Makku vs State of Madhya Pradesh and Another

T.N. Singh, J.—We heard analogously three habeas corpus petitions for a single and singular reason. The common question of constitutional importance to be decided in all three cases is of violation by the Detaining Authority of the provisions of Section 8(2) of the National Security Act, for short, the "Act" and for that matter, interpretation of that provision in the context of Clauses(4), (5) and (6) of Article 22 of the Constitution.

All the three petitioners are detained in the Central Jail, Gwalior, under orders passed by the same Detaining Authority, namely, the District Magistrate, Gwalior. Against petitioner Makku alias Daulatsingh, (petitioner in Misc. Petition No. 37 of 1989), order was passed on 7-11-1988, while in the case of the other two petitioners, namely, Parsoo alias Paras Ram (Misc. Petition No. 259 of 1989) and Makhan (Misc. Petition No. 441 of 1989), orders were passed respectively on 15-10-1988 and 11-1-1989. In all cases, the petitioners are detained with the object of restraining them from indulging in activities prejudicial to public order; but on different grounds. Each of the petitioners was produced before the Advisory Board, but the Board having maintained their detention ordered by the District Magistrate, the State Government has passed orders confirming the detention for the maximum period of twelve months, contemplated under the Act.

On three grounds detention order is passed against petitioner Makku. The names of Ramesh Jain and Ajai Patni figure respectively in Ground Nos. 1 and 2 admittedly, the statements of those two witnesses, recorded by the Detaining Authority have not been furnished to the detenu at any time. In the return, on the other hand, not only this fact is disclosed for the first time, but justification for doing so is stated and that is based on Section 8(2) of the Act. The Detaining Authority has stated that he had "considered proper in public interest", for reasons recorded by him in writing in the file that copies of statements of those two witnesses be not supplied to the detenu in terms of the provisions of Section 8(2) of the Act. The fact to be noted, importantly, however, is also that this view was taken despite the fact that with the "grounds", the detenu was supplied copy of the F.I.R. lodged by the said Ramesh Jain in respect of the incident concerning ground No. 1 and similarly, also copy of F.I.R. lodged by the said Ajai Patni in respect of the incident mentioned in ground No. 2. Copies of those are filed as annexures R/3(b) and 3(c) of the return. As per annexure R/ 5 of the return, it appears that in making report as contemplated u/s 3(4) of the Act to the State Government, the Detaining Authority had stated that power u/s 8(2) of the Act was invoked to protect the life and property of witnesses Ramesh Jain and Ajai Patni.

Parsoo''s detention order has been passed on four grounds. The names of Pappu alias Vikram Maheshwari, Kailash and Mohan are mentioned in ground Nos. 2, 3 and 4 and in this case also, admittedly, the Detaining Authority had not supplied copies of their statements recorded by him to the detenu at any time, invoking his powers u/s 8(2) of the Act and in the return in this case, he has mentioned that he had done so "in order to save the life and property of these witnesses". However, with the return are filed annexures R/ 3(c), 3(d), 3(e) and 3(f) and it is stated that copies of those documents were supplied to the detenu with the "grounds" of detention. One is the F.I.R. of Pappu alias Vijai Maheswari which he had lodged with respect to the incident mentioned in ground No. 2. Another is a G.D. entry made also on the basis of alleged complaint of the same witness. Annexure R/3(e) is witness Mohan''s complaint to T.I., Thana Huzrat Kotwali, while Annexure R/3(f) is F.I.R. of witness Kailash with reference to the incident of ground No. 4.

For the detention order passed against petitioner Makhan, five grounds are furnished. The names of witness Pradeep Batham and Mohd. Ishak are mentioned in grounds Nos. 1 and 4 respectively. In the return, the same stand is taken by the Detaining Authority justifying his action for not supplying statements of these two witnesses to the detenu and he has further stated that in his report to the State Government (Annexure R/7), he had given reasons for doing so in public interest. In Annexure R/7, the same stock justification is repeated, that detenu being engaged in criminal activities, it was necessary to do so to safeguard the life and property of the witnesses Pradeep Batham and Mohd. Ishak. It has, however, come on record in this case as well that the detenu was supplied with the "grounds" copies of F.I.R. of Pradeep Batham for the incident of the concerned ground (Annexure R/5(b) and similarly that of concerned G.D. entry also (Annexure R/5(g)) made at the instance of witness Mohd. Ishak.

