Writ Petition Crimi nal No 200 of 1989
Under Article 32 of the Constitution CP Mittal for the Petitioner
Anil Dev Singh Yogeshwar Prasad Ms Kitty Kumar Manga lam Ms A Subhashini Anil Malik and D Bhandari for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This petition under Article 32 of the Constitution challenges the detention of the peti tioner a detenu under section 32 of the hereinafter called the Act 
The petitioner is a bachelor
He does not own any property
The order for detention under section 32 of the Act was passed on April 15 1988 by the District Magistrate Meerut
In the grounds of detention it is stated that on the night of 23rd April 1988 which was an occasion of Shabberat festival a muslim festival the religious celebration was going on at Gudfi Chaupala
At about 11 pm in the night on that day a cow belonging to the muslims of Ismail Nagar came from Sabun Garan towards Chaupal Gudri and was going towards Ismail Nagar and according to the order of detention some unde sirable elements  59 present there did not allow the cow to go on the right way and she again came towards Chaupala Gudri and was made to run avoiding the crowd towards Nakaar Chian but near the shop of Haj Dhola some undesirable elements  stopped the cow and poked a wood piece on her back
Due to this the cow started pumping and himping and ran inside the celebration
It is stated that at this the petitioner came to the stage got excited and spread the rumor that the police had not made any arrangements
It was stated that the cow belonged to the Hindus and had been deliberately sent inside the festival and other provoking things
Due to the aforesaid the people started running and communal feelings got around
It is stated in the order of detention that in this way the petitioner had committed an act which was prejudicial to the maintenance of public order
Again on 9th April 1988 at about 9 pm near Transformer at Gudri Chaupala PS Kotwa li the petitioner is alleged to have provoked some per sons of the muslim community by saying that the adminis tration even now has not allowed to get a loud speaker fixed here and all of you are silent get a loud speaker on the Mosque and we will see
I am with you
 It is also stated that the petitioner had also said that on the occasion of Shabberat these Hindus had deliberately sent their cow on the road for their festive celebrations and the people are silent
He had also said about teaching them a lesson
It was stated that due to the aforesaid bad act communal feelings got aroused in the Meerut City and fear and terror got spread and in this way the petitioner had done an act which was prejudicial to maintenance of public law and order
In the aforesaid it was stated that for the reasons mentioned hereinbefore there was possibility of the petitioner doing such an act and therefore in order to restrain the petitioner from doing so it is necessary to detain him
Accordingly the order was passed with conse quential directions and information
As mentioned hereinbefore the alleged incidents were on 234th April 1988 as well as 9th April 1988
The order of detention hereinafter referred to the order  was made on 15th April 1988
The petitioner was arrested pursuant to the said order on 2nd October 1988
There was representa tion but the same was rejected and the order of detention was confirmed
In this petition various grounds have been taken before this Court challenging the order under Article 32 of the Constitution
Mr CP Mittal learned counsel for the petitioner however urged 60 before us three grounds upon which he contended that the said order be quashed or set aside
It was submitted by Mr Mittal that there was inordinate delay in arresting the petitioner pursuant to the order which indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order and that preventive detention of the petitioner was necessary for preventing him from such conduct
He further submitted that delay in the circumstances of this case in arresting the petitioner and or in acting pursuant to the order indi cated that the so called grounds were merely make belief and not genuine grounds upon which the satisfaction of the authority concerned was based
In answer to this contention on behalf of the Distt
Magistrate Meerut by an affidavit affirmed on 28th August 1989 and filed in these proceedings stated that raids on the petitioner s premises for the service of the order dated 1541988 were conducted
It was further stated that the respondent authorities had made all efforts to serve the order on the petitioner and for this purpose the house of the petitioner was raided on several occasions and a refer ence was made to the general diary report details whereof were extracted in the affidavit
The details indicate that in respect of the order dated 1541988 the first raid was made in the house of the petitioner on 12th May 1988 followed by eight other attempts up to the end of May 1988 to arrest the petitioner but he was not available
There was however no attempt in the months of June July Au gust  88 but on 23 25  29th September 1988 three attempts were made and as such it was stated on behalf of the re spondents the order could not be served before 2nd October 1988
According to the District Magistrate the respondent authorities did not leave any stone unturned to arrest the petitioner
It was however stated that from May 1988 to September 1988 the entire police force of Meerut City was extremely busy in maintaining law and order but the peti tioner was all along absconding in order to avoid the serv ice of the order
The District Magistrate has further stated that during the period from May to September 1988 great communal tension was prevailing in the Meerut City and a large number of people were arrested on account thereof
The question that requires consideration is whether there was in ordinary delay
The detention under the Act is for the purpose of preventing persons from acting in any manner prejudicial to the maintenance of public order
Subsection 2 of section 3 of the Act authorises the Central Govt
or the State Govt
 if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of 61 the State it is found necessary then the person can be detained
Hence there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the petitioner which are prejudicial to the maintenance of public order
Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct it is necessary to make an order detain ing such person are subject to judicial review
