Research › Browse › Judgment

Patna High Court · body

1981 DIGILAW 64 (PAT)

Baldeo Raj Khanna v. Deputy Commissioner, Dhanbad

1981-03-17

S.ROY, S.S.HASAN

body1981
JUDGMENT The petitioner was arrested from his business premises on 13.2.1981 and has been lodged in the Dhanbad District Jail, on the basis of an order dated 13-2-1981 which is annexure ‘1’ to the petition, passed by the District Magistrate, Dhanbad, under section 3(2) of the National Security Ordinance, 1980 (briefly the Ordinance). The grounds dated 14-2-1981 were served on the petition on 15-2-1981. No other papers or documents were furnished with the grounds to the petitioners. This application was filed on 19-2-1981 and was admitted on 20-2-1981. On 24-2-1981 at about 8 P.M. materials that are said to be the foundation for the grounds were served by an order dated 23-2-1981. The reason for not serving these additional papers along with the grounds has been stated to be inability in preparing copies of the documents within the prescribed time. The grievance of the petitioners is that the grounds are vague, irrelevant there being no nexus with the purpose and the requirement of the statue and they are not proximate in time and the relevant materials which formed the basis of the grounds have not been furnished to enable the petitioner to make an affective representation. It is relevant to cite the concerned provisions of the Ordinance Section 3 of the Ordinance read as follows:- “Power to make orders detaining certain persond:- [1] The Central Government or the State Government may, [a] If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relation of India with foreign power, to the security of India, or [b] If satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. [2] The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State of from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation :- For the purposes of this sub-section, ‘acting in any manner prejudicial to the maintenance of supplies and service essential to the community’ does not include ‘acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section [1] of section 3 of the Prevention of Black-marketing and maintenance of Supplies of Essential Commodities Act, 1980, and accordingly, no order of detention may be made under that Act. [3] If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Governments is satisfied that it is necessary so to do, it may, by order in writing direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section [2] exercise the powers conferred by the said sub-section; Provided that the period satisfied in an order made by the State Government under this sub-section shall not, in the first instance, exercised three month but the State Government may if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. [4] When any order is made under this section by an officer mentioned in sub-section [3], he shall forthwith report the fact to the State Government to which he is Subordinate together with the grounds on which the order has been made and such other particulars, as in his opinion have a bearing on the matter, and no such order shall remain in force for more then twelve days after the making thereof unless, in the meantime, it has been approved by the State Government; Provided that where under section 8 of the grounds of detention are communicated by the officer making the order after five days but not later then ten days from the date of detention this sub-section shall apply subject to the modification that, for the words ‘twelve days’ the words ‘fifteen days’ shall be substituted. [4] When any order is made or approved by the State Government under this section, the State Government shall within seven days report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion on the State Government have a bearing on the necessity for the order. From a pain reading of the aforesaid provisions it is clear that an order under section 3[2] of the Ordinance can only be made with a view to preventing a 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 or supplies and services essential to the community. Under Sub-section (3) of section 3 of the Ordinance the District Magistrate and the Commissioner of Police have been empowered under certain situation to make orders to detention having been delegated such power under sub-section (2) of Section 3 of the Ordinance, for specified period. It is also clear that no person can be detained by the State Government for more then three months in the first instance and no being satisfied that it is necessary to do so extend the period of detention form time to time but not exceeding three months at any time. When an order is made by the District Magistrate or the Commissioner of Police a report of facts shall forthwith be made to the State Government together with the grounds on which the order has been made along with all particular that have a bearing on the matter. An order of detention shall not remain in force unless approved by the State Government, for more then 12 days, extending to 15 days under certain circumstances, Section 8 of the Ordinance reads as follows:- “[1] When a person is detained in pursuance of a detention order the authority making the order shall as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. [2] Nothing is sub-section [1] shall require the authority to disclose facts which it considered to be against the public interest to disclose.” Before examining the instant case, it is also desirable to cite a few decision of the Supreme Court relevant for the purposes of this case. In the case of Sri Gurdip Singh V. Union of India and others which is a decision arising out of the Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, (52 of 1974) the Supreme Court has observed as follow:- “In our opinion, this case is clearly concluded by two recent Division Bench decisions of this Court, namely, Smt. Icchu Devi Choraria Vs. Union of India in Writ Petn. [Criminal] No. 2030 of 1980 decided on 9.9.1980 (reported in AIR 1980 SC 1983 ) and Smt. Shalini Soni Vs. Union of India (Criminal Writ Petn. No. 4344 of 1980 decided on 24-10-1980) (reported in 1980 Cri.LJ 1487). In both theses cases, this Court has taken the view that on a proper construction of Article 22[5] of the Constitution, the service of the grounds of detention on the detenu can be complete only if they are accompanied by the documents or materials on which are order of detention is based for then alone will the detenu be able to make an effective representation. In other words, if this documents