ition Criminal No 584 of 1983
Under article 32 of the Constitution of India RK Garg and DK Garg for the Petitioner
Ravindra Bana and AK Sanghi for the Respondent
The following Judgments were delivered DESAI J I have very carefully gone through the opinion prepared by my learned brother Varadarajan J
But I regret my inability to agree with the same
All the relevant facts and the grounds on which the order of detention was made against the petitioner have been succinctly set out by my learned brother and therefore it is not necessary to recapitulate them here
However the only ground examined by my learned brother is that the order of detention is vitiated on account of taking into consideration grounds Nos 1 and 2 which were stale and not proximate to the time when detention order was made and therefore they are irrelevant and would vitiate the order of detention
Grounds Nos 1 and 2 relate to the events that occurred on March 20 1978 and August 9 1980
The order of detention is made on May 6 1983
In between there are four other incidents involving the detenu dated July 13 1982 July 26 1982 September 8 1982 and January 10 1983
The order of detention is grounded on the subjective satisfaction of the Detaining Authority that with a view to preventing the detenu from acting in any manner prejudicial to the security of Satna City it was necessary to detain the detenu
When criminal activity of a person leads to such a drastic action as detention without trial ordinarily a single stray incident may not unless contrary is shown be sufficient to invoke such drastic power of preventive detention
Ordinarily drastic power of preventive detention without trial is invoked when the normal administration of criminal justice would fail
to prevent the person so acting in a manner set out in sub sec
2 of Sec 3 of the National 320 Security Act 1980
In order to avoid the charge that a stray incident seized upon to invoke such drastic power of preventive detention the authority charged with a duty to maintain public order or assure security of the State may keep a close watch on the activities of the miscreant for some time and repeated indulgence into prejudicial activity may permit an inference that unless preventive detention is resorted to it would not be possible to wean away such person from such prejudicial activity
Therefore when in 1983 an action was proposed to be taken under sub sec
2 of Sec 3 the Detaining Authority examined the history of the criminal activity of the detenu and took into account a continuous course of conduct which may permit an inference that unless interdicted by a detention order such activity cannot be put to an end the power under sub sec
2 of Sec
3 is exercised
Obviously if there is a big time lag between the last of the events leading to the detention order being made and the remote earlier event the same cannot be treated as showing a continuity of criminal activity
But if events in close proximity with each other are taken into account for drawing a permissible inference that these are not stray or spasmodic events but disclose a continuous prejudicial activity the reference to earlier events cannot be styled as stale or remote which would vitiate the order of detention
In this connection one may refer to Gora vs State of West Bengal
This Court after a review of the earlier decisions observed that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention
The question is whether the past activities of the detenu are such that the detaining authority can reasonably came to the conclusion that the detenu is likely to continue in his unlawful activities
This view was affirmed in Smt
Rekhaben Virendra Kapadia vs State of Gujarat and Others
In a recent decision in Firrat Raza Khan vs State of Uttar Pradesh and Ors
this Court held that when both the incidents are viewed in close proximity the propensity of the petitioner to resort to prejudicial activity becomes manifest and the Court therefore rejected the contention that the earlier event was not proximate in point of time and had no rational connection with the conclusion that the detention was necessary for maintenance of public order
321 Turning to the facts of this case if each event is examined in close proximity with each other the events of 1978 and 1980 referred to in grounds Nos 1 and 2 cannot be rejected as a stray or not proximate to the making of the detention order
But they provide the genesis of the continuity of the prejudicial activity of the detenu and they appear to have been relied upon for that limited purpose
I would therefore find it difficult to quash the detention order on the short ground that incidents set out in grounds Nos 1 and 2 are stale and would be irrelevant and therefore the detention order is vitiated
I would therefore uphold the detention order
VARADARAJAN J
This writ petition under Article 32 of the Constitution is for quashing the Order of detention dated 651983 passed by the second respondent District Magistrate Satna as being arbitrary and unreasonable and for the issue of a writ of habeas corpus directing the immediate release of the petitioner Kamlakar Prashed Chaturvedi
There is also another prayer in the petition which cannot be granted in these proceedings and that is to direct the first respondent State of Madhya Pradesh to pay compensation to the petitioner for the wrongful detention
The second respondent passed the Order of detention dated 651983 against the petitioner under section 3 2 of the 
The grounds of detention were served on the petitioner in jail and copy thereof was served on the petitioner s brother on 651983
