N. MEERA RANI v. GOVERNMENT OF TAMIL NADU & ANR

Citation: [1989] 3 S.C.R. 901

Court: Supreme Court of India

Bench: S. RANGANATHAN, N.D. OJHA, J.S. VERMA

Case summary

The object of filing this writ petition directly in this Court, in addition to the appeal by special ieave, is to raise some additional grounds to -( challenge the detenu's detention....

Judgment text

The Judgment of the Court was delivered by VERMA, J. Special leave granted. ~"- ;l ~-{:,. ' N. M. RANI v. GOVT. OF. TAMIL NADU [VERMA, J. ) 903 ,l The appellant-petitioner, Smt. N. Meera Rani, is the wife of Nallathambi, who has been detained under the National Security Act, 1980 (Act No. "65 of1980) (hereinafter referred to as "the Act"). An order dated 7. 9. 1988 was made by the Collector and. District Magis- ! rate, Madurai, under section. 3(2) of the Act directing· that the detenu be kept in custody in the Central Prison, Madurai. Thereafter, the State Goverriinent by its order dated 25. 10. 1988 made under section 12(1) of the Act has confirmed the order of detention agreeing with the opinion of the Advisory Board constituted under the Act and directed that the detenu be kept in detention for a period of 12 mon\hs from the date of his detention.

This preventive detention of the detenu was r challenged in the High Court of Judicature at Madras by his wife, the appellant-petitioner, under Article 226 of the Constitution praying for issuance of a writ of habeas corpus. The High Court by its order dated 6. 3. 1989 has dismissed the writ petition. The appellant-petitiono,r has then challenged dismissal of the writ petition by the High Court by special leave under Article 136 of the Constitution of India in this Court: The appellant-petitioner has also filed a writ petition under Article 32 of the Constitution of India for the same purpose in this Court challenging directly her husband's preventive detention. The object of filing this writ petition directly in this Court, in addition to the appeal by special ieave, is to raise some additional grounds to -( challenge the detenu's detention. Both these matters have been heard together and are being disposed of by this common judgment.

We may now state the arguments advanced to challenge the detenu's detention before mentioning the relevant facts which are material for deciding those points. Shri U. R. Lalit, learned counsel for the appellant-petitioner, has advanced three contentions. The first . , _ contention is that certain documents which have been referred to in some grounds of detention were not supplied to the detenu with the result that the detenu was not given a proper and reasonable opportunity for making an effective representation and, therefore, the order of detention is vitiated for this reason alone. The second contention is that some documents in the form of newspaper reports showing that the detenu was apprehended and detained even prior to 21. 8. 1988 when the detenu was shown to have been arrested in connection with an offence punishable under section 3971. P. C.

were not placed before ~ the detaining authority when it formed the opinion mentioned in the detention order which has also vitiated the detention order. The last contention is that the fact of detenu's arrest in connection with an offence punishable under section 397 LP . C. and · and 13 relating to the chance printes developed from the scene of occurrence in the Bank, the ambassador cars TDL 9683, TDL 1919 and TOT 3699 which tallied with the finger-prints of Kamna, an accused in the Bank dacoity case. It was argued that the report of the finger-prints expert who gave this opinion was not supplied to the detenu even though it was a material document to enable the detenu to make an effective representation in respect of these grounds of detention. Another similar document relates to ground No.

9 which mentions a note sent by the detenu to the newspaper media in the name of Tamil Nadu Makkal Viduthalai Eyakkam owning responsibility for the Bank dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them. It was argued that the non-supply of these documents on which the grounds of detention Nos. 9, 11, 12 and 13 are based has deprived the detenu of his legitimate right of effective representation against the same which is guaranteed under Article 22(S) of the Constitution of India and this defect results in invalidating the entire detention order. The reply of learned counsel for the respondents is that section SA of the Act is a complete answer to this argument inasmuch as this defect at best requires only the exclusion of these grounds of detention and no more.

It was urged by learned counsel for respondents that the remaining grounds of detention were sufficient to sustain the detention order by virtue of section SA of the Act. Learned counsel for the appellant-petitioner also contended that such a result is not envisaged by section SA of the Act which did not apply to such a situation and the guarantee under Article 22(5) of the Constitution rendered the defect fatal to the detention order. Section SA of the Act clearly provides that the detention order under section 3 of the Act has been made on two or more grounds, shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason whatsoever. It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as pro- . ~ vided in section 3 with reference to the remaining grounds or ground.

1 In other words, a ground of detention which is rendered invalid for any reason whatsoever, shall be treated as non-existent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order. Section SA was inserted in the Act with effect from 21. 6. 1984 to overcome the effect of the decisions which had held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would not be possible to hold that the detaining authority · ~ making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds. It is, therefore, doubtful whether the construction of Section SA suggested by learned counsel for the appellant-petitioner can be accepted.

