DHANANJOY DAS v. DISTRICT MAGISTRATE & ANR (2)

Citation: [1983] 1 S.C.R. 122

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, R.B. MISRA

Case summary

The dispute is about the nature of the latter part of paragraph. (1) In that case sections 3 and 7 of the Preventive Detention Act 1950 were the subject matter of consideration and this Court held that the two sections read together contemplate that the copy of the order...

Judgment text

DHANANJOY DAS v. DISTRICT MAGISTRATE & ANR. August 16, 1982 [V. D. TULZAPURKAR AND R. B. MISRA, JJ. ) .. ' Constitution ofIndia-Article 22(5)-Rights ofdetenu. 0 National Security ACt~ 1980-section 3(3)-Grounds of detention-Inclu- . sion ofparagraph in the nature ofpreamble or introduction-Validity• National Security Act, 1980-Section 3(3)-0rder ofdetention-Proof of satisfaction ofdetaining authority-Extraneous evidence not admissible. National Security Act, 1980-section 3(3)-Grounds ofdetention-Vague- ~1s-Determination of. The apPellant was detained by' an ofder made under section 3 (3) of ihe Act. t The grounds of detention served on him consisted of 4 paragraphs. The first part of paragraph 1 was admittedly introductory. The latter part of para.

:· graph 1 was in the followillg terms: "Shri Das has been playing a leading part in -the current agitation on foreigners issue in collaboration with other active agitators who ~re leaders of AASU, Karmachari Parishad and Gana Sangrarn Parishad, ,. by organising bundhs, non~cooperation ·programme, inciting people to violate law from time to time. Such activities have ~isturbed peaceful, tolerant and harmonious life: Or society". Paragraphs 2 and 3 gave details as to the part played by the appellant in a programme relating to obstruction of road and rail traffic and "violation of curfew by thousands of people. The first sentence of paragraph 4 stated: "Such activities of Shri Dhananjoy Oas are prejudicial t""the interest of maintenance of public order. " The appellant challenged the order by a petition under Article 226 which was dismissed by the High Court.

,• , , In appeal, counsel for the appellant contended that paragraph 1 of the • grounds was so vague that the order of detention must be quashed on that ground alone, that paragraphs 2 and 3 also sufferred from vag~eness for the ffi\! 9~ th~! ! h•y did not meQtigq certain necessary facts and that the facta DHANANJOY V, DISTT. MAGISTRATE . 123 alteged in the grounds of detention only made out a case for maintenance of IaW ' and order and not of public order. Counsel for the respondent submitted that paragraph 1 was only a prelude or introductory and it did not deal with the grounds on which the District Magistrate bad biS subjective satisfaction in passing the order. Counsel for the app"ellant, on the other hand, relying on certain observations in Mohd. Yousuf Rather v. State of Jammu & Kashmir, conlended that Arti(:te 22(5) provided for supplying of grounds and there could be no preamble or introduction to the grounds of detention. It was submitted that the District _Magistrate h.

imself had in his counter-affidavit treated paragraph 1 as constituting one of the grounds of detention although ·be had subsequently changed his posi- . -c tion by filing a supplementary affidavit on the basiS of a note ma ISt'r. MAGISTRATE (Misra, J. ) 12S . . ' ' •. . [1973] 3 S. C. R. 268; Bidya Deb Barma v. District Magistratt, Tripura Agartala, [1969] I S C. R. 562; and Vakil Singh v. State of Jammu & Kashmi,, A. LR. 1974" S. C. 2337, referred to. In the instant case basic facts have been given in paragraphs 2 and 3 of the grounds of detention to enable the a~pellant to make an effective representation. [142 G] · 3. The situation in Assam is a grave one and the agitation On the issue / of foreigners has been going on for years and it has taken an ugl~ and serious turn, and the statement of facts made in paragraphs 2 and 3 of the n. " The dispute is about the nature of the latter part of paragraph. I.