The following are the grounds 1 On 2031978 petitioner unauthorisedly entered the Nagar Mahapalika at Satna and beat the Revenue Inspector Ram Biswas Tiwari in the presence of other Government employees as a result of which those employees ran away on account of fear and a first information report has been lodged against the petitioner for offences under Ss 323 and 353 IPC 2 On 981980 petitioner and his associates Vijay Shankar and three others formed themselves into an unlawful assembly and unauthorisedly entered the Badri Hotel situate at Station Road and beat Surender Kumar Srivastava with sticks and rod as 322 a result of which the customers in the hotel and passers by ran away in panic and a first information report has been lodged against the petitioner and others for offences under Ss 307 147 149 and 501 IPC 3 On 1371983 petitioner and his associate Kamlesh entered the Land Development Bank and beat Gaya Prasad Pandey in the presence of the Manager of the Bank and threatened to beat him with shoes at the road crossings in Satna and on account of the terror the staff of the Bank ran away and Gaya Prasad Pandey has not lodged any report 4 On 2671982 petitioner unauthorisedly entered the office of the Public Works Department and tried to obtain by force approval of a wood contract from the Office Secretary RP Sharma and on his refusal to comply with his demand the petitioner took away papers and intended to beat the Office Secretary and the office staff ran away due to the terror and a first information report has been lodged against the petitioner for offences under Ss 353 and 448 IPC 5 On 891982 petitioner unauthorisedly entered the office of the Land Development Bank at Satna and threatened to beat the Chairman Ram Asray Prasad MLA and he again threatened to beat that person on 1101982 at the Guest House at Bhopal in the presence of one Gulshar Ahmed 6 On 111983 petitioner with his associates entered the Land Development Bank Satna and threatened the Guard and broke the telephone and beat one Tara Chand Jain at the Dharamshala later and a first information report was lodged at the Police Station about that incident and on 1511983 Ram Asray Prasad MLA has reported to the police at Jahangirabad Bhopal that at the Tara Chand Jain Guest House the petitioner threatened to break his arm as a result of which Harijans employed in the Land Development Bank were feeling insecure and a 323 first information report has been lodged against him on 611983 7 On 2531983 at night petitioner with his associates threatened Bijju Prasad Misra and Shanti Prasad Misra near Dashrath Singh garage saying that he would kill them if they gave evidence against Anup Singh and Ram Charan and a case has been registered against him on 2631983 under Ss 107 and 117 IPC and a notice calling upon him to appear in the Court on 241983 had been served on him and he left the Court without signing the order sheet
The petitioner s case is that the detention Order is politically motivated and has been passed at the instance of the Congress I MLARam Asray Prasad as the petitioner is a social worker who had always raised his voice against goondas who are protected by the Congress I Party in Madhya Pradesh and had organised a number of rallies against the unscrupulous and uncivilized behaviour of the Block Development Officers with illiterate and poor farmers of the State
The second respondent has passed the Order of detention mechanically without applying his mind to the facts and circumstances of the case on the basis of the first information reports lodged against the petitioner
The grounds of detention must be precise pertinent proximate and relevant
Vagueness and staleness would vitiate the ground of detention as held in Shiv Prasad Bhatnagar vs State of Madhya Pradesh
All the seven grounds do not fall within the realm of public order but relate only to law and order
Grounds 1 to 4 suffer from want of proximity to the order of detention
Grounds 5 and 6 are vague
Ground 7 is irrelevant
The State Government has not considered the petitioner s representation dated 2551983 expeditiously
The Order of detention contravenes Article 22 5 of the Constitution and is consequently liable to be quashed
The petition is opposed
The District Magistrate Satna has contended in his counter affidavit that the petitioner s detention has been ordered because his recent activities coupled with the past incidents are prejudicial to the maintenance of public order
The Order of detention was considered necessary to prevent him from 324 repeating the offences because the petitioner has a tendency to go on violating the laws
The grounds of attack made in the petition have been denied in the counter affidavit and it is stated that the State Government had considered the petitioner s representation and rejected it on 461983 and even the Advisory Board has rejected his representation
In addition to the above grounds of attack on the Order of detention the petitioner has stated in para 13 of the Writ Petition that the Detaining Authority has not suggested the relevant documents on the basis of which the satisfaction of passing the detention Order has been framed
Perhaps what is meant to be conveyed by that allegation of the petitioner is that relevant documents on the basis of which the subjective satisfaction of the Detaining Authority had been reached have not been supplied to the petitioner
The learned counsel for the petitioner submitted in the course of his arguments before us that the copies of the first information reports referred to in the grounds of detention had not been supplied to the petitioner alongwith grounds of detention
