Islam v. State Of U.P And Others

K.N Singh, J.:— By means of this petition under Art. 226 of the Constitution, Islam, petitioner, has challenged validity of his continued detention in pursuance of the order of the District Magistrate, Varanasi, dt. 2-1-1985, issued by him in exercise of his powers under S. 3(2) of the National Security Act, 1980.

2. The order of detention has been passed only on one ground which recites that in the night of 18/19th Oct. 1984, the petitioner along with his associates, Pyarey Lal, Teras Yadav, Rajved Yadav, Sewalal Bind, Ramraj, Rambachan, Udairaj Bind, Ramu Kalwar and Hakim alias Saroj Khan was cutting electricity wire and stealing the same. On getting information, Station Officer of P.S Aurai reached the spot, arrested the petitioner and his companions and recovered electricity wire worth Rs. 65,000/- along with a diesel jeep. A criminal case was registered against the petitioner and his associates at Police Station Aurai for offences under Ss. 379/411 IPC. The grounds further stated that on account of this cutting of the wire by petitioner and his associates supply of electricity was adversely affected and several acres of land could not be irrigated and some of the village industries were closed on account of non-supply of electricity. This affected the maintenance of supply and service essential to the community. The order further stated that with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of supply and services essential to the community, it was necessary to detain him. The petitioner submitted a representation to the State Government but the same was rejected and on the recommendation of the Advisory Board the State Government confirmed the petitioner's detention by its order dt. 5-2-1985. Initially the District Magistrate had issued an order on 19/20th Oct. 1984, in exercise of his power under S. 3(2) of the National Security Act (hereinafter referred to as the Act) for the petitioner's detention, but since that order could not be approved by the Government within twelve days of the order of the detaining authority, it was revoked and a fresh order was issued by the District Magistrate on 2-1-1985 in pursuance of which the petitioner is continuing in detention. The validity of the order dated 2-1-1985 has not been assailed before us in view of S. 14(2) of the Act which permits making of another detention order in case the earlier detention order falls through on account of the State Government's failure to approve the same within twelve days from the date of the issue of the order.

3. The District Magistrate's satisfaction regarding necessity of petitioner's detention was based on the facts recited in the sole ground supplied to the petitioner, according to which the petitioner was arrested along with others for cutting and removing electricity wire in respect of which a case under S. 379/411 IPC has been registered and after investigation charge-sheet has been submitted and the petitioner and others are facing trial before the court. The petitioner is aged 14 years, so even if he is found guilty of the offence for which he is being tried, he could not be sent to jail in view of provisions of the Children Act, 1960. After conviction the petitioner is entitled to be let off with or without admonition. If the Court finds him guilty it may release the petitioner on probation for good conduct and place him under the care of his parents in accordance, with S. 21 of the Children Act, 1960. But under the impugned order of the District Magistrate the petitioner has been kept in detention in jail for the last ten months. The legislative policy is clear that a child and specially a child of 14 years should not be sent to jail, as there he may fall in the company of criminals and other undesirable persons. The legislature intended that such a child should be given opportunity to reform himself and for this purpose provisions have been made in the Act. The petitioner's detention is obviously inconsistent with the legislative policy. Preventive detention is quite different from punitive detention. Preventive detention does not partake in any manner of the nature of punishment. The detaining authority is accordingly under a bounden duty to consider the facts and circumstances of the case with abundant caution and care specially in a case where the police submits proposal for the detention of a child of immature age.

4. The petitioner is a young boy of 14 years of age. He left his schooling after having passed VIII class. He took up employment as a cleaner in a jeep. As an employee in the jeep he was found present at the spot at the time when the police arrested the gang of wire cutters, while he was putting the wire in the jeep. According to the police, the petitioner was carrying one bundle of wire for placing the same inside the jeep. The petitioner being an employee, was carrying wire load at the building of his employer for which he is facing trial for offences under S. 379/411 IPC. The petitioner has no previous history of indulging in any criminal activity and no material has been placed before us which could indicate that the petitioner had tendency of indulging into such activities in future which may adversely affect maintenance of supply and services essential to the community.