On the aforesaid facts, it is necessary to test validity of the thesis propounded on behalf of the petitioners that non-supply to them along with the "grounds" of detention, copies of orders passed in each case u/s 8(2) of the Act by the Detaining Authority has vitiated the detention order and has rendered unconstitutional their detention because each of them has been deprived of the effective opportunity for making an effective representation against detention order passed in their cases, contemplated under Article 22(5) of the Constitution. It has also been contended that the reasons given by the Detaining Authority for the exercise of power u/s 8(2) of the Act are not sustainable and that the Detaining Authority has acted arbitrarily and without due application of mind in exercising his powers u/s 8(2) of the Act.

In order to comprehend the ambit and scope of the contentions aforesaid, we propose to have a look first at relevant constitutional and statutory provisions. Articles 21 and 22 respectively deal with "protection of life and personal liberty" and "protection against arrest and detention in certain cases". According to Article 21 "no person shall be deprived of his life or personal liberty except according to procedure established by law." According to Clauses (4)-(7) of Article 22, Legislature''s power to enact law provides for "preventive detention" and that is strictly circumscribed. Such a law has to provide for constitution of an "Advisory Board" in the manner contemplated thereunder and beyond three months, detention of a person under that law shall be invalid unless before expiration of that period, the said Board has reported "that there is, in its opinion, sufficient cause for such detention." However, it is necessary to extract in extenso the next two clauses:

"(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose."

With regard to the provisions of the National Security Act enacted by the Parliament, it may be noted at the outset that the vires of the Act come up for judicial review of the Summit Court in the case of A.K. Roy and Others Vs. Union of India (UOI) and Others, . The entire gamut of the enacted law was fully analysed by their Lordships and it cannot be disputed that the Act is on the Statute Book subject to the interpretations placed by their Lordships on different provisions of the Act inasmuch as some provisions were read down to save the Act and maintain its constitutionality, at the same time. The scope of Sections 10 and 11, inter alia, of the Act, in the context of the constitutional imperative being analysed, it was held that those provisions must conform to the right of the detenu envisaged under Article 22(5) and it has to be seen that he is able to exercise his right of representation in an "effective" way and in that regard he is afforded "earliest opportunity" of doing so.

That the right of representation was that of submitting "written representation" was made clear. That is what we read in para 89 of the Report.

Two Division Benches of this Court have also taken the view that the Advisory Board is constitutionally obligated to hear the detenue on his "written representation" when he is produced before it u/s 11 of the Act. (See Dhunna 1988 Jab LJ 446 and Shroman 1988 Jab LJ 657). Indeed, in view of that constitutional imperative, it has been held that the Board is obligated to question the detenu if he had filed any written representation and if not, whether he would like to file one and would like to be provided with assistance of a "friend" for doing so. Needless to stress that Section 11 cannot curtail the scope of the right contemplated under Article 22(5) and, therefore, the personal hearing of a detenu by the Board u/s 11 can be held without "written representation" only when the detenu had exercised his option explicitly before the Board to be heard without such a representation. In Shroman (supra), the words "if not" that occur in Section 10 were construed accordingly to maintain the primacy of the constitutional imperative and that was deemed interpolated in Section 11 of the Act.

In A.K. Roy and Others Vs. Union of India (UOI) and Others, , although the Summit Court has denied the detenu the right of cross-examination in the proceedings before the Advisory Board, it has still observed that the detenu had the right to keep his witnesses ready in his defence in the proceedings in the Advisory Board and the right in that regard he can exercise within the statutory time-frame of Section 11. The Board is bound to afford him reasonable opportunity to exercise his right to present evidence of rebuttal against allegations made against him though no duty is cast on the Advisory Board to summon them. That is stated in para 105 of the Report. In a recent decision in the case of Harbans Lal Vs. M.L. Wadhawan and Others, , this aspect was reconsidered by the Apex Court and it was held that the Board cannot regulate its procedure in such manner as to deny detenu the right judicially interpolated by A. K. Roy (supra) i Section 11 of the Act. When the Advisory Board had met, the detenu had sought Board''s permission to examine five defence witnesses who were present there, but his request was refused and he was directed to file affidavits only of those witnesses. Their Lordships quashed the detention holding that the Board, by doing so, had denied constitutional safeguard of the nature embodied in Article 22(5), secured in A. K. Roy (supra) to the detenu and his detention was, therefore, unconstitutional.

