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PETITIONER: RAJ KUMAR SINGH

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT26/09/1986

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

CITATION:  1986 AIR 2173            1986 SCR  (3) 933  1986 SCC  (4) 407        JT 1986   555  1986 SCALE  (2)541  CITATOR INFO :  RF         1987 SC2098  (7)  R          1988 SC1256  (12)  RF         1989 SC2265  (18)  RF         1990 SC 231  (10)

ACT:      Bihar Control  of  Crimes  Act,  1981-  section  12(2)- Detention order-Valid of.

HEADNOTE:      The Bihar  Control of  Crimes Act,  1981 was enacted to make special  provisions for  the control and suppression of anti-social elements  with a  view to  maintenance of public order. Section  2(d) defines "Anti-Social Element" and s. 12 deals with  power  to  make  orders  for  detaining  certain persons.      Upon the  materials, the  District Magistrate,  hl  his order of  detention under  s. 12(2)  has stated  that he was satisfied that the petitioner was an anti-social element and was habitually committing offences punishable under Chapters XVI and  XVII of  the Indian  Penal Code  and  as  such  his movements and  acts adversely affected the public order. The incidents referred  to in  the grounds  of detention showing criminal propensity  of the  petitioner had  taken place one year prior to the date of passing of the detention order.      The petitioner  unsuccessfully challenged his detention before the High Court.      Dismissing the  writ petition  as well  as the  appeal, this Court, ^      HELD: 1.  Preventive Detention for social protection of the community  is a  hard law but, it is a necessary evil in the modern  society and  must be pragmatically construed, so that it  works. That  is how law serves the society but does not become  an impotent agent. Anti-social elements creating havoc have  to be  taken care  of by  law. Lawless multitude bring democracy  and Constitution  into disrepute. Bad facts bring hard  laws-but these  should be  properly and  legally applied. It should be so construed that it does not endanger social defence  or the defence of the community, at the same time does  not infringe  the liberties  of the  citizens . A

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balance should always be struck. [920B-D] 914      2. The  executive authority  is not  the sole  judge of what is required for national security or public order. But, the court  cannot substitute  its decision  if the executive authority  or  the  appropriate  authority  acts  on  proper materials  and  reasonably  and  rationally  comes  to  that conclusion even  though a  conclusion with  which the  court might not  be in  agreement. It  is not for the court to put itself in  the position  of the  detaining authority  and to satisfy itself  that untested  facts reveal  a path of crime provided these facts are relevant. [920E-F]      3. If,  in the  background of a case, and having regard to the definition of ’anti-social element’ in s. 2(d) of the Bihar Control  of Crimes Act, 1981, an appropriate authority charged with  the implementation  of the  Act, comes  to the satisfaction that  the  detenu  is  one  who  is  habitually committing or  abetting the  commission of  offences, such a conclusion is neither irrational nor unreasonable. [919C-D]      4. In  the instant  case, it  cannot be  said that  the power of  preventive detention  has been  used to  clip  the ’wings of  the accused’  who  was  involved  in  a  criminal prosecution. The  fact that  the petitioner  was in jail has been taken into consideration and all the relevant documents were in  fact  supplied  to  him.  Judged  by  all  relevant standards the order of detention cannot be said to be either illegal or beyond the authority of law. Therefore, there was no ground  for interference  with the  order of l detention. [920H; 921A-G]      5. While  adequacy or  sufficiency is  no ground  of  a challenge, relevancy  or proximity  are grounds of challenge and proximity  would  be  relevant  in  order  to  determine whether an order of detention was arrived at irrationally or unreasonably. [919G-H]      Vijay Narain  Singh v.  State of Bihar & Ors., [1984] 3 SCR 435  and The  Barium Chemicals  Ltd.  and  Anr.  v.  The Company Law  Board  and  others,  [1366]  (Supp.)  SCR  311, followed.      Ichchu Devi Choraria v. Union of India & Ors., [1981] 1 SCR 640  at 651, Ibrahim Ahmed Batti v. State of Gujarat and others, [1983]  1 SCR  540 at  558 and  State of  Punjab  v. Jagdev Singh Talwandi, [1984] 2 SCR at 62 & 63 inapplicable.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 353 of 1986 915      From the  Judgment and  order dated  25.2.1986  of  the Patna High Court in C.W.J.C. No. 227 of 1985.      R.K. Garg and Miss Rani Jethmalani for the Petitioner.      D. Goburdhan for the Respondents.      The Judgment of the Court was delivered by      SABYASACHI  MUKHARJI,  J.  This  Appeal  and  the  Writ Petition  challenge   the  order   passed  by  the  District Magistrate, Dhanbad under section 12(2) of The Bihar Control of Crimes Act, 1981 (hereinafter called the said ’Act’). The order was passed on 15th January, 1985 and was served on the petitioner on  7th December,  1985. The  impugned order  was approved by the Government on 15th January, 1985.      The said  Act was an Act to make special provisions for the control  and suppression  of anti-social elements with a view to  maintenance of  public order. Section 12 deals with power to  make orders  for detaining  persons, Clause (d) of

