C..

BIRU MAHATO

DISTRICT MAGISTRATE, DHANBAD.

October 15, 1982

[D.A. DESAI AND R: B. MISRA, JJ.)

NatioMI Security Act, 1980, Section 3(2) Scope of-Prevelltive detention of the detenu whose liberty has otherwise already been prevented by keeping in ]ail is impermissible under the N.S. Act-Non•awareness of the detaining. authority about the detenu's detention in jail would vitiate the order of detention on the ground of non-application of mind-Affidavit should be that of'the detaining authority who had the sujective satisfaction of the detention.

' Detenu Biru Mahato was arrested on January 13, 1982' on the allegation that he was involved in two incidents which occurred, first at S p.m. and the second at 5:30p.m. on January 12, 1982. In the first occurrence detenu and his associates were alleged to have committed offences under sections 341, 323 and 506 of Indian Penal Code, as per the F.LR. 25(1)/82 at Bagmara Police Station. In the second case, F.I R. 24{1)/82 registered at the same police station, they were said to have committed offences under sections 307 and 323 I.P.C. After his arrest the detenu was confined :. in prison. In respect of the first occurrence . bail -application was accepted, but in respect of the second occurrence the bail application was rejected by the District & Session Judge, Dhanbad on February S, 1982, on the ground that in exercise of powers conferred by sub section (2) read with sub section (3) of Section 3 of the.

National Security Act, 1980, the detenu is detainec:l by the order of the District Magistrate so as to prevent him from acting in any _manner prejudical to the maintenance of public order and the bail application bas become infructuous, On February 1o, 1982, grounds of detention were served on the detenu in jail where he was already detained. The grounds of detention referred to the two incidents occurred on January 12, 1982. The detenu made a representation on February IS, 1982 which was rejected by the State Government on Februay 16,

1982. The case of the detenu was referred to the Advisory Board and after -receipt of its report the State Goverii!llent confirmed theorder of detention. . -.....-/ Detenu preferred a petition for a writ of habeas corpus in the High Court at Patna which was dismissed in limine by a Division Bench of the High Court.

Hence the appeal by special ieave and lhe writ petition.

Allowing the appeal and the petition, the Court

HELD : 1.1 A preventive action postulates that if preventive step is not taken the pCTSOn sought tO be prevented may indulge into an activity prejudicial to the maintenance of public order.

In other words, unlesa the activity is interdicted by a preventive detention order the activity which is being indulged

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lliRU MAHATO V. DJSn. MAGISTRATE

S85

into' is likely to be repeated, This is the postulate of- _section 3 of the National Security Act. _ 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 pre~ judicial to the maintenance of public order. If, it is shown that the man sought to be prevented by a preventive order is already effectiveiy 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 prev_ented, whicp is not the mandate of tbe section~ and would appear tautologous. t5B8 C-E] ... .1.2. The detaining authority before exerctsmg the power of preventive detention would take into consideration thest conduct ot: antecedent history of the person and as a matter offact 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 th; e detaining authority leads . to tliis conclusion it can put an end to the activity by makitlg a preventive detention order. If the man is already detained a detaining athority cannot be said to have subjectively satisfied himself that a , preventive detention order need be made. [588 EH]

Ujagar Singh v. Slalt of Punjab: Jagir Singh v. Stale of Punjab, [1952] SCR 756; Rameslewar Shaw v. District Magistrate, Burdwan and another, [1964] 4 SCR 921; referred to.

1.3; The subjtive satisfaction of the detaining authority must t:amprehend the very fact that the person sought to be detained is ioail or under detention and yt a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without 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. [590 BC]

- Vtjay Kumar v. State of J & -K and others; AIR 1982 SC 1023 applied. ~- 2.1. Conceding that in a given case a preventive detention order is required to be made even against a person who is already in jail or under detention and that the detaining authority "shows its awareness of the fact situation and yet pasl!CS the detention order, the detention order must show on the face of it that the detaining authority was aware of the situation. Otherwise the detention order would suffer from vice of non-application of mind.

[590 H, S91 A-Bl

2.2. The awareqess must be of the ract that the person against whom tho detention order is being made is already under detention or in jail in respect of some offence. This would show that such a person is not a free person to indulge into a prejuic ial activity which is required to be prevented by a deten-

586 ·. SUPlEMB COURT REPORTS [1983) 1 s.c.R.

tion order, And this awareness must find its place either in the detention otder or in the affidavit justifying the detention order when challenged. In the absence of it. it would appear that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistak- ably indicate that there was no application of mind to the relevant facts and any order of such serious consequence when mechanically passed without application of mind is liable to be set aside asinvalid. [S9I B-D]

2.3. A person may be holder of office of District Magistrate. But when the subjective satisfation of holder of office who actually passed the detention order is put i.n issue. the mere occupant of office cannot arrogate to substitute. the subjective satisfaction of the holder of the. post who actually passed the detention order. The subsequent occupant can speak from the record. But the .subsequent holder of office bas made an. affidavit as if be was subsequently satisfied a fact in connection with record. Here, the affielavit of Mr. Brara the I . subsequent holder 'of office of Distt. Magistrate has to be ignored and one must reach the conchi'sion that the averments made by the detenuhave remaied un-controverted. [592 B-D]

ORIGINAL JURISDICTION : Writ Petition (Criminal) No, 1125 of 1982.

