Crl No 353 of 1989
Under Article 32 of the Constitution of India
481 PK Chatterjee and RP Gupta for the Petitioner
Prithvi Raj Dalveer Bhandari and Prashant Choudhary for the Respondents
The Judgment of the Court was delivered by V RAMASWAMI J
This writ petition has been filed under Article 32 of the Constitution praying for the issue of a writ of certiorari to quash the order of detention dated 351989 passed by the District Magistrate Farrukhabad UP as confirmed by the Government of UP in their order dated 2061989 detaining one Lakhmi Chand Gupta under the and to issue a writ of habeas corpus releasing the said detenu from such detention
The order of detention was made under section 8 of the by the District Magistrate on the ground that with a view to prevent the detenu from indulging in unlawful activities which are prejudicial to the maintenance of essential services and supplies required for public life it was necessary to keep him under detention
The detenu made his representation to the Advisory Board
On receipt of the report of the Advisory Board to the effect that in its opinion there are sufficient grounds for detention the Government after a consideration of the report confirmed the order of detention under section 121 of the Act and di rected that the said Lakhmi Chand Gupta be detained for a period of 12 months from 351989 the date of detention order
This writ petition for habeas corpus has been filed by the brother in law of the detenu
The learned counsel for the petitioner contended that there are absolutely no grounds or basis on which the de taining authority could have satisfied himself that the detenu had been engaged in criminal activities which are injurious to the maintenance of essential services and supplies required for public life or that the detenu is likely to indulge in any such activity in future
Secondly there is an unexplained delay from the date of the alleged incident or crime and the date of detention vitiating the satisfaction and the detention order itself
The circum stances referred to in the order of detention does not lead to nor there was anything on which the District Magistrate can come to a conclusion that there is inherent criminal propensity in the detenu which could lead the District Magistrate to infer that there is every likelihood of the detenu repeating the alleged unlawful activity
The facts relating to the incident which is referred to in the order 482 of detention as the ground for detention are as follows On the 15th of February 1989 the Junior Engineer Tubewell Electrification Sub Division Sarvodaya Nagar Kanpur lodged a complaint with the Station House Officer Police Station Chhibranau Distt
Farrukhabad that electric wires to a length of about 2900 mtrs
in 11 KV Visya Bank Feeder had been cut and stolen away on 1421989 by some unknown per sons and that the value of the loss to the Electricity Board amounted to Rs21500
This FIR was registered as Crime Case No 51 of 1989 under section 379 IPC in the said Police Station and it was shown therein that three persons namely Jagdish Santosh and Munshi Sharma were the accused
Santosh is the brother of Jagdish
On the 3rd of March 1989 the house of Jagdish was raided and two bags filled with stolen aluminium electric wire recovered
Jagdish gave an informa tion that a person at Vishnugarh Road claiming himself to be a resident of Delhi used to purchase stolen electric wire from the person cutting the electric wire stealthily
On this information of Jagdish the factory of the detenu at Vishnugarh Road was raided
One Munshi Sharma who is stated to be the servant of the detenu was found in possession of about 20 kg of melted electric wire and that was seized from him under a recovery memo
The order of detention stated that Munshi Sharma had confessed that the stolen electric wire had been purchased by him from Jagdish and Santosh
The detenu was arrested on the 2nd of May 1989
On the same date the bail application was moved on behalf of the accused
After setting out this incident the grounds of detention stated This act on your part has disrupted the electric system resulting in non operation of tubewells dearth of water for crops non supply of drinking water for general public and cattle
This unlawful act of yours and that of your accomplices is against the main tenance of essential services and supplies required for public order and life
This act of yours have caused injury to the national economy and created terror in the general public and poses a serious threat to the public life
 The order of detention further stated At present you are detained in the District Jail of Fatehgarh in connection with case No 5189 under section 379411 of IPC and in the PS Chhibranau in connection with case No 5689 under section 379 of IPC and your well wishers and sympathisers are trying to get you bailed 483 out in the aforesaid cases and a bail applica tion in this behalf has already been moved in the court and you are likely to be bailed out
There is every likelihood that after coming out of jail you will again indulge in your criminal activities
