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PETITIONER: SHAFIQ AHMAD

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, MEERUT & ORS.

DATE OF JUDGMENT06/09/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RAY, B.C. (J)

CITATION:  1990 AIR  220            1989 SCR  Supl. (1)  56  1989 SCC  (4) 556        JT 1989 (3)   659  1989 SCALE  (2)565  CITATOR INFO :  R          1990 SC1597  (14)  F          1992 SC1900  (16)

ACT:     National  Security  Act  1980--Section  3(2)   Detention Order-Validity  of--Challenged. Delay occurred in  executing the order of detention--Whether vitiates the detention.

HEADNOTE:     In  pursuance of an order of detention dated  15.4.1988, passed by the District Magistrate, Meerut, the Petitioner, a bachelor and having no property, was arrested on 2nd October 1988 and detained under Section 3(2) of the National Securi- ty  Act.  The petitioner was supplied with  the  grounds  of detention enumerating therein the’ acts committed by him  on 2nd,  3rd and 4th April 1988 and on 9.4.88 and the  provoca- tive  speeches  made by him on the occasion of  Shabberat  a Muslim  festival to the effect that Hindus had  deliberately "sent their cow on the road" and the "people are silent" and about teaching "them" a lesson and administration’s  failure to  fix  a long speaker in the mosque- These  acts  and  the speeches made by the petitioner. were, in the opinion of the detaining  authority,  prejudicial  to  the  maintenance  of public  order.  The representation made  by  the  petitioner against the order of detention was rejected and the order of his detention was confirmed.     Thereupon,  the petitioner has filed this Writ  Petition under Article 32 of the Constitution challenging his  deten- tion.  The contentions of the petitioner are that  (i)  that there was inordinate delay in arresting the petitioner which indicated  that  the order of detention was not based  on  a bona fide and genuine belief that the action and conduct  of the  petitioner were such that the same were prejudicial  to the maintenance of Public Order and the so-called  "grounds" were  merely make-belief and not genuine grounds; (ii)  that the  grounds were not germane to the maintenance of  "public order" and (iii) that the grounds were vague and  unintelli- gible. Allowing the Writ Petition, this Court,      HELD:  Sub-section (2) of section 3 of the  Act  autho- rises  the  Central Government or the State  Government,  if

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satisfied  with  respect to any person that with a  view  to preventing him from acting in any 57 manner prejudicial to the security of the state, it is found necessary, then the person can be detained. Hence there must be  conduct  relevant to the formation of  the  satisfaction having  reasonable nexus with the actions of the  petitioner which  are prejudicial to the maintenance of  public  order. Existence of material relevant to the formation of satisfac- tion  and  having rational nexus to the  formation  of  the. satisfaction  that because of certain conduct "it is  neces- sary" to make an order "detaining" such person, are  subject to judicial review. [60H; 61A-B]     Delay,  unexplained  and not justified, by  the  circum- stances  and the exigencies of the situation, is  indicative of  the  fact that the authorities concerned  were  not  and could  not have been satisfied that "preventive custody"  of the  concerned  person  was necessary to  prevent  him  from acting  in  any  manner prejudicial to  the  maintenance  of public  order.  Whether there has been  unreasonable  delay, depends  upon  the facts and circumstances of  a  particular situation. [61C-D]     Satisfaction  of the authorities based on  conduct  must precede action for prevention. Satisfaction entails  belief. Satisfaction  and  belief are subjective. Actions  based  on subjective  satisfaction  are objective  indication  of  the existence  of the subjective satisfaction. Action  based  on satisfaction  should  be with speed  commensurate  with  the situation. [61E-F]     If in a situation the person concerned is not  available or cannot be served then the mere fact that the action under section  7  of the Act has not been taken, would  not  be  a ground  to say that the detention order was bad. Failure  to take  action,  even if there was no scope for  action  under section 7 of the Act would not be decisive or  determinative of the question whether there was undue delay in serving the Order of detention. [62A-B]     The Petitioner has no property, so no property could  be attached  and  as the Government’s case is that he  was  not available for arrest, no order under sec. 7 could have  been possibly  made. This, however, does not salvage  the  situa- tion.  The  fact is that from 15th April 1988  to  12th  May 1988, no attempt had been made to contact the Petitioner. No explanation   has  been  given  for  this.  There  is   also no  explanation why from 29th September 1988 to 2nd  October 1988,  no attempt had been made. It is however  stated  that from  May  to September 1988 the "entire police  force"  was extremely  busy in controlling the situation. Hence, if  the law and order was threatened and prejudiced, it was not  the conduct of the petitioner but because of "the inadequacy" or "inability" of the police force of Meerut City to control 58 the  situation. Therefore the fact is that there was  delay. The  further  fact is that the delay is  unexplained.or  not warranted  by the facts/ situation. To shift the  blame  for public order situation and raise the bogey of the conduct of the petitioner would not be proof of genuine or real  belief about  the conduct of the petitioner but only raising a  red herring. [62B-E]     The  Court quashed the order of detention  and  directed the petitioner to be set at liberty forthwith. [65B]     Nizamuddin  v.  The State of West Bengal, [1975]  2  SCR 593;  Bhawarlal Ganeshmalji v. State of Tamil Nadu  &  Ant., [1979] 2 SCR 633 at p. 638; Indradeo Mahato v. State of West Bengal,  [1973]  4  SCC 4; State of Gujarat  v.  Adam  Kasam

