CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 511 of 1989.
From the Judgment and Order dated 6.3.1989 of the Madras High Court in W.P. No. 14828 of 1988. WITH Writ Petition (Criminal) No. 205 of 1989. (Under Article 32 of the Constitution of India). U.R. Lalit and V. Balachandran for the Appellant/Petitioner.
K. Rajendra Chowdhary, V. Krishnamurthy and S. Thananjayan for the Respondents. The Judgment of the Court was delivered by VERMA, J. Special leave granted.
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 of 1980) (hereinafter referred to as "the Act"). An order dated 7.9.1988 was made by the Collector and District Magistrate, Madurai, under section 3(2) of the Act directing that the detenu be kept in custody in the Central Prison, Madurai. Thereafter, the State Government 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 months from the date of his detention. This preventive detention of the detenu was 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-petitioner 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 leave, 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 397 I.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 I.P.C. and of remand to custody by the Magistrate as well as the contents of the bail application dated 22.8.1988 which was rejected by the Magistrate were not taken into account by the detaining authority before passing the order of detention dated 7.9.1988 which also renders the detention order invalid. On the other hand, Shri Chaudhary, learned counsel for the respondents contended that even assuming that some documents referred in the grounds of detention were material and were not supplied to the detenu the effect is not to invalidate the detention order for that reason alone in view of section 5A of the Act which has been inserted by Act 60 of 1984 with effect from 21.6.1984 since the detention order can be sustained even on the remaining grounds. In respect of the detenu’s custody in connection with the offence under section 397 I.P.C. and rejection of his bail application, it was urged that this fact was considered by the detaining authority and, therefore, it does not result in any infirmity. Shri Lalit, on behalf of the appellant-petitioner, further contended that section 5A of the Act cannot be construed in the manner suggested by the learned counsel for the respondents since the guarantee to the detenu under Article 22(5) of the Constitution results in invalidating the entire detention order as claimed by him.
The material facts mentioned in the detention order and its annexure are now stated. A branch of the Bank of Madura is located in a rented accommodation in flat No. 634, K.K. Nagar in Madurai. On 6.8.1988, the Bank Manager and the staff of the Bank were attending to the business of the Bank which then had 443 packets containing valuable ornaments weighing about 20,576.150 grams valued at about rupees sixty-two lakhs and cash amounting to Rs.38,945.00. These gold ornaments were pledged with the Bank as security for loans advanced by the Bank of certain borrowers. At about 10.55 A.M. on 6.8.1988 the Bank was looted and these ornaments and cash were taken away by armed dacoits on the point of revolver after locking the Bank employees and customers in the strong room. The dacoits escaped in an ambassador car with registration No. TDL-9683 and a motorcycle bearing registration No. TNK-6727. The dacoits are stated to be one Karuna and some other Sri Lanka nationals who were temporarily living in a nearby flat which was in the possession of the detenu. It is stated that the ambassador car used in the dacoity had been stolen on 4.8.1988 from Quilon in the State of Kerala by Karuna and his companions. It is further stated that the dacoity was committed in order to fund the militant organisation known as Tamil Nadu Makkal Viduthalai Eyakkam with which the detenu has been associated and that the detenu along with these Sri Lanka nationals belonging to the Sri Lanka militant organisation had entered into a criminal conspiracy to commit these cognizable offences. The object of these militant organisations is to achieve a separate Tamil Ealam in Sri Lanka and to secure secession of Tamil Nadu from the Union of India by violent means. It is further stated that the detenu received from Karuna through Ajanth and Pinto a share of the booty comprising of gold ornaments weighing about 8325. 150 grams valued at about Rs.25 lakhs and Rs. 15,000.00 in cash which was a part of the booty looted from the Bank on 6.8.1988 in addition to a box containing one revolver, 2 pistols, 3 grenades, 6 bombs and a knife. It is further stated that on 9.8.1988 the detenu took Karuna and Ajanth in his car bearing registration No. TNU8500 to Madras along with Babu and Rajendran and subsequently on 10.8.1988 the detenu sent them to Nellore in Andhra Pradesh in his car to help them escape. It is also stated that a note was sent by the detenu to the news media in the name of Tamil Nadu Makkal Viduthalai Eyakkam owning responsibility for the dacoity and threatening the law enforcement agency and the Government servants with dire consequences if they attempted to apprehend them. It is then said that on 21.8.1988 the detenu was arrested at Samayanallur while he was driving his car bearing registration No. TNU-8500 towards Madurai when he made a voluntary confession in the presence of witnesses. The car bearing registration No. TNU-8500 was seized at 19.15 hours on 21.8.1988 in front of Samayanallur Police Station and the detenu’s confession led to recovery of gold ornaments weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with Bank tags and chits and a set of keys from the detenu’s house on 21.8.1988 at 20.15 hours. In pursuance to detenu’s confession recovery was also made of a box containing one revolver, 2 pistols with ammunition, 3 grenades, 6 bombs and one knife from the house of Anandan, an employee of the detenu in Madurai. Further recovery of a bag containing gold ornaments weighing about 1015.600 grams valued at Rs.3,05,000.00 was made from the shop of Vijayakumar in Madurai and Vijayakumar also made a confession pursuant to which the recovery was made of gold ornaments weighing about 25.900 grams from Gurumoorthy. Subsequently, these ornaments were identified as those which had been looted in the above-mentioned dacoity on 6.8.1988. It is on these grounds that the impugned detention order dated 7.9.1988 was passed for the detenu’s preventive detention under the Act.
