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PETITIONER: THE STATE OF RAJASTHAN & ANR.

       Vs.

RESPONDENT: TALIB KHAN & ORS. ETC.

DATE OF JUDGMENT:       24/10/1996

BENCH: K. RAMASWAMY, SUJATA V. MANOHAR, G.B. PATTANAIKWITHCRMINAL APPEAL NOS. 417-18 OF 1987THE STA TE OF RAJASTHAN & ANR.V.BEERYRAM SINGH & ANR.

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Pursuant to  the order  of this  Court dated August 21, 1987 doubting  the correctness  of Ibrahim  Ahmad Batti  vs. State of  Gujarat &  Ors. [(1983)  1 SCR  540 = (1982) 3 SCC 440], the case has been referred to this Bench.      These appeals  by special leave arise from the Division Bench judgment  of the High Court of Rajasthan at Jodhpur in Writ Petition Nos.831/87 and batch.      The facts  are that the respondents were detained under Section 3(1)  of the National Security Act, 1980 (for short, the ‘Act’),  by  proceedings  of  the  District  Magistrate, Jaisalmer   dated   January   7,   1987.   The   exceptional circumstance were  recorded on  January 11,  1987  for  non- supply of  the ground  and  documents  to  the  detenu.  The grounds of  detention with  the material  were  supplied  on January 16,  1987. The  detenu made  his  representation  on January 20,  1987 to the State Government which was rejected on February  2,  1987.  He  made  a  representation  to  the Advisory Board on February 9, 1987 and it was considered and rejected  on   February  19,   1987.  The  State  Government confirmed the  order of  detention on  March 13,  1987 for a period of one year w.e.f January 7, 1987. When the orders of detention were  challenged, primarily on the ground that the exceptional circumstances  and the  reasons recorded  by the District Magistrate were not communicated to the detenu, the order of  detention was  held violative of Article 22(5) and the High  Court by  the impugned  order dated  June 9,  1987 enlarged the respondents from detention. It is not necessary to go  into the  other grounds since the reference is on the correctness of  the view  taken by  a Bench of two Judges of this Court in Batti’s case.      It is  contended by  Shri K.S. Bhatti, Jain Advocate on behalf of the appellant, that after thorough preparation and analysis of facts, the view taken by the High Court and this court in  Batti’s case is no correct in law. The objects and reasons  of   the  Act  disclose  the  gravity  under  which detention could  resorted to. Section 3 and Section 8 of the Act are  to be  read together.  The detaining  authority, if satisfied with  respect to  any person  that with  a view to

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preventing him  from acting in any manner prejudicial to the security of  the State or the maintenance of public order of supplies and  service essential  to  the  community,  it  is necessary so  to do,  may pass an order directing that he be detained. In  case the  order is  not communication  to  the detenu within  five days  as envisaged  in Section 8(1), the detaining authority  is required  to record  reasons for and the exceptional  circumstance under which order could not be communciated to  the detenue,  and to  serve the  grounds of detention within  10 days  from the  date of  the  order  of detention. In  this case  reasons have  been recorded. It is not a  condition that  exceptional circumstances  or reasons need be  supplied to  the detenu  along with  the grounds of detention. The  view taken in Batti’s case is not correct in law.  It  is  contended  by  the  learned  counsel  for  the respondents, Shri  Sushil Kumar  Jain, that the view of this Court in  Batti’s case followed by that of the High Court is correct in  law for  the reasons that under Article 22(5) of the Constitution,  the detenu  is entitled  to  be  supplied with, as  soon as  may be,  the grounds of detention, with a view to  make  representation  against  his  deprivation  of liberty at  the earliest opportunity. Unless the reasons and the exceptional circumstances for non-supply of the order of detention are  communicated to  the detenu  along  with  the grounds of  detention, the detenu would be prevented to make effective   representation   either   to   the   appropriate Government or to the Advisory Board or the court. Therefore, the communication  of exceptional  circumstances or  reasons recorded along  with the  grounds of  detention, is  a  pre- condition. Non-compliance  thereof tantamounts  to violation of Article  22(5) of  the Constitution. The view, therefore, is correct in law.      In view  of the  diverse contentions, the question that arises for  consideration is:  whether the view expressed by this Court  in Batti’s  case is  correct in law? The Act was enacted for  various reasons, viz., the prevailing situation of   communal   disharmony,   social   tensions,   extremist activities, industrial unrest and increasing tendency on the part of  various interested parties to engineer agitation on different issues;  it was  considered necessary that the law and order situation in the country needed to be tackled in a most determined and effective way. The anti-social and anti- national elements including secessionists, communal and pro- caste  elements   and  also  other  elements  who  adversely influence  and   affect  the   services  essential   to  the community, pose  a grave  challenge to  the lawful authority and sometimes even hold the society to ransom. Therefore, in view of  the complexity  and nature  of the problems, it was felt  that   the  defence,   security,  public   order   and maintenance  of   essential  supplies  or  services  to  the community  require   to  be   maintained,  with  a  view  to streamline the  administration in  a determined  way and  to provide  the   teeth  to   effectively  handle  the  nagging aforesaid situation  and to  deal with  such situations, the Act was  enacted. Section 3 is pivotal provision under which the authority has been given to the State to exercise such a power. If  the Central or State Government is satisfied with respect to  any person  that with  a view  to preventing him from acting  in any  manner prejudicial  to the  defence  of India, the  relations of  India with  foreign powers  or the security of India, or if it is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial  to the  security of  the State  or  from acting in any manner prejudical to the maintenance of public order  or   from  acting   in  any   manner  prejudicial  to

