KAMLAKAR PRASAD CHATURVEDI v. STATE OF M. P. & ANR

Citation: [1984] 1 S.C.R. 317

Court: Supreme Court of India

Bench: D.A. DESAI, O. CHINNAPPA REDDY, A. VARADARAJAN

Case summary

1 and 2 relate to the events that occurred on March 20, 1978 and August 9, 1980. E one of us was a party the Order of detention was set aside on the ground that the materials and documents were not supplied pari passu the grounds pf detention and that there was delay of more...

Judgment text

• KAMLAKAR PRASAD CHATURVEDI A v. STATE OF ·M. P. & ANR. • October 7, 1983 [D; A. DESAI, 0. CHINNAPPA REDDY AND A. ·VARADARAJAN, JJ. ). Naiiona/ Securi(y Act, 1980-Section 3(1) anti (l)-SciJpe of--Detention order-Made on two or inore grounds-Not to be . deemed ro _have bee'h _made seperately on each ground-Ground relating to five year old incident:-Too remote ond slalt-:Detention order viti'('led. The petitie:ner who was detained under sec. 3(2) of the National_Security Act, 1980, was ~onveyed seven grounds of detention by the Detai~ing ·~utho--'· rity. The first tWo grounds related to the incidents -that occurred more than S years and about 3 years respectively prior to the date of the order of detention. The petitioner challenged the order of detention as vitiated on D .. account of the ~rounds of d~tention ,being vague and sta~e. •_: A. itowing the writ petition ~y majo~ity, HE~D : The order of detention is quashed. + (Per. Chinnappa Reddy and Varadarajan, JJ.

) It is not open to the Detaining Authority to pick up an old and . stale .. incident and hold it as "the basis of an order of detention under S. 3(2) of the Act. Nor it is cpen to the Detaining Authority to contend that it has been mentioned only ·to show that the detenu has a tendency to create problems resulting in disturbanCe to public order, for as ~ matter of fact it has been 0 mentioned as a ground of detention. [327 E-F] Shalini Soni v. Union ofIndia, AIR 1981 SC 431; Mehdi Mohamed Joudi v. Staie ofMaharqshtra, (1981) 2 S. C. C. 358;' Taramati Chan. du/al •· State of Maharashtra AIR 1981 SC 871; and Shibban Lal Saksena v. The State ofUttar, . -,r Pradesh. (1954) 4 S. C. R. 418 refetred to. . , . In the instant case the first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the o~der dated 6-5-1983. There can be no dotlbt that these . grounds especially grounds No. 1 rClating ·to an incident· or 1978 .

,;, too remote and not proximate to ·the Order of detention. [327 D-E] There is op provision in the National Security Act, 1! 180 similar to s. SA of the Conservation of Fofeign Exchange and Prevention of Smuggling Activities Act, 1974 which says t_hat where a person has been detained in, ·pursuance of an Order of detentjon un4~r syb-~ec.. (1) of . S,3 \\'hi~h has b~cn, • 318 SUPIEMB COURT REPORTS (1984) 1 s. c. R.. made oii two or more grounds, such Order of detention shall be deemed to .. have been rn·ade separately on each of such grounds and accordingly (a) such Order shall not be deemed to be invalid or inoperative merely because one or some of the g_rounds is or are vague, non-existent, non-reICvant, not connected or not proximately connected with such persons or invalid for anYother reason, and it is not therefore_ possible to hold that the Government or officer inaking such order would have been satisfied as provided in . sub-sec. (1) of s.

3 • with reference to the remaining groμnd· or grounds and inade\he order. of detention and (b) the Government or Officer making the order of detention shall be deemed to have made the order of detention under the said sub-sec; (I) after being satisfied as provided in that sub-section with reference to tha remainin11 ground or grounds. (327 F-H; 328,AJ , In the present case, therefore, it cannot be postulated what view would have ·been taken by the Deta1Ding :AuthOrity ab6ut the need to-detain the petitioner unde:r sec. 3(2) of the Act if . be had· hot ·taken into account the stale and not proximate grounds 1 and 2 into consideration in arrivins at the subjective satisfaction, [328 A-BJ .. , (Per Desai J,) ' i. ,: - ' > j When criminal actitit~ -of. _a perSon leads te such a drastic action as detention without trial, ordinarily a single stray incident may not unless contrary is shown be sufficient to inv~ke such drastic power of' preventive detention..

