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PETITIONER: BINOD SINGH

       Vs.

RESPONDENT: DISTRICT MAGISTRATE DHANBAD BIHAR & OTHERS

DATE OF JUDGMENT26/09/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S.

CITATION:  1986 AIR 2090            1986 SCR  (3) 906  1986 SCC  (4) 416        JT 1986   561  1986 SCALE  (2)531  CITATOR INFO :  RF         1987 SC2098  (7,8)  F          1988 SC 596  (11)  R          1989 SC2027  (20)  R          1989 SC2265  (19)  R          1989 SC2274  (10)  R          1990 SC 516  (9)  RF         1990 SC1196  (14)  RF         1990 SC1202  (5)  D          1990 SC1597  (11)  RF         1991 SC1640  (12)

ACT:      National Security Act, s. 3(2)- Detention order passed- Detenu already  in custody  in respect  of  criminal  charge before actual  service of  detention  order-Detention  order held invalid.

HEADNOTE:      The respondent  passed an order of detention in respect of the  appellant under s. 3(2) of the National Security Act 1980, on  the ground  that the  appellant’s activities  were prejudicial to  the maintenance  of  public  order.  Several criminal cases  were pending  against the appellant when the aforesaid  order  was  passed.  The  appellant  had  already surrendered in  respect of  a criminal  charge  against  him before the order was served. He filed a writ petition in the High Court  challenging the  detention  order,  but  it  was dismissed without any speaking order.      Aggrieved by the order of the High Court, the appellant filed the present criminal appeal by special leave as also a writ petition  challenging the  aforesaid order of detention on the  ground that  the order of preventive detention could only be  justified against  a person  in  detention  if  the detaining authority  was satisfied  that  his  release  from detention was  imminent  and  the  order  of  detention  was necessary for putting him back in jail. The service of order of detention  on the  appellant/ petitioner  while he was in jail was  futile and  useless since  such an  order  had  no application under s. 3(2) of the Act.      Allowing the writ petition and the appeal in part, ^

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    HELD: 1.  The continued  detention of  the detenu under the Act  is not  justified. The order of detention therefore is  set  aside.  However,  this  will  not  affect  detenu’s detention under  the criminal  cases. If however, the detenu is released  on bail  in the  criminal cases already pending against him,  the matter  of service  of the detention order under  the  Act  may  be  reconsidered  by  the  appropriate authority in accordance with law. [912 E-F] 906      2.  In  our  constitutional  framework,  the  power  of directing preventive  detention  given  to  the  appropriate authorities  must  be  exercised  in  exceptional  cases  as contemplated by  the various  provisions  of  the  different statutes dealing  with preventive  detention and  should  be used with  great  deal  of  circumspection.  There  must  be awareness of the facts necessitating preventive custody of a person for  social defence. If a man is in custody and there is no  imminent possibility of his being released, the power of preventive detention should not be exercised. [911 F-G]      In the instant case, when the actual order of detention was served  upon the detenu the detenu was in jail. There is no indication that this factor or the question that the said detenu  might   be  released   or  that  there  was  such  a possibility of  his release  was taken into consideration by the detaining  authority properly  and seriously  before the service of  the order.  If there  were cogent  materials for thinking that  the detenu  might  be  released,  then  these should have  been made apparent. In the affidavits on behalf of the detaining authority though there are indications that transfer of detenu from one prison to another was considered but the  need to  serve the  detention order while he was in custody  was   not  properly  considered  by  the  detaining authority in  the light  of relevant factors. If that is the position then  however disreputable  the  antecedents  of  a person might  have been,  without consideration  of all  the aforesaid relevant  factors, the  detenu could not have been put into  preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid, and on relevant  considerations the service of the order was not on  proper   consideration.  The   order  of  detention  is, therefore set aside. [911 G-H; 912 A-D]      Rameshwar Shaw  v. District Magistrate, Burdwan & Anr., [1964] 4  SCR 921  and Ramesh  Yadav v.  District Magistrate Etc. and others, [1985] 4 SCC 232, relied upon.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 317 of 1986      From the  Judgment and  order dated  27.2.1986  of  the Patna High Court in C.W.J.C. No. 33 of 1986. With      W.P. (Criminal)No. 316 of 1986.      R.K. Garg  and Miss  Rani Jethmalani for the Appellant/ Petitioner.      D. Goburdhan for the Respondents. 907      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. Criminal Appeal No. 317 of 1986 arises out  of the  judgment and  order of the High Court of Patna and  the Writ  Petition No.  316 is  in respect of the same detenu.  Both these  challenge the  order of  detention dated 2nd  January, 1986  passed by the respondent no.1. The District Magistrate  Dhanbad in  respect of  the  petitioner