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maintenance  of  supplies  and  services  essential  to  the community, it  is necessary  so to  do, it may make an order directing  that   such  person   be  detained.   In  certain circumstance, the  liberty of  the  person  gets  restrained subject to  the protection  given to him under the  Act. The grounds of  detention and  the material  in support thereof, unless the  later touches  the  sensitive  and  confidential evidence/material, must  be supplied  to him,  as  early  as possible,  ordinarily   within  5  days  from  the  date  of detention so  as to enable him to   make a representation to the appropriate  Government etc. What is mandated by Article 22(5) is  that the  detenu must be supplied with the grounds of detention  and material  without undue  delay. Power  has been given  to the  State to  delegate such  a power  to the District Magistrate or the Commissioner of Police under sub- Section (3)  thereof. In this case, the District Magistrate, Jaisalmer had  delegated that power under sub-section (3) of Section  3   of  the   Act  and   exercised  his  subjective satisfaction and  passed the  detention order  under Section 3(2). After  the  detention  order  has  been  made,  it  is mandatory under  Section 8(1)  of  the  Act  to  supply  the grounds of  detention to  the person  affected by the order. Sub-section (1) reads as under:      "(1) when  a person  is detained in      pursuance of a detention order, the      authority making  the order  shall,      as soon  as may  be, but ordinarily      not later  than five  days  and  in      exceptional  circumstance  and  for      reasons to  be recorded in writing,      not later  than ten  days from  the      date of  detention, communicate  to      him the  grounds on which the order      has been  made and shall afford him      the earliest  opportunity of making      a representation  against the order      to the appropriate Government."      A reading  thereof would, therefore, manifest that when a person  is detained  in pursuance  of his detention order, the authority  making the order shall as soon as may be, but ordinarily not  latter than  five days,  and in  exceptional circumstances and for reasons to be recorded in writing, not later  than  ten  days  from  the  date  of  the  detention, communicate to  him the  grounds on which the order has been made and shall afford him the earliest opportunity of making a  representation  against  the  order  to  the  appropriate Government.  Section   8(1)  circumscribe   the  range   and amplitude of  the phase  "earliest opportunity to supply the grounds of  detention" and  sweep of  the phrase "as soon as possible",  i.e.,   ordinarily  within   five  days   an  in exceptional circumstances  within 10  days. It would thus be seen that  the detenu  is entitled  to be  supplied with the grounds on  which the  order of  detention has been made and shall, with  a view to afford him an earliest opportunity of making a representation against the order to the appropriate Government, the  grounds of detention be supplied ordinarily within that  prescribed period.  The period during which the grounds of  detention are  to  be  supplied  has  also  been indicated. The grounds shall be communicated, as soon as may be, i.e.,  ordinarily not  later than  five days,  In  order words, the  five days  limit  has  been  prescribed  by  the statute to supply the grounds of detention to the detenu. If due   to    administrative   exigencies    of    exceptional circumstances, the detaining authority could not communicate the grounds,  it should record reasons for non-supply of the

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grounds within  five days as envisaged in the first part. As to what  are the  exceptional circumstances due to which the grounds of  detention could not be supplied within five days but was  done within  10 days  from the date of detention is always a  question of fact. In A.K. Roy vs. Union of India & Ors. [(1982) 1 SCC 271 = (1983) 1 SCR 540], the Constitution Bench  of   this  Court   was  required   to  consider   the constitutionality of Section 8(1) In that behalf, this Court had held that :      "The objection  of the  petitioners      against the provisions contained in      Section    8(1)    is    that    it      unreasonably allows  the  detaining      authority to furnish the grounds of      detention to  the detenu as late as      five days  and in exceptional cases      ten  days   after   the   date   of      detention. This  argument overlocks      that  the  primary  requirement  of      Section 8(1)  is that the authority      making he  order of detention shall      communicate    the    grounds    of      detention to the detenu "as soon as      may   be".    The   normal    rule,      therefore, is  that  the grounds of      detention must  be communitcated to      the   detenu   without   meet   the      practical       exigencies       of      administrative  affairs   that  the      detaining authority is permitted to      communicate    the    grounds    of      detention not  later than five days      ordinarily, and  not later than ten      days  if   there  are   exceptional      circumstances.  If  there  are  any      such  circumstance,  the  detaining      authority is  required  by  Section      8(1)  to   record  its   reason  in      writing. We  do not think that this      provision   is    open    to    any      objection."      It would  thus be  seen that  the   requirement of  the supply of  the grounds,  as soon  as may  be, indicates that normally the  detenu is entitled to be communicated with the grounds of detention within five days, With a view tide over unavoidable  circumstances   due  to   which  the  detaining authority could  not have the grounds of detention supplied, the statute  engrafted a leverage and directed him to record reasons therefor  in writing  and the  administration should supply the  grounds of  detention, before  the expiry of ten days.  So,   the  delay  should  be  exceptional  and  those exceptional and  those exceptional circumstance are required to  be   recorded   in   writing.   What   are   exceptional circumstances is  always a  question of  fact in  each case. What is  mandatory is the supply of the grounds of detention before expiry of ten days but after the expiry of five days. It is  well settled  legal position that the phrase "as soon as may  be" means within a reasonable dispatch when there is no avoidable  delay. What  is avoidable  delay is  always  a question of fact.      The  question  is  :  whether  the  non-supply  of  the exceptional circumstances  and the reasons recorded for non- supply of the grounds of detention before the expiry of five days but  within the  outer limit of ten days, long with the grounds of  detention, vitiates  the order of detention? The