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Bhaya, [1982] 1  SCR 740; Subhash Bhandari v. Distt.  Magis- trate,  Lucknow & Ors., [1987] 4 SCC 685 and Kanu Biswas  v. State of West Bengal, [1973] 1 SCR 546, referred to.

JUDGMENT:     CRIMINAL  ORIGINAL  JURISDICTION: Writ  Petition (Crimi- nal) No. 200 of 1989. (Under Article 32 of the Constitution) C.P. Mittal for the Petitioner.     Anil Dev Singh, Yogeshwar Prasad, Ms. Kitty Kumar Manga- lam,  Ms. A Subhashini, Anil Malik and D. Bhandari  for  the Respondents. The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI, J. This petition under Article  32 of  the Constitution challenges the detention of  the  peti- tioner--a  ,detenu, under s. 3(2) of the  National  Security Act, 1980 (hereinafter called ’the Act’). The petitioner  is a  bachelor.  He does not own any property.  The  order  for detention  under s. 3(2) of the Act was passed on April  15, 1988  by the District Magistrate, Meerut. In the grounds  of detention  it  is stated that on the night of  2/3rd  April, 1988 which was an occasion of "Shabberat" festival, a muslim festival,  the religious celebration was going on  at  Gudfi Chaupala.  At about 11 p.m. in the night on that day, a  cow belonging  to  the muslims of Ismail Nagar came  from  Sabun Garan  towards  Chaupal Gudri and was going  towards  Ismail Nagar and, according to the order of detention, ’some  unde- sirable elements’ 59 present  there did not allow the cow to go on the right  way and .she again came towards Chaupala Gudri, and was made  to run  avoiding  the crowd towards Nakaar Chian but  near  the shop  of Haj Dhola, ’some undesirable elements’ stopped  the cow and poked a wood piece on her back. Due to this the  cow started pumping and himping and ran inside the  celebration. It is stated that at this the petitioner came to the  stage, got  excited and spread the rumor that "the police  had  not made any arrangements". It was stated that the cow  belonged to  the  Hindus and had been deliberately  sent  inside  the festival and "other provoking" things. Due to the aforesaid, the people started running and communal feelings got around. It is stated in the order of detention that in this way  the petitioner had committed an act which was prejudicial to the maintenance  of  public order. Again on 9th April,  1988  at about 9 p.m. near Transformer at Gudri Chaupala P.S.  Kotwa- li,  the petitioner is alleged to have "provoked  some  per- sons"  of the muslim community by saying that "the  adminis- tration even now has not allowed to get a loud speaker fixed here  and all of you are silent, get a loud speaker  on  the Mosque  and we will see. I am with you." It is  also  stated that  the petitioner had also said that on the  occasion  of Shabberat  these Hindus had deliberately "sent their cow  on the road" for their festive celebrations and the "people are silent". He had also said about teaching "them" a lesson.     It  was  stated  that due to the  "aforesaid  bad  act", communal  feelings got aroused in the Meerut City  and  fear and  terror got spread, and in this way the  petitioner  had done an act which was "prejudicial to maintenance of  public law and order". In the aforesaid, it was stated that for the reasons mentioned hereinbefore, there was possibility of the petitioner  doing  such an act, and therefore  in  order  to restrain  the petitioner from doing so, it is  necessary  to detain  him. Accordingly, the order was passed  with  conse-