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under section  3(2) of  the  National  Security  Act,  1980, hereinafter  called   the  ’Act’  on  the  ground  that  the petitioner’s activities  were prejudicial to the maintenance of public  order. Several  criminal  cases  had  been  filed against the  petitioner between  3rd January,  1983 to  18th February, 1985.  On or  about 2nd January, 1985 the order of detention was passed on an incident relating to the exchange of fire  between two  rival groups.  The  order  states  the grounds as follows:           1. On  24.12.1985, between  10 and 10.30. A.M. the           subject  alongwith   Ramashish   Bangali,   Gulam,           Rambriksha armed  with Rifle, gun etc. came in Car           No. BHG-9372  on  Katras  Coal  Dump  and  started           indiscriminate  firing  to  kill  Birendra  Pratap           Singh a rival of his calendestine business of coal           to establish his criminal superiority in full view           of the shopkeepers customers and passers by of the           area. Birendra Pratap Singh and his associates who           were  there  also  returned  the  firing  in  same           manner. As  a result  of this  firing one innocent           namely Brahamdeo  Mishra was  killed. The exchange           of indiscriminate  firing in  the main market area           of Katras  created great  panic and  alarm in  the           area. The  normal tempo  of  life  was  completely           disturbed. The  people started  running helter and           skelter for their lives. Shopkeepers   put    down           their shutters. Doors and windows were closed. The           vehicular traffic  came to  halt. This  refers  to           Katras P.S.  Case No.  331/85 dated  24.12.85  u/s           149/307/32 IPC/27 Arms Act.                Besides the  aforesaid ground  the  following           cases are also referred hereunder as background to           show the criminality of the subject.           1. KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s 147,           341/353/307 I.P.C.                In this case subject and his associates tried           to set free 908           the trucks  and driver  from the police custody by           force  and  when  he  failed  in  his  attempt  he           threatened the  police officer  and CISF Personnel           to do  away with  their lives,  C.S.No.  5/83  has           already been submitted in this case.           2. Katras P.S. Case No. 303/83 u/s 147/148/452/323           IPC.                In this  case subject and his associates went           to the  tailoring shop  of Saukat Ansari and asked           him to keep his cloths ready by 9.10.83 and on his           refusal, he assaulted him in presence of customers           and  others   C.S.No.  196/83   has  already  been           submitted in this case.           3. Jogta  P.S. Case  No. 22/84  dated 11.3.84  u/s           147/148,  307/326/353/333/324/325  I.P.C./27  Arms           Act.                In  this  case  subject  and  his  associates           opened fire  on police party who went to apprehend           Raghunath Singh  absconder under  NSA. As a result           of this  indiscriminate  firing  by  him  and  his           associates one  Police officer  namely  Shri  R.K.           Verma, received  serious head  injury and is still           incapable to  work. Charge  sheet  No.  25/84  has           already been submitted in this case.           4. Jogta P.S. Case No. 9/85 dated 18.2.85 u/s 369,           307/323/ 324/ 176/34 I.P.C./27 Arms Act.                In this  case Sisir Rajan Das, who was coming

