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PETITIONER: KAMLAKAR PRASAD CHATURVEDI

       Vs.

RESPONDENT: STATE OF M. P. & ANR.

DATE OF JUDGMENT07/10/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1984 AIR  211            1984 SCR  (1) 317  1983 SCC  (4) 443        1983 SCALE  (2)729  CITATOR INFO :  R          1984 SC1334  (2,7,18,19)  R          1985 SC  18  (14)

ACT:      National Security  Act, 1980-Section 3(1) and (2)-Scope of-Detention order-Made  on two  or more  grounds-Not to  be deemed to  have been  made separately  on each ground-Ground relating to  five year  old incident-Too  remote and  stale- Detention order vitiated.

HEADNOTE:      The petitioner  who was detained under sec. 3(2) of the National Security  Act, 1980,  was conveyed seven grounds of detention by  the Detaining Authority. The first two grounds related to the incidents that occurred more than 5 years and about 3 years respectively prior to the date of the order of detention. The  petitioner challenged the order of detention as vitiated  on account  of the  grounds of  detention being vague and stale.      Allowing the writ petition by majority,      HELD: The order of detention is quashed. (Per Chinnappa Reddy and Varadarajan, JJ.)      It is not open to the Detaining Authority to pick up an old and  stale incident and hold it as the basis of an order of detention  under S 3(2) of the Act. Nor it is open to the Detaining Authority  to contend  that it  has been mentioned only to  show that  the detenu  has  a  tendency  to  create problems resulting  in disturbance to public order, for as a matter of  fact  it  has  been  mentioned  as  a  ground  of detention. [327 E-F]      Shalini Soni  v. Union of India, AIR 1981 SC 431; Mehdi Mohamed Joudi  v. State of Maharashtra, (1981) 2 S.C.C. 358; Taramati Chandulal  v. State of Maharashtra AIR 1981 SC 871; and Shibban  Lal Saksena  v. The  State  of  Uttar  Pradesh, (1954) 4 S.C.R. 418 referred to.      In the  instant case  the first two incidents which are of 1978  and 1980  are mentioned  as grounds of detention in the order  dated 6-5-1983.  There can be no doubt that these grounds especially  grounds No. 1 relating to an incident of 1978 are  too remote  and not  proximate  to  the  order  of detention. [327 D-E]

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    There is  no provision  in the  National Security  Act, 1980 similar to s.5A of the Conservation of Foreign Exchange and Prevention  of Smuggling Activities Act, 1974 which says that where  a person  has been  detained in  pursuance of an order of detention under sub-sec. (1) of S.3 which has been 318 made on  two or  more grounds, such order of detention shall be deemed  to have  been made  separately on  each  of  such grounds and  accordingly (a)  such order shall not be deemed to be  invalid or  inoperative merely because one or some of the grounds is or are vague, non-existent, non-relevant, not connected or  not proximately connected with such persons or invalid for  any other  reason,  and  it  is  not  therefore possible to  hold that the Government or officer making such order would  have been satisfied as provided in sub-sec. (1) of s.3 with reference to the remaining ground or grounds and made the  order of  detention  and  (b)  the  Government  or officer making  the order  of detention  shall be  deemed to have made the order of detention under the said sub-sec. (1) after being  satisfied as  provided in that sub-section with reference to  the remaining ground or grounds. [327 F-H; 328 A]      In the present case, therefore, it cannot be postulated what view  would have  been taken by the Detaining Authority about the  need to  detain the petitioner under sec. 3(2) of the Act  if he  had not taken into account the stale and not proximate grounds  1 and 2 into consideration in arriving at the subjective satisfaction. [328 A-B] (Per Desai J.)      When criminal  activity of  a person  leads to  such  a drastic action  as detention  without  trial,  ordinarily  a single stray  incident may  not unless  contrary is shown be sufficient  to  invoke  such  drastic  power  of  preventive detention. In  order  to  avoid  the  charge  that  a  stray incident was  seized upon  to invoke  such drastic  power of preventive detention  the authority  charged with  a duty to maintain public  order of  assure security of the State, may keep a  close watch  on the  activities of the miscreant for some time  and repeated indulgence into prejudicial activity may permit  an inference that unless preventive detention is resorted to,  it would  not be  possible to  wean away  such person from such prejudicial activity. [319 G-H; 320 A-B]      In the  instant case therefore, when in 1983, an action was proposed  to be  taken under sub-sec. (2) of sec. 3, the Detaining Authority  examined the  history of  the  criminal activity of  the detenu  and took  into account a continuous course of  conduct which may permit an inference that unless interdicted by  a detention  order, such  activity cannot be put to  an end  the power  under sub-sec.  (2) of  sec. 3 is exercised. [320 B-C]      If there  is a  big time  lag between  the last  of the events leading  to the   detention  order being made and the remote earlier  event, the same cannot be treated as showing a continuity  of criminal  activity. But  if events in close proximity with each other are taken into account for drawing a  permissible   inference  that  these  are  not  stray  or spasmodic  events  but  disclose  a  continuous  prejudicial activity, the  reference to  earlier events cannot be styled as  stale  or  remote  which  would  vitiate  the  order  of detention. [320 D-E]      In the  instant case if each event is examined in close proximity with  each other,  the events  of  1978  and  1980 referred to  in grounds Nos. 1 and 2 cannot be rejected as a stray or not proximate to the making of the detention order. 319

