Usman vs State of M.P. and Others

S.K. Seth, J.—On 05.10.2011 the District Magistrate Dhar ordered detention of petitioner under provisions of National Security Act, 1980. Thereafter, State Government by an order dated Nil, confirmed the detention of petitioner for a period of 12 months ending on 04.10.2012. Both these orders (Annexure P-1 and P-2) are under challenge before us. It is urged that the District Magistrate passed the detention order without any application of mind; there was no nexus between the grounds and the detention order, and as such, it is unsustainable in law and deserve to be quashed. Notice of the petition was issued and at the request of Government Advocate, time was granted to file counter reply and to make available the record at the time of hearing. A reply has been filed to oppose the petition on affidavit of City Superintendent of Police Pithampur. Original Record was not made available at the time of hearing nor was explanation submitted why record was not produced. We declined adjournment and proceeded with hearing of the petition.

The National Security Act 1980 empowers detention without trial. The object of preventive detention is not to punish a person for having done something but to intercept him before he acts in any manner prejudicial to the maintenance of public order. It has, therefore, to be understood in contradistinction to ''punitive detention'' which follows as a consequence when an individual is found guilty in a trial for an offence. Detention without trial is a serious matter and the order of detention must therefore be justified by the detaining authority whenever the personal liberty is in peril due to drastic executive action under the draconian law.

The law of preventive detention has stood the test on the anvil of fundamental rights since A.K. Gopalan v. State of Madrasi. It is now well settled, that the order of detention made under the Act is essentially a precautionary measure and is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of surrounding circumstances. It may be easier to draw such inference where there is series of acts evincing the course of conduct to form subjective satisfaction that the person concerned, if not detained, would be likely to act in a manner ''prejudicial to the maintenance of public order''. Activities prejudicial to maintenance of ''public order'' are quite distinct from activities relating to ''law and order'' problem. The difference between ''law and order'' and ''public order'' may be explained by drawing two concentric circles the larger representing ''law and order'' and the smaller representing ''public order''. Every infraction of law affects the law and order, but an act affecting law and order may not necessarily also affect the public order. For example an assault by one individual upon another would affect only law and order but it would not disturb the public peace; tranquility and even tempo of life so as to amount to breach of ''public order''. The true distinction between the areas of ''law and order'' and ''public order'' lies in the nature and quality of the act done but also upon the circumstances under which it was done and the degree and extent of its reach upon the society. The detaining authority must reach that satisfaction on the basis of relevant and cogent material, then only such satisfaction partakes the character of a ''subjective satisfaction'' which is beyond the pale of judicial review. These are the sine qua non for the valid and lawful exercise of power.

In the instant case, the District Magistrate who passed the order of detention has not filed his affidavit. It is well established by catena of decisions of the Supreme Court that in answer to a Rule issued in a habeas corpus petition, the counter affidavit on behalf of the State should be sworn by the District Magistrate who had passed the detention order. In the present case, there is a direct allegation that the detention order was passed without application of mind and there was no material before the detaining authority to reach the subjective satisfaction. There is no parawise reply. The affidavit in support of the reply does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate. The reply also does not show that all procedural steps, as required under the Act, were taken within the specified time. Except for news-paper cuttings (which have no evidentiary value), no other cogent material has been placed before us to judge the legality of the detention order. In this unsatisfactory state of affairs, we have no hesitation to hold that the District Magistrate passed the detention order in a most cavalier manner without any application of mind, and was confirmed by the State Government in equally callous manner as such, it is difficult for us to sustain the detention order. Yet there is another ground which makes the detention order unsustainable. In this connection, we may refer to the earlier division Bench decision of this Court in W.P.No. 3426/2008 decided on 22.7.2008 wherein it is held that the detenue must be appraised of his right to make representation to Central Government. We find even this was not fulfilled in the case on hand. In view of the foregoing discussion, we allow the petition and set aside the detention orders Annexure P-1 and Annexure P-2. As a result the petitioner be released from detention and set at liberty forthwith if not required in any lawful cause.