HANS RAJ v. ADMINISTRATOR NATIONAL CAPITAL TERRITORY OF DELHI
1993-08-30
D.P.WADHWA, VIJENDER JAIN, VUENDER JAIN
body1993
DigiLaw.ai
D. P. WADHWA, J. ( 1 ) BY this writ petition filed under Article 226/227 of the Constitution read with section section 482 of the Code of Criminal Procedure the petitioner seeks a writ of mandamus and/or a writ of certiorari, or any other appropriate writ, order or direction for quashing the order of detention dated 17 April 1993 passed against him by the Commissioner of Police, New Delhi, the second respondent, under section 3 (1) of the National Security Act, 1980. There are some other ancillary reliefs claimed and arising out of that order. ( 2 ) THE detention order has still not been executed and the petitioner filed an application seeking stay of that order during pendency of the writ petition. On one hearing we directed that petitioner should appear in court in person. He defaulted and then on a subsequent date an application was filed by the petitioner that his personal presence be dispensed with and that petitioner shall abide by such order as this Court might pass in the matter. ( 3 ) THE National Security Act, 1980 ( the Acf for short) is a piece of valid legislation under Article 22 of the Constitution. An order of detention can be made against a person under sub-section (2) of section 3 of the Act on the satisfaction of the authority concerned that it was necessary to pass the order of detention with a view to preventing that 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 from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. An order of detention can be executed in the manner for execution of warrants of arrest under the Code of Criminal Procedure, 1973. When a person is detained the thority making the order shall as soon as may be but ordinarily not later than five days, and in exceptional circumstances not later than ten days, from the date of detention, communicate to him the grounds on which the order had been made, and shall afford him the earliest opportunity of making the representation against the order. This is section 8. Since the petitioner has not been detained he would not be aware of the grounds on which the order had been made against him.
This is section 8. Since the petitioner has not been detained he would not be aware of the grounds on which the order had been made against him. Under section 9 of the Act, an Advisory Board is constituted which consists of three persons who are, or have been, or qualified to be appointed as Judges of the High Court. The Advisory Board in Delhi consists of three sitting Judges of the Delhi High Court. Then a reference has to be made under section 10 to the Advisory Board for its opinion whether or not there is sufficient cause for detention of the person concerned. Procedure is prescribed-under the Act for the Advisory Board to follow. Under section 5-A of the Act the grounds of detention are severable. This section is as under :- "5-A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 under section 3 which has been made on two or more grounds, such order of detention shall be deemed 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 grounds is or are - (i) vague, (ii) non-existent, (iii) nonrelevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds. " ( 4 ) THIS section has to be given its due effect.
" ( 4 ) THIS section has to be given its due effect. In State of Gujarat v. Chamanlal Manjibhai Soni, AIR 1981 S. C. 1480, the Supreme Court while interpretingsection5-A, which is similar in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, said as under:- "the High Court seems to think that Sec. 5-A contemplates that there should be only one ground which relates to the violation of Sec. 3 of the Act and if that ground is irrelevant and the other grounds which relate to some other subject-matter are clear and specific, the detention will not stand vitiated. In our opinion, the argument of the High Court with due respect amounts to begging the question because the detention under Sec. 3 of the Act is only for the purpose of preventing smuggling and all the grounds whether there are one or more, would be relatable only to various activities of smuggling and we cannot conceived of any other separate ground which could deal with matters other than smuggling because the act of smuggling covers several activities each forming a separate ground of detention and the Act deals with no other act except smuggling. Indeed, if the interpretation of the High Court in respect of Sec. 5-A is accepted, then Sec. 5-A will become itiose. " ( 5 ) PETITIONER has contended that earlier on 3 October 1992 he was detained in pursuance of an order made by the second respondent under section 3 (2) of the Act and was lodged in the Central Jail on the following day. Along with the petition the petitioner has filed the order of detention dated 3 October 1992 and the grounds of detention on the basis of which earlier order of detention was issued. The petitioner was released on 4 December 1992 on the basis of the opinion rendered by the Advisory Board that there was no sufficient cause to detain the petitioner. Contention, thus, raised is that on the same very material the present order of detention has been passed which is illegal. Petitioner says his case is fully covered by a decision of the Supreme Court in Ramesh v. State of Gujarat and others, AIR 1989s.