The detention order as well as its annexure containing the relevant ground of detention are quoted as under:
"ANNEXURE ’A’
N.S.A. NO. 73/88 Dated:
7.9.1988
Collector and District Magistrate, Madurai, am
satisfied with respect to the person known as
Thiru Nallathambi @ Thambi, male, aged 30
years, S/o (late) Thiru S. Mathu, residing at
Block No. 2, H.I.G. Colony, Anna Nagar, Madu-
rai Town that with a view to preventing him
from acting in any manner prejudicial to the
maintenance of public order, it is necessary
to make the following order.
(2) Now, therefore, in exercise of
the powers conferred by sub-section (2) of
section 3 of the National Security Act, 1980
(Central Act 65 of 1980) read with orders
issued by the Government in G.O. Ms. No. 1169,
public (L & O-F) Department, dated 3.8.1988
under sub-section (3) of the said Act, I
hereby direct that the said Thiru Nallathambi
@ Thambi be detained and kept in custody in
the Central Prison, Madurai.
Given under my hand and seal of
office, this the 7th day of September, 1988.
sd/-
Collector
and District
Magistrate,
Madurai
To
Thiru Nallathambi @ Thambi,
S/o (Late) Thiru S. Mathu,
Block No. 2, H.I.G. Colony,
Anna Nagar,
Madurai-20.
(Now in Central Prison, Madurai as remand
prisoner)
Through. Thiru V.S. Ganapathy, Deputy Superin-
tendent of Police, Tirupparankundram, Madurai
City, for service under acknowledgement."
"ANNEXURE ’B’
N.S.A. No. 73/88 Dated
7.9.88
Sub: National Security Act, 1980 (Central Act
65 of 1980)--detention of Thiru Nallathambi
alias Thambi, Male aged 30 years, S/o (Late)
S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madu-
rai u/s. 3(2) of the National Security Act,
1980--Grounds of detention.
A detention order under section 3(2) of
the National Security Act (Central Act 65 of
1980) has been made on Thiru Nallathambi alias
Thambi, male, aged 30 years, s/o (Late) S.
Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai
vide order NSA No. 73/88 dated 7.9.1988.
(2) The grounds on which the said deten-
tion has been made are as follows:
XXX
(9) In furtherance of the conspiracy Thiru
Nallathambi sent a note to the news media in
the name of Tamil Nadu Makkal Vidhuthalai
Eyakkam owning responsibility for the dacoity
and threatening the law enforcement agency and
Government servants with dire consequences if
they dare to apprehend them.
(10) On 21.8.88 at 1400 hours, Thiru
Nallathambi, was arrested at Samayanallur
while he was driving his car TNU 8500 towards
Madurai. He gave a voluntary confession which
was recorded in the presence of witness (1)
Kulanthani Anandan, Village Administrative
Officer, Sathamgalam and (2)Pannerselvam,
Village Administrative Officer, Thiruppalai.
The car TNU 8500 was seized at 1915 hours on
21.8.88 in front of Samayanallur Police Sta-
tion. In pursuance of his confession gold
jewels weighing about 7275.750 grams valued at
Rs.21,85,000.00 in 172
bags and 19 empty bags with bank tags and
chits and a set of key were recovered from his
house on 21.8.88 at 20.15 hours. Further in
pursuance of his confession a box containing 1
revolver, 2 pistols with ammunition, 3 gre-
nedes, 6 bombs, 1 knife was recovered from the
house of accused Thiru Anand located in 27,
Lakshimipuram, 6th Street, Madurai who is also
an employee under Thiru Nallathambi. Further
pursuant to his confession a bag containing
gold jewels weighing about 1015.600 grams
valued Rs.3,05,000.00 was recovered from the
moulding workshop of accused Thiru Vijayakumar
located in 10-A, Bharatiar Main Street, K.