It says : • "Sri bas has been playing a leading part in the current agitation on foreigners issue iri collaboration with other active agitators who are leaders of AASU, Karmachari Parishad and Gana Sangram Parishad, by organising bundhs, non-cooperation programme, inciting ·people to violate law from time to time. Such activities have disturbed peaceful, tolerant and harmonious life of society. " ' Paragraphs 2 and 3 of the grounds of detention deal with specific instances of the activities of the appellant. The penultimate paragraph 4 of the grounds says : "Such activities of Sri Dhananjoy Das are prejudicial to the lnteres( of maintenance of public order. " ' biiANANJOY v. i>1sri. MAGISTRATE (Misia, i. ) i:H Significance must be attached to the language used in the last sentence of the ! st paragraph and the ! st sentence of the last paragraph, the former says : "Such activities have disturbed peaceful, tolerant and harmonious life of society. " While the latter i. e. , the !

st sentence . of the last paragraph 4 states that: "Such activities of Sri Dhananjoy Das are prejudicial ·to the interest of maintenance of public order. " The tenor of the document indicate that the appellant has been \ playing a leading part in the current agit~ti ORTS (1983] I s. c. R. supplementary affidavit, which was allowed. In the supplementary affidavit he averred that paragraph I of the grounds constitute only a preamble or introd'uctory para and the grounds on which be had subjective satisfaction for passing 'the order of detention ·against the appellant were contained in paragraphs 2 and 3 of the grounds· of detention. In support of the application for permission to file a supplem. entary affidavit by way of clarifica;ion he relied on. the parawise comments made by him which he had sent to the Government under his memo. • No. DCM. 49/8·! /29 dat! d , I5th.

of January 1982 with a· copy to the Senior Government Advocate~ While dealing with paragraphs 9 and IO of the petition the District Magistrate had commented •tbat pa~a 1 of the grounds of . detention 'is of the nature of introduction and para 4 is of the nature of conclusion. It was also submitted for the appellant that the District Magistrate having once admitted in the counter affidavit that para l of the grounds of detention constitufe grounds of detention he could not subsequently turn turtle and ,say that i( was only by way of introduction or preamble and he could not have been allowed to change his position by filing a supple- 1;rientary affidavit. The order of detention, said the counsel, is conclusive as to the state of mind of !

he person who made it and that no extraneous eyidence ·can be takenr into consideration to prove that state of mind and hence any additional evidence such as the note made by the District Magistrate was not admissible to· prove that the rule has been complied with. Such evidence could • · not have been given by the District Magistrate in view of the earlier ·affidavit dated 24th of January, 1982. expressly saying that paragraph I is th; ground which is clear, specific ~nd eloquent. In . support of his contention he placed reliance on Dr. Ram Manohar 1 Lohia v. State ofBihar. ( ) \_; The Advocate General of Assam, on the other hand, has contended that the counter affidavit filed earlier by the District Magistrate was just in reply to the averments made in the . writ petition and therein it was stated that ground No. l of the grounds of detention was vague and indefinite and' in reply the. reto the District Magistrate denied the vagueness of ·that ground.

The District Magistrate, however, has clarifie. d the position in his para-wise· ,. comments which he had sent to the Government by memo. • .. (I) [1966] 1 S. C. R. 709. . DHANANJOY V. DISTT. MAGISTRATB . (Mimi, J. ) . 133 No. DCM. 49/81/29 dated 15th of January, 1982. He clarified the position fhat paragraph 1 of the grounds of detention was only· preamble or introduction. This was done by him long before the filing of the writ petition itself and, therefore, the supplementary . affidavit filed by him clarifying the posi,tion cannot be said to be an after-thought and the High co·urt accepted the position that the , District Magistrate did not take into consideration the statement of facts made in paragraph I of the grounds of detention. The grounds of. detention read as a w"hole leave no room tor doubt that paragraph I of the grounds of detention was only by way of introduction or as a p~eamble.

In substance, it only indicates the modus operandi adopted by the various organisations to the . ,,. current agitation on foreigners issue in Assam. The 2nd and 3rd / r..... , paragraphs of the grounds of d. etention allege a specific part played } by the appellant in that agitation; On a perusal of. grounds of detention as a whole we are satisfied that the view ~aken by the High Cqurt that the ! st paragraph of the grounds 'of detention was only a preamble, pre)ude, or introductory para is correct. If this. be the position then the vagueness in the I st paragraph cannot be ma. de a ground of al)ack on the impugned order. The Advocate General feebly sought to contend that assuming that ! st paragraph. of the grounds also constituted the. grounds· for detention there was no vagueness in as much as the material facts . d. etailed in paragraphs 2 and 3 were sufficient to enable the appellant to make an effective representation.

For example, bundh referred :to' in paragraph 1 has been detailed in the 2nd paragraph, non. cooperation referred to in paragraph 1 has also been clarified by necessary implication in para 2 in as much as Rasta Roko programme or creating obstacles in . the roads necessarily helped the non'cooperation by preventing people from attending their offices or performing theirstatutory duties. In the view that we have taken that the Is( paragraph of the grounds is only introductory it is not necessary ·. to deal with this aspect of the m;tter at length. • This takes us to the vaiueness in parag~aphs 2 and 3 of the ground~ of detention which specifically refer to the part played ff by the appellant in the agitation 9n specific dates. .. In ·ground No. 2 it· has not been mentioned that 'Nabab Shahjamal and Biren Baishya etc. were leaders or even connected with any of·the organisations mentioned in ground No. I. It was not even stated that all the instances referred to took place in Tezpur town.

