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PETITIONER: VASHISHT NARAIN KARWARIA

       Vs.

RESPONDENT: STATE OF U.P. AND ANR.

DATE OF JUDGMENT28/03/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1272            1990 SCR  (2) 212  1990 SCC  (2) 629        JT 1990 (1)   566  1990 SCALE  (1)604

ACT:     National  Security Act, 1980: Section 3(3), 5A:  Preven- tive  Detention--subjective satisfaction--Copies  of  police reports?  alleging  that detenu is a hardened  criminal  and habitual  offender  against  whom many  criminal  cases  are registered, placed before the detaining authority while only one  criminal case  was registered against the  detenu--Held Detention  order is vitiated for taking  into  consideration extraneous material.     Constitution  of India, 1950: Article  22(5)--Preventive Detention --Detention order--Grounds and documents  communi- cated  to  detenu  --No details  or  particulars  .furnished supporting allegations--Whether deprival of making an effec- tive and purposeful representation.

HEADNOTE:     The  petitioner was detained under section 3(3)  of  the National  Security Act, 1980, under an order passed  by  the detaining  authority  after consideration of  the  documents placed  before it by the sponsoring authority alleging  that the  detenu  was a hardened criminal and  habitual  offender against  whom  many  cases were  registered.  The  documents placed  before the detaining authority were also  served  on the detenu along with the ground of detention.     The appellant filed a writ of Habeas Corpus in the  High Court  challenging the validity of the detention  which  was dismissed.  Hence  this appeal. The appellant also  filed  a writ  petition in this Court challenging his  detention.  In this appeal it was contended on behalf of the appellant that the detaining authority had acted on irrelevant and extrane- ous  matters therefore the detention order is liable  to  be quashed.  On behalf of the respondent it was contended  that the  order of detention was not invalid merely because  some extraneous  materials were placed before the  detaining  au- thority  since the impugned order could be sustained on  the material set out in the grounds of the detention itself. Allowing  the appeal and disposing the Writ  Petition,  this Court, 213     HELD: 1. The averments made in the documents, the copies of  which are furnished to the detenu along with grounds  of

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detention  unequivocally  and  clearly spell  out  that  the detenu  is  a  hardened criminal, having a  gang  under  his control often committing heinous crimes, that many cases are against the detenu are registered in various police stations and  that he is in the habit of committing  offences.  These averments which are extraneous touching the character of the detenu  though not referred to in the grounds of  detention, might have influenced the mind of the detaining authority to some  extent  one way or other in  reaching  the  subjective satisfaction to take the decision of directing the detention of  detenu. Had these extraneous materials not  been  placed before  the detaining authority, he might or might not  have passed this order. Therefore the detention order is  suffer- ing  from the vice of consideration of extraneous  materials vitiating  the  validity of the order.  detention  order  is therefore quashed. [217B-E]     Ram  Krishna  Paul v. The Government Of  West  Bengal  & Ors.,  [1972]  1 SCC 570; Smt. Pushpa v. Union  of  India  & Ors., [1980] Supp. SCC 391; Merugu Satyanarayana v. State of A.P.  & Ors., [1982] 3 SCC 301 and Mehboob Khan  Nawab  Khan Pathan  v. Police Commissioner, Ahmedabad & Anr.,  [1989]  3 SCC 568; followed.     2. Section 5A provides that where there are two or  more grounds  covering  various activities of  the  detenu,  each activity  is a separate ground by itself and if one  of  the grounds is vague, non-existent, not relevant, not  connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate  the order  of detention. In the instant case the impugned  order has  not been made on two or more grounds  covering  various activities  of the detenu. but has been passed on  the  sole ground  relatable to a single incident. The  conclusion  ar- rived at is only on the basis that the extraneous  materials placed before the detaining authority might have  influenced the  mind of the detaining authority, but not on the  ground that  one of the grounds of the detention order  has  become invalid or inoperative for the reasons mentioned in  Section 5(A)(a). Therefore the submission that the factual  material set out in the grounds of detention alone led to the passing of  the  order  with a view to preventing  the  detenu  from acting in any manner prejudicial to the public order is  not correct. [218B-D]     Prakash  Chandra  Mehta v.  Commissioner  and  Secretary Government  of Kerala & Ors., [1985] Supp. SCC 144;  distin- guished.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 219 of 1990. 214                    WITH Writ Petition (Crl.) No. 92 of 1990.     From  the  Judgment and Order dated  12.12.1989  of  the Allahabad  High  Court in Habeas Corpus W.P.  No.  13644  of 1989.     A.  Jaitley,  Additional Solicitor General,  R.K.  Jain, Yogeshwar  Prasad, Gaurav Jain, Abha Jain, D. Bhandari,  Ms. A. Subhashini and R.B. Misra for the Appearing Parties. The Judgment of the Court was delivered by     S.  RATNAVEL  PANDIAN, J. Leave granted in  the  Special Leave Petition.     This  appeal  is against the judgment  and  order  dated 12.12.89 in Habeas Corpus Writ Petition No. 13644/89  passed