However, in the present case, it is not necessary for us to express any concluded f opinion on this point since we have reached the conclusion that the detention order must be quashed on one of the other contentions to which we shall advert later. The second argument of learned counsel for the respondents may I also be considered before we deal with the last contenti0n on which we ~ propose to ·quash the detention order. The second contention is that the detenu's arrest in connection with the Bank decoity case is shown on 21. 8. 1988 when he was actually arrested much earlier in connection with the Bank dacoity as appeared in some local nev. spapers but those newspaper reports are not shown to have been placed before . the r'. detaining authority. On this basis, it was argued that the satisfaction reached by the detaining authority has been vitiated.

~- The question of the date on which the detenu was taken into custody in connection with the Bank dacoity is material for the last contention which we shall consider hereafter but the same has no relevance in this connection. Contents of the newspaper reports except for the fact of earlier arrest which was known to the detaining authority were not relevant for the satisfaction needed to justify making of the detention order. The detaining authority's satisfaction was to be formed on the basis of material relevant to show the detenu's activities -- r so. and it is known that he would soon be released fron: j"il. ;, may be possible for the authority to cPnsiucr lhe antecedent history of the said person and decide whether the detention of the said person would be necessary ajier he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.

The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. The question which 'still remains to be considered is: can a person in jail custody, like the petitioner, be served with an order ofdetention whilst he is in such custody? )"° ' xxx xxx xxx xxx We have already seen the logical process which must be followed by the authority in taking action under s. 3(1)(a).

The first stage in the process is to examine the material adduced against a person to show either from his conduct _ ti or his antecedent history that he has been acting in a pre- I judicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is neces- ~ sary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person N. M. RANI v. GOVT. OF TAMIL NADU [VERMA. J. I 915 at the relevant time.

If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At 1he point of time when an order ofdetention is going to he served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in prejudicial manner is thus the basis of the order under s. 3(l}(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified bys. 3(1)(a) and is outside its purview.

" (at pages 929-931 of SCR) (emphasis supplied} On the above principle the Constitution Bench also explained the decision of the Assam High Court in Sahadat Ali v. State ofAssam & Ors. , A. LR. 1953 Assam 97 in Sahadat Ali's case (supra) the Government had decided to abandon the pending prosecution in public interest and action for detenu's release was taken. In anticipation of his release, the order of detention was passed and it was served after he was actually released. In these circumstances the detention order and its service was held valid. The test indicated by the Constitution Bench was duly satisfied. It is this principle and the test indicated therein which has to be applied in all such cases. Read in this manner the conclusion reached ,in each of the subsequent decisions satisfies this test. In Kartic Chandra Guha v.

The State of West Bengal and others, [1975] 3 sec 490 the order of preventive detention passed while the detenu was in custody was upheld since there was a likelihood of his release on bail and resuming his desperate criminal activities prejudicial to the maintenance of public order. The facts of that case, therefore, justified making the detention order according to the test laid down by the Constitution Bench in Rameshwar Shaw's case (supra). Dr. Ramakrishna Rawat v. District Magistrate, Jaba/pur and another, [1975] 4 sec 164 was a case in which the order of detention was passed while the detenu was in jail custody in a proceeding under section 151 read with section 117 Cr. P. C.

The detention order was upheld since the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past, the detaining authority could reasonably reach its subjective satisfaction that the detenu had the tendency to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code. In Vijay Kumar v. State of Jammu & Kashmir and others, I1989) 2 sec 43 the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail. The further question of the detaining authority's subjective satisfaction that it was necessary even then to make an order for preventing him from acting in a manner prejudicial to the security of the State did not, therefore, arise.

While dealing with this aspect the correct position was reiterated as under: "Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that \. the person against whom an order of preventive detention 1 is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order.

" (at page 48) It is obvious that in this decision also the test indicated by the Constitution Bench in Rameshwar Shaw's case (supra) was applied and the detention order was quashed on that basis. In Alijan Mian and another v. District Magistrate, Dhanbad, I [1983I 3 SCR 939 the detention order was upheld even though the . . \ detenu was in jail custody on the date of passing of the detention order because the detention order showed that the detaining authority was alive to the fact and yet it was satisfied that if the detenu was enlarged on bail, which was quilt; likely, he would create problems of public order which necessitated his preventive detention. In Ramesh Yadav N. M. RANI v. GOVT. OF TAMIL NADU [VERMA, J. ] 917 v. District Magistrate, Etah and others, [1985] 4 SCC 232 the detention iorder was passed when the detenu was in jail on the mere apprehen~ ;ion of likelihood of grant.

of bail on the basis of some stale grounds and a ground in respect of which the deienu had already been acquitted. It is obvious that even with the likelihood of grant of bail, the grounds of detention being stale or non-existent on the ground of the detenu's acquittal, they did not satisfy the required test of the deten- · tion order. being based on valid grounds showing detenu's activities proximate in point of time to justify the detaining authority's satisfacj tion as reasonable. It was observed in passing that if the apprehension of the detaining authority about the likelihood of grant of bail was correct then it was open to challenge the bail order in a higher forum. This observation has accordingly to be read in the context of the facts in which it was made. In Binod Singh v.