Pudur, Madurai. Pursuant to the confession of
Thiru Vijayakumar gold jewels weighing about
25.900 grams was recovered from the accused
Thiru Gurumoorthy. The above jewels recovered
were identified to be stolen from the Bank of
Madura on 6.8.88.
from the scene of occurrance in Bank of Madu-
ra, K.K. Nagar Branch, Madurai tallied with
the fingerprints of accused Thiru Karuna.
from the ambassador car TDL 9683 which
was abandoned at new Mahali Party Street,
Madurai after the commission of armed dacoity
tallied with the finger-prints of accused
Thiru Karuna.
from the ambassador car TDL 1919 and TDT 3699
which were used in earlier attempts tallied
with the finger-prints of accused Thiru Karu-
na.
(18) I am aware that Thiru Nalla-
thambi is in remand and would be proceeded
with under normal law. Though the name of
Thiru Nallathambi does not find a place in the
F.I.R. and though he has not physically par-
ticipated in the commission of the armed
dacoity, a reading of the records and the
statement clearly disclosed the facts that
Thiru Nallathambi, was an active participant
in the said conspiracy to loot the K.K. Nagar
branch of the Bank of Madura. In
furtherance of the conspiracy Thiru Nallatham-
bi had made preparation for the commission of
the armed dacoity as discussed in para 4
above. Further Thiru Nallathambi had received
a portion of booty of gold jewels weighing
about 8325. 150 grams valued Rs.25 lakhs and
cash Rs. 15,000.00 from the stolen jewels and
cash robbed from the abovesaid Bank and re-
ceived a box containing 1 revolver, 2 pistols,
3 grenades, 6 bombs and a knife used in the
commission of offence. Subsequently, the said
jewels, firearms and bombs mentioned above
were recovered in pursuance of the confession
of Thiru Nallathambi. Further Thiru Nallatham-
bi sent a notice to the News Media in the name
of "Tamil Nadu Makkal Vidhuthalai Eyakkam"
owning responsibility of the armed dacoity and
threatening the law enforcement agency and
Government servants with dire consequences if
they dare to apprehend them. Therefore, as a
detaining authority I am satisfied that there
is compelling necessity warranting the deten-
tion of Thiru Nallathambi under the National
Security Act and if Thiru Nallathambi is
allowed to remain at large it will not be
possible to prevent him from indulging in
activities prejudicial to the maintenance of
public order.
(19) I am also satisfied on the
materials mentioned above that if Thiru Nalla-
thambi is allowed to remain at large, he will
indulge in further activities prejudicial to
the maintenance of public order and further
the recourse to normal law would not have
their desired effect of effectively preventing
him from indulging in activities prejudicial
to the maintenance of public order and, there-
fore, I consider that it is necessary to
detain him in custody with a view to prevent-
ing him from acting in any manner prejudicial
to the maintenance of public order.
XXX."
The first argument of the learned counsel for the appellantpetitioner is based on the above quoted grounds in para Nos. 11, 12 and 13 relating to the chance printes developed from the scene of occurrence in the Bank, the ambassador cars TDL 9683, TDL 1919 and TDT 3699 which tallied with the finger-prints of Karuna, 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(5) 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 5A 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 5A of the Act. Learned counsel for the appellant-petitioner also contended that such a result is not envisaged by section 5A 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 5A 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 provided in section 3 with reference to the remaining grounds or ground. 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 5A 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 5A 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 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 also be considered before we deal with the last contention on which we propose to quash the detention order. The second contention is that the detenu’s arrest in connection with the Bank dacoity 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 newspapers but those newspaper reports are not shown to have been placed before the 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 requiring his preventive detention with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order. The newspaper reports indicating that the detenu was already in custody could at best be relevant only to show the fact that he’ was already in detention prior to the making of the detention order. We have already mentioned that this fact of the detenu’s custody before the making of the order of detention on 7.9.1988 was known to the detaining authority and its effect is a separate point considered later. The other contents of the newspaper reports had no other relevance for this purpose. This contention of learned counsel for the appellantpetitioner is, therefore, rejected.
The last contention of learned counsel is based on the fact that the detenu was already in custody in connection with the Bank dacoity when the order of detention was made on 7.9.1988. It is also clear that on 22.8.1988 the detenu had moved a bail application which had been rejected and he had been remanded to custody. It is significant that the detention order itself describes the detenu as a person in custody in the Central Prison at Madurai and the order was served on him through the Superintendent of the Prison. The question now is of the effect of the detenu’s earlier custody on the validity of the detention order.
