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1995 DIGILAW 93 (ORI)

PADMABATI DEI v. DISTT. MAGISTRATE. CUTTACK

1995-03-15

R.K.DASH, V.A.MOHTA

body1995
V. A. MOHTA, C. J. ( 1 ) CAN a juvenile be detained under the National Security Act (N. S. Act) ?i The above question of some interest and importance calls for an answer in this habeas corpus petition. Arakhit Kalia Das is the detenu. Padmabati Dei, his mother, is the petitioner. Order of detention is dated 2nd May, 1994. Detaining authority is the District Magistrate, Cuttack. Grounds of detention show the age of the detenu as 20 years. Petitioner asserts that he is 15 years of age. As per the grounds of detention, the detenu is an anti-social surviving on the fruits of theft of stolen goods, instruments, cables, co-axial amplifiers on the telephone lines. Due to such activities of the detenu, telephone communication gets disrupted resulting in paralysing the administration. His activities are prejudicial to the maintenance of supplies and services essential to the community. The occurrence was usual. On 27. 3. 1994 at about 2. 00 a. m. there was a theft of one oscillator and three ammplifiers from Repeater Sllltion No. 19 situated by the side of N. H. 5 near village Bandal in the district of Kendrapara. Cost of these materials was near about Rs. 4,00,000/ -. A week before also such thefts had taken place on 21. 3. 1994 and the day following. On 4. 4. 1994, the detenu and his associate were caught red handed by the police party while approaching Govindpur Repeater Station with preparation to commit similar crime. From him, two hackshaw blades, one screw driver and one wrench were recovered. The detenu, during the course of interrogation, admitted to? have committed the above crimes. ( 2 ) THE petitioner asserts that the detenu was a juvenile aged 15 years at the time of his detention and therefore the N. S. Act does not apply to him. Our pointed attention is drawn in this connection to sections 18 and 22 of the Juvenile Justice Act, 1986 (J. J. Act ). have committed the above crimes. ( 2 ) THE petitioner asserts that the detenu was a juvenile aged 15 years at the time of his detention and therefore the N. S. Act does not apply to him. Our pointed attention is drawn in this connection to sections 18 and 22 of the Juvenile Justice Act, 1986 (J. J. Act ). We reproduce for ready reference these provisions: 18 Bail and custody of juveniles- (1) When any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall, not with standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. (2) When such person having been arrested is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a Juvenile Court. (3) When such person is not released on bail under sub-section (1) by the Juvenile Court, it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. 22. (3) When such person is not released on bail under sub-section (1) by the Juvenile Court, it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. 22. Order that may not be passed against delinquent juveniles (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security: Provided that where a juvenile who has attained the age of fourteen years has committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious a nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Juvenile Court may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit and shall report the case far the orders of the State Government. (2) On receipt of a report from a Juvenile Court under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such delinquent juvenile to be detained at such place and on such conditions as it thinks fit: Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offencei ( 3 ) NOW, it is apparent that the J. J Act does not apply to a person detained under the N. S. Act but only applies to a person accused of an offence. Section 18 mandates that if the accused is a juvenile, he shall be normally released on bail irrespective of whether the offence is bailable or not. Section 18 mandates that if the accused is a juvenile, he shall be normally released on bail irrespective of whether the offence is bailable or not. In the extraordinary circumstances indicated in sub-section (1) of section 18, when he is not released on bail, he is to be kept in an observation home or a place of safety till he is brought before a Juvenile Court after arrest or pending trial. Section 22 provides that no delinquent juvenile shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security. Certain other contingencies arc also provided for. We fail to see how these provisions support the contention raised. It is true that sub-section (1) of section 18 contains the word detained. But, by virtue of that feature only, it cannot be said that the said word refers to detention under he preventive detention law. The word detain has not been defined by the J. J. Act. Resort to its normal dictionary meaning is inevitable. According to the Chambers 20th Century Dictionary, it means, to hold back; to withhold; to stop; to keep; to keep in custody. The word detained in section 18 (1) of the J. J. Act cannot be read in isolation and will have to be read with reference to the context of the whole provision. ( 4 ) OUR attention was invited to a Division Bench decision of Madras High Court in the Case of Lakshmi v. Sub-Inspector, N. P. Police Station, in support of the proposition. We find nothing in