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But they  provide the  genesis  of  the  continuity  of  the prejudicial activity  of the  detenu and they appear to have been relied upon for that limited purpose. [321 A-B]      Gora v. State of West Bengal, [1975] 2 S.C.R. 996; Smt. Rekhaben  Virendra   Kapadia  v.   State  of   Gujarat   and Ors.,[1979] 2  S.C.C. 566;  and Firrat Raza Khan v. State of Uttar Pradesh and Ors., [1982] 2 S.C.C. 449, referred to.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 584 of 1983.       (Under article 32 of the Constitution of India)      R.K. Garg and D.K. Garg for the Petitioner.      Ravindra Bana and A.K. Sanghi for the Respondent.      The following Judgments were delivered,      DESAI, J.  I  have  very  carefully  gone  through  the opinion prepared by my learned brother Varadarajan, J. But I regret my inability to agree with the same.      All the  relevant facts  and the  grounds on  which the order of detention was made against the petitioner have been succinctly set  out by  my learned brother and therefore, it is not  necessary to  recapitulate them  here. However,  the only ground examined by my learned brother is that the order of  detention   is  vitiated   on  account  of  taking  into consideration grounds  Nos. 1 and 2 which were stale and not proximate to  the time  when detention  order was  made  and therefore, they  are irrelevant, and would vitiate the order of detention. Grounds Nos. 1 and 2 relate to the events that occurred on  March 20, 1978 and August 9, 1980. The order of detention is  made on May 6, 1983. In between there are four other incidents  involving the  detenu dated  July 13, 1982, July 26,  1982, September  8, 1982 and January 10, 1983. The order  of   detention  is   grounded   on   the   subjective satisfaction of  the Detaining Authority that with a view to preventing the  detenu from acting in any manner prejudicial to the  security of  Satna City,  it was necessary to detain the detenu. When criminal activity of a person leads to such a drastic  action as  detention without  trial, ordinarily a single stray  incident may  not unless  contrary is shown be sufficient  to  invoke  such  drastic  power  of  preventive detention. Ordinarily, drastic power of preventive detention without trial  is invoked  when the normal administration of criminal justice would fail. to prevent the person so acting in a  manner set  out in  sub-sec. (2)  of  Sec.  3  of  the National 320 Security Act,  1980. In  order to  avoid the  charge that  a stray incident  seized upon  to invoke such drastic power of preventive detention,  the authority  charged with a duty to maintain public  order or  assure security of the State, may keep a  close watch  on the  activities of the miscreant for some time  and repeated indulgence into prejudicial activity may permit  an inference that unless preventive detention is resorted to,  it would  not be  possible to  wean away  such person from  such prejudicial  activity. Therefore,  when in 1983, an  action was proposed to be taken under sub-sec. (2) of Sec.  3, the  Detaining Authority examined the history of the criminal  activity of the detenu and took into account a continuous course  of conduct  which may permit an inference that unless  interdicted by a detention order, such activity cannot be put to an end the power under sub-sec. (2) of Sec. 3 is  exercised. Obviously,  if there  is  a  big  time  lag between the  last of  the events  leading to  the  detention