which form the basis of the order of detention are not served on the detenu along with the grounds, of detention, in the eye of law there will be no service of the grounds of detention and the circumstance would vitiate his detention and make it void ab initio.” “No body is born a criminal much less a habitual or ‘veteran’ criminal. It takes time for one to become so. The adjective ‘veteran’ which is synonymous with ‘habitual’ implies a long course of recurring or persistent criminal behavior or repeated commission of crime. Surely, all the information received by the District Magistrate the Government, about the repeated criminal activities of the detenu had contributed towards the subjective satisfaction of the detaining authority. It will no be extravagant to say that but for the detenu being in the opinion of the detaining authority a ‘veteran’ or habitual copper wire criminal, the District Magistrate might not have taken the impugned action. It will no be extravagant to say that but for the detenu being in the opinion of the detaining authority a ‘veteran’ or habitual copper wire criminal, the District Magistrate might not have taken the impugned action. Admittedly, the whole of this material or ‘reliable information’ about the ‘anti-social’ and ‘prejudicial activities’ of the detenu that led of this detention, was not communicated to him. This information which has withheld was not claimed to be privileged under clause [6] of Article 22. The non-communication of that material was violative of Article 22[5] of the Constitution and the Act, inasmuch as it did not intimate to the detenu the full grounds or materials to enable him to make an effective representation. The detention is thus illegal. We, therefore, allow this petition, set aside the detention order and direct that the petitioner be set at liberty forthwith.” Learned counsel for the petitioner has also cited a decision of the Supreme Court in the case of Dilip Nayak v. District Magistrate, Burdwan and others. Finally, in the case of Cheddi Sao V. State of Bihar and another, which is also a decision of the Supreme Court, it has been held that if the grounds are non-existing, vague not proximate in time and irrelevant the detention cannot be justified. 2. Coming to the instant case, the grounds on which the detention order has been made are as follow :- “1. That on 14-8-1975, the premises of M/S. Tinna Industries and its Godown belonging to the subject were searched by the RPF Dhanbad of the strength of a search warrant issued by CJM Dhanbad huge quantity of Railway property was recovered. This refers to Dhanbad RPF post case No. 6 dated 14-8-1975 u/s 3 RP [UP] Act, 1966. In this case the subject was convicted by law court to undergo R.I. for one year. By indulging in the storage of stolen Railway Properties he tried to disturb the normal movement of trains and thereby acted in a manner prejudicial to the maintenance of services and supplies to the community. 2. That on 30-6-77, the officers and men of RPF post, Dhanbad, conducted a search in the premises of Tinna Industries belonging to the subject on the strength of a search warrant issued by GJM Dhanbad and again huge quantity of Railway property were recovered. Shri Baldeo Raj Khanna was arrested on the spot. 2. That on 30-6-77, the officers and men of RPF post, Dhanbad, conducted a search in the premises of Tinna Industries belonging to the subject on the strength of a search warrant issued by GJM Dhanbad and again huge quantity of Railway property were recovered. Shri Baldeo Raj Khanna was arrested on the spot. This refers to Dhanbad/RPF Post Case No. 4 dated 30-6-1977 u/s 3 RP (UP) Act, 1960, Charge-sheet has been submitted in this case. By indulging in the storage of stolen Railway property he tried to disrupt the normal movement of trains and thereby acted in a manner prejudicial to the maintenance of Service and supplies essential to the community. 3. That on 31-7-79, the officers of RPF/Post Dhanbad conducted a search at Phularibagh Godown of the subject and recovered two places of Rail line and one Rail Buffors spring. This refers to Dhanbad RPF post case No. 4 dated 31-7-79 u/s 3 (a) RP (UP) Act, 1966. Charge-sheet has been submitted in this case. These are essential articles for smooth running of trains. By indulging in the storage of stolen properties of Railway he tried to disturb the normal movement of trains and thereby acted in manner prejudicial to the maintenance of services and supplies essential to the community. 4. That on 26-12-80, Shri M.M.P. Singh, Inspector CCB, New Delhi alone with CRPS and local police, Jharia conducted a search of the shop-cum-Godown premises know as ‘Tinna Industries’ of Shri Baldeo Raj Khanna and recovered 17 items of Railway iron materials. This refers to Dhanbad RPF/Post case No. 8 dated 26-12-80 u/s 3 RP (UP) Act, 1966, Baldeo Raj Khanna managed to escape while three of his associates managed to escape? By indulging in a storage of stolen Railway Properties he tried to disturb the smooth function of Railway and thereby acted in a manner prejudicial to the maintenance of services and supplies essential to the community. As I have stated above, certain materials which are said to be the basis of the grounds in the detention order were served on the petitioner after the filling of this writ application and there are four first information report being Annexures 2(a), 2(b), 2(c) and 2(d) to the supplementary affidavit. As I have stated above, certain materials which are said to be the basis of the grounds in the detention order were served on the petitioner after the filling of this writ application and there are four first information report being Annexures 2(a), 2(b), 2(c) and 2(d) to the supplementary affidavit. The petitioner is the owner of a factory know as Tinna Industries which is said to be registered as a small scale unit under the Industries Department, Government of Bihar, having a licence. The industries is engaged in casting and fabricating mining equipments, engineering goods, etc. which is done out of scrap iron. The scrap iron is purchased from different organizations where they are sold by auction, namely, M/S Hindustan Steel Ltd. M/S Hindustan Steel Construction Limited, M/S Fertilizar Corporation of India, Sindri Unit, Bihar State Super-phosphate Factory, M/S Bharat Cooking Coal Limited etc. It is said that the scrap iron includes railway tracks and railway parts from the premises of those organizations. Most of these organizations have their own railway tracks and wagons etc. The grounds arise out of his conduct as the owner of the aforesaid business. 