N Criminal Appeal No 317 of 1986 From the Judgment and order dated 2721986 of the Patna High Court in CWJC No 33 of 1986
With WP CriminalNo 316 of 1986
RK Garg and Miss Rani Jethmalani for the Appellant Petitioner D Goburdhan for the Respondents
907 The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Criminal Appeal No 317 of 1986 arises out of the judgment and order of the High Court of Patna and the Writ Petition No 316 is in respect of the same detenu
Both these challenge the order of detention dated 2nd January 1986 passed by the respondent no1
The District Magistrate Dhanbad in respect of the petitioner under section 32 of the  hereinafter called the Act  on the ground that the petitioner s activities were prejudicial to the maintenance of public order
Several criminal cases had been filed against the petitioner between 3rd January 1983 to 18th February 1985
On or about 2nd January 1985 the order of detention was passed on an incident relating to the exchange of fire between two rival groups
The order states the grounds as follows 1
On 24121985 between 10 and 1030
AM the subject alongwith Ramashish Bangali Gulam Rambriksha armed with Rifle gun etc
came in Car No BHG 9372 on Katras Coal Dump and started indiscriminate firing to kill Birendra Pratap Singh a rival of his calendestine business of coal to establish his criminal superiority in full view of the shopkeepers customers and passers by of the area
Birendra Pratap Singh and his associates who were there also returned the firing in same manner
As a result of this firing one innocent namely Brahamdeo Mishra was killed
The exchange of indiscriminate firing in the main market area of Katras created great panic and alarm in the area
The normal tempo of life was completely disturbed
The people started running helter and skelter for their lives
Shopkeepers put down their shutters
Doors and windows were closed
The vehicular traffic came to halt
This refers to Katras PS Case No 33185 dated 241285 us 14930732 IPC27 Arms Act
Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject
KATRAS PS CASE No 583 dated 3183 us 147 341353307 IPC
In this case subject and his associates tried to set free 908 the trucks and driver from the police custody by force and when he failed in his attempt he threatened the police officer and CISF Personnel to do away with their lives CSNo 583 has already been submitted in this case
Katras PS Case No 30383 us 147148452323 IPC
In this case subject and his associates went to the tailoring shop of Saukat Ansari and asked him to keep his cloths ready by 91083 and on his refusal he assaulted him in presence of customers and others CSNo
19683 has already been submitted in this case
Jogta PS Case No 2284 dated 11384 us 147148 307326353333324325 IPC27 Arms Act
In this case subject and his associates opened fire on police party who went to apprehend Raghunath Singh absconder under NSA
As a result of this indiscriminate firing by him and his associates one Police officer namely Shri RK Verma received serious head injury and is still incapable to work
Charge sheet No 2584 has already been submitted in this case
Jogta PS Case No 985 dated 18285 us 369 307323 324 17634 IPC27 Arms Act
In this case Sisir Rajan Das who was coming in a religious procession on the eve of Shivratri and was dancing in the role of Shiva was compelled by his associates to dance before the marriage party of subject s sister
Sri Sisir Rajan Das however acceded to their request and started dancing
When he was dancing some of the members opened fire on him as a result of which he fell down
The subject and his associates however put his body in his car and fled away
Neither Shri Das nor his body could be traced out till date
909 Charge sheet No 2085 has already been submitted in this case
Emphasis supplied 5
Jogta PS Case No 6885 dated 11285 us 34134 IPC
In this case subject threatened Sri Krishana Ballav Sahay General Secretary Colliery Shramik Sangh Sijua to do away with his life if he takes out any procession or oppose him
It is the case of the detenu that the order of detention was made on one incident relating to exchange of fire between two rival groups
A criminal case had been registered in relation to the said incident pursuant to which the petitioner was already in custody
The order of detention though dated 2nd January 1986 was served on or about 11th January 1986
It is the case of the appellantpetitioner that the detenu was not served with all the documents referred to andor relied on
The detenu was served with order of approval of the said order of detention by the Government of Bihar
The petitionerappellant made representation on 22nd January 1986 and the petitioner appellant was informed that the said representation was rejected
Thereafter the petitioner s appellant s matter was referred to the Advisory Board
The petitionerappellant states that he desired that he should be heard in person by the Advisory Board
The petitionerappellant submits that he was produced before the Advisory Board but he was not given any hearing
By letter dated 22nd February 1986 the petitionerappellant was informed that the Advisory Board had confirmed the order of detention
The petitioner appellant thereafter filed a writ petition in the High Court of Patna which was dismissed without any speaking order
The grounds of challenge are all stated in the writ petition as well as special leave petition
The petitioner appellant was in detention when the petitionerappellant was served with the order of detention
There were criminal cases against the petitioner
There was a murder case in respect of Crime No 331 of 1985
In the said case investigation was in progress and the defence of the petitioner in the murder case was that he was falsely implicated and was not at all concerned with the murder
When the order was passed the petitioner had not surrendered but when the order was served the petitioner had already surrendered in respect of the criminal charge against him
At the relevant time the petitioner was undertrial in the said criminal case
910 It is the contention of the petitionerappellant that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail
The service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under section 32 of the Act
In the affidavit of the District Magistrate the detaining authority it has been stated that the activities of the petitioner s brother and the petitioner have disturbed the normal tempo of life in Katras and Jogta Police Stations in Dhanbad area
The series of offences against the detenu and the manner of their perpetuation which have been noted before indicate a calculated move to create panic and fear in the mind of the people
It further appears from the affidavit f f the District Magistrate filed before the High Court of Patna that the petitioner was absconding from the very day of the issuance of the detention order
