PETITIONER:
SMT.SHASHI AGARWAL
Vs.
RESPONDENT:
STATE OF UP & ORS.
DATE OF JUDGMENT12/01/1988
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)
CITATION:
1988 AIR 596 1988 SCC (1) 436
JT 1988 (1) 83 1988 SCALE (1)40
ACT
National Security Act, 1980: Sections 3 and 12- Detention-Detenu involved in Criminal Case-In jail-Whether order of detention can be made in respect of such detenu- Mere apprehension that, if enlarged on bail, likelihood of acting prejudicially to interest of public order-Whether sufficient to justity the detention order. C
HEADNOTE
%
detention order was passed and served on the detenu on Augus t 3, 1987, while he was in jail for five non-bailable offences alleged to have been committed by him on May 19,1987. The detention order alleged that as the detenu who was in jail was trying to come out on bail, and there was enough possibility of his being bailed out, it was necessary to detain him in order to prevent him from doing acts against maintenance of public order.
The detention was approved by the Government under s. 12 (1) of the National Security Act, 1980, after the receipt of the Advisory Board’s opinion. The validity of the detention was challenged in the writ petition before this Court.
On the question: whether the detention could be justiaed solely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and he would then act pre judicially to the interest of the public order.
This Court quashed the detention order on December 18, 1987.
Giving the reasons for its decision, ^
HELD: Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. [597C-D] 594
Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail, the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be suffi cient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. [598B-C]
In the instant case, there was no material made apparent on record that the detenu, if released on bail, was likely to commit ac tivities prejudicial to the maintenance of public order. The detention order cannot be justified merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. [598F-G]
Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48 relied on.
Alijan Mian and another v. District Magistrate, Dhanbad, [1983] 3 SCR 930; Ramesh Yadav v. DistrictMagistrate, Etah and ors., [1985] 4 SCC at p. 234 and Binod Singh v. District Magistrate, Dhanbad, [1986] 4 SCC 416 at 421, explained
JUDGMENT
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 735 of 1987.
(Under Article 32 of the Constitution of India).
U.R. Lalit, P. Lal and Mrs. Rani Chhabra for the Petitioner.
Yogeshwar Prasad and Dalveer Bhandari for the Respondent.
The following order of the Court was delivered
JAGANNATHA SHETTY, J. The arguments of this case conc luded at the close of the court hours on December 18, 1987. We then nlade the following order:
"We will give the reasons later. But we make
the operative order here and now. 595
The detention order is quashed. The detenu
will be set at liberty forthwith."
Here are the reasons:
In this writ petition, the validity of the detention of
Arun Aggarwal has been challenged. He has been detained
by the District Magistrate, Meerut by an order dated
August 3, 1987 made under sec. 3(2) of the National
Security Act, 1980. The Government, after the receipt
of opinion of the Advisory Board, has approved the
detention as required under sec. 12(1) of that Act. The
impugned order reads as under:
"office of the District Magistrate, Meerut
ORDER
As I am satisfied as District Magistrate,
Meerut that issue of order to prevent Shri Arun
Aggarwal, son of Shri Rattan Singh, resident of
234, ’L’ Block, Shastri Nagar, Police Station
Medical, Meerut from doing act against the
maintenance of public order is necessary.
Therefore, in exercise of power given in sub-
section 3 of sec. 3 of National Security Act, 1980
(Act No. 65/ 1980), I hereby give order that the
above said Shri Arun Aggarwal, son of Shri Rattan
Singh, resident of 234, ’L’ Block, Shastri Nagar
Police Station Medical, Meerut be detained in
general category in District Meerut Jail in the
custody of the Supdt. Of the said jail under sub-
section 2 of Sec. 3 of the above said Act.
