Cdaper-V

^k ofSupreme Court of India ^fter M/ithdrawd

of IntemdEmergency -1977 To (Date
 125

Chapter-V

ROLE OF SUPREME COURT OF INDIA AFTER

WITHDRAWAL OF INTERNAL EMERGENCY - 1977
TO DATE

The Supreme Court realised the serious consequences of its

proiiouncements, particularly those of its denial of the writ of habeas corpus
in Shivakant Shukla's case. The court began to rebuild its prestige and power.
It created a wide "due process" jurisdiction which had been decisively
rejected by the framers of the Indian Constitution. Besides, it endeavoured to
show that it was still the protector of the Western System of law and justice
and that the emergency had not really done a lasting damage to its powers. It
prepared itself to demonstrate that any exercise of power by the government
could be reviewed by the courts on jurisdictional and other grouiids.^ It was
in this context that the Supreme Court was motivated to give a liberal
interpretation to Article 21 and, in several cases after the internal emergency,
stood firmly on the side of civil liberties. "The withering Article 21 which had
been mauled severally by Gopalan and almost totally by Shivakant Shukla, was
thus rejuvenated" 2 in Maneka's case.

The decision of the Court in Maneka Gandhi's case was one of immense
constitutional significance, as it was the first major decision concerniiig;
personal liberty since the Habeas Corpus case. "Maneka vibrates with
humanism and single-minded judicial dedication to the cause of human rights
in India, still recovering from the trauma of the suspension of civil liberties in
1975-77".^ This case gave the court a good opportunity to show its
partisansliip for Civil liberties and to declare that the "reahty of liberty is not
to be drowned in the hysteria of the hour" and the "hubris of power". It
coiifidently ruled: "Governments come and go, but the fundamental rights of

Rajeev Dhavan, On the Future of Western Law and justice in India. Reflections on the
Predicament of the Post-Emergency Supreme Court", journal of the Bar Council of India,
Vol. 8, No. 1, January-March 1981, pp. 71-7.3.
O. Cliinnappa Reddy, Judicial Process and Social Change, Journal of the Indian Law
Institute, Vol. 25, No. 2, April-June 1983, p. 155.
Upendra Bnxi, The Indian Supreme Court and Politics, Mehr Chand Mahajan Memorial
Law Lectures (Lucknow: Eastern Book Company, 1980), p. 151.
 126

the people caniiot be subject to the wishful value-sets of political regimes of

the passing day".''

The seven-judge constitutional bench in Maneka Gandhi v. Union of

India^ examined the concept of personal liberty in general and the right to
travel abroad in particular. In the case, the petitioner's (Mrs. Maneka
Gandhi's) passport was impounded under Section 10 (3) (c) of the Passport
Act, 1967.6 Provision iii the Act was violative of Article 21 of the Constitution
since it did not prescribe "procedure" within the meaning of that article and if
it was held that procedure had been prescribed, it was arbitrary and
unreasonable; and the impounding provision in the Act was also violative of
Article 19 (1) (a) and (g),^ since it permitted restrictions to be imposed on the
rights guaranteed by those provisions even though the restrictions were such
as could not be imposed under Article 19 (2) and (6).^

The Court examined these arguments and analysed the provisions in

Part III of the Constitution, and discussed in detail earlier decisions on similar
pleas.

4. This was an evidence of the court's affirmation of civil liberties in xinambiguous terms.
5. Ibid. The seven judges' constitutional bench consisted of Beg, C.J., Y.V. Chandrachud
(as he then was), P.N. Bhagwati (as he then was), V.R. Krishna Iyer, N.L. Untawalia, S.
Murtaza Fazal Ali and P.S. KaUsam, JJ.
6. Section 10 (3) reds;
"The passport authorit)' may impound or cause to be impounded or revoke a passport
or travel document -
a)
b)
c) If the passport authority deems it necessary so to do in the interests of the
sovereignt}' and integrity of India, the security of India, friendly relations of India
with any other foreign country, or in the interests of general pubUc".
7. Article 19 of the Constitution of India reads: "Protection of Certain rights regarding
freedom of speech, etc.
(1) All citizens shall have the right -
a) To freedom of speech and expression,
b) To practice any profession, or to carry on any occupation, trade or business.
8. Article 19 (2) of the Constitution of India reads: "Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the state from making any law,
in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the security of the state, friendly relations with
foreign states, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.
(6) Nothing in sub-clause (g) of the said clause shall affect tl\e operation of any existing law
in so far as it imposes, or prevent the state from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub-clause...."
 127

The following cases determine now, the change attitude of the

Supreme Court of India in the matter of preventive detention.

Object of Preventive Detention:

Preventive detention is devised to afford protection to society. The

object is not to punish a man for having done something but to intercept
before he does it and to prevent him from so doiiig.^

Object of Preventive Detention - Not punitive but precautionary:

A preventive detention "is not punitive but precautionary measure".

The object is not to punish a man for having done something but to intercept
him before he does it and to prevent him from doing it. No offence is proved,
nor any charge is formulated; and the justification of such detention is
suspicion or reasonable probability and there is no criminal conviction which
can only be warranted by legal evidence. In this sense it is an anticipatory
action. Preventive justice requires an action to be taken to prevent
apprehended objectionable activities. In case of punitive detention to person
concerned is detained by way of punishment after being found guilty of
wrongdoitig where he has the fuUest opportunity to defend himself, while
preventive detention is not by way of punishment at all, but it is intended to
prevent a person from indulging in any conduct injurious to the society.^"

Different from punitive detention:

Though the element of detention is a common factor in cases of

preventive detention as well as punitive detention, there is a vast difference in
their objective. Punitive detention follows a sentence awarded to an offender
for proven charges in a trial by way of punishment and has in it the elements
of reh'ibution, deterrence, correctional factor and institutional ti'eatment in
varying degrees. On the conti-ary preventive detention is an exti'aordinary
measure resorted to by the State on account of compulsive factors pertaining

9. Stnte of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, 45:1990 SSC (Cri) 1: AIR 1990 SC 231:
1990 CriLJ 584.
10. Kubic Darusz vs. Union of India, (1990), 1 SCC 568, 582: 1990 SCC (Cri.) 227: AIR 1990
SC605
 128

to maintenance of public order, safety of public life and the welfare of the
economy of the country.^^

Punitive and preventive detention- Distinction

There is a vital distinction between these two kinds of detention. In
case of 'punitive detention', the person concerned is detained by way of
punishment after he is found guilty of wrongdoing as a result of a trial where
he has the fullest opportunity to defend himself, while 'preventive detention'
is not by way of punishment at all, but it is intended to pre-empt a person
from indulging in any conduct injurious to the society. In case of preventive
detention, he is detained merely on suspicion with a view to preventing him
from doing harm in future and the opportunity that he has for contesting the
action of the executive is very limited. Having regard to this distinctive
character of preventive detention, the restrictions placed on a person
preventively detained must, consistently with tlie effectiveness of detention,
be miiiimal.^2

It has been said that the history of liberty has largely been the history
of observance of procedural safeguards. The procedural sinews shengthening
the substance of the right to move the court against executive invasion of
personal liberty and the due dispatch of judicial business touching violations
of this great right is stiessed.
Personal liberty is by every reckoning, the greatest of human freedoms
and the law of preventive definition are stiictly constiued and a meticulous
compliance with the procedural safeguards, however technical, is strictly
insisted upon by the courts. The law on the matter did not start on a
clean slate. The power of courts against the harsh incongruities and
unpredictabilities of preventive detention is not merely 'a page of history' but
a whole volume. The compulsions of the primordial need to maintain order in
society, without which the enjoyment of all rights, including the right to
personal liberty, would lose all their meaning are the tiue justifications for the
laws of preventive detention. The pressures of the day in regard to the
imperatives of the security of State and of public order might, it is tiue,
require the sacrifice of the personal liberty of individuals. Laws that provide
for prevention detentioii posit that an individual's conduct prejudicial to the
maintenance of pubUc order or to the security of the State provides grounds
for a satisfaction for a reasonable prognostication of a possible future
manifestation of similar propensities on the part of the offender. This
jurisdiction has been called a jurisdiction of suspicion; but the compulsions of
the very preservatioii of the values of freedom, or democratic society and of
social order might compel a curtailment of individual liberty. "To lose our
countiy by a scrupulous adherence to the written law" said Thomas Jefferson
"would be to lose the law itself, with life, liberty and all those who are

11. Pushpa Devei M. Jatia vs. M.L. Wadhawan, (1987) 3 SCC 367, 395: 1987 SCC (Cri.) 526:
AIR 1987 SC 1748,1987 Cri L] 1888: (1987): 12 ECC 356.
12. Francis Cornlie Mullin v. Admimstraior, Union Territory of Delhi, (1981) 1 SCC 608: 1981
SCC (Cri) 212: AIR 1981 SC 746: (1981) 2 SCR 516:1981 Cri LJ 306:1981 ML) (Cri) 331.
 129

enjoying with us, thus absurdly sacrificing the end to the means." This is, no
doubt, the theoretical justification for the law enabling prevention detention.
But the actual manner of administration of the law of prevention
detention is of utinost importance. The law has to be justified by the genius of
its administiation so as to strike the right balance between individual liberties
on the one hand and the needs of an orderly society on the other. But the
realities of executive excesses in the actual enforcement of the law have put
the courts on the alert, ever-ready to intervene and confine the power within
strict limits of the law both substantive and procedural. The paradigms and
value judgments of the maintenance of a right balance are not static but vary
according as the "pressures of the day" and according as the intensity of the
imperatives that justify both the need for and the extent of the curtailment of
individual liberty. Adjustments and readjustments are constantly to be made
and reviewed. No law is an end in itself.
The "tiin that shelters for the night is not journey's end and the law,
like the traveler, must be ready for the morrow".
As to the approach to such laws which deprive personal liberty
without trial, the libertarian judicial faith has made its choice between the
pragmatic view and the idealistic or doctiinaire view. The approach to the
curtailment of personal liberty which is an axiom of democratic faith and of
all civilized life is an idealistic one, for, loss of personal Uberty deprives a man
of all that is worth living for and builds up deep resentments. Liberty belongs
to what correspond to man's inmost self.
Under our Constitution also the mandate is clear and the envoy is left
under no dilemma. The constitutional philosophy of personal hberty is an
idealistic view, the curtailment of liberty for reasons of State's security, public
order, disruption of national economic discipline etc. being envisaged as a
necessary evil to be administered under stiict constitutional restiictions.^^
Detenus to e kept separate from convicts
If any of the persons detained under NSA are at present housed in the
same ward or cell where the convicts are housed, immediate steps must be
taken to segregate them appropriately.^^
Interpretation of Prevention detention legislation
Per Venkataramiah,}.
The law of prevention detention is a hard law and therefore it should
be strictly construed. Care should be taken that the liberty of a person is not
jeopardized unless his case falls squarely within the four corners of the
relevant law.^^

13. Ayyn v. Stnte of U.P., (1989) 1 SCC 374, 380 to 382:1989 SCC (Cri) 153: AIR 1989 SC 364:
1989 Cri L] 991.
14. A.K. Roy v. Union of India, (1982) 1 SCC 271: 1982 SCC (Cri) 152; AIR 1982 SC 710: 1982
Cn L] 340:1982 MLJ (Cri) 524.
15. Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, 35: 1984 SCC (Cri) 361: AIR 1984 SC
1334:1984 Cri LJ 909.
 130

Preventive detention law, how to be construed

Prevention detention for the social protection of the community' is a
hard law but, it is a necessary evil in the modern society and must be
pragmatically construed, so that it words, does not endanger social defence or
the defence of the conimunity and at the same time does not infringe the
liberties of the citizens. A balance should always be struck,^^
Court's approach should be pragmatic and not highly technical- Strict
adherence to procedure sacrificing greater social interests not justified- Practice and
Procedure
Prevention detention unUke punitive detention which is to punish for
the wrong done, is to protect the society by preventing wrong being done.
Though such powers must be very cautiously exercised so as not to
undermine the fundamental freedoms guaranteed to our people, the
procedural safeguards are to ensure that yet these must be looked at from a
pragmatic and commonsense point of view. An understanding between those
who exercise powers and the people over whom or in respect of whom such
power is exercised is necessary. The purpose of exercise of all such powers by
the Government must be to promote common well-being and must be to
subserve the conunon good. It is necessary to protect therefore the individual
rights insofar as practicable which are not inconsistent with the security and
well-being of the society. Observance of written law about the procedural
safeguards for the protection of the individual is normally the high duty of
public official but in all circumstances not the highest. The law of self-
preservation and protection of the country and national security my claim in
certain circumstances higher priority.^^
Precedent- High Court not justified in quashing order of detention merely on
ground that detention order in similar cases had earlier been revoked- Each
case to be decided on its own facts^*
Place of detention- Administi'ative decision should normally prevail- Court's
interference when called for- Detenu belonging to Punjah, detained in District jail,
Bharatpur, Rajasthan- Detenu's prayer for detaining him at a place in or near his
lionie State disallowed.
The place of detention is a matter for the administiative choice of the
detaining authority, and a court would be justified in interfering with that
decision only if it was in violation of any specific provisioii of the law or was
vitiated by arbitrary considerations and mala fides. While it is ordinarily
desirable that a detenu should be detairied in an environment natural to him in
poiiit of climate, language, food and other incidents of living, in the actual
decision concerning the place of detention these considerations must yield to
factors related to, and necessitated by, the need for placing him m preventive

16. Raj Kuunir Smgh v. Stale of Bihar, (1986) 4 SCC 407, 413; 1986 SCC (Cri) 481: AIR 1986 SC
2173:1986 CriLJ 2042.
17. Prakash Chandra Mehla v. Commr. and Secy., Govt, of Kerala, 1985 Supp SCC 144,170, 172:
1985 SCC (Cri) 332: AIR 1986 SC 687.
18. Constitution of India, Art. 226, DM. v. Kiilbir CJiand, 1990 Supp SCC 141: 1990 SCC (Cri)
538.
 131

detention. Although the detention must be punitive, they must nevertheless

be such as to secure the effectiveness of his incarceration.
In the present case the affidavits filed by the respondents on the record
indicate that the mind has been applied to the facts and circumstances of the
case and that it was felt necessary to effect the detention at Bharatpur. The city
of Bharatpur, although situated in the State of Rajasthan, is not very distant
from the States of Punjab and Haryana. In the circumstances, the reUef sought
on behalf of the detenu in respect of the place of detention cannot be granted.^^
Solitary Confinement- On facts held, Court's interference not called for- National
Security (Rajasthan Conditions of Detention) Order, 1984, Condition No. 4 (ii)
The detenu had been provided two adjacent cells and enjoyed a certain
degree of freedom of movement from early morning to the evening. A convict
officer served as his cook and he was entitled to contact two wardens, one of
whom was available in the ward itself and the other was posted at the gate of
the ward. Medical officers and male nurses also attended on the detenu. The
respondents claimed that Condition No. 4(ii) of the National Security
(Rajasthan Conditions of Detention) Order, 1984 empowered them to keep the
detenu separate from ordinary prisoners. On behalf of the petitioner-deteni( it
could not be satisfactorily shown that the nature of the detenu's detentioii calls
for interference by the Court.^o
Torture of detenu while in detention- Proof regarding- Visitor's register
maintained at jail produced to show that police ojficers had visited the detenu and
interrogated him- Held, visitors' register xvould not he substantiate the charge of
torture in absence of showing what actually ivent on during the visits- Register will
only indicate identity of the visitors and may record duration of the visit.^^
Unreasonable restraints put on a detenu during detention can be subjected to
judicial review
Persons who are put under preventive detention must be segregated
from the convicts and kept in a separate part of the place of detention. It is
hardly fair that those who are suspected of being engaged in prejudicial
conduct should be lodged in the same ward or cell where the convicts whose
crimes are estabhshed are lodged. The evils of 'custodial perversity' are well
known. Care has to be taken to ensure that the detenu is not subjected to any
indignity. 22
Constitutional Rights
Constitutional safeguards, available to detenus, approach of detaining
authorities and scope of court's interference with detention orders-
Constitution of India, Arts. 21 and 22

19. Geetmder Knur v. State of Punjab, 1985 Supp SCC 388, 390; 1985 SCC (Cri) 474: AIR 1985
SC1409; 1985 Cri LJ1640.
20. Geetmder Kaiir v State nf Punjab, 1985 Supp SCC 388, 391; 1985 SCC (Cri) 474; AIR 1985
SC 1409; 1985 Cri L] 1640.
21. Geetinder Kaur v. State of Punjab, 1985 Supp SCC 388, 391: 1985 SCC (Cri) 474: AIR 1985
SC 1409; 1985 Cri LJ 1640.
22. A.K. Roy v. Union of India, (1982) 1 SCC 271; 1982 SCC (Cri) 152: AIR 1982 SC 710: 1982
Cri LJ 340:1982 ML] (Cri) 524.
 132

Detention of individuals without trial for any length of time, however

short, is wholly inconsistent with the basic ideas of our government and the
gravity of the evil to the community resulting from anti-social activities can
never furnish an adequate reason for invading the personal liberty of the
citizen except in accordance with the procedure established by law. The
Supreme Court has therefore in a series of decisions forged certain procedural
safeguards in the case of preventive detention of citizens. When the life and
liberty of a citizen is involved, it is expected that the government will ensure
that the constitutional safeguards embodied in Art. 22(5) are strictly observed.
When any person is detained in pursuance of an order made under any law of
preventive detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been made
and shall afford him the earliest opportunity of making a representation
against the order. These procedural safeguards are ingrained in our system of
judicial interpretation. The power of preventive detention by the government
under aiiy law for preventive detention is necessarily subject to the limitations
enjoined on the exercise of such power by Art. 22(5) as construed by this
Court.23 Thus, this court speaking through Bhagwati, ]. observedi^^
"The constitutional imperatives enacted in this article are twofold: (1)
the detaining authoritj' must, as soon as may be, that is, as soon as practicable
after the detention communicate to the detenu the grounds on which the order
of detention has been made^ and (2) the detaining authority must afford the
detenu the earliest opportunity of making a representation against the order of
detention. These are the barest minimum safeguards which must be observed
before an executive authority can be permitted to preventively detain a
person and thereby drown his right of personal liberty in the name of public
good and social security."^5
As observed by this Court, when the liberty of the subject is involved,
whether it is under the Preventive Detention Act or the Maintenance of
Internal Security Act or the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act or any other law providing for preventive
detention: [SCC p. 642: SCC (Cri) p. 562, para 17]
" it is the bounden duty of the court to satisfy itself that all the
safeguards provided by the law have been scrupulously observed
and that the subject is not deprived of his personal liberty
otherwise than in accordance with law."
Nevertheless, the community has a vital interest in the proper
enforcement of its laws particularly in an area such as conservation of foreign
exchange and prevention of smuggling activities in dealing effectively with
persons engaged in such smuggling and foreign exchange racketerring or
with persons engaged in anti-national activities which threaten the very
existence of the unity and integrity of the Union or with persons engaged in
anti-social activities seeking to create public disorder in the worseiiiiig law
and order situation, as unfortunateh' is the case in some of the States today,

23. Khiidiram Das v. Stale ofV^est Bengal, (1975) 2 SCC 81: 1975 SCC (Cri) 435
24. [SCC p. 87, para 5]
25. Narendm Pursliotum Umrao v. B.B. Gujrat, (1979) 2 SCC 637:1979 SCC (Cri) 557.
 133

by ordering their preventive detention and at the same time, in assuring that
the law is not used arbitrarily to suppress the citizen of his right to life and
liberty. The court must therefore be circumspect in striking down the
impugned order of detention where it meets with the requirements of Art.
22(5) of the Constitution.26
Compliance with Art. 22(5) mandatory
It is incumbent on the State to satisfy the court that the detention of the
petitioner/detenu was legal and in conformity not only with the mandatory
provisions of the Act but also strictly in accord with the constitutional
safeguards embodied in Art. 22(5).
When the life and liberty of a citizen is involved, it is expected that the
government will ensure that the constitutional safeguards embodied in Art.
22(5) are strictly observed. The gravity of the evil to the community resulting
from anti-social activities can never furnish an adequate reason for invading
the personal liberty of a citizen, except in accordance with the procedure
estabUshed by the Constitution and the laws. The history of personal Hberty is
largely the history of insistence on observance of the procedural safeguards.^''
Constitutionality of law relating to held, no longer open- Held, cannot he struck
down on a general plea of interference with the liberties of the people if otherxoise
constitutional- Constitution of India, Arts. 245, 246, Schedide VII, List I, Entry 9
and List III Entry 3 - justiciability on a due process method rejected- National
Security Act, 1980 (65 of 1980) as such therefore not unconstitutional - Constitution
of India, Arts. 21 and 14,19 &21 - Interpretation of the Constitution
So long as the preventive detention law is made within the legislative
power arising out of a legislative entry and does not violate any of the
conditions or restrictions on that power, such law cannot be struck down on
the specious ground that it is calculated to interfere with the Uberties of the
people. What is provided for by the Constitution itself cannot be judged
unconstitutional by importing court's notions of what if right and wrong. One
cannot therefore content that preventive detention is basically imperrrussible
under the Indian Constitution.
Though it is now well settled that rights in Part II of the Constitution
are not mutually exclusive and that therefore, a law of prevention detention
under Art. 22 must also satisfy Arts. 14, 19 and 21, it is equally settled that a
law of preventive detention cannot be held unconstitutional for the reason
that it violates Arts. 14,19, 21 and 22. The National Security Act, 1980 which is
in pari material with MISA, 1971 is not unconstitutional on the ground that,
by its very nature, it generally violates Arts. 14,19, 21 and 22.2^
Procedural safeguards available to detenu under Art. 22(5) - Any deviation
therefrom calls for court's interference - Constitution of India, Arts. 22(5) % 32,
226 and 136.

