Kamlakar Prasad Chaturvedi v. State of M. P. & Anr.

Judgment

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 584 of 1983 . (Under article 32 of the Constitution of India) RK. Garg and D.K. Garg 'for the Petitioner. Ravindra Bana. and A.K. Sanghi for the Respondent. The following Judgments were delivered, DESAI, J. I Iiave very carefully gone .through the opinion prepared by my learned brother Varadarajan, J. · But I regret my inability to agree with ihe same. . All the relevant facts and the grounds on Which the ·order of detention was made against the pettionet 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 t)i.e 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 erounded on the subjective satisfaction of the Detaining AU:tliority 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 tb,e de'tenu. 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. Onjinarily,· drastic power of preventive detention without trial is invoked when the normal administration of criminal ji:istice would fail to prevent the person so acting in a manner set out in sub-sec. (2) of Sec; 3 of the National , · · llui>RBMB coiiai aiiPoaTs ; W>s4] i s.c.it SilCurity Act, 1980 ..

In order to avoid the charge that a stray incident seized upon to invoke such drastic power ()f preventive· detention, "the authority charged with a duty to maintain public order or assure. security of tlie 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 . detentionis resorted to, it would not be possible to wean away such · person from such prejudicial activity. Therefore, when in · !~83, 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·St:c. 3 is exercised.

Obviously, if there is a· big time la_g between the last of the events leading to the detentio.n 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 thal 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 v. State of West Bengal.(')· This Court after a review of· the earlier dec/sions observe4 that the test of proximity is not a rigid . oi, mechanical test to be blindly applied by merely counting the number of months between the ofiending 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 conclusi9n that the detenu is likely to continue iri his unlawful activities. ~This view was affirmed in Smt. Rekhaben Virendra Kapadia v. State of Gujarat and Others('). In a re'cent decision in Firrat Raza Khan v. State a/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 proxi- . mate in point of time and had no rational connection with ihe conclusion that the detention was necessary for maintenance of pu)Jlic ·order. (1) [!97Sj. 2 S.C.R. 996. (2) [197912 s.c.c. 566. (3) (1982] 2 s .. c.c. 449. IW!LAkAR ~.?.I.ti. STATE. (Yaradaiojan, I.)

Ul Turning to the facts of. this case, if each everit Is examined in close proximity with each other, the events of 1978 and 1980 referred ', A to in grounds Nos. 1 and 2 cannot be rejected as a stray or .not proximate to the making of the detention order. Bui they provide the genesis of tlle 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 ·wou1d be irreleven~ and therefore, the detention order is vitiated. I would therefore uphold the detention order: VARADARAJAN,1.

This writ petition under Article 32 of the Constitution is for quashing the Order of detention dated· 6.5.1983, passed by.the·second resporldent District Magistrate, Satna as being arbitrary aad 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 tlie first respondent State of Madhya Pradesh to pay compensation to -the petitioner fcir the wrongful detention. The second respondent passed the Order of detention ·dated . 6.5.1983 against the petitioner under S. 3 (2) of the Natio~al Sec'iirity • Act, 1980, The grounds of detention were served on the petitioner in jail and copy thereof was served on -the petitioner's brother on · 6.5.1983. .The following are the grounds :- (I} On 20.3.1978 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 35j I.P;C.;

(2) .On 9.8.19SO, petitioner and his ·associates Vijay Shankar and three others formed themselves into an unlawfui assembly and unauthorisedly entered the Badri Hotel situate at Station Road and beat Surender Kumar Srivastava with sticks and rod as · SVPIUiMs Coiitrt'!t~P6R'rs · '{1984] 1 s.c.lt. a result of which the customers in the hotel and pa'ssen by. ran away in· panic; and a first information report has been lodged against the petitioner and .· others for offenc~s under Ss. 307, 147, 149 ancl 501 I.P.C.i (3) On 13.7.1983, petitioner and his associate Kamlesh . • ,entered the Land Development !lank and beai Gaya · Prasad Pandey in the presence of the • Manager of the Bank arid threatened ro 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 h.as not lodged any report; (4)

On 26.7.1982, 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 R.P. Sharma and on his refusal. to comply with his demand the petitioner took away papers and intended to beatthe 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 lP.C.; (5) On 8.9.1982, petitioner unauthorisedly entered the office of the Lilnd Development Bank at Satna and threatened to beat the Chairman Ram Asray Prasad~ . M.L.A. and he again threatened to beat that person on 1.10.1982 at the Guest House at Bhopal in the presence of one Gulshar Ahmed; (6)

On 1.1,.1983, petitioner with his associates entered the ,Land Development Bank, Satna and threatened the Gµard 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 15.1.1983 Ram Asray Prasad, M.L.A. 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 . kAMLAKAR v. M.P. STATE (l!aradara}an, J.) first information report has been lodged against him on 6.1.1983; (7) On 25.3.1983 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 26.3.1983 under Ss. 107 'and 117 I.P.C. and a ·notice calling upon him to appear in the Court on 2.4.1983 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 bas been passed at the instance of the Congress (I) M.L.A. Ram Asray Prasad as the petitioner is a social· worker who had always raised bis voice against goondas who are protected by the Congress (I) Party h1. Madhya Pradesh and had organised a nuinber of rallies against the unscrupulous and uncivilized behaviour of the Block Developmen·t Officers with illiterate and · poor farmers of the Ltate. The second respondent has passed the Order of detention mechanically without applying bis 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. Vaguness and staleness would vitiate the ground of detention as held in Shiv Prasad Bhatnagar v. State of Madhya Pradesh.(') .