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section 2  of the said Act states "Anti-Social Element’ as a person who is:           (i) either  by himself or as a member of or leader           of a  gang, habitually  commits,  or  attempts  to           commit  or   abets  the  commission  of  offences,           punishable under  Chapter XVI  or Chapter  XVII of           the Indian Penal Code; or           (ii) habitually commits or abets the commission of           offences under  the Suppression of Immoral Traffic           in Women and Girls Act, 1956; or           (iii)  who  by  words  or  otherwise  promotes  or           attempts to  promote on grounds of religion, race,           language caste  or community  or any other grounds           whatsoever, feelings  of enmity  of hatred between           different religions,  racial or language groups of           castes or communities; or           (iv) has  been found  habitually passing  indecent           remarks to, or teasing women or girls; or           (v) who  has been  convicted of  an offence  under           Section 25,  26,27, 28  or 29  of the  Arms Act of           1959. 916      Under section  3, the  power is  thereof externment  on certain conditions. Sub-sections(1) and (2) of section 12 of the said Act provides as follows:           "12.  Power   to  make  orders  detaining  certain           persons-(l) The  State Government may if satisfied           with respect  to any  person that  with a  view to           preventing  him   from  acting   in   any   manner           prejudicial to the maintenance of public order and           there is  reason to  fear that  the activities  of           anti-social  elements   can   not   be   prevented           otherwise than  by the  immediate arrest  of  such           person, make  an order  directing that  such anti-           social element be detained.           (2)  If,   having  regard   to  the  circumstances           prevailing or likely to prevail in any area within           the local limits of the jurisdiction of a District           Magistrate, the State Government is satisfied that           it is  necessary so  to do,  it may by an order in           writing direct,  that during such period as may be           specified in  the order,  such District Magistrate           may also,  if satisfied as provided in sub-section           (1) exercise  the power conferred upon by the said           sub-section:           Provided that  the period  specified in  an  order           made by  the  State  Government  under  this  sub-           section shall  not, in  the first  instance exceed           three months,  but the  State Government  may,  if           satisfied as  aforesaid that it is necessary so to           do, amend  such order  to extend  such period from           time to  time by  any period  not exceeding  three           months at any one time."      The other  provisions are  not material for the present purpose. In  so far  as these  are relevant  have been dealt with in the judgment under appeal and it is not necessary to reiterate these again.      The  High  Court  in  the  judgment  under  appeal  has referred to the order of detention exhaustively.      The High  Court has  narrated the facts in the judgment under appeal and stated as follows:           "On 11.3.84  on a  confidential information a raid           was organised under the leadership of the officer-           in-charge of 917