26. Raiendrahimar Nnivnrki Shnh o. State ofGiijnnil, (1988) 3 SCC 153, 160: 1988 SCC (Cri)
575: AIR 1988 SC 1255.
27. Mohinuddin v. D.M., (1987) 4 SCC 58, 63, 64:1987 SCC (Cri) 674: AIR 1987 SC 1977.
28. A.K. Roy v. Union of India, (1982) 1 SCC 271: 1982 SCC (Cri) 152: AIR 1982 SC 710; 1982
Cn L] 340:1982 MLJ (Cri) 524.
 134

A citizen is entitled to protection within the meaning of Art. 22(5) of

the Constitution of the procedural guarantees envisaged by law. The court
frowns upon any deviation or infraction of the procedural requirements. That
in fact is the only guarantee to the citizen against the State's action of
prevention detention.29
Procedural requirement of Art. 22 and the statute must be strictly complied
with - It is no answer to say that such requirements have been complied with
before the date of hearing - Constitution of India, Arts. 22 and 21.
In a habeas corpus proceeding, it is not a sufficient answer to say that
the procedural requirements of the Constitution and the statute have been
complied with before the date of hearing and therefore, the detention should
be upheld. The procedural requirements are the only safeguards available to a
detenu since the court is not expected to go behind the subjective satisfaction
of the detaining authority. The procedural requirements are, therefore, to be
strictly complied with if any value is to be attached to the liberty of the subject
and the constitutional rights guaranteed to him in that regard. If a reference to
an Advisory Board is to be made within three weeks, it is no answer to say
that the reference, though not made within three weeks, was made before the
hearing of the case. If the report of the Advisory Board is to be obtained
within three months, it is no answer to say that the report, though not
obtained within three months, was obtained before the hearing of the case. If
the representation made by the detenu is required to be disposed of within a
stipulated period, it is no answer to say that the representation, though not
disposed of withiii three months, was disposed of before the hearing of the
case.^o

Any unreasonable restriction in regard to detenu's right to confer

with legal adviser and meet family members and friends would violate
Arts. 21 and 14 - CL. 3(b)(i) and (ii) of (Delhi) Condition of Detention Order,
dated August 23,1975 - Validity3i
Judicial review — Court's interference under Art. 32 or 136 or 226 not called
for where requirements of Art. 22(5) satisfied — Constitution of India, Arts,
22(5), 32,136 and 226 — Administrative Law
The High Court mider Art, 226 and the Supreme Court under Art. 32
or 136 do not sit on appeal on the orders of preventive detention. The courts
have only to see whether the formalities enjoined by Art, 22(5) have been
complied with the detaitimg authorit)' and if so, the courts cannot examine
the materials before it and find that the detaining authority should not have
been satisfied on the materials before it and detained the detenu under the
preventive detention Act. In the present case the detaining authority neither
violated the relevant provisions of the Constitution nor those of the

29. Ahmedhussmn Cbaikkhussam v. Commr. of Police, Ahmedabad, (1989) 4 SCC 751, 756: 1990
s e c (Cri) 86: AIR 1989 SC 2274:1989 Cn 1J 2312.
30. Abdul Latif Abdul WnJmb Slieikh ;'. B.K. }h,i, (1987) 2 SCC 22:1987 SCC (Cri) 244: AIR 1987
SC 725:1987 Cri LJ 700.
31. COFEPOSA Act, 1974. S. 5. Francis Coralie MuUin v, AdmiiAistrator, Union Territory of
Delhi, (1981) 1 SCC 608:1981 SCC (Cri) 212: AIR 1981 SC 746: (1981) 2 SCR 516: WSl'Cri
LJ 306:1981 ML] (Cri) 331.
 135

COFEPOSA Act under which the detenu had been detamed and therefore, it is
not open to the Court under Art. 32 to interfere with the order of detention.^^
Order of detention — Scope of High Court's interference under Art. 226 —
High Court has only to see if the order is based on materials on record and has no
jurisdiction to enquire into adequacy of those materials - COFEPOSA Act, 1974 (52
of 1974), S. 3 -Constitution of India, Arts, 226 and 22.
The High Court in its writ jurisdiction under Art. 226 of the
Constitution is to see whether the order of detention has been passed on any
materials before it If it is found that the order has been based by the detaining
authority on materials on record, then the Court cannot go further and
examine whether the material was adequate or not, which is the function of
an appellate authority or court. It can examine the material on record only for
the purpose of seeing whether the order of detention has been based on no
material The satisfaction mentioned in S. 3 of the Act is the satisfaction of the
detaining authority and not of the court,
In the present case the High Court was not justified in holding that there was
no material on record to prove knowledge of the detenu with the contraband
goods. By implication, the High Court erroneously imported the rule of
criminal jurisprudence that the guilt of an accused must be proved beyond a
reasonable doubt to the law of detention.^^
Detention order challenged by petition under Art. 32 — State informing that
the detenu has since been released — Petition becomes infructuous.^^
Habeas corpus — Filing of another such writ though not barred, the Court
can refuse to admit the writ petition if the matters being raised are under
decision of a Constitution Bench or are such as could be raised earlier-Review
petition may be filed after decision on the constitutional questions.^^
Habeas corpus petition — Detention- order against petitioner revoked and
petitioner already released - Petition becoming infructuoiis - But if a fresh
detention order is passed subsequently and the petitioner is again detained in
pursuance thereof, petitioner is entitled to maintain a fresh petition - Preventive
Detention - Constitutional Rights - National Security Act, 1980 - Res judicata^^
Habeas corpus petition — Burden of proof on the State — Court not justified in
dismissing such a petition merely on ground of imperfect pleadings of the petitioner
It was an improper exercise of power on the part of the High Court in
disallowing the writ petition on the ground of imperfect pleadings. Normally,
writ petitions are decided on the basis of affidavits and the petitioner caimot
be permitted to raise grounds not taken in the petition at the hearing. The

32. Hemlata Kantilal Shah v. State of Maharashh-a, (1981) 4 SCC 6475 658: 1982 SCC (Cri)
16: AIR 1981 SC 8
33. State of Gujarat v. Adam Kasam Bhaya, (1981)4 SCC 216, 218: 1981 SCC (Cri) 823: AIR
1981 SC 2005:1981 Cri LJ 1686: (1981) 22 GLR 1278,
34. Bhim Singh v. State of) & K, 1984 Supp SCC 504:1985 SCC (Cri) 60.
35. Kavita v. State of Maharashtra (II), (1981) 4 SCC 145:1981 SCC (Cri) 808: AIR 1981 SC
2084: 1981 Cri L] 1703,
36. Constitution of India, Art, 32, Ram Jethmalani v. Union of India, (1984) 3 SCC 571:1984
SCC
 136

same rule cannot be applied to a petition for grant of a writ of habeas corpus.
It is enough for the detenu to say that he is under wrongful detention, and the
burden lies on the detaining authority to satisfy the court that the detention of
the petitioner detenu was legal and in conformity not only with the mandatory
provisions of the Act but also strictly in accordance with the constitutional
safeguards embodied in Art. 22(5).^^
Habeas corpus petition presented by an advocate on behalf of the detenu —
Registrar and another officer of the Registry knowing language of the detenu directed
to meet the detenu in camera, explain substance and nature of the petition as also
nature of relief sought therein and ascertain if he desires to file tlte petition -
Constitution of India, Art 32.^^
BASIS OF DETENTION
In order that an activity may be to affect adversely the maintenance of
public order, there must be materials to show that there has been a feeling of
insecurity among the general public. If any act of a person
panic or fear in the minds of the members of the public upsetting the even
tempo of life of the communit)', such act must be said to have a direct bearing
on the question of maintenance of public order. The commission of an offence
will not necessarily come within the purview of 'public order'.^^
Public order — Extorting money from shopkeepers of an area by threatening
them and throwing bomb on police party — Held on facts, related to laiv and
order problem - National Security Act, 1980, S. 3(2)
An act whether amounts to a breach of law and order or a breach of
public order solely depeiids on its extent and reach to the society. If the act is
restricted to particular individuals or a group of individuals it breaches the
law and order problem but if the effect and reach and potentiality of the act is
so deep as to affect the community at large and/or the even tempo of the
community then it becomes a breach of the public order. In this case the
respondents can very well proceed with the criminal case under S, 307 of IPC,
execute it agaiiist the appellant and can get him punished if the case is proved
beyond doubt against the appellant.'*"
Public order— Individual actions which do not disturb the even tempo of life in the
society and community or do not cause apprehension in the minds of the residents of
the locality in regard to maintenance of public order, held, cannot amount to inter-
ference with the maintenance of public order - National Security Act, 1980 (65 of
1980), S. 3.«
It cannot be said that the satisfaction of the detaining authority on the
basis of his past terrorist and disruptive activities that if the detenu were to be

37. Mohinuddin v. DM,, (1987) 4 SCC 58, 63:1987 SCC (Cri) 674: AIR 1987 SC 1977.
38. Ram Jethmalani v. Union of India, (1985) 1 SCC 116:1985 SCC (Cri) 39.
39. Pi}'ush Kantilal Mehta v. Commr. of Police, 1989 Supp (1) SCC 322, 329:1989 SCC (Cri)
438: AIR 1989 SC 491:1989 Cri 1.] 956.
40. Gulab Mehra v. State of U.P., (1987) 4 SCC 302, 311, 316: 1987 SCC (Cri) 721: AIR 1987
SC 2332.
41. Bimla Dewan v, Lt.-Governor, (1982) 2 SCC 469:1982 SCC (Cri) 484: AIR 1982 SC 1257:
1982 Cri LJ1737.
 137

left at large he would indulge in similar activities in future and thus act in a
manner prejudicial to the maintenance of public order etc. would not be based
on adequate materials. Public safety ordinarily means security of the pubhc or
their freedom from danger. Public order also implied public peace and
tranquilhty. The terrorist and disruptive activities disrupt public peace and
tranquilUty and affect the freedom of the pubHc from danger to life and
property. Disruption means the act of bursting and tearing as under. Dis-
ruptive means producing or resulting from or attending disruption. Terrorism
means the act of terrorising; unlawful acts of violence committed in an
organized attempt to overthi'ow a government or like purposes. Terrorist
means one who adopts or supports the policy of terrorism. The terrorist and
disruptive activities are naturally disruptive of public peace, tianquilUty and
development.'*^
Pubhc order or law and order — Test to determine
The impact on "public order" and "law and order" depends upon the
nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting
the tempo of the life of the communit}', it may be a matter of law and order
only. But where the gravity of the act is otherwise and likely to endanger the
public tranquillity, it may fall within the orbit of the pubhc order. What might
be an otherwise simple "law and order" situation might assume the gravity
and mischief of a "public order" problem by reason alone of the manner or
circumstances in which or the place at which it is carried out. Necessarily,
much depends upon the nature of the act, the place where it is committed and
the sinister significance attached to it.
As for example dare-devil repeated criminal acts, open shoot out,
throwing bomb at pubhc places, committing serious offences it public
transport, armed persons going on plundering public properties or terrorizing
people may create a sense of iiisecurity in the pubUc mind and may have an
impact on "pubhc order". Even certain murder committed by persons in
lonely places with the definite object of promoting the cause of the party;
which they belong may also affect the maintenance of 'public order'.^^
Public order or law and order - Substance and not form of language in
detention order to be seen - Verbatim use of statutory language that detenu
acted in the manner prejudicial to the maintenance of pubhc order not
enough.'*'*
'Public order' and 'law and order'- Distinction between - When can
preventive detention measures be resorted to - Activities of theft,
robbery and ornament snatching by use of knives or guns in particular
residential area of a metropolitan city like Delhi consistently for several years

42. State of Punjab \'. Sukiipal Singh, (1990) 1 SCC 35, 44: 1990 SCC (Cri) 1: AIR 1990 SC
231:1990 Cn LJ 584.
43. Angoori De. Union of India, (1989) 1 SCC 385, 389, 3 1989 SCC (Cri) 164: AIR 1989 SC
371:!S*;CnLJ950,
44. T. Devakiv. Govt, of T.N., (195 SCC 456, 469, 470:1990 SCC (Cri) 348: AIR 1990 SC 1086:
1990 Cri LJ 1140.
 138

by dangerous and desperate characters, held, disrupt pxiblic-order and hence

detention of such persons justified.
The FIR shows that the petitioner is a desperate and dangerous character. He
along with his associates had been involved in series criminal activities like
theft, robbery an: snatching of ornaments by the use of knives an: firearms
during a span of four years only in particular residential areas of Delhi. While
ht and his associates were facing trial or matters were still under
investigation, the impugned order of detention under the National Security
Act was served on him.
Preventive detention is devised to after protection to society. Any preventive
measures even if they involve some restraint or hardship upon individuals,
do not partake in any way of the nature of punishment, but are taken by way
of precaution to prevent mischief to the State. Justification for such detention
is suspicion or reasonable probability and not criminal convictioii which can
only be warranted by legal evidence. The Executive is empowered to take
recourse to its power of preventive detention in those cases where the Court is
genuinely satisfied that no prosecution could possibly succeed against the
detenu because he is a dangerous person who has overawed witnesses or
against whom no one is prepared to depose.
The distinction between the concepts of 'pubHc order' and slaw and order hes
in the degree and extent of the reach of the act upon society. Acts similar in
nature but committed in different contexts and circumstances might cause
different reactions. What essentially is a problem relating to law and order
may due to sudden sporadic and intermittent acts of physical violence on
innocent victims in the meti'opolitan city of Delhi result in serious public
disorder? It is the length, magnitude and intensity of the terror wave
unleashed by a particular act of violence creating disorder that distinguishes
it as an act affecting public order from that concerning law and order. Some
offences primarily injure specific individuals and only secondarily the public
iriterest, while others directly injure the public interest and affect individuals
only remotely. It is the potentiality of the act to distiub the even tempo of the
life of the community which makes it prejudicial to the maintenance of pubhc
order.
The prejudicial activities of the detenu, as revealed in the grounds of
detention, consist of a consistent course of criminal record. The detenu appears
to have taken to a life of crime and become a notorious character. The fact that
the petitioner and his associates are facing trial or the matters are stiU under
investigation, only shows that they are such dangerous characters that people
are afraid of giving evidence against them. The armed hold-up by gangsters
in exclusive residential areas of the cit}^ where persons are deprived of their
belongings at the point of knife or revolver, reveal organised crime. The
particular acts enumerated in the grounds of detention clearly show that the
activities of the detenu cover a wide field and fall within the contours of the
concept of public order. The grounds furnished were also neither vague or
 139

irrelevant or lacking in particulars nor inadequate or insufficient for the

subjective satisfaction of the detaining authority.'*^
"Public order" and "law and order" - Creating terror or disorder, based on
ideological differences between two communities in a sensitive town where
one of the communities predominates, which may lead to conununal violence,
held, pertains to "public order" and not merely to "law and order" .^^
The petitioner was detained by an order dated February 29,1984 of the
DM under S. 3 (2) of the National Security Act in order to prevent him from
acting prejudicially to maintenance of public order. The grounds mentioned
in the detention order were (1) that on April 10, 1981 he along with his
companions had surrounded one 'K' and had committed an offence under S.
307, IPC, (2) that on September 27, 1982, he collected goondas in his house
and had fired at the police party when it reached to arrest the goondas, (3)
that on September 27, 1982 he was arrested and a country-made tamancha
and carti'idges without license were recovered from his possession, (4) that on
January 15, 1983 he along with his brother had shot dead one 'N' and a case
under S. 302, IPC was registered against him, (5) that on October 31,1983 he
forced one 6S9 at the point of revolver to take a nude snap of immoral act
being committed by two persons; and (6) that on February 26, 1984 he along
with his associates attempted to murder one T by sprinkling kerosene and
lighting it with a matchbox. The detenu's father filed a writ petition under Art.
32 challenging validity of his son's detention. Allowing the petition and
quashing the detention order the Supreme Court Held:
The allegations mentioned in the grounds of detention do not pertain to
'public order', being not of such nature as to lead to any apprehension that the
even tempo of the community would be endangered. Therefore, the detention
of the detenu under S. 3(2) of the N.S.A. was not justified. Apart from the first
ground being old and stale, it is irrelevant inasmuch as the detenu had been
acquitted of the charge before the detention order was passed. The conduct
alleged of tiie detenu in other grounds also, though reprehensible, are not of
such nature which could endanger 'public order'.
The difference between law and order situation and maintenance of
public order must be kept in mind. The act by itself is not determinant of its
gravity. In its quahty it may not differ from another but its potentiality may
be very different. Therefore, the question whether a man has only committed
a breach of law and order or acted in a manner likely to the disturbance of
public order is a question of degree of the reach of the act upon society. It is
necessary in each case to examine the facts to deternune, not the sufficiency of
the grounds or the ti'uth of the grounds but nature of the grounds alleged and
see whether these are relevant or not for considering whether the detention of
the detenu is necessary for maintenance of public order.*^

45. Ashok Kumar v. Delhi Admn., (1982) 2 SCC 403; 1982 SCC (Cri) 451; AIR 1982 SC 1143;
]982Cril.J 1191.
46. Wdsiuddm Ahmed v. DM, (1981) 4 SCC 521, 533, 554: 1982 SCC (Cri) 4; AIR 1981 SC
2166: 1981 Cri LJ1825.
47. Apy Dixit \, State of U.P., (1984) 4 SCC 400; 1984 SCC (Cri) 625: AIR 1985 SC 18.
 140

Similarly and continuous repetition of the prejudicial act or omission

whether essential - Bihar Control of Crimes Act, 1981 (7 of 1981), Ss. 2(d) (i),
(ii) and (iv) and 12 - Scope and interpretation of - Three separate incidents
set out in grounds of detention — First incident relating to clause (i) second
relating to clause (iv), and third again relating to clause (i) of S. 2 (d) though
committed after a lapse of 8 years — On facts held (per majority), detenu not
'anti-social element" within meaning of S, 2 (d) and therefore, detention order
under S. 12 invaUd. The petitioner along with others was committed to the
Court of Session for being tried for offences under S. 302 read with Ss. 120-B,
386 and 511, IPC. During pendency of the said trial the petitioner obtained
from High Court an order for his enlargement on bail. Before the petitioner
could furnish bail and secure his release from jail, the D.M. passed on August
16,1983 the impugned order of his detention under S. 12 of the Bihar Control
of Crimes Act read with Bihar Government Notification No. H(P) 6844, dated
June 20, 1983. In the grounds of detention, the D.M. relied on the following
three incidents to hold him an 'anti-social element' (i) that on 15, 1975 the
petitioner along with his associates had gone to the shop of a cloth dealer and
had forcibly demanded subscription at the point of a gun, (ii) that on June
17/18, 1982, the petitioner was found teasing and misbehaving with females
returning from a cinema hall, and (iii) that the criminal case referred to earher
was pending against him. Held:
Per Venkataramiah, J.
The word 'habitually5 used separately in (i), (ii) and (iv) of S. 2(d)
means 'repeatedly' or 'persistently'. It implies a thread of continuity stTinging
together similar repetitive acts. Repeated, persistent and similar, but not
isolated, individual and dissimilar acts are necessary to justify an inference of
habit. It connotes frequent commission of acts or omissions of the same kind
referred to in each of the said sub-clauses or an aggregate of similar acts or
omissions. Absence of the word 'habitually' in clauses (iii) and (v) of S. 2(d)
suggests that in order to tieat a person as 'anti-social element', under clauses
(iii) and (v) a siiigle act or omission referred to therein may be enough,
whereas in the case of clauses (i), (ii) and (iv) there should be a repetition of
acts or omission of the same kind referred to therein. If the acts or omissions
in question are not of the same kind or even if they are of the same kind when
they are committed with a long interval of time between them they cannot be
treated as habitual ones. Commission of an act or omission referred to in one
of the clauses (i), (ii) and (iv) and of another act or omission referred to in any
other of the clauses of S. 2 (d) would not be sufficient to tieat a person as an
'anti-social element'. A single act or omission falling under clause (i) and a
single act or omission falling under clause (iv) of S. 2(d) carmot, therefore, be
characterised as a habitual act or omission referred to in either of them.

