Research › Browse › Judgment

Gujarat High Court · body

1992 DIGILAW 37 (GUJ)

MAKDUM ABDUL MAJID SHAIKH v. STATE

1992-01-29

K.J.VAIDYA, SHARAD D.DAVE

body1992
DAVE, J. ( 1 ). By filing the present Habeas Corpus petition, under Arts. 19, 21, 26 and 226 of the Constitution of India, the petitioner-detenu makdum Abdul Shaikh challenges the orders of detention passed by the (3) AIR 1988 SC 1255 : district Magistrate, Bharuch, the respondent No. 2 herein, dated 7/08/1991 at Annexure a, directing that the petitioner be preventively detained under the PASA 1985 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. ( 2 ). Questions For Adjudication :- Two questions presented before us for our examination and adjudication, drawn up on a wider canvass appear to be : (1) Would an unexplained unreasonably long period elapsing between the date (s) of incidents (s) and the date of the passing of the Order of Detention, usually termed as "unexplained Inordinate Delay" snaps the nexus between the incident (s) and the order vitiating the latter ? (2) Is there or can there be a "hard and Fast Rule" as to what is the length of time which should be regarded sufficient to snap the said nexus ? the third question so presented, of course, limited and relevant for the decision of the petition on hand is :- (3) Whether the facts and circumstances of the present petition show that there has been in fact "unexplained Inordinate Delay" between the two terminees, vitiating the subjective satisfaction and the consequent Impugned Orders of Detention ? ( 3 ). Facts :- The impugned orders of detention have been issued by the district Magistrate, Bharuch the respondent No. 2 herein, on 7/08/1991. The orders of detention say that the respondent No. 2 herein has been satisfied with respect to the petitioner that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order it is necessary to preventively detain him. After saying so the respondent No. 2 proceeds further to say that, therefore the petitioner-detenu should be preventively detained under sub-sec. (1) of Sec, 3 of the Gujarat Prevention of Anti-Social activities Act, 1985. The grounds of detention dated 7/08/1991, which are at Annexure b were also furnished to the petitioner-detenu as per the statutory requirement, wherein the reference has been made to 7 criminal cases registered in March, 1990 and September, 1990 against the petitioner-detenu at Bharuch City Police Station. (1) of Sec, 3 of the Gujarat Prevention of Anti-Social activities Act, 1985. The grounds of detention dated 7/08/1991, which are at Annexure b were also furnished to the petitioner-detenu as per the statutory requirement, wherein the reference has been made to 7 criminal cases registered in March, 1990 and September, 1990 against the petitioner-detenu at Bharuch City Police Station. It has bee" stated that the detenu resides at ishqkpura area at Bharuch and that he indulges in communal activities, with the help or assistance of his friends, associates and companions and that, he picks up quarrels with the members of the Hindu community and by indulging in communal violence, he affects adversely the person and the properties of the members of the Hindu community. Alongwith these grounds of detention the statements recorded by the sponsoring authority in June 1991 have also been furnished. On the basis of the above said material the detaining authority has arrived at the subjective satisfaction that the petitioner-detenu indulges in communal violence and communal riots and therefore with a view to prevent him from acting in the aforesaid manner, he requires to be preventively detained. ( 4 ). Contentions :- Mr. M. C. Kapadia the learned Advocate who appears on behalf of the petitioner-detenu has urged that the so-called subjective satisfaction arrived at by the detaining authority is an illusory, non-genuine and sham satisfaction because as it becomes evident from the grounds of detention, the first case listed at ST. No. 1 was registered at Bharuch City police Station on 25/03/1990, while the cases enlisted at Sr. Nos. 2 to 6 were registered against the petitioner detenu on the next day, i. e. , on 26/03/1990, while the last case listed at Sr. No. 7 has been registered against the petitioner-detenu on 21-9-1990. Mr. Kapadia has also urged that the sponsoring authority had proposed the detention of the detenu on 1/08/1991 and ultimately the orders of detention have been issued on 7/08/1991. In the submission of Mr. Kapadia, therefore the inordinate delay in passing the orders of detention after the registration of the above said case would lead any one through the path reaching only to a point of conclusion that the live link between the incidents and the orders of detention having been snapped the so-called subjective satisfaction is rendered illusory. So far as the statements of four witnesses are concerned mr. So far as the statements of four witnesses are concerned mr. Kapadia has urged that even if the above said statements are accepted on their face value then also, from the said source