It has also not been stated what were exactly the acts of instigation by the detenu: The place and the manner of inciting people who came in large numbers to violate prohibitory orders or to pelt stones has n_ot been mentioned·. In ground No. 3 no particulars were given about when the order of curfew was promulgated and by whom. It is only baldly stated that' the detenu "with his other associates mobilised people of parbatia etc. " The people assembled had come from other places. These places were not mentioned. None of the details of the slogans · by way of instigating people to violate the curfew had been mentioned and thus grounds Nos. 2 and 3 also suffer from vagueness and this was quite sufficient to vitiate the proceedings. The law is by now well settled that a detenu has two rights · under Art. 22 (5) ofthe Constitution : (I) to be informed, as soon .

as may be, of the grounds on which the order of detention is made, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered ma)l obtain· relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds is an infringement 'or the first of the rights and the inclusion of an obscure or vague· ground among other clear and definite grounds is an infringement of the second of the rights. Therefore in this view of the legal position if the grounds are vague \ __ ' and indefinite that would amount to an infringement of the second · right of the appellant.

It is by virtue of the second right that the detaining authority has to supply the material facts on the basis of which subjective satisfaction was derived for passing the order of detention and this is how tile facts from which the inference is 'drawn also become a part and par. eel of the ·grounds. · Therefore, the important question is whether grounds Nos. 2 and :i are ~o vague ·as . , to infringe the second right of the appellant conferred by t\rt. 22 (5) of the Constitution, I ' DHANANJOY v. DISTT. MAGISTRATE (Misra, J. ) 135 Shri Rangarajan referred to Dr. Ram Manohar Lohia v. Str;te of Bihar and Ors. (') wherein the Constitution Bench held : - "If oil its face an order of detention is in terms of the rule, ordinarily, a court is bound to . stay its hands and uphold the order. When an order is on the face of it not in terms of the rule, a court cannot enter into an investigation whether the order of detention was in fact in terms of the rule.

So the St~te cannot be heard/to say or prove that an order was in fact made to prevent acts prejudicial 1 to public order though the orqer ·does not say so... The ' order is conclusive as to the state of the mind of the person. ·c wh~ made it and no evidence is admissible to prove that state of ·mind. Extraneous evidence sucli as the note made by the District Magistrate was not admissibl. e to prove that the rule has been complied. with. '! · There is no . denying the fact that the ground of detention ·D must be in existence on the date when the order was passed and the authority concerned has to be satisfied about the grounds of detention on the date of the order and the satisfaction of the detaining authority must be clear on the face of it from· the grounds of detention and no extraneous evidence. is admissible to prove what actually weighed with the detaining authority while passing the order of detention.

) It must, however, be kept in mind that it is not ·what a party choose to put a gloss on the grounds of detention but" it· is th. e document itself which will be taken to be the proof of what weighed with the detaining authority while passing the order of detention and it is for the Court to decide whether certain paragraphs of the ·grounds of detention were only by way of introduction or. preamble or constitute the grounds of detention itself. As observed earlier, we have meticulously perused the grounds of detention and the tenor of the document read as a whole indicates that the ! st paragraph of the grounds of detention is only by way of introduction or . preamble. • Before dealing with this question of vagueness about paragraph (I) [1966) l S. C,R:7Q9, ,No. 2 ~nil 3 of the grounds we would like to deal with certain autborfries which have been cited on behalf of the appellant to indicate what constitutes the grounds of detention. In the State o/ Bombay v.

Atma Ram Sridhar Vaidya(') this Court held : "Clause (5) of Art. 22 confers· two. rights on the detenu, namely, first, a right to be informed of the grounds on which the ord l! ANAN! OY v.. DISTT. MAGISTRATE (Misra, J. ) 141 State of Bombay v. Atma Ram Sridhar Vaidya (supra) was sought to be distinguished by the Advocate General and referred to, the following observations made by the Court : "This however does not mean that' all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him. The facts on which the conclusion mentioned in the grounds are based must be available to the Government, but there may be, cases where there is delay or difficulty, in collecting the exact date or it may • not be convenient to set out all the facts in the first communication.