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by the High Court at Allahabad dismissing the writ  petition filed by the appellant, Vashisht Narain Karwaria, the detenu herein.     The  District  Magistrate,  Allahabad,  in  exercise  of powers  conferred on him under Section 3(3) of the  National Security Act 1980 (hereinafter referred to as ’Act’)  passed the  impugned  order  of detention on  31.3.88  against  the detenu on reaching his requisite subjective satisfaction  on consideration of the materials placed before him that it had become necessary to pass the detention order with a view  to preventing the detenu from acting in any manner  prejudicial to the maintenance of public order.   The  salient  and material facts  which  necessitated  the detaining  authority to pass the impugned order, as set  out in the grounds of detention are as follows:     On  30.3.1988 at about 3.30 P.M. the auction  of  liquor shops for the sale of Indian made foreign liquor was held in the  campus of Collectorate at Allahabad. A large number  of bidders were present. Among them, the detenu along with  his three other associates also participated in the auction.  At about  3.30 P.M. the auction of the liquor shop  within  the area  of Mooratganj took place. For this shop the first  bid was  from one Ajai Kumar for Rs. one lakh. The next bid  for the  same  shop was of Chedi Lal for Rs. one  lakh  and  ten thousand.  The moment the said two persons made  their  bid, the  detenu  along  with his associates  stood  UP  in  ,the ,presence  of all prospective bidders and told  Ajai  Kumar, Chedi  Lal and others that the above said shop  fell  within his area and, therefore, if anybody dared to bid the shop in the  auction he Would shoot him and also the entire  members of his 215 family.  So  saying  the detenu along  with  his  associates advanced  towards Ajai Kumar and Chedi Lal threatening  them with dire consequences. This created terror and panic  among all  the bidders. As the situation was becoming worse,  Shri Rana  Pratap Singh, Station House Officer along  with  other police officials advanced towards the detenu and his associ- ates  to apprehend them. On seeing the police party  advanc- ing,  the detenu fired at the police party with his  country made  pistol.  Fortunately, no body was  hurt.  The  detenu, however,  escaped on being chased by the police  party.  The detenu  fired  another  two shots and hurled  bombs  on  the police  party  while fleeing away. His repeated  firing  and explosion  of  bombs created further panic  and  the  people assembled  for bidding the auction started running away  and the  nearby shopkeepers pulled down their shutters of  their shops. The vehicles parked there fled away. Thus the  public order  was  completely disrupted. In  connection  with  this incident,  a case was registered in crime No. 221/88 in  the Colenolganj  Police  Station under Section 307  and  506  of Indian Penal Code. The case is still under investigation.     On the basis of the above material the detaining author- ity  on being satisfied that there was apprehension of  com- mission of act of violence at the hands of the detenu, which would  be  prejudicial to the maintenance of  public  order, passed  this  impugned order and directed the detenu  to  be kept under detention.     Admittedly,  along with his ground of detention 4  docu- ments  were enclosed and served on the detenu.  Those  docu- ments are: (1) Report of S.S.P. Allahabad dated 31.3. 1988. (2) Report of the S.H.O. Colenolganj Police Station. (3)  Copy Chik No.199, Crime No. 221 of 1988  under  Section 307/506 I.P.C. in Colenolganj Police Station, Allahabad.

