etition Criminal No 1166 of 1982
Under article 32 of the Constitution of India AND Writ Petition Criminal No 1167 of 1982 Under article 32 of the Constitution of India Gobinda Mukhoty NR Choudhury and SK Bhattacharya for the Petitioners
P Ram Reddy and GN Rao for the Respondent
The Judgment of the Court was delivered by DESAI J
On October 8 1982 we quashed and set aside the detention order dated December 26 1981 in respect of detenu Merugu Satyanarayana so Ramchander deferring the giving of the reasons to a later date
On the same day we quashed the detention order dated February 13 1982 in respect of detenu Bandela Ramulu  Lehidas  Peddi Rajulu  Ramesh so Venkati deferring the giving of the reasons to a later date
Identical contentions were raised in both these petitions and therefore by this common order we proceed to give our reasons on the basis of which we made the aforementioned orders
116682
Detenu M Satyanarayana was working in Belampalli Coal Mines
According to him he was arrested on October 22 1981 but was kept in unlawful custody till October 31 1981 when he was produced before the Judicial Magistrate who took him in judicial custody and sent him to Central Jail Warangal
According to the respondents detenu was arrested on October 30 1981 and was produced before the Judicial Magistrate on October 31 1981
When he was thus confined in jail a detention order dated December 26 1981 in the counter affidavit the date of the detention order is shown to be December 28 1981 made by the District Magistrate Adilabad in exercise of the power conferred by sub section
2 read with sub section
3 of section 3 of the  Act  for short 639 was served upon him on December 29 1981
The District Magistrate also served upon the detenu grounds of detention on January 2 1982
It is not clear from the record or from the counter affidavit filed on behalf of respondents 1 to 3 whether any representation was made by the detenu and when the matter was disposed of by the Advisory Board
116782
Detenu Bandela Kamulu according to him was arrested on January 1 1982 and he was produced before the Judicial Magistrate on January 11 1982
The dates herein mentioned are controverted by the respondents and they assert in the counter affidavit that the detenu was arrested on January 8 1982 and was produced before the Judicial Magistrate on January 9 1982
During the period of his incarceration the District Magistrate Adilabad in exercise of the power conferred by sub section
2 read with sub s 3 of section 3 of the made an order of detention which was served on the detenu in District Jail Nizamabad on February 14 1982
Even in this case it is not clear from the record whether the detenu made any representation on how his case was dealt with by the Advisory Board
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court It appears both the petitions were rejected
Thereafter the present petitions were filed
It may be stated at the outset that there is some dispute about the date of arrest of detenu in each case
But in order to focus attention on the substantial contention canvassed in each case we would proceed on the assumption that the date of arrest given in each case by the respondents is correct
We do not mean to suggest that the averment of the respondents with regard to the date of arrest is correct but that would be merely a presumption for the purpose of disposal of these petitions
Mr Gobinda Mukhoty learned counsel who appeared for the detenu in each petition urged that on the date on which the detention order came to be made against each detenu he was already deprived of his liberty as he was already arrested and was confined in jail and therefore he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order
Hence no order of detention could be made against him
640 The impugned detention order in each case recites that the detaining authority the District Magistrate of Adilabad made the impugned detention order with a view to preventing the detenu from continuing to act further in the manner prejudicial to the maintenance of public order
The fact situation in each case as transpires from the counter affidavit filed on behalf of the respondents is that detenu Merugu Satyanarayan was in jail since October 31 1981 and the detention order in his case was made on December 28 1981 meaning thereby that the detenu was already confined in jail for a period of nearly two months prior to the date of the detention order
Similarly in the case of detenu Bandela Ramulu according to the counter affidavit he was arrested on January 8 1982 and was confined to jail under the orders of the First Class Magistrate from January 9 1982
The detention order in his case was made on February 13 1982 meaning thereby that the detenu was already confined to jail for a period of one month and four days prior to the date of the detention order
It is in the background of this fact situation in each case that the contention canvassed on behalf of the detenu by Mr Mukhoty may be examined Sub section 2 of section 3 of the confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order etc
In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity pre judicial to the maintenance of public order
In other words unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated
This is the postulate of the section
And this indubitably transpires from the language employed in sub section
2 which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order
Now if it is shown that the man sought to be prevented by a preventive order is already effectively prevented the power under sub section
2 of section 3 if exercised would imply that one who is already is sought to be further prevented which is not the mandate 641 of the section and would appear tautologous
An order for preventive detention is made on the subjective satisfaction of the detaining authority
The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order
see Ujagar Singh vs State of Punjab and Jagir Singh vs State of Punjab1
Now if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made  In Rameshwar Shaw vs District Magistrate Burdwan  Anr2 this Court held that as an abstract proposition of the law detention order can be made in respect of a person who is already detained
But having said this the Court proceeded to observe as under As an abstract proposition of law there may not be any doubt that section 31a 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 consideration 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 after he is released from jail and if the authority is bona fide satisfied that such detention is necessary he can make a 642 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
It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years  rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence
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 circumstances of each case
 One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained
But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated
But as stated by this Court it will depend on the facts and circumstances of each case
The view herein taken finds further support from the decision of this Court in Vijay Kumar vs State of J  K and Ors 1 wherein this Court recently held 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
Maybe 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 643 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 detention 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 invalidation of the order Mr Mukhoty next contended that even if a hypothetical case can be envisaged as contemplated by the decision of this Court in Rameshwar Shaw that a preventive detention order becomes necessitous in respect of a person already confined to jail the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in jail and yet a detention order is a compelling necessity
It was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order
Otherwise according to Mr Mukhoty the detention order would suffer from the vice of non application of mind
The awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequence resulting in deprivation of liberty if mechanically passed without application of mind is obviously liable to be set aside as invalid
And that is the case here
Coming to the facts of each case the detention order refers to the name of the detenu and the place of his residence
There is not even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of roughly two months and in another case for a period of one month and four days
The detenu is referred to as one who is staying at a 644 certain place and appears to be a free person
Assuming that this inference from the mere description of the detenu in the detention order is impermissible the affidavit is conspicuously silent on this point
Not a word is said that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a compelling necessity to pass the detention order
Therefore the subjective satisfaction arrived at clearly discloses a non application of mind to the relevant facts and the order is vitiated
The next contention urged by Mr Mukhoty was that the detaining authority has not filed an affidavit in opposition but the same has been filed by one Sub Inspector of Police and it speaks about the subjective satisfaction of the detaining authority viz the District Magistrate and this would show that the District Magistrate had completely abdicated his functions in favour of the Sub Inspector of Police
The affidavit in opposition on behalf of respondents 1 to 3 who are the State of Andhra Pradesh the District Magistrate Adilabad and the Jailor Central Prison Hyderabad has been filed by M Venkatanarasayya who has described himself as Sub Inspector of Police
The same Sub Inspector has filed affidavit in opposition in both the cases
In para 1 of the affidavit in opposition it is stated that the deponent as a Sub Inspector of police is well acquainted with all the facts of the case
In para 7 of the affidavit in opposition in writ petition 116682 he has stated that Only after deriving the subjective satisfaction the detaining authority passed order of detention against the detenu as his being at large will prejudice the maintenance of public order
We are completely at a loss to under stand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the 
If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police we would not be far from a Police State
Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases if the conditions set out in sub section 3 of section 3 are satisfied and the notification is issued by the State Government to that effect this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police
In this case the District Magistrate the detaining authority has not chosen to file his affidavit
The affidavit in opposition is filed by a Sub Inspector of Police
Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the 645 decision of the District Magistrate for making the detention order  From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police
The file was not made available to the Court at the time of hearing of the petitions
But number of inferences are permissible from the fact that the District Magistrate though a party did not file his affidavit justifying the order and left it to the Sub Inspector of police to fill in the bill
And the Sub Inspector of Police does not say how he came to know about the subjective satisfaction of the District Magistrate
He does not say that he had access to the file or he is making the affidavit on the basis of the record maintained by the District Magistrate
Therefore the inference is irresistible that at the behest of the Sub Inspector of Police who appears to be the investigating officer in some criminal case in which each of the detenu is implicated the District Magistrate completely abdicating his responsibilities made the detention order
This Court in AK Roy vs Union of India  Ors1 while upholding the validity of the  repelled the contention that it is wholly unreasonable to confer upon the District Magistrate or Commissioner of Police the power to issue orders of detention for reasons mentioned in sub section
2 of section 3 observing that the District Magistrate or the Commissioner of Police can take the action under sub section
2 of section 3 during the periods specified in the order of the State Government only
This Court also noticed another safeguard namely that the order of the State Government under sub section
3 of section 3 can remain in force for a period of three months only and it is during this period that the District Magistrate or the Commissioner of Police as the case may be can exercise power under sub section
2 of section 3
The further safeguard noticed by this Court is that both these officers have to forthwith intimate the fact of detention to the State Government and no such order of detention can remain in force for more than 12 days after the making thereof unless in the meantime it has been approved by the State Government
The Court observed that in view of these in built safeguards it can not be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub section
2 see para 72
646 If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a Sub Inspector of Police the safeguards noticed by this Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy
We only hope that in future the District Magistrate would act with responsibility circumspection and wisdom expected of him by this Court as set out earlier
However the conclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority
We refuse to take any notice of an affidavit in opposition filed by a Sub Inspector of Police in the facts and circumstances of this case
The last contention canvassed by Mr Mukhoty is that even though assurances were given on the floor of Parliament as well as while hearing the case of AK Roy wherein constitutional validity of the was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents in flagrant violation thereof the affidavit in opposition would show that the power of preventive detention was exercised on extraneous and irrelevant consideration the detenu in each case being a member and organiser of CPI ML People s War Group a political party operating in this country