If the second commupication contains no fnrther conclusion of fact from facts, but only furnishes all or some of the ·facts on which the first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows sometime after the first co. mmunication. " Next reliance was placed on· Bidya Deb Barma v. District • I Magistrate, Tripura, Agartala. (\) In that case also the impugned order was challenged on the ground of vagueness inasmuch as the ground did not give any details since no particulars of time, place and circumstances had been mentioned and relevant and irrelevant matters had also been included. In the circumstances of the case this Court negatived the contention and ~bserved : · I "The grounds begin ! >Y stating generally what the activities were. They' consisted of instigation of tribal people , to.

practise jhumin'g and preventing the authorities from delivering paddy to Government uuder the procurement ' schemes. This instigation it is said was through mass and secret meetings and resulted in violent resistance to Government. Having said this the grounds then specify the places where and the dates on which the meetings were held and the date on which and place at which the resistance took place. In our . judgment more detailed information was not necessary to give the detenns an opportunity to make their representations. " (I) [1969] l SCR 562. • 14~ SUPRilMil COURT REPORTS [1983] l s. c. a In Vakil Singh v. State of Jammu & Kashmir(') this Court observed : " 'Grounds' within the contemplation of s. 8 (l) of the Act means 'materials' on which the order of detention 8 is primarily based. Apart from conclusions of facts 'grounds' have· a factual constituent, also. They must . contain the pith and substance of primary facts but not. subsidiary facts or evidential details.

This requir<ment as to the communication of all essential constituents of grbunds was complied with in the present case. The basic facts, as distinguished from factual details, were incorporated in the . material communicated to the detenu. He was told the name of the notorious PAK agent 'and courier ... through whom he was supplying the information about the Indian Army. He was informed about the places in Pakistan which he was visiting. He was further told that \ D in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable'him to make an effective representation. The facts which were not disclosed were not basic facts and their non-disclosure did not affect the petitioner's right o~ making a representation.

" After analysing the various cases cited on either side we are of the view that the question whether a particular ground is vague will depend on the facts and circumstances of each case because vagueness is a relative term. What may be vague in one case may not be so in similar circumstances of the other case. If the basic facts. have been given in a particular case constituting the grounds of detention which enable the detenu to make1 an effective representation, merely because meticulous details of 'facts are not given will not vitiate the order of detention. We have· meticulously examined I paragraphs 2· and 3 of the grounds of detention and we are satisfied that basic facts have given to enable. the appellant to make an effective repre~ent~tion. Of course, it would ·have been better if other minute details had als9 b<en given. \ l_ (1) A,l. R. 1974 $. C. 2337. DHANANJOY v. Dl~TT. MAGISTRATE (Misra, J.

) 143 Lastly we take up the plea raised on behalf of the appellant that the facts alleg~d in the groundsof detention only make out a case for maintenance of law and order and not of public order. The difference between the' expressions 'law and order' and 'public • order' has been the subject matter of consideration by this Court on various occasions. ' In Dr. . Ram . Manohar Lohia. v. · State. of Bihar ' (supra) this Court observed : · "What was meant by the 'maintenance of public order' was the prevention of disorder of a grave nature, a disorder which the authority thought was necessary to prevent in. view of the emergent situation created by external· aggres· sion; whereas the expression 'maintenance of law and order' may mean prevention of disorder of comparativ~ly lesser gravity and of local sig~ificance only. ''. Again, the distinction was brought out in Ashok Kumarv. Delhi Administration & Ors. ,(') to which one of lis was a party.

This Court \ observed: "The true distinction between the areas of "pnblic order" and "law ,and ·order" lies riOt in the nature or quality of the act, but in the degree and extent of its reach upon society: The distinction between the two concepts of "'law and order" and "public order" is a fine one but tJ;tis does not mean that there can be n9 overlapping. A~ts similar in nature but committed in different contexts and circumstances · might cause different reactions. In one case it might affect specific individuals only and therefore fouch the problem of law and order while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of ·the community which makes it prejudicial to the maintenance of public order.

'' The situation in Assam is a grave one and the agitation on the issue of foreigners has been going on for years and it has faken an ugly and serious turn,and th. e statements of facts made in paragraphs (I) A. J. R. 1982 S<;:. 114~. • A 2 and 3 of the grounds of detention in the prevalent circumstaoces in Assam relate to the maintenance of public order lirl view of the law laid down in the above case. • For the foregoing di~cussion the appeal must fail. It is accordingly dismissed. B H. L. C. Appeal dismissed. t • I . .. ,.. • •