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(4) Copy of G.D. No. 37 relating to the aforesaid offence.        The  detenu  challenged the validity  of  this  order before  the  High Court, but  became  unsuccessful.  Feeling aggrieved  by  the  impugned judgment, this  appeal  is  now preferred.       Mr.  R.K. Jain, the learned Sr. counsel  appearing  on behalf of the appellant made a number of submissions at  the hearing,  one of which being that the  sponsoring  authority had placed 216 certain irrelevant and extraneous matters before the detain- ing  authority which should have influenced the mind of  the detaining  authority and stealthily crept into the  decision of the said authority directing detention of the detenu  and as  such  the impugned order is liable to be  quashed.  This argument was resisted by Shri Dalveer Bhandari, the  learned counsel  appearing  on behalf of the  respondents  that  the detaining  authority had not considered any  other  material save the material referred to in the grounds of  detention’. Therefore,  the  short  question for  our  consideration  is whether  the  sponsoring  authority has  placed  before  the detaining authority any extraneous and irrelevant  materials which  might have influenced the mind of the  detaining  au- thority.  It cannot be disputed--indeed there is  none  that the  four documents referred to above, copies of which  were furnished to the detenu have been placed before the  detain- ing  authority.  It  follows that  the  detaining  authority passed  this order only on consideration of the  above  said materials. In the confidential letter dated 31st March  1988 sent  by the Senior Superintendent of Police,  Allahabad  to the detaining authority it is stated thus: "It  is stated that the accused is a hardened  criminal  and has a gang. Such persons are committing heinous crimes often which  adversely  affects the public order. There  are  many cases/offences against accused Vashistha narayan  registered in  various  police  stations. It has become  his  habit  to commit offences  ..........  Hence I recommend that an order for  atleast  12  months detention be  passed  against  Shri Vashisht  Narayan Karwaria alias Bhukkhal son of  late  Shri Jagat  Narayankarwaria, the aforesaid accused under  Section 3(2) of the above mentioned Act."     The  preamble  of the letter submitted  by  the  Station House Officer of Colenolganj, Allahabad dated 31.3. 1988  to the  Senior  Superintendent of Police,  Allahabad  reads  as follows: "It  is submitted that Shri Vashisht Narayan Karwaria  alias Bhukkal,  the aforesaid accused is a hardened  criminal  and has  a  gang. In his gang his son Kapil and  two  other  big offenders  Ram Chandra Tripathi and Santosh  Kumar  Tripathi son  of  Gaya Prasad, resident of Ganspur,  P.S.  Poormufti, District Allahabad, are included. These 217 people often used to commit heinous crimes, by which  terror and fear prevails in the people. Many crimes are  registered against Vashisht Narayan Karwaria in many Police Stations."     The  above averments made in the above two letters,  the copies  of  which  are furnished to the  detenu  along  with grounds  of  detention unequivocally and clearly  spell  out that the detenu is a hardened criminal, having a gang  under his control often committing heinous crimes, that many cases against the detenu are registered in various police stations and  that  he  is in the habit of  committing  offences.  No doubt,  these  averments  are not made  mention  of  in  the grounds of detention. But can it be said that these  materi- als  placed before the authority might not  have  influenced