In order to avoid the charge that a siray incident was seized upon to invoke such drastic power of preventive detention the authority charged with • duiy to maintain public order of a"ssure security of the State. may keep a close watch on the activities oJ the miscre'ant for some time and repeated indulgence into prejudicial activity may permit an inference that· unless pre.. ventive detention is ·resorted to, it would ·not be possible to wean away Such person from such prejudicial activity. (319 G-H; 320 A-BJ In the instant case therefore, when in 1983, an aCti9n was -propoaed to be taken under sub.. sec. (2) Of sec. 3, the Detaining Authority examined the · . history of the criminal activity of the detenu and took int~ account a conti.. ' nuous course of conduct which may permit an inference that unless interdicted by a detention order, such activity cannot. be put to an end the power under . sub-sec. (2) of sec. 3 is exercised.

[320 B-CJ • If there is a big: time lag between the last of the events leadina: to the detention order bein1 made and the remote""earlier event, the same cannot bC treated as showing a coil. tinuity of criminal . activity. But if events in close proximity with each other are taken into account for drawing a permissible inference that these are not stray or spasinodic events but disclose a continuous prejudicial activity, the reference to earlier events cannot be Styled as stale or· remote which would vitiate the order of detention. (320 D-E] • ·, Jn the instant case if each event is eXatnincd in cloSe proximity with each' othtr, the events or 1978 and 1980 referred. to in grounds Nos. 1 and' 2- Cannot" be rqectcd as a ·itray·or not pro:timato io. thc making· of the ·detention ·ordorc ltAMLAKAR v. M. P. STATE (De1al, J. ) 319 But they provide the genesis of the continuity of tho prejudicial activity of the dctenu and they appear to have been relied upon for that limited purpose. .

· [321 A-BJ Gora v. ·State of West Bengal, [1975] 2 $. C. R.. 996; Smt, Rekhab RBMB coiiai aiiPoaTs ; W>s4] i s. c. it SilCurity Act, 1980.. In order to avoid the charge that a stray incident seized upon to invoke such drastic power ()f preventive· detention, "the authority charged with a duty to maintain public order or assure. security of tlie State, may keep a close watch on the activities . .. ). , of the miscreant for some time and repeated indulgence into prejudicial activity may permit an inference that unless preventive )' ' . detentionis resorted to, it would not be possible to wean away such . - -· pa'ssen by. ran away in· panic; and a first information report has been lodged against the petitioner and . · others for offenc~s under Ss. 307, 147, 149 ancl 501 I. P. C. i • (3) On 13. 7. 1983, petitioner and his associate Kamlesh . • ,entered the Land Development !

lank and beai Gaya · Prasad Pandey in the presence of the •Manager of the Bank arid threatened ro beat him with shoes at the road crossings in Satna and on account of the terror the staff of the Bank ran away and Gaya · . Prasad Pandey h. as not lodged any report; (4) On 26. 7. 1982, petitioner unauthorisedly entered the office of the Public Works Department and tried to obtain by force approval of a wood contract from the Office Secretary R. P. Sharma and on his refusal. to comply with his demand the petitioner took away papers and intended to beat- the Office Secretary, and the. office staff ran away due to the terror and a first information report has been lodged against· the ''"' petitioner for offences under Ss. 353 and 448 lP. C. ; (5) On 8. 9. 1982, petitioner unauthorisedly entered the office of the Lilnd Development Bank at Satna and threatened to beat the Chairman Ram Asray Prasad~ - . M. L. A. and he again threatened to beat that person on 1. 10.

1982 at the Guest House at Bhopal in the presence of one Gulshar Ahmed; (6) On 1. 1,. 1983, petitioner with his associates entered the ,Land Development Bank, Satna and threatened the Gμard and broke the telephone and beat ·one Tara Chand Jain at the Dharamshala later, and a first information report was lodged at the ·Police Station about that incident, and on 15. 1. 1983 Ram Asray Prasad, M. L. A. has reported. to the police at Jahangirabad, Bhopal that at the Tara . Chand Jain Guest House the petitioner threatened . to break his arm as aresult of which Harijans employed . in the Land Development Bank were feeling insecure and a . , • . kAMLAKAR v. M. P. STATE(l! aradara}an, J. ) first information report has been lodged against him on 6. 1. 1983; (7) On 25. 3. 1983 at night, petitioner with his associates threatened Bijju Prasad Misra and Shanti Prasad Misra near Dashrath Singh garage saying that he • would kill them.

if they gave evidence against Anup Singh and Ram Charan and a case has. been ·registered against him on 26. 3. 1983 under Ss. 107 'and 117 I. P. C. and a ·notice calling upon him to appear in the Court on 2. 4. 1983 had been served on him and he left the Court without signing the order sheet. The petitioner's case is that the . detention Order is politically . motivated and bas been passed at the instance of the Congress (I) M. L. A. Ram Asray Prasad as the petitioner is a social· worker who had always raised bis voice against goondas who are protected by the Congress (I) Party h1. Madhya Pradesh and had organised a nuinber of rallies against the unscrupulous and uncivilized behaviour of the Block Developmen·t Officers with illiterate and · poor farmers of the Ltate. The second respondent has passed the Order of detention mechanically without applying bis mind' to the facts and ·+ circumstances of the case on the basis of the first information, reports lodged against the petitioner.

