Hirabai v. State Of Madhya Pradesh And Another

1. The District Magistrate, Damoh being satisfied with respect to one Ramesh Kumar alias Ramesh Pahalwan, aged 24 years, r/o Dhor Bazar, Damoh that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it was necessary so to do, made an order on 20-12-1985 directing that he be detained under Sub-section (2) of Section 3 of the National Security Act. However, as the said person was alleged to be absconding, the detention order could be executed against him only on 20-1-1986 and he could be taken into custody on the said date.

2. In the meanwhile, as required by Sub-section (4) of Section 3 of the Act, the District Magistrate Damoh had sent a report about the detention order dt. 2042-1985 having been passed against the detenu to the State Government on 26-12-1985 and the same was approved by the State Government in its Home Department on 28-12-1985. So also, in the meanwhile, as required by Sub-section (5) of Section 3, the State Government had sent information about the detention order dt. 26-12-1985, having been passed by the District Magistrate and the same having been approved by it, to the Government of India on 2-1-1986.

3. Now, after the detention order was executed against the detenu on 20-1-1986, and he was taken into custody on the said date, the grounds of detention were served on him on the same day as required by Section 8. In the covering letter, under which the grounds of detention were served on the detenu, the detenu was informed of his right to'make a representation against the detention order to the State Government (Secretary, Home Department) and also of his right to be heard personally by the Advisory Board in case he desired such a hearing.

4. Thereafter, as required by Section 10, the State Government referred the matter to the Advisory Board on 29-1-1986. In its turn, as required by Section 11, the Advisory Board considered the matter in its meeting on 28-2-1986. The detenu was present in the said meeting of the Board and was granted a personal hearing by it. The report dt. 3-3-1986 of the Board was received by the State Government in its Home Department on 5-3-1986. In the light of the said report, the'State Government confirmed the detention order Under Section 12 on 143-1986 and directed the detention of the detenu to continue for a period of twelve months ending on 19-1-1987.

5. In the present petition filed by the wife of the detenu for the issue of a writ of habeas corpus, the detention of her husband under Sub-section (2) of Section 3 of the National Security Act is challenged on various grounds. First ground on which great emphasis was laid by the learned Counsel for the petitioner is that Sub-section (4) of Section 3 contemplates the approval of a detention order passed by an officer mentioned in sub-section (3) of section 3 i.e. a District Magistrate or a Commissioner of Police by the State Government only after the said order is executed and the detenu is taken into custody under it. It is submitted by the learned Counsel that in the present case the approval of the detention order dt. 20-12-1985 passed by the District Magistrate by the State Government on 28-12-1985 i.e. prior to the detenu's detention under the said order on 20-1-1986 was premature and contrary to the provisions of Sub-section (4) of Section 3 and accordingly had the effect of rendering the continued detention of the detenu illegal and invalid.

6. In our opinion, the abovesaid interpretation put by the learned Counsel for the petitioner on Sub-section (4) of Section 3 of the Act is on the face of it misconceived and cannot be accepted. It is greatly significant that under the provisions of the National Security Act the original power to make an order of detention Sub-section (2) of 373 against any person has been vested in no lesser authority than the'State Government or the Central Government itself. It is only in certain circumstances mentioned in sub-section (3) of section 3 that in case the State Government is satisfied that it is necessary to do so it has been given the power to direct by an order indicating that during such period as may be specified in the order a District Magistrate or a Commissioner of Police may also exercise the power to make an order of detention in the area within the local limits of his jurisdiction.

7. But, then, it is noteworthy that even while empowering the State Government to delegate its power of making an order of detention to the District Magistrate or the Police Commissioner under sub-section (3) of section 3 the basic position under the provisions of the Act as regards the satisfaction of the State Government being alone sufficient to sustain the continuance of an order of detention has not been compromised or given up. In fact, it is with a view to give effect to the said basic position that Sub-section (4) of Section 3 has been enacted and it has been provided that when any detention order is made by an officer mentioned under Sub-section (3) he shall forthwith report the fact to the State Government to which he is subordinate along with the grounds on which the order has been made and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.