Passed today dated 3.8.1987 under my
signature and seal "
There are as many as five grounds of detention set out in the order. All relate to the offence said to have been committed by Arun Aggarwal on May 19, 1987. Two of the offences are said to have been committed at 9.OO A.M. On that day, the other two offences at 9.30 A.M. and the fifth one was alleged to have been committed between 9.30 A.M. to 1.00 P.M. On the same day. In each of the grounds there is a mention to the following effect: 596
"Due to your above ill acts there broke out
com munal riots causing heavy loss to properties
and lives of the people and your this ill act has
spread fear and terror in the general public of
Meerut City. In this manner, you have corrlmitted
such an act which is against public law and order.
"
All the cases referred to in the grounds are non-
bailable offences. In relation of those offences, Arun
Aggarwal was arrested as an accused on August 2, 1987.
The detention order was passed and served on August 3,
1987. The order particularly stated: "At present you
are detained in District Jail, Meerut and you are
trying to come out on bail and there is enough
possibility of your being bailed out."
Before we consider the main ground raised in the
petition, we may make one point clear. The order of
detention repeatedly states that the detenu committing
the alleged five offences set out in the detention
order was the cause for breaking out communal riot in
Meerut City. But in the counter-affidavit filed on
behalf of the respondents, it has been stated "that the
communal riots broke out in Meerut on April 14, 1987 on
the occasion of Shab-e-Earat. That was controlled by
the Administration. However, in the night intervening
between 13/19 May, 1987, again a communal riot broke
out." But all the offences said to have been committed
by the detenu were after 9.00 A.M. on May 19, 1987. It
was not in the intervening night between May 18/19. It
was, therefore, inaccurate to state that the communal
riot broke out due to the incidents attributed to the
detenu on May 19, 1987.
The primary question however, is whether the
detention of Arun Aggarwal could be justified solely on
the ground that he was trying to come out on bail and
there was enough possibility of his being bailed out
and he would then act prejudicially to the interest of
the public order. Mr. Yogeshwar Prasad, learned counsel
for the State, sought to justify the detention order
relying upon the decision of this Court in Alijan Mian
and another v. District Magistrate, Dhanbad, [ 1983] 3
SCR 930. The counsel also said that the subsequent two
decisions of this court to which we will make reference
later, are not in tune with the ratio of the decision
in Alijan Mian’s case.
We will first consider what the case about in
Alijan Mian case. The detention order considered in
that case contained statement that the District
Magistrate was satisfied that the detenu was likely to
be 597 released on bail and if he was allowed to remain at large, he would be indulging in activities prejudicial to the maintenance of public order. This court refused to interfere with that detention order on the ground that the detaining authority was justified in forming that opinion. The conclusion of this Court was evidently on the basis of material placed before the detaining authority in that case.
The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48. The principles may be summarised as follows.
Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.
We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are not in tune with the ratio of the decision in Alijan Milan’s case (supra). In Ramesh Yadav v. District Magistrate Etah and Ors., [1985]4 SCC 232 at p. 234, this Court observed:
"On a reading of the grounds, particularly
the paragraph which we have extracted above, it is
clear that the order of detention was passed as
the detaining authority was apprehensive that in
case the detenu was released on bail he would
again carry on his criminal activities in the
area. If the apprehension of the detaining
authority was true, the bail application had to be
opposed and in case bail was granted, challenge
against that order in the higher forum had to be
raisec;. Merely on the ground that an accused in
detention as an under-trial prisoner was likely to
get bail an order of detention under the National
Security Act should not ordinarily be passed." What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again 598 carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.
Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed:
"A bald statement is merely an ipse dixit of
the officer. If there were cogent materials for
thinking that the detenu might be released then
these should have been made apparent. Etemal
vigilance on the part of the authority charged
with both law and order and public order is the
price which the democracy in this country extracts
from the public officials in order to protect the
fundamental freedoms of our citizens. "
There is, to our mind, nothing in these two decisions which runs counter to the decision in Alijan Mian’s case (supra).
In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the detenu is trying to come but on bail and there is enough possibility of his being bailed out. We do not think that the order of detention could be justified only on that basis.
These were the reasons upon which we quashed the order of detention. N.P.V. 599