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         Dhanbad  Police   Station  to  apprehend  one  Sri           Raghunath  Singh   an  absconder   detenu  of  the           National   Security    Act.   According   to   the           confidential information he was going to witness a           Qwali programme at Sijua gate within Jagota Police           station. As  soon as the raiding party reached the           Sijua gate  they  saw  that  Raghunath  Singh  was           coming out  of club  and was  going towards  Sijua           More. The  police cordoned  him and told him about           his arrest  under the  National Security  Act.  On           this the aforementioned Raghunath Singh called one           Sakaldeo  Singh   who  was   coming  towards   him           alongwith  his  associates  duly  armed.  Sakaldeo           Singh immediately  reached the  spot and asked the           detenu and  his other  associates to open fire. As           ordered the  detenu  opened  fire  on  the  police           party. The  police party, however, escaped injury.           Meanwhile Raghunath  Singh took  the position  and           opened fire  from his  revolver which hit the S.I.           Sri. R.  K. Verma,  a member  of the raiding party           who fell  on the  ground. The  police  party  also           opened fire  but the  detenu and  his  associates,           quite in number, under the coverage of firing fled           away by  breaking the  cordon of the police party.           The incident  took place  at about  1.50  a.m.  in           presence of a large gathering which was witnessing           the Qwali  programme. This created great panic and           alarm amongst  the people  who were witnessing the           programme and  they  started  running  helter  and           skelter for  their  lives.  A  complete  confusion           prevailed in  the programme  and the  police had a           hard time to control the situation. This adversely           affected the public order. The people were so much           afraid that  they stopped  moving  freely  in  the           area. It is alleged that the detenu is a terror in           the area and nobody dares to speak against him. He           is an  uncrowned king  of the  Mafia World and the           people living  in the  area are under the constant           threat of  life and property. A case bearing Jogta           P.S. Case  No.  22  dated  11.3.84  under  section           142/149/307/  326/353/333/224/225  I.P.C./27  Arms           Act was  registered for  this incident and charge-           sheet had  already been  submitted  in  the  case.           Besides the  aforesaid ground  two cases have been           referred  to   in  the   order  of   detention  as           background to show the criminality of the detenu:           1. Kenduadih  P.S. Case No. 43 dated 11.3.83 under           section  302/34   I.P.C./25(1A)/27  of   the  Arms           Act/3/5 of the 918           Explosive Substance  Act. In  this case the detenu           with his  associates is  alleged to  have murdered           one Sri  Nagendra Singh  in broad  day light and a           charge-sheet  in   this  case   had  already  been           submitted.           2. The  other case  referred to as a background is           that numbered  as Kenduadih P.S. Case No. 31 dated           11.3.84 under  section 25(1A)/35 Arms Act. In this           case a  DBBL gun  looted in  Keswar P.S.  Case No.           5/84 under  section 395  of the  Indian Penal Code           was recovered  from  the  detenu’s  house  besides           cartridges of various Arms. A charge-sheet in this           case had also been submitted."      Upon these  materials, the  District Magistrate, in his order of  detention, has  reiterated that  he was  satisfied