8. Thus, as per the proper interpretation of Sub-section (4) of Section 3 of the National Security Act an order of detention made under Sub-section (2) read with Sub-section (3) of Section 3 by a District Magistrate or a Commissioner of Police against any person acquires the character of a proper order of detention contemplated in Sub-section (2) of Section 3 only after it is approved by the State Government within the short period prescribed under Sub-section (4) of Section 3. It is for the said reason that in case the State Government does not approve it within the short period prescribed it has to die its own death and has tox;ease to be in force after the expiry of the said period.

9. It is no doubt true that there is a proviso appended to Sub-section (4) of Section 3 of the Act laying down that where Under Section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention the said sub-section shall apply subject to the modification that for the words 'twelve days' the words 'fifteen days" shall be substituted. But, then, in our opinion, bearing in mind the purpose for which Sub-section (4) of Section 3 has been enacted, as also from the scheme of other provisions contained in the Act, it does not follow from the language used in the proviso appended to Sub-section (4) of Section 3 that either the report (along with grounds of detention and other particulars) by the officer concerned to the State Government regarding the detention order passed by him or the approval, if any, of the said detention' order by the State Government has to take place only after the detenu has been detained in execution of the said detention order and not before it.

10. It is noteworthy that independently of what is contained in Sub-section (4) of Section 3 of the Act there are other provisions in the Act which fully take care of the detained person's right of being afforded the earliest opportunity of making representation against the detention order guaranteed under Article 22(5) of the Constitution. Thus, Section 8 of the Act provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Govt. It being so, there is no need to import any consideration relating to affording of such an opportunity to the detenu while interpreting Sub-section (4) of Section 3.

11. It is apparent that the proviso in question has been appended to Sub-section (4) of Section 3 only with a view to enlarge the period for grant of approval to the detention order by the State Government from twelve days to fifteen days in such cases in which, as mentioned in Section 8, due to exceptional circumstances it is not possible for the officer concerned to communicate the grounds of detention to the detenu within the ordinary period of five days from the date of detention and he has been able to do so only within ten days from the said date as provided in the said section. But, then, it is significant that like the original period of twelve days provided under Sub-section (4) of Section 3, the extended period of fifteen days provided under the proviso to the said sub-section has for its starting point the date of detention order and not the date on which the detenu has beenn detained in execution of the same.

12. It is apparent that the abovesaid being the object of enacting Sub-section (4) of Section 3 of the National Security Act there is no warrant for connecting or linking the provisions contained in the said sub-section as regards forwarding of report by the District Magistrate or the Commissioner of Police to the State Government together with the grounds of detention and other particulars, with the date on which the detenu has been taken into custody in execution of the said order. Similarly, for that very reason, there is no warrant for connecting or linking the provisions contained in the said sub-section regarding the approval of the detention order by the State Government, with the date on which the detenu has been taken into custody in execution of the detention order.

13. It follows that under Sub-section (4) of Section 3 of the Act, irrespective of the fact whether till then the detenu has or has not been taken into custody in execution of the detention order passed against him, the officer concerned has to forthwith report the fact regarding the said detention order together with the grounds of detention and other particulars to the State Government. So also, irrespective of the fact whether till then the detenu has or has not been taken into custody in execution of the detention order passed against him, the State Government has to satisfy itself about the need for passing the said order and grant its approval, if any, to it within twelve days (or within fifteen days in case the matter is covered by the proviso) after the making thereof. In case no such approval is granted by the State Govt. within the said short period the detention order has to die its own death and has to cease to be in force.

14. Accordingly, in our opinion, in the present case, in spite of the fact that in pursuance of the detention order dt. 20-12-1985 passed by the District Magistrate the detenu came to be taken into custody only on 20-1-1986. The District Magistrate acted rightly and in accordance with the provisions of Sub-section (4) of Section 3 in not waiting foe the detention of the detenu under the said order and in forwarding forthwith his report about the said detention order along with the grounds of detention and other particulars to the State Government on 26-12-1985. So also, after receiving the abovesaid report and other papers from the District Magistrate, the State Government, without waiting for the detention of the detenu in pursuance of the detention order, acted rightly and in accordance with the provisions of Sub-section (4) of Section 3 by satisfying itself about the need for detention and granting its approval to the detention order on 28-12-1985 i.e. within twelve days of the making thereof. There is no substance in the submission made by the learned Counsel for the petitioner that the approval of the detention order dated 20-12-1985 passed by the District Magistrate and approved by the State Government on 28-12-1985 i.e. prior to the detenu's detention under the said order on 20-1-1986 was premature and contrary to the provisions of Sub-section (4) of Section 3 and had the effect of rendering the continued detention of the detenu illegal and invalid.