We had, only the last week, an occasion to interpret Section 8(1) of the Act and we took the view that the Legislature having contemplated for "reasons to be recorded in writing" when "grounds" are communicated to the detenu later than five days in "exceptional circumstances", it is also meant that those reasons too are duly communicated to the detenu pari passu the "grounds". (See Tingu v. State, M. P. No. 549 of 1989, decided on 18-7-1989) (Madh Pra). That view, we have taken in the context of the constitutional imperative of Article 22(5) that the detenu must have the "earliest opportunity" of making an "effective" representation and that object can be achieved by reading in Section 8(1) the requirement of the reasons also to be furnished pari passu the "grounds". Because it would then be possible for the detenu to raise, in his written representation, challenge not only to the "grounds", but also to those "reasons" to secure Board''s aid for restoration to him his liberty. Indeed, the Advisory Board is constitutionally obligated to consider validity of the detention order passed in any case in terms of the provisions of the Act and constitutional imperative of Clauses (4), (5) and (6) of Article 22 invariably. In this context, we may profitably extract in extenso Section 3 of the Act:

"8. Grounds of order of detention to be disclosed to persons affected by the order.--(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the. grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropraite Government.

(2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

Our attention is drawn to two decisions of the Apex Court which undoubtedly have signal relevance to the controversy that confronts us today. In Abdul Jabar Butt Vs. State of Jammu and Kashmir, their Lordships were required to construe the provisions of Section 8 of the J. and K. Preventive Detention Act Samvat 2011. According to Sub-section (8) thereof the Detaining Authority was required to communicate to the detenu, "as soon as may be", the "grounds" on which the detention order had been made and he had to be afforded "earliest opportunity of making a representation" against that order, but the proviso thereof contemplated that Government could dispense with that requirement by declaring that "it would be against the public interest to communicate to him the grounds" if the person was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State". It was held that the authority vested in the Government to make the declaration contemplated by the proviso must be exercised before the expiry of the time-span predicated by the expression "as soon as may be" of the main enactment.

The other decision in the case of Ganga Ramchand Bharvani Vs. Under-Secretary to The Government of Maharashtra and Others, was rendered in respect of detention made under COFEPOSA and our attention is rivetted on paragraphs 15 et. seq. of the Report. Be it noted in this connection, that there is no parallel provision in COFEPOSA, parallel to Section 8(2) of the Act and, their Lordships had, therefore, to resort to the constitutional provision. This was done evidently to ensure that the constitutional safeguard is not abridged. Section 3(3) COPEPOSA, refers in express terms to Article 22(5) and contemplated communication to a person detained in pursuance of an order made under that Act of "grounds" on which the order has been made, ordinarily within five days and in exceptional circumstances, within fifteen days on "reasons for that to be recorded in writing". Because copies of some statements and documents relied upon in the "grounds" had not been furnished and justification referrable to Article 22(6) was advanced, albeit in the return only, at para 15 of the Report, it was observed that the constitutional discretion that can be exercised in public interest would be valid when the detenu was intimated that the Detaining Authority had exercised its powers in that regard. Their Lordships proceeded further to analyse the reasons; of refusal of copies disclosed in the return to hold that the power had been exercised mechanically, without due application of mind, and as such, withholding of the statements and documents resulted in denial of constitutional safeguard to the detenu of making a "full and effective representation at the earliest". The message of the decision is clear, convincing and clinching to sustain validity of the thesis propounded. As in the instant case, there also, it was asserted, the disclosure of full text of statements of witnesses examined would endanger their safety or harm public interest, but that ipse dixit of the Detaining Authority was not accepted because the detenu had already been furnished substance of the statements and further disclosure could not have been in any manner prejudicial to public interest or to the safety of the persons concerned.