District Magistrate, Dhanbad, Bihar and others, (1986) 4 SCC 416 the detention order was held to be invalid because the jail custody of the detenu at the time of service of ~ the order as also the prospect of his release were not considered while making the d~tention order. It was held that the detenion order was invalid on the ground of non-application of mind to these relevant factors even if the detention was otherwise justified. The decision in Rameshwar Shaw's case (supra) was relied on and it was reiterated as under: , I "If a man is in custody and there is no imminent possibility ;~ of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail.

There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit or the officer. If there were cogent + materials for thinking that the detenu might be released then these should have been made apparent. " ( (at pages 420-421) I_n Poonam Lata v. M. L. Wadhawan and another, (1987] 4 SCC 48 it was reiterated that detenu being already in jail at the time of passing I'~ , detention order does not by itself vitiate the detention if the detaining . authority is aware of this fact but even then it is satisfied about the ·• necessity of preventive detention. The Constitution Bench decision in Rameshwar Shaw's case (supra) and the other earlier decisions were . ' ' ·A referred while ieaching this conclusion.

The correct position was -treiterated and summarised as under: "It is thus clear that the fact that the detenu is alreaJy in .. , . detention does not take away the jurisdiction of the detain- :~ . ing authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied ·that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that ·the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. " · (at page 58) . . ~recent decision on the point is Smt. Shashi Aggarwal v. State of U. P.

and others, [1988] 1SCC436 in which also the settled principle is reiterated and it is pointed out that the ultimate decision depends on the facts of a particular case, the test to be applied remaining the same, as indicated in Rameshwar Shaw's case (supra). It was also pointed out in this decision that the earlier decisions of the Supreme Court in I Ramesh Yadav, (supra) and Binod Singh, (supra) do not run counter t- · to the decision in Alijan Mian's case (supra). In each of these cases the conclusion 'was reached on the facts of the particular case, the test . applied being the same. · Similarly, in this decision it was once again pointed out that the detenu being already in jail, the mere possibility · of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detenu would _ · F·. indulge in activities prejudicial to the maintenance of public order in case of his release on bail.

The detention order in that case had been made' merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being hailed out. n was, . thertiore, held that the mere possibility of his release on bail and a bald statement that the detenu would ~epeat his criminal activities was a· alone not sufficient to sustain the order of preventive detention in the absence of any . material on the record to show that if released on bail he was likely to commit activities prejudicial to the maintenance of public order. The detention order in that case was quashed on the' ground that the requisite material to entertain such an apprehension reasonably was not present. The conclusion reached therein, on the facts and circumstances of the case, is as under: "In the instant case,·there was no material made apparent on record that the detenu, if released on bail, is likely to commit activities prejudicial to the maintenance of public order.

The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of being bailed out. We do not think that the order of detention could be justified only on that basis. " (at page 440) A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw's case (supra). The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw's case (supra) for the obvious reason that all subsequent decisions were by benches comprised on lesser number of Judges.

We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw's case (supra). We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the , - State or to the maintenance of public order etc.

ordinarily it is not, needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal pO"sition. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone.

The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample mate- ~rial to prove the detenu's complicity in the Bank dacoity including ' sharing of the booty inspite of absence of his name in the F. LR. as one of the dacoits. On these facts, the order of detention passed in the present case on 7. 9. 1988 and its confirmation by the State Government on 25. 10. 1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release.

It does not satisfy the test indicated by the Constitution Bench in Rameshwar Shaw's case (supra). We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention. Consequently, the aforesaid order of detention dated 7. 9. 1988 passed by the Collector and District Magistrate, Madurai, and the order of confirmation dated 25. 10. 1988 by the Government of Tamil Nad11 are quashed. The appeal and the writ petition are allowed. This, however, will not affect the detenu's custody in connection with the criminal case under section 397 I. P. C. We may also clarify that in case the detenu is released in the aforesaid criminal case, the question of his preventive detention under the Act on the above material may be reconsidered by the appropriate authority in accordance with law and this judgment shall not be construed as an impediment for that purpose. No costs. R. N. J. Appeal and Petition allowed. · '