that decision which even remotely supports the contention. That was a case of juvenile taken into police custody against the provisions of sections 18 and 21 of the J. J. Act. Because of the invalidity, the court awarded to the juvenile compensation to the tune of Rs. 25,000/ -. ( 5 ) SECTION 3 of the N. S. Act is the substantive and enabling provision for passing detention orders. It refers to the terminology any person. Section 2 (d) defines the word person, which includes a foreigner also. In the absence of any exception, a juvenile would also be a person within the meaning of the N. S. Act. ( 5 ) SECTION 3 of the N. S. Act is the substantive and enabling provision for passing detention orders. It refers to the terminology any person. Section 2 (d) defines the word person, which includes a foreigner also. In the absence of any exception, a juvenile would also be a person within the meaning of the N. S. Act. Examination of the definition of the term person given by section 3 (42) of the General Clauses Act also docs not improve the case of the petitioner. It defines the term persont as including any company or association or body of individuals whether incorporated or not. There is no justification whatsoever to restrict the meaning of the term person to a major or a non-juvenile. The primary purpose and object of the N. S. Act is to apprehend certain variety of anti-social and subversive elements to ensure that by their activities larger interests of the citizen and society are not imperilled. It is not meant to punish a man for having done something criminal in the past. Keeping the above object of the N. S. Act in view, we see no reason to restrict its operation only to a major. Such an interpretation has the potentiality of defeating the object of the N. S. Act. Therefore, any person, whether he is major, or juvenile, would come within the net of the N. S. Act once the subjective satisfaction about the prejudicial activities referred to in section 3 thereof is properly reached. ( 6 ) IT will not be out, of place to mention that considering the fact that the detenu is not a convict or under trial prisoner, the Supreme Court has issued directions that such detenue have to be segregated from the convicts and kept in a separate part of the place of detention and restrictions on them, that are required only to make the detention effective, should be minimal. (See Sunil Batra v. Delhi Administration and A. K. Roy v. Union ). The legal question, therefore, has to be answered in the affirmative. ( 7 ) THE correct age of the detenu is a debatable question of fact in this petition. The opposite parties assert that he is aged 20 years whereas the mother of the detenu asserts that he is 15 years of age. The legal question, therefore, has to be answered in the affirmative. ( 7 ) THE correct age of the detenu is a debatable question of fact in this petition. The opposite parties assert that he is aged 20 years whereas the mother of the detenu asserts that he is 15 years of age. The date of birth of the detenu is within the special knowledge of the petitioner. No reliable material about the age is available on record. There is neither the school leaving certificate nor an extract of the birth and death register. A photostat copy of the horoscope has been produced on record. Such a document can be easily procured. Having regard to the totality of the background, we are not inclined to place reliance on the horoscope. ( 8 ) THE second submission was that the alleged activities have no means with the maintenance of public order and that such is not even the ground of detention. Existence of activities prejudicial to maintenance of public order is not sine qua non for passing an order of detention under section 3 (2) of the N. S. Act That is only one of the two considerations. The other is existence of activities prejudicial to the maintenance of supplies and services essential to the community. It is the second part of section 3 (2) on which the detention order is found habitual theft of articles mentioned in the grounds and the manner and extent thereof is certainly an activity prejudicial to the maintenance of services essential to the community. ( 9 ) INSUFFICIENCY of material is the third submission, subjective satisfaction of the detaining authority cannot be questioned in writ jurisdiction on the basis of insufficient material. This is not a case of total lack of material. The inference drawn on the basis of the material available is a possible one which cannot be questioned by courts even though in a given case another view of the matter is possible. ( 10 ) THE last submission is about non-supply of documents. This submission is also misconceived. We have examined the record. There is no failure of supplying copy of the document relied upon or referred to by the detaining authority. Subjective satisfaction need not always be based on documents. Hence we see no merit in this submission. In the result, we find no merit in this writ petition. This submission is also misconceived. We have examined the record. There is no failure of supplying copy of the document relied upon or referred to by the detaining authority. Subjective satisfaction need not always be based on documents. Hence we see no merit in this submission. In the result, we find no merit in this writ petition. It is, therefore, dismissed. No order as to costs. Writ petition dismissed. .