All the seven grounds do not fall within the realm of public order but relate oqly 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 represen· tation dated 25.5.1983 expeditiously. · The Order of detention 'eontravenes Article 22 (5) of the Constitution and is consequently liable to be quashed. The pettion is opposed. The District Magistrate, Satna bas contended in·his counter affidavit that the petitioner's detention has been orderded 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 (l) A.I.R 1981 S:C. 870. StJi>RllMB cOtiaT REPoR1S (1984] 1 s.c.ti.. 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 4.6.1983 and even the Advisory Board has rejected his representation. In addition to the above grounds of. attack on the Order of detention the petitoner has stated in para 13 of the Writ Petition that.the Detaining Authority hl!s 'not "suggested the relevant docu· ments on the basis of which the satisfaction of passing the -Oetention .. · Order has .been framed". Perhaps, what is meant to be. conveyed by that allegati"n of the petitioner is that relevant documents on .1. the basis of which the subjective satisfaction of the Detaining Autdority had been reached have not ·been supplied to the petitioner.

The learned counsel for the petitioner submitted in the ·course of his arguments befor~ us that the copies of the ·first infor· mation reports referred to· in the grounds of detention bad not been supplied to the petitioner alongwith grounds Of detention. The said allegation in para 13 of the Writ Petition does not naturally appear fo have been understood. by the second respondent who has not . stated anything about it in his para wise .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 bf the petition on the ground of want of proximity. of grounds 1 and 2, particularly. ground 1 fo the order of detention dated 6.5.1983. Those grounds relate to alleged incidents of 20.3.1978 and 9.8:1980 • 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 Sha/ini Soni v. Union of India(') to which one of us was a parfy, ,it is observed :- "Quite obvi9usly, the obligation imposed on ihe · detaining authority, by Art. 22 (5) of the Constit1:1tiori, to iiffor<! to the detenu the ~arliest opportunity of making a representation, carries with it the imperative implication: (I) A.I.R. 1981 S.C. 431. IW.!LAKAR v: M.P. STATE ('P'arlidarajan, J.) '.!25 that the representation shall be consinered 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 Art. 22 (5) read with Art. 19, the Courts have a duty to rigidly insist that preventive detention proc~dures be fair and· strictly observed.

A breach of the procedural imperative. must lead to the release of the detenu. The representation dated July 27, 19SO was admittedly not considered and on that ground alone the detenu was.entitled·to be set at liberty'. In the view that we h!lie taken on the question of · the failure of t!)e detainiil? 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 ra£sed and, indeed, it was the only question raised in the other two Criminal Writ Petition.sand we have, therefore, to deal with it.~, . In Mehdi Mohamed Joudi v. State of Maharashtra(I) 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 pf detention and that there was delay of more than a . month in disposing of the representation of the detenu ..

In Taramati Chandu/a/ v. State of Maharashtra(') to wl).ich 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 dctention. In Shibban Lal Saksena v. The State of'Uttar Pradesh,(') it is observed : "The petitioner was arrested on the 5th of January, . I 953, 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, (!) U98!J 2 s.c.c. 358. (2) A.I.R. 1981 SC 871· (3) [1954) 4 S.C.R, 418. 8 !1984) 1 s.c.R. District Jail, Gorakhpur, under sub-clauses. (ii)· and (iii) of clause (a) of section 3(1) of the ·Preventive Detention Act, 1950, 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 Preventive .

Detention Act 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 3(1) (a) of the Act. Iri the first paragraph of the communication it is stated that the. detenu in course of speeches dOlivered 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 ·main· tenance of supply of sugar cane essential to the com· munity. 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 violen~e against established author!ty and to defiance of lawful orders and directions issued by Government officers and thereby seriously prejudiced the maintenarice 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 chailenged 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 Govern· . ment 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 uusubstantial or non existent and cannot , be made a ground of detention. The . question is, whether · in such circumstances the original order made ·.u'nder' section 3(1) (a) of the Act . can he allowed· t.; siana •. ' KAMLAKAR v. M.P. STATE (Vtiradatajan, J.)

The answer, in our opinion, can only be in the' negative: · The detaining autho~ity gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nqr can we attempt to .assess in what manner and to what. extent each of these .groun<ls 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 suf!icient io sustain, the order, · would be to substitute an objective judicial test for the subjective decision of the· executive authority which is aaain the legislative policy underlying. the staiute. In such cases, we. think, the position \¥ould · be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wl16lly illusory and this would vitiate the detention ·or~r as a whole."

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 these grounds especially ground No. 1 relating to an incident of'l 978 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 S. 3(2) 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 National Security Act, 1980 similar to S. SA of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 which says that where a person has been detained in pursuance of an Order of detention under sub-se~on l of S. 3 which has been made on two or more grounds, such Order of detention shall b.e deemeq 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 grom;1ds is. or are vague, nonexistent, non-relevant, not connected or not proxin;Jately connected with such persons or invalid for any other reason, and. it is not therefore possible to hold that the Government or offier making such order would have been satisfied as provided in sub-section I of S. 3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or. officer• making SUPREME COURT IU!POB.TS (198411 s.c.tt. the order, of detention shall be deemed to. have·· made the order of detention under the said sub-section I after being fatisfied 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 t!\e Detainirig Authority about the need to detain the petitioner under section 3(2) of the Act if. he had not taken into account the. $tale and not proximate grounds I and 2 into consi- ,deration in arriving· at the subjective satisfaction .. We are, therefore, of the opinion that the petitioner's detention is unsustainable in law. ·Accordingly, ~e quash the order of detention and direct that the petitioner be set at liberty forthwith. · u.s.K.. Petition. allowed • I I