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order being  made and  the remote  earlier event,  the  same cannot be  treated  as  showing  a  continuity  of  criminal activity. But  if events  in close proximity with each other are taken  into account  for drawing a permissible inference that these  are not stray or spasmodic events but disclose a continuous prejudicial  activity, the  reference to  earlier events cannot  be styled  as stale  or  remote  which  would vitiate the  order of detention. In this connection, one may refer to  Gora v.  State of  West Bengal. This Court after a review of  the earlier  decisions observed  that the test of proximity is  not a  rigid or  mechanical test to be blindly applied by  merely counting the number of months between the offending acts  and the  order of detention. The question is whether the  past activities of the detenu are such that the detaining authority  can reasonably  came to  the conclusion that the  detenu is  likely  to  continue  in  his  unlawful activities. This view was affirmed in Smt. Rekhaben Virendra Kapadia v. State of Gujarat and Others. In a recent decision in Firrat  Raza Khan v. State of Uttar Pradesh and Ors. this Court held  that when both the incidents are viewed in close proximity, the  propensity of  the petitioner  to resort  to prejudicial  activity   becomes  manifest   and  the   Court therefore, rejected  the contention  that the  earlier event was not  proximate in  point of  time and  had  no  rational connection  with  the  conclusion  that  the  detention  was necessary for maintenance of public order. 321      Turning to  the facts  of this  case, if  each event is examined in  close proximity  with each other, the events of 1978 and  1980 referred to in grounds Nos. 1 and 2 cannot be rejected as  a stray  or not  proximate to the making of the detention  order.  But  they  provide  the  genesis  of  the continuity of  the prejudicial  activity of  the detenu  and they appear  to have  been  relied  upon  for  that  limited purpose.      I would  therefore, find  it  difficult  to  quash  the detention order  on the  short ground that incidents set out in grounds  Nos. 1  and 2  are stale and would be irrelevant and therefore,  the detention  order is  vitiated.  I  would therefore uphold the detention order.      VARADARAJAN, J.  This writ petition under Article 32 of the Constitution  is for  quashing the  Order  of  detention dated 6.5.1983  passed by  the  second  respondent  District Magistrate, Satna  as being  arbitrary and  unreasonable and for the  issue of  a writ  of habeas  corpus  directing  the immediate  release   of  the   petitioner  Kamlakar  Prashed Chaturvedi. There  is also  another prayer  in the petition, which cannot be granted in these proceedings, and that is to direct the  first respondent  State of Madhya Pradesh to pay compensation to the petitioner for the wrongful detention.      The second  respondent passed  the Order  of  detention dated 6.5.1983  against the petitioner under S. 3 (2) of the National Security  Act, 1980.  The grounds of detention were served on the petitioner in jail and copy thereof was served on the  petitioner’s brother  on 6.5.1983. The following are the grounds:-      (1)  On 20.3.1978 petitioner unauthorisedly entered the           Nagar Mahapalika  at Satna  and beat  the  Revenue           Inspector Ram  Biswas Tiwari  in the  presence  of           other Government  employees as  a result  of which           those employees  ran away on account of fear and a           first information  report has  been lodged against           the petitioner  for offences under Ss. 323 and 353           I.P.C.;      (2)  On 9.8.1980,  petitioner and  his associates Vijay