In the present cases the detenu cannot be called an 'anti-social element' as

defined by S. 2(d) and therefore, the impugned order of detention could not
have been passed under S. 12. In the first tivo incidents referred to in the
grounds oi detention, the detaining authority failed to mention how those
criminal cases ended. If they had ended in favour of the detenu finding him
clearly not guilty, they cannot certainly constitute acts or omissions habitually
 141

committed by the detenu. Moreover, the said two incidents are of different
kinds altogether. Whereas the first one may fall under clause (i), the second
one falls under clause (iv) of S. 2(d). They are, even if true, not repetitions of
acts or omissions of the same kind. Although the third ground which is based
on the pending Sessions is of the nature of acts or omissions referred to in
clause (0 but the interval between the first and the third grounds is nearly
eight years and cannot therefore make the detenu a habitual offender of the
type falling under-clause (i) of S.2(d).
Per Chinnappa Reddy, J. (concurring)
I entirely agree with my brother Venkataramiah, J, both on the question of
inter-pretation of the provisions of the Bihar Control of Crimes Act, 1981 and
on the question of the effect of the order of grant of bail in the criminal
proceeding arising out of the incident constituting one of the grounds of
detention. PerA.P, Sen, J. (concurring)
The Bihar Act appears to be based on the English Prevention of Crime Act,
1908. But the scheme under the English Act is entirely dif-
ferent where a person has to be charged at the trial of being a habitual
criminal Therefore, the considerations which govern the matter in case of the
English Act do not arise in case of preventive detention under S. 12(2) of the
Act,
The word 'habitually9 means by force of habit. It is the force of habit inherent
or latent in an individual with a criminal instinct, with a criminal disposition
of mind, that makes a person accustomed to lead a life of crime posing danger
to the society in general. If a person with criminal tendencies consistently or
persistently or repeatedly commits or attempts to commit or abets the
commission of offences punishable under Chap. XVI or Chap. XVII of the
Penal Code, he should be considered to be an 'antisocial element'.
It is not required by clauses (i), (ii) and (iv) of S, 2(d) that the nature and
character of the anti-social acts should be the same or similar. What have to be
repetitive are the anti-social acts. It is not possible to accept the view that the
commission of an act referred to in one of the clauses (i), (ii) or (iv) and any
other act or omission referred to in any other of the clauses of S, 2(d) would
not be sufficient to treat a person as an 'anti-social element'.
Section 12(2) should not be confined in its operation against habitual
criminals who have a certain number of prior convictions for offences of the
'characters specified. The definition of 'anti-social element' in S. 2(d) nowhere
requires so.''^
Basis of detention - Public order or law and order - Even a single act or
omission may disturb public order -
But where alleged single act of assault committed on account of business
rivalry, held on facts, the act pertained to disturbance of law and order and
not public order - National Security Act, 1980, S. 3(2)

4cS. Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14,18,19, 23; 1984 SCC (Cri) 361: AIR
1984 SC 1334:1984 CriLJ 909.
 142

The appellant was detained under S. 3(2) of the National Security Act. In the
grounds of detention it was inter alia stated that the appellant used to secure
government conti'acts by terrorising other tenderers, that when the offer of the
complainant-tenderer was accepted the appellant along with his companions
had attacked him by throwing hand-grenade and firing gunshots causing
commotion, ti-affic obstruction and disturbance of public tranquillity (though
the complainant escaped unhurt), that pursuant to FIR of the appellant a
charge-sheet had been put up against him, and that in case of his release on
bail from jail, there was possibility of his again acting in a maimer prejudicial
to the maintenance of public order to prevent which it was necessary to detain
him, The High Court held that the alleged act was intended to teach a lesson
to the complainant and to act as a warning to prospective tenderers in future
who may not dare to avail of the opporturiity to submit their tenders against
that of the appellants and that the impact and reach of the act went beyond
the individual and affected the community of contractors. Accordingly the
High Court upheld the order of detention. Allowing the detenu's appeal the
Supreme Court
The alleged act of assault by firearms, which was confined to the complainant
alone and not to others, infringed law and order. The reach and effect of the
act was not so extensive as to affect a considerable number of members of the
society. The act did not disturb public tranquillity nor did it create any terror
or in the minds of the people of the locality nor did it affect in any manner the
even tempo of the life of the community. The criminal act emanated from
business rivalry between the detenus and the complainant. Therefore such an
act cannot be the basis of subjective satisfaction of the detaining authority to
pass an order of detention on the ground that the impugned act purports to
affect public order. Moreover, no injury caused to the person of the
complainant by the appellants nor any damage was caused to his car though
hand-grenade was alleged to have been thrown on the car.
A solitary act of omission or commission can be taken into
consideration for being subjectively satisfied, by the detaining authority to
pass an order of detention if the reach, effect and potentiality of the act is such
that it disturbs public tianquiUity by creating terror and panic in the society
or a considerable number of the people in a specified locality where the act is
alleged to have been committed. Thus it is the degree and extent of the reach
of the act the society which is vital for considering the question whether a
man has committed only a breach of law and order or has acted in a manner
likely to cause disturbance to public order.^^
Public order — Satisfaction regarding breach of
Absence of allegation regarding disturbance of public order in FIR
lodged in cormection with criminal case against detenu - Held, not material
where detaining authority had additional material, such as supervision note
of police, which satisfied him about apprehension of breach of public order, ^o

49, Subhash Bhandari v. D.M., (1987) 4 SCC 685, 690:1988 SCC (Cri) 36; AIR 1988 SC 74.
50. Alijan Mian v. Distt. Iviagistrate, (1983) 4 SCC 301, 308, 309: 1983 SCC (Cri) 840: AIR
1983 SC 1130:1983 Cri LJ1649.
 143

Public order — Whether detenu's actior\ prejudicial to maintenance of public

order or law and order —
Depends upon facts and circumstances of the particular case— National
Security Act, 1980, S. 3(2)
Conceptually there is difference between law and order and public
order but what in a given situation may be a matter covered by law and order
may really turn out to be one of public order. One has to turn to the facts of
each case to ascertain whether the matter relates to the larger circle or the
smaller cii-cle. An act which may not at all be objected to in certain situations
is capable of totally disturbing the public tranquility. When communal
tension is high, an indiscreet act of no significance is Hkely to disturb or
dislocate the even tempo of the life of the community. An order of detention
made in such a situation has to take note of the potentiality of the act objected
to. No hard and fast rule can really be evolved to deal with problems of
human society. Every possible situation cannot be brought under watertight
classifications and a set of tests to deal with them cannot be laid down. As and
when an order of detention is questioned, it is for the court to apply the well
known tests to find out whether the impugned activities upon which the
order of detention is grounded go under the classification of public order or
belong to the category of law and order.
The reference to Dr Allen's classification in Pushkar Mukherjee case, to
the effect that some offences primarily injure specific persons and only
secondarily the public interest while others directly injure the public interest
and affect individuals only remotely, was intended to bring into bold relief
the basic distinction. The guidelines indicated in that judgment falls in line
with the general principles adopted by Supreme Court in several authorities.
The criticism against Pushkar Mukherjee case, on ground that the test laid
down by Dr Allen was not applicable to judge the validity of a detention
order, is, therefore, unwarranted.^^
Any disorderly behaviour of a person in the public or commission of a
criminal offence is bound to some extent affect the peace prevailing in the
locality and it may also affect law and order but the same need not affect
maintenance of public order. There is basic difference between Taw and
order' and 'public order'. The question whether a man has only committed a
breach of law and order or has acted in a manner likely to cause disturbance
of the pubhc order, is a question of degree and the extent of the reach of the
act upon the society. A solitary assault on one individual can hardly be said to
disturb public peace or place public order in jeopardy so much as to bring the
case within the purview of the Act providing for preventive detention. Such a
solitary incident can only raise a law and order problem and no more. In the
present case there is no material on record to show that the reach and
potentiahty of the single incident of attempted murderous assault on the
Minister was so great as to disturb the even tempo or normal life of the
community in the locaiit}^ or disturb general peace and ti-anquillity or create a
sense of alarm and insecurity in the locality. Though in the grounds of

51. State of U.P. v. Hari Shankar Tewari, (1987) 2 SCC 490; 1987 SCC (Cri) 388: AIR 1987 SC
998:1987 Cri LJ 840.
 144

detention the detaining authority had stated that by committing this grave
offence in pubHc, in broad daylight, the detenu created a sense of alarm, scare
and a feeling of insecurity in the minds of the public of the area and thereby
acted in a manner prejudicial to the maintenance of public order which
affected even tempo of life of the conmiunity, but mere repetition of these
words in the grounds are not sufficient to inject the requisite degree of quality
and potentiality in the incident in question. Thus the solitary incident as
alleged in the ground of detention is not relevant for sustaining the order of
detention for the pui-pose of the preventing the petitioner from acting in a
manner prejudicial to the maintenance of public order.52
Public order - Dangerous person under S. 2(c) of Gujarat PASAA
Criminal cases against the detenu under Chapter XVI or XVIIIPC or
Chapter V of Arms Act referred to in grounds of detention, in respect of
which detenu has already been acquitted by court, caimot be taken into
consideration for deciding that the detenu was a dangerous person — Cases
under S, 135 of Bombay Police Act, referred to in the grounds, being not
covered by S. 2(c). of Gujarat PASAA, not relevant - Remaining cases
against, the detenu, referred to in the grounds, being still under investigation
and not yet decided, not sufficient for the detaining authority's satisfaction
that the detenu was a dangerous person — Gujarat Prevention of Anti-Social
Activities Act, 1985, S. 2(c).53
Incidents referred to in the grounds relating to private individuals-
Grounds not referring to any dangerous, harmful or adverse act or alarm
which gives rise to a feeling of insecurity for the general public amongst the
persons of a locaHty — Held, on facts, the incidents pertained to disturbance
of law and order — Non-application of mind — Gujarat Prevention of
Anti-Social Activities Act, 1985, Ss. 3(1) and 2(c).
The criminal cases against the detenu mentioned in the grounds of
detention were confined to certain private individuals. There was nothing in
this case to show that the petitioner was a member of a gang engaged in
criminal activities systematically in a particular localit^^ which created a panic
and a sense of insecurity amongst the residents of that particular area in
consideration of which the impugned order was made. The alleged activities
of the detenu did not affect adversely or tend to affect the even tempo of hfe of
the community. They merely related to law and order problem. Their reach
and effect was not so deep as to affect the public at large and they did not in
any way pose a threat to the maintenance of public order. An act may create a
law and order problem but such an act does not necessarily cause an
obstruction to the maintenance of public order. So there has been complete
non-application of mind by the detaining authority before reaching a
subjective satisfaction to make the impugned order of detention.^^

52. T. Devaki v. Govt, of T.N., (1990) 2 SCC 456:1990 SCC (Cri) 348; AIR 1990 SC 1086:1990
Cri LJ1140.
53. Abdul Razak Nannekhan Pathan v. Police Commr., (1989) 4 SCC 43, 49, 50: 1989 SCC
(Cri) 679. .
54. Abdul Razak Nannekhan Pathan v. Police Commr., (1989) 4 SCC 43, 51, 52: 1989 SCC
(Cri) 679.
 145

Merely because the petitioner is a bootlegger within the meaning of S.

2(b) of the Act, he cannot be preventively detained under the Act. Under sub-
section (4) of S. 3 of the Act a bootlegger or a dangerous person or a drug
offender shall be deemed to be acting in a manner prejudicial to the
maintenance of pubUc order; but such deeming provision will not be attracted
unless the activities of the person concerned affect adversely or are likely to
affect adversely the maintenance of pubHc order. This in the present case the
detaining authority has failed to substantiate.^^
Assaulting the contractor with a view to kill him on his refusal to pay
the fees — Threatening shopkeepers in market with revolver in hand to
kill if they fail to pay the fees as a result of which shops closed down— A
contractor and a shopkeeper lodging report with police— Held on facts,
incidents maintenance of public order - National Security Act, 1980, S. 3(2)
The demand of fees for goondagardi (chauth) from the contractor of a
mango grove and the attack launched on him would show that it was not a
case of singling out a particular conh'actor for payment of chauth but a
demand expected to be complied with by all owners or contractors of mango
groves in the locality. In such circumstances, the demand made and the attack
launched would undoubtedly cause fear and panic in the minds of all the
owners and contractors of mango groves in that area and this would have
affected the even tempo of life of the community.
Similarly as regards the incident of demanding Rs 10,000 from a
shopkeeper and threatening him that unless the money was paid on the
foUowmg day or the day after the shopkeeper would be killed, about which
the shopkeeper had informed the police and a case was registered under S.
506 IPC The demand had been made as part of a scheme to extort money from
all the shopkeepers under a threat that their continuance of business and even
their lives would be in danger if chauth was not paid. The demand would
have certainly made all the shopkeepers in that locality feel apprehensive that
they too would be forced to make payments to the (iefenw-petitioner and that
otherwise they would not be allowed to run their shops.
The third incident of threatening the shopkeepers in the market with
revolver in haiid that if any one failed to pay "chauth" he would not be
allowed to open his shop and he would have to face the consequences, on
account of which the shopowners downed the shutters of their shops, cannot
be considered as merely causing disturbance to the law and order situation
but must be viewed as one affecting the even of life in the market.
In Gulah Mehra case, no shopkeeper had come forward to complain
about the detenu and only a picket employed at the police station had made a
report. But in the present case specific reports had been given to the police by
the contractor and a shopkeeper from whom Rs 10,000 had been demanded.

55. Piyush Kantilal Mehta v. Commr. of Police, 1989 Supp (1) SCC 322, 328:1989 SCC (Cr
438: AIR 1989 SC 491:1989 Cri LJ 956.
 146

Therefore, the decision in Gulab Mehra cannot be of any avail to the detenu-
petitioner.^^
Such act being calculated to disturb public peace and tranquillity, held,
pertains to public order and not merely law and order.^^
Neither maintenance of public security nor maintenance of law and order can
justify detention under S. 3(2) of National Security Act, 1980 (65 of 1980).58
On facts held, activities of the detenu pertained to disturbance of pubhc order
The agitation on the issue of foreigners in Assam, which has been
going on for years, has taken an ugly and serious turn and the statements of
facts made in second and third paragraphs of the Grounds of Detention in the
prevalent circumstances relate to the maintenance of public order and not
merely law and order.59
Public order — fermenting communal feelings
Actions undermining public faith in poKce administration cause
prejudice to maintenance of public order — Such attempts made at the time of
communal tension affects maintenance of public order.
An order of detention was passed under S. 3(2) of the National Security
Act on April 15, 1988 against the petitioner, who is a bachelor and does not
own any property. In the grounds of detention it was stated that a cow
belonging to Muslims was diverted by some undesirable elements towards
the place where religious celebrations in connection with the Muslim festival
'Shabebarat' was going on in the night of April 2/3,1988. At this the petitioner
came to the stage, got excited and spread the rumour that "the poUce had not
made any arrangements". It was stated that the cow belonged to the Hindus
and had been deliberately sent inside the festival and "other provoking"
things. Due to the aforesaid, the people started running and communal
feelings got aroused. Again on April 9,1988, it was stated, the petitioner had
"provoked some persons" of the Muslim community by saying that "the
administration even now has not allowed to get a loudspeaker fixed here and
all of you are silent, get a loudspeaker on the mosque and we will see. 1 am
with you" and also saying that on the occasion of *Shabebarat? Hindus had
dehberately "sent their cow on the road" for their festive celebrations and the
"people are silent". He had also said about teaching "them" a lesson. It was
stated that due to the "aforesaid bad act" communal feelitigs got aroused in
the city and fear and terror got spread, and in this way the petitioner had
done an act which was "prejudicial to maintenance of public law and order"
and as such there was possibiUty of the petitioner doing such an act, and
therefore, in order to restrain the petitioner from doing so, it was necessary to
detain him. Held:

56. Sharad Kumar Tyagi v. State qfU.R, (1989) 1 SCC 736, 7415 742; 1989 SCC (Cri) 294; AIR
1989 SC 764.
57. Fitrat Raza Khan v. State of U.P., (1982) 2 SCC 449:1982 SCC (Cri) 472: AIR 1982 SC 146:
1982 Cri L] 338.
58. Aidal Singh v. State of 4 SCC 428:1981 SCC (Cri) 848.
59. Dhananjoy Das v. D.M„ (1982) 2 SCC 521: 1982 SCC (Cri) 488; AIR 1982 SC 1315- 198^
Cri LJ1779.
 147

The difference between public order and law and order is a matter of degree.
If the morale of the poUce force or of the people is shaken or undermined by
making them lose their faith in the law-enforcing machinery of the State then
prejudice is occasioned to maintenance of public order. Such attempts or
actions which undermine the public faith in the police adnunistration at a
time when communal tensions are high, affects maintenance of public order
and as such conduct is prejudicial. Therefore, the contention that the grounds
of detention were not relevant to the order of detention under the Act carmot
be accepted.^"
Public order or law and order — Act of throwing bomb at election meeting
pertains to pubUc order problem — Hence detention order valid.^^
Public order or law and order —Commission of any criminal offence such as
selling liquor in contravention of Prohibition Act by itself would not affect
public order
There is a wide gap between law and order and public order. The criminal
offence may relate to the field of law and order but such an offence would not
necessarily give rise to a situation of public order. Depending upon peculiar
situations an act which may otherwise have been overlooked as innocuous
might con-stitute a problem of public order. Selling of liquor by the petitioner
would certainly amount to an offence under the Prohibition Act but without
something more would not give rise to a problem of pubic order. Similarly
commission of any other criminal offence, even assault or threat of assault,
would not bring the matter within the ambit of public order.^^
Public order or law and order — Detaining authority's apprehension
regarding breach of public order by the detenu normally not open to judicial
review.
Throwing bomb on a person and assaulting another amongst the large
gathering witnessing a cultural programme at dead of night on one occasion
and opening of gun fire in a thickly populated residential area on another
occasion causing t panic and alarm in the area, held, amounted to breach of
pubUc order as the incidents disturbed the tranquillity and the even tempo of
life of public."^3
Public order or law and order — Detenu alleged to be a bootlegger engaged in
unlawful storing and selling Hquor and causing injuries to irmocent
persons of the locality by using lethal weapons — Six criminal cases
registered against the detenu, of which two cases ended in acquittal? three
cases pending trial and the remaining case pending inquiry - Held, sufficient
and adequate material not available for holding that the alleged prejudicial
activities of the detenu had either affected adversely or likely to affect

60. Shafiq Ahmad v. DM., (1989) 4 SCC 556,564, 565:1989 SCC (Cri) 774: AIR 1990 SC 200.
61- State of U.P. V. Ekhlaq Ahmad, 1987 Supp SCC 68:1987 SCC (Cri)
62. Ahmed hussain Shaikhhussain v, Commr. of Police, Ahmedabad, (1989) 4 SCC 751, 757,
758:1990 SCC (Cri) 86: AIR 1989 SC 2274:1989 Cri L] 2312.
63. Alijan Mian v. Distt. Magistrate, (1983) 4 SCC 301,307:1983 SCC (Cri) 840- AIR 1983 SC
1130:1983 Cri LJ1649.
 148

adversely maintenance of public order - Gujarat Prevention of Anti-Social

Activities Act, 1985, Ss. 3(1) and 4(3).6''
Public order or law and order- Grounds of detention alleging commission of
offences by detenu of the nature ordinarily covered by Ss. 307, 504 and 506,
IPC— Detenu a minor school-going boy at the time of his detention •- Held,
activities of the detenu pertained to breach of law and order and not public
order — Having regard to the nature of offences and age of the detenu, held,
order of detention cannot be sustained - J & K Public Safety Act, 1978, S, 8
The first ground of detention was that the detenu had attacked a bus
conductor with a dagger with the intention to kill him and caused Injuries to
his person and the second ground was that he had threatened a lemon vendor
with a dagger saying 4<by demanding money you are inviting your death". In
respect of each incident set out in the grounds FIRs had been lodged but the
D.M. passed the impugned order of detention under S. 8 of the J & K Public
Safety Act. Held:
Preventive detention measures can be resorted to where a criminal conduct
camiot be easily prevented, checked or thwarted, but every minor infraction
of law camiot be upgraded to the height of an activity prejudicial to the
maintenance of public order. In the present case there is no indication that
witnesses were not forthcoming in respect of the alleged infraction of law and
why the normal investigation was not pursued. Non-application of mind of
the detaining authority becomes evident from the frivolity of grounds" on the
detention order was founded.
A greater infirmity which struck at the root of the detention order was that
when the detenu was arrested and detained by the impugned order, he was a
school-going boy of around 17 years. It passes comprehension to believe that
he can be visited with drastic measure of preventive detention. Therefore, in
the facts and circumstances of this case the detention order was wholly
unwarranted and deserved to be quashed.^^
Public order or law and order — Incident of murder,of complainant*s brother
by gunshot at night, held, affected law and order but incidents of firing on
complainant and his companions in public street during daytime causing
death of one of them and of firing on an undertrial prisoner in court
compound, causing injuries, held, affected public order.^^
Pubhc order or law and order problem — What constitutes pubhc order
— Isolated criminal case — Policemen arrested
on charge of committing cognizable offence under S. 392/34 IPC with the
assistance of a member of public - After their release on bail and during
pendency of investigation, detention order under S. 3(2) of National Securit}'
Act issued on ground that commission of the heinous crime by police

64. Omprakash v, Commr. of Police, 1989 Supp (2) SCC 576:1990 SCC (Cri) 198- AIR 1990
SC496.
65. Jay a Mala v. Home Secy., Govt, of ] & K (1982) 2 SCC 538:1982 SCC (Cri) 502- AIR 198^'
SC 1297: 1982 Cri LJ1777.
66. State of U.P. v. Kamal Kishore Saini, (1988) 1 SCC 287, 295,296:1988 SCC (Cri) 107(2)-
AIR 1988 SC 208:1988 Cri L] 405.
 149

personnel themselves ('created a sense of insecurity in the minds of public at

large and is prejudicial to the maintenance of public order" - Held, the
offence involved law and order problem and did not disturb public order -
Hence order of detention quashed
The offence was committed by two misguided poHcemen under the cover of
darkness with the assistance of a member of the public. It was certainly
suicidal to those two police personnel. But it seems to have no connection
whatsoever to disturb the 'public order' having regard to the circumstances of
the case. It is an isolated criminal case with no sinister significance attached to
it.67

Disturbance of public order or law and order - Allegation thai detenu was
caught with foreign liquor without any pass, permit or licence or that detenu
was of high-handed and fierce in nature causing terror to public or allegation
of minor incidents of beating by the detenu — Held, allegations do not
estabUsh disturbance of public order - Gujarat Prevention of Anti-Social
Activities Act, 1985, S. 3(1) and (4).
The alleged offence of the detenu being caught with bottles containing
foreigii Hquor without any pass, permit or licence has no bearing on the
question of maintenance of public order.
The allegation of the deteyiu being of highhanded and fierce in nature
may give rise to a question of law and order but, surely, they have nothing to
do with the question of public order. A person may be very fierce by nature,
but so long as the public generally are not affected by his activities or conduct,
the question of maintenance of pubUc order wiU not arise.
The alleged incidents of beating by the detenu do not have any bearing
on the maintenance of 'public order'. The petitioner may be punished for the
alleged offences com-mitted by him but, surely, the acts constituting the
offences cannot be said to have affected the even tempo of the life of the
community. ^8
Public order or law and order problem — Commission of non-cognizable
offence of breaking glass screens of bus and abusing its driver and conductor
alleged in two separate incidents — But in both the incidents the offence was
actually directed against the same person, who was the owner of the bus and
on whose information or complaint the cases were registered against the
detenu — Presence of passengers in the bus at the time of the incident not
alleged - Held on facts, the acts alleged did not affect public order -
National Security Act, 1980, S. 3(2)
The first two grounds which pertain to the commission of non-
cognizable offences have no rational nexus relatable to the maintenance of
public order. The alleged attacks were directed against the same individual
and, even according to the police; they constituted merely offences of a non-
cogi-iizable nature. In the facts of the case, it is difficult to impart to these acts,