 It is on the basis of this the order stated that the detain ing authority was satisfied that the detenu had been engaged in criminal activities injurious to the maintenance of essential services and supplies required for public life and that with a view to prevent him from indulging in such unlawful activities it has become necessary to keep him under detention
The learned counsel contended that the detenu had no past criminal record
The present criminal case filed under section 411 of IPC is the first crime which had been alleged against him
The learned counsel further contended that there is absolutely no evidence of detenu s complicity with the crime and making link of the detenu with the recov ery of 20 kg of melted wire recovered from Munshi Sharma at the behest of Jagdish
In this connection he also con tended that the statement said to have been made bY Munshi Sharma had not been supplied to him and that would also vitiate the order of detention
In the counter affidavit filed in this Court the respondent stated that there was no separate confessional statement recorded from Munshi Sharma and the confessional statement referred to in the detention order is the one that is found in the recovery memo a copy of which had already been supplied to the detenu
The learned counsel for the petitioner drew our attention to the recovery memo and contended that if the statement of Munshi Sharma in the recovery memo is the only material available that cannot be a basis of satisfaction for an order of detention under the 
The statement of Munshi Sharma relied on by the detaining authority and found in the recovery memo reads as follows When the gauge of that melted wire was meas ured it was found that of the Government wire therefore the said melted wire weighing 20 kg was taken in the possession of police and thoroughly sealed in a sack
But before seal ing the same a separate specimen of melted wire and the specimen of wire were taken and the specimens were sealed
The accused Munshi Sharma on his being arrested stated that he had purchased that property from both Santosh ie the brother of Jagdish and Jagdish he further stated that 484 he melted and sold the same to Lakhmi ie the owner of the said factory
The said property after being melted cannot be identified and it is used for making utensils thereafter  In this statement it may be seen that Munshi Sharma did not say that he purchased the stolen wire for the detenu or on the instructions of the detenu
In fact he did not even say that he is the servant or agent of the detenu
He had merely stated that 20 kg of melted wire recovered from him was purchased by him from Santosh and his brother Jagdish and that he had melted and sold the same to the detenu
After it is melted in the melted form it could not be distinguished from any other melted wire of legal origin
The statement also does not impute knowledge on the part of the detenu that the same was from stolen wires
In any case it was not possible to say on the basis of this statement that the detenu was in league with other persons in the activity of stealing wire or purchasing of the same
In fact it is not known how from the melted wire weighing 20 kg
the detain ing authority or the investigating officers came to the conclusion that the gauge of the melted wire was found to be that of Government wire
Again only 20 kg was found in the factory and that too in the possession of Munshi Sharma though inside the factory
The statement of Munshi Sharma in the recovery memo and melted wire recovered from Sharma were the only material available before the detaining au thority
In the light of the absence of past criminal histo ry on the part of the detenu we have no doubt that the statement found in the recovery memo could not form basis of satisfaction for the detention
The learned counsel took strong exception to the view of the detaining authority that the detenu is likely to get bail and there is every likelihood that after coming out of jail the detenu will again indulge in criminal activities and that therefore it is necessary to detain him
In this connection he relied on the decision of this Court in Ramesh Yadav vs District Magistrate Etah where it was held that merely on such apprehension a detention order under should not ordinari ly be passed
This Court observed On a reading of the grounds particularly the paragraph which we have extracted above it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activi ties in the area
If 485 the apprehension of the detaining authority was true the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised
Merely on the ground that an ac cused in detention as an undertrial prisoner was likely to get bail an order of detention under the should not ordinarily be passed
We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well set tled principles indicated by this Court in series of cases relating to preventive deten tion
The impugned order therefore has to be quashed
 This Court had considered in a number of cases the validity of orders of detention made when a person is in jail custody but the detaining authority considered the likelihood of the detenu getting a bail and in that view proceeding to consider the necessity for detaining him under the preventive detention proceedings