Contention, thus, raised is that on the same very material the present order of detention has been passed which is illegal. Petitioner says his case is fully covered by a decision of the Supreme Court in Ramesh v. State of Gujarat and others, AIR 1989s. C. 1881, and also that the principles laid down in Alaka Gadia s case (Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another, 1992 Suppl (I )S. C. C. 496) would apply for the release of the petitioner before the impugned order of detention is executed. We issued notice to show cause as to why rule nisi be not issued and while doing so we did not grant any interim relief to the petitioner for his release on bail pending hearing of the matter. The fact that the petitioner was so released on the advice of the Advisory Board is not denied, but it is stated that after his release from detention the petitioner again started his criminal activities, and the detaining authority after due application of mind considered it necessary to pass the impugned order with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order. Even one act of the petitioner which is prejudicial to the maintenance of the public order is sufficient to pass an order of detention against him. As noted above, the order of detention has not been executed and the grounds on the basis of which order of detention was made have also not been served upon the petitioner. We are at this stage unable to know the grounds of detention. The petitioner has been able to file the order of detention which is dated 17 April 1993. The petition does not show as to how the petitioner was able to procure this order of detention. Be that as it may, this order of detention has not been denied by the respondents. In Ramesh v. State of Gujarat and others (AIR 1989 S. C. 1881) the court in para 10 of the judgment said as under: - "on a careful scrutiny of the grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases mentioned under Sr. Nos.
In Ramesh v. State of Gujarat and others (AIR 1989 S. C. 1881) the court in para 10 of the judgment said as under: - "on a careful scrutiny of the grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases mentioned under Sr. Nos. 1 and 2 of the table which were the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenu. " ( 6 ) WE have not called upon the respondents to produce any record and grounds of detention of the petitioner. There, therefore, has not been any occasion for us to scrutinise these grounds of detention. No case has been made out, to our mind, for us to call upon the respondents to furnish the grounds of detention to the petitioner before the order of detention is executed against him. The requirement of section 8 of the Act is that the grounds detention are to be communicated to the petitioner after the order of detention has been executed. In Alka Gadia s case the Supreme court points out that though the jurisdiction of the High Court under Article 226 was not barred, that jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. The court then observed as under :- "courts cannot disregard all these time-honoured and well-tested judicial. self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, the courts have power to entertain grievances against any detention order prior to its execution and they have used it in proper cases although such cases have been few and the grounds on which the courts have inteerfered with them at the pre-execution stage are necessarily very limited in scope and number, viz.
Thirdly, the courts have power to entertain grievances against any detention order prior to its execution and they have used it in proper cases although such cases have been few and the grounds on which the courts have inteerfered with them at the pre-execution stage are necessarily very limited in scope and number, viz. , where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to beexecuted against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. " ( 7 ) WE do not find the case of the petitioner falling under any of the exceptions outlined above by the Supreme Court. ( 8 ) WE do not wish to say anything more on the subject as then we will be impinging upon the jurisdiction of the Advisory Board, nor we want to comment on the case set up by the detenu as it might prejudice the case of the parties before the Advisory Board either way. We cannot set the provisions of the Act at naught at this stage by interfering in the matter at this stage. Petitioner said there has been non-application of mind. However, we do not know about that in the absence of grounds of detention and the other documents which petitioner would be entitled to after execution of the impugned order of detention. We may also say that non-application of mind which is contended is not like a magic wand to be applied in all cases whatever the circumstances. ( 9 ) THIS petition; therefore, fails and is dismissed. The petitioner must surrender at once.