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         Shankar and three others formed themselves into an           unlawful assembly  and unauthorisedly  entered the           Badri Hotel  situate  at  Station  Road  and  beat           Surender Kumar Srivastava with sticks and rod, as 322           a result  of which  the customers in the hotel and           passers  by   ran  away  in  panic,  and  a  first           information report  has been  lodged  against  the           petitioner and  others for offences under Ss. 307,           147, 149 and 501 I.P.C.;      (3)  On 13.7.1983, petitioner and his associate Kamlesh           entered the  Land Development  Bank and  beat Gaya           Prasad Pandey  in the  presence of  the Manager of           the Bank  and threatened to beat him with shoes at           the road  crossings in Satna and on account of the           terror the  staff of  the Bank  ran away  and Gaya           Prasad Pandey has not lodged any report;      (4)  On 26.7.1982,  petitioner  unauthorisedly  entered           the office  of the  Public  Works  Department  and           tried to  obtain  by  force  approval  of  a  wood           contract from the Office Secretary R.P. Sharma and           on his  refusal to  comply  with  his  demand  the           petitioner took  away papers  and intended to beat           the Office  Secretary, and  the office  staff  ran           away due  to the  terror and  a first  information           report has  been lodged against the petitioner for           offences under Ss. 353 and 448 I.P.C.;      (5)  On 8.9.1982, petitioner unauthorisedly entered the           office of  the Land  Development Bank at Satna and           threatened to  beat the Chairman Ram Asray Prasad,           M.L.A. and he again threatened to beat that person           on 1.10.1982  at the  Guest House at Bhopal in the           presence of one Gulshar Ahmed;      (6)  On  1.1.1983,   petitioner  with   his  associates           entered  the  Land  Development  Bank,  Satna  and           threatened the  Guard and  broke the telephone and           beat one Tara Chand Jain at the Dharamshala later,           and a  first information  report was lodged at the           Police  Station   about  that   incident,  and  on           15.1.1983 Ram Asray Prasad, M.L.A. has reported to           the police  at Jahangirabad,  Bhopal that  at  the           Tara  Chand   Jain  Guest   House  the  petitioner           threatened to  break his  arm as a result of which           Harijans employed  in the  Land  Development  Bank           were feeling insecure and a 323           first information  report has  been lodged against           him on 6.1.1983;      (7)  On  25.3.1983   at  night,   petitioner  with  his           associates  threatened   Bijju  Prasad  Misra  and           Shanti Prasad  Misra near  Dashrath  Singh  garage           saying that  he  would  kill  them  if  they  gave           evidence against  Anup Singh  and Ram Charan and a           case has  been registered against him on 26.3.1983           under Ss.  107 and 117 I.P.C. and a notice calling           upon him  to appear  in the  Court on 2.4.1983 had           been served  on him  and he left the Court without           signing the order sheet.      The petitioner’s  case is  that the  detention Order is politically motivated and has been passed at the instance of the Congress (I) M.L.A.Ram Asray Prasad as the petitioner is a social  worker who  had always  raised his  voice  against goondas who  are protected  by the  Congress  (I)  Party  in Madhya Pradesh and had organised a number of rallies against the unscrupulous  and uncivilized  behaviour  of  the  Block

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Development Officers with illiterate and poor farmers of the State.  The  second  respondent  has  passed  the  Order  of detention mechanically  without applying  his  mind  to  the facts and  circumstances of  the case  on the  basis of  the first information,  reports lodged  against the  petitioner. The  grounds   of  detention  must  be  precise,  pertinent, proximate  and   relevant.  Vagueness  and  staleness  would vitiate the  ground of  detention as  held  in  Shiv  Prasad Bhatnagar v.  State of Madhya Pradesh. All the seven grounds do not fall within the realm of public order but relate only to law  and order.  Grounds 1  to  4  suffer  from  want  of proximity to  the order  of detention.  Grounds 5  and 6 are vague. Ground  7 is irrelevant. The State Government has not considered the  petitioner’s representation  dated 25.5.1983 expeditiously. The Order of detention contravenes Article 22 (5) of  the Constitution  and is  consequently liable  to be quashed.      The petition is opposed. The District Magistrate, Satna has contended in his counter affidavit that the petitioner’s detention has  been ordered  because his  recent  activities coupled with  the past  incidents  are  prejudicial  to  the maintenance of  public order.  The Order  of  detention  was considered necessary to prevent him from 324 repeating the offences because the petitioner has a tendency to go  on violating  the laws. The grounds of attack made in the petition  have been  denied in the counter affidavit and it is  stated that  the State  Government had considered the petitioner’s representation  and rejected it on 4.6.1983 and even the Advisory Board has rejected his representation.      In addition to the above grounds of attack on the Order of detention  the petitioner  has stated  in para  13 of the Writ  Petition   that  the   Detaining  Authority   has  not "suggested the  relevant documents on the basis of which the satisfaction  of   passing  the  detention  Order  has  been framed". Perhaps,  what is  meant to  be  conveyed  by  that allegation of  the petitioner  is that relevant documents on the basis  of  which  the  subjective  satisfaction  of  the Detaining Authority  had been reached have not been supplied to the  petitioner. The  learned counsel  for the petitioner submitted in  the course of his arguments before us that the copies of  the first  information reports referred to in the grounds of detention had not been supplied to the petitioner alongwith grounds  of detention. The said allegation in para 13 of  the Writ  Petition does  not naturally appear to have been understood  by the second respondent who has not stated anything about  it in  his parawise  reply  in  the  counter affidavit.      It  is   not  necessary   to  consider  all  the  other objections raised  by the petitioner in his Writ Petition as we propose  to dispose of the petition on the ground of want of proximity  of grounds  1 and  2, particularly ground 1 to the order  of detention dated 6.5.1983. Those grounds relate to alleged  incidents of  20.3.1978 and  9.8.1980 which  are more than  5 years  and about  2 years respectively prior to the date  of the  Order of detention. This Court has taken a strict  view  of  the  law  of  preventive  detention  which deprives the citizen of his freedom without a trial and full fledged opportunity  for him  to  prove  his  innocence.  In Shalini Soni  v. Union  of India  to which  one of  us was a party, it is observed:-           "Quite obviously,  the obligation  imposed on  the      detaining  authority,   by   Art.   22   (5)   of   the      Constitution, to  afford to  the  detenu  the  earliest      opportunity of making a representation, carries with it

