1983 JTR(SC) 281
1984 AIR(SC) 43 ; 1983 CriLR 487 ; 1983 2 Crimes(SC) 758 ; 1983 CrLJ 1728 ; 1984 1 RCR(Cri) 216 ; 1983 2 Scale 302 ; 1984 1 SCC 25 ; 1984 SCC(Cri) 21 ; 1983 3 SCR 957 ; 1984 KHC 546
SUPREME COURT OF INDIA
AMARENDRA NATH SEN AND RANGANATH MISRA, JJ.
The District Magistrate, Nowgong and another, Appellants
Versus
Sarat Mudoi, Respondent.
Criminal Appeal No. 468 of 1983
Decided on 14-9-1983.
Act Referred :NATIONAL SECURITY ACT : S.3
(A) Section 3(2) read with Section 3(3) of the National Security Act, 1980 empowers a detaining authority, here the District Magistrate of Nowgong, to issue an order of detention to prevent a person from acting in any manner prejudicial to the maintenance of public order and supplies or services essential to the community, provided the grounds of detention specify the particular activities and the notified essential supplies or services affected thereby. The statutory scheme requires that the categories of essential supplies and services notified under a prior public notification are made known to the detenu, enabling a meaningful representation against detention.
(B) An order of detention under the Act is not invalid merely because the particular essential supply or service is not specified in the detention order itself, as long as the specific grounds of detention disclose the requisite particulars to the detenu, thereby satisfying the right to make an effective representation. Past conduct reasonably apprehended to be repeated can form a basis for preventive detention under the notified categories.
Facts of the case:
The District Magistrate of Nowgong, on October 20, 1982, ordered the detention of Shri Sarat Mudoi under Section 3(2) read with Section 3(3) of the National Security Act, 1980 on grounds of preventing acts prejudicial to public order and essential supplies or services, based on a dossier submitted by the Superintendent of Police. The High Court at Gauhati set aside the detention order, holding that the order must specify the particular supply or service apprehended to be affected by the detenus activities. A special leave petition was filed to challenge this ruling, raising the narrow question of whether such specification in the detention order is mandatory or if it suffices if the particulars are provided in the subsequent grounds of detention.
Findings of Court:
The Supreme Court held that specification of the essential supply or service in the detention order is not mandatory, as long as the grounds of detention, served on the detenu in quick succession, provide full disclosure of the notified categories and the relevant particulars. This ensures the detenu can effectively represent his case without prejudice to the right of representation. The Court also noted that past conduct falling within the notified items could reasonably give rise to future apprehension justifying detention.
Issues:
Whether an order of detention under Section 3(2) read with Section 3(3) of the National Security Act is bad solely for not specifying the particular essential supply or service in the detention order if the grounds of detention disclose the same.
Ratio Decidendi:
The validity of an order of detention does not depend on the specification of the particular essential supply or service in the order itself, but on whether the grounds of detention served on the detenu provide adequate particulars of the notified essential supplies or services, enabling a full and effective representation.
Result:
The appeal is allowed, and the order of the High Court quashing the detention is set aside.
(A) Section 3(2) read with Section 3(3) of the National Security Act, 1980 empowers a detaining authority, here the District Magistrate of Nowgong, to issue an order of detention to prevent a person from acting in any manner prejudicial to the maintenance of public order and supplies or services essential to the community, provided the grounds of detention specify the particular activities and the notified essential supplies or services affected thereby. The statutory scheme requires that the categories of essential supplies and services notified under a prior public notification are made known to the detenu, enabling a meaningful representation against detention.
(B) An order of detention under the Act is not invalid merely because the particular essential supply or service is not specified in the detention order itself, as long as the specific grounds of detention disclose the requisite particulars to the detenu, thereby satisfying the right to make an effective representation. Past conduct reasonably apprehended to be repeated can form a basis for preventive detention under the notified categories.
Facts of the case:
The District Magistrate of Nowgong, on October 20, 1982, ordered the detention of Shri Sarat Mudoi under Section 3(2) read with Section 3(3) of the National Security Act, 1980 on grounds of preventing acts prejudicial to public order and essential supplies or services, based on a dossier submitted by the Superintendent of Police. The High Court at Gauhati set aside the detention order, holding that the order must specify the particular supply or service apprehended to be affected by the detenus activities. A special leave petition was filed to challenge this ruling, raising the narrow question of whether such specification in the detention order is mandatory or if it suffices if the particulars are provided in the subsequent grounds of detention.
Findings of Court:
The Supreme Court held that specification of the essential supply or service in the detention order is not mandatory, as long as the grounds of detention, served on the detenu in quick succession, provide full disclosure of the notified categories and the relevant particulars. This ensures the detenu can effectively represent his case without prejudice to the right of representation. The Court also noted that past conduct falling within the notified items could reasonably give rise to future apprehension justifying detention.
Issues:
Whether an order of detention under Section 3(2) read with Section 3(3) of the National Security Act is bad solely for not specifying the particular essential supply or service in the detention order if the grounds of detention disclose the same.