15. The second argument of the learned Counsel for the petitioner was that the detention order passed against the detenu was null and void for the reason that the grounds on which the said order was passed had no connection with the maintenance of public order. It is clear from a perusal of the grounds of detention communicated by the District Magistrate to the detenu that as many as ten incidents spreading over the period 25-5-1984 to 23-7-1985 were relied on by the detaining authority while arriving at his satisfaction that it was necessary to detain the detenu with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. It is also clear that the police officers of Damoh town vide their statements made by the District Magistrate on 11-10-1985 had emphasised the fact of the act of the detenu in the abovesaid incidents having gravely endangered the even tempo of life of Damoh people and the said statements were also taken into account by the detaining authority while reaching his satisfaction.

16. Now, in the incident dt. 25-5-1984, the detenu was alleged to have stopped a rikshaw on a public road and caused head injury to its occupant by throwing a stone at him. In the incident dt. 30-5-1984 he was alleged to have entered into a shop along with his companions armed with weapons and was alleged to have caused damage to the shop and threatened the shop-keeper with life. In the incident dt. 8-5-1984 and 29-1-1985 he was alleged to have indulged in various acts of (rowdyism?) with the people at public places and on open road. At the time of incident dt. 29-1-1985 he was alleged to be accompanied by his companions and to have done 'Marpit' with a sword. In the incident dt. 3-3-1985, he was alleged to have entered the work-shop of one Laxmi Prasad Jain, thrown acid at him and threatened to kill the said person.

17. Thereafter, in the incident dt. 10-3-1985 the detenu was alleged to have hijacked a truck and tried to take it away by driving at great speed. When the traffic constable tried to stop the truck, he i.e. the detenu was alleged to have hit the truck against him and caused injuries to him. Further, he was alleged to have dashed the truck against an electirc pole causing disruption in electric supply to the town. In the incident dt. 23-6-1985 he and one of his companions, armed with a Farsa and an open knife respectively, were alleged to have terrorised the persons present near the railway station. It was alleged that when the police party wanted to catch hold of them they tried to make an assault on the said party. In the incident dt. 22-7-1985 the detenu was alleged to have stopped two rickshaws which were on way to the bus stand and demanded money from its occupants and threatened them with life. Similarly, in the incident dt. 23-7-1985 he was alleged to have tried to snatch a valuable article valued at Rs. 3000/-from a person on the point of a knife. In the last incident dt. 23-7-1985 he was alleged to have gone to the station with an open sword and terrorised the shop-keepers and other persons with it. As a result of the said acts, the shopkeepers closed their shops and the passengers fled away from there leaving behind their luggage.

18. In our opinion, the acts of the detenu in the abovesaid incidents spoke for themselves and no serious application of mind Was required by the detaining authority to come to the conclusion that the said acts affected or had a tendency to affect adversely the maintenance of public order. There was no substance in the argument put forth by the learned Counsel for the petitioner that the satisfaction reached by the detaining authority was vitiated for the reason that some of the incidents were old. All the incidents constituted a continuous series from 25-5-1984 to 23-7-1985 and the entire series was relevant for the reason that it showed strongly that in case the detenu was not detained he was likely to repeat the acts endangering the maintenance of public order. i

19. By way of last argument, it was tried to be half-heartedly suggested by the learned Counsel for the petitioner that the detenu was not afforded adequate opportunity to make an effective representation against the order of detention. It was clear from the record that the grounds of detention were duly communicated by the District Magistrate to the detenu as required by Section 8 of the Act and that it was the detenu himself who did not choose to avail of the opportunity of making a representation against his detention to the State Government. Moreover, as mentioned earlier, when the Advisory Board considered the matter in its meeting on 28-2-1986 the detenu was present in the said meeting of the Board and was granted a personal hearing by it. In our opinion, it is carrying things too far to suggest that while giving personal hearing to the detenu the Advisory Board was duty bound to enquire from him as to why he did not make a representation in writing to the State Government and to afford an opportunity to make such a representation in writing to it. In our opinion, there is nothing contained in Article 22(5) of the Constitution or Section 11 of the Act to compel the Advisory Board to adopt such a course.

20. For the reasons stated above, there is no merit in the petition.. The same is accordingly dismissed.