67. Angoori Devi v. Union of India, (1989) 1 SCC 385, 388, 391:1989 SCC (Cri) 164: AIR
1989 SC 371:1989 CriLJ 950.
68. Piyush Kantilal Mehta v. Commr, of Police, 1989 Supp (1) SCC 322:1989 SCC (Cri) 438:
AIR 1989 SC491:1989 Cri L] 956.
 150

which were liable to be dealt with under the ordinary laws of the land, a
"public order" dimension within the meaning of and for purposes of the
extraordinary law of preventive detention. It is true that the acts themselves,
in relation to their effect on public order, which might otherwise be free from
the vice of affecting public order, might assume a sinister colour and
significance from the circumstances under and the manner in which they are
done. What might be an otherwise simple "law and order" situation might
assume the gravity and mischief of a "pubHc order" problem by reason alone
of the manner or circumstances in which or the place at which it is carried
OUt.69

SUBJECTIVE SATISFACTION AND JUDICIAL REVIEW

Factors influencing formation of — Inference can be drawn from past conduct
and antecedent history of detenu — Government's confidential guide-lines
regarding the authority's satisfaction have no binding force and failure of its
strict compliance would not constitute mala fide action — Administrative
Law.
The detaining authority has of necessity to into account all the relevant
materials placed before it and after due consideration thereof may justifiably
come to the conclusion that the activities of a particular person were such that
he had a tendency to repeat his illegal activities. For this purpose the past
conduct or antecedent history of a person can appropriately be taken into
account by the authority in a detention order.
In the present case the detenu himself admitted in his confession that he
has his home in Bombay and business in Muscat, His passport disclosed that
he was frequently shuttling between Muscat and India, Admittedly he
smuggled the Palladium in question in order to make profit by selling it to
customers In India, The detaining authority would be within its jurisdiction to
take into consideration all these facts and subjectively come to a satisfaction
whether or not the offender may be repeating his activities.^"
Tests of vaUdity
There are well recognised objective and judicial tests of the subjective
satisfaction for preventive detention. Amongst other things, the material
considered by the detaining authority in reaching the satisfaction must be
susceptible of the satisfaction both in law and in logic. The tests are the usual
administrative law tests where power is couched in subjective language.
There is, of course, the requisite emphasis in the context of personal liberty.
Indeed the purpose of public lav/ and the public law courts is to discipline
power and strike at the illegality and unfairness of government wherever it is
found. The sufficiency of the evidentiary material or the degree of probative

69. Ayya v. State of U.F., (1989) 1 SCC 374, 377, 378:1989 SCC (Cri) 153: AIR 1989 SC 364:
1989 Cri L] 991.
70. Hemlata Kantilal Shah v. State of Maharashtra, (1981) 4 SCC 647, 658:1982 SCC (Cri)
16: AIR 198 ISC 8.
 151

criteria for the satisfaction for detention is of course in the domain of the
detaining authority/^
The petitioners were held under S. 3(2) of the National Security Act on
the ground that they addressed members of a community in a language
inciting them to beat the police and PAC men as a result of which the crowd
commenced pelting stones and discharged firearms on the government
officials and the police personnel assembled there causing injuries. It was
contended that there was no material before the District Magistrate on the
basis of which he could form the opinion that the detenus would act in future
In a manner prejudicial to the maintenance of public order. Accepting the con-
tention and allowing the writ and appeals the Supreme Court
Held:

Preventive detention is not intended as a punitive measure, as a

curtailment of liberty by way of punishment for an offence already com-
mitted. The power to detain under S. 3 of the National Security Act can be
exercised only with a view to preventing a person from acting in a manner
which may prejudice any of the considerations set forth in the section. While
detaining under S. 3(2) there must be material to show that the detenus would
act in the future to the prejudice of the maintenance of public order. Though
the satisfaction of the Distiict Magistiate is subjective in nature, but even sub-
jective satisfaction must be based upon some pertinent material. The question
is not of sufficiency of that material but of the very existence of relevant
material. In the present case even if it is accepted that the detenus did address
the assembly of persons and incited them to lawlessness there was no
material to warrant the inference that they would repeat the rrusconduct or do
anything else which would be prejudicial to the maintenance of public order.
Therefore, the detention orders must be quashed.'^
The sufficiency of the materials available to the detaining authority is
not to be examined by the court. While considering the writ petition of or on
behalf of the detenu the Supreme Court or the High Court does not sit in
appeal over the detention order, and it Is not for the court to go into and
assess the probative value of the evidence available to the detaining authority.
Of course, a detention order not supported by any evidence may have to be
quashed, but that is not the position here. There was clearly sufficient material
before the District Magistiate to justify the forming of his opinion. It was not
therefore possible to accept the contention that the ground mentioned for the
detention was non-existent.^^
Scope of judicial review
The executive authority is not the sole judge of.what is required for
national security or public order. But the court caimot substitute its decision if

71. Ayya v. State of U.P., (1989) 1 SCC 374,382:1989 SCC (Cri) 153: AJR 1989 SC 364:1989
CriLJ991.
72. Fazal Ghosi v. Slate of U.P., (1987) 3 SCC 502:1987 SCC (Cri) 596: AIR 1987 SC 1877:
1987 Cri LJ 1910.
73. K. Arima Kumari v. Govt of A.P., (1988) 1 SCC 296, 303, 304: 1988 SCC (Cri) 116: AIR
1988 SC 227:1988 Cri LJ 411.
 [52

the executive authority or the appropriate authority acts on proper materials

and reasonably and rationally comes to that conclusion even though the court
might not be in agreement with the same. It is not for the court to put itself in
the position of the detaining authority and to satisfy itself that untested facts
reveal a path of crime provided these facts are relevant. ''*
Scope of judicial review
The subjective satisfaction of the detaining authority as regards the
factual existence of the condition on which the order of detention can be made
i.e. the grounds of detention constitutes the foundation for the exercise of the
power of detention and the court cannot be invited to consider the propriety
or sufficiency of the grounds on which the satisfaction of the detaining
authority is based. Nor can the court, on a review of the grounds, substitute
its own opinion for that of the authority. But this does not imply that the
subjective satisfaction of the detaining authority is wholly immune from the
power of judicial review. It inferentially follows that the subjective
satisfaction being a condition precedent for the exercise of the power con-
ferred on the executive, the court can always examhie whether the requisite
satisfaction was arrived at by the authority; if it is not, the condition precedent
to the exercise of the power would not be fulfilled and the exercise of the
power would be bad. The simplest case is where the authority has not applied
its mind at all; in such a case, the authority could not possibly be satisfied as
regards the fact in respect of which it is required to be satisfied.''^
Subjective satisfaction of detaining authority — Scope of judicial review of —
Detention order, if made in derogation of the constitutional safeguards and
provisions of relevant preventive detention law, liable to be quashed — Court
should not be influenced by gmesomeness of the crime alleged against the
detenu — Constitution of India, Arts. 21, 22, 32 — Bihar Prevention of Crimes
Act, 1981, Ss. 2(d) and 12(2)
Per Chinnappa Reddy, ]. (concurring)
The Constitution of India does not give a carte blanche to any organ of
the State to be the sole arbiter in matters of maintenance of security and public
order. So it is too perilous a proposition to say that the authorities concerned
with the preventive detention must be the sole judges of what the national
security or public order requires. The preventive detention is within the
judicial scrutiny where courts are required to examine, when demanded,
whether the limits set by the Constitution and the Legislature have been
h-ansgressed resulting in an excessive detention. Vv'hile adequacy or suf-
ficiency may not be a ground of challenge, relevancy or proximity are
certaiiily grounds of challenge. It is now well settied that remoteness in point
of time makes a ground of detention irrelevant.

74. Raj Kumar Singh v. State of Bihar, (1986) 4 SCC 407, 414: 1986 SCC (Cri) 481: AIR 1986
SC 2173:1986 Cri LJ 2042.
75. Pushpa Devi M. Jatia v, ML. Wadhawan, (1987) 3 SCC 367, 383, 384; 1987 SCC (Cri) 526:
AIR 1987 SC 1748:1987 Cri LJ 1888: (1987) 12 ECC 356.
 153

Per A. P. Sen, J. (dissenting)

If the persons engaged in anti-social activities seeking to create serious
public disorder are being dealt with effectively by ordering their preventive
detention and at the same time it is assured that the law would not be used
arbitrarily to deprive the citizen of his right to life and liberty, there should
not be any objection to the order of preventive detention. Those who are
responsible for the national security or for -the maintenance of public order
must be the sole judges of what the national security or public order requires.
Sufficiency of grounds is not for the court but for the detaining authority for
the formation of his subjective satisfaction. The power of preventive detention
by the Distiict Magistiate under S. 12(2) is necessarily subject to the
limitations enjoined on the exercise of such power by Art. 22(5). The Court
must be circumspect in striking down the impugned order of detention where
it meets with the requirements of Art. 22(5) and where it is not suggested that
the detaining authority acted mala fide or that its order constituted an abuse
of power.
Per Venkataramiah, j ,
The Court should examine the case without being overwhelmed by the
gruesomeness of the incident involved in the criminal trial.''^
The High Court under Art, 226 and Supreme Court under Art. 32 or
136 do not sit in appeal from the order of preventive detention. But the court
is only to see whether the formality as enjoined by Art. 22(5) had been
complied with by the detaining authority, and if so done, the court carmot
question the sufficiency of the grounds of detention for the subjective
satisfaction of the authority. However, it is the duty of the Court to see that a
law depriving the person of his liberty without' the safeguards available even
to a person charged with crime is strictly complied with. But individual
liberty is to be curtailed by an anticipatory action only in interest of what is
enumerated in the statute.''''
If subjective satisfaction of detaining authority reached bona fide, court not
competent to test adequacy of material on which such satisfaction is reached
— It is for detaining authority to be satisfied that statement of detenu's
accomplice provided link between the detenu and receipt of contraband
articles and the facts relating thereto even though at a trial conviction may not
be possible on the basis of such statement.^^
Judicial review of subjective satisfaction — Court cannot question sufficiency
of grounds of detention for the subjective satisfaction of the authorit)^''^

76. Vijay Narain Singh y. State of Bihar, (1984) 3 SCC 14,19, 25. 26:1984 SCC (Cri) 361: AIR
1984 SC 1334:1984 Cri LJ 909.
77. State of Punjab w Sukhpal Singh, (1990) 1 SCC 35,42 to 44:1990 SCC (Cri) 1: AIR 1990
SC 231:1990 Cri LJ 584.
78. Asha Keshavrao Bhosale v. 'Union of India, (1985) 4 SCC 361, 366: 1985 SCC (Cri) 561:
AIR 1986 SC 283.
79. Saraswathi Seshagiri v. State of Kerala, (1982) 2 SCC 310:1982 SCC (Cri) 423: AIR 1982
SC 1165: 1982 Cri LJ 125L
 154

Adequacy of subjective satisfaction, not open to be examined by High Court

under Art 226, more so where Home Minister carefully considered the entire
record before the detention order was passed — High Court can only see if
the detention order is based on material on record, so
The court has to ensure that the order of detention is based on
materials before it. If it is found that the order passed by the detaining
authority was on materials on record, the Court can examine the record only
for the purpose of seeing whether the order of detention was based on no
material or whether the materials have rational nexus with satisfaction that
public order was prejudiced. Beyond this, the Court is not concerned. **i
Validity — To be judged by an objective approach striking balance between
need to protect the community and need to preserve libenty of a citizen
having regard to all relevant circumstances and considerations.^^
DETENTION ORDER
(a) Competent authority to pass order
Svibordinate authority (Dy. Secretary) only authenticating the detention
order passed by competent authority (Home Minister) after careful
consideration of entire material on record — Detention order, having been
taken in the name of Governor and validly authenticated, held, tantamounts
to an order of State Government- COFEPOSA Act, 1974 (52 of 1974), S. 3(1).83
Detaining authority — Competent authority — Administrator of Union Ter-
ritory, held, competent to pass detention order within his territory —
Contention that order can be made only by the Chief Minister though in the
name of the Administi-ator not acceptable - COFEPOSA Act, 1974.84
Detention order made by an officer especially empowered by the Government
to exercise powers under S, 3(1) of COFEPOSA Act but not one empowered to
act on behalf of the Government under the Rules of Business — Held,
amounts to an order made by the concerned Government itself— Detenu has
no right to make representation to the officer passing the detention order
before making representation to State Government and Central Government
— Hence, failure to in the detention order that detenu had right to make
representation to the officer passing the order apart from the State and
Central Government not fatal to the detention — Detaining authority —
Representation - COFEPOSA Act, 1974, Ss. 2(a), 3,8(b) & 11
Article 22(5) does not provide that in addition to his right to make a
representation to the State Government and the Central Government, he has a

80. State of Gujarat v. Mohd. Ismail }umma, (1981) 4 SCC 609, 611; 1982 SCC (Cri) 1: AIR
1982 SC 683.
81. Shafiq Ahmad v. D.M., (1989) 4 SCC 556, 564, 565:1989 SCC (Cri) 774: AIR 1990 SC 200.
82. State of U.P. v. Hari Singh Thakur, 1987 Supp SCC 190:1988 SCC (Cri) 44: AIR 1987 SC
2080:1987 CriLJ 1923.
83. State of Gujarat v. Mohd. Ismail Jumma, (1981) 4 SCC 609, 612: 1982 SCC (Cri): AIR
1982 SC 683.
84. Devji Vallabhbhai Tandel v. Administrator, (1982) 2 SCC 222: 1982 SCC (Cri) 403: AIR
1982 SC 1029:1982 CriLj 799.
 155

further right under Art. 22(5) to make a representation to the officer himself
who made the order of detention.
Under the COFEPOSA Act, an order of detention made by an officer is
h"eated as an order of detention made by the Government itself, although
through the instrumentaUty of an officer empowered under S. 3. Any
government has to function only through human agencies, viz. its officers and
functionaries.
The resultant position emerging from various provisions of the
COFEPOSA Act particularly Ss. 2(a), 3, 8(&) and 11 is that even if an order of
detention is made by a specially empowered officer of the Central
Government or the State Government, as the case may be, the said order will
give rise to the obligations to be fulfilled by the Government to the same
degree and extent to which it will stand obligated if the detention order had
been made by the Government itself. So it is the concerned government that
would constitiite the Detaining Authority under the Act and not the officer
concerned who made the order of detention, and it is to that government the
detenu should be afforded opportunity' to make representation against the
detention order at the earliest opportunity, as envisaged under Art. 22(5) and
not to the officer making the order of detention in order to provide the detenu
an opportunity to make a further representation to the State Government and
thereafter to the Central Goverrunent if the need arises for doing so. Though
by reason of S. 3(1) a specially empowered officer is entitled to pass an order
of detention, his constitutional obligation is only to communicate
expeditiously to the detenu the grounds of detention and also afford him
opportunity to make representation to the appropriate governments against
his detention. The only further duty to be performed thereafter is to place the
representation made by the detenu before the concerned officer or the Minister
empowered under the Rules of Business of the government to deal with such
representation if the detenu addresses his representation to the officer himself.

Unlike in other Preventive Detention Acts, the COFEPOSA Act does

not provide for the State Government or Cential Government passing an
order approving a detention order made by one of its officers and therefore,
the detention order will continue to be operative for the full period of
detention unless the order is revoked by the State Government or the Central
Government or is quashed by the court for any reason. This is an additional
factor to show that an order of detention passed by an officer has the same
force and status as an order of detention passed by the government itself.
Even if a detention order is made by an officer who is empowered to
act but not having additional empowerment under the Rules of Business of
the Government, it will have the effect of making the Government and not the
officer the Detaining Authority. This difference in the conferment of powers
upon the officers falling under the two categories cannot have any impact on
the nahire of the detention orders respectively passed by them because the
common factor entitling the officers falling in the two classes is then-
empowerment under S. 3(1) of the Act.
From the practical or pragmatic standpoint also if an order of detentioji
is made b)' a specially empowered officer and if by the time the
 156

representation of the detenu is received by him, the officer is not there to

consider the representation either by reason of his proceeding on leave or
falling sick or transfer or retirement or being placed under suspension or
death, then the inevitable consequence would be that the detenu has to be
invariably set at liberty solely on the ground that his representation had not
been considered by the very same officer who had passed the order of
detention. The Act and the Constitution do not envisage such situations. ^^
Any goverruiTent, be it Central or State, has to function only through
human agencies, viz. its officers and functionaries and it cannot function by
itself as an abstract body. Such being the case, even though S. 3(1) provides
for an order of detention being made either by the Central Government or one
of its officers or the State Government or by one of its officers, an order of
detention has necessarily to be made in either of the situations only by an
officer of the concerned govemment.^^
Period of detention
Period of detention is to be decided only at the time of confirming the order of
detention under S. 8(f), COFEPOSA after receipt of report of Advisory
Board — Neither at the stage of passing the order of detention [S, 3(1)] nor at
the rime of making reference under S. 8(b) is the period of detention in
question -Constitution of India, Art. 22(4) and (7) - COFEPOSA Act, 1974, S.
8(b) and (f).
The obligation to specify the period of detention is upon the
appropriate Government and that has to be done at the final stage, after
consideration of the report of the Advisory Board. There is no intermediate
stage at which any tentative conclusion is to be arrived at by the Government
regarding the period of detention though, at any and every stage, the
Government has the full liberty to revoke the order of detention. The act of
making a reference to the Advisory Board is a mechanical or nvLnisterial act
involving no exercise of discretion. The prescription of five weeks in S. 8 (b) of
the COFEPOSA for the making of a reference to the Advisory Board is with a
view to enable fvilfilment of the constitutional requirement of Art. 22(4) and
not with a view to imposing an obligation upon the Government to consider
the question of the length of detention and arrive at a tentative conclusion
even at that stage.^''
Section 3 of the Act does not oblige the detaining authority to specify
the period of detention also while passing the order of detention. Under the
scheme of the Act, the period of detention .must necessarily vary according to
the exigencies of each case, namely, the nature of the prejudicial activity

85. State of Maharashtra v, Sushila Mafatlal Shah, (1988) 4 SCC 490, 501, 507: 1989 SCC
(Cri) 1: AIR 1988 SC 2090:18 EEC 322.
8b. State of Maharashtra v. Sushila Mafatlal Shah, (1988) 4 SCC 490, 501. 1989 SCC (Cri) 1:
AIR 1988 SC 2090:18 EEC 322.
87. Kavita v. State of Maharashh-a (I), (1981) 3 SCC 558, 562, 563; 1981 SCC (Cri) 743: AIR
1981 SC 1641,
 157

complained of. It is not that the period of detention must in all circumstances
extend to the maximum period of 12 months as laid down in S. 13 of the Act.*^
Maximum period of one or two years, as the case may be, mentioned in S. 10
of COFEPOSA Act, 1974 will run from the date of actual detention and not
from the date of the order of detention — If the detenu has served a part of the
period of detention, he will have to serve out the balance .^^
Non-mention of period of detention in the order — Held, not fatal to the
order — Detention is taken to be for the maximum prescribed period in such
a situation — r.Af. Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Immoral Traffic Offenders and Slum Grabbers
Act, 1982, Ss. 3(2), 8,10,11 and 13.
The Act nowhere requires the detaining authority to specify the period
for which the detenu is required to be detained. As the detention without trial
is a serious encroachment on the fundamental right of a citizen, legislature
has taken care to avoid a blanket delegation of power to subordinate,
authorities for an indefinite period by providing in S. 3(2) that the delegation
in the initial instance will not exceed a period of three months and it shall be
specified in the order of delegation. But if the State Government on con-
sideration of the situation finds it necessary, it may again delegate the power
of detention to the aforesaid authorities from time to time but at no time the
delegation shall be for a period of more than three months. The period as
mentioned in S. 3(2) of the Act thus refers to the period of delegation and it
has no relevance at all to the period for which a person may be detained.
Therefore, an order of detention is not rendered illegal merely because it does
not specify the period of detention. The scheme as contained in other Acts
providing for the detention of a person without trial, is similar. In the absence
of any period being specified in the order the detenu is required to be under
detention for the maximum period prescribed under the Act, but it is always
open to the State Government to modify or revoke the order even before the
completion of the maximum period of detention. Thus the impugned order of
detention is not rendered illegal on account of the detaining authoritv''s failure
to specify period of detention in the order.^*^

Subsequent detention under Gujarat Prevention of Anti-Social Activities Act

— Detenu remaining in jail custody as well as in detention for about 3 years
except released on parole for short periods when m prejudicial activities
committed by him — Held, detenu's continued detention illegal— Gujarat
Prevention of Anti-Social Activities Act, 1985, Ss. 3(2) and 15(2).9i

88. Ashok Kumar v. Delhi Admn., (1982) 2 SCC 403:1982 SCC (Cri) 451: AIR 1982 SC 1143:
1982 CriLJ 1191.
89. State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216, 218: 1981 SCC (Cri) 823: AIR
1981 SC 2005:1981 Cri LJ1686: (1981) 22 GLR 1278^
90. T. Devaki v. Govt of T.N., (1990) 2 SCC 456: 1990 SCC (Cri) 348: AIR 1990 SC lOBo: 1990
Cri LJ 1140.
91. Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, (1989) 2 SCC 222: 1989 SCC (Cn) 326:
AIR 1989 SC 2265.
 158