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    the imperative implication 325      that the  representation shall  be  considered  at  the      earliest  opportunity.  Since  all  the  constitutional      protection that  a detenu  can claim is the little that      is afforded  by the procedural safeguards prescribed by      Art. 22  (5) read  with Art. 19, the Courts have a duty      to rigidly  insist that preventive detention procedures      be  fair   and  strictly  observed.  A  breach  of  the      procedural imperative  must lead  to the release of the      detenu. The  representation dated  July  27,  1980  was      admittedly not  considered and on that ground alone the      detenu was entitled to be set at liberty.           In the  view that we have taken on the question of      the failure  of the detaining authority to consider the      representation of  the detenu  it is really unnecessary      to consider  the second  question raised  on behalf  of      detenu in  Criminal Writ  Petition No.  4344  of  1980.      However, this  question has  been squarely and directly      raised and,  indeed, it was the only question raised in      the other  two Criminal  Writ Petitions  and  we  have,      therefore, to deal with it."      In Mehdi  Mohamed Joudi v State of Maharashtra to which one of  us was  a party the Order of detention was set aside on the  ground that  the materials  and documents  were  not supplied pari  passu the grounds of detention and that there was  delay  of  more  than  a  month  in  disposing  of  the representation of the detenu. In Taramati Chandulal v. State of Maharashtra  to which  one of us was a party the Order of detention was  set aside  on the  ground that  the documents relied upon  in the  Order of detention were not supplied as part of  the grounds  alongwith the grounds of detention. In Shibban Lal  Saksena v.  The State  of Uttar  Pradesh it  is observed:           "The  petitioner   was  arrested  on  the  5th  of      January, 1953,  under an  order, signed by the District      Magistrate  of   Gorakhpur,  and  the  order  expressly      directed the detention of the petitioner in the custody      of the Superintendent, 326      District Jail,  Gorakhpur, under  sub-clauses (ii)  and      (iii) of  clause (a)  of section 3(1) of the Preventive      Detention Act,  1950, as  amended by later Acts. On the      7th of January following, the grounds of detention were      communicated to  the  detenu  in  accordance  with  the      provisions of section 7 of the Preventive Detention Act      and  the  grounds,  it  appears,  were  of  a  two-fold      character,   falling   respectively   under   the   two      categories contemplated  by sub-clause  (ii)  and  sub-      clause (iii)  of section  3(1) (a)  of the  Act. In the      first paragraph  of the communication it is stated that      the detenu  in course  of speeches  delivered Ghugli on      certain dates  exhorted and  enjoined  upon  the  cane-      growers of  that area  not to  supply sugar cane to the      sugar mills  or even to withhold supplies from them and      thereby interfered  with the  maintenance of  supply of      sugar cane essential to the community. The other ground      specified in paragraph 2 is to the effect that by using      expressions, some  of which were quoted under-neath the      paragraph, the  petitioner incited the cane-growers and      the public  to violence  against established  authority      and to  defiance of lawful orders and directions issued      by Government officers and thereby seriously prejudiced      the maintenance of public order.............           "The sufficiency  of the  grounds upon  which such