The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the detenu was already in custody in connection with the Bank dacoity at the time of making the detention order. The fact that the detenu’s application for grant of bail in the dacoity case had been rejected on 22.8.1989 and he was remanded to custody for the offence of bank dacoity punishable under section 397 I.P.C. is also evident from the record. The detention order came to be made on 7.9.1988 on the above grounds in these circumstances. In the detention order the detaining authority recorded its satisfaction that the detenu’s preventive detention was necessary to prevent him from indulging in activities prejudicial to maintenance of public order in which he would indulge if he was allowed to remain at large. The above quoted paragraphs 18 and 19 of the Annexure to the detention order clearly disclose this factual position. However, it may be pointed out that the detention order read along with its annexure nowhere indicates that the detaining authority apprehended the likelihood of the detenu being released on bail in the dacoity case and, therefore, considered the detention order necessary. On the contrary, its contents, particularly those of the above quoted paragraph 18 clearly mention that the detenu had been remanded to custody for being proceeded against in due course and even though his name was not mentioned in the F.I.R. as one of the dacoits who participated in the commission of the armed Bank dacoity yet the documents clearly revealed that the detenu was an active participant in the conspiracy to loot the bank in furtherance of which the dacoity was committed; and that considerable booty of that crime including weapons, bombs and hand-grenades were recovered from his possession pursuant to the detenu’s confession made after his arrest. These averments in the detention order indicate the satisfaction of the detaining authority that in its view there was ample material to prove the detenu’s active participation in the crime and sharing the booty for which offence he had already been taken into custody. This view of the detaining authority negatives the impression of likelihood of detenu being released on bail.
The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reasonable basis for making the detention order and serving it on the detenu during his custody? We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan & Anr., [964] 4 SCR 92 1. All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of Judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw’s case (supra).
The detention order in Rameshwar Shaw’s case (supra) was made and also served on the detenu while he was in jail custody. The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of a criminal complaint against him. The Constitution Bench considered the effect of the detenu’s subsisting detention at the time of making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release. It was indicated that the detenu’s subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order. The position of law was summarised by their Lordships as under:
"As an abstract proposition of law, there may
not be any doubt that s. 3(1)(a) does not
preclude the authority from passing an order
of detention against a person whilst he is in
detention or in jail; but the relevant facts
in connection with the making of the order may
differ and that may make a difference in the
application of the principle that a detention
order can be passed against a person in jail.
Take for instance, a case where a person has
been sentenced to rigorous imprisonment for
ten years. It cannot be seriously suggested
that soon after the sentence of imprisonment
is pronounced on the person, the detaining
authority can make an order directing the
detention of the said person after he is
released from jail at the end of the period of
the sentence imposed on him. In dealing with
this question, again the considerations of
proximity of time will not be
irrelevant. On the other hand, if a person who
is undergoing imprisonment, for a very short
period, say for a month or two or so, and it
is known that he would soon be released from
jail, it may be possible for the authority to
consider the antecedent history of the said
person and decide whether the detention of the
said person would be necessary after 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 deten-
tion 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 circum-
stances of each case.
The question which still remains to
be considered is: can a person in jail custo-
dy, like the petitioner, be served with an
order of detention whilst he is in such custo-
dy?
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 or his antecedent history that he has
been acting in a prejudicial 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 prejudi-
cial manner, the authority has to be satisfied
that if the person is not detained, he would
act in a prejudicial manner and that inevita-
bly postulates freedom of action to the said
person
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 the
point of time when an order of detention is
going to be served on a person, it must be
patent that the said person would act prejudi-
cially 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 neces-
sary to detain a person for the purpose of
preventing him from acting in a prejudicial
manner is thus the basis of the order under s.
3(1)(a), and this basis is clearly absent in
the case of the petitioner. Therefore, we see
no escape from the conclusion that the deten-
tion of the petitioner in the circumstances of
this case, is not justified by s. 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 of Assam & Ors., A.I.R. 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 SCC 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. Rarnakrishna Rawat v. District Magistrate, Jabalpur and another, [1975] 4 SCC 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, [1989] 2 SCC 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 is being made is to the
knowledge of the authority already in jail and
yet for compelling reasons a preventive deten-
tion 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 inval-
idation 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, [1983] 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 quite likely, he would create problems of public order which necessitated his preventive detention. In Ramesh Yadav v. District Magistrate, Etah and others, [1985] 4 SCC 232 the detention order was passed when the detenu was in jail on the mere apprehension of likelihood of grant of bail on the basis of some stale grounds and a ground in respect of which the detenu 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 detention order being based on valid grounds showing detenu’s activities proximate in point of time to justify the detaining authority’s satisfaction 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 detention order. It was held that the detention 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:
"If a man is in custody and there is no immi-
nent 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) In 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 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 referred while reaching this conclusion. The correct position was reiterated and summarised as under:
"It is thus clear that the fact that the
detenu is already in detention does not take
away the jurisdiction of the detaining author-
ity in making an order of preventive deten-
tion. 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)
A recent decision on the point is Smt. Shashi Aggarwal v. State of U.P. and others, [1988] 1 SCC 436 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 Ramesh Yadav, (supra) and Binod Singh, (supra) do not run counter 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 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 bailed out. It was, therefore, held that the mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was 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 activi-
ties 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 position.
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 material to prove the detenu’s complicity in the Bank dacoity including sharing of the booty inspite of absence of his name in the F.I.R. 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 Nadu 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.