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1993 DIGILAW 46 (GAU)

Gunicharan Daim Ary v. State of Assam and Ors.

1993-03-01

R.K.MANISANA SINGH, U.L.BHAT

body1993
U.L. Bhat, C.J.— Petitioner's brother Sri Biren Daimari was arrested by Army authorities oa 5.11.1991 in connection with several cases and since then he has been on remand in judicial custody. On 17.3.1992, fourth respondent, District Magistrate, Darrang, Mangaldoi ordered under section 3 (2) read with section 3 (3) of the National Security Act, 1980 petitioner's brother's detention with immediate effect stating that he was satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was essential to keep him under detention. Grounds of detention were served on him in jail on 2'J.3,92. The order of detention was duly approved by the State Government, confirmed by the Advisory Board, and approved by the Central Government. The detenu's brother has filed this habeas corpus petition challenging the detention as illegal. An Under Secretary to the Government of Assam in the Political Department has sworn to a counter affidavit on behalf of the State of Assam and the detaining authority. Fourth respondent, the detaining authority, has filed an affidavit. Petitioner has sworn to a separate affidavit furnishing the details of the bail applications and orders passed by the Courts concerned. 2. The grounds of detention refer to eight cases in which the detenu along with others is an accused. The cases relate to various incidents which took place in December 1989, April 1990, September ,990, November 1990, April 1991, August 1991, October 1991 and November 1991. The cases involve offence of being a member of unlawful assembly, offences under section 326 IPC (3 cases;, 302 IPC (4 cases), 380 IPC, 365 IPC, 384 IPC, 394 IPC, 398 IPC, 3/4/5 of TAD A (P) Act (6 cases) and provisions of Arms Act (2 cases). The grounds also mention that toe detenu along with other persons collected arms, ammunitions and explosives froai NSCN sources via Dimapur. 3. The affidavit dated 9.2.93 filed by the petitioner states that in three of the cases bail application was filed on 16.9.92. Learned counsel stated that in these cases bail has since been granted. In three other cases bail applications were filed on 30.9.92 and in two of cases bail was granted on 16.1.93 and 26.12.92 respectively and one application is pending. 4. The only contention urged by the learned counsel for the petitioner is that the detention order is vitiated on account of non-application of mind. In three other cases bail applications were filed on 30.9.92 and in two of cases bail was granted on 16.1.93 and 26.12.92 respectively and one application is pending. 4. The only contention urged by the learned counsel for the petitioner is that the detention order is vitiated on account of non-application of mind. The detention order and the grounds of detention do not disclose that the detaining authority was aware that the detenu was already in judicial custody. No bail application had been filed prior to this order of detention or was pending on that date. Therefore, it is argued that the detaining authority did not apply his mind to the question whether an order of detention was necessary to be passed in regard to the person already in custody. Learned counsel for the petitioner also contended that either the detention order or the grounds of detention must ex-facie indicate the detaining authority's awareness of the relevant facts and due application of mind to such facts but the documents do not indicate any such awareness or application of mind and the detaining authority is not entitled to fill up the lacuna by way of an affidavit. Learned Additional Senior Government Advocate, Assam rebutted these contentions and stated that the detaining authority is entitled to rely on the affidavit and the records which reveal awareness of the relevant facts, due application of mind and formation of requisite opinion. 5. The order of detention merely states that the detaining authority is satisfied that it is necessary to keep the detenu under detention with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The order of detention or the grounds of detention does not Specifically state that the detenu was already in jail or that he has filed ball application in any of the cases against him or that he is likely to be released on bail or that he is likely to indulge in activities prejudicial to public order on his release. 6. 6. The question whether an order of detention can be passed in respect of a person already in jail custody, was considered by a Constitution Bench of the Supreme Court in Ra mesh war Shaw vs. District Magistrate, Burdwan & -another, AIR 1964 SC 334 .The Supreme Court held that as an abstract proposition of law there may not be any doubt that section 3 (1) (a) of the Preventive Detention Act, 1950 docs not preclude the authority from passing an order of detention against a person whilst he is in detention or jail; but the relevant facts in connection with making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. The Court cited the examples of a person sentenced to RI for 10 years and a person who is undergoing a short term imprisonment and indicated that the detaining authority cannot pass an order of detention in the former case while it can pass an order in the latter case on due application of mind to the possibility of release, antecedent history and formation of opinion that detention of the person would be necessary after his release from jail. Such antecedent history and past conduct should be proximate in point of time and should have a rational connection with the conclusion drawn by the authority. 