Whether the period specified in detention order is a fixed period — Starting

with the date specified in the detention order and ending with the expiry of
that period or that period is automatically extended by any period of parole
granted to the detenu — Position where detenu is released by High Court
decision which is later reversed or if detenu absconds for some period
and then apprehended — Question referred to a five-Judge Bench of the
Court - COFEPOSA Act, 1974 - Parole.92
Communication of the grounds presupposes the formulation of the
grounds and formulation of the grounds requires and ensures the application
of the mind of the detaining authority to the facts and materials before it, that
is to say, to pertinent and proximate matters in regard to each individual case
and excludes the elements of arbitiariness and automatism. ^3
Application of mind — Subjective satisfaction of detaining authority —
Supply of relevant documents to detaining authority — Bail granted to detenu
with the condition requiring to attend Enforcement Department everyday
varied on detenu's application requiring him to attend the Department (as and
when required' — Detenu's application and order thereon for variation of bail
condition, held, not vital and material document and hence failure to produce
the same before detaining authority before arriving at his subjective satis-
faction had not vitiated the detention order.^'*
Application of mind — In detention order made by Maharashtra
Government detenu stated to be absconding whereas detenu claiming to have
obtained an anticipatory bail from Punjab and Haryana High Court —
Affidavit on behalf of Maharashtia Government reiterating that detenu had
absconded from Bombay and could not be traced — No satisfactory material
available showing detaining authority's knowledge about the grant of
anticipatory bail — Held, detention order not vitiated. ^^
Application of mind — Allegation of non-consideration of material
documents — Application for relaxation of conditions of bail submitted by
detenu and order relaxing the conditions of bail passed by Magish'ate on the
application were not material documents — Hence, non-consideration of the
same by detaining authority would not impair the satisfaction arrived at by
him and would not vitiate the order - COFEPOSA Act, 1974, S. 3(1). ^6
Certainty and precision - Extra verbiage — After recording subjective
satisfaction of the necessity for the detention for the purposes of the Act, mere
use of some exh-a verbiage in the detention order would not render the order

92. Sunil Fulchand Shah v. Union of India, (1989) 3 SCC 236: 1989 SCC (Cri) 552: AIR 1989
SC 1529:1989 Cri LJ1489: (1989)21ECC19L
93. Prakash Chandra Mehta v. Commr. and Secy., Govt of Kerala, 1985 Supp SCC 144,166:
1985 SCC (Cri) 332: AIR 1986 SC 687.
94. Haridas Amarchand Shah v. K.L Verma, (1989) 1 SCC 250, 253:1989 SCC (Cri) 111; AIR
1989 SC 497: 1989 Cn LJ 983: (1989) 19 ECC 196.
95. lusher Govmdji Shah v. Union of India, (1985) 1 SCC 571: 1985 SCC (Cri) 135: AIR
1985 SC 511: L] 793,
96. M. Mohd. Sulthan v. Jt. Secy, to Govt, of India, (1991) 1 SCC 144: 1991 SCC (Cri) 104:
AIR 1990 SC 2222:1990 Cri LJ 2473,
 159

ultra vires and void on ground of lack of certainty and precision as to the
purpose of the detention.
The appellant/petitioner contended that the impugned order of
detention was ultra vires the District Magistrate and void ab initio as there
was clubbing of purposes which displayed lack of certainty and precision on
the part of the detaining authority as to the purpose of detention.
The purpose of the detention is with a view to preventing the appellant
from acting in any manner prejudicial to the maintenance of public order. The
prejudicial activities carried on by the appellant answer the description of a
'bootlegger' as defined in S. 2(b) and therefore he comes within the purview of
sub-section (1) of S. 3 of the Act, by reason of sub-section (4) thereof. The
District Magistiate in passing the impugned order has recorded his subjective
satisfaction with respect to the appellant that with a view to preventing him
from acting in any manner prejudicial to the maintenance of public order, it
was necessary to make an order that he be detained. In the accompanying
grounds for detention this is the basis for the formation of his subjective
satisfaction. The extra words added by way of superscription were wholly
umiecessary. In future it would be better for the detaining authorities acting
under Ss. 3(1) and 3(2) of the Act, to avoid such unnecessary verbiage.^''
Detention order challenged on grounds of non-application of mind and
failure to consider representation under S. 8(b) of COFEPOSA Act and
violation of Art 22(5) — Held, grounds not sustainable — COFEPOSA
Act, 1974, S. 8(b). 98
Held, prevention of smuggling of hashish for which detenu detained under S.
3(1) of COFEPOSA Act, 1974 has nexus with the object sought to be achieved
by the Act. ^9
Held, detention order passed mechanically without proper application of
mind — Detenus directed to be released.
Detaining authority being aware of the earUer arrest of the detenu, newspaper
report about the date of such arrest not relevant for the purposes of
subsequent order of preventive detention — Hence mention of incorrect
inconsequential and detention order not vitiated on ground of failure to place
the newspaper report before the detaining authority-
It was submitted that the detenu's arrest in connection with the Bank
dacoit)' case is shown as August 21,1988 when he was actually arrested much
earlier in comiection with the Bank dacoity as appeared in some local new-
spapers but those newspaper reports are not shown to have been placed
before the detaining authority. On this basis, it was argued that the
satisfaction reached by the detaining authority had been vitiated.

97. Rajendrakumar Nat-varlal Shah v. State of Gujarat, (1988) 3 SCC 153: 1988 SCC (Cri)
575; AIR 1988SCI255.
98. Pushpa Devi M. Jatia v. M.L. Wadhawan, 1986 Supp SCC 535: 1987 SCC (Cri) 56: AIR
1987 SC 1156:1987 Cri Lj 1054.
99. lusher Govindji Shah v. Union of India, (1985) 1 SCC 571:1985 SCC (Cri) 135: AIR
1985 SC 511:1985 Cri LJ 793.
 160

Held:
The newspaper reports indicating that the detenu was already in
custody could at best be relevant only to show the fact that he was already in
detention prior to the making of the detention order. Those reports were not
relevant for the satisfaction needed to justify making of the detention order.
The detaining authority's satisfaction was to be formed on the basis of
material relevant to show the detenu's activities requiring his preventive
detention with a view to prevent him from acting in a prejudicial to the
maintenance of the public order, i""
Contention that persons apprehended on charge of carrying
contiaband narcotic drugs viz. heroin in cars driven by them did not
implicate the detenu in tiansporting and smuggling of drugs —But facts
showing that persons were well known to the detenu and detenu knowing fully
well that the cars would be used for transporting heroin handed over
the keys of the cars to those persons for that purpose — Held, detention order
not vitiated on ground of non-application of mind — Prevention of Illicit
Traffic in Narcotic Drugs and Psychotiopic Substances Act, 1988, S. 3(1). i°^
From the facts it was quote apparent that the so-called factual
misstatements are not mis-statements at all. The High Court rightly held that
the alleged mistakes or infirmities were not so material or serious in nature as
to vitiate the impugned order of detention. It was not possible to say on a
perusal of the grounds that there was no material on which the detaining
authority could have acted. The detention order was not challenged on
ground of inadequacy or insufficiency of the grounds of detention, ^o^
Consequently detention order vitiated by non-application of mind — Gujarat
Prevention of Anti-Social Activities Act, 1985, Ss. 3(2) and 6.
The requisite subjective satisfaction, the formation of which is a
condition precedent to passing of a detention order, will get vitiated if
material or vital facts which would have bearing on the issue and weighed the
satisfaction of the detaining authority one way or the other and influenced his
mind are either withheld or suppressed by the sponsoring authority or
ignored and not considered by the detaining authority before issuing the
detention order.
Though as per S. 6 of the Gujarat PASAA the grounds of detention are
severable and the order of detention shall not be deemed to be invalid or
inoperative if one ground or some of the grounds are invalid, the question is
whether the detaining authority was really aware of the acquittal of the detenu
in the two criminal cases mentioned in the grounds of detention, on the date
of passing of the detention order. In the present case at the time of passing the

100. Meera Rani v. Govt, of T.N., (1989) 4 SCC 418, 428: 1989 SCC (Cri) 732: AIR 1989 SC
2027:1989 Cri LI 2190: (1989) 3 Crimes 173.
101. Sved Farooq Mohamniad v. Union, of India, (1990) 3 St C 537, 542: 1990 SCC (Cri) 500:
AIR 1990 SC 1597:1990 Cri L] 1622.
102. Pushpa Devi M. Jatia v. M.L Wadhawan, (1987) 3 SCC 357; 382, 383:1987 SCC (Cri) 526:
AIR 1987 SC 1748:1987 Cri L] 1888: (1987) 12 ECC 356.
 161

detention order, the vital fact regarding acquittal of the detenu in two criminal
cases had not been brought to the notice of the detaining authority and on the
other hand they were withheld and the detaining authority was given to
understand that the trial of those cases were pending. The non-placing of the
material facts resulted in non-apphcation of mind of the detaining authority
to the said fact which vitiated the requisite subjective satisfaction, rendering
the impugned detention order invalid. ^"^
Held on facts, order under S. 9(2) passed after considering relevant facts and
circumstances — Gujarat Prevention of Anti-Social Activities Act, 1985, S.
9(2).i04

Non-application of mind — Retraction of confessional statements made by

detenu not referred to in grovmds of detention — Held, detention order not
vitiated on ground of non-application of mind if subjective satisfachon
arrived at on the basis of other iiidependent and objective/actors enumerated
in the grounds - COFEPOSA Act, 1974, S. 5-A.
If even ignoring the facts stated in the confession by the detenu the
inference can still be drawn from other independent and objective facts
mentioned in the grounds, then the order of detention caimot be challenged
merely by the rejection of the inference drawn from confession. In the present
case the authorities came to the conclusion that the detenus were engaged in
smuggling relying on several factors viz., the search and seizure in detenu's
room and recovery of gold biscuits, the detenue's failure to explain the
importation of those gold biscuits, the secretive manner in which the gold
biscuits were kept, the connection with various dealers and the statements of
the employees of the dealers that the detenus used to come with gold bars etc.
These materials were in addition to the statements and confessions made by
the detenus under S. 108 of the Customs Act. So even if those statements which
were retiacted as such could not be taken into consideration, there are other
facts independent of the confessional statement as mentioned hereinbefore
which can reasonably lead to the satisfaction that the authorities have come
to. In view of S. 5-A of the COFEPOSA Act there was sufficient material to
sustain other grounds of detention even if the reb-action of confession was not
considered by the authorities. ^"^

There would be vitiation of the detention on grounds of iion-

application of mind if a piece of evidence, which was relevant though not
binding, had not been considered at all. If a piece of evidence which might
reasonably have affected the decision whether or not to pass an order of
detention is excluded from consideration, there would be a failure of
application of mind which, in turn, vitiates the detention. The detaining
authority might very well have come to the same conclusion after considering

103. Dharamdas Shamlal Agarwal v. Police Commr., (1989) 2 SCC 370, 375 to 378:1989 SCC
(Cri) 378: AIR 1989 SC 1282:1989 Cri IJ 1130.
104. Abdul Razak Nannekhan .Pathan v. Police Commr., (1989) 4 SCC 435 545 55: 1989 SCC
(Cri) 679.
105. Prakash Chandra Mehta v. Com.mr. and Secy., Govt, of Kerala, 1985 Supp SCC 144,167-
169:1985 SCC (Cri) 332: AIR 1986 SC 687,
 162

this material; but in the facts of the case the omission to consider the material
assumes materiality. ^^^
Bail applications in pending criminal case and applications to Collector of
Customs made by detenu and his associate in which they had retracted their
earlier confessional statements and recovery of gold and foreign currency not
placed before detaining authority — Held, in absence of relevant material
before the detaining authority, order of detention vitiated by non-apphcation
of m i n d - COFEPOSA Act, 1974, S. 3(1), ^"^
Sita Ram Sonami v. State ofRajasthan, 1985 Raj LR 883, reversed
Non-apphcation of mind - Counter-affidavit stating that when detenu
appeared before authorities for recording his statement under S, 108 of
Customs Act, he was detained only after recording his statement, that suffi-
cient grounds for detention existed, that detaining authority formed his
subjective satisfaction after carefully scrutinising all relevant documents and
facts of the case - Accordingly held, detention order not illegal or bad and
nor vitiated by non-application of mind or non-consideration of relevant
materials.^08
Non-application of mind — Detention order verbatim reproduction of dossier
submitted by SSP to the detaining authority (D.M.) requesting detention of
the petitioner-detenu - Record not showing detaining authority's awareness
of the fact that detenu was already in custody in connection with a criminal
case at the time of passing detention order— Held, detention order vitiated
on ground of non-application of mind to the question whether the order was
necessary despite the detenu being already in custody.i''^
Non-application of mind — Detenu an undertrial prisoner arrested in
connection with the incidents referred to in grounds of detention and was
granted bail when detention order was passed — But detention order having
no mention about these facts — Held, detention order vitiated by non-
application of mind on the part of the detaining authority while passing
detention order - National Security Act, 1980, S, 3{2).^^o
Non-apphcation of muid — Separate detention orders made against three
detenus — All grounds of detention similar excepting reference to cases
registered against each of the detenus showing them as 'dangerous persons'
within the meaning ofS. 2(c) of Gujarat PASAA - Copies of the sheet
showing the papers of the secret inquiry against the three detenus
enclosed along with the grounds furnished to each of the detenus - Thus all

106. Ayya v. State ofU.R, (1989) 1 SCC 374, 385: 1989 SGC (Cri) 153; AIR 1989 SC 364: 1989
Cri LJ 991.
107. Sita Ram Somani v. State of Rajasthan, (1986) 2 SCC 86: 1986 SCC (Cri) 104: AIR 1986
SC 1072:1986 Cri LJ 860.
108. Syed Farooq Mohammad v. Union of India, (1990) 3 SCC 537, 545: 1990 SCC (Cri) 500:
AIR 1990 SC 1597:1990 Cri LJ 1622.
109. Jai Singh v. State of J & K (1985) ] SCC 561; 1985 SCC (Cri) 125: AIR 1985 SC 764: 1985
Cri LJ 527,
110. Anant Sakharam Raut v. State of Maharashtra, (1986) 4 SCC 771: 1986 SCC (Cri) 535-
AIR 1987 SC 137.
 163

the cases noted in the enclosed sheet taken into consideration against each of
the detenus while each detenu concerned only with a few of the cases and the
remaining cases pertaining to the other detenus — Held, orders of detention
vitiated by non-application of mind and extraneous considerations viz.
incidents other than those shown in the grounds of detention and with which
the detenus had no direct or indirect connection or participation. — As a result
of such extraneous considerations detenus also deprived of making effective
and purposeful representations — Gujarat Prevention of Anti-Social Activities
Act, 1985, S, 3(1) - Constihition of India, An. 22(5).i"
Non-application of mind - Supreme-Court's interim order in pending appeal
against High Court's quashing of a previous order of detention, against the
same detenu not considered by detaining authority while making the
impugned subsequent order against him — By the interim order Supreme
Court had permitted the detenu to be at large on condition of his reporting to
the police station daily - Held, non-consideration of the interim order which
constituted a relevant and important material, fatal to the subsequent
detention order on ground of non-application of mind — Plea that the
detaining authority is not supposed to collect court proceedings from
concerned Government departments before making the detention order
strongly deprecated and disallowed — Hence notice under S. 6 and
proceedings under S. 7 of SAFEMA against the detenu fs brother liable to be
quashed — Smugglers and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976, Ss. 2(2) (c), Explanation 2(ii), 6 and 7 - COFEPOSA Act,
1974, S. 3(1)
Absence of consideration of the interim order of the Supreme Court,
which is an important document, amounted to application of mind on the
part of the detaining authorit)^ rendering the detention order invalid. The
order of the Court clearly indicated that the Court felt that there was no need
to detain the present respondent's brother pending the appeal If the detaining
authority had considered this order, one cannot state with definiteness which
way his subjective satisfaction would have reacted. This order could have
persuaded the detaining authority to desist from passing the order of
detention since the Court had allowed freedom of movement; or the detaining
authority could still feel that an order of detention is necessary with reference
to other materials which outweigh the effect of the Court's order. In all these
cases, non-application of mind on a vital and relevant material need not
necessarily lead to the conclusion that application of mind on such materials
would always be in favour of the detenu. Application of mind in such cases is
insisted upon to enable the detaining authority to consider one way or the
other, as to what effect a relevant material could have, on the authority that
decides the detention.

The contention that the detaining authority is not required to collect all
material about any court proceedings etc. from different Ministries or
Departments for the purpose of issuance of a detention order, made on behalf

ni. Mehboob Khan Nawab Khan Pathan v. PoHce Commr, (1989) 3 SCC 568- 1989 SCC
(Cri) 655: AIR 1989SCI803.
 164

of the Government of India to meet a case that there existed an order of

Supreme Court which was a relevant and vital material, betrays an attitude
that lacks grace. If the sponsoring authority and the detaining authority are to
adopt svich cavaUer attitude towards orders of courts and of the Supreme
Court in particular, will have to be quashed.
Thus the order of detention against the respondent's brother was bad.
Since the provisions of SAFEMA cannot be invoked in cases where there is no
valid order of detention, the High Court was justified in quashing the notice
issued under S. 6 and the proceeding initiated under S. 7 of the SAFEMA
against the respondent.^i^
Non-application of mind - When before making detention order detaining
authorit}' had a copy of detenu's application for bail, statement made in
grounds of detention that it was likely that the detenu may be released on
bail in criminal cases against him, would not indicate that detaining authority
proceeding on the assumption that in all cases the detenu had made bail
applications though only in one case such application was made —
Contention regarding non-application of mind on that basis not sustainable.^^^
Non-application of mind — When incident, which was the basis of the
detention, took place in presence of detaining authority (DM) himself,
the detaining authorit)' must form his satisfaction on the basis of his
own knowledge — Where instead, detaining authority formed his
opinion and passed detention order on mere perusal of the materials,
facts and documents placed before him the police, held, the order was
by non-application of mind.
In a case where the detaining authority may not be present at the place
of the incident or the occurrence, he has to form the requisite opinion on the
basis of materials placed before him by the sponsoring authority but if the
detaining authority was himself present and was an eye-witness to the
occurrence on the basis of which detention order was made, it was imperative
for the detaining authority to have honestly and bona fide formed the
requisite opinion in making the order of detention on the basis of his own
knowledge and perception instead of relying more on the version of the
incident as placed before him by the sponsoring authority. In the instant case
the detaining authority though present at the scene of occurrence did not
support the incident as presented to him by the sponsoring authority. In the
cn-cumstances, there was non-application of mind by the detaining authority
in making the impugned order of detention, ii*
Non-application of mind - Where detaining authority relied upon and
referred to confessional statement of detenu (as recorded by Collector of
Customs under S. 108 of Customs Act in this case) in the grounds of

112. Union of India v. Manoharlal Naiang, (1987) 2 SCC 241, 247 252- 1987 SCC (Cri^ 311'
AIR 1987 SC 1472: (1987) 13 IXX: 18, '
113. Jitender I vagi v. Delhi Admn., (1989) 4 SCC 653, 661, 662:1989 SCC (Cri) 787: AIR 1990
SC 487.

'^^- f|)9o''".''' ^ ° ' ' ' ' °^^^' ^^^^"^ " ^ ^ ^ ^^^' ^^^'- ^^^" ^ ^ ^ (^") ^'^^'- ^^^ ^'^^^ SC 1086:
 165

detention, it is desirable that any retraction made should also be placed before
detaining authority at the time of passing detention order — But detention
order would not become invaHd merely on failure to place such retraction
before detainiiig authority - Even assuming that the ground relating to the
confessional statement was inadmissible, order of detention shall be deemed
to have been made separately on each of such ground and inadmissibility of
one ground will not vitiate the entire order of detention — COFEPOSA Act,
1974, S. 5-A."5
Non-application of mind - 'Withholding of vital fact that detenu had been
acquitted in the criminal case referred to in grounds of detention, held,
resulted in non-application of mind of the detaining authority to that fact
vitiating the order of detention. ^^^
Dharamdas Shamlal Aganval v. Police Commissioner, (1989) 2 SCC 370:1989 SCC
(Cn) 370, followed.
No chances of detenu's involvement in prejudicial activities in future —
Detention under COFEPOSA for involvement in smuggling activities -
Goods imported ui name of fictitious firms under exemption scheme and sold
in local market in violation of condition of import licence to manufacture
products with them and export within 6 months thus evading export duty
and making profits — Even though term of the licence since expired,
detention order cannot be quashed on ground of no more chances of detenu's
involvement in smuggling activities."''
Allegation made in grounds of detention different from the statement
made in counter-affidavit by detaining authority — Held, amounted to non-
application of mind which rendered the detention Ulegal.^^^
Detention order passed with due application of mind in regard to grant of
bail to the detenu, activities alleged against the detenu grave and prejudicial
to security of the State, grounds not vague but specific and allegation that the
detenu was arrested on the date of passing the detention order but was
lodged in jail after a month unfounded— Held on facts, detention order
valid."9
Whether a single solitary act attiibuted to the detenu warrants an
inference that he will repeat his activity in future also and that his
detention was necessary to prevent him from doing so in future - Held, an
inference in each case will depend on the nature of the act and the
attendant circumstances - Where detenu tiied to export huge amount of

115. Madan Lai Anand v. Union of India, (1990) 1 SCC 81: 1990 SCC (Cri) 51: AIR 1990 SC
176: (1990) 25 ECC 277:1990 Cri LJ 659: (1990) 45 ELT 204.
116. Ramesh v. State of Gujarat, (1989) 4 SCC 124,128:1989 SCC (Cri) 716: AIR 1989 SC 1881-
1989 Cri LJ 2094.
117. Madan Lai Anand v. Union of India, (1990) 1 SCC 81, 94, 95: 1990 SCC (Cri) 51- AIR
1990 SC 176: (1990) 25 KCC 277:1990 Cri LJ 659: (1990) 45 ELT 204.
118. Yumnam Mangibabu Singh v. State of Manipur, (1982) 3 SCC 18' 1982 SCC (Cri) 627-
AIR 1983 SC 300. '
119. Swaran Singh v. State of J&K, 1989 Supp (1) SCC 88, 90: 1989 SCC (Cri) 191' AIR 1989
SC 188:1989 Cri LJ 792.
 166