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         in a  religious procession on the eve of Shivratri           and was dancing in the role of Shiva was compelled           by his  associates to  dance before  the  marriage           party of  subject’s sister.  Sri Sisir  Rajan Das,           however, acceded  to  their  request  and  started           dancing. When  he was  dancing some of the members           opened fire  on him  as a  result of which he fell           down. The  subject and  his associates however put           his body in his car and fled away. Neither    Shri           Das nor his body could be traced out till date. 909           Charge sheet  No. 20/85 has already been submitted           in this case. (Emphasis supplied)           5. Jogta  P.S. Case  No. 68/85  dated 1.12.85  u/s           341/34 IPC.                In this  case subject threatened Sri Krishana           Ballav Sahay,  General Secretary, Colliery Shramik           Sangh, Sijua, to do away with his life if he takes           out any procession or oppose him.      It is  the  case  of  the  detenu  that  the  order  of detention was  made on  one incident relating to exchange of fire between  two rival  groups. A  criminal case  had  been registered in  relation to  the said  incident  pursuant  to which the  petitioner was  already in  custody. The order of detention though  dated 2nd  January, 1986  was served on or about  11th   January,  1986.   It  is   the  case   of  the appellant/petitioner that the detenu was not served with all the documents  referred to  and/or relied on. The detenu was served with order of approval of the said order of detention by the  Government of  Bihar. The  petitioner/appellant made representation on  22nd January,  1986 and  the  petitioner/ appellant was  informed that  the  said  representation  was rejected. Thereafter the petitioner’s appellant’s matter was referred to  the Advisory  Board.  The  petitioner/appellant states that  he desired that he should be heard in person by the Advisory Board. The petitioner/appellant submits that he was produced  before the Advisory Board but he was not given any  hearing.  By  letter  dated  22nd  February,  1986  the petitioner/appellant was  informed that  the Advisory  Board had  confirmed  the  order  of  detention.  The  petitioner/ appellant thereafter filed a writ petition in the High Court of Patna which was dismissed without any speaking order.      The grounds  of challenge  are all  stated in  the writ petition as  well as special leave petition. The petitioner/ appellant was in detention when the petitioner/appellant was served with  the order  of detention.  There  were  criminal cases against  the petitioner.  There was  a murder  case in respect  of  Crime  No.  331  of  1985.  In  the  said  case investigation  was  in  progress  and  the  defence  of  the petitioner in  the murder  case  was  that  he  was  falsely implicated and  was not  at all  concerned with  the murder. When  the   order  was   passed,  the   petitioner  had  not surrendered but  when the  order was  served, the petitioner had already  surrendered in  respect of  the criminal charge against  him.  At  the  relevant  time  the  petitioner  was undertrial in the said criminal case. 910      It is  the contention  of the petitioner/appellant that the order  of preventive  detention could  only be justified against a person in detention if the detaining authority was satisfied that  his release  from detention was imminent and the order of detention was necessary for putting him back in jail. The  service of  order of  detention on the petitioner while he  was in  jail was  futile and useless since such an order had no application under section 3(2) of the Act.

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    In  the  affidavit  of  the  District  Magistrate,  the detaining authority,  it has been stated that the activities of  the   petitioner’s  brother   and  the  petitioner  have disturbed the  normal tempo  of life  in  Katras  and  Jogta Police Stations  in Dhanbad  area. The  series  of  offences against the  detenu and  the manner  of their  perpetuation, which have  been noted before, indicate a calculated move to create panic  and fear in the mind of the people. It further appears from the affidavit f f the District Magistrate filed before the  High Court  of Patna  that  the  petitioner  was absconding  from  the  very  day  of  the  issuance  of  the detention order.  There is  a  statement  in  the  order  as follows-D "Subject  is already  in jail.  He is likely to be enlarged on bail. Hence detention order served in jail."      According  to   the  District  Magistrate  when  police pressure to  apprehend him became heavy, the detenu opted to surrender before  the Sub-Divisional  Judicial Magistrate on 10th January,  1986 in  substantive case  to  frustrate  the service of  the detention  order. It has been further stated that the  service of  the detention  order had been properly made. Grounds  were all  indicated. All  the documents which formed the  basis of  detention were supplied to the detenu. His representation,  was duly  considered and  rejected. The grounds stated  that there  was -  indiscriminate firing  on 24th December,  1985 on  Katras Coal Dump and the petitioner started indiscriminate  firing to kill Birendra Pratap Singh a rival  of his  calendestine business  of coal to establish the criminal  superiority in  full view  of the shopkeepers, customers and  passers by  of the  area.  The  acts  alleged created a  terror and  not only  law and  order problem  but problem of  public order.  In those circumstances it appears that the  grounds for  forming the satisfaction for the need for the  detention were  there, and there was rational nexus between the  object of  the order as contemplated by the Act and the  materials on  record. The  principles applicable in these  types   of  preventive   detention  cases  have  been discussed in  the decisions  of Suraj  Pal Sahu  v. State of Maharasthra &  Ors., W.P.  (crl) No.  2 96/86 with SLP (crl) No. 1265/86  dt. 25.9.86 and Raj Kumar Singh v. The State of Bihar &  Ors. Crl  A.  353/86  with  W.P.  (crl)  27/86  dt. 26.9.86. Judged on the basis of 911 the said principles there is no ground for interference with the order  of detention as passed. It, however, appears that after the  order of  detention was  passed  and  before  the actual service of the order of detention, the petitioner was taken into  custody. From  the  affidavit  of  the  District Magistrate it  does not  appear that  either the prospect of immediate release  of the  detenu or other factors which can justify the detention of a person in detention were properly considered in  the light  of the  principles  noted  in  the aforesaid decision  and  especially  in  the  decisions,  in Rameshwar Shaw  v.  District  Magistrate,  Burdwan  &  Anr., [1964] 4  SCR 921  and Ramesh  Yadav v.  District Magistrate Etah and  others, [1985]  4  SCC  232  though  there  was  a statement to  the effect that the petitioner was in jail and was likely to be enlarged on bail. But on what consideration that opinion  was expressed  is not  indicated especially in view of  the fact  that the  detenu was detained in a murder charge in  the background of the facts mentioned before. His application for  bail could  have  been  opposed  on  cogent materials before the Court of Justice.      In this  case there were grounds for the passing of the detention order  but after  that the  detenu has surrendered for whatever  reasons,  therefore  the  order  of  detention