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Division Bench has taken the view that detenu has a valuable right of  representation against  the order  of detention to the appropriate  Government or  to the Advisor Board. Unless the exceptional circumstances and the reasons for non-supply of the  grounds of  detention and  the documents  in support thereof  or   communicated  to   the  detenu,  by  necessary implication, the  valuable right  of representation  at  the earliest opportunity,  as envisaged under Article 22 (5), is breached.  Thereby,   the  detenu  becomes  entitled  to  be released from  detention. It  could be  seen  that  what  is material and  mandatory is  the communication of the grounds of detention  to  the  detenu  together  with  documents  in support of  subjective satisfaction reached by the detaining authority. When  the representation  has been  made  by  the detenu to  the appropriate  Government or  to  the  Advisory Board, it  may be  one of  the grounds for him to impugn the order of detention that he was not supplied with the grounds within the  time prescribed and thereby he was unjustifiably detained, without  any reasonable justification. When such a ground has  been raised  and pressed  for consideration,  it would be  for    the  detaining  authority  to  satisfy  the appropriate  Government   or  Advisory   Board  or   in   an appropriate case in the proceedings under Article 226 of the Constitution.   The exceptional  circumstances are those due under which  the grounds  and the  documents  could  not  be supplied to  the detenu  and that  the same were recorded in writing in  the record  of the  detaining authority.  If the appropriate Government  or the  Advisory Board  or the Court are   not    satisfied   with   the   recorded   exceptional circumstances due  to which  the grounds  of detention could not be supplied, after five days but before the expiry of 10 days, that  may  be  one  of  the  circumstances  which  the appropriate Government  or Advisory  Board or  the Court may consider whether  the detention  order is  vitiated or is an infraction of  Article 22(5)  of the Constitution. But since the Act  does not  envisage communication of the exceptional circumstances and the reasons recorded for non-supply of the grounds that ground of non-communication or their non-supply by itself  is not  sufficient to  hold  that  the  order  of detention  is   in  violation   of  Article   22(5)  of  the Constitution. The  Division Bench,  therefore, was not right in concluding  that the  detenu has  been  deprived  of  his making a representation at the earliest opportunity for non- supply of  the grounds  of exceptional circumstances and the reasons recorded for non-supply of the grounds of detention. Thus, we  hold that  the view  taken in  Batti’s case is not correct in  law. The  District Magistrate in his proceedings dated January 11, 1987 has recorded as under:      "Officer-in-charge  (judicial)  has      informed that  in the  cases so far      2/3rd Photostat  copies  have  been      prepared  and  in  the  absence  of      copies have  been prepared  and  in      the absence  of copies,  it is  not      possible to  furnish the grounds of      detention to  the detenu before the      expiry of prescribed minimum period      of  five  days.  Since  in  all  35      cases,   about   16,000   photostat      copies are  to be  prepared and the      sets are  also to  be prepared. But      due  to   frequent  Power  failure,      fluctuation;  machine   being   the      private,  its   owner   cannot   be      compelled  to   sit  and  work  for

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    extra-time  difficulty   is   being      faced  in   completing  the   work.      Therefore using  the maximum period      of  10   days  for  furnishing  the      grounds of detention to the detenu,      as provided  under Section  8(1) of      the National  Security  Act,  1980,      the State  Government was  informed      of this decision."      In view of the grounds mentioned therein, we are of the view that   the  District Magistrate  was prevented  due  to those  exceptional   circumstances  as   recorded   in   the proceeding that  the grounds  of detention and the documents in support thereof could no be supplied to the detenu within five days  but the same came to be supplied within ten days, as envisaged in Section 8(1) of the Act. Therefore, the High Court  was   not  justified   in  law   to  hold  that  non- communication of  the ground of exceptional circumstances as reasons recorded  by the  District Magistrate,  vitiate  the order of detention. Since the time for detention of one year has expired  by  efflux  of  time,  we  do  not  propose  to interfere with the order.      The appeals are accordingly allowed.