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PETITIONER: BIRU MAHATO

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, DHANBAD.

DATE OF JUDGMENT15/10/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1982 AIR 1539            1983 SCR  (1) 584  1982 SCC  (3) 322        1982 SCALE  (2)899  CITATOR INFO :  R          1982 SC1548  (5)

ACT:      National Security  Act, 1980,  Section 3(2)  Scope  of- Preventive  detention   of  the  detenu  whose  liberty  has otherwise already  been prevented  by  keeping  in  jail  is impermissible  under   the  N.S.  Act-Non-awareness  of  the detaining authority  about the  detenu’s detention  in  jail would vitiate  the order  of detention on the ground of non- application  of   mind-Affidavit  should   be  that  of  the detaining authority  who had  the subjective satisfaction of the detention.

HEADNOTE:      Detenu Biru  Mahato was arrested on January 13, 1982 on the allegation  that he  was involved in two incidents which occurred, first  at 5  p.m. and  the second  at 5.30 p.m. on January 12,  1982. In  the first  occurrence detenu  and his associates were  alleged to  have committed  offences  under sections 341,  323 and  506 of Indian Penal Code, as per the F.I.R. 25(1)/82  at Bagmara  Police Station.  In the  second case, F.I.R. 24(1)/82 registered at the same police station, they were said to have committed offences under sections 307 and 323  I.P.C. After  his arrest the detenu was confined in prison. In  respect of the first occurrence bail application was accepted,  but in  respect of  the second occurrence the bail application  was rejected  by the  District  &  Session Judge, Dhanbad  on February  5, 1982,  on the ground that in exercise of  powers conferred  by sub  section (2) read with sub section  (3) of  Section 3 of the National Security Act, 1980, the  detenu is  detained by  the order of the District Magistrate so  as to  prevent him  from acting in any manner prejudicial to  the maintenance of public order and the bail application has  become infructuous.  On February  10, 1982, grounds of detention were served on the detenu in jail where he was  already detained.  The grounds of detention referred to the  two incidents  occurred on  January  12,  1982.  The detenu made  a representation on February 15, 1982 which was rejected by  the State  Government on February 16, 1982. The case of  the detenu  was referred  to the Advisory Board and after receipt  of its  report the State Government confirmed the order of detention.

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    Detenu preferred a petition for a writ of habeas corpus in the  High Court at Patna which was dismissed in limine by a Division  Bench of  the High  Court. Hence  the appeal  by special leave and the writ petition.      Allowing the appeal and the petition, the Court ^      HELD:  1.1  A  preventive  action  postulates  that  if preventive step  is  not  taken  the  person  sought  to  be prevented may  indulge into  an activity  prejudicial to the maintenance of  public order.  In other  words,  unless  the activity is  interdicted by a preventive detention order the activity which is being indulged 585 into is  likely to  be repeated,  This is  the postulate  of section 3 of the National Security Act. And this indubitably transpires from  the language  employed in  sub section  (2) which says  that the detention order can be made with a view to preventing  the person [sought to be detained from acting in any  manner prejudicial  to  the  maintenance  of  public order. If,  it is  shown that the man sought to be prevented by a  preventive order is already effectively prevented, the power under  sub section  (2) of  Section 3,  if  exercised, would imply  that one  who is already prevented is sought to be further  prevented, which  is  not  the  mandate  of  the section, and would appear tautologous. [588 C-E]      1.2. The  detaining  authority  before  exercising  the power of  preventive detention would take into consideration the past  conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies  or inclinations  of a  man that an inference could be  drawn whether  he is  likely even in the future to act in  a manner  prejudicial to  the maintenance  of public order. If  the  subjective  satisfaction  of  the  detaining authority leads  to this conclusion it can put an end to the activity by  making a preventive detention order. If the man is already  detained a detaining authority cannot be said to have  subjectively   satisfied  himself  that  a  preventive detention order need be made. [588 E-H]      Ujagar Singh  v. State  of Punjab; Jagir Singh v. State of Punjab,  [1952]  SCR  756;  Rameshwar  Shaw  v.  District Magistrate, Burdwan  and another, [1964] 4 SCR 921; referred to.      1.3.  The  subjective  satisfaction  of  the  detaining authority must  comprehend the  very fact  that  the  person sought to  be detained is in jail or under detention and yet a preventive  detention order  is a compelling necessity. If the subjective  satisfaction is reached without awareness of this very relevant fact, the detention order is likely to be vitiated. But, it will depend on the facts and circumstances of each case. [590 B-C]      Vijay Kumar  v. State  of J & K and others, AIR 1982 SC 1023 applied.      2.1. Conceding  that  in  a  given  case  a  preventive detention order is required to be made even against a person who is  already in  jail or  under detention  and  that  the detaining  authority   shows  its   awareness  of  the  fact situation and  yet passes the detention order, the detention order must  show on  the  face  of  it  that  the  detaining authority  was   aware  of   the  situation.  Otherwise  the detention order would suffer from vice of non-application of mind.      [590 H, 591 A-B]      2.2. The  awareness must be of the fact that the person against whom  the detention  order is  being made is already under detention  or in jail in respect of some offence. This