(Under article 32 of the Constitutionof India)

WITH

Criminal Appeal No. 488 of 1982.

(Appeal by special leave from the judgment and order dated 7-4-1982 of the Patna High Court (Ranchi Bench) in Writ Jurisdictio~Case No. 40 of i982_ (R).

U.P. Singh for the Petitioner/ Appellant.

D. Goburdhan for the Respondent. ./ The Judgment of the Court was delivered by ' .

DESAI, J. By our order dated October 8, 1982, the order of G detention dated February 5, 1982, made by the District Magistrate, Dbanbad, against detenu Biru Mahato was quashed and set aside by us further stating that the reasons would follow.

Here are the reasons.-.

H Detenu Biru Mahato was arrested on' January--13, 1982, ori'the ailegation that he was involved in two incidents which occurred, first

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DIRU MAHATO v. DISTI, MAGISTRATE (Desai, J.}·· 587

at 5 p.m. and the second at 5.30 p.m. on January-12, 1982.

In the first occrrence detenu and his associats appear to have committed offences.under ss. 341, 323 and 506 read with s. 34 of the Indian

Penal Code. - F .I.R. led to registration of the offences at Bagmara Police Station numbered as 25(1)/82. F.I.R. No. 24(1)/82 has been registered at Bagmara Police Station for offences under ss. 307 and 323, I.P~C. After his arrest the detenu was confinea in prison.

In respect of the first occurrence bail application of the de'tenu was accepted but in respect of the second occurrence the bail application wasrejected by the earned District & Sessions Judge, Dhanbad on February 12, 1982. In the mean time the District Magistrate, Dhanbad, made an order on February 5, 1982, in exercise of powers con- - ferred by sub-section (2) rea~ with sub-section (3) of sectiQn 3 of the National Security Act, 1980 ('Act' -for short)~ directing that the detenu be detained so as to prevent him from acting in any manner prejudicial to the maintenance of public order. On February 10, 1982, grounds of detention were served on the detenu in jail where he was already detained. The grounds of detention referred to the two incidents which occurred on January, '12, 1982." The detenu made a representaton on February lS, 1982, which was rejected by the State Government on Febuary 16, 1982. Case of the detenu was referred to the- Advisory Board and after. receipt of its report the State Government confirmed the order of detention.

I ,

" Detenu perferred a petition for a 'writ of habeas corpus in the High Court at Patna which was dismissed in limine by a Division Bench of the High Court. Detenu ha_s filed this writ petition.under Article 32 as also appeal by special leave under Art. 136. . Both the • appeal and writ petition are }:)eing disposed of by this common

jd.Jment. ,

"'Two contentions were canvassed on ' behalf of the detenu :

(1) the date on which the detention order came to be made the

detenu was already deprived of his liberty as. he'was arrested and G was confined in jail and, therefore, he was already pevented from pursuing any activity .which inay prove prejudicial to the maintenance of public order, hence n.o order of detention could be made against him; (ii) the detaining authority was not even aware that the detenu was already in jail and the order suffers from the vice of non

 H applicatio? of mind. !n our opinion both the grounds are weighty

588 sUPIUlM.B COUR.t lUlPOliTS [1983] 1 s.c.a ..

A and go to the root of the matter and would vitiate. the detention order.

Sub-section (2) of s. 3 of the Act 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 from acting in any manner prejudicial to the maintenanCe of public order, etc. In this case the detaining authority bas 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 prevnted 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. This is the postulate of the section. And this indubitably transpires from the language employed in sub-s. (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 maintena nce of public order.

Now, if it is shown that the man sought to be prevented by a preventive order is aleady effectively prevented, the power under subs. (2) of s. 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 a.ppear tautologos. 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 o.f a man that an inference could be drawn whether he is likely even' in the future to act in a manner prejudical 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

v. State of unjab, and Jagir Singh v. State of Punjgb).(l) 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 v. District Magistrate, Burdwan &

(1) [1952] s.c.R. 1@ s.

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BIRU M~RATO l'. DISTT. MAGISTRATE (Desai,/.) 589

~ Anr.(l) this Court held that as an abstract proposition of law the

, detention order can be made in respect of a person who js 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 s. 3 (l) (a) does not preclude the authority from passing an order ofdetention against a person whilst he is in detention or in jail, but the relevant facts in connec. tion with the making of the order may differ and that may make a difference in the application of the principle that a detent.ion order can b~ passed against .a person in jail.

