connection between the facts alleged and the purpose of detention and the
formation of the opinion was not mala fide, then the sufficiency of the grounds was not germane. However, it is seen, the Supreme Court had
stated in the very same decision, that it had to be borne in mind that having regard to the purpose of the Act, the detaining authority must take into
consideration rational, proximate, reasonable past and present and that should be the basis for the horoscope for the future so as to determine
whether the person proposed to be detained comes within the mischief of the Act. The necessity of casting the horoscope for the future on the
basis of the present and past material, to our mind, has been highlighted by the apex court.
Again Mr. T. Srinivasamoorthy, learned Additional Central Government Standing Counsel, referred to the judgment of the Supreme Court in
TA. Abdul Rahman v. State of Kerala AIR S.C. 225 to contend, that the prejudicial act of the detenu may, in a given case, be of such a character
as to suggest that it was part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities
and in such a case the detaining authority may reasonably be felt satisfied that the prejudicial act of detenu which had come to light cannot be a
solitary or isolated act, but must be a part of course of conduct of such or similar activities, and it was, therefore, necessary to detain the said
person with a view to preventing him from indulging in such activities, in future. Even in that case, the Supreme Court has observed that it was a
subsidiary test evolved by court for the purpose of determining the main question whether the past activities of the detenu were such that from
which a reasonable prognosis can be made as to the future conduct of the detenu and it therefore lays only in so far as ii sub-served that purpose
and it cannot be allowed to dominate or drown it. The reasonable prognosis of the future conduct of the detenu and its utility has thus been given a
vital role, which should not only enter into the mind of the detaining authority but must exhibit itself, for proper communication to the detenu to
facilitate his exercise of the constitutional right. In Khudiram Das Vs. The State of West Bengal and Others, , while considering communication of
the grounds of detention to the detenu, to make an effective representation which opportunity should not be rendered illusory, its earlier
pronouncement in Golam (sic) W.P. No. 270 of 1974 dated 12.9.1974 Mallick v. The State of West Bengal tracted:
...in the context, ''grounds'' does not me recital or reproduction of a ground of satisfied authority in the language of Section 3 of the Act,
connotation restricted to a bare statement of (sic) fact. It means something more. That ''something'' is a constitutent of the ''grounds'' on which the
satisfaction of the authority is based. The basic material particulars, therefore, which are the found, order of detention, will also be covered by
''grounds'' contemplation of Article 22(5) and Section 8 and are) to be communicated to the detenu unless their disc considered by the authority to
be against the public in (sic).
The net result of our analysis is that time of making a detention order, the (sic) should arrive at a proper satisfaction that detenu was likely to
indulge in prejudicial activities in future, in clear and categorical terms. This satisfaction cannot be inferred by the very making of the order, which
mechanically extracts the words in the Section, that it was necessary to prevent the detenu from acting in a manner prejudicial, falling within the
mischief of section 3 of the Act. The detaining authority should justify the detention order, on possible future prejudicial conduct from the materials
that existed before him and the process of consideration of the said material, towards that end should be reflected in the order of detention, by an
expression of satisfaction. The past and present activity maybe sufficient for punitive action, but the important link for preventive detention must be
the application of mind regarding the possible indulgence in future prejudicial activities by the person sought to be detained. Otherwise, the detenu
will not be made aware, by communication, the purpose for which the detaining authority felt it was necessary so to do, by making an order
directing his detention. We respectfully agree with the law laid down by the Bombay and Karnataka High Courts, which have taken note of the
enunciation of law by the apex court. The impugned order of detention is set aside. The petitioner is directed to be set at liberty forthwith unless his
detention is required in connection with any other case. The writ petition is allowed.