5. The question which arises for consideration is whether detention of a child of 14 years under the provisions of National Security Act, 1980, was warranted. There may be cases where on account of criminal activities of a young boy and his involvement in various serious offences indicating repetitive tendency, may make it imperative for the detaining authority to pass order detaining him if his activities are found to be prejudicial to public order or maintenance of supplies essential to the public. In the instant case, it is difficult to conceive that this young boy of 14 years could indulge in activities posing threat to the maintenance of supplies essential to the community. There is no material regarding petitioner's involvement in similar activities in the past, there is further no material on record or circumstances to suggest that if the petitioner is not detained he would again indulge in similar activities. In these circumstances, it is difficult to conceive how could a reasonable person form opinion that the petitioner's detention was necessary to be made with a view to prevent him from indulging into similar activities. The petitioner's employment as a cleaner in the jeep and the fact that he had no criminal history should have been considered by the District Magistrate having regard to the petitioner's age before passing the detention order. It appears that the District Magistrate proceeded to pass the detention order on the basis of the police report in a mechanical manner without scrutinising the facts and circumstances of the case and without applying his mind.

6. In Jayamala v. Home Secy, of J&K, (1982) 2 SCC 538 : AIR 1982 SC 1297 detention order was made on the facts constituting offence under Ss. 504 and 506 IPC. The Supreme Court set aside the detention order and observed:

“It is not for a moment suggested that the power under the Preventive Detention law cannot be exercised where a criminal conduct which could not be easily prevented, checked or thwarted, would not provide a ground sufficient for detention under the Preventive Detention laws. But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. Non-application of mind of the detaining authority becomes evident from the frivolity of the grounds on which the detention order is founded.”

7. These observations were made in the background of the detention of a school going boy of 17 years of age, who was arrested for attacking the conductor of a bus with a dagger. In the instant case, the petitioner, a boy of 14 years, is alleged to have been arrested along with a gang of electric wire cutters for which he is being prosecuted. We fail to conceive as to how the petitioner's detention was necessary for maintenance of supplies and services essential to the community. It has been brought to our notice that other persons who were arrested at the spot along with the petitioner are already in detention. If that be so, how the petitioner on account of his being of immature age could be expected to indulge in activities in future prejudicial to maintenance of supplies and services essential to the community. The detaining authority did not apply his mind to the facts of the case in forming his satisfaction. In our opinion on the facts and circumstances the detention order was wholly unwarranted.

8. The object of preventive detention is largely precautionary and based on suspicion. If the detaining authority forms requisite satisfaction after considering the relevant material that the detention of a person is necessary, the Courts have no power to sit in appeal over the decision of the detaining authority. It is well settled that the satisfaction of the detaining authority cannot be subject to scrutiny on objective assessement. The Court cannot review grounds or substitute its own opinion for that of the authority, but it does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial review. In Khudi Ram v. State of West Bengal, (1975) 2 SCC 81 : AIR 1975 SC 550, Bhagwati, J. speaking for the Court observed that the Court can always examine whether the requisite satisfaction is arrived at by the detaining authority; if it is not, the condition precedent to the exercise of power would not be fulfilled and the exercise of the power would be bad. Where the authority has not applied its mind at all, in such a case the authority cannot possibly be satisfied as regards the fact as to which it is required to be satisfied. Similarly, the grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. In the instant case, there was no material before the District Magistrate on the basis of which he could draw the inference that the petitioner's detention was necessary to maintain the supply of essential services to the community. The satisfaction of the detaining authority is not based on any material which would indicate that the petitioner had repetitive tendency to indulge into similar activities in respect of which he has been detained. The satisfaction of the detaining authority is accordingly vitiated. We accordingly allow the petition and quash the impugned order of detention of the petitioner and direct that the petitioner be set at liberty forthwith unless he is required to be detained in connection with some other case.

9. Petition allowed.