http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: HEM LALL BHANDARI

       Vs.

RESPONDENT: STATE OF SIKKIM AND OTHERS

DATE OF JUDGMENT28/01/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1987 AIR  762            1987 SCR  (2)  78  1987 SCC  (2)   9        JT 1987 (1)   315  1987 SCALE  (1)188  CITATOR INFO :  APL        1989 SC 364  (8,9)

ACT:     National Security Act 1980--s.8(1) Detenu--Necessity for communication  of  grounds  of detention within  5  days  of making  order-Detaining  authority  to  record  reasons  why grounds  of detention could not be communicated within  five days.

HEADNOTE:     The  Order of detention of the petitioner under  s.3  of the  National Security Act, 1980 was made on 25.9. 1986  and the grounds of detention were prepared on the same date. The petitioner was detained and served with the detention  order on 29.9.1986 at 10.15 P.M. In a habeas corpus petition filed on  behalf  of the petitioner on 30.9. 1986 the  High  Court passed  an order at 7.30 P.M. staying the  detention  order. However, the stay order could not be served on the detaining officer as the plane carrying the petitioner left Bombay for Delhi  at 8.30 P.M. The detaining officers were informed  of the  order of the High Court on 1. 10.1986 at 5 P.M. On  the same day a petition was filed in this Court and at 3.30 P.M. this  Court  passed an order directing that  the  petitioner shall not be taken out of Delhi. On 2.10. 1986 the petition- er  was  released on bail by the Chief  Metropolitan  Magis- trate, Delhi. On 14.10. 1986 the petitioner was served  with grounds of detention.     On  behalf of the petitioner it was contended  that  the delay caused in serving the grounds of detention from  2.10. 196  to 14.10. 1986 clearly violates the mandatory  require- ments,  contained in s.8(1) of the Act and,  therefore,  the order of detention was liable to be quashed.     On behalf of the respondents it was contended: (1)  that the  petitioner  made all efforts of the police  officer  to serve the grounds of detention futile by taking advantage of the  orders of the High Court and this Court, and  (2)  that the  delay in communicating the grounds of detention  caused in  this case should be condoned and rigour of  the  section relaxed since the detenu had been released on 2.10.1986, and hence not in detention. Allowing the petition,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

78 79     HELD:  (1)  Section  8(1) of the Act shows  that  it  is obligatory  on the detaining officer to communicate  to  the detenu, the grounds on which the order of detention has been made. This has to be done as soon as possible and ordinarily not  later  than  5 days. The limitation of 5  days  can  be exceeded in exceptional circumstances. The grounds of deten- tion under exceptional circumstances can be communicated  to the  detenu within a period not later than 15 days from  the date  of  detention but when the detaining  authority  takes time  longer  than 5 days he has to record reasons  why  the grounds  of  detention could not be  communicated  within  5 days.     (2) The mandate enacted in the section is a safety valve for a citizen who is robbed of his liberty from manipulating the grounds of detention. The section has to be  interpreted literally.  No  relaxation is permissible. If  the  original time  of  5 days is to be extended, such extension  must  be supported by an order recording reasons. If reasons are  not so recorded the order of detention will automatically  fail. Even if reasons are recorded they have to inspire confidence in  the  Court  and are subject to legal  scrutiny.  If  the reasons  are  unsatisfactory, Courts will  still  quash  the order of detention.     (3)  In the instant case, the grounds of detention  were communicated to the petitioner long after 10 days. There  is to  record  evidencing any reason for this long  delay.  The contention  that the delay in communicating the  grounds  of detention  caused  in this case has to be condoned  and  the rigour  of  the section relaxed since the  detenu  had  been released  on  2.10. 1986, and hence not in detention,  is  a specious  plea  which cannot stand legal scrutiny.  If  this contention  is to be extended to its logical  conclusion  it would  be  clothing  the authorities with  powers  to  delay communication  of  the grounds  of  detention  indefinitely, whenever a detenu secures from a Court of law either ball or parole.  To accept this contention would be to  destroy  the effect of the mandate of the section.     (4)  In the case there is no acceptable or  satisfactory explanation as to what the officer or the officers did after 6.10. 1986. This inaction after 6.10.1986 till 14.10.  1986, by itself is sufficient to hold that s.8(1) has been violat- ed  by the officer concerned. The order of detention is  bad and, therefore, quashed.     (5)  It is not necessary in all cases to call upon  per- sons placed in high positions to controvert allegations made against them by filing 80 affidavits unless the allegations are specific, pointed  and necessary to be controverted.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Original) No.  567 of 1986. (Under Article 32 of the Constitution of India). Dr. Raxna Swamy and P.H. Parekh for the Petitioner.     B.  Datta, Additional Solicitor General, V.J. Rao,  Y.P. Rao, Ms. K. Kumaramanglam and Ms. S. Relhan for the Respond- ents. The Judgment of the Court was delivered by     KHALID,  J:  Shorn of details regarding  allegations  of malafides  unsupported  by  acceptable  evidence,  the  only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