In Rameshwar Shaw vs District Magistrate Burdwan  Anr  their Lordships observed On the other hand if a person who is under going 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 detention a few days before the person is likely to be released
The antecedent history and the past conduct  on which the order of detention would be based would in such a case be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary In Kartic Chandra Guha vs The State of West Bengal and Ors the order of detention stated that having regard to the activities of the detenu as discussed in the grounds of detention and having regard to the possi bility of his being enlarged on bail the detaining authority was satisfied that the detenu should be detained under the Act
This order was upheld on the ground the District 486 Magistrate on information received by him thought that the petitioner was likely to be released on bail in which case having regard to his past activities it was open to the District Magistrate to come to the reasonable conclusion that having regard to the desperate nature of the aCtivities of the petitioner his enlargement on bail would be no deter rent to his desperate activities In Alijan Mian vs District Magistrate Dhanbad and Others 1983 4 SCC 301 it was again held that a detention order would not become invalid merely because the detention order was passed on the detaining authority being apprehen sive of the likelihood of the detenu s release on bail
In Smt
Shashi Aggarwal vs State of UP  Ors
  this Court observed Every citizen in this country has the right to have recourse to law
He has the right to move the court for bail when he is arrested under the ordinary law of the land
If the State thinks that he does not deserve bail the State could oppose the grant of bail
He cannot however be interdicted from moving the court for bail by clamping an order of detention
The possibility of the court grant ing bail may not be sufficient
Nor a bald statement that the person would repeat his criminal activities would be enough
There must also be credible information or cogent reasons apparent on the record that the dete nu if enlarged on bail would act prejudi cially to the interest of public order
That has been made clear in Binod Singh vs District Magistrate Dhanbad where it was observed 1986 SCC Crl 490  495 para7 A bald statement is merely an ipse dixit 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 authori ty 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 free doms of our citizens
 All these cases were again considered in a latest judg ment of this Court in N Meera Rani vs Government of Tamil Nadu and Another   and it was held that all those decisions of the Court on this aspect have to be read in the light of the Constitution Bench 487 decision in Rameshwar Shaw s case supra and that the conclusion about the validity of the detention order in each case was reached having regard to the facts and circum stances in the particular case
Thus the detaining authority though can take into ac count the possibility of the detenu being released on bail in the criminal proceedings
have to be satisfied having regard to his past activities or by reason of the credible information or cogent reasons that if he is enlarged on bail he would indulge in such criminal activities
In the present case except the bald statement that the detenu would repeat his criminal activities after coming out of the jail there are no credible information or material or cogent reasons apparent on the record to warrant an inference that the detenu if enlarged on bail would indulge in such crimi nal activities which are prejudicial to the maintenance of essential services
There must be something more than what is found in the record here to come to the conclusion that this is not a case of solitary incident but a case of the detenu indulging in business of receiving stolen electric wires
On the other hand it appears to us that the detention order has been made in order to supplant the criminal prose cution which is not permitted
The learned counsel also contended that there is an unexplained delay which makes the ground of detention not proximate vitiating the order of detention itself
The theft of the wire was on 1421989 and the FIR was registered on 1521989
On that day itself as seep from the record Jagdish Santosh and Munshi Sharma were shown as accused on the basis of some information
The house of Jagdish was raided on 331989 and on the same day the factory of the detenu was raided and 20 kg of melted wire was recovered from Munshi Sharma but no action was taken till 251989 against the detenu
On being arrested on 251989 the detenu moved a bail application and the detention order itself was made on 351989
Though bail was granted in view of the detention order he could not be released from jail
In spite of the fact that the recovery statement itself was made as early as on 331989 no action was taken till 351989
Nothing more is stated in the detention order
The delay has also not been satisfactorily explained in the counter state ment of the respondents
The ground instance therefore could not be a proximate cause for a sudden decision to take action under the and this also viti ates the order