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that the petitioner is an anti-social element and habitually commits offences  punishable under  Chapters XVI and XVII of the Indian  Penal Code  and as  such his  movements and acts adversely affect the public order.      The District  Magistrate further  stated  that  he  was satisfied on ground No. 1 referred to hereinbefore.      In so  far as  Jogta P.S.  Case No. 22 dated 11.3.84 is concerned, it  was with  regard to  the same  incident which resulted in  the detention  of the  petitioner/appellant. So far as  the background  was concerned,  the incident  No.  2 mentioned therein  was Kunduadih  P.S.  Case  No.  31  dated 11.3.84 with  regard to  the same date i.e. 11.3.84 but with regard to  a different  occurrence. In  that case  a gun was looted and  a case under I.P.C. was instituted under section 395 of  the Indian  Penal Code.  Said gun was recovered from the  petitioner’s/appellant’s  house  beside  cartridges  of various arms  and a  charge-sheet had  been  submit  ted  in connection with  Jogta P.S. Case No. 22 dated 11;3.84. These cases were  pending at  the relevant  date. Therefore, there was no  question of  the acquittal  or  termination  of  the petitioner one  way or  the other  in respect  of  both  the incidents of  the same  date. In  respect of  Incident No. 1 referred to  hereinbefore i.e.  Kenduadih P.S.  Case No.  43 dated 11.3.84  under section  302/34  I.P.C./25(1A)/27  Arms Act/3/5 Explosive  Substance Act  in which  the  petitioner/ appellant and  his associates  are alleged  to have murdered Sri Nagendra  Singh in  the broad  day light, a charge-sheet had been  submitted but  the case  had  not  been  tried  or terminated in  any manner.  All  these  cases  were  pending disposal. 919      There is  a proximity between these incidents betraying a nature and a tendency of committing these offences. But it cannot be  denied that  these indicate, in the facts of this case, that  the petitioner/appellant  was one who habitually committed offences  which  are  at  least  punishable  under I.P.C.      We have  noted who  is an anti-social element under the Act. The  petitioner/appellant has  not yet  been  convicted under any of these sections referred to hereinbefore. So far as the  incidents referred  to hereinbefore  betray criminal propensity. The  first incident  is of  a case which was one year prior  to the date of the detention order and the other incident was  of the  same date.  If in  this background, an appropriate authority charged with the implementation of the Act comes  to the satisfaction that the petitioner/appellant is  one   who  is  habitually  committing  or  abetting  the commission  of   offences,  such  a  conclusion  is  neither irrational nor unreasonable.      In Vijay  Narain Singh v. State of Bihar & Ors., [1984] 3 SCR 435, this Act came up for consideration by this Court. But in  that case the facts were entirely different. In that case the  petitioner was  facing trial  for  offences  under section 302  read with  section 120B,  386 and  511  of  the Indian Penal  Code and was allowed to be enlarged on bail by the High  Court. But  before the  petitioner was released in that case  the District  Magistrate passed  an order on 16th August, 1983  under  section  12(2)  of  the  said  Act  for detention  of  the  petitioner.  The  grounds  of  detention supplied to  the petitioner  related to  the incidents which took place  in 1975 and 1982. There is a gap of 6-7 years in between the  majority of  the judges  in that  decision  (O. Chinnappa Reddy  and E.S.  Venkataramiah, JJ)  observed that the law  of preventive  detention is  hard law and therefore should be  strictly, construed.  Care should,  therefore, be

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taken that liberty of a person is not jeopardized unless his case fell  squarely within  the four corners of the relevant law. A.P. Sen, J.  disagreed. It is not necessary to discuss the decision in detail in view of the facts of that case and difference of the facts in this case. We only reiterate that what the  majority of the learned judges said was that while adequacy or  sufficiency was no ground of a challenge, rele- vancy  or  proximity  were  grounds  of  challenge.  We  may respectfully add  that proximity  would be relevant in order to determine  whether an  order of  detention was arrived at irrationally or  unreasonably. It  is well-settled  that the detaining authority  is not  the sole judge of what national security or  public order requires. But neither is the court the sole  judge of  the position.  When power is given to an authority to act 920 on certain  facts and  if that  authority acts  on  relevant facts and arrives at a decision which cannot be described as either irrational  or unreasonable,  in the  sense  that  no person instructed  in law  could have  reasonably taken that view, then  the order  is  not  bad  and  the  Court  cannot substitute its decision or opinion, in place of the decision of the  authority concerned  on the necessity of passing the order. See in this connection the observations of The Barium Chemicals Ltd. and Anr. v. The Company Law Board and others, [1966] Suppl. SCR 311.      Preventive detention  for the  social protection of the community is,  as noted and observed in Vijay Narain Singh’s case (supra),  a hard law but, it is a necessary evil in the modern society  and must be pragmatically construed, so that it works.  That is  how law  serves the society but does not become an  impotent  agent.  Anti-social  elements  creating havoc have  to be  taken care  of by  law. Lawless multitude bring democracy  and constitution  into disrepute. Bad facts bring hard  laws-hut these  should be  properly and  legally applied. It should be so construed that it does not endanger social defence  or the defence of the community, at the same time does  not infringe  the liberties  of the  citizens.  A balance should always be struck.      The executive  authority is  not the sole judge of what is required  for national  security or public order. But the court  cannot  substitute  its  decision  if  the  executive authority  or  the  appropriate  authority  acts  on  proper materials  and  reasonably  and  rationally  comes  to  that conclusion even  though a  conclusion with  which the  court might not  be in  agreement. It  is not for the court to put itself in  the position  of the  detaining authority  and to satisfy itself  that untested  facts reveal  a path of crime provided these  facts are  relevant. See  in this connection the observations  of O.  Chinnappa Reddy, J. in Vijay Narain Singh’s case (supra) at Pages 440 and 441.      In the  facts of  this case  and having  regard to  the nature of the offences, the impugned order cannot be said to be invalid  and  improper  one.  The  High  Court  has  very exhaustively dealt  with this  aspect  and  we  respectfully agree with the High Court’s view.      There is  no analogy  between the  instant case and the facts of  Vijay Narain  Singh’s case (supra) decided by this Court.      On materials  on record  it cannot  be said as the High Court has  rightly pointed  out that the power of preventive detention has been 921 used to clip the ’wings of the accused’ who is involved in a criminal prosecution. Certain allegations had been made that