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though justified  when it  was passed but at the time of the service of  the order  there was  no proper consideration of the fact  that the  detenu was  in custody of that there was any real  danger of  his release.  Nor does  it appear  that before the  service there  was consideration  of this aspect properly. In  the facts  and  circumstances  of  this  case, therefore, the  continued detention  of the detenu under the Act is not justified.      It is well settled in our Constitutional framework that the power  of directing  preventive detention  given to  the appropriate authorities  must be  exercised  in  exceptional cases as  contemplated by  the  various  provisions  of  the different statutes  dealing with  preventive  detention  and should be used with great deal of circumspection. There must be awareness  of the  facts necessitating preventive custody of a  person for  social defence. If a man is in custody and there is  no imminent possibility of his being released, the power of  preventive detention  should not  be exercised. In the instant  case when  the actual  order of  detention  was served upon  the detenu, the detenu was in jail. There is no indication that  this factor  or the  question that the said detenu  might   be  released   or  that  there  was  such  a possibility of  his release, was taken into consideration by the detaining  authority properly  and seriously  before the service of  the order.  A bald  statement is  merely an ipso dixit 912 of the  officer. If there were cogent materials for thinking that the  detenu might  be released  then these  should have been made apparent. Eternal vigilance  on the  part  of  the authority charged  with both  law and order and public order is the  price which  the democracy  in this country extracts from  the   public  officials   in  order   to  protect  the fundamental freedoms  of our  citizens. In the affidavits on behalf  of   the  detaining   authority  though   there  are indications that  transfer of  the detenu from one prison to another was  considered but  the need to serve the detention order while he was in custody was not properly considered by the  detaining  authority  in  the  light  of  the  relevant factors. At  least the  records of  the case do not indicate that. If that is the position, then however disreputable the antecedents  of   a   person   might   have   been   without consideration of  all the  aforesaid relevant  factors,  the detenu could  not have  been put  into  preventive  custody. Therefore, though  the order of preventive detention when it was passed  was not  invalid and on relevant considerations, the service of the order was not on proper consideration.      It may  be mentioned that in the petition it is nowhere stated that  the detenu  has since been released or that the prospect of  his imminent  release  was  properly  and  with seriousness considered by the detaining authority.      The order  of detention,  therefore, is  set aside. The writ petition  and the  appeal are  allowed  to  the  extent indicated above.  This, how  ever, will  not affect detenu’s detention under  the criminal cases. If, however, the detenu is released  on bail  in the  aforesaid criminal  cases, the matter of  service of  the detention  order under the Act on the  aforesaid   materials  may   be  reconsidered   by  the appropriate authority  in accordance  with the law. There is no statement  in the  petition that  the detenu  is on bail. There will,  therefore, be  no orders  for  release  of  the detenu. M.L.A.                          Petition and Appeal allowed. 913

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