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quential directions and information.     As mentioned hereinbefore, the alleged incidents were on 2/3/4th April, 1988 as well as 9th April, 1988. The order of detention (hereinafter referred to ’the order’) was made  on 15th  April, 1988. The petitioner was arrested  pursuant  to the  said order on 2nd October, 1988. There was  representa- tion  but the same was rejected and the order  of  detention was confirmed.     In this petition various grounds have been taken  before this  Court  challenging the order under Article 32  of  the Constitution.  Mr.  C.P.  Mittal, learned  counsel  for  the petitioner, however, urged 60 before  us  three grounds upon which he contended  that  the said order be quashed or set aside. It was submitted by  Mr. Mittal  that  there was inordinate delay  in  arresting  the petitioner  pursuant to the order, which indicated that  the order  was not based on a bona fide and genuine belief  that the  action or conduct of the petitioner were such that  the same were prejudicial to the maintenance of public order and that  preventive detention of the petitioner  was  necessary for preventing him from such conduct. He .further  submitted that  delay in the circumstances of this case  in  arresting the petitioner and or in acting pursuant to the order  indi- cated  that the "so-called grounds" were merely  make-belief and  not genuine grounds upon which the satisfaction of  the authority concerned was based.     In  answer to this contention, on behalf of  the  Distt. Magistrate, Meerut, by an affidavit affirmed on 28th August, 1989  and filed in these proceedings, stated that  raids  on the petitioner’s premises for the service of the order dated 15.4.1988  were  conducted. It was further stated  that  the respondent  authorities  had made all efforts to  serve  the order  on the petitioner and for this purpose the  house  of the petitioner was raided on several occasions and a  refer- ence  was made to the general diary report, details  whereof were  extracted in the affidavit. The details indicate  that in  respect of the order dated 15.4.1988 the first raid  was made  in  the  house of the petitioner on  12th  May,  1988, followed by eight other attempts up to the end of May,  1988 to  arrest  the petitioner but he was not  available.  There was,  however, no attempt in the months of June,  July,  Au- gust’ 88 but on 23, 25 & 29th September, 1988 three attempts were  made and as such, it was stated on behalf of  the  re- spondents, the order could not be served before 2nd October, 1988.  According to the District Magistrate, the  respondent authorities  did not leave any stone unturned to arrest  the petitioner.  It was, however, stated that from May, 1988  to September,  1988 the entire police force of Meerut City  was extremely  busy in maintaining law and order, but the  peti- tioner was all along absconding in order to avoid the  serv- ice of the order. The District Magistrate has further stated that  during  the period from May to September,  1988  great communal  tension  was prevailing in the Meerut City  and  a large number of people were arrested on account thereof. The question  that requires consideration is, whether there  was in  ordinary delay. The detention under the Act is  for  the purpose  of  preventing persons from acting  in  any  manner prejudicial  to the maintenance of public order.  Subsection (2) of section 3 of the Act authorises the Central Govt.  or the  State  Govt., if satisfied with respect to  any  person that with a view to preventing him from acting in any manner prejudicial to the security of 61 the  State,  it is found necessary then the  person  can  be