The said allegation in para 13 of the Writ Petition does not naturally appear to have been understood by the second respondent who has not stated anything about it in his parawise reply in the counter affidavit
It is not necessary to consider all the other objections raised by the petitioner in his Writ Petition as we propose to dispose of the petition on the ground of want of proximity of grounds 1 and 2 particularly ground 1 to the order of detention dated 651983
Those grounds relate to alleged incidents of 2031978 and 981980 which are more than 5 years and about 2 years respectively prior to the date of the Order of detention
This Court has taken a strict view of the law of preventive detention which deprives the citizen of his freedom without a trial and full fledged opportunity for him to prove his innocence
In Shalini Soni vs Union of India to which one of us was a party it is observed Quite obviously the obligation imposed on the detaining authority by article 22 5 of the Constitution to afford to the detenu the earliest opportunity of making a representation carries with it the imperative implication 325 that the representation shall be considered at the earliest opportunity
Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by article 22 5 read with article 19 the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed
A breach of the procedural imperative must lead to the release of the detenu
The representation dated July 27 1980 was admittedly not considered and on that ground alone the detenu was entitled to be set at liberty
In the view that we have taken on the question of the failure of the detaining authority to consider the representation of the detenu it is really unnecessary to consider the second question raised on behalf of detenu in Criminal Writ Petition No 4344 of 1980
However this question has been squarely and directly raised and indeed it was the only question raised in the other two Criminal Writ Petitions and we have therefore to deal with it In Mehdi Mohamed Joudi v State of Maharashtra to which one of us was a party the Order of detention was set aside on the ground that the materials and documents were not supplied pari passu the grounds of detention and that there was delay of more than a month in disposing of the representation of the detenu
In Taramati Chandulal vs State of Maharashtra to which one of us was a party the Order of detention was set aside on the ground that the documents relied upon in the Order of detention were not supplied as part of the grounds alongwith the grounds of detention
In Shibban Lal Saksena vs The State of Uttar Pradesh it is observed The petitioner was arrested on the 5th of January 1953 under an order signed by the District Magistrate of Gorakhpur and the order expressly directed the detention of the petitioner in the custody of the Superintendent 326 District Jail Gorakhpur under sub clauses ii and iii of clause a of section 31 of the  as amended by later Acts
On the 7th of January following the grounds of detention were communicated to the detenu in accordance with the provisions of section 7 of the and the grounds it appears were of a two fold character falling respectively under the two categories contemplated by sub clause ii and sub clause iii of section 31 a of the Act
In the first paragraph of the communication it is stated that the detenu in course of speeches delivered Ghugli on certain dates exhorted and enjoined upon the cane growers of that area not to supply sugar cane to the sugar mills or even to withhold supplies from them and thereby interfered with the maintenance of supply of sugar cane essential to the community
The other ground specified in paragraph 2 is to the effect that by using expressions some of which were quoted under neath the paragraph the petitioner incited the cane growers and the public to violence against established authority and to defiance of lawful orders and directions issued by Government officers and thereby seriously prejudiced the maintenance of public order   The sufficiency of the grounds upon which such satisfaction purports to be based provided they have a rational probative value and are not extraneous to the scope of purpose of the legislative provision cannot be challenged in a court of law except on the ground of mala fides
A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under section 7 of the Act
What was happened however in this case is some what peculiar
The Government itself in its communication dated the 13th of March 1953 has plainly admitted that one of grounds upon which the original order of detention was passed is unsubstantial or non existent and cannot be made a ground of detention
The question is whether in such circumstances the original order made under section 31 a of the Act can be allowed to stand 327 The answer in our opinion can only be in the negative
The detaining authority gave here two grounds for detaining the petitioner
We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made
To say that the other ground which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is again the legislative policy underlying the statute
In such cases we think the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole
 The first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 651983
There can be no doubt these grounds especially ground No 1 relating to an incident of 1978 are too remote and not proximate to the Order of detention
It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an Order of detention under section 32 of the Act
Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order for as a matter of fact it has been mentioned as a ground of detention