In the affidavit in opposition in writ petition 116682 the relevant averments on this point read as under  In reply to para 7 of the petition these answering respondents submit that it is not correct to say that the grounds of detention failed to disclose any proximity with the order of detention and underlying purpose and object of the inasmuch as the detenu is one of the active organisers of CPI ML People s War Group believing in violent activities with the main object to overthrow the lawfully established Government by creating chaotic conditions in rural and urban areas by annihilating the class enemies went underground to preach the party ideology and to build up the cadres by indoctrinating them for armed struggle
There is a similar averment in the affidavit in opposition in the connected petition also
We would have gone into this contention 647 but for the fact that having found the detention order invalid for more than one reason it is unnecessary to examine this contention on merits
Non examination of the contention need not lead to the inference that the contention is rejected
We keep it open to be examined in an appropriate case
These were the reasons for which we quashed and set aside the order of detention in each case
SR Petitions allowed


Summary:
In both the Writ Petitions when the petitioners were already in judicial custody and thus have been deprived of their liberty the District Magistrate Adilabad passed the detention orders in exercise of the power conferred under Section 32 read with Section 33 of the 
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court and both the petitions were rejected
In the present petitions it was contended as follows i that in both the cases the detenus being in judicial custody were already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order and therefore no order of detention could be passed against each of them ii that the affidavit in opposition was filed by a sub inspector of police and not by the detaining authority ie the District Magistrate had completely abdicated his powers and iiithat in flagrant violation of the assurances given at the hearing of AK Roy s case that the drastic and draconian power of preventive detention will not be exercised against political opponents the affidavit in opposition would show that the power of preventive detention was exercised against political opponents because the detenu in each case was a member and organizer of CPI ML Peoples War Group a political party operating in this country
Allowing the petition the Court 636  HELD 11
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order
In other words unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated
That this is the postulate indisputably transpires from the language employed in sub section 2 of Section 3 which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order
If it is shown that the man sought to be prevented by a preventive order is already effectively prevented the power under sub section 2 of Section 3 if exercised would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section and would appear tautologous
640 F H 641 A 12 The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order
If the man is already detained a detaining authority cannot be said to have subjectively satisfied himself that a preventive detention order can be made
641 A C Ujagar Singh vs State of Punjab Jagir Singh vs State of Punjab  and Rameshwar Shaw vs District Magistrate Burdwan and Anr
19644 SCR 921 referred to
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained in jail is under detention and yet a preventive detention order is a compelling necessity
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated
But it will depend on the facts and circumstances of each case
642 D F Vijay Kumar vs State of J  K and Ors
AIR 1982 SC 1023 applied
The awareness of the detaining authority must be of the fact that the person against whom the detention order is being made is already under detention
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would 637 unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequences resulting in deprivation of liberty if mechanically passed without the application of mind is liable to be set aside as invalid
643 D G 31
A sub inspector of police cannot arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power of detention is conferred by the 
If the power of preventive detention is to be conferred on an officer of the level and standing of a sub inspector of police we would not be far from a police state
644 E F 32
Parliament has conferred power primarily on the Central Government and in specific cases if the conditions set out in sub section 3 of section 3 of the Act are satisfied and the Notification is issued by the State Government to that effect this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police
644 F G 33
In this case a the District Magistrate the detaining authority has not chosen to file his affidavit b the affidavit in opposition filed by the sub inspector would imply either he had access to the file of the District Magistrate or he had influenced the decision of the Magistrate for making the detention order and in any case the District Magistrate completely abdicated his functions in favour of the sub inspector of Police because i the sub inspector does not say in the affidavit how he came to know about the subjective satisfaction of the District Magistrate or that he had access to the file and ii the file was not made available to the Court
If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a sub inspector of Police the safe guards noticed by the Supreme Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy
Hence the affidavit in opposition cannot be taken notice of here
644 G H 646 A C AK Roy vs Union of India  Ors   referred to
The affidavit in opposition filed in the present case would show that the power conferred for ordering preventive detention was exercised on extraneous and irrelevant consideration in respect of each detenu he being a member of and organiser of CPI ML People War Group a political party operating in this country which fact motivated the order and therefore a flagrant violation of the assurances given on the floor of Parliament and while hearing the case of AK Roy wherein the constitutional validity of the Act was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents
But it is unnecessary to examine this aspect on merits in view of the fact that the detention orders have been found to be invalid for more than one reason
Non examination of the contention need not lead to the inference that the contention is rejected but kept open to be examined in an appropriate case
646 D E 647 A B