A Division Bench of Gujarat High Court in the case of Bai Amina Vs. State of Gujarat and Others, had to construe Section 8(1) of the Act and in that context the Bench relied on the decision in Ganga Ramchand Bharvani Vs. Under-Secretary to The Government of Maharashtra and Others, It was held that the Detaining Authority must be fully satisfied that the apprehension of the informant invoking the confidentiality is honest, genuine and reasonable in the circumstances of the case before invoking its power to act u/s 8(2) of the Act. When Detaining Authority discloses grounds and reasons weighing win it in withholding a document or statement, it is the duty of the Court to examine whether the "grounds" and "reasons" have any rational connection with public interest. With those propositions, we express our respectful agreement as we do not for a moment think that when writ in the nature of habeas corpus is prayed, this Court is constitutionally obligated to consider if the Detaining Authority has acted bona fide in all matters, in all respects; and that order is not tainted even by what is commonly called malice in-law. Long ago, in the Republican dawn, six Judges of the Apex Court had expressed the view in The State of Bombay Vs. Atma Ram Sridhar Vaidya, that satisfaction of the Detaining Authority can be challenged on the ground of mala fide, Subsequently, in Sash Roy AIR 1975 SC 919 : (1975 Cri LJ 785), it was held that the Court is bound to see if the action of the Detaining Authority smacks of "callous or colorable exercise of powers."

Reverting to the question of denial to the detenu of the safeguards envisaged under Clauses (4), (5) and (6) of Article 22 as a result of non-communication by Detaining Authority to him his reasons for acting u/s 8(2) of the Act, it has to be reiterated that the object of affording the detenu the earliest opportunity of making an effective written representation is to enable him to satisfy all those who are obligated to consider his representation that the detention order was illegal and unconstitutional and his liberty had to be restored to him immediately. It should be possible for him to satisfy therefore, the Advisory Board, the State Government as also the Central Government that not only the "grounds" are not tenable in law, but the Detaining Authority had not acted in due compliance with the relevant provisions of the Act and his detention being not in accordance with the Act, the other had to go. It is indeed for this reason that it has now become a rule of constitutional pre-eminence stemming indeed from Article 22(5) that documents and materials relied upon in an order of detention form an integral part of the "grounds" and must be supplied to the detenu pari passu the "grounds" of detention (See Kamla Kanyalal Khushalani Vs. State of Maharashtra and another, etc.). Indeed, this development of law manifests Judiciary''s concern to guard zealously the modicum of safeguard against any callous or careless use of draconian power of administrative detention. As beaconed in A. K. Roy (supra), the statutory measures are to be so interpreted that scope of abuse of the power is wholly excluded and the supreme mandate of Article 21 applied in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, is appropriately enforced.

We have taken, for the same reason, the view in Tingu (1989) MP No. 549 of 1989 D/- 18-7-1989 (Madh Pra) (supra), interpreting Section 8(1) of the Act, that "reasons" contemplated thereunder in respect to "exceptional circumstances" are to be supplied to the detenu pari passu the "grounds". We are also of the view that, if the detenu has a right to submit a "written representation" it should be possible for him therein to challenge "reasons" for exercise of powers u/s 8(2) if those are also communicated to him along with the "grounds" and indeed, to keep his witnesses ready in the course of hearing before the Advisory Board to challenge those "reasons" concerning "public interest" in the same manner as he can challenge the "grounds". The statutory time-frame of Section 11 is applicable equally to the "grounds" and to the ''"reasons" for exercise of powers under both Sub-sections of Section 8. Power contemplated thereunder is of the same genre, to be exercised only in exceptional cases. Indeed, Ganga Ramchand Bharvani Vs. Under-Secretary to The Government of Maharashtra and Others, conclusively establishes the twin requirement of communicating the "reasons" for acting u/s 8(2), contemporaneously with the "grounds" and that it flows directly from Article 22(5) of the Constitution. Section 3(3) COFEPOSA is silent on them; those requirements are judicially incorporated therein. However, we may also note that neither Article 22(6) nor Section 8(2), which is based thereon, protects disclosure to the detenu of the factum of exercise by the Detaining Authority of its discretion in the matter of non-disclosure of "facts" on the grounds of "public interest". The discretion is not only a limited one in that "facts" as may form part of "grounds" contemplated under Article 22(5) may not be disclosed in "public interest" but circumscribed also by Detaining Authority''s honest satisfaction in that regard. The Detaining Authority is, therefore, not absolved of its responsibility of informing the detenu that he had acted bona fide in "public interest" in not complying with the requirements of Article 22(5) so that the detenu is able to challenge his action. The constitutional requirement of "reasonable procedure" of Article 21 supports this view to circumscribe appropriately exercise of exceptional powers by the Detaining Authority u/s 8(2). It should be possible for the detenu to satisfy the Advisory Board at the earliest opportunity that there is no "sufficient cause" for his detention as the Detaining Authority had not exercised its powers bona fide, in due compliance with the requirements of the constitutional and statutory provisions, it had acted mechnically, arbitrarily and without due application of mind to the requirement of "public interest".