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detained.  Hence,  there  must be conduct  relevant  to  the formation  of the satisfaction having reasonable nexus  with the  action of the petitioner which are prejudicial  to  the maintenance of public order. Existence of materials relevant to  the  formation of the satisfaction and  having  rational nexus  to the formation of the satisfaction that because  of certain conduct "it is necessary" to make an order  "detain- ing"  such person, are subject to judicial  review.  Counsel for the petitioner contends that in the aforesaid facts  and the circumstances if the conduct of the petitioner was  such that  it  required preventive detention,  not  any  punitive action, for the purpose of "preventing" the person concerned from  doing  things or indulging in  activities  which  will jeopardise,  hamper  or affect maintenance of  public  order then  there  must  be action in pursuance of  the  order  of detention  with  promptitude.  Delay,  unexplained  and  not justified,  by the circumstances and the exigencies  of  the situation,  is indicative of the fact that  the  authorities concerned  were  not or could not have been  satisfied  that "preventive  custody" of the person concerned was  necessary to prevent him from acting in any manner prejudicial to  the maintenance  of public order. Whether there has been  unrea- sonable delay, depends upon the facts and the  circumstances of a particular situation. Preventive detention is a serious inroad  into the freedom of individuals.  Reasons,  purposes and the manner of such detention must, therefore, be subject to  closest scrutiny and examination by the courts.  In  the interest of public order, for the greater good of the commu- nity,  it  becomes imperative for the society  to  detain  a person in order to prevent him and not merely to punish  him from the threatened or contemplated or anticipated course of action.  Satisfaction  of the authorities based  on  conduct must  precede  action for prevention.  Satisfaction  entails belief.  Satisfaction  and belief  are  subjective.  Actions based on subjective satisfaction are objective indication of the  existence of the subjective satisfaction. Action  based on  satisfaction should be with speed commensurate with  the situation. Counsel for the petitioner submitted that in this case  there was no material adduced on behalf of  the  Govt. indicating  that  the petitioner was  "absconding".  It  was urged that there are no material at all to indicate that the petitioner  was  evading arrest or was  absconding.  It  was submitted that s. 7 of the Act gave power to the authorities to  take action in case the persons were absconding  and  in case the order of detention cannot be executed. It is stated that in this case no warrant under s. 7 of the Act has  been issued  in respect of his property or person. Hence, it  was contended  that the respondent was not justified in  raising the plea that the petitioner was absconding. We are,  howev- er- unable to accept this contention. If in a situation the 62 person  concerned is not available or cannot be served  then the mere fact that the action under s. 7 of the Act has  not been taken, would not be a ground to say that the  detention order was bad. Failure to take action, even if there was  no scope  for action under s. 7 of the Act, would not be  deci- sive  or  determinative of the question  whether  there  was undue delay in serving the order of detention.  Furthermore, in  the  facts of this case, as has been  contended  by  the Government,  the  petitioner has no  property,  no  property could  be attached and as the Govt. ’s case is that  he  was not  available  for arrest, no order under s. 7  could  have been  possibly  made. This, however, does  not  salvage  the situation.  The fact is that from 15th April, 1988  to  12th May, 1988 no attempt had been made to contact or arrest  the

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petitioner. No explanation has been given for this. There is also  no  explanation why from 29th September, 1988  to  2nd October,  1988  no attempt had been made.  It  is,  however, stated  that from May to September, 1988 the ’entire  police force’  was  extremely busy in  controlling  the  situation. Hence,  if the law and order was threatened and  prejudiced, it was not the conduct of the petitioner but because of ’the inadequacy’ or ’inability of the police force of Meerut City to control the situation. Therefore, the fact is that  there was delay. The further fact is that the delay is unexplained or not warranted by the facts situation.     To shift the blame for public order situation and  raise the  bogey  of the conduct of the petitioner  would  not  be proof  of  genuine or real belief about the conduct  of  the petitioner but only raising a red herring. This question was examined  by this Court in Nizamuddin v. The State  of  West Bengal, [1975] 2 SCR 593. The question involved therein  was under s. 3(2) of the Internal Security Act, 1971. There  was delay of about two and a half months in detaining the  peti- tioner  pursuant  to the order of detention  and  the  Court considered  that  unless the delay  was  satisfactorily  ex- plained,  it would throw considerable doubt on the  genuine- ness of the subjective satisfaction of the Distt. Magistrate recited in the order of detention. Mr. Justice Bhagwati,  as the  learned Chief Justice then was, speaking for the  Court observed at page 595 of the report that it will be  reasona- ble  to assume that if the Distt. Magistrate was really  and genuinely satisfied after proper application of mind to  the materials  before  him that it was necessary to  detain  the petitioner  with a view to preventing him from acting  in  a prejudicial manner, he would have acted with greater  promp- titude in securing the arrest of the petitioner  immediately after invoking of the order of detention, and the petitioner would  not have been allowed to remain at large for  such  a long period of time to carry on his nefarious activities. It is, however, not the law that whenever there is some delay 63 in  arresting the subjective satisfaction of  the  detaining authority must be held to be not genuine or colourable. Each case  must  depend  on its own peculiar  facts  and  circum- stances. In this case, from the facts and the  circumstances set  out  hereinbefore we find no reasonable  or  acceptable explanation  for the delay. In a situation of communal  ten- sion  prompt  action is imperative. It  is,  therefore,  not possible  for this Court to be satisfied that  the  District Magistrate  had applied his mind and arrived at  "real"  and "genuine"  subjective satisfaction that it was necessary  to detain the petitioner to "prevent" him from wrong doing. The condition  precedent,  therefore, was not  present.  But  as Justice  Chinnappa Reddy explained in Bhawarlal  Ganeshmalji v. State of Tamil Nadu & Anr., [1979] 2 SCR 633 at page  638 that  there  must be ’live and proximate link’  between  the grounds of detention alleged by the detaining authority  and the avowed purpose of detention, and in appropriate cases it is possible to assume that the link is ’snapped’ if there is a  long and unexplained delay between the date of the  order of  detention  and the arrest of the  detenu.  Mr  Yogeshwar Prasad,  learned  counsel  for the State of  U.P.  drew  our attention  to the decision of this Court in Indradeo  Mahato v.  State  of West Bengal, [1973] 4 SCC 4. That was  also  a case  of arrest under the Maintenance of  Internal  Security Act, 1971. It was urged in that case that there was no  real or genuine apprehension that the petitioner there was likely to act in a manner prejudicial to the maintenance of  public order.  This Court in the facts of that case, was unable  to