question that falls for consideration in this writ  petition is whether the order of detention is liable to be quashed on the  ground  that the mandatory requirements,  contained  in Section 8(1) of the National Security Act, 1980 (hereinafter referred to as the ’Act’) have not been complied with.     The  facts:  The  petitioner is one  Hem  Lall  Bhandari residing  in Bombay, practising ’law’ there. The  first  re- spondent is the State of Sikkim through its Home  Secretary, the  second  respondent, the  Delhi  Administration,  Police Department  and  the third respondent, the  Union  of  India through  the Home Secretary. The petitioner states  that  he had  a humble beginning and that he by dint of  hard  labour qualified  himself  in law and secured  significant  success academically.  It  is  alleged that the  Chief  Minister  of Sikkim wanted him to join politics and that he incurred  the wrath of the Chief Minister because of his disinclination to accept  this suggestion and that the order of detention  was passed against him consequently.     On 29.9.1986, at 10.15 P.M. three officers of the Sikkim Police  Service  accompanied by two officers of  the  Bombay Police went to the residence of the petitioner and took  him to the office of the C.I.D., Bombay where he was served with a copy of the detention order. He was detained in the police lock-up  at the C.I.D. office and his request to  contact  a lawyer  was  not granted. He was kept in custody  till  5.30 P.M.  on 30-9-1986. At 6 P.M. on that day, he was  permitted to  go to his office to collect some papers. There  he  con- tacted  Shri T.R. Andhyarugina, Senior Counsel and  informed him that he was being 81 taken to the Bombay Airport to be flown by flight IC-183, to Delhi.  The Senior Counsel requested the police officers  to permit  him to approach the Bombay High Court before  taking the  petitioner  to  Delhi. This request  was  not  granted. However,  he filed a habeas corpus petition for the  release of  the petitioner in the Bombay High Court on the same  day and P.B. Sawant, J. stayed the order of detention as per the following order; at 7.30 P.M.               "There are no grounds of detention  furnished,               nor  any documents, along with the order.  The               grounds for detention have to be served  along               with  the  order.  The order  is  prima  facie               illegal. It is, therefore, stayed till further               orders from this Court."     This order could not be served on the detaining  officer as  the Plane carrying the petitioner took off to  Delhi  at 8.30  P.M. Meanwhile at 11.30 P.M. Shri  Andhyarujina  tele- phonically informed a Delhi Advocate, Dr. Mrs. Swamy, of the order  passed by the Bombay High Court. On receipt  of  this information,  she informed the officer on duty at  the  Air- port,  of the order of Bombay High Court. Nothing  happened. Therefore,  a  petition was filed before this Court  on  1st October,  1986  at 2.30 P.M. on which this Court  passed  an order directing that the petitioner be detained in Delhi and should  not  be removed from Delhi by  the  respondents  and further  that he should be produced before the Chief  Metro- politan  Magistrate  who  might release him on  bail  if  he thought  it  fit. On-2-10-1986, the petitioner  was  brought before  the Chief Metropolitan Magistrate who after  hearing the  parties granted bail to the petitioner. The  petitioner was  released the same evening at 4.30 P.M. on furnishing  a bond  of a sum of Rs. 10,000 with a surety in the like  sum. The petitioner returned to Bombay the next day,     The  address  of  the petitioner is well  known  to  the respondents. No serious attempt was made by them  between-2-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