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all materials  had not been supplied to the accused. This is not true  because as  the High Court noted that all relevant F.I.Rs were  received by the petitioner and in token whereof he had put his signature in black and white in his own hand.      The fact that the petitioner was in jail has been taken into consideration.  How these  factors and  to what  extent these should be taken into consideration have been discussed by this  Court in  Writ Petition  (Criminal) No. 296 of 1986 (With SLP  (Criminal) No. 1265 of 1986). It is not necessary to reiterate  them. In  the instant case the limits have not been transgressed.      In the  background of  the facts  of this case that all the relevant  documents were  in fact  supplied and no other document was  asked for,  the observations  of this Court in Ichchu Devi  Chorana v.  Union of India & Ors., [1981] 1 SCR 640 at  651 on  which reliance  was placed  by Mr.  Garg  on behalf of the petitioner/appellant do not apply.      Mr. Goberdhan, on behalf of the State of Bihar, rightly pointed out that in the facts and circumstances of this case and the  background of  the scheme of this Act, there was no scope of  the application  of the  principles reiterated  by this Court  in Ibrahim  Ahmed Batti  v. State of Gujarat and others, [1983]  1 SCR 540 at 558. Similarly the observations of this  Court in  State of  Punjab v. Jagdev Singh Talwandi [1984] 2  SCR 50  at 62 & 63, upon which Mr. Garg relied can have  no   application.  All  the  relevant  documents  were supplied. All the statutory safeguards were complied with.      In  view   of  the   backgrounds  in   the  facts   and circumstances of  this case and the grounds mentioned in the affidavit of  the District  Magistrate filed before the High Court in  the case  under appeal as well as in Writ Petition in this  Court and  the facts  found by the High Court which are based  on cogent  and reliable  evidence,  there  is  no ground for interference with the order of detention.      Preventive detention as reiterated is hard law and must be applied with circumspection rationally, reasonably and on relevant materials.  Hard and ugly facts make application of harsh laws imperative. The detenu’s rights and privileges as a free man should not be unnecessarily curbed. 922      No other  points were  urged before  us. This Court has reiterated in  Writ Petition (Criminal) No. 296 of 1986 with SLP (Criminal)  No. 1265  of 1986 the relevant aspect of the preventive detention  law. In  that view of the matter it is not necessary to reiterate those principles again here.      Preventive detention  is a necessary evil in the modern restless society.  But simply  because it  is  an  evil,  it cannot be  so  interpreted  as  to  be  inoperative  in  any practical manner.  Judged by  all  relevant  standards,  the impugned order  of detention  in the  case of the petitioner cannot be  said to be either illegal or beyond the authority of law.      Before we conclude we must point out that another point was taken  that in  the order  there was  no mention  of the period of  detention.  There  could  not  be  an  indefinite detention. The  State Government  has clearly  notified  the period of  detention of the petitioner and indicated that he should be in detention till 6th December, 1986. This appears at Annexure  I at  page 52  of the  Paper Book  of  Criminal Appeal No.  353 of  1986. The  said order  was passed  under section 22 of the said Act by the State Government.      In  the   premises  the  Writ  Petition  fails  and  is dismissed. The Criminal Appeal is also dismissed. A.P.J.                        Petition and Appeal dismissed. 923

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