The grounds of detention must be precise, pertinent, proximate and relevant. Vaguness and staleness • would vitiate the ground of detention as held in Shiv Prasad Bhatnagar v. State ofMadhya Pradesh. (') . All the seven grounds do not fall within the realm of public order but relate oqly to law and " order. Grounds· 1 to 4 suffer from want of proximity to the order of detention. Grounds 5 and 6. are vague. Ground 7 is irrelevant. The State Government has not considered the petitioner's represen· tation dated 25. 5. 1983 expeditiously. · The Order of detention 'eontravenes Article 22 (5) of the Constitution and is consequently liable to be quashed. The pettion is opposed. The District Magistrate, Satna bas contended in·his counter affidavit that the petitioner's detention has been orderded because his recent activities coupled with the past incidents are. prejudicial to the maintenance of public order. The ·Order . of detention. was considered necessary to prevent him from (l) A. I.

R 1981 S:C. 870. StJi>RllMB cOtiaT REPoR1S (1984] 1s. c. ti.. repeating the offences because the petitioner has a tendency to go on violating the laws. The grounds of attack made in the petition have been denied in the counter. affidavit· and it is stated that the State Government had considered the petitioner's representation· and rejected it on 4. 6. 1983 and even the Advisory Board has rejected his representation. · · In addition to the above grounds of. attack on the Order of detention the petitoner has stated in para 13 of the Writ Petition that. the Detaining Authority hl! s 'not "suggested the relevant docu· ments on the basis of which the satisfaction of passing the -Oetention .. · Order has . been framed". Perhaps, what is meant to be. conveyed by that allegati"n of the petitioner is that relevant documents on . 1. the basis of which the subjective satisfaction of the Detaining Autdority had been reached have not ·been supplied to the petitioner.

The learned counsel for the petitioner submitted in the ·course of his arguments befor~ us that the copies of the ·first infor· mation reports referred to· in the grounds of detention bad not been supplied to the petitioner alongwith grounds Of detention. The said allegation in para 13 of the Writ Petition does not naturally appear fo have been understood. by the second respondent who has not . stated anything about it in his parawise . reply in the . counter . affidavit. • \ It is not necessary to consider all the other objections raised ·· by . the petitioner in his Writ Petition as we propose to dispose bf the petition on the ground of want of proximity. of grounds 1 and 2, • particularly. ground 1 fo the order of detention dated 6. 5. 1983. Those grounds relate to alleged incidents of 20. 3. 1978 and 9. 8:1980 • which are more than 5 years and about 2 years respectively prior to · . ' the date of the Order of detention.

This Court has taken· a strict view of the law of preventive detention which deprives the citizen of his freedom without a trial and full fledged opportunity for him to prove his innocence. ·In Sha/ini Soni v. Union of India(') to which ' one of us was a parfy, ,it is observed :- · -, "Quite obvi9usly, the obligation imposed on ihe · detaining authority, by Art. 22 (5) of the Constit1:1tiori, to iiffor - 8 lead to the release of the detenu. The representation dated July 27, 19SO was admittedly not considered and on that ground alone the detenu was. entitled·to be set at liberty'. . In the view that we h! lie taken on the question of c · the failure of t! )e detainiil? authority to consider the representation of the detenu it is really unnecessary· to ·consider the second question raised on behalf of detenu · in Criminal Writ Petition No; 4344 of. 1980.