10-1986,  and  14-10-1986 to serve the petitioner  with  the grounds  of detention. On 6th October, 1986, the  petitioner attended  the Bombay High Court in connection with the  writ petition  filed there and has been regularly  attending  his office  and carrying on his professional duties both in  the office and in the High Court. On 14-10-1986, the  petitioner was served with the impugned order of detention, the grounds of  detention  and the supporting documents.  The  case  put forward by the petitioner’s counsel is that the delay caused in  serving  the  grounds of  detention,  from-2-10-1986  to 14-10-1986, clearly violates Section 8(1) of the Act 82 and on that ground the order of detention has to be quashed.     To  meet the case of the petitioner that the grounds  of detention were served on him only 15 days after the order of detention a Counter Affidavit is filed, sworn to by the Home Secretary, Government of Sikkim. We extract below the  rele- vant portion of the Counter Affidavit.               "On-2-10-1986, the petitioner was produced  in               the  Court  of the Chief  Metropolitan  Magis-               trate. The petitioner was released on bail  in               pursuance of the order of this Hon’ble Court.                        On-3-10-1986,  the grounds of  deten-               tion alongwith the materials were handed  over               to  Shri K.P. Subba, for service on the  peti-               tioner.  Shri K.P. Subba, having  learnt  from               Mrs.  Swami,  who  was his  surety,  that  the               petitioner  left for Bombay on the  same  day.               On-4-10-1986,  the Police Officers  could  not               contact  the  petitioner in  his  address.  He               waited  on 5-10-1986 also but he did not  find               the petitioner at his house address or in  the               Court. He returned to New Delhi  on-6-10-1986.               The  writ petition No. 1015 of 1986 was  heard               by  Hon’ble  Mr. Justice  Sawant  and  Justice               Kolse  Patil  and by  order  dated  14-10-1986               discharged the rule.                        The grounds of detention could not be               served within the period of 5 days or 10  days               as  per  section  8 of the  Act,  because  the               petitioner was released on bail, by the  Chief               Metropolitan  Magistrate on-2-10-1986 and  the               petitioner  avoided  the police  officer.  The               petitioner received the grounds alongwith  the               material  on 14-10-1986 at Bombay as  per  the               orders of the High Court.                        Shri  K.P. Subba, the Police  Officer               waited  till 6th October, 1986 at  Bombay  and               having  found that he was not able to  contact               the  petitioner returned to Gangtok. Thus  the               grounds could not be served on the  petitioner               within the stipulated period as the petitioner               was  not under detention from 2nd October,  86               onwards. Had the petitioner been in  detention               it would have been possible for me to get  the               grounds served on the petitioner on 3rd  Octo-               ber,  1986 itself. I respectfully submit  that               it is the petitioner who rendered every effort               on my part to serve the grounds futile               83               taking advantage of the various orders of  the               High Court of Bombay and this Hon’ble Court. I               did  not know that the Writ Petition filed  by               the  petitioner was posted in the Bombay  High               Court  on  6th October, 1986.  No  notice  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             served on me or on the State Government  about               the posting of the writ petition in the Bombay               High  Court  on 6th October,  1986.  The  only               communication received was that the said  case               was posted on 14th October, 1986. Our Advocate               General appeared on the day in the High  Court               of  Bombay.  I respectfully  submit  that  the               petitioner  cannot be allowed to contend  that               the  provisions of Section 8 of the  Act  were               violated  by me in view of the fact  that  the               petitioner  was not in detention and  was  en-               larged  on  bail  by  the  Chief  Metropolitan               Magistrate, New Delhi under the orders of this               Court.  Therefore, I respectfully submit  that               there is no violation on my part of the provi-               sions of Section 8 of the Act."     The petitioner has made various allegations of malafides against the Chief Minister of Sikkim. These allegations  are not  supported by any acceptable evidence. Therefore, we  do not propose to consider them. Much was made of the fact that the Chief Minister has not filed a Counter Affidavit himself denying the allegations. According to us it is not necessary since  the allegations are wide in nature and are bereft  of details.  We do not think it necessary in all cases to  call upon persons placed in high positions to controvert  allega- tions  made  against them by filing  affidavits  unless  the allegations  are specific, pointed and necessary to be  con- troverted.  We,  therefore,  propose  to  confine  ourselves purely to the question whether there has been a violation of the mandatory provisions contained in Section 8 of the  Act. or not.     The order of the Home Secretary directing the  petition- er’s detention under Section 3 of the Act was made on  25-9- 1986  and  grounds of detention were prepared  on  the  same date.  The  petitioner was served with the  detention  order on’29-9-1986 at 10.15 P.M. He was taken to the Bombay Police lock-up that day. On 30-9-1986 at 6 P.M. he was taken to his office  in  Bombay. On the same day, the Bombay  High  Court passed  an order at 7.30 P.M. staying the  detention  order. The Plane carrying the petitioner leaves Bombay for Delhi on the  same day at 8.30 P.M. The detaining officers  were  in- formed of the order of the Bombay High Court on-1-10-1986 at 5  P.M. On the same day at 3.30 P.M. the Supreme  Court  di- rects  that the petitioner shall not be taken out of  Delhi. On 2-10-1986, the Chief Metropolitan 84 Magistrate directs the petitioner’s release on bail. On  14- 10-1986, the petitioner is served with grounds of detention. These facts are not disputed.     Let us see how the concerned officer explains the  delay caused in servings the grounds of detention on the petition- er.  But  before doing so we will read Section 8(1)  of  the Act.               "8(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 fifteen 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 appropriate Government."     A bare reading of the Section shows that it is obligato-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