Counsel for the petitioner contends that in the aforesaid facts and the circumstances if the conduct of the petitioner was such that it required preventive detention not any punitive action for the purpose of preventing the person concerned from doing things or indulging in activities which will jeopardise hamper or affect maintenance of public order then there must be action in pursuance of the order of detention with promptitude
Delay unexplained and not justified by the circumstances and the exigencies of the situation is indicative of the fact that the authorities concerned were not or could not have been satisfied that preventive custody of the person concerned was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order
Whether there has been unrea sonable delay depends upon the facts and the circumstances of a particular situation
Preventive detention is a serious inroad into the freedom of individuals
Reasons purposes and the manner of such detention must therefore be subject to closest scrutiny and examination by the courts
In the interest of public order for the greater good of the commu nity it becomes imperative for the society to detain a person in order to prevent him and not merely to punish him from the threatened or contemplated or anticipated course of action
Satisfaction of the authorities based on conduct must precede action for prevention
Satisfaction entails belief
Satisfaction and belief are subjective
Actions based on subjective satisfaction are objective indication of the existence of the subjective satisfaction
Action based on satisfaction should be with speed commensurate with the situation
Counsel for the petitioner submitted that in this case there was no material adduced on behalf of the Govt
indicating that the petitioner was absconding
It was urged that there are no material at all to indicate that the petitioner was evading arrest or was absconding
It was submitted that section 7 of the Act gave power to the authorities to take action in case the persons were absconding and in case the order of detention cannot be executed
It is stated that in this case no warrant under section 7 of the Act has been issued in respect of his property or person
Hence it was contended that the respondent was not justified in raising the plea that the petitioner was absconding
We are howev er unable to accept this contention
If in a situation the 62 person concerned is not available or cannot be served then the mere fact that the action under section 7 of the Act has not been taken would not be a ground to say that the detention order was bad
Failure to take action even if there was no scope for action under section 7 of the Act would not be deci sive or determinative of the question whether there was undue delay in serving the order of detention
Furthermore in the facts of this case as has been contended by the Government the petitioner has no property no property could be attached and as the Govt s case is that he was not available for arrest no order under section 7 could have been possibly made
This however does not salvage the situation
The fact is that from 15th April 1988 to 12th May 1988 no attempt had been made to contact or arrest the petitioner
No explanation has been given for this
There is also no explanation why from 29th September 1988 to 2nd October 1988 no attempt had been made
It is however stated that from May to September 1988 the entire police force  was extremely busy in controlling the situation
Hence if the law and order was threatened and prejudiced it was not the conduct of the petitioner but because of the inadequacy  or inability of the police force of Meerut City to control the situation
Therefore the fact is that there was delay
The further fact is that the delay is unexplained or not warranted by the facts situation
To shift the blame for public order situation and raise the bogey of the conduct of the petitioner would not be proof of genuine or real belief about the conduct of the petitioner but only raising a red herring
This question was examined by this Court in Nizamuddin vs The State of West Bengal  The question involved therein was under section 32 of the Internal Security Act 1971
There was delay of about two and a half months in detaining the peti tioner pursuant to the order of detention and the Court considered that unless the delay was satisfactorily ex plained it would throw considerable doubt on the genuine ness of the subjective satisfaction of the Distt
Magistrate recited in the order of detention
Mr Justice Bhagwati as the learned Chief Justice then was speaking for the Court observed at page 595 of the report that it will be reasona ble to assume that if the Distt
Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner he would have acted with greater promp titude in securing the arrest of the petitioner immediately after invoking of the order of detention and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities
It is however not the law that whenever there is some delay 63 in arresting the subjective satisfaction of the detaining authority must be held to be not genuine or colourable
Each case must depend on its own peculiar facts and circum stances
In this case from the facts and the circumstances set out hereinbefore we find no reasonable or acceptable explanation for the delay
In a situation of communal ten sion prompt action is imperative
It is therefore not possible for this Court to be satisfied that the District Magistrate had applied his mind and arrived at real and genuine subjective satisfaction that it was necessary to detain the petitioner to prevent him from wrong doing
The condition precedent therefore was not present
But as Justice Chinnappa Reddy explained in Bhawarlal Ganeshmalji vs State of Tamil Nadu  Anr 1979 2 SCR 633 at page 638 that there must be live and proximate link  between the grounds of detention alleged by the detaining authority and the avowed purpose of detention and in appropriate cases it is possible to assume that the link is snapped  if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu
Mr Yogeshwar Prasad learned counsel for the State of UP drew our attention to the decision of this Court in Indradeo Mahato vs State of West Bengal 1973 4 SCC 4
That was also a case of arrest under the 
It was urged in that case that there was no real or genuine apprehension that the petitioner there was likely to act in a manner prejudicial to the maintenance of public order
This Court in the facts of that case was unable to accept the said contention
The Court held that mere failure to take recourse to sections 87  88 of the Criminal Procedure Code would be a warrant to believe that the delay was unrea sonable