3. It has now to be examined whether the grounds are proximate or relevant. While the detention took place on 13-2-1981, the first ground relates to the date 14-8-75 the second to 30-6-1977, the third to 31-7-1979 and the last ground to 26-12-1980. Except for the last ground which may be said to be proximate in time there is no proximity between the events that took place on 14-8-1975, 30-6-1977 and 31-7-1979 and the date of the Present detention. In fact during that period the National Security Act, or its earlier Ordinance was not even in existence. It is difficult to say whether any conduct of the period prior to the coming into force of the Ordinance and the Subsequent Act, would be relevant till the relationship or connection between the present detention and that conduct is established. Nothing appears on the grounds to justify any connection what so ever. Reading the grounds, it also appears that the grounds are entirely irrelevant and there being no nexus between the alleged activities to the petitioner and the detention order. Nothing appears on the grounds to justify any connection what so ever. Reading the grounds, it also appears that the grounds are entirely irrelevant and there being no nexus between the alleged activities to the petitioner and the detention order. In this connection it may be noted that the essential requirement of the Section is that the activity of the detained person must be such, that can be said to be prejudicial to the maintenance of the public order or prejudicial to the maintenance of supplies and services essential to the community. We are not concerned with public order in this application. From the ground it does not appear how the offence committed by the petitioner in the year 1975 can be said to have affected prejudicially the maintenance of supplies and services essential to the community. None of the grounds state how the possession of huge quantity of railway property in the godown of the petitioner caused the effect which brings action within the purview of the requirement of section 3(2) of the Ordinance. It is merely stated in the grounds that the normal movement of trains were affected. This is in my view not only irrelevant but also vague. It does not show how, were and when normal running of the train was disrupted. Another aspect of the matters is that the grounds do not state that the petitioner was responsible for removing the railway tracks or other railway materials. At best he was a person who was in possession of such materials obviously removed by others. It is those others, therefore, who could be said to be responsible for disrupting the maintenance of supplies and services essential to the community. In the case of Dilip Nayak V. District Magistrate, Burdhwan and others [supra] the Supreme Court upheld the detention order because it was clearly stated that when over head electric copper wires were stolen electric supply was disrupted in that particular area. In this case there is no such clear statement in the grounds. The petitioner has offered an explanation in regard to the sources of acquisition what has been styled as the railway property. If the sources of acquisition are correct, then the grounds are entirely irrelevant. In our view, therefore, the grounds suffer from vice of irrelevance, vagueness and are not proximate in time to the detention order. 4. The petitioner has offered an explanation in regard to the sources of acquisition what has been styled as the railway property. If the sources of acquisition are correct, then the grounds are entirely irrelevant. In our view, therefore, the grounds suffer from vice of irrelevance, vagueness and are not proximate in time to the detention order. 4. In regard to the materials supplied which formed the basis of the detention order, we have no hesitation in holding that all the materials have not been served on the detenu and therefore as has been held by the Supreme Court it cannot be said that the provision of law with regard to the service of grounds has been satisfied. The service of grounds is completed only when the grounds are accompanied by the documents and materials on which the order of detention is based. If these materials are not there it will amount to no service of grounds of detention and this would render the detention void. Surely, the first information reports could not be the materials which formed the basis of the detention order because the first information report it mean only to initiate a criminal proceeding and is not evidence at all. Other importance and relevant documents would be the seizure list to indicate the recovery of the incriminating articles from the premises of the petitioner. Then there could be materials which would disprove the case of the petitioner that the incriminating articles were properly purchased. The seizure list would show exactly what articles were recovered from the premises of the petitioner in order to show whether such article would affect the maintainability of supplies and services essential to the community and their removal affected prejudicially such movement. As fact stand in this case, it is clear that the materials justifying the grounds have not been served on the petitioner. It has also been stated that the materials could not be furnished because copies could not be prepared. This seems to be a set excuse as appears from the several cases that have come to our notice. Section 8 or the Ordinance requires that in exceptional circumstances and for the reasons to be recorded in writing only, the grounds can be served after five days from the date of detention. This non-preparation of copies is hardly a ground that is exceptional in character. 5. Section 8 or the Ordinance requires that in exceptional circumstances and for the reasons to be recorded in writing only, the grounds can be served after five days from the date of detention. This non-preparation of copies is hardly a ground that is exceptional in character. 5. In view of the above discussion the detention order is entirely illegal and has to be struck down. In the result the application is allowed. Let a writ of habeas corpus be issued directing the petitioner to be released forthwith from jail custody, if not wanted in any other case. It may be stated that we have passed an order directing the immediate release to the petitioner on 3-3-1981 after hearing the learned counsel for both the parties. We have now given the reasons for passing the aforesaid release order. Application allowed.