Now there is no provision in the similar to section 5A of the which says that where a person has been detained in pursuance of an Order of detention under sub section 1 of section 3 which has been made on two or more grounds such Order of detention shall be deemed to have been made separately on each of such grounds and accordingly a such Order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague non existent non relevant not connected or not proximately connected with such persons or invalid for any other reason and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub section 1 of section 3 with reference to the remaining ground or grounds and made the order of detention and b the Government or officer making 328 the order of detention shall be deemed to have made the order of detention under the said sub section 1 after being satisfied as provided in that sub section with reference to the remaining ground or grounds
Therefore in the present case it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under section 32 of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction
We are therefore of the opinion that the petitioner s detention is unsustainable in law
Accordingly we quash the order of detention and direct that the petitioner be set at liberty forthwith
HSK Petition allowed


Summary:
The petitioner who was detained under sec
32 of the  was conveyed seven grounds of detention by the Detaining Authority
The first two grounds related to the incidents that occurred more than 5 years and about 3 years respectively prior to the date of the order of detention
The petitioner challenged the order of detention as vitiated on account of the grounds of detention being vague and stale
Allowing the writ petition by majority HELD The order of detention is quashed
Per Chinnappa Reddy and Varadarajan JJ It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under S 32 of the Act
Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order for as a matter of fact it has been mentioned as a ground of detention
327 E F Shalini Soni vs Union of India   Mehdi Mohamed Joudi vs State of Maharashtra  Taramati Chandulal vs State of Maharashtra AIR 1981 SC 871 and Shibban Lal Saksena vs The State of Uttar Pradesh referred to
In the instant case the first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 6 5 1983
There can be no doubt that these grounds especially grounds No 1 relating to an incident of 1978 are too remote and not proximate to the order of detention
327 D E There is no provision in the similar to s5A of the which says that where a person has been detained in pursuance of an order of detention under sub sec
1 of S3 which has been 318 made on two or more grounds such order of detention shall be deemed to have been made separately on each of such grounds and accordingly a such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague non existent non relevant not connected or not proximately connected with such persons or invalid for any other reason and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub sec
1 of s3 with reference to the remaining ground or grounds and made the order of detention and b the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub sec
1 after being satisfied as provided in that sub section with reference to the remaining ground or grounds
327 F H 328 A In the present case therefore it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under sec
32 of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction
328 A B Per Desai J When criminal activity of a person leads to such a drastic action as detention without trial ordinarily a single stray incident may not unless contrary is shown be sufficient to invoke such drastic power of preventive detention
In order to avoid the charge that a stray incident was seized upon to invoke such drastic power of preventive detention the authority charged with a duty to maintain public order of assure security of the State may keep a close watch on the activities of the miscreant for some time and repeated indulgence into prejudicial activity may permit an inference that unless preventive detention is resorted to it would not be possible to wean away such person from such prejudicial activity
319 G H 320 A B In the instant case therefore when in 1983 an action was proposed to be taken under sub sec
2 of sec
3 the Detaining Authority examined the history of the criminal activity of the detenu and took into account a continuous course of conduct which may permit an inference that unless interdicted by a detention order such activity cannot be put to an end the power under sub sec
2 of sec
3 is exercised
320 B C If there is a big time lag between the last of the events leading to the detention order being made and the remote earlier event the same cannot be treated as showing a continuity of criminal activity
But if events in close proximity with each other are taken into account for drawing a permissible inference that these are not stray or spasmodic events but disclose a continuous prejudicial activity the reference to earlier events cannot be styled as stale or remote which would vitiate the order of detention
320 D E In the instant case if each event is examined in close proximity with each other the events of 1978 and 1980 referred to in grounds Nos 1 and 2 cannot be rejected as a stray or not proximate to the making of the detention order
319 But they provide the genesis of the continuity of the prejudicial activity of the detenu and they appear to have been relied upon for that limited purpose
321 A B Gora vs State of West Bengal   Smt
Rekhaben Virendra Kapadia vs State of Gujarat and Ors
1979 2 SCC 566 and Firrat Raza Khan vs State of Uttar Pradesh and Ors  referred to