7. The above view has been followed in almost all the later decisions of the Supreme Court including those in Alijan Miah vs. District Magistrate, Dhanbad & others, AIR 1983 SC 1130 ; Suraj Paul Sahu vs. State of Maharashtra& others, (1986)4 SCC 378 ; Ramesh Yadav vs. District Magistrate, Etah & others, AIR 1986 SC 315 and Smti Poonam Lata vs. ML Wadhwan & another, AIR 1987 SC 2098 . An order of detention cannot ordinarily be passed merely on the ground that a person under detention as an under trial prisoner is likely to get bail. In the particular facts and circumstances of a case, it is open to the detaining authority to have regard to (a) the likelihood of the detenu's release on bail, (b) the probability of his indulging in prejudicial activity on his release, and form the opinion that it is essential to detain him to prevent him from so doing. In the particular facts and circumstances of a case, it is open to the detaining authority to have regard to (a) the likelihood of the detenu's release on bail, (b) the probability of his indulging in prejudicial activity on his release, and form the opinion that it is essential to detain him to prevent him from so doing. The law has been recently summarised in the decision in N. Meera Rani vs. State of Tamilnadu, AiK 1989 SC 2027 in the following manner: "Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.' See also Abdul Razak Abdul Wahab Shaikh vs. SN Sinha, AIR 1989 SC 2265 and Kamarunnissa vs Union of India, AIR 1991 SC 1640 . 8. Relying on the decision of the Constitution Bench in Mohinder Singh Gill & another vs. The Chief Election Commissioner, New Delhi & others, AIR 1978 SC 851 , it is argued for the petitioner that if detention order or the grounds of detention do not reflect the detaining authority's awareness of the fact that the person sought to be detained was in jail and application of his mind to the question whether nevertheless a detention order is necessary to be passed the Court cannot look into the counter affidavit or the records. The Supreme Court dealing with an order passed by the Chief Election Commissioner observed : "When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out." (emphasis supplied) Respondents are relying on the counter-affidavit or the records not to supplement the reasons mentioned in the detention order or grounds of detention, but to show, the detaining authority's awareness of relevant facts and application of his mind to those facts. Therefore, the principle laid down in the above decision will not apply to the facts of the present case. 9. Our attention has been invited by learned counsel for the petitioner and the learned Additional Senior Government Advocate to a number of decisions of the Supreme Court relating to cases of preventive detention under various statutes. In many of these cases, the grounds of detention referred to such awareness on the part of the detaining authority. In some of the cases awareness was shown by affidavit filed in Court and in a few cases by production of the relevant records. We are not referring to all these decisions since none of them holds that if the detention order or grounds of detention is silent on the point, affidavit or the records cannot be looked into. 10. In Biru Mahato vs. District Magistrate, Dhanbad, AIR 1982 SC 1539 , it has been observed as follows :- "...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.The awareness must be of the fact that the person against whom the 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 prejudicial activity which is required to be prevented by a detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. 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 or in the affidavit justifying the detention order when challenged. In the absence of it would appear that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non-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 as invalid." (emphasis supplied) This view has been reiterated in Merugu Satyanarayana vs. State of Andhra Pradesh & others, AIR 1982 SC 1543 (para 15) and Devi Lal Mahto vs. State of Bihar & another, AIR 1982 SC 1548 (para 5> In Vijay Kumar vs. Union of India & others, AIR 1988 SC 934 the Court observed : "... It is not necessary that in the order of detention such awareness of the detaining authority has to be indicated. It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention." In the above case, the Supreme Court had no occasion to consider whether in the absence of reference to this aspect in the grounds of detention, the Court could look into the counter-affidavit or the records. In Jai Singh & others vs. State of Jammu & Kashmir, AIR 1985 SC 764 , the Court commented on the non-indication of the awareness in the detention order, grounds of detention counter-affidavit or the records.In Binod Singh vs. District Magistrate, Dhanbad, Bihar & others, AIR 1986 SC 2090 : (1986) 4 SCC 416 , the Court looked into the affidavit of the detaining authority to judge the awareness of the detaining authority in this regard. So also in Vijay Kumar vs. Union of India & others, AIR 1988 SC 934 and Bal Cband Bansal vs. Union of India & others, AIR 1988 SC 1175 . 11. So also in Vijay Kumar vs. Union of India & others, AIR 1988 SC 934 and Bal Cband Bansal vs. Union of India & others, AIR 1988 SC 1175 . 