the subjective satisfaction that the petitioner-detenu indulges in communal violence and communal riots could not have been culled out. Any how the contention raised by Mr. Shelat the learned A. P P. who appears on behalf of the respondents is that there is no hard and fast rule regarding the period during which the detention orders should be passed after the registration of the criminal cases and that in the petition on hand, merely because there has been some delay in passing the detention orders after the registration of 7 cases against the petitioner-detenu, it cannot be said that there has been an inordinate delay which would prove fatal to the orders of detention. Mr. Shelat has also urged that the statements of four witnesses on which the reliance has been placed by the detaining authority were recorded quite late and that, these statements by themselves do provide the meaningful resources for arriving at a subjective satisfaction that the petitioner-detenu indulges in communal violence and communal riots, and that he requires to be preventively detained. Mr. Shelat in support of his contentions before us, has preferred to place reliance upon the Supreme Court decisions in (1) Gora v. State of West Bengal, AIR 1975 SC 473 , (2) Shiv Ratan Makim v. Union of india and Ors. , AIR 1986 SC 610 and in (3) Rajendrakumar Natwarlal Shah v. State of Gujarat and Ors. , AIR 1988 SC 1255 : [1989 (1) GLR 239 (SC)]. ( 5 ). Characteristics of Preventive Jurisdiction : Before moving closer to the rival contentions advanced on behalf of the petitioner-detenu on one hand and on behalf of detaining machinery on the other, for the purpose of examination and opinion, we would like to crystalize that a habeas corpus court can never be oblivious of the characteristics of the Preventive jurisdiction which stands apart from Penal Jurisdiction, on entirely a different citadel. The Penal Jurisdiction of a Criminal Court has to start with a presumption of innocence on the part of the accused in the dock, together with the insistence on the prosecution to bring home the guilt of the accused beyond reasonable doubt and that too by tendering legal, reliable and unimpeachable evidence, while a detaining authority has to act in the arena of Suspicion Jurisdiction where its orders are to rest on its subjective satisfaction. This suspicion jurisdiction invested with a detaining authority flows from Art. 22 of the Constitution of India, which contains both the negative and positive fiats. The negative - natured fiat controls the power of the state vis-a-vis the citizen but the positive fiat at the same time grants powers of detention in favour of the State. The very concept of detention has, in the history of the human kind and civilisation, perturbed both the heads and the hearts of thinkers and Constitution-makers. The results of such perturbances are nothing else but the constitutional safeguards for upholding of the civil liberty, the dignity of the human kind and the fundamental right to live and to move as a free citizen of the Nation. These constitutional safeguards make the Preventive Detention not beyond the judicial scrutiny. Adequacy or sufficiency of the material, from which the subjective satisfaction is derived and which is known generally as grounds of Detention could be the barbed wire area in which the habeas corpus Court cannot venture to travel but relevancy and proximity of certain incidents relied upon by the detaining authority would definitely a question which has got to be examined and studied by the Court of Law. Though the detaining authority has before it, a person standing in the present tense, he is to be looked upon by telescopic lenses as to what he is likely to do or may do in future and this futuristic activity has got to be judged keeping the dirty slate, proclaiming his past evil activities, in juxtaposition. The past activities of the would-be-detenu, thus do provide the resources for the subjective satisfaction. The questions in the present petition are how far you go back in time ? How old is the dirty slate of the would-be-detenu ? The past activities of the would-be-detenu, thus do provide the resources for the subjective satisfaction. The questions in the present petition are how far you go back in time ? How old is the dirty slate of the would-be-detenu ? If you go to far in time in search of a dirty slate, are you or are you not obliged to explain the so-called in ordinate Delay ? and lastly, the important of all-what, if such a delay is not explained ? would it culminate into the vitiation of the Order of Detention ? It is here that the question of Proximity or Nexus comes in. ( 6 ). Case Law: Firstly making a reference to the Supreme Court decision in Gora v. State of West Bengal, AIR 1975 SC 473 , it requires to be accepted that the Test of Proximity is not a rigid or mechanical test to be blindly applied while judging the habeas corpus petition. The Supreme Court has said thus in respect of the Test of Proximity :"the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only