Indian currency to a foreign country in a planned and premeditated manner,

held, such an inference was justified.i^o
Grounds of detention of detenu-petitioner and his brother identical -
Approving authority having before it grounds of detention of petitioner's
brother only - Grounds being identical the authority can be to have apphed
its mind also to the grounds of detention on the basis of which the petitioner
was detained.121
Having regard to the fact that the name mentioned in the order was same as-
that signed by detenu when the order was served on him and the averments
made by the detaining authority in his counter-affidavit, held, name
mentioned in the order not wrong. ^^
Several cyclostyled orders passed - Held, would prima facie show non-
application of mind - But this is not a universal rule and would depend on
the facts and circumstances of each case.^^s
Whether detention based on no material - Statements recorded under S.
40(1) of FERA by an officer of Enforcement appointed on ad hoc basis, though
not a 'gazetted officer' within the meaning of S. 40(1), acceptable in evidence
— Such statements can also be treated as statements relatable to S, 39(b) —
Therefore, such statements can form basis of the subjective satisfaction of the
detaining authority.
It was contended on behalf of the detenu that the impugned order of
detention was based on no material on which the detaining authority could
have based the subjective satisfaction under sub-sec. (1) of S. 3 of the
COFEPOSA Act inasmuch as the person who issued summons and recorded
the statements was not a gazetted officer of Enforcement within the meaning
of S. 40 of the FERA as at that time he was continuing as an ad hoc appointee
to that post. It was further contended that even assuming that the statement
recorded by such a person could be treated to be statem.ents falling under S.
39(b) of the Act, it was not possible to say whether the detaining authority
would have based his satisfaction upon such material.
Held:
The detaiiiing authority was entitled to rely upon the statements
recorded by the said officer under S. 40(1) of the FERA. Even if the officer was
not competent to record such statements under S. 40(1) of the FERA, the
statements were clearly relatable to S. 39(&) of the Act. It cannot, therefore, be

120. Sarasvvathi Seshagiri v. State of Kerala, (1982) 2 SCC 310: 1982 SCC (Cri) 423- AIR 1982
SC 1165:1982 CriLJ 125.1.
121. Ram Baoclian Dubey v, State of Maharashtra, (1982) 3 SCC 383:1983 SCC (Cri) 59(2).
122. Pix'ush Kantilal Mehta v. Commr. of Police, 1989 Supp (1) SCC 32'' 326' 1989'SCC (Cri)
438: AIR 1989 SC 491:1989 Cri LJ 956.
123. Shivaji Atmaji Sawant v. State of Maharashtra, (1986) 2 SCC 112- 1986 SCC (L&S) 209'
AIR 1986 SC 617:1986 Lab IC 585: (1986) 1 LLN 700: (1986) 1 SLR 495.
 167

said that there was no material on which the detaining authority could have
based his subjective satisfaction under sub-sec. (1) of S. 3 of the Act.^^^
But detention order would not become invalid merely on failure to place such
retraction before detaining authority — Even assuming that the ground
relating to the confessional statement was inadmissible, order of detention
shall be deemed to have been made separately on each of such ground and
inadmissibility of one ground will not vitiate the entire order of detention —
COFEPOSA Act 1974, S. 5-A - Customs Act, 1962, S. 108. i25
Rehaction - Consideration of- Detenu's letter retracting his confessional
statement — Not received by detaining authority at the time of passing
detention order — Hence non-consideration of detenu's retraction by the
detaining authority caimot be a ground for vitiating the detention order.^^s
Detenu claiming to have communicated the letter of retraction under a
certificate of posting — But only a photostat copy of certificate of posting and
not that of the letter of retraction sent by the detenu along with his
representation to the detaining authority - No letter of reti-action also
received in the files of customs authorities — Held, the presumption that the
letter was posted and in due course reached the addressee, arising from the
certificate of posting is only permissible — On facts held, no letter of
retraction was posted and question of its non-consideration does not arise —
Evidence Act, 1872, Ss. 16 and 114.
The certificate of posting miglU lead to a presumption that a letter
addressed to the concerned authority was posted and in due course reached
the addressee. But, that is only a permissible and not an inevitable
presumption. Neither S. 16 nor S. 114 of the Evidence Act compels the court to
draw a presumption. The presumption may or may not be drawn. On the
facts and circumstances of a case, the court mav refuse to draw the
presumption. On the other hand, the presumption may be drawn initially but
on a consideration of the evidence the court may hold the presumption
rebutted and may arrive at the conclusion that no letter was received by the
addressee or that no letter was ever despatched as claimed. In the circum-
stances of the present case, it is clear that no such letter of retiaction was
posted as claimed by the detenu.^27

When sufficient to snap nexus between the incident and passing of order -
No tixed period - Delay of five months satisfactorily explained - Mala tides
cannot be inferred - Held on facts, detention order not vitiated on ground of
delay - Constitution of India, Art. 22 (5).

124, Pushpa Devi M Jaria v. ML. Wadhawan, (1987) 3 SGC 367, 388, 389:1987 SCC (Cri) 526-
AIR 1987 SC 1748:1987 Cri LJ1888: (1987) 12 ECC 356.
125. Madan Lai Anand v. Union of India, (1990) 1 SCC 81, 91:1990 SCC (Cri) 51- AIR 1990
SC 176: (1990) 25 HCC 277: 1990 Cri LJ 659: (1990) 45 ELT 204.
12(r Raverdy Marc Germain Jules v. State of Maharashtra, (1982) 3 SCC 135- 1982 SCC fCril
638: AIR 1983 SC 311. ' ^ '
127.
L.M.S. Ummu Saleema v. B.B. Gujafal, (1981) 3 SCC 317: 1981 SCC (Cri) 720- AIR 1981
SC 1191:1981 Cri I I 889.
 168

Where an unreasonably long period has elapsed between the date of

the incident and the date of the order of detention, an inference may
legitimately be drawn that there is no nexus between the incident and the
order of detention may be liable to be struck down as invahd. But there can be
no hard and fast rule as to what is the length of time which should be
regarded sufficient to snap the nexus between the incident and the order of
detention.
In the present case the lapse of time between the date of the incident
and the date of the order of detention has been sufficiently explained by the
detaining authority and hence it is not possible to draw the inference of mala
fides merely because the order of detention happened to be made about, five
months after the petitioner was found carrying foreign marked gold, ^^s
If there is potentiahty or likelihood of repetition of prejudicial activities and
the delay is not unreasonable, court should not strike down the detention -
Long lapse of time between date of search (September 17, 1987) and date of
passing order of detention (September 21, 1988) - Absence of nexus
between the incident and the detention order alleged - On facts held, delay
in passing the order reasonably explained - Hence detention not vitiated
on ground of such delay - COFEPOSA Act, 1974, S. 3
It carmot be contended that merely because of the delay in passing the
detention order the necessary nexus got severed and that the grounds had
become stale and illusory. In appreciating such a contention, the court also
has to bear in mind the nature of the prejudicial activities indulged by the
detenu and the likelihood of his repeating the same. It is this potentiahty in
him that has to be taken into consideration and if the detaining authority is
satisfied on the available material then on mere delay as long as it is not
highly unreasonable and undue the court should not normally strike down
the detention on that ground.^29
It is not right to assume that an order of detention has to be
mechanically stiuck down if passed after some delay. It is necessary to con-
sider the circumstances in each individual case to find out whether the delay
has been satisfactorily explained or not. In the present case the ground which
led the Distiict Magistiate to pass the detention order became available in July
and the order was passed only in December, The petitioner was in custody
and there could not be any apprehension of his indulging in illegal activities
requiring his detention until the grant of bail by the criminal court became
imminent. Besides, inquiry was also pending. This aspect has been explained
in the detention order itself as also by the Distiict Magistiate in his affidavit
and it is clear that there has been no undue delay on his part in taking action.
Besides, the distinction between such delay and the delay in complying with
the procedural safeguards of Art. 22(5) is also relevant here especially because
of the background of the petitioner's antecedents taken into account by the

128. Shiv Ratan Makim v. Union of India, (1986) 1 SCC 404,408:1986 SCC (Cri) 74- AIR 1986
SC 610:1986 Cri LJ 813.
129. Abdu Salam v. Union of India, (1990) 3 SCC 15, 21, 22:1990 SCC (Cri) 451- AIR 1990 SC
1446:1990 Cri L] 1502: (1990) 48 ELT 162: (1990) 3 Crimes 82.
 169

detaining authority showiiig his propensity for acts which were likely to
disturb public order, i^o
There had been delay in passing the detention order and the delay had
not been satisfactorily explained. The ground mentioned in the detention
order could not be a proximate cause for a sudden decision to take action
under the National Security Act and this also vitiates the order.^^i
The appellant-detenu was intercepted at Trivandrum Airport and was
arrested and produced before Chief Judicial Magistrate on January 31,1988 on
charge of smuggliiig of gold. The Magistrate remanded him to judicial
custody till February 12, 1988 when he was granted bail on condition, inter
alia, that he would report before the Superintendent (InteUigence) Air
Customs, Trivandrum on every Wednesday until further orders, and that he
would not change his residence without prior permission of court to
"February 25,1988", The Collector of Customs sent the proposal for detention
on May 27, 1988 along with the draft grounds. In the Screening Committee
meeting held on June 21, 1988 the detenu's case was considered to be fit for
detention under the COFEPOSA Act The impugned order of detention was
thereupon passed on June 25,1988 under S. 3(1) (i) of COFEPOSA Act by the
Home Secretary, Government of Kerala with a view to prevent the appellant
from smuggling gold. It was contended that after the event there was
inordinate delay in passing the detention order which showed that there was
no genuine need for detention of the appellant.
Held:
Where the seemingly long time taken for passing the detention order
after the prejudicial act is the result of full and detailed investigation and
consideration of the facts of the case, the ground cannot be held to be remote
and the detention cannot be held to be bad on that ground. In the present case
it was submitted for the State that as a thorough investigation of the case was
required on the part of the customs authorities both for the proceedings under
the Customs Act and for prosecution in the criminal court, the proposal could
not have been hurried through. These facts have not been shown to be unti'ue.
Considering the given explanation of the period in between the interception
on January 30,1988 and the order of detention on June 25,1988 the nexus was
not snapped and the ground was not rendered stale and the order of
detention was not rendered invalid thereby.^32
Delay in passing detention order - Inordinate and unexplained delay, held
on facts, vitiated the detention order.^33
On facts held, the delay satisfactorily explained - Hence detention order not
vitiated on ground of delay iti its passing. i^J

130. Yogendra Murari y. State of U.R, (1988) 4 SCC 559, 563: 1988 SCC (Cri) 992- AIR 1988
SC 1835:1988 BLJR 592.
13 .\nand Pvakash v. State of U.P., (1990) I SCC 291, 298:1990 SCC (Cri) 96: AIR 1990 SC 51b.
132. M. Ahaniedkutt}' v. Union of India, (1990) 2 SCC 1, 6 to 9:1990 SCC (Cri) 258.
133. Anand Prakash v. State of U.P., (1990) 1 SCC 291; 1990 SCC (Cri) 96: AIR 1990 SC 516
134. K. Aruna Kitmari v. Govt, of A.P., (1988) 1 SCC 296,301:1988 SCC (Cri) 116- AIR 1988
SC 227:1988 Cri LJ 411, y ) • i
 170

Detention under COFEPOSA Act preceded by arrest under Foreign Exchange

Regulation Act some eight months earlier - Delay in passing of detention
order not occasioned by any laxity but result of full and detailed
consideration of facts and circumstances of the case by various deparhnents
involved - Detention order passed after full application of mind - Held,
detention valid.^^5
Delay in passmg detention order and arresting the detenu - When
vitiates detention - Depends upon facts and circumstances - Absence of
convincing explanation - Throws doubt on subjective satisfaction of
detaining authority.
Some gold biscuits and gold ingots were seized from the residence of
the detenu on November 30, 1986 and December 9, 1986. An order of
detention was passed under S. 3(l)(iii) and (iv) of the COFEPOSA Act against
the detenu on October 7,1987 but the detenu was arrested only on January 1,
1988. Counter was filed on behalf of the State before the Court stating that the
investigating officer had to question a number of persons and to conduct
extensive search of various premises in different places in connection with the
information gathered during interrogation and the Superiatendent of Central
Excise issued summons to brothers of the detenu for appearance on March 3
and 10,1987 but one of the brothers was absconding and that on February 10,
1987 the statement of another person referred to in the statement of the
detenu was recorded and that on May 18, 1987 show-cause notices were
issued to persons connected with the case and immediately after completion
of the investigation the customs authorities sponsored the proposal for
detention of the detenu by their letter dated August 26, 1987 and that the
proposal was screened by the Screening Committee on September 11, 1987
and thereafter the detention order was passed on October 7,1987. As regards
the delay in securing the detenu by arrest it was explained that the detention
order was forwarded to the concerned S.P. for its execution by letter dated
October 9,1987 but that the police executed the order on January 18,1988. No
supporting affidavit had been filed by the S.P. explaining the delay in
securing the arrest of the detenu.
Held:
Leaving apart the question of delay in passing the order of detention
from the date of the seizure of the gold, the fact remains that the detaining
authority has failed to explain the long delay in securing the arrest of the
detenu after three months from the date of the passing of the detention order
and this non-explanation throws a considerable doubt on the genuineness of
the subjective satisfaction of the detaining authority- vitiating the validity of
the order of detention.

The question whether the prejudicial activities of a person necessitating

to pass an order of detention is proximate to the time when the order is made
or the live-link between the prejudicial activities and the purpose of detention
IS snapped depends on the facts and circumstances of each case. No hard and

135.
mtmToi Lj S r °' ^"'^''' "^^'^' ^^^ ^^''- "^' ^^^ ^'^"^ ^^^^ ^'^ ^^^2 sc
 171

fast rule can be precisely formulated that would be applicable under all
circumstances and no exhaustive guidelines can be laid down in that behalf. It
follows that the test of proximity is not a rigid or mechanical test by merely
'counting number of months between the offending acts and the order of
detention. However, when there is undue and long delay between the
prejudicial activities and the passing of detention order, the court has to
scrutinise whether the detaining authority has satisfactorily examined such a
delay and afforded a tenable and reasonable explanation as to why such a
delay has occasioned, when called upon to answer and further the court has
to investigate whether the casual connection has been broken in the
circumstances of each case.
Similarly, when there is unsatisfactory and unexplained delay between
the date of order of detention and the date of securing the arrest of the detenu,
such a delay would throw considerable doubt on the genuineness of the sub-
jective satisfaction of the detaining authority leading to a legitimate inference
that the detaining authority was not really and genuinely satisfied as regards
the necessity for detaining the detenu with a view to preventing him from
acting in a prejudicial marmer. T.A. Abdul Rahman v. State of Kerala, (1989) 4
s e c 741, 748, 749:1990 SCC (Cri) 76: AIR 1990 SC 225.
Delay in passing, after arrest — Held, would not vitiate the detention if
adequately explained by the detaining authority to the Court — But detenu
cannot demand such an explanation from the authority — Constitution of
India, Art. 22(5).
Delay ipso facto in passing an order of detention after an incident is not
fatal to the detention of a person, for, in certain cases delay may be
unavoidable and reasonable. What is required by law is that the delay must
be satisfactorily examined by the detaining authority, who is under an
obligation to satisfy the court as to the causes of the delay to show that there
was no infraction of Art. 22(5) of the Constitution. The authority is, however,
in no legal liabiUty to tell or satisfy the detenu as to the causes of the delay.
In the present case the delay has been satisfactorily explained by the
authority in its aftidavit and it has not vitiated the detention. ^36
Having regard to the time taken in tianslating the documents into Hindi
and Gurumukhi, held, there were valid and sufficient reasons for the delay -
COFEPOSA Act, 1974, S. 3(3). "7
Huge quantit)' of heroiii recovered on July 19 - Persons apprehended
examined and their statements recorded on July 20 - Thereafter
samples of the conti-aband drugs taken from each packet sent for chemical
examination - Test reports received by customs deparbnent on September
29, October 13 and November 15 and then screened by customs officials -
After considering all the materials, detention order passed on December 20 -

136.
"^'rt*!!!,?^!',''!,^^''^' ^- ^^''^'^ "^^ Maharashtra, (1981) 4 SCC 647, 655: 1982 SCC (Cri)
16: AIR 1981 SC 8.
137. Sanjay Kumar Aggarwal v. Ur^ion of India, (1990) 3 SCC 3095 317 318-1990 SCC ICn)
473: AIR 1990 SC 1202:1990 Cri LJ1238. - ^lo. iwubCC (Cn)
 172

In the circumstances held, the delay of five months in making the order of
detention did not render the detention illegal and bad - Detention order had
been made with promptitude considering the relevant and vital facts
proximate to the passing of the order- Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988, S. 3(1).^^^
The appellant was carrying on the illicit business of importing Indian-
made foreign hquor into Godhra in the State of Gujarat where there is total
prohibition. A Godhra-bound truck carrying such Uquor was intercepted on
December 29/30, 1986 and the driver and cleaner of the ti'uck made
statements on January 4, 1986 impUcating the appellant as the main person.
The appellant thereupon absconded and moved for anticipatory bail on
January 21, 1987 but no orders were passed as the police made a statement
that there was no proposal at that stage to arrest him. On February 2,1987 the
appellant was arrested but later on released on bail. He was prosecuted for
various offences under the Bombay Prohibition Act. After a lapse of five
months i.e. on May 28,1987 the D.M., Godhra passed the impugned order of
detention and the grounds therefor were served on the appellant on May 30
when he was taken into custody. The immediate and proximate cause for the
detention was the aforesaid transportation of foreign liquor on December
29/30, 1986. Incidentally the grounds furnished particulars of two other
crimiiial cases viz. one relating to 142 bottles of foreign liquor recovered from
his residence on July 21, 1982 which had ended in his acquittal, the
prosecution witnesses having turned hostile and the other relating to recovery
and seizure of 24 bottles of foreign liquor from his house on May 30, 1986
which case was still pending. There was also a recital of the fact that he was
continuing his business surreptitiously and he could not be caught easily and
therefore, unless the order of detention was made he would not stop his illicit
business; hence the necessity to detain him under S. 3(2) of the Act. Besides it
was further stated: "In order to safeguard the health of the people of Gujarat,
for public peace and in the iiiterest of the nation, with a view to stop such
anti-national activities ... for the purpose of public order and public peace and
in the interest of the State...". The appellant made a representation against his
detention to the State Government and the Advisory Board on June 8, 1987
which was rejected on June 12,1987.
The appellant/petitioner contended that the inordinate unexplamed
delay of five months in making the impugned order of detention by itself was
sufficient to vitiate the order.
Dismissing the appeal and the writ petition of the detenu:
Held:

A distinction must be drawn between the delay in making of an order

of detention under a law relating to preventive detention like the COFEPOSA
Act and the delay in complying with the procedural safeguards of Art. 22(5).
The rule as to unexplained delay in taking action is not inflexible. In cases of

Syed Farooq Mohammad v, Union of India, fl990) 3 SCC 537, 543-1990 SCC (Cri) SDO-
AIR 1990 SC1597:1990 CriLJ 1622. ' ^ ^ l^npuu.
 173

mere delay in making of an order of detention under a law like the

GOFEPOSA Act enacted for the purpose of dealing effectively with persons
engaged in smuggling and foreign exchange racketeering who, owing to their
large resources and influence, have been posing a serious threat to the
economy and thereby to the security of the nation, the courts should not
merely on account of delay in making of an order of detention assume that
such delay, if not satisfactorily explained, must necessarily give rise to an
iiiference that there was no sufficient material for the subjective satisfaction of
the detaining authority or that such subjective satisfaction was not genuinely
reached. Taking of such a view would not be warranted unless the court finds
that the grounds are 'stale' or illusory or that there is no real nexus between
the grounds and the impugned order of detention.
In the present case even though there was no explanation for the delay
between February 2 and May 28, 1987 it could not give rise to a legitimate
inference that the subjective satisfaction arrived at by the District Magistrate
was not genuine or that the grounds were stale or illusory or that there was
no rational correction 'between the grounds and the impugned order of
detention.13^
Delay of 11 months in passing — Explanation that investigation took five
months to complete and thereafter time taken in processing the records for
issuing show-cause notice as Customs Act mandatorily required issuance of
such notice within 6 months from the date of detection of the case — Held,
explanation not satisfactory — Delay vitiated the order —CQFEPOSA Act,
1974, S. 3
It was not incumbent on the authorities to wait till the issue of the
show-cause notice. The need to issue a show-cause notice within 6 months has
nothing to do with the processing of the detention papers. Therefore; the
explanation is far from satisfactory, ^^o
What amounts to unreasonable delay depends on facts and circumstances of
each case — Where reason for the delay is stated to be abscondence of detenu,
mere failure on the part of the authorities to take action under S. 7 of National
Security Act by itself not sufficient to vitiate the order— But that the police
force remained extiemely busy in tackling the serious law and order problem
then prevailing in the city is not a proper explanation for delay in arresting
the detenu — Failure to properly explain the inordinate delay, held on facts,
rendered the order bad - National Security Act, 1980, Ss. 3(2) and 7.
An order of detention was passed under S. 3(2) of the National Security
Act on April 15,1988 against the petitioner. However, the petitioner could be
arrested only on October 2,1988. By an affidavit tiled on behalf of the Dishict
Magistrate, being the detaining authorit)', it was explained that pursuant to
passing of the detention order, the authorities had raided the house of the
petitioner to serve the order several times viz. one raid on May 12, 1988

139. Rajendrakumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC 153: 1988 SCC (Cri)
575; AIR 1988 SC 1255.
140. Issac Babu v. Union of India, (1990) 4 SCC 135; 1990 SCC (Cri) 564.
 174

followed by eight other raids up to the end of May 1988 and again on
September 23, 25 and 29, 1988, but the petitioner was not available and the
order could not be served before October 2,1988, It was stated that during the
period from May to September, 1988 great communal tension was prevailing
in the city, a large number of people were arrested on account thereof, the
entire police force of the city was extremely busy in maintairung law and
order, but the petitioner was all along absconding in order to avoid the
service of the order. In the writ petition under Art. 32, the detention order was
challenged inter aha on ground of inordinate delay in arresting the detenu
pursuant to the detention order vitiated the detention. Accepting the first
contention and consequently allowing the writ petition and quashing the
order of detention.
Held:
Preventive detention is a serious inroad into the freedom of
individuals, Reasoiis, purposes and the maimer of such detention must,
therefore, be subject to closest scrutiny and examination by the courts. There
must be conduct relevant to the formation of the satis-faction having
reasonable nexus with the action of the petitioner which are prejudicial to the
maintenance of pubUc order and existence of relevant material in this regard
is subject to judicial review. Actions based' on subjective satisfaction are
objective indication of the existence of the subjective satisfaction. Such action
should be with speed commensurate with the situation, though it is not the
law that whenever there is some delay in arresting the subjective satisfaction
of the detaining authority must be held to be not genuine or colourable.
Whether there has been unreasonable delay, depends upon the facts and the
circumstances of a particular situation.
If in a situation the person concerned is not available or cannot be
served then the mere fact that the action under S. 7 of the Act had not been
taken, would not be a ground to say that the detention order was bad. Failure
to take action even if there was no scope for action under S. 7 of the Act,
would not be decisive or determinative of the question whether there was
undue delay in serving the order of detention. In this case even though no
warrant under S. 7 had been issued in respect of the property or person of the.
petitioner, it camnot be said that the respondent was riot justified in raising the
plea that the petitioner was absconding. The petitioner has no properly and so
no order under S. 7 could be made.
In this case, however, there was no explanation as.to why no attempts
had been made to contact or arrest the petitioner during the periods between
April 15 to May 12,1988 and again between September 29 to October 2,1988.
That the 'entire police force' was extremely busy in controlling the situation is
not a proper explanation. If the law and order was threatened and prejudiced,
it was not the conduct of the petitioner but because of "inadequacyS or
'inability' of the police force of the cit}' to control the situation. To shift the
blame for public order situation and raise the bogey of the conduct of the
petitioner would not be proof of genuine or real belief about the conduct of
the petitioner but only raising a red herring. Thus, by the conduct of the
respondent authorities, there was undue delav not commensurate with the
 175

facts situation in this case. There was no reasonable or acceptable explanation

for the delay. In a situation of communal tension prompt action is imperative.
It is, I therefore, not possible for the Court to be I satisfied that the District
Magistrate had applied his mind and arrived at the subjective satisfaction that
there was real and genuine apprehension that the petitioner was Hkely to act
in any manner prejudicial to public order and that it was necessary to detain
the petitioner to "prevent" him from wrongdoing. The condition precedent
not being present, the detention order must be quashed and set aside on this
ground, i^i
Detenu himself absconding and trying to evade the arrest — In the circum-
stances held, the delay explained and the link between the grounds of
detention and the avowed purpose of detention not snapped.^^^
When detenu was absconding and could be arrested only when he
surrendered after initiating proceedings under Ss, 82 and 83, CrPC, 1973,
held, challenge to the detention order on ground of delay in arrest not
sustainable - National Security Act, 1980, S, 7(2).i43
On the mere delay in arresting the detenu pursuant to the order of
detention the subjective satisfaction of the detaining authority cannot be held
to be not genuine. Each case depends on its own facts and circumstances. The
court has to see whether the delay is explained reasonably. In the instant case,
the delay, if at all, is only about 21/2 months and the explanation offered for
the delay is reasonable. Abdu Salam v. Union of India, (1990) 3 SCC 15, 22, 23:
1990 SCC (Cri) 451: AIR 1990 SC 1446: 1990 Cri LJ 1502: (1990) 48 ELT 162:
(1990) 3 Crimes 82.
Delay in execution of detention order — When caused due to abscondance of
the detenu, held, order not vitiated.
The order of detention was passed on June 259 1988 under S. 3(l)(i) of
COFEPOSA Act, Grounds of detention were also served on the appellant. On
June 27, 1988 the Home Secretar)' wrote to the Superintendent of Police
requesting him to arrange for the immediate execution of the detention order
and on July 19,1988 a teleprinter reminder was sent to the Superintendent, of
Police. But on July 27,1988 the Superintendent of Police, wrote back that the
detenu was absconding and his 'present' whereabouts were not known and it
was only on 25 1988 that the Superintendent of Police by a wireless message
intimated the Home Secretary that the detention order had been served on the
detenu on that date. It was contended that there was inordinate and
unexplained delay of 38 days in execution of the detention order.
Held:
Where after passing of the detention order the passage of time is
caused by the detenu himself by absconding, the satisfaction of the detaining

141. Shqfiq Ahmad v. D.M. (1989) 4 SCC 556: 1989 SCC (Cri) 774: AIR 1990 SC 200.
142 Sved Farooq Mohammad v. Union of India, (1990) 3 SCC 537, 546, 547:199D SCC (Cri)
500: AIR 1990 SC 1597:1990 Cri LJ 1622.
Sharad Kumar Tyagi v. State of U.P., (1989) 1 SCC 736, 747: 1989 SCC (Cri) 294: AIR
1989 SC 764: (1989)1 SCR 257.
 176

authority cannot be doubted and the detention cannot be held to be bad on

ground of delay in execution of the Order. In the facts and circumstances of
the present case there was no inordinate arid unexplained delay of 38 days
between the detention order and its execution so as to snap the nexus between
the two or to render the grounds stale or to indicate that the detaining
authority was not satisfied as to the genuine need for detention of the detenu.
However, the circumstances in the present case seem to indicate a certain
degree of lack of coordination between the detaining authorities and those
entrusted with the execution of the detention order. The State should ensure
that such delays do not occur as, apart from giving the detenu a ground for
attacking the detention order, such delay really tends to frustrate and defeat
the very purpose of preventive detention.^**
The role of the petitioner and that of the co-accused persons were
identical and the reasonable apprehension as to their future conduct must
depend on the relevant facts and circumstances which differ from individual
to individual It would have been wrong on the part of the detaining authority
to take a uniform decision in this regard only on the ground that the persons
concenied are all joined together as accused in a criminal case.^'*^
Where the detention orders of co-detenus already quashed by High
Court — Held, not sustainable when detention of the detenu based on
entirely distinct and separate materials including his own confessional
statements.^**^
The law of preventive detention is the same for the police personnel as
well as for the public. A different standard cannot be applied in respect of acts
individually committed by any police officer. The subjective satisfaction of the
detaining authority with respect to the persons sought to be detained should
be based only on the nature of the activities disclosed by the grounds of
detention. The grounds of detention must have nexus with the purpose for
which the detention is made. ^47
(h) Pendency of and liability to criminal prosecution
Pendency of criminal proceedings against detenu — Not a bar to passing
detention order on the basis of proper subjective satisfaction of detaining
authority.
Preventive detention is an anticipatory measure and does not relate to
an offence while the criminal proceedings are to punish a person for an
offence committed by him. They are not parallel proceedings. In the
circumstances the pendency of a criminal prosecution is no bar to an order of
preventive detenhon, nor is an order of preventive detention a bar to
prosecution. It is for the detaining authority to have the subjective satisfaction

144 M Ahamedkutty v. Union of India, (1990) 2 SCC1,9 to 12; 1990 SCC (Cri) 258.
145. Yogendra Murari v. State of U.P., (1988) 4 SCC 559, 564; 1988 SCC (Cri) 992; AIR 1988
SCC 1835; 1988 BLJR 592.
146. Azra Fatima (Smt) v. Union of India, (1991) 1 SCC 76; 1991 SCC (Cri) 641- MR 1990
SC 1763:1990 CriLJ 1731.
147. Angoori Devi v. Union of India, (1989) 1 SCC 385, 389; 1989 SCC (Cri) 164- AIR 1989
SC 371; 1989 Cri L| 950.
 177

whether m such a case there are sufficient materials to place the person under
preventive detention in order to prevent him from acting in a manner
prejudicial to public order or the like in future, i^s
The jurisdiction to make orders for preventive detention is different
from that of judicial tiial in course for offences and of judicial orders for
prevention of offences. Even unsuccessful judicial trial or proceeding would
not operate as a bar to a detention order or render it mala fide. A fortiori
therefore the mere fact that a criminal prosecution can be instituted cannot
operate as a bar against the making of an order of detention. If an order of
detention is made only in order to bypass a criminal prosecution which may
be irksome because of the inconvenience of proving guilt in a court of law, it
would certainly be an abuse of the power of preventive detention and the
order of detention would be bad. But if the object of making the order of
detention is to prevent the commission in future of activities injurious to the
community, it would be a perfectly legitimate exercise of power to make the
order of detention. The court would have to consider all the facts and
circumstances of the case in order to.determine on which side of the line the
order of detention falls.
In the present case, the petitioner detenu was caught in the act of
smuggling gold and the circumstances in which the gold was being smuggled
as also the facts set out in the written statement of the petitioner clearly
indicate that the petitioner was engaged in the activity of smuggling gold.
Therefore, the order of detention cannot be said to have been passed with a
view to subvert, supplement or substitute the criminal law of the land. The
order of detention was passed with a view to preventing the petitioner from
continuing the activity of smuggling and it was therefore a valid order of
detention, Shiv Ratan Makim v. Union of India, (1986) 1 SCC 404, 408, 409:
1986 SCC (Cri) 74: AIR 1986 SC 610:1986 Cri LJ 813.
Liability to criminal prosecution — Possibility of criminal prosecution or
absence of it — Though relevant factor but mere non-consideration thereof
would not vitiate the detention order — Detention may instead be based on
past conduct and antecedent history of the detenu — Detaining authority's
satisfaction about reasonable probability or suspicion of commission of the
prejudicial acts by the detenu sufficient justification for the detention —
Moreover, a grievous crime against commuruty itself justifies preventive
detention - National Security Act, 1980, S.3(2).
Possibility of launching a criminal prosecution or absence of it is not an
absolute bar to an order of preventive detention. Failure of the detaining
authority to consider the possibility of criminal prosecution being launched
before ordering preventive detention may in the circumstances of a case lead
to the conclusion that the detaining authority had not appUed its mind to the
important question as to whether it was necessary to make an order of
preventive detention but it cannot invariably render the order of detention

148. Alijan Mian v. Distt. Magistrate, (1983) 4 SCC 301, 305; 1983 SCC (Cri) 840- AIR 1983
~ SC 1130:1983 Cri LJ 1649.
 178

bad on ground of non-application of mind. In this regard the relevant facts

and circumstances of the case including the time and place concerned have to
be borne in mind.
The anticipated behaviour of a person based on his past conduct in the
light of surrounding circumstances may provide sufficient ground for
detention. But such conduct should be reasonably proximate and should have
a rational connection with the conclusion that the detention of person is
necessary. The question of relation of the activities to the detention order
must be carefully considered. The grounds supplied operate as an objective
test for determining the question whether a reasonably exists between
grounds of detention and the detention order or whether some infirmities had
crept in. A conjoiiied reading of the detention order and the grounds of
detention is, therefore, necessary.
Executive can take recourse to its powers of preventive detention in
those cases where the executive is genuinely satisfied that no prosecution can
possibly succeed against the detenu because he has influence over witnesses
and against him no one is prepared to depose. However, pusillanimity on the
part of the executive has to be deprecated and pusillanimous orders avoided.
In the present case prosecution might not be possible to bring home the
offender to book as witnesses might not come forward to depose against the
detenu out of fear or it might not be possible to collect all necessary evidence
without unreasonable delay and expenditure to prove the guilt of the
offender beyond reasonable doubt. Further from the nature and contents of
the detenu's speeches stated in the grounds of detention there was sufficient
justification for the inference that he would repeat such speeches if not
preventively detained.
Moreover, when grievous crime against the community was
committed it would surely be subject to the penal law and stiingent sentences,
but at the same time it could be considered unsafe to allow him the
opportunities to repeat prejudicial acts during the period the penal process
was likely to take.
Considering the relevant facts and circumstances including the time
and place, the contents of the detention order and the allegations in the
grounds of detention in this case, it is clear that non-registiation of any
criminal case could not be said to have shown non-application of mind or
absence of subjective satisfaction on the part of the detaining authority. ^^^
It is necessary for the detaining authority to resist the temptation to
prefer and substitute, as a matter of course, the easy expedience of a
preventive detention to the more cumbersome one of punitive detention, i^o
A prosecution or the absence of it is not an absolute bar to an order of
preventive detention. What is required is that the detaining authority is to

149. State t.f Punjab v. Sukhpal Smgh, (1990) 1 5CC 35, 44 to 46:1990 SCC (Cri) V AIR 1990
SC231:1990CnLJ584
150. Ay}'a v. State of U.P., (1989) 1 SCC 374, 383: 1989 SCC (Cri) 153: AIR 1989 SC 364-
1989 Cri 1,1 991.
 179

satisfy the Court that it had in mind the question whether prosecution of the
offender was possible and sufficient in the circumstances of the case. The
normal law is that when an isolated offence or isolated offences is or are com-
mitted, the offender is to be prosecuted. Buts if there be a law of preventive
detention empowering the authority to detain a particular offender in order to
disable him to repeat his offences, it can do so, but it will be obligatory on the
part of the detaining authority to formally comply with the provisions of Art.
22(5). In case of professional criminal or international smuggling, preventive
detention instead of criminal prosecution would be justified.i^i
Possibility of detention under criminal law - Held, not an absolute bar to an
order of preventive detention. ^52
A clear distinction has to be drawn between preventive detention in
which anticipatory and precautionary action is taken to prevent the
recurrence of apprehended events, and punitive detention under which the
action is taken after the event has already happened. It is true that the
ordinary criminal process of trial is not to be circumvented and short-
circuited by apparently handy and easier resort to preventive detention. But
the possibility of launching a criminal prosecution cannot be said to be an
absolute bar to an order of preventive detention.^^^
Absence of express views in that regard in counter-affidavit filed by the
detaining authority immaterial where the satisfaction of the authority in this
regard is clearly inferable from the counter-affidavit read as a whole.i^'*
(i) Detenu already in jail
When an incident was such that it created communal tension and the
authorities were apprehensive of the breaking of a communal riot, such
incident in itself may be sufficient and may afford justification for the
satisfaction of the detaining authority for the detention of the detenu in order
to prevent him from indulging in such activity prejudicial to public order
even though, there are no antecedent acts of similar nature or past history of
commission of crime by the detenu.^^^
Detaining authority being aware about these facts, concluding that under the
normal law detenu may be granted bail and in view of his antecedents
regarding drug trafficking, he may be in a position to continue to pursue his
nefarious activities — In the circumstances, order of detention cannot be held
to be illegal merely because it was passed while detenu was already in jail -

151. Hemlata Kantilal Shah v. State of Maharashtra, (1981) 4 SCC 647, 656-658: 1982-SCC
(Cri) 16: AIR 198 ISC 8.
152. Saraswathi Seshagiri v. State of Kerala, (1982) 2 SCC 310: 1982 SCC (Cri) 423: AIR
1982 SC 1165:1982 Cri L] 1251.
153. State of Punjab v, Sukhpal Singh, (1990) 1 SCC 35, 42, 43: 1990 SCC (Cri) 1- AIR 1990
SC 231:1990 Cri LJ 584.
154. L.M.S, Ummu Saleema v. B.B. Gujaral, (1981) 3 SCC 317:1981 SCC (Cri) 720- AIR 1981
SC 1191: (1981) 3 SCR 647:1981 Cri LJ 889.
155. Simla Rani v. Union of India, 4 SCC 509, 513:1989 SCC (Cri) 756: (1989) 3 Crimes 578.
 180

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Act, 1988, S. 3 (1). 156
The appellants were arrested on charge of commission of offences
under the Narcotic Drugs and Psychotropic Substances Act, 1985 and were
produced before the Chief Judicial Magistrate next day who remanded them
to police custody and thereafter to judicial custody till October 13, 1988,
Meanwhile the appellants submitted bail appUcations but the same were
rejected. On October 11, 1988 the Joint Secretary to the Government of India,
Ministry of Finance passed orders under S. 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 against the
appellants stating that with a view to preventing them from engaging in the
transportation and abetting m the export inter-State of psychotropic
substances it was necessary to detain and keep them in custody. The order of
detention was served on the appellants on October 13,1988 while they were
in custody. The appellants were also served with the grounds of detention
inter alia mentioning the fact about the appellants remand to judicial custody
till October 13, 1988. The writ petitions under Art. 226 challenging the
detention were dismissed by the High Court. It was urged before the
Supreme Court that since the appellants were in custody on the date of
passing of the detention order, there was no apprehension that the appellants
would be engaging in any prejudicial activity and the order for detention of
the appellants under S. 3(1) of the Act could not be validly passed. Allowing
the appeals
Held:
An order for detention can be validly passed against a person in
custody and for that purpose it is necessary that the grounds of detention
must show that (i) the detaining authority was aware of the fact that the
detenu was already in detention; and (ii) there were compelling reasons
justifying such detention despite the fact that the detenu was already in
detention. The expression "compelling reasons" in the context of making an
order for detention of a person already in custody implies that there must be
cogent material before the detaining authority on the basis of which it may be
satisfied that (a) the detenu is likely to be released from custody in the near
future and (b) taking into account the nature of the antecedent activities of the
detenu, it is likely that after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him in order to prevent him
from engaging m such activities.
In the present case there was no material in the grounds of detention
showing that the detaining authority apprehended that the further remand
would not be granted by the Magistrate on October 13, 1988, and the
appellants would be released from custody on that day. On the other hand the
bail applications moved by the appellants had been rejected by the Sessions
Judge a few days prior to the passing of the order of detention. The grounds

156. Azra Fatima (Smt) v. Union of India, (1991) 1 SCC 76: 1991 SCC (Cri) 641: AIR 1990 SC
1763:1990 CriLJ 1731.
 181

of detention disclose that the appellants were engaged in activities which are
offences punishable with imprisonment under the Narcotic Drugs and
Psychotropic Substances Act, 1985. It caimot, therefore, be said that there was
a reasonable prospect of the appellants not being further remanded to
custody on October 13,1988 and their being released from custody at the time
when the order for preventive detention was passed on October 11, 1988. In
the circumstances, the order for detention of the appellants cannot be
sustained and must be set aside and the appellants should be released
forthwith, is^

It is imperative that if the detenu was akeady in jail the grounds of

detention are to show the awareness of that fact on the part of the detaining
authority, otherwise there would be non-application of mind and detention
order vitiated thereby.^^^
If the only ground or justification for the detention is the apprehension
that the detenu was likely to be enlarged on bail, the detention might be
rendered infirm on the ground that the detention was solely for the purpose
of rendering nugatory the order of bail, the grant of which the detaining
authority had then considered quite imminent.
But, where, as here, there are otlier grounds, the reference by the
detaining authority to the prospects of grant of bail could be no more than an
emphasis on the imminence of the recurrence of the offensive activities of the
detenu. Even a single instance of activity tending to harm "public order"
might, in the circumstances of its commission, reasonably supply justification
for the satisfaction as to a legitimate apprehension of a further repetition of
similar activity to the detriment of "public order". ^^^
On the basis of facts that remand to judicial custody was for a limited period
and that co-detenus had moved bail applications, detaining authority stating
in the grounds that there was likelihood of filing of bail application by the
detenu also and of his consequent release — In view of the facts and
circumstances and statements recorded and disclosed showing abetting and
smuggling of goods by detenu, detaining authority also statmg in the grounds
that unless preveiited, detenu would continue to do so in future on being
released on bail — Held, detaining authority was aware that detenu was
already in jail and on his release on bail he would again indulge in prejudicial
activities - Hence detention valid - COFEPOSA Act, 1974, S. 3(1).
Having regard to the material relied upon by the detaining authorit}' it
cannot be said that there was no awareness in the mind of the detaining
authority about the detenu being in custody and that if he is released on bail
he is likely to indulge in the pre-judicial activities. Therefore, the detention
was not ordered on the mere ground that he is likely to be released on bail but
on the ground that the detaining authority was satisfied that the detenu was

157. Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746, 754, 755; 1990
s e c (Cri) 249: AIR 1990 SC 1196:1990 Cri L] 1232: (1990) 28 ECC12,
158. M. Ahamedkutt}.' v. Union of India, (1990) 2 SCC 1,13:1990 SCC (Cri) 258.
159. Ayya v. State of U.P., (1989) 1 SCC 374, 383:1989 SCC (Cri) 153: AIR 1989 SC 364-1989
Cri LJ 991.
 182

likely to indulge in the same activities if released on bail. The contention that
the bail application could be opposed if moved or if enlarged the same could
be questioned in a higher court and on that ground the detention order
should be held to be invahd cannot be sustained in this case. It is not the law
that no order of detention can vaHdly be passed against a person in custody
under any circumstances. Therefore, the facts and circumstances of each case
have to be taken into consideration in the context of considering the order of
detention passed iii the case of a detenu who is already in jail.^^o
An order of detention was passed under S. 8 of the National Security
Act against the detenu on May 3,1989. The facts referred to in the grounds of
detention were that on the basis of a complaint of theft of electric wires
lodged on February 15,1989 an FIR was registered against three persons,']',
'S' and'M'. From the house of']' some of the stolen material was recovered
and on his information about the purchaser of such material, the factory of the
detenu was raided. There 'M', stated to be servant of tlie detenu, was found to
be in possession of 20 kg of melted electric wire and that was seized under a
recovery memo. 'M' made a confession statement which was recorded in the
recovery memo itself It was recorded in the recovery memo that 'M' had
stated that he had purchased the aluminium electric wires from 'T' and 'S',
that he had melted and sold the to the detenu and that the said wires could
not be identified after being melted and were used for making utensils
thereafter. The detenu was on May 2, 1989. On the same date the bail
application was moved on his behalf. The detention order stated that the
detenu was likely to be bailed out and was every likelihood that after coming
out of jail he will again indulge in his criminal activities. On this basis the
order stated that the detaining authority was satisfied that the detenu had
been engaged in criminal activities injurious to the maintenance of essential
services and supplies required for public life and that with a view to prevent
him from indulging in such unlawful activities it had become necessary to
keep him under detention.
Held:
The detaining authority though can take into account the possibility of
the detenu being released on bail in the criminal proceedings, has to be
satisfied, having regard to his past activities or by reason of the credible
information or cogent reasons, that if he is enlarged on bail, he would indulge
in such criminal activities. In the present case except the bald statement that
the detenu would repeat his criminal activities after coming out of jail, there is
no credible information or material or cogent reasons apparent on the record
to warrant an inference that the detenu if enlarged on bail would indulge in
such criminal activities which are prejudicial to the maintenance of essential
services. There must be something more than what is found in the record here
to come to the conclusion that this is not a case of solitary incident but a
of the detenu indulgiiig in business of receiving stolen electric wires. On the