11. The detention order may not specifically indicate the awareness on the part of the detaining authority that at the time of passing the order the person sought to be detained was in custody, but such an awareness must ordinarily be reflected in the grounds of detention that is because, ordinarily the Court looks into the grounds of detention to see in what manner and in what regard there was application of mind on the part of the detaining authority. Even if the grounds of detention do not contain any indication, the Court could look into the relevant records and the counter affidavit to judge this aspect of the case. This appears to be the well settled principle. 12. The counter affidavit filed by the detaining authority states as follows : "4. That the detaining authority (deponent herein) was fully aware of the facts and circumstances leading to the arrest and detention o" Shri Biren Daimary under various provisions of the Indian Penal Code, Arms Act read with Terrorist and Disruptive Activities (Prevention) Act. It was also in the knowledge of the deponent that the said Shri Biren Daimary was already detained in jail custody at the time of issuing the order of detention under the National Security Act, 1980, 5. That this deponent while issuing the order of detention dated 17.3.92 was satisfied on the basis of the records and materials made available to him that there was possibility and/or likelihood of Slid Biren Daimary being released on bail in the cases pending against him in connection with the offences under various provisions of law including the TADA (P) Act. That the possibility of the detenu being at large would be prejudicial to the maintenance of public order and security of the State and that was also one of the various factors that had led to the satisfaction under NSA on the background of the entire facts and circumstances relating to the activities of the detenu." 13. That the possibility of the detenu being at large would be prejudicial to the maintenance of public order and security of the State and that was also one of the various factors that had led to the satisfaction under NSA on the background of the entire facts and circumstances relating to the activities of the detenu." 13. The records show that on 31.1.1992, Superintendent of Police, Darrang, Maogald is addressed a communication to the detaining authority requesting him to consider the invocation of the provisions of the National Security Act in regard to the detenu in this case specifically indicating that he was then lodged in the District Jail, Mangaldoi and there was likelihood of his getting bail soon and also enclosing copies of dossier, extract of interrogation statement, source report, FIRs in the cases, case diaries and other materials. These records were seen by the detaining authority as is clear from the endorsement thereon. We are therefore satisfied that the detaining authority, when he passed the order of detention, was aware that the person sought to be detained was in jail at the relevant time and that the Superintendent of Police was of the view that it was likely that he may be released on bail soon. 14. It is contended for the petitioner that mere reference in the records or the counter-affidavit to the likelihood or possibility of release on bail would not indicate due application of mind since no bail application had been filed in any of the cases prior to the detention order and no application for bail was pending at the relevant time and the detaining authority was not aware of this state of affairs. The particulars regarding the dates on which bail applications were filed and the disposal or non-disposal thereof are seen in the affidavit filed by the petitioner. Learned Addl. Senior Govt. Advocate did not controvert these particulars. Neither the counter-affidavit nor the records placed before us indicates that the detaining authority was aware that no bail application had been filed or was pending at the relevant time. All that the detaining authority knew was that the person sought to be detained was in jail in connection with eight cases including cases under the TA L)A (P) Act and the Superintendent of Police was of the view that there was likelihood of bail being granted. All that the detaining authority knew was that the person sought to be detained was in jail in connection with eight cases including cases under the TA L)A (P) Act and the Superintendent of Police was of the view that there was likelihood of bail being granted. The detaining authority was not aware that no bail application had been filed in any of the cases. He merely accepted the ipsi dixit of the Police Officer. This is a clear case of a mechanical approach to the matter and total non-application of mind in regard to the possibility of the release of the person on bail. The grounds of detention and counter-affidavit do not state that the detaining authority was satisfied that the person concerned, on being released may indulge in activity prejudical to public order. We may also point out that while the detention order refers only to "prejudicial to the maintenance of public order", the counter-affidavit refers to prejudicial to the maintenance of public order and security of the State". -We hold that the subjective satisfaction was not arrived at by the detaining , authority on consideration of relevant materials and there was total non- application of mind, on his part, to the relevant materials. See Abdul Razak Abdnl Wahab Shaikh's case, AIR 1989 SC 2265. 15. In the result, the detention order is quashed. The person detained, namely,. Shri Biren Daimari, shall be released forthwith if his continued -detention is not warranted in connection with any other case. 16. The petition is accordingly allowed. There will be no order as to costs.