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PETITIONER: DISTRICT MAGISTRATE, NOWGONG & ANR.

       Vs.

RESPONDENT: SARAT MUDOI

DATE OF JUDGMENT14/09/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR   43            1983 SCR  (3) 957  1984 SCC  (1)  25        1983 SCALE  (2)302

ACT:      National Security  Act, 1980-Section  3(2) read with s. 3(3)-Detention order  not containing particulars of which of the specified supplies and services-affected-Valid.

HEADNOTE:      The respondent  challenged the  order of  his detention under the National Security Act on the ground that since the detaining  authority   did  not  specify  in  the  order  of detention as  to which  particular supplies  and services he had in  mind while  making it,  the order  of detention  was vitiated. The  High Court  set aside the order of detention. In appeal  it was  submitted that it would be impossible for the detaining  authority to  specify any  of the 16 items of services and supplies included in the notification in regard to the future conduct of the detenu.      Allowing the appeal, ^      HELD: Under  the Act  the detenu  is entitled to make a representation  against   the  order  of  detention.  It  is manifest  from  the  statutory  scheme  that  his  right  to represent is after the grounds are served on the detenu. The right of  the detenu  to make  a  representation  should  be without fetters  and as  wide as possible. Since the citizen is detained  without trial  and on the basis of satisfaction of a  notified authority  the  right  to  represent  assumes importance. The detenu would be in a position to effectively represent only when specific particulars are provided to him and the  grounds are  intended to  provide that  material to him. A  full disclosure  made in the grounds of detention in no way prejudices the right guaranteed to the detenu to make an  effective   representation  challenging  his  detention. Therefore, non-specification  of the required particulars in the order  of detention  would not vitiate the order as long as the particulars are provided in the grounds in support of the order  of detention  which in  quick succession  of  the detention order are served on the detenu.           [960 B-E]      It is  open to  the detaining authority to take note of the past  conduct of  a detenu.  If past conduct confined to any or  all of  the 16  items in  the notification  could be satisfied, the  detaining authority  could also on the basis

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of reasonable  apprehension of repetition of such conduct in future make  an order  of detention for its prevention. [960 H; 961 A]      Debu Mahto  v. State  of West  Bengal, AIR 1974 SC 816, referred to. 958

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 468 of 1983.      Appeal by  Special leave  from the  Judgment and  Order dated the  2nd February,  1983 of  the Gauhati High Court in Civil Rule (HC) No. 4/83.      M.M. Abdul Khader and S.K. Nandy for the Appellants.      V.M. Tarkunde  and Mrs.  Manik Karanjawala with him for the Respondent.      The Judgment of the Court was delivered by      RANGANATH  MISRA,  J.  The  detaining  authority  under section 3  (2) read  with s.  3 (3) of the National Security Act, 1980 (’Act’ for short) being the District Magistrate of Nowgong and  the State  of Assam  assail the decision of the High Court at Gauhati quashing the order of detention.      On October  20, 1982,  the District Magistrate made the following order:           "Whereas I am satisfied from the dossier submitted      by  Superintendent   of  Police,  Nowgong  that  it  is      necessary to  prevent Shri  Sarat Mudoi  s/o Shri  Renu      Mudoi, village  Senchows, P.S.  Nowgong from  acting in      any manner  prejudicial to  maintenance of public order      and maintenance  of supplies  and services essential to      the  community,   I.  S.   Kablian,  I.A.S.,   District      Magistrate,  Nowgong,  hereby  in  exercise  of  powers      conferred under  section 3  (2) read with section 3 (3)      of National  Security Act, 1980, direct that Shri Sarat      Mudoi be  detained with  immediate effect until further      orders".      In the  grounds of detention which were supplied to the detenu within  the time  provided by  law, six  grounds were specified. Before  the High  Court several  contentions were raised including the one to the effect that if the detaining authority does  not specify  in the order of detention as to which particular  supply and/or service he had in mind while making it, the order of detention is vitiated. After hearing counsel  for  the  parties,  the  High  Court  came  to  the conclusion: 959           "We are  of the  view that  as while  passing  the      order of  detention the  authority has  to specify  the      particular prejudicial activity whose prevention he has      in mind,  so also he must specify the particular supply      and  service   which  according   to   him   is   being      prejudicially affected by the activities of the detenu.      The notified  categories of  supplies and services thus      really get  as if  implanted in the Act and an order of      detention on  this score  must have reference to one or      more specified  supplies and  services forming  part of      notified categories.  Any other  view would also pose a      possibility of abuse of power as a result of absence of      full application of mind." and set aside the order of detention.      At the  stage of  notice on  the special leave petition this Court on March 10, 1983, made the following order:           "Issue notice  to the respondent returnable within