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    satisfaction purports to be based, provided they have a      rational probative  value and are not extraneous to the      scope of  purpose of  the legislative provision, cannot      be challenged in a court of law except on the ground of      mala fides.  A court  of law  is not  even competent to      enquire into  the truth or otherwise of the facts which      are  mentioned   as  grounds   of  detention   in   the      communication to the detenu under section 7 of the Act.      What was  happened, however,  in this case is some what      peculiar. The  Government itself,  in its communication      dated the  13th of  March, 1953,  has plainly  admitted      that one  of grounds  upon which  the original order of      detention was  passed is  unsubstantial or non existent      and cannot  be made a ground of detention. The question      is, whether  in such  circumstances the  original order      made under  section 3(1)  (a) of the Act can be allowed      to stand, 327      The  answer,  in  our  opinion,  can  only  be  in  the      negative. The detaining authority gave here two grounds      for detaining  the petitioner.  We can  neither  decide      whether these  grounds are  good or  bad,  nor  can  we      attempt to  assess in  what manner  and to  what extent      each  of   these  grounds   operated  on  the  mind  of      appropriate authority  and contributed  to the creation      of the satisfaction on the basis of which the detention      order was  made. To  say that  the other  ground, which      still remains  is  quite  sufficient  to  sustain,  the      order, would  be to  substitute an  objective  judicial      test for  the  subjective  decision  of  the  executive      authority  which   is  again   the  legislative  policy      underlying the  statute. In  such cases,  we think, the      position would  be the  same as  if one  of  these  two      grounds was  irrelevant for  the purpose  of the Act or      was  wholly   illusory  and   this  would  vitiate  the      detention order as a whole."      The first  two incidents which are of 1978 and 1980 are mentioned  as  grounds  of  detention  in  the  order  dated 6.5.1983. There  can be  no doubt  these grounds  especially ground No.  1 relating to an incident of 1978 are too remote and not  proximate to the Order of detention. It is not open to the  Detaining Authority  to pick  up an  old  and  stale incident and  hold it  as the basis of an Order of detention under S.  3(2) of  the Act.  Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the  detenu has a tendency to create problems resulting in disturbance  to public  order, for as a matter of fact it has been mentioned as a ground of detention. Now there is no provision in  the National  Security Act, 1980 similar to S. 5A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974  which  says  that  where  a person has  been  detained  in  pursuance  of  an  Order  of detention under sub-section 1 of S. 3 which has been made on two or more grounds, such Order of detention shall be deemed to have  been made  separately on  each of  such grounds and accordingly (a) such Order shall not be deemed to be invalid or inoperative  merely because one or some of the grounds is or are  vague, non-existent,  non-relevant, not connected or not proximately  connected with  such persons or invalid for any other  reason, and  it is not therefore possible to hold that the  Government or officer making such order would have been satisfied  as provided  in sub-section  1 of  S. 3 with reference to  the remaining  ground or  grounds and made the order of detention and (b) the Government or officer making 328

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the order  of detention  shall be  deemed to  have made  the order of  detention under the said sub-section 1 after being satisfied as  provided in that sub-section with reference to the remaining  ground or  grounds. Therefore  in the present case it cannot be postulated what view would have been taken by the  Detaining Authority  about the  need to  detain  the petitioner under section 3(2) of the Act if he had not taken into account  the stale  and not  proximate grounds  1 and 2 into   consideration   in   arriving   at   the   subjective satisfaction. We  are, therefore,  of the  opinion that  the petitioner’s detention is unsustainable in law. Accordingly, we  quash  the  order  of  detention  and  direct  that  the petitioner be set at liberty forthwith. H.S.K.                                     Petition allowed. 329