However, this question has been squarely and directly ra£sed and, indeed, it was the only question raised in the other two Criminal Writ Petition. sand we have, therefore, to deal with it. ~, . . , . In Mehdi Mohamed Joudi v. State of Maharashtra(I) to which . E one of us was a party the Order of detention was set aside on the ground that the materials and documents were not supplied pari passu the grounds pf detention and that there was delay of more than a . ... month in disposing ofthe representation of the detenu.. In Taramati Chandu/a/ v. State ofMaharashtra(') to wl). ich one of us ,was a party the Order of detention was set aside on . the ground that the . documents relied upon in the Order of detention were not supplied as part of the grounds alongwith the grounds of dctention. In Shibban Lal Saksena v. The State of'Uttar Pradesh,(') it is observed : "The petitioner was arrested on the 5th of January, G . I953, under an order, signed by.

the District Magistrate of Gorakhpur, and the order expressly directed the detention of the petitioner in the custody ·of the Superintendent, (! ) U98! J 2 s. c. c. 358. (2) A. I. R. 1981 SC 871· (3) [1954) 4 S. C. R, 418. • District Jail, Gorakhpur, under sub-clauses. (ii)· and (iii) of clause (a) of section 3(1) of the ·Preventive Detention Act, 1950, as amended by later Acts. On the 7th of January following, the grounds of detention were com- .. ,.. municated to the detenu in accordance with the provisions of section 7 of the Preventive . Detention Act and the grounds, it appears, were of a two-fold character, falling respectively under the two categories contemplated by sub-clause (ii) and sub·clause (iii) of section 3(1) (a) of the Act. Iri the first paragraph of the communication it is stated that the.

detenu in course of speeches dOlivered Ghugli on certain dates exhorted and enjoined upon the cane-growers of that ·area not to supply sugar cane to the sugar mills or even to withhold supplies from them and thereby interfered with the ·main· tenance of supply of sugar cane essential to the com· munity. The other ground specified in paragraph 2 is to the . effect that by using expressions, some of which were quoted under·neath the paragraph, the petitioner incited · the cane-growers and the public to violen~e against established author! ty and to defiance of lawful orders and directions issued by Government officers and thereby seriously prejudiced the maintenarice of public + order-------- · . "The sufficiency of the grounds upon which such. satisfaction. purports to be based, provided they have a rational probative value and are not extraneous to the . scope of purpose of the legislative provision, cannot be chailenged in a court of law except on the ground of mala fides.

A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under section 7 of the Act. What was happened, however, in this case is some what peculiar. The Govern· . ment itself, in its communication dated the 13th of March, 1953, has plainly admitted that one of grounds upon which the original order of detention was passed ' is uusubstantial or non existent and cannot ,be made a ground of detention. The . question is, whether · in such circumstances the original order made ·. u'nder' section 3(1) (a) of the Act . can he allowed· t. ; siana•. • ' KAMLAKAR v. M. P. STATE (Vtiradatajan, J. ) 321 -: The answer, in our opinion, can only be in the' negative: · The detaining autho~ity gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nqr can we attempt to . assess in what manner and to what. extent each of these .

groun<ls f operated on the mind of. appropriate · authority and contributed to the creation of the satisfaction on . the basis of which the detention order was made.. · To say that the other ground, which still remains is quite suf! icient io sustain, the order, ·would be to substitute an objective judicial test for the subjective decision of the· executive authority which is aaain the legislative policy underlying. the staiute. In such cases, we. think, the position \¥ould · be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wl16lly illusory and this would vitiate the detention ·or~r as a whole. " • The first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 6. 5. 1983. There can be no doubt these grounds especially ground No. 1 relating to an incident of'l 978 are too remote and not proximate to the Order of detention.

It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an Order of detention under S. 3(2) of the Act. Nor it is open to the Detaining Authority to . contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention. Now there is no provision. in the National Security Act, 1980 similar to S. SA of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 which says that where a person has been detained in pursuance • of an Order of detention under sub-se~on l of S. 3 which has been • made on two or more grounds, such Order of detention shall b. e deemeq to have been made separately on each of such grounds and accordingly (a) such'Order shall not be deemed to be invalid or inoperative merely because one or some of the grom;1ds is.

or are vague, nonexistent, non-relevant, not connected or not proxin;Jately connected with such persons or invalid for any other reason, and. it is not therefore possible to hold that the Government or offier making such order would have been satisfied as provided in sub-section I of S. 3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or. officer• making • 928 SUPREME COURT IU! POB. TS (198411 s. c. tt. the order, of detention shall be deemed to. have·· made the order of detention under the said sub-section I after being fatisfied as provided in that sub-section·with reference to the remaining ground or grounds.. Therefore in the· present case it cannot be postulated what view would have been taken by t! \e Detainirig Authority about the need to ' detain the petitioner under section 3(2) of the Act if. he had not taken into account the.

$tale and not proximate grounds I and 2 into consi- ,deration in arriving· at the subjective satisfaction.. We are, therefore, of the opinion that the petitioner's detention is unsustainable in law. ·Accordingly, ~e quash the order of detention and direct that the petitioner be set at liberty forthwith. · . u. s. K.. Petition. allowed• • • • • \ .. , I ~- . . )" , I ' '