In the result we allow this writ petition set aside the order of detention and direct that the detenu be released forthwith
PSS Petition allowed


Summary:
The Karnataka General Service Motor Vehicles Branch Recruitment Rules 1962 as amended in 1976 laid down the minimum qualification of Diploma in Automobile Engineering or Mechanical Engineering for direct recruitment to the post of Motor Vehicle Inspectors
The Karnataka Public Service Commission issued an advertisement on September 28 1983 inviting applications for the said post stating specifically that the selection shall be made in accordance with the Recruitment Rules 1976 and that the candidate must be holder of Diploma in Automobile Engineering or Mechanical Engineering
After scrutiny of the applications the Commis sion issued letters for interview to the suitable candidates and commenced the holding of interviews in August 1984
The process of selection however could be completed only on June 2 1987 on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates
The result was declared on June 22 1987 and published in the Karnataka Gazette dated 23rd July 1987
Thereafter the selected candidates were given intima tion of their selection and the State Government took steps for imparting them three months training before appointing them as Motor Vehicle Inspectors
In the meanwhile the State Government amended the Recruitment Rules by a notification dated May 4 1987 omit ting qualification of Diploma in Mechanical Engineering for the said post
Thereupon some of the candidates who were unsuccessful at the selection preferred applications before the Karnataka Administrative Tribunal for quashing the select list and the notification dated September 28 1983 inviting applications on the ground that after the amendment of Rules in 1987 no person holding Diploma in Mechanical Engineering was qualified for 386 appointment to the said post
The State Government as well as the appellants both contested the applications and as serted that the 1987 amendment to the Recruitment Rules was not retrospective and that the amended rules did not affect the selections which were in the process of finalisation by the Commission
Allowing the applications the Tribunal held that after the amendment of the Recruitment Rules in May 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to May 14 1987 and as such the selection of candidates holding Diploma in Mechanical Engineering was illegal as they had ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules
Consequently it quashed the advertisement issued under the Notification dated September 28 1983 as well as the select list published by the Commission and directed the Commission to invite fresh applications and to make selections in accordance with the amended Rules
Allowing the appeal and the writ petition preferred by the selected candidates the Court HELD 1
The Tribunal was in error in setting aside the select list preferred by the Commission
1397H 21 If a candidate applies for a post in response to an advertisement issued by a Public Service Commission in accordance with the recruitment rules he acquires a right to be considered for selection in accordance with the then existing rules
This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature
1397H In the instant case the advertisement issued by the Commission on September 28 1983 was in accordance with the Recruitment Rules of 1976 under which the appellants were eligible for appointment
The process of selection which had commenced on receipt of the applications however could not be completed on account of the interim orders issued by the High Court
The select list was finalised by June 2 1987 and the result published in the Karnataka Gazette of July 23 1987
The selected candidates were also intimated by the Commission by separate letters
If there had been no interim orders the appellants would have been appointed much before the amendment of Rules on May 4 1987
395C 390G 391D 387 22 Construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who had no control over the subject matter
Every statute or statutory Rule is prospective unless it is expressly or by necessary implication has retrospective effect
Unless there are words in the statute or in the Rules showing the inten tion to affect existing rights the Rules must be held to be prospective
If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only
In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure
392A 391E F In the instant case the amending Rule of 1987 does not contain any express provision giving the amendment retro spective effect nor there is anything therein showing the necessary intendment in enforcing the Rule with retrospec tive effect
The amended Rule therefore could not he applied to invalidate the selection made by the Commission
391F G 393E F AA Calton vs Director of Education  Anr  applied
State of Andhra Pradesh vs T Ramakrishna Rao  referred to
YY Rangaiah vs J Sreenivasa Rao and l
J Divakar vs Government of Andhra Pradesh  distinguished
The order of the Tribunal dated September 13 1987 is set aside
The State Government is directed to make appoint ment to the posts of Motor Vehicle Inspectors on the basis of the select list prepared and finalised by the Commission
398A