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would show  that such  a person  is not  a  free  person  to indulge into  a prejudicial activity which is required to be prevented by a deten- 586 tion order. And this awareness must find its place either in the detention  order or  in  the  affidavit  justifying  the detention order  when challenged.  In the  absence of it, it would appear that the detaining authority was not even aware of this  vital fact  and mechanically  proceeded to pass the order which  would unmistakably  indicate that  there was no application of  mind to  the relevant facts and any order of such serious  consequence when  mechanically passed  without application of  mind is  liable to  be set aside as invalid. [591 B-D]      2.3. A  person may  be holder  of  office  of  District Magistrate. But  when the  subjective satisfaction of holder of office  who actually passed the detention order is put in issue, the  mere  occupant  of  office  cannot  arrogate  to substitute the  subjective satisfaction of the holder of the post who actually passed the detention order. The subsequent occupant can  speak from  the  record.  But  the  subsequent holder of  office  has  made  an  affidavit  as  if  he  was subsequently satisfied  a fact  in connection  with  record. Here, the  affidavit of  Mr. Brara  the subsequent holder of office of  Distt. Magistrate  has to be ignored and one must reach the  conclusion that  the averments made by the detenu have remained un-controverted. [592 B-D]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  -Petition (Criminal) No. 1125 of 1982.      (Under article 32 of the Constitution of India)                             WITH               Criminal Appeal No. 488 of 1982.      (Appeal by  special leave  from the  judgment and order dated 7-4-1982  of the  Patna High  Court (Ranchi  Bench) in Writ Jurisdiction Case No. 40 of 1982 (R).      U.P. Singh for the Petitioner/Appellant.      D. Goburdhan for the Respondent.      The Judgment of the Court was delivered by      DESAI, J. By our order dated October 8, 1982, the order of detention  dated February  5, 1982,  made by the District Magistrate, Dhanbad,  against detenu Biru Mahato was quashed and set  aside by  us further stating that the reasons would follow. Here are the reasons.      Detenu Biru Mahato was arrested on January 13, 1982, on the allegation  that he  was involved in two incidents which occurred, first 587 at 5  p.m. and  the second at 5.30 p.m. on January 12, 1982. In the  first occurrence detenu and his associates appear to have committed offences under ss. 341, 323 and 506 read with s. 34  of the  Indian Penal Code. F.I.R. led to registration of the  offences  at  Bagmara  Police  Station  numbered  as 25(1)/82. F.I.R. No. 24(1)/82 has been registered at Bagmara Police Station  for offences  under ss.  307 and 323, I.P.C. After his  arrest the  detenu was  confined  in  prison.  In respect of  the first  occurrence bail  application  of  the detenu was  accepted but in respect of the second occurrence the bail  application was rejected by the learned District & Sessions Judge,  Dhanbad on  February 12,  1982. In the mean time the  District Magistrate,  Dhanbad, made  an  order  on February 5,  1982, in  exercise of  powers conferred by sub-