There is a statement in the order as follows D Subject is already in jail
He is likely to be enlarged on bail
Hence detention order served in jail
 According to the District Magistrate when police pressure to apprehend him became heavy the detenu opted to surrender before the Sub Divisional Judicial Magistrate on 10th January 1986 in substantive case to frustrate the service of the detention order
It has been further stated that the service of the detention order had been properly made
Grounds were all indicated
All the documents which formed the basis of detention were supplied to the detenu
His representation was duly considered and rejected
The grounds stated that there was indiscriminate firing on 24th December 1985 on Katras Coal Dump and the petitioner started indiscriminate firing to kill Birendra Pratap Singh a rival of his calendestine business of coal to establish the criminal superiority in full view of the shopkeepers customers and passers by of the area
The acts alleged created a terror and not only law and order problem but problem of public order
In those circumstances it appears that the grounds for forming the satisfaction for the need for the detention were there and there was rational nexus between the object of the order as contemplated by the Act and the materials on record
The principles applicable in these types of preventive detention cases have been discussed in the decisions of Suraj Pal Sahu vs State of Maharasthra  Ors WP crl No 2 9686 with SLP crl No 126586 dt
25986 and Raj Kumar Singh vs The State of Bihar  Ors
Crl A 35386 with WP crl 2786 dt
26986
Judged on the basis of 911 the said principles there is no ground for interference with the order of detention as passed
It however appears that after the order of detention was passed and before the actual service of the order of detention the petitioner was taken into custody
From the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and especially in the decisions in Rameshwar Shaw vs District Magistrate Burdwan  Anr  and Ramesh Yadav vs District Magistrate Etah and others though there was a statement to the effect that the petitioner was in jail and was likely to be enlarged on bail
But on what consideration that opinion was expressed is not indicated especially in view of the fact that the detenu was detained in a murder charge in the background of the facts mentioned before
His application for bail could have been opposed on cogent materials before the Court of Justice
In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody of that there was any real danger of his release
Nor does it appear that before the service there was consideration of this aspect properly
In the facts and circumstances of this case therefore the continued detention of the detenu under the Act is not justified
It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection
There must be awareness of the facts necessitating preventive custody of a person for social defence
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 ipso dixit 912 of the officer
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent
Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens
In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors
At least the records of the case do not indicate that
If that is the position then however disreputable the antecedents of a person might have been without consideration of all the aforesaid relevant factors the detenu could not have been put into preventive custody
Therefore though the order of preventive detention when it was passed was not invalid and on relevant considerations the service of the order was not on proper consideration
It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority
The order of detention therefore is set aside
The writ petition and the appeal are allowed to the extent indicated above
This how ever will not affect detenu s detention under the criminal cases
If however the detenu is released on bail in the aforesaid criminal cases the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with the law
There is no statement in the petition that the detenu is on bail
There will therefore be no orders for release of the detenu
MLA Petition and Appeal allowed


Summary:
The respondent passed an order of detention in respect of the appellant under section 32 of the  on the ground that the appellant s activities were prejudicial to the maintenance of public order
Several criminal cases were pending against the appellant when the aforesaid order was passed
The appellant had already surrendered in respect of a criminal charge against him before the order was served
He filed a writ petition in the High Court challenging the detention order but it was dismissed without any speaking order
Aggrieved by the order of the High Court the appellant filed the present criminal appeal by special leave as also a writ petition challenging the aforesaid order of detention on the ground that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail
The service of order of detention on the appellant petitioner while he was in jail was futile and useless since such an order had no application under section 32 of the Act
Allowing the writ petition and the appeal in part  HELD 1
The continued detention of the detenu under the Act is not justified
The order of detention therefore is set aside
However this will not affect detenu s detention under the criminal cases
If however the detenu is released on bail in the criminal cases already pending against him the matter of service of the detention order under the Act may be reconsidered by the appropriate authority in accordance with law
912 E F 906 2
In our constitutional framework the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection
There must be awareness of the facts necessitating preventive custody of a person for social defence
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
911 F G 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
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent
In the affidavits on behalf of the detaining authority though there are indications that transfer of detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of relevant factors
If that is the position then however disreputable the antecedents of a person might have been without consideration of all the aforesaid relevant factors the detenu could not have been put into preventive custody
Therefore though the order of preventive detention when it was passed was not invalid and on relevant considerations the service of the order was not on proper consideration
The order of detention is therefore set aside
911 G H 912 A D Rameshwar Shaw vs District Magistrate Burdwan  Anr  and Ramesh Yadav vs District Magistrate Etc
and others  relied upon