160. Sanjay Kumar Aggarwal v. Union of India, (1990) 3 SCC 309: 1990 SCC (Cri) 473: AIR
1990 SC 1202:1990 Cri LJ1238.
 183

other hand it appears that the detention order had been made in order to
supplant the criminal prosecution which is not permitted .^^i
Detaining authority's satisfaction regarding- Must be based on his past
activities, credible information or material or cogent reasons - Mere bald
statement of detaining authority not enough - Court can look into the
material on record — - National Security Act, 1980, S, 8.1^2
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 vahdity 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.
Every citizeii 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 caraiot, 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.
In the instant case, there was no material made apparent on record that
the detenu, if released on bail 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 out on bail and there
is enough possibility of his being bailed out. The order of detention could not
be justified only on that basis.^^^
The fact that the person sought to be detained is in fact under
detention is a relevant and material factor but is not per se determinative of
the validity of the detention order, nor the fact that a man was not found
guilty in a criminal trial is determinative of the allegations made against him.
The allegations or the incidents leading to his detention have also to be borne
in mind and correlated to the object of a particular Act under which
preventive detention is contemplated. All the relevant factors must be
objectively considered and if there are causal cormections between the facts
alleged and the purpose of detention and if bona fide belief was formed then
there was nothing to prevent the authority from serving an order of
preventive detention even against a person who was in jail custody if there is

161. Anand Prakash v. State of U.P„ 1 SCC 291, 298:1990 SCC (Cri) 96: AIR 1990 SC 516.
162. Anand Prakash v. State of U.P., (1990) 1 SCC 291:1990 SCC (Cri) 96: AIR 1990 SC 516.
163. Shashi Aggarwal v. State of U.R, (1988) 1 SCC 436, 440: 1988 SCC (Cri) 178- AIR 1988
SC 596: (1988) 3 Crimes 184,
 184

imminent possibility of his being released and set at liberty if the detaining
authority was duly satisfied. If the person is in detention or is under trial and
his conviction is unlikely but his conduct comes within the mischief of the Act
then the authority is entitled to take a rational view of the matter. The
grounds must be there. The decision must be bona fide. Where a person is
accused of certain offences whereunder he is undergoing trial or has been
acquitted, the appeal is pending and in respect of which he may be granted
bail, the authority may not in all circumstances be entitled to direct preventive
detention and the principle enunciated in Ramesh Yadav must apply; but
where the offences in respect of which the detenu is accused are so interlinked
and continuous in character and are of such nature that these affect
continuous maintenance of essential suppUes and thereby jeopardize the
security of the State, then subject to other conditions being fulfilled, a man
being in detention would not detract from the order being passed for
preventive detention.
In the present case there was no ir\fraction of any procedural
safeguards engrafted in the Act, There was rational subjective satisfaction
arrived at bona fide on the basis of the materials available to the detaining
authority and the materials had rational nexus with the purpose and object of
the detention as contemplated by the Act. The detention order was, therefore,
valid.164

Detaining authority unaware that bail application had been rejected and
thereafter no further application for bail moved by detenu — No fresh and
relevant grounds mentioned justifying the satisfaction that if released detenu
would mdulge in prejudicial activities — Detaining authority merely denying
the specific averment of detenu that no prejudicial activities committed by
him — Criminal case against detenu referred to in grounds but FIR pertaining
to the case not containing detenu's name — Held, subjective satisfaction of
detaining authority not reached on relevant materials — Hence detention
order liable to be set aside.
There must be awareness in the mind of the detaining authority that
the detenu is in custody at the time of service of the order of detention on him
and cogent relevant materials and fresh facts have been disclosed which
necessitate the making of an order of detention. Considering all the facts and
circumstances of the case it must be held that there has been no subjective
satisfaction by the detaining authorit}' on a consideration of the relevant
materials on the basis of which the impugned order of detention has been
clamped on the detenu.i''^
Non-application of mind alleged - Detenu already in jail - Grounds of
detention stating that though High Court had granted a conditional
bail to detenu but instead of availing it, a subsequent application for
moditication of the condition was moved by the detenu but the same was

164. Siiraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC 378: 1986 SCC (Cri) 452- AIR 1986
SC 2177:1986 CriL] 2047.
165. Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, (1989) 2 SCC 222-1989 SCC (Cri) 326-
AIR 1989 SC 2265.
 185

rejected — Hence challenge to the detention on ground of absence of material

before the detaining authority about likelihood of detenu's release on bail,
had no substance - COFEPOSA Act, 1974, S. ?,{iy^
Detenu already in jail for an alleged criminal offence when detention order
passed - Order must have clear mention of this fact and indicate that such
detention was not sufficient to prevent the detenu from the prejudicial
activities covered by the preventive detention law — That neither the
detention order nor the counter-affidavit of the State referred to it, held,
proved non-application of mind rendering the detention illegal.
An order for preventive detention against a person already in jail for
some offence must show awareness of that fact else an inference of
non-application of mind cannot be refuted. ^^^
Detention on mere apprehension of grant of his bail and on the basis of some
stale grounds and a ground in respect of which detenu had already been
acquitted, held, not sustainable— National Security Act, 1980, S. 3.
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. If the apprehension of the
detaining authority was true, the bail appUcation had to be opposed and in
case bail was granted, challenge against that order in the higher forum had to
be raised.16^
If the detaining authority is satisfied, considering the past conduct
antecedent history or the prior events showing the tendencies or inclinations
of a man, that unless the activity is interdicted by a preventive detention
order, the activity which is being indulged into is like to be repeated, then the
authority can put an end to the activity by making a preventive detention
order under sub-section (2) read witli subsection (3) of S. 3 of the National
Security Act.
Where a preventive order may have to be made against a person
already confined to jail are detained the detaining authority must show
awareness that the person sought to be detained is already in jail or under
detention and yet a preventive detention order is a compelling necessity. This
awareness would show that such a person is not a free person to indulge into
a prejudicial activity which is required to be prevented by detention order,
And this awareness must find its place either in the detention order or in the
affidavit justifying the detention order when challenged. If the subjective
satisfaction is reached without the awareness of this very relevant fact the
detention order is likely to be vitiated. But it will depend on the facts and
circumstances of each case.

In the present case the detention orders merely referred to the name of
the detenus and the places of their residence, without indicatmg the fact that

166. Alocious Fernandez v. Union of India, (1990) 2 SCC 668:1990 SCC (Cri) 36^).
167. Vijay Kumar v. State of J & K, (1982) 2 SCC 43:1982 SCC (Cri) 348: AIR 1982 SC 1023-
1982 Cri LJ 988:1982 ML] (Cri) 471.
168. Ramesh Yadav v, DM, (1985) 4 SCC 232:1985 SCC (Cri) 514: AIR 1986 SC 315.
 186

they were already in jail, one being for a period of roughly two months and
the other for above one month. Therefore, the subjective satisfaction arrived at
clearly discloses a non-apphcation of mind to the relevant facts and the order
is vitiated.169
Detenu already in jail at the time of passing detention order— No reference
made in this regard in detention order or affidavit justifying the order —
Held, detaining authority's awareness about detenu's preexisting
confinement not shown — Hence, detention order vitiated on ground of
non-application of mind. ^^^
Does not vitiate the detention if detaining authority is aware of this fact but
even then is satisfied about necessity of the preventive detention.
The detenu had been called by the Customs Authorities for
investigation. A statement had been made by him under S. 108 of the Customs
Act and thereafter he was taken into custody and produced before the
Additional Chief Metropolitan Magistrate who remanded him to custody and
directed him to be produced on the following day in the court. By the time the
order of detention came to be made the petitioner was in jail for at the most
one day. Charge-sheet had not been submitted agaiiist him in the criminal
case and he had been remanded to the judicial custody with the direction to
be produced before the Metropolitan Magistrate next day. It was contended
that since the detenu was already in custody, the order of detention was liable
to be quashed. Rejecting the contention, the Supreme Court.
Held:
The fact that the detenu is already in detention does not take away the
jurisdiction of the detaining authority in making an order of preventive
detention. What is necessary in such a is to satisfy the court when detention is
challenged on that ground that the detaining authority was aware of the fact
that the detenu was already in custody and yet he was subjectively satisfied
that his order of detention became necessary. In the facts of the present case,
there was sufficient material to show the same. ^''^
Detaining authority's awareness of this fact as also his satisfaction about
likelihood of recurrence of the prejudicial activities in case of detenu's release
on bail not shown — Held, detention order invalid — National Security Act,
1980, S. 3(2)
There was nothing to show that there was awareness in the mind of the
District Magistiate, the detaining authority, of the fact that the appellant was
in jail at the 'time of clamping of the order of detention, and that the detainiiig
authority was satisfied in considering his antecedents and previous criminal
acts, that there was likelihood of his indulging in criminal activities

169. Merugu Satyanarayana v. State of A.P, (1982) 3 SCC 301: 1983 SCC (Cri) 18: AIR 1982
SC 1543:1982 Cri L] 2357.
170. Devi Lai Mahto v. State of Bihar, (1982) 3 SCC 328:1983 SCC (Cri) 37: AIR 1982 SC 1548:
1982 Cri LJ 2363.
171. Poonam Lata v. M.L. Wadhawan (1987) 4 SCC-48, 59: 1987 SCC (Cri) 685: AIR 1987 SC
2098:1987 Cri L] 1924: (1987) 14 ECC 17.
 187

jeopardizing public order if he is enlarged on bail and that there is every

likelihood that the appellant will be released on bail within a short time. On
this ground alone, the order of detention is invalid.
The respondents could very well proceed with the criminal case
pending against the detenu-appellant, oppose the bail application, execute it
against the appellant and could get him punished if the case is proved. If at all
the appellant is released on bail the respondents are not without any remedy.
They can also file application in revision for cancellation of the bail
application. In such circumstances, the passing of the order of detention of the
appellant who is already in custody is bad and invalid in law. ^^^
Detenu's release or prospect of his imminent release not considered — Held,
continued detention illegal on ground of non-application of mind to relevant
factors even if detention otherwise found to be justified - National Security
Act, 1980, S. 3(2). 173
Per Dutt, ].
When a detenu is already in jail for an offence at the time of his
preventive detention, two facts must appear from the grounds of detention,
namely, (1) awareness of the detaining authority of the fact that the detenu is
already in detention and (2) compelling reasons justifying such detention,
despite the fact that the detenu is already under detention. The question
whether or not a particular offence, for which a detenu has been detained, is a
bailable or non-bailable offence, does not have any bearing on the question of
passing an order of detention. Even though an offence is a non-bailable one,
an accused may be enlarged on bail. Again, an offence for which a detenu has
been put under detention, may be a bailable offence. Whether an order of
detention can be against a person who is already in detention or in jail, will
always have to be determined in the facts and circumstances of each case. In
the present case the detaining authority was aware of the fact that the
appellant was arrested and produced before the Additional Metiopolitan
Magistrate, New Delhi. The grounds of detention also disclosed compelling
reasons that the appellant should be preventively detained under the Act in
spite of his detention on a charge under S. 135 of the Customs Act.
Per Shetty, j . (concurring)
The detaining authority must have awareness of the fact that the
detenu is already in custody and yet for compelling reason his preventive
detention is found necessary. The compelling reasons justifying the
preventive detention have to be found out from the grounds of detention and
not apart from the grounds. The satisfaction of the detaining authority camiot
be reached on extraneous matters. The need to put the person under
prevexitive detention depends only upon the grounds of detention. The
activities of the detenu may not be isolated or casual. They may be continuous

172. Gulab Mehra v. State of U.P., (1987)4 SCC 302, 316, 317: 1987 SCC (Cri) 721: AIR 1987
SC 2332.
173. Binod Singh v. D.M., (1986) 4 SCC 416:1986 SCC (Cri) 490: AIR 1986 SC 2090: 1986 Cri
LJ1959.
 188

or part of a transaction or racket prejudicial to the conservation or

augmentation of foreign exchange. Then there may be need to put the person
under preventive detention, notwithstanding the fact that he is under custody
in cormection with a case. There cannot, however, be any uniform principle to
be applied in this regard. Each case has to be judged on its own facts and on
its own grounds of detention. If the grounds are germane it would bq
perfectly legitimate exercise of power to make an order of detention. In the
instant case there is hardly any justification to find fault with the order of
detention. ^^*
Where a preventive order is to be made against a person already
confined to jail or detained, the subjective satisfaction of the detaining
authority must comprehend his awareness of the very fact that the person
sought to be detained is already under confinement in respect of the same
offence and yet a preventive detention is a compelling necessity. If the
subjective satisfaction is reached without the awareness of this very relevant
fact the detention order is likely to be vitiated. But it will depend on the facts
and circumstances of each case.
Moreover, the detention order must show on the face of it that the
detaining authority was aware of the situation. Otherwise the detention order
would suffer from vice of non-application of mind.
In the present case there was not even a whimper of the detenu being
in jail for nearly three weeks prior to the date on which the detention order
was made. Therefore, the subjective satisfaction arrived at clearly disclosed a
non-application of mind to the relevant facts and the order is vitiated.^^^
Mere apprehension of detenu's release on bail and his resort to anti social
activities again, not enough.^^^
Detenu already in jail — Absence of detaining authority's satisfaction
about Hkelihood of detenu's release on bail, held on facts and
circumstances, rendered the detention order invalid — Principles laid
down in Rameshwar Shaw case and followed in subsequent decisions
reiterated - National Security Act, 1980, S. 3(1)
An order of detention was passed against the appellant's husband on
September 7,1988. The detention order and its accompanying annexure show
that the detaining authority was aware and conscious of the fact that the
detenu was already in custody in connection with a criminal case (bank
dacoity) at the time of making the detention order. The detenu's application
for grant of bail in the dacoity;' case had been rejected on August 22,1988 and
he was remanded to custody for the offence of bank dacoity. In the detention
order the detaining authority recorded its satisfaction that the detenu's

174. Vijay Kumar v. Union of India, (1988) 2 SCC 57, 70: 1988 SCC (Cri) 293: AIR 1988 SC
934: (1988) 17 ECC 82.
175. Bim Mahato v D.M., (1982) 3 SCC 322:1983 SCC (Cri) 31: AIR 1982 SC 1539:1982 Cri L]
2354.
176. Al-imed-hussain Shaikhhussain v. Commr. of Police, Ahmedabad, (1989) 4 SCC 751, 757:
1990 SCC (Cri) 86: AIR 1989 SC 2274:1989 Cri L] 2312,
 189

preventive detention was necessary to prevent him from indulging in

activities prejudicial to maintenance of public order in which he would
indulge if he was allowed to remain at large.
Held:
The detention order read along with its annexure nowhere indicated
that the detaining authority apprehended the likelihood of the detenu being
released on bail in the dacoity case and, therefore, considered the detention
order necessary. On the contrary the detention order and its annexures show
the satisfaction of the detaining authority that there was ample material to
prove the detenu's complicity in the Bank dacoity including sharing of the
booty in spite of absence of his name in the FIR as one of the dacoits. On these
facts, the order of detention and the order of its confirmation by the State
Government were clearly invahd since the same were when the detenu was
already in jail custody for the offence of bank dacoity with no prospect of his
release. The test indicated by the Constitution Bench in Rameshwar Shaw case
was not sahsfied.
[The Court however clarified that the detenu would coiitinue to be
held in coimection with the case under S. 397, IPC and if and when he is
released this judgment would not prevent the authorities from considering
his preventive detention according to law.]
Subsisting custody of the detenu by itself does not invalidate an order
of his preventive detention and the decision must depend on the facts of the
particular case; preventive detention being necessary to prevent the detenu
from acting in any manner prejudicial to the security of the State or to the
maintenance of pubHc order etc. ordinarily it is not needed when the detenu
is already in custody; the detaining authority must show its awareness to the
fact of subsisting custody of the detenu and take that factor into account while
making the order; but, even so, ii the detaining authority is reasonably
satisfied on cogent material that there is likelihood of his release and in view
of his antecedent activities which are proximate in point of time he must be
detained iii order to prevent him from indulging in such prejudicial activities,
the detention order can be validly made even in anticipation to on his release.
The above is the summary and reiteration of the principle settled by
the Constitution Bench of the Supreme Court in Rameshwar Shaw case. All
the subsequent decisions of the Court on this aspect have to be read in the
light of this decision. The conclusion about validity of the detention order iii
each case was reached on the facts of the particular case and the observations
made in each of them have to be read in the context in which they were made.
None of the observations made in any subsequent case can be construed at
variance with the principle indicated in Rameshwar Shaw case for the
obvious reason that all subsequent decisions were by benches comprised of
lesser number of judges. ^'^'^

177. N, Meera Rani v. Cicnt, of T.N., (1989) 4 SCC 418, 428, 429:1989 SCC (Cri) 732: AIR 1989
SC 2027:1989 Cri IJ 2190.
 190

It was contended on behalf of the petitioner that the detention

order was passed with a view to frustrate the bail allowed to the detenu-
petitioner in the criminal case.
Held:
In case of passing of an order of detention against an accused
immediately after he is allowed bail or at a point of time when he is likely to
be enlarged on bail, great caution should be exercised in scrutinising the
validity of the order, which is based on the very same charge which is to be
hied by a criminal court.
In the present case the District Magistrate being detaining authority
did not act for defeating the bail order. He was of the view that having regard
to the entire circumstances appearing from the records placed before him, the
petitioner when let out on bail, was likely to create public order problem. The
Distiict Magistiate came to this conclusion on the considerationiof relevant
materials. Copies of the documents were served on the petitioner along with
the grounds, considering the entire circumstances of the case was no fault in
the detention order. ^''^
Deteiition order passed, detaining authority being apprehensive of
likelihood of detenu's release on bail and being satisfied about necessity of
preventing him from acting in a manner prejudicial to public order in case of
his release — Held, detention order would not become invalid merely
because detenu was in jail at the time of passing the order.i''^
Even assuming that the original office file containing a note
mentioning that the detenu was already in custody and was likely to be
released soon, carmot be relied on to establish that the detaining authority
was aware of these facts and that the awareness of the detaining authority
ought to have appeared from the grounds of detention themselves, a perusal
of the grounds in the present case which ran into many pages clearly
indicated that the detaining authority was conscious of the fact that the
detenu was in judicial custody and was apprehensive that he would be
released on baiL^^o

The detention order cannot be made for the purpose of circumventing

the expected bail order. The object of detention has to be prevention of a
detenu from indulging in activities prejudicial to the conservation of foreign
exchange resources, and not to facilitate his trial in a criminal case nor as a
punitive measure. However, the gi'ounds of detention in this case indicated
that the offences in respect of which the detenu was accused were "so inter-
linked and continuous in character and are of such nature" that they fully
justify the detention order. In the circumstances, the satisfaction of the

178. Yogendra Murari v. State of U.P., (1988) 4 SCC 559, 564: 1988 SCC (Cri) 992: AIR 1988
s e c 1835:1988 BLJR 592.
179. Alijan Mian v. Distt. Magistrate, (1983) 4 SCC 301, 305:1983 SCC (Cri) 840: AIR 1983 SC
1130:1983 Cri LJ1649.
180. Bal Chand Bansal v. Union of India, (1988) 2 SCC 527S 530.531:1988 SCC (Cri) 356: AIR
1175- (1988) 16 ECC 227.
 191

detainiiig authority as specifically recorded in the grounds cannot be

doubted.^^1
Detenu already in jail and likely to be released on bail — Governments failure
to oppose the bail application, does not invariably lead to the inference
that the detention was not called for - COFEPOSA Act, 1974, S. 3(1).
Merely because the prayer for bail made on behalf of the detenu was
not opposed on behalf of the respondents before the Magistrate, it cannot be
held that his detention was not called for. Having regard to the circumstances
arising in this case no such inference is permissible to be drawn in favour of
the petitioner. Besides, according to the respondents, the bail application was
as a matter of fact opposed. In any view, this factor is not of much con-
sequence in the facts of the present case.^^a
Detaining authority's satisfaction that detenu's bail application likely to be
granted by criminal court — Does not mean that the bail application was not
opposed by the State— National Security Act, 1980, S. 3.
The apprehension of the District Magistrate that the prayer in regard to
grant of bail was likely to be granted does not mean that the application was
unopposed. The District Magistrate was expecting an adverse order on
account of the fact that the witnesses of the incident appeared to be reluctant
to support their earlier statements.^^^^
Detenu already in jail — Mere possibility of his release on bail not enough for
preventive detention — Material justifying apprehension that detenu would
indulge in prejudicial activities in case of his release on bail essential —
National Security Act, 1980, S. 3.
Every citizen has right to move the court for bail when he is arrested
under the ordinary law of the land, and he cannot be interdicted from moving
the court for bail or 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. 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 had been made merely on
the ground that the detenu was tiying to come out on bail and there was
enough possibility of his being bailed out.
(j) Detention after grant of bail application

181. Bal Chand Bonsai v. Union of India, (1988) 2 SCC 527, 531:1988 SCC (Cri) 356: AIR 1988
SC1175: (1988) 16 ECC 227.
182. Bal Chand Bansal v. Union of India, (1988) 2 SCC 527, 532:1988 SCC (Cri) 356: AIR 1988
SC 1175: (1988) 16 ECC 227.
!83. Yogendra Murari v. State of U.P., (1988) 4 SCC 559, 563, 564: 1988 SCC (Cri) 992: AIR
1988 SC1835:1988 BLJR 592.
 192

Detenu already in jail released on bail— Detaining authority aware of this fact
— Detention order valid. ^^'^
Detenu already in jail in connection with a criminal case — Bail application
granted by court — But prior to his release on bail, preventive detention order
passed against him on grounds including the charges made in the pending
criminal case — Vahdity of the detention order must be examined very
carefully in such circumstances
Per Venkataramiah, ].
The law of preventive detention should not be used merely to clip the
wings of an accused who is involved in a criminal prosecution. It is not
intended for the purpose of keeping a man under detention when under
ordinary criminal law it may not be possible to resist the issue of orders of
bail, unless the material available is such as would satisfy the requirements of
the legal provisions authorising such detention. When a person is enlarged on
bail by a competent