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    a week confined to the question as to whether according      to the  ratio laid  down by  this Court  in A.K. Roy v.      Union of  India (AIR  1982 SC  710), it is necessary to      specify in the order of detention itself the particular      supplies and  services essential to the community which      are affected by the activities of the detenu or will it      suffice  if   it  is   mentioned  in  the  grounds  for      detention".      On behalf of the State this Court was told that even if the appeal was allowed, the respondent would not be detained for the unexpired portion of the period.      The short  question that  survives  for  consideration, therefore, is  whether without  the particulars  of supplies and services specified in the order of detention, it is bad. In A.K. Roy’s case and the connected matters this Court took the view  that no person could be detained under s. 3 (2) of the Act  with a  view to  preventing him  from acting in any manner  prejudicial  to  the  maintenance  of  supplies  and services essential  to the  community unless  by  a  law  or notification  made   or  published  fairly  in  advance  the supplies and  services the  maintenance of which is regarded as essential  to the  community and  in respect of which the order of  detention is  proposed to be passed are made known properly to the public. Accordingly, 960 by a  notification on  February 8,1982,16 specified supplies and services were notified as essential to the community and this notification  was duly  published  in  the  Gazette  of India, Extra-ordinary  issue of  the same day. Under the Act the detenu  is entitled to make a representation against the order of detention. It is manifest from the statutory scheme that his  right to represent is after the grounds are served on the  detenu. It is the pronounced view of this Court that such  right  should  be  without  fetters  and  as  wide  as possible. Since the citizen is detained without trial and on the basis  of satisfaction of a notified authority the right to represent  assumes importance.  The detenu  would be in a position  to   effectively  represent   only  when  specific particulars are provided to him and the grounds are intended to provide  that material  to him. Mr. Tarkunde who appeared amicus curiae  fairly agreed  that it  is not necessary that the specification should be in the order of detention and it would be  adequate to enable the detenu to make an effective representation  if  the  particulars  are  provided  in  the grounds of  detention. We are inclined to take the view that a full  disclosure made  in the grounds in no way prejudices the right  guaranteed to  the detenu  to make  an  effective representation challenging  his detention.  Therefore,  non- specification of  the required  particulars in  the order of detention would  not  vitiate  the  order  as  long  as  the particulars are  provided in  the grounds  in support of the order  of   detention  which  in  quick  succession  of  the detention order  are served  on the  detenu. Counsel for the appellants argued  that while  it would  be possible for the particulars to be provided with reference to past conduct it would be  difficult to  specify  any  of  the  16  items  of services and supplies included in the notification in regard to future  conduct of  the detenu and, therefore, to require the detaining  authority to  so specify  would be asking for the performance of something impossible.      In view  of the  limited question  on which  notice was issued,   this   aspect   strictly   does   not   fall   for consideration. We also do not find any merit in this stand.      It was pointed out by this Court in Debu Mahto v. State of West Bengal(1), that the basis for an order of preventive

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detention  is   the  reasonable   prognosis  of  the  future behaviour of  the person  based upon his past conduct. It is open to  the detaining  authority to  take note  of the past conduct of a detenu and apprehending repetition of 961 such conduct  in future  an order  of detention  can be made with a  view to  preventing such  action.  If  past  conduct confined to  any or  all of  the 16  of  the  items  in  the notification could  be satisfied,  the  detaining  authority could also  on  the  basis  of  reasonable  apprehension  of repetition of  such conduct  in  future  make  an  order  of detention for  its prevention.  We do  not  propose  to  say anything more  in view  of the  short question  to which the notice was  confined. We  are thankful  to Mr.  Tarkude  for assisting us at the hearing as amicus curiae.      This disposes of the appeal. H.S.K.                                       Appeal allowed. 962