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section (2)  read with  sub-section (3)  of section 3 of the National Security  Act, 1980  (‘Act’ for  short),  directing that the detenu be detained so as to prevent him from acting in any  manner prejudicial  to  the  maintenance  of  public order. On  February 10,  1982,  grounds  of  detention  were served on  the detenu in jail where he was already detained. The grounds of detention referred to the two incidents which occurred  on   January,  12,   1982.  The   detenu  made   a representation on  February 15,  1982, which was rejected by the State  Government on  February 16,  1982.  Case  of  the detenu was  referred to the Advisory Board and after receipt of its  report the  State Government  confirmed the order of detention.      Detenu perferred a petition for a writ of habeas corpus in the  High Court at Patna which was dismissed in limine by a Division  Bench of  the High  Court. Detenu has filed this writ petition  under Article  32 as  also appeal  by special leave under  Art. 136. Both the appeal and writ petition are being disposed of by this common judgment.      Two contentions  were canvassed on behalf of the detenu : (1)  the date on which the detention order came to be made the detenu  was already  deprived of  his liberty  as he was arrested and  was confined  in jail  and, therefore,  he was already prevented from pursuing any activity which may prove prejudicial to  the maintenance  of public  order, hence  no order of  detention could  be made  against  him;  (ii)  the detaining authority  was not  even aware that the detenu was already in  jail and the order suffers from the vice of non- application of  mind. In  our opinion  both the  grounds are weighty 588 and go  to the  root of  the matter  and would  vitiate  the detention order.      Sub-section (2) of s. 3 of the Act confers power on the Central Government  or the State Government to make an order of detention  with a  view to  preventing  any  person  from acting in  any manner  prejudicial to  the security  of  the State  from   acting  in   any  manner  prejudicial  to  the maintenance of public order, etc. In this case the detaining authority has  made the  order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting  in any manner prejudicial to the maintenance of Public  order.   A  preventive  action  postulates  that  if preventive step  is  not  taken  the  person  sought  to  be prevented may  indulge into  an activity  prejudicial to the maintenance of  public order.  In other  words,  unless  the activity is  interdicted by a preventive detention order the activity which  is being  indulged  into  is  likely  to  be repeated. This  is the  postulate of  the section.  And this indubitably transpires  from the language employed in sub-s. (2) which  says that  the detention order can be made with a view to  preventing the  person sought  to be  detained from acting in  any manner  prejudicial  to  the  maintenance  of public order.  Now, if it is shown that the man sought to be prevented by  a  preventive  order  is  already  effectively prevented, the power under sub-s. (2) of s. 3, if exercised, would imply  that one  who is already prevented is sought to be further  prevented  which  is  not  the  mandate  of  the section,  and   would  appear   tautologous.  An  order  for preventive detention  is made on the subjective satisfaction of the  detaining authority.  The detaining authority before exercising the power of preventive detention would take into consideration the  past conduct or antecedent history of the person and  as a matter of fact it is largely from the prior events showing  the tendencies or inclinations of a man that

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an inference could be drawn whether he is likely even in the future to  act in a manner prejudicial to the maintenance of public  order.   If  the   subjective  satisfaction  of  the detaining authority  leads to  this conclusion it can put an end to the activity by making, a preventive detention order. (see Ujagar  Singh v.  State of  Punjab, and  Jagir Singh v. State of Punjab).(1) Now, if the man is already detained can a detaining  authority be  said to  have  been  subjectively satisfied that  a preventive  detention order  be made  ? In Rameshwar Shaw v. District Magistrate, Burdwan & 589 Anr.(1) this  Court held  that as an abstract proposition of law the  detention order  can be made in respect of a person who is  already detained.  But having  said this,  the Court proceeded to observe as under:           "As an  abstract proposition of law, there may not      be any  doubt that  s. 3  (1) (a) does not preclude the      authority from  passing an order of detention against a      person whilst  he is  in detention  or in jail, but the      relevant facts  in connection  with the  making of  the      order may  differ and that may make a difference in the      application of the principle that a detention order can      be passed  against a person in jail. Take for instance,      a case  where a  person has  been sentenced to rigorous      imprisonment for  ten years.  It  cannot  be  seriously      suggested that  soon after the sentence of imprisonment      is pronounced  on the  person, the  detaining authority      can make  an order  directing the detention of the said      person after he is released from jail at the end of the      period of  the sentence imposed on him. In dealing with      this question,  again the consideration of proximity of      time will  not be  irrelevant. On  the other hand, if a      person who is undergoing imprisonment, for a very short      period, say  for a  month or two or so, and it is known      that he  would soon  be released  from jail,  it may be      possible for  the authority  to consider the antecedent      history of  the said  person  and  decide  whether  the      detention of  the said  person would be necessary after      he is  released from  jail and if the authority is bona      fide satisfied that such detention is necessary, he can      make a  valid order  of detention a few days before the      person is likely to be released. The antecedent history      and the  past conduct  on which  the order of detention      would be  based would,  in such a case, be proximate in      point of time and would have a rational connection with      the  conclusion   drawn  by   the  authority  that  the      detention of the person after his release is necessary.      It may not be easy to discover such rational connection      between the  antecedent history  of the  person who has      been sentenced  to ten  years rigorous imprisonment and      the view  that his detention should be ordered after he      is released  after running  the whole  of his sentence.      Therefore, we are satisfied that the question as 590      to whether  an order of detention can be passed against      a person  who is  in detention  or in jail, will always      have to  be determined  in the  circumstances  of  each      case". One can  envisage a  hypothetical case  where  a  preventive order may  have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it  must be  present to  the  mind  of  the  detaining authority that  keeping in  view the fact that the person is already detained  a  preventive  detention  order  is  still necessary. The  subjective  satisfaction  of  the  detaining