insofar as it subserves that purpose and it cannot be allowed to dominate or drown it. " ( 7 ). In Jagan Nath Biswas v. State of West Bengal, AIR 1975 SC 1516 when the order of detention under challenge was passed on 27-2-1973 based upon 3 criminal cases dated 8/11/1971, 9/12/1971 and 15/08/1972, the Supreme Court has emphasised that one should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at. ( 8 ). In Wasi Vddin Ahmed v. District Magistrate, Aligarh, U. P. and Ors. , air 1981 SC 1266, it has been laid down thus :"the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. ( 8 ). In Wasi Vddin Ahmed v. District Magistrate, Aligarh, U. P. and Ors. , air 1981 SC 1266, it has been laid down thus :"the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. " ( 9 ). In Smt. Hemlata Kantilaj Shah v. State of Maharashtra and Anr. , AIR 1982 SC 8 , the Supreme Court has expressed the opinion that the delay in that case was satisfactorily explained by the authority in its affidavit and therefore the delay had not vitiated the detention. This opinion which came to be expressed by the Supreme Court is based upon the facts and circumstances of the said case. In Shri Shiv Ratan Makim v. Union of India and Ors. , air 1986 SC 610 , it has been emphasised, that where there is an unreasonably long period between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that, there was no nexus between the two. This view has been succinctly put at para 5 of the judgment which may be quoted thus :"it is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention and the order of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snip the nexus between the incident and the order of detention. " ( 10 ). In Smt. Aruna Kumari v. Government of Andhra Pradesh and Ors. , AIR 1988 SC 227 , it appears that delay of 5 months in passing the orders of detention was accepted as satisfactorily explained. " ( 10 ). In Smt. Aruna Kumari v. Government of Andhra Pradesh and Ors. , AIR 1988 SC 227 , it appears that delay of 5 months in passing the orders of detention was accepted as satisfactorily explained. It was noticed that on 18-12-1987 the detenu was found to be committing an offence of transferring levy cement into non-levy cement bags for its diversion to works not intended. In the police records the detenu was considered to be an absconder throughout till his arrest on 18- 3-1987. Further investigation in the case had continued even after the arrest of the detenu. Certain other relevant information could be collected only later on and the investigation could be completed on 13-5-1987. The matter was placed before the District Magistrate on 14-5-1987 and the impugned orders were passed on the following day, i. e. , on 15-5-1987. It appears that in the facts and circumstances of the case, the Supreme Court had taken the view that the delay of 5 months in passing the detention order was satisfactorily explained. Therefore the Supreme Court has taken a further view that the above said delay cannot by itself vitiate the decision to detain the detenu. In Rajendrakumar Nalvarlal Shah v. State of Gujarat and Ors. , air 1988 SC 1255 : [1989 (1) GLR 239 (SC)], it has been ruled that the rule as to unexplained delay in taking action is not inflexible and that the Courts Should not merely on account of delay in making of an order of detention assume that delay being not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority, but it is also pointed out that such a view cannot be taken in the cases in which the Court finds that grounds are stale or illusory or that there is no real nexus between the grounds and the impugned orders of detention. ( 11 ). ( 11 ). In Malwa Shah v. State of West Bengal, AIR 1974 SC 957 , on the facts and circumstances of (he case it was laid down that the period of about 5 months which elapsed between the dates of alleged incidents and the making of the order of detention cannot be regarded as so unreasonably long as to warrant the inference that no satisfaction was really arrived at by the District Magistrate or that the satisfaction was colourable or no satisfaction at all as required by the statute. ( 12 ). A careful reading of the above said case law would lead us to deduce the following principles : (A) The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order; (B) There can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention; (C) The Test of Proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention; (D) Prejudicial activity or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of a person is necessary; (E) No authority, acting rationally can be satisfied, subjectively or otherwise of future mischief merely because long ago the detenu had done something evil; (F) When an unreasonable period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the two, but such a view would not be warranted unless the Court finds that the grounds are slate or illusory or that there is no real nexus between the two; (G) Unexplained long delay will be fatal to the plea of subjective satisfaction.