Whether the delay was unreasonable depends on the facts and the circumstances of each case
We are satisfied in view of the facts and circumstances of the case mentioned before that by the conduct of the respondent authorities there was undue delay delay not commensurate with the facts situation in this case
the conduct as aforesaid betrayed that there was no real and genuine apprehension that the petitioner was likely to act in any manner prejudicial to public order
The order therefore is bad and must go
The next ground urged in support of this application was that the grounds mentioned were not germane to maintenance of public order 
It was submitted that the petitioner has only alleged inefficiency or incompetency of the police either in providing a loud speaker or in ensuring that the cows do not enter into or within the arena of muslim festi vals
It was submitted that the criticism of the administra tion is not endangering public order
Mr Mittal submitted that it was not a question of law and order but public order that is important in 64 this case
What the petitioner has alleged to have done may have some relevancy to the purpose of securing law and order but there cannot be any rational nexus with the satisfaction regarding the maintenancy of public order
By the conduct alleged or the saying attributed as mentioned above public order was not prejudiced
Criticism of Police does not prejudice public order it is said
The Court has to ensure that the order of detention is based on materials before it
If it is found that the order passed by the detaining au thority was on materials on record the Court can examine the record only for the purpose of seeing whether the order of detention was based on no material or whether the materi als have rational nexus with satisfaction that public order was prejudiced
Beyond this the Court is not concerned
See the observations of The State of Gujarat vs Adam Kasam Bhaya  The difference between public order and law and order is a matter of degree
If the morale of the police force or of the people is shaken by making them lose their faith in the law enforcing machinery of the State then prejudice is occasioned to maintenance of public order
Such attempts or actions which undermine the public faith in the police administration at a time when tensions are high affects maintenance of public order and as such conduct is prejudicial
See in this connection Indradeo Mahato s case supra Subhash Bhandari vs Distt
Magistrate Lucknow  Ors  and Kanu Biswas vs State of West Bengal  Therefore we are unable to accept the contention that the grounds were not relevant for the order of detention under the Act
This contention of Mr Mittal must therefore fail
The last contention was that the grounds mentioned were vague and unintelligible
It was not stated it was urged that as to what the petitioner said to whom the rumour was spread as mentioned in ground No 1 and what other provok ing things the petitioner is alleged to have said as al leged in the grounds mentioned before
It was urged it is further not clear as to whom the petitioner wanted to teach a lesson
It has to be borne in mind that if more than one grounds are stated in the grounds then the fact that one of the grounds is bad would not alter order of detention after the amendment of the Act in 1984 provided the other grounds were valid
But quite apart from the same it appears to us that none of the grounds were vague
The grounds must be understood in the light of the background and the context of the facts
It was quite clear what the detaining authorities were trying to convey was that the petitioner stated things of the nature and it was to teach Hindus a lesson
Hence it was meant to create communal tension
We find no irrelevancy or vagueness in the 65 grounds
On this ground the challenge cannot be sustained
However in the view taken by us on the first ground the order of detention must be quashed and set aside
We order accordingly
Let the petitioner be set at liberty forthwith unless he is required for any other offence under any other Act
The application is disposed of accordingly
Y Lal Petition allowed


Summary:
The department took the view that in respect of the yarn manufactured between 17372 and 23772 the assessee is liable to pay the normal duty payable on yarn under Item 18E so long as the fabric manufactured out of such yarn remained uncleared from the factory as on 2471972
On the other hand the assessee s contention was that excise duty on yarn is attracted as soon as it is produced and cleared for captive consumption
The Customs Excise  Gold Control Appellate Tribunal CEGAT accepted the contention of the assessee and held that the yarn cleared for captive consumption during the period from 17372 to 23772 in terms of the special procedure was entitled to the benefit of the rate fixed under Notification No 6272 CE dated 17372 and that no further duty was payable on that quantity of the yarn and a consequential refund to the appellants was directed
Ag grieved by the order of the Tribunal the department pre ferred these appeals to this Court
While dismissing the appeals and upholding the view taken by the Tribunal this Court HELD Rules 96 V  W of the Central Excise Rules deal with two items cotton yarn or yarn falling under item 18E of the First Schedule and woollen yarn
Normally under the schedule to the Act woollen yarn was being charged to excise duty on an ad valorem basis while cotton and other yarn was being assessed on weight basis
92C Yarn is an excisable commodity and but for the special procedure 87 and notification duty thereon is leviable at the point of production and clearance for captive consumption
The duty attached itself at the point of production and clearance of the yarn
The notification does not alter this position
It does not shift the incidence of duty from yarn to the woven fabric
94E F The proviso to Rule 96 W does not help the Revenue
It only contemplates cases where there is a change in the rates prescribed under the notification between the date of pro duction of the yarn and the date of clearance of the fabric
94H 95A The words of the proviso can be extended to cover a case where the notification itself has ceased to apply by the date of clearance of the fabric
To apply the proviso to such a case would result in its applicability to a totally different situation
It would involve a comparison of un likes
95E Crown Spinning  Manufacturing Co Ltd vs Collector  referred to