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authority must  comprehend the  very fact  that  the  person sought to  be detained is already in jail or under detention and yet  a  preventive  detention  order  is  a,  compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely  to be  vitiated. But  as stated  by this Court it will depend on the facts and circumstances of each case.      The view herein finds further support from the decision of this  Court in Vijay Kumar v. State of J & K and Ors.,(1) wherein this Court recently held as under :           "Preventive detention  is resorted  to, to  thwart      future action. If the detenu is already in jail charged      with a  serious offence,  he is  thereby prevented from      acting in  a manner  prejudicial to the security of the      State. Maybe, in a given case there yet may be the need      to order  preventive detention  of a  person already in      jail. But  in such  a situation the detaining authority      must disclose  awareness of  the fact  that the  person      against whom  an order of preventive detention is being      made is  to the  knowledge of  the authority already in      jail  and  yet  for  compelling  reasons  a  preventive      detention order  needs to  be made. There is nothing to      indicate the  awareness of the detaining authority that      detenu was  already in  jail and yet the impugned order      is required  to be  made. This, in our opinion, clearly      exhibits non-application  of mind  and would  result in      invalidation of the order."      This leads  us to  the second  limb of  the submission. Conceding that  in a given case a preventive detention order is required 591 to be  made even  against a person who is already in jail or under detention  and that  the detaining authority shows its awareness of the fact situation and yet passes the detention order, the  detention order must show on the face of it that the  detaining   authority  was   aware  of  the  situation. Otherwise the detention order would suffer from vice of non- application of  the mind.  The awareness must be of the fact that the  person against  whom the  detention order is being made is  already under  detention or  in jail  in respect of some offence.  This would  show that  such a person is not a free person  to indulge into a prejudicial activity which is required to  be prevented  by a  detention order.  And  this awareness must  find its place either in the detention order or in  the affidavit  justifying the  detention  order  when challenged. In  the absence  of it, it would appear that the detaining authority  was not  even aware  of this vital fact and mechanically  proceeded to  pass the  order which  would unmistakably indicate that there was non-application of mind to  the  relevant  facts  and  any  order  of  such  serious consequence when  mechanically passed without application of mind is liable to be set aside as invalid.      Turning to  the facts  of this case the detention order refers to  Biru  Mahato  son  of  Mohan  Mahato  of  Village Jamdiha, P.S.  Bagmara, Distt.  Dhanbad. There is not even a whimper of  the detenu  being in jail for nearly three weeks prior to the date on which the detention order was made.      The detenu  is referred  to as  one who is staying at a certain place  and is  a free  person.  Assuming  that  this inference from  the mere  description of  the detenu  in the detention  order   is   impermissible   the   affidavit   is conspicuously silent  on this point. Not a word is said that the detaining  authority was  aware of  the  fact  that  the detenu was  already in  jail and  yet it became a compelling necessity  to  pass  the  detention  order.  Therefore,  the

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subjective satisfaction  arrived at clearly discloses a non- application of  mind to  the relevant facts and the order is vitiated.      Mr. U.P.  Singh, learned  counsel for  the detenu urged that this  Court should  not  take  into  consideration  the affidavit  filed   by  Dr.  J.S.  Brara  on  behalf  of  the respondent. Dr. J. S. Barara, describing himself as District Magistrate, Dhanbad, has made the affidavit as if he was the detaining authority.  When this  statement was challenged on behalf of the detenu, Mr. Goburdhan, learned 592 counsel for  the respondent  went to  the extreme  length of asserting that  Mr. Brara  was the  detaining authority.  At that stage  Mr. U.  P. Singh, learned counsel for the detenu produced the  original order of detention signed by one Shri D. Nand  Kumar as District Magistrate. This was shown to Mr. Goburdhan and  he was  unable to sustain his submission that Mr. Brara  who has  filed the  affidavit was  the  detaining authority. In  fact, at one stage we were inclined to take a very serious  view of the conduct of Mr. Brara in making the affidavit as  if he is the detaining authority. In para 1 he has described  himself  as  District  Magistrate  being  the detaining authority of the petitioner which statement is not borne out  by the  record. He may be the holder of office of District Magistrate. But when the subjective satisfaction of holder of office is put in issue the mere occupant of office cannot arrogate  to substitute  his subjective satisfaction. He may  speak from the record but that is not the case here. Therefore, the  affidavit of Mr. Brara has to be ignored and one must  reach the conclusion that the averment made by the detenu have remained uncontroverted.      For these  reasons we  have quashed  and set  aside the order of detention. S.R.                            Appeal and Petition allowed. 593