1985 JTR(SC) 301
1986 1 AICLR 461 ; 1986 AIR(SC) 315 ; 1985 CriLR 451 ; 1985 2 Crimes(SC) 728 ; 1986 CrLJ 312 ; 1986 1 CurLJ 603 ; 1985 MLJ(Cri) 547 ; 1985 2 Scale 486 ; 1985 4 SCC 232 ; 1985 SCC(Cri) 514 ; 1985 UJ 1045 ; 1985 KLT(Online) 1306 ; 1985 KHC 721
SUPREME COURT OF INDIA
AMARENDRA NATH SEN AND RANGANATH MISRA, JJ.
Ramesh Yadav, Petitioner
Versus
District Magistrate, Etah and others, Respondents.
Criminal Writ Petn.No. 37 of 1985
Decided on 13-9-1985.
Advocates appeared
Mr. S. C. Jai, Advocate, for Petitioner; Mr. Pramod Swaroop, Mr. Dalveer Bhandari and Mr. Manoj Prasad, Advocates, for Respondents.
Act Referred :NATIONAL SECURITY ACT : S.3
(A) The National Security Act, 1980 (referred in S.3) was invoked to authorize the preventive detention of the petitioner, whose challenge under Article 32 of the Constitution questioned the legality of the order. The impugned order of detention was passed in 1984 by the State Government, relying on alleged criminal activities and an apprehension that the petitioner would resume such acts if released on bail. The order was made while the petitioner was already in judicial custody as an undertrial prisoner, and the courts examined the temporal relevance and adequacy of the grounds relied upon under the Act.
(B) Preventive detention must be founded on valid and relevant material; stale or acquitted incidents cannot be used. The detaining authority must act objectively, and apprehension alone, without concrete and contemporaneous material, is insufficient to sustain an order under the Act. Courts must ensure that the principles of natural justice are followed, including the right to make representations, and that detention is not used as a substitute for ordinary criminal prosecution. (
Facts of the case:
) The petitioner was detained under Section 3(2) of the National Security Act on grounds including dacoities in 1980, an encounter in 1983 resulting in acquittal, and membership in a criminal gang. The detention order was predicated on the fear that the petitioner would recommence criminal activities if released on bail pending an unrelated bail application. (
Findings of Court:
) The Court held that three of the four incidents post-dating the prior detention order were stale, and the 1983 incident had already resulted in acquittal, rendering it unavailable for use in the 1984 detention order. The order was therefore deemed unsustainable as it was based on apprehension rather than sufficient material evidence, violating well-established principles of preventive detention. (
Issues:
) Whether an order of preventive detention under the National Security Act can be predicated on stale or acquitted incidents, and whether apprehension of future misconduct alone, without concrete evidence, can justify continued detention. (
Ratio Decidendi:
) An order of preventive detention must be supported by contemporaneous and relevant material; mere apprehension that the detainee may act unlawfully if released, especially where prior criminal charges have failed or are stale, does not satisfy the statutory requirements under the National Security Act. (
Result:
) The writ petition is allowed, and the petitioner is directed to be released forthwith unless he is lawfully detained under other provisions.
(A) The National Security Act, 1980 (referred in S.3) was invoked to authorize the preventive detention of the petitioner, whose challenge under Article 32 of the Constitution questioned the legality of the order. The impugned order of detention was passed in 1984 by the State Government, relying on alleged criminal activities and an apprehension that the petitioner would resume such acts if released on bail. The order was made while the petitioner was already in judicial custody as an undertrial prisoner, and the courts examined the temporal relevance and adequacy of the grounds relied upon under the Act.