The matter may be viewed also from another angle. The combined effect of Section 8 of the Act and Article 22(5) of the Constitution is that a detention order passed under the Act has to stand on borrowed legs; by itself it cannot stand more than five days. Article 22(6) does not derogate from the position that "grounds" preferred are communicated within that period except that for discharge of that duty, a grace period is provided subject to twin conditions being satisfied as per Sub-section (1) of Section 8; and as per Sub-section (2) thereof, the discretion contemplated under Article 22(6) is conferred on the Detaining Authority to discharge that duty in a particular manner. His discretion to act u/s 8(2) of the Act being coupled with the duty in regard to his compliance of constitutional mandate of Article 22(5), what he "considers to be against the public interest to disclose" can be questioned by the detenu to whom he owes the duty of communicating the "grounds" and that is evidently justiciable. Any scope as his ipse disixt to prevail is constitutionally excluded. See Sabir Ahmed Vs. Union of India (UOI), . As he has to do in the case of Sub-section (3), he must also record his reasons germane to "public interest" in the same manner to assume jurisdiction in the matter of exercising his discretion under Sub-section (2) as well, of Section 8 and those are to be communicated to the detenu. If that is not done, the mandate of Article 22(5) will not be fulfilled and as the "grounds" fail for his default in that regard, with that the order of detention shall perish automatically.

On admitted and undisputed facts, both contentions raised on behalf of the petitioners must prevail to kill detention orders passed against them in each case. Admittedly, the order which the Detaining Authority had passed u/s 8(2) has not been communicated to any of the detenus. Evidently, the "reasons" disclosed in the return manifest mechnical exercise of powers on one hand and do not meet the requirement of "public interest" on the other hand. Firstly, it has not been shown to us that the witnesses, ] whose statements have not been supplied to the detenu, had themselves expressed any apprehension as to danger to their life or property. Secondly, the ipse dixit of the Detaining Authority that the detenus would do any act as may endanger the life and property of the witnesses is difficult to accept. Thirdly, after having supplied to the detenus relevant material in the form of copies of F.I.Rs. and G. D. entries in which the names and particulars of the witnesses are disclosed and their contribution in the making of the detention order is disclosed, there can be no scope for any reasonable man to take reasonably the view that disclosure of full statements of those witnesses would aggravate the matter further and would activate the detenus to indulge in acts of reprisal. Fourthly, no "public interest" is served, in these circumstances, by withholding disclosure to the detenu of the full statements of those witnesses. Indeed, it is only when there is an honest and genuine apprehension in the mind of any witness making any incriminating statement against any detenu of such a nature that he can anticipate acts of reprisal from him endangering his life and safety, that "public interest" shall be served by withholding disclosure to the detenu his identity as also the statement made by him. But that is not the case here.

For the reasons aforesaid, it is difficult to sustain validity of detention order passed in each case against each of the detenu; the detention of each of the petitioners is held illegal and unconstitutional. In case of each of the petitioners, it is held that the Detaining Authority has acted in violation of Clauses (5) and (6) of Article 22 of the Constitution.

In the result, the petitions succeed and are allowed. Each of the petitioners, namely, Makku alias Dualatsingh, Parsoo alias Paras Ram and Makhan, shall be set at liberty forthwith if not required in any other case. Their detention orders (Annexure P/1) in each case respectively are qashed. This order shall govern disposal of Misc. Petition No. 259 of 1989 (Parsoo alias Paras Ram; and Misc. Petition No. 441 of 1989 (Makhan) also.