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DISTRICT MAGISTRATE, NOWGONG & ANR.

SARATMUDOI

September 14, 1983 .

[RANGANATH MISRA AND AMARENDRA NATH SEN, JJ.] ' .

National Security Act, 1980-Section 3(2) read with s. 3(3)-Detenlion 'order not containing particulars of which of the specified supplies and servicesajfected-Va/id.

The respondent challenged the order of his detCntion under the National Security Act on the ground that since the detaining authority did not specify. in the order of detention as to which particular supplies and services he ha~ i.i:J. mind while making it, the order of detentioa was vitiated. The High Court set aside the order of detention. In appeal it was submitted that it would. be impossible for the detaining autq.ority to specify any of the 16 items of services and supplies included in the notification in re:Sard to the future conduct of the detenu.

Allowing the appeal,

' ' HELD: Under the ~Act the detenu is entitled to make a representation against the order of detention. It is manifest from the statutory scheme that his right to represent is after the grounds are erved on the, detenu. The right of the detenu to make a representation should be without fetters and as wide as possible. Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance. Th~ detenu would be in a position to effectively represt:nt only when specific particulars are provided to hi:n nd .the grounds are intentled to provide that material to him. A full disclosure made in t.he grounds .of detention in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention. TherefOrc, non-specification of the required particulars in the Order of detention would not vhiate the order as long as the particulars are provided in t'1e grounds in support of the order of detention which in quick succession of.t.he detention order are served on the detenu.

[960 B-E]

It is open to the detaining authority to take note of the past conduct of a deenu.

I~ past conduct confined to any or all of the 16 'item~ in the notification could be satisfied, the detaining authority could also on the basis of reasonable apprehension of repetition of such conduct in future make an order of dtention for hs p!evention. [960 H; 961 A]

Dehu Maluo v. State of West Bengal, AIR 1974 SC 816, referred to.

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CRIMINAL A PPELIATE JURISDICTION : Criminal Appeal No. 468 of 1983:

Appeal by Special leave from the Judgment and Order dated the 2nd February, 1983 of the Gauhati High Court in Civil Rule (HC) No. 4/83.

M.M. Abdul Kha<{er and S.K. Nandy for the Appellants.

V.M. Tarkunde and Mrs. Manik Karanjawala with him, for the Respon, dent. ,

The Judgment of the Court was delivered by '

RANGANATH MISRA, J: The detaining authority under section 3 (2) read withs. 3 (3) of the National Security Act, 1980 ('Al:(' fo'r short) being the .District Magistrate of Nowgong and the State of Assam assail the decision of the High Court at Gauhati quashing the order of detention.

On October 20, 1982, the District Mag[strate made the following order :

"Whereas I am satisfied from the dossier submited by Superintendent of Police, Nowgong that it is necessary to prevent Sfiri Sarat Mudoi s/o Shri Renn Mudoi, village Senchows, P. S. Nowgong from acting in any manner prejudicial to maintenance of public order and main tenance of supplies and services essential to the community, I. S. Kablian, IA.S., District Magistrate, Nowgong, hereby in exercise of powers conferred under section 3 (2) read 'with section 3 Ql of National Security Act, 1980, direct that Shri Sara! Mudoi be detained with immediate effect until further orders".

In the grounds of detention which were supplied to the detenu within the time provided by law, six grounds'were specified. Before

the High Court several contentions were raised including the one to the effect that if the detaining authority does not specify in the order of deiention as to which particular supply and/or service he had in mind while making it, the order of detention is vitiated. After hearing counsel for the parties, the High Court came to the conclusion :

'_!., --

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"We are of the view that as while passing. the order of detention the authority has to specify the particular prejudicial activity whose prevention he has in mind, so 1.llso he must specify the particular supply and service which according to him is being prejudicially affected by the activities of the detenu. The notified categories of_ Supplies and services thus really get as if implanted in the Act and an order of detention on this score mnst have reference to one or more specified suplies and services forming part of notified categ-0ries. Any other view would also pose a possibility of abnse of power as a result of absence of full application of mind."

and set aside the order of detention.

At the stage of notice on the special leave petition this Court on March 10, 1983, made the following order :

"Issue notice to the respondent returnable within a week confined to the question as to whether according to the ratio laid down by this Court in A. K. Roy v.

Union of India (AIR 1982 SC 710), it is necessary to specify in the order of detention itself the particular supplies and services essential to the community which are affected by the activities of the detenu or will it suffice if it is mentioned in the grounds for detention".

On behalf of the State this Couri was told that even if the

appeal was allowed, the respondent would not be detained for the F unexpired portion of the period.

The short question that survives for_ consideration, therefore; is whether without the particulars of supplies and Services specified in the order of detention, it is bad. In A.K. Roy's case and the connected matters this Court took the view that no person could be detained wider s. 3 (2) of the Act with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law or notification made or published fairly in advance the supplies and services the maintenance of which is regarded as essential to the community nd in respect of which the order of detention is proposed to be passed are made known properly to the public. Accordingly,

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by a. notifieation on February 8, 1982, 16 specified supplies and services. were notified as essential to the community and this notification was duly published in the Gazette of India, Extra ordina, ry issue of the same day. Under the Act the detenu is entitled to make a represeutatiou against the order of detention. It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu. It is the pronounced view of this Court that such right should be without fetters and as wide as possible, Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance. The detenu would be in a position-to effectively represent only when, specific particulars are provided to him and the grounds are intended to provide that material to him. Mr. Tarkunde who appeared amicus curiae fairly agreed that it is not necessary thatthe specification should be in the order of detention and it would be adequate to enable the detenu to make an. effective representation if the particulars are provided in the grounds of detention .. We are inclined to take the view that a full disclosure made in the grounds in no .way prejudices the right guaranteed to the detenu. to make an effective representation challenging his detention. Therefore, non specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order -Of detention which in quick succession of the detention order are served on the detenu .. Counsel for the appellants argued that while it would be possible for the particulars to be provided with reference io past conduct it would be difficult to specify' any of the 16 items of servkes and supplies included in the notification in .regard to future conduct of the detenu 'ana, therefore, to require the detaining authority io so specify woulq be' asking for the performance of something impossible.

In view of the limited question on which notice was issued, this 'itspCct strictly does not fall for consideration. We also do no.I find any merit in this stand.

'It was pointed out by this Court in Debu Mahto v. State of 'Wl"sl Bnga/(1), that ihe basis for ap order of preventive detention is the reasonable prognosis of the future behaviour of the person based upon his past conduct. It is open to the detaining authority to take 'noie of the past conduct of a detenu and apprehending repetition of

(2), A.I.R. 1974 S,<;;. 81~.

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such conduct in future an order of detention can be made [with a view to preventing such.action. If pasfconduct confined to any or all of the 16 of the items in tl:\e notification could be satisfied, the . detaining authority could also on "the basis of reasonable apprehen~ sion of repetition of such conduct .in future make an order of detention for its prevention. We do not prop?se to say anything more in view of the short question.to which the notice was confined .• We are thankful to Mr. Tarkude for assisting us at the hearing as amicus curiae.

This disposes of the appeal.

H.S.K.

Appeal allowed.

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