Take for instance, a case where a person , bas 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 h.and, 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 frqm jail, it' may be possible for !he authority to consider the antecedent history of the said person , and decide whether the detention of the said peron 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 4etention 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 tep years rigorous imprisonment and the view that his detention should be ordered after he is released after running tbe, whole of his sentence. Therefore, we are satisfied th_at the question as

(1) [1964] 4 S.C.R. 921.

590 SUPRBME COUllT RBPOllTS

(1983] 1 ~.C.B.

'to whether an order of detention can be passed against a person who is in detention or in jail, win 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 a"Iready confined to jail or detained. But in such a situation a~ held by this Court it must be present to the mind or' the detaining authority that keeping in view the fact that the person is already _detained a preventiv~ detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person ought to be detained is already in jail or under detention and yet a preventive

detetion order is a. compelling necessity: If the subjective stisfac-- . tion is reached without the awareness of this very relevant fact the

etention order is likely to be vitiated.

But as stated ~Y this Court it wi11 depend on the facts and circumstances of each case. '-...

Tile view herein finds further support from he decision of this .

Court in Vi[ay Kumar v. State of1 & K and Ors.,(l) 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 prevened 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

detentio~ of a person already in jail.

But in such a situation the detaining authority must disclose awareness of th~ fact that the person against whom an order 'of preventive detention is being made is to the knowledge of the authority already n 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 hat detenu was already i~ jail and yet the .impugned order is required to be made. This, in our opinion, clt-arJy exhibits non-application-· of mind and would result in invalidation of the order."

This leads us to "the second limb of the submission. Concedii)g that in a given case a preventive detention order is required -

(1) .AIR 1982 (SC) 1023.

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'BIRU MAHATO 17, DISTf, MAGISTRATE (Desai, i:) 591

to be made , even against a person who is' already in jail or . under detention and that the detaining. authorityshows its awareness - of the fact situation and yet passes the detention order, the detention order must show on the face of it that the detaining . authority . was aware of !he situation. Otherwise, the detention order would suffer from vice of nonapplication of the mind. The awareness must be of the fact that be person against whom the detention order is ing made is already under detention or in jail in respect of. some offence. 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 a detention order. And this awareness must find its place either in the detention order qr in the .affidavit justifying the detention . order when challenged.· In the absence of it. it would appear. that the detaining authority was not even aware of th-is vial fact and ..

- mechanically proceeded to pass the order which would unmistakably .r indicate that there was non-application of mind to the relevant facts and any. order of ·. uch serious consequence when mechanically -passed without appliction of mind is liable to be set aside as -invalid. · . .

. . ' . . . . . .

Turning to the facts of this case the detentionorder refers to 'Biru Mahato son of Mohan Mahato -of Village Jamdiha,- P.S~

Bagmiua; DistLDhanbad. There is not even a whimper of the

- detenu bei_ng in jail for nearly three weeks prior. to the date on which the detention order was made. , -

The detenu is referred to as on~ who -is staying at a certain place and is a free person •. Assuming that this inference from te mere description of the detenu in the detention order is impermissible ·

tlle affidavit is conspicuously silent on this point.· Not a word is said / F ' --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 anon-application of.inind to the" relevant . facts and the order is vitiated. (' /. · G . .

Mr. U.P. Singh, learned counsel for the detenu urged that this Court should not take into . consideration the affidavit filed by .. - · ~Dr.J.S. Braraon behalf of the respondent. Dr. J."S. Barara, des. cribing himself as District- Magistrate, Dhanbad,-- has made the affidavit as if he was the detaining authority. When this statement

.. H was challnged on behalf of the detenu, Mr .. Goburdhan, learned . -. . . . . . . .

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S~2 SUPllEMB COURT JUlPORTS

(1983) 1 S.C.R.

A._ :·...:. counsel for the spo.ndent went to the extrem~ 'tenth of asserting that Mr. Brara was the detaining.authority. At that stage Mr. U. P.

Singh. learned counsel for the detenu produced ihe original order of detention signed by one Shri D. Nand Kumar as District Magistrate.

This was sbown_to Mr. Goburdban and be was unable to sustain --

- . his submission that Mr. Brara who bas filed the affidavit -was the B ··.detaining authority. In fact, at one stage we were inclined to take a

- very serious view of the conduct . of Mr. Brara iii making - the

, affidavit as if be is the detaining authoritY. In para 1 he has describl:d

himself as District Magistrate being the detaining authority of the . petitioner which statement is not borne out by the record. He-may ' c

• - - I . be the holder_of office of District Magistrate. But when the.

_. subjective satisfaction of holder of office is put in issue the mere . occupant of office carin-ot arrogate to substitute his subjective _ satisfaction: . He may speak from the record but that is not __ the

case here. Therefore. the affidavit of Mr. Brara has -to be' ignored

and one must reach the conclusio!, l that the averment. made by the D _. _ detenu hve remained unconiroverted. ··

For these reaso_ns we have quashed and set aside the orderor:

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- detention. .....

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Appeal and fetition alf.owed.

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