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the  mind of the detaining authority in taking the  decision of  detaining the detenu? In our view, the  above  averments which  are extraneous touching the character of  the  detenu though  not referred to in the Grounds of  detention,  might have influenced the mind of the detaining authority to  some extent  one way or other .in reaching the subjective  satis- faction  to take the decision of directing the detention  of the  detenu. As rightly pointed out by Mr. Jain,  had  these extraneous  materials not been placed before  the  detaining authority,  he  might or might not have passed  this  order. Therefore,  we  have  to hold that the  detention  order  is suffering  from  the  vice of  consideration  of  extraneous materials  vitiating  the validity of the order.  There  are several  pronouncements  of this Court, on  this  point,  of which we will make mention of to the following decisions:     Ram  Krishna  Paul v. The Government of  West  Bengal  & Ors.,  [1972]  1 SCC 570: Smt. Pushpa v. Union  of  India  & Others, [1980] Supp. SCC 39 1; Merugu Satyanarayana v. State of Andhra Pradesh & Ors., [1982] 3 SCC 30 1 and Mehboob Khan Nawab  Khan  Pathan v. Police  Commissioner,  Ahmedabad  and Another, [1989] 3 SCC 568.     Mr.  Dalveer Bhandari relying on Section 5A of  the  Act urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extra- neous  materials were placed before the detaining  authority since those alleged extraneous materials have no bearing  on the  validity of this impugned order which can be  sustained on the material set out in the Grounds of detention  itself. Placing reliance on decision of this Court in Prakash  Chan- dra Mehta v. Commissioner and Secretary, Govt. of Kerala and Others,  [1985] Supp. SCC 144 wherein it has  been  observed that  the ’grounds’ under Article 22(5) of the  Constitution do not mean mere factual 218 inferences but mean factual inferences plus factual material submitted that in the present case the factual material  set out in the grounds of detention alone led to the passing  of the  order with a view to preventing the detenu from  acting in  any  manner  prejudicial to the  maintenance  of  public order.  We are unable to see any force in the above  submis- sion.  What Section 5A provides is that where there are  two or  more grounds covering various activities of the  detenu, each  activity is a separate ground by itself and if one  of the  grounds is vague, nonexistent, not relevant,  not  con- nected  or  not proximately connected with  such  person  or invalid for any other reason whatsoever, then that will  not vitiate the order of detention.     It  is  not the case that this impugned order  has  been made on the two or more grounds covering various  activities of  the  detenu, but on the other hand the  order  has  been passed  on the sole ground relatable to a  single  incident. The  conclusion arrived at by us is only on the  basis  that the  aforesaid extraneous materials, placed before  the  de- taining  authority  might have influenced the  mind  of  the detaining  authority, but not on the ground that one of  the grounds of the detention order has become invalid or inoper- ative for the reasons mentioned in Section 5(A)(a).     The  next submission made by Mr. Jain on behalf  of  the detenu  is  on the basis of Ground Nos. VII &  VIII  of  the Special Leave Petition in which the appellant has  expressed his grievance that he had been deprived of making an  effec- tive and purposeful representation as envisaged under  Arti- cle 22(5) of the Constitution of India since no  particulars or  details are given in documents I & H enclosed  with  the grounds  of  detention  in  regard  to  the  alleged   ’many

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cases/offences’  said  to have been  registered  in  various police stations against him and in regard to the allegations that he was a hardened criminal and had a gang often commit- ting heinous crimes and that it had become the habit of  the detenu  to  commit offences. In support of  this  contention reference  was  made to the decision in Mehboob  Khan  Nawab Khan Pathan’s case (ibid). No denial is made in the  counter filed on behalf of the first respondent. This latter submis- sion, in our opinion, cannot be rejected as having no force.     In  the result, we without going into the merits of  the other  contentions  allow this appeal, quash  the  detention order and direct the detenu to be set at liberty forthwith. 219                           ORDER The Writ Petition is connected with the Criminal Appeal  No. 219  of  1990  arising out of SLP (Crl.)  No.  2473/89.  The detention  order under challenge in both the proceedings  is the  one  passed by the District  Magistrate,  Allahabad  on 31.3.1988  under Section 3(.3) of the National Security  Act 1980. As we have now set aside the order of detention in the Criminal  Appeal, no order is necessary in this  Writ  Peti- tion. The Writ Petition is disposed of accordingly. T.N.A.                         Appeal allowed and                                Petition disposed of. 220