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1983 DIGILAW 14 (GAU)

Sarat Mudoi v. District Magistrate, Nowgong and Others

1983-02-02

B.L.HANSARIA, T.N.SINGH

body1983
Hansaria, J.:- The petitioner was detained by an order passed on 29th October 1982 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and maintenance of supplies and services essential to the community. This satisfaction was founded on six grounds. The legality of the order has been challenged in this writ petition. The submission made are mainly four, these being: (1) There is no proper affidavit by the detaining authority and as such the order is liable to be set aside on, this ground alone. (2) Ground No. 2 is not related to public order. (3) Ground No. 6 is vague. (4) The order speaks of non-application of mind, in-as much as it is not spelt out in the order which supplies and services in particular were effected or likely to be prejudicially affected. 2. The first submission is sought to be brought home by Sri S. N. Medhi, the learned counsel for the petitioner, by refe­rring to a recent decision of the Supreme Court in Biru Mahto vs. District Magistrate, Dhanbad, reported in (1982) 3 SCC 322 , That was a case wherein the District Magistrate who had filed the return claimed as if he was the detaining authority. This was found not established on facts. As the deponent had not based his affidavit on records of the case, it was held that the affidavit could be ignored. Mr. Medhi submits that in the present case as well, Shri S.K. Tewari, who has filed the affidavit on behalf of Respondent No.1, having not stated that he was the successor -in-office to the incumbent who had passed the detention order, it should be held that Shri Tewari has as if claimed himself to-be the detaining authority, which in fact is not so. The further leaf of the argument is that on the ratio of the aforesaid decision we should ignore the affidavit. We have found it difficult to accept this submission because the affidavit of Shri Tewari cannot really be read to mean that he was the person who had passed the order of detention. This apart, he has clearly stated in his affi­davit that he had gone through the entire records of the case (which appraised him of the full facts) making him competent to swear the affidavit. This apart, he has clearly stated in his affi­davit that he had gone through the entire records of the case (which appraised him of the full facts) making him competent to swear the affidavit. The case at hand is therefore distinguishable and we do not think if we will be justified in setting aside the impu­gned order on this ground alone. As there is no allegation of personal bias or mala fide, this is not a case where the impugned order can be struck down for want of proper affidavit. In this connection reference may be made specifically of Shaik Hanif and others vs. State of West Bengal, AIR 1974 SC 679 and Asgar Ali vs. District Magistrate, Burdwan and others, A.J.R. 1974 SC 1814. 3. The second submission of Shri Medhi has also no force because the extent of the reach of the ground No.2 is far beyond the narrow field of law and order and it does appertain to the realm of public order on the facts and circumstances of the case. This would be apparent from reading of the ground: "You, Dilip Rajkhowa, Ratul Mahanta, Lachit Bardoloi and Girin Das were seen on 25th January, 1982 instigating the people in Nowgong, Phulaguri and Roha to prevent people from coming out of their houses on the 26th January, 1982. Consequently, people were afraid of coming out of their houses. The movement of people and vehicles was disrupted in Nowgong, Roha and Phulaguri, shops and business establishments were closed. Several incidents of assault, kidnapping, wrongful restraint and sabotage were reported in and around Nowgong. The incidents are listed at Annexure I." 4. We are also not impressed by the submission of Shri Medhi that ground No. 6 is vague; or that no seizure list having been given, the right of the petitioner to make effective representation was denied. Let us read this ground: "You along with Chandan Singh, Chandramohan Bora and Kip Bora had stored two powerful detenators in one of the rooms of Nowgong College. These detenators were reco­vered by the police on 30th September 1982 at about 3 P.M. from the above room in the presence of the four persons. Let us read this ground: "You along with Chandan Singh, Chandramohan Bora and Kip Bora had stored two powerful detenators in one of the rooms of Nowgong College. These detenators were reco­vered by the police on 30th September 1982 at about 3 P.M. from the above room in the presence of the four persons. The detenators had been collected for planting time bombs on 30th September, 1982 at night in Nowgong Town." There being nothing in this ground if any seizure list was prepared, we cannot hold that non-furnishing of the same has introduced any infirmity in the order. Even if such a list would have been prepared, we have our doubt if non-furnishing of the same would have caused serious dent to the order. As to the vagueness, it is submitted by the learned Government Advocate that "the four persons" mentioned in the ground are none else than the peti­tioner and his three associates named in the first sentence of the ground. This submission is made because of the definite article in the expression "the four persons". The submission does have force, and we cannot read vagueness in this ground to the the extent of setting aside the order on this score. 5. As to the submission, the contention of the learned Government Advocate is that the naming of particular supply and service which might have been prejudically affected was not necessary because the activity of the petitioner was of such a nature which affected many such supplies and services. 6. In A. K. Roy vs. Union of India, AIR 1982 SC 710 , it has been held that no person can be detained 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, order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately to the public. This was felt necessary to enable any person to know with reasonable certitude as to which services are considered by the detaining authority as essential to the community in as much as the exprsssion "supplies and services essential to the community" was regarded as a vague concept. This was felt necessary to enable any person to know with reasonable certitude as to which services are considered by the detaining authority as essential to the community in as much as the exprsssion "supplies and services essential to the community" was regarded as a vague concept. Following this decision a notification was issued on 8th February, 1982 bearing No. 1/11025/1/81-IS. US. (D.II) which has listed as many as 16 services. 7. The question is, if while passing the order of detention any particular supply and service is not named, would it evidence non-application of full mind by the detaining authority ? We have given our considered thought to this aspect of the matter. After the decision in A. K. Roy it is indisputable that there can­not be any order of detention qua maintenance of supplies and services essential to the community unless the supply and service in question be a notified supply and service. As already noted, in the notified category there are 16 services. Now, if the detain­ing authority does not specify in the order as to which parti­cular supply and/or service he had in mind while passing the order, it would be difficult to know whether he had applied his full mind with reference to any specific supply and service, As the notified categories cover a very wide field, the detain­ing authority, in the case of challenge to the order on the ground of non-application of mind, could fall upon any one or the other of the services and contend the activity of the detenu had prejudicially affected that service, even if that particular service he might not have had in mind while passing the order of detention. It may be stated that however prejudicial the activities of a person might be, all the notified categories of services, cannot be affected. In such a situation, omnibus mention of supplies and services would give a long handle to the authority to justify its order on the score of application of mind even though while passing the order the particular supply and service affected or likely to be affected might not have been borne in mind. According to us, the position is analogous to an order of detention which is passed merely by saying that the person is indulging in prejudicial activity without specifying which particular activity the authority had in mind. According to us, the position is analogous to an order of detention which is passed merely by saying that the person is indulging in prejudicial activity without specifying which particular activity the authority had in mind. Such an order would not apparently be upheld as non-application would be writ large on its face. 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 also 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 must have reference to one or more specified supplies and services forming part of notified categories. Any other view would also pose a possibility of abuse of power as a result of a absence of full application of mind. As in the present case particular category of supply and service was not named, the same speaks of non-application of full mind according to us. 8. We would therefore accept the last submission and set aside the order of detention. The result is that the petition is allowed and the detenu is ordered to be released forthwith if not needed otherwise.