Ratio Decidendi:
The validity of an order of detention does not depend on the specification of the particular essential supply or service in the order itself, but on whether the grounds of detention served on the detenu provide adequate particulars of the notified essential supplies or services, enabling a full and effective representation.
Result:
The appeal is allowed, and the order of the High Court quashing the detention is set aside.
M.M.ABDUL KHADER, MANIK KARANJAVALA, S.K.NANDY, V.M.TARKUNDE
JUDGMENT
RANGANATH MISRA, J.:—The detaining authority under Section 3(2) read with Section 3(3) of the National Security Act, 1980 (Act for short) being the District Magistrate of Nowgong and the State of Assam assail the decision of the High Court at Gauhati quashing the order of detention.
2. On October 20, 1982, the District Magistrate made the following order :
"Whereas I am satisfied from the dossier submitted by Superintendent of Police, Nowgong that it is necessary to prevent Shri Sarat Mudoi s/o Shri Renu Mudoi, village Senchows, P. S. Nowgong from acting in any manner prejudicial to maintenance of public order and maintenance of supplies and services essential to the community I. S. Kablian I.A.S., District Magistrate, Nowgong, hereby in exercise of powers conferred under Section 3(2) read with Section 3(3) of National Security Act, 1980, direct that Shri Sarat Mudoi be detained with immediate effect until further orders".
3. In the grounds of detention which were supplied to the detenu within the time provided by law, six grounds were specified. Before the High Court several contentions were raised including the one to the effect that if the detaining authority does not specify in the order of detention as to which particular supply and /or service he had in mind while making it, the order of detention is vitiated. After hearing counsel for the parties, the High Court came to the conclusion,
"We are of the view that as while passing the order of detention the authority has to specify the particular prejudicial activity whose prevention he has in mind, so also he must specify the particular supply and service which according to him is being prejudicially affected by the activities of the detenu. The notified categories of supplies and services thus really get as if implanted in the Act and an order of detention on this score must have reference to one or more specified supplies and services forming part of notified categories. Any other view would also pose a possibility of abuse of power as a result of absence of full application of mind."
and set aside the order of detention.
4. At the stage of notice on the special leave petition this Court on March 10, 1963, made the following order :
"Issue notice to the respondent returnable within a week confined to the question as to whether according to the ratio laid down by this Court in A. K. Roy v. Union of India (AIR 1982 SC 710), it is necessary to specify in the order of detention itself the particular supplies and services essential to the community which are affected by the activities of the detenu or will it suffice if it is mentioned in the grounds for detention".
5. On behalf of the State this Court was told that even if the appeal was allowed, the respondent would not be detained for the unexpired portion of the period.
6. The short question that survives for consideration, therefore, is whether without the particulars of supplies and services specified in the order of detention, it is bad. In A. K. Roys case and the connected matters this Court took the view that no person could be detained under Section 3(2) of the Act with a view to preventing. him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law or notification made or published fairly in advance the supplies and services the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed are made known properly to the public. Accordingly, by a notification on February 8, 1982, 16 specified supplies and services were notified as essential to the community and this notification was duly published in the Gazette of India, Extraordinary issue of the same day. Under the Act the detenu is entitled to make a representation against the : order of detention. It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu. It is the pronounced view of this Court that such right should be without fetters and as wide as possible. Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance. The detenu would be in a position to effectively represent only when specific particulars are provided to him and the grounds are intended to provide that material to him. Mr. Tarkunde who appeared amicus curiae fairly agreed that it is not necessary that the specification should be in the order of detention and it would be adequate to enable the detenu to make an effective representation if the particulars are provided in the grounds of detention. We are inclined to take the view that a full disclosure made in the grounds in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention. Therefore, non-specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order of detention which in quick succession of the detention order are served on the detenu. Counsel for the appellants argued that while it would be possible for the particulars to be provided with reference to past conduct it would be difficult to specify any of the 16 items of services and supplies included in the notification in regard to future conduct of the detenu and, therefore, to require the detaining authority to so specify would be asking for the performance of something impossible.
7. In view of the limited question on which notice was issued, this aspect strictly does not fall for consideration. We also do not find any merit in this stand.
8. It was pointed out by this Court in Debu Mahto v. State of West Bengal AIR 1974 SC 816, that the basis for an order of preventive detention is the reasonable prognosis of the future behaviour of the person based upon his past conduct. It is open to the detaining authority to take note of the past conduct of a detenu and apprehending repetition of such conduct in future an order of detention can be made with a view to preventing such action. If past conduct confined to any or all of the 16 items in the notification could be satisfied, the detaining authority could also on the basis of reasonable apprehension of repetition of such conduct in future make an order of detention for its prevention. We do not propose to say anything more in view of the short question to which the notice was confined. We are thankful to Mr. Tarkunde for assisting us at the hearing as amicus curiae.
9. This disposes of the appeal.
Order accordingly.
For Citation: AIR 1984 SC 43