(B) Preventive detention must be founded on valid and relevant material; stale or acquitted incidents cannot be used. The detaining authority must act objectively, and apprehension alone, without concrete and contemporaneous material, is insufficient to sustain an order under the Act. Courts must ensure that the principles of natural justice are followed, including the right to make representations, and that detention is not used as a substitute for ordinary criminal prosecution. (
Facts of the case:
) The petitioner was detained under Section 3(2) of the National Security Act on grounds including dacoities in 1980, an encounter in 1983 resulting in acquittal, and membership in a criminal gang. The detention order was predicated on the fear that the petitioner would recommence criminal activities if released on bail pending an unrelated bail application. (
Findings of Court:
) The Court held that three of the four incidents post-dating the prior detention order were stale, and the 1983 incident had already resulted in acquittal, rendering it unavailable for use in the 1984 detention order. The order was therefore deemed unsustainable as it was based on apprehension rather than sufficient material evidence, violating well-established principles of preventive detention. (
Issues:
) Whether an order of preventive detention under the National Security Act can be predicated on stale or acquitted incidents, and whether apprehension of future misconduct alone, without concrete evidence, can justify continued detention. (
Ratio Decidendi:
) An order of preventive detention must be supported by contemporaneous and relevant material; mere apprehension that the detainee may act unlawfully if released, especially where prior criminal charges have failed or are stale, does not satisfy the statutory requirements under the National Security Act. (
Result:
) The writ petition is allowed, and the petitioner is directed to be released forthwith unless he is lawfully detained under other provisions.
JUDGMENT
RANGANATH MISRA. J.:— This application under Art. 32 of the Constitution is directed against the order of detention of the petitioner under S. 3(2) of the National Security Act, 1980. The order is dated Sept. 16, 1984, and was made at a time when the petitioner had already been in Mainpuri Jail as an undertrial prisoner in connection with certain pending criminal cases. The grounds of detention were served on the petitioner along with the order of detention. Petitioner asked for certain papers with a view to making an effective representation but when the request was rejected, the petitioner made a representation. The Board did not accept the petitioners plea. The petitioners detention was confirmed by the State Government. Thereupon the writ petition has been filed.
2. A return has been made to the rule nisi and the detaining authority has justified his order. It may be pointed out that the petitioner had been detained under the same provision by an earlier order dated December 7, 1981. That detention was quashed by the Allahabad High. Court by order dated May 27, 1982, in Writ Petition No. 2649/82.
3. Five grounds were advanced in support of the order of detention. They are :
(1) An incident of April 16, 1980, when the detenu and the members of his gang came armed with dangerous weapons and committed a dacoity in the house of one Bhudev Sharma on the basis of which Crime No. 72/80 under section 395/197, IPC was registered and the trial was pending;
(2) On May 10/ 11, 1980, the detenu along with members of his gang armed with dangerous weapons committed a dacoity at the house of one Munna Lal and a case under S. 396, IPC was pending;
(3) On July 4, 1980, the detenu along with others opened fire on a police party with the intention to kill them. When the police finding the detenu and the gang of dacoits accosted them, a kidnapped boy was recovered from the gang of dacoits and a prosecution under Ss. 147, 148, 149, 307 and 364, IPC is pending;
(4) The detenu is an active member of the inter-District gang enlisted as No. I.D.64;
(5) On January 8, 1983, information was received by the police that a gang of dacoits were present in Village Kapreta. When the police accosted there was exchange of fire as a result of which three dacoits of the gang of the detenu died. Though the detenu was identified he escaped. A criminal case was instituted for offences under Ss. 147, 148, 149, 307, IPC read with S. 25 of the Arms Act and Ss. 5/7 of the Explosives Act but the detenu was acquitted after trial for want of evidence.
4. In the grounds of detention, apart from specifying the above five grounds, reference was made to the fact that the detenu. creates public terror on account of his criminal activities which are absolutely prejudicial to the maintenance of public order. It was further mentioned therein :
"At this time you were detained in the District Jail, Mainpuri and you have filed an application for bail in the Court of law which is fixed for hearing on September 17, 1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will indulge in activities prejudicial to the maintenance of public order."
5. Five grounds were indicated of which four are referable to specific incidents. Of these four, three are of 1980, prior to the making of the previous order of detention. They are certainly stale and not available to be used in an order of detention of 1984. The only other incident which was subsequent to the quashing of the previous detention and which may have some nexus with the present order of detention is of 1983. Admittedly, a trial had taken place and there has been acquittal. That ground, therefore, was not available to be used.
6. 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 raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed.
7. We allow the writ petition and direct that the petitioner be set at liberty forthwith unless he is in lawful detention otherwise.
Petition allowed.
For Citation : AIR 1986 SC 315=(1985) 4 SCC 232=1986 Cr. L.J. 312=1985 U.J. (SC) 1045.