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accept the said contention. The Court held that mere failure to  take recourse to ss. 87 & 88 of the  Criminal  Procedure Code would be a warrant to believe that the delay was unrea- sonable.  Whether the delay was unreasonable depends on  the facts and the circumstances of each case. We are  satisfied, in view of the facts and circumstances of the case mentioned before,  that by the conduct of the respondent  authorities, there was undue delay, delay not commensurate with the facts situation  in this case. the conduct as  aforesaid  betrayed that  there  was no real and genuine apprehension  that  the petitioner  was likely to act in any manner  prejudicial  to public order. The order, therefore, is bad and must go.     The next ground urged in support of this application was that  the grounds mentioned were not germane to  maintenance of ’public order’. It was submitted that the petitioner  has only  alleged  inefficiency or incompetency  of  the  police either  in providing a loud speaker or in ensuring that  the cows do not enter into or within the arena of muslim  festi- vals. It was submitted that the criticism of the administra- tion  is not endangering public order. Mr. Mittal  submitted that it was not a question of law and order but public order that is important in 64 this case. What the petitioner has alleged to have done  may have some relevancy to the purpose of securing law and order but there cannot be any rational nexus with the satisfaction regarding  the maintenancy of public order. By  the  conduct alleged or the saying attributed as mentioned above,  public order  was  not  prejudiced. Criticism of  Police  does  not prejudice public order, it is said. The Court has to  ensure that the order of detention is based on materials before it. If  it is found that the order passed by the  detaining  au- thority  was on materials on record, the Court  can  examine the record only for the purpose of seeing whether the  order of detention was based on no material or whether the materi- als have rational nexus with satisfaction that public  order was prejudiced. Beyond this, the Court is not concerned. See the  observations  of  The State of Gujarat  v.  Adam  Kasam Bhaya, [1982] 1 SCR 740. The difference between public order and  law and order is a matter of degree. If the  morale  of the  police force or of the people is shaken by making  them lose their faith in the law enforcing machinery of the State then prejudice is occasioned to maintenance of public order. Such attempts or actions which undermine the public faith in the police administration at a time when tensions are  high, affects maintenance of public order and as such  conduct  is prejudicial.  See in this connection Indradeo Mahato’s  case (supra),  Subhash Bhandari v. Distt. Magistrate,  Lucknow  & Ors.,  [1987]  4 SCC 685 and Kanu Biswas v.  State  of  West Bengal, [1973] 1 SCR 546. Therefore, we are unable to accept the  contention that the grounds were not relevant  for  the order  of  detention under the Act. This contention  of  Mr. Mittal must, therefore, fail.     The last contention was that the grounds mentioned  were vague  and unintelligible. It was not stated, it was  urged, that as to what the petitioner said, to whom the rumour  was spread as mentioned in ground No. 1 and what "other  provok- ing  things" the petitioner is alleged to have said  as  al- leged  in the grounds mentioned before. It was urged, it  is further not clear as to whom the petitioner wanted to  teach a  lesson. It has to be borne in mind that if more than  one grounds are stated in the grounds then the fact that one  of the grounds is bad, would not alter order of detention after the amendment of the Act in 1984 provided the other  grounds were valid. But quite apart from the same, it appears to  us

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that  none  of the grounds were vague. The grounds  must  be understood in the light of the background and the context of the facts. It was quite clear what the detaining authorities were trying to convey was that the petitioner stated  things of the nature and it was to teach Hindus a lesson. Hence, it was meant to create communal tension. We find no irrelevancy or vagueness in the 65 grounds. On this ground the challenge cannot be sustained.     However, in the view taken by us on the first ground the order  of detention must be quashed and set aside. We  order accordingly. Let the petitioner be set at liberty  forthwith unless he is required for any other offence under any  other Act. The application is disposed of accordingly. Y.  Lal                                             Petition allowed. 66