ry  on the detaining officer to communicate to  the  detenu, the  grounds on which the order of detention has been  made, promptly. This has to be done as soon as possible and  ordi- narily  not  later than 5 days. The detaining  authority  is permitted to exceed this limitation of 5 days in exceptional circumstances.  The grounds of detention, under  exceptional circumstances,  can be communicated to the detenu  within  a period not later than 15 days from the date of detention but when  the detaining authority takes time longer than 5  days he was to record reasons why the grounds of detention  could not be communicated within 5 days. It is clear in this  case that  the  grounds  of detention were  communicated  to  the petitioner long after 10 days. There is no record evidencing any reason for this long delay.     We have therefore to examine the reasons why the grounds of detention were given only on 14-10-1986. It is stated  in the  Counter Affidavit sworn to by the Home  Secretary  that the grounds of detention were handed over to Shri K.P. Subba for service on the petitioner on-3-10-1986. This K.P.  Subba has  not chosen to file an affidavit in this case to  inform this  Court as to what really happened with the  grounds  of detention given to him for service on the petitioner. It  is stated in the Counter Affidavit that Shri Subba learnt  from the  petitioner’s Advocate, Mrs. Swamy, that the  petitioner had left for Bombay. The Counter Affidavit continues to  say that  on-4-10-1986, the ’police officers’ could not  contact the petitioner in his home address. It is not 85 evident  from  this statement as to which officer  tried  to contact the petitioner in his home address on-4-10-1986.  It is  further stated that he waited on 5-10-1986 also  but  he did  not find the petitioner at his house address or in  the Court. The Counter Affidavit is not sufficiently  communica- tive as to who this police officer was. The Counsel for  the petitioner  tried  to  impress upon us the  fact  that  this statement  cannot be true because-5-10-1986 happens to be  a Sunday  and that no police officer would try to  contact  an Advocate in Court on Sunday. This police officer is said  to have returned to New Delhi on-6-10-1986. The Counter Affida- vit  is  eloquently silent about what happened  after  6-10- 1986.  The Counter Affidavit thereafter discloses  the  fact that  Shri K.P. Subba, the police officer, waited  till  6th October, 1986 in Bombay and returned to Gangtok since he was not  able  to contact the petitioner. The complaint  of  the officer is that the petitioner made it impossible for him to serve the grounds of detention. Every attempt on the part of the  officer to serve the petitioner with grounds of  deten- tion were rendered futile by taking advantage of the  orders of  the  High  Court and the Supreme Court.  It  is  further stated  in the Counter Affidavit that the grounds of  deten- tion  could not be served since the petitioner was  released on  bail and was not under detention from 2nd October,  1986 onwards.     We have considered the averments in the Counter  Affida- vit carefully. We have no hesitation to hold that there  has been  a  flagrant violation of the mandatory  provisions  of Section  8 in this case. It is 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.  Expeditious  action  is insisted upon as a safeguard against the manipulation.     In  this  case there is no  acceptable  or  satisfactory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

explanation  as  to  what the officer or  the  officers  did after-6-10-1986.  This inaction after-6-10-1986 till  14-10- 1986,  by itself is sufficient for us to hold  that  Section 8(1) has been violated by the officer concerned and on  that ground alone the order of detention has to be quashed.     An  attempt was made by the counsel for the  respondents to  contend that the delay in communicating the  grounds  of detention  caused  in this case has to be condoned  and  the rigour  of  the Section relaxed since the  detenu  had  been released on 2-10-1986, and hence 86 not  in detention. This according to us is a  specious  plea which cannot stand legal scrutiny. If this contention is  to be  extended to its logical conclusion it would be  clothing the  authorities with powers to delay communication  of  the ground of detention indefinitely, whenever a detenu  secures from  a Court of law either bail or parole. To  accept  this contention would be to destroy the effect of the mandate  of the  Section. As indicated earlier, the mandate  enacted  in the Section is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The Section has to be  interpreted literally.  No  relaxation is permissible. If  the  original time  of 5 days has to be extended, such extension must  ’be supported by an order recording reasons. If reasons are  not so corded the order of detention will automatically fail.  Even if  reasons are recorded they have to inspire confidence  in the Court and are subject to legal scrutiny. If the  reasons are  unsatisfactory, Courts would still quash the  order  of detention.     On a consideration of the materials placed before us  we hold  that  the order of detention is bad and we  quash  the same.  Since the petitioner is not in detention there is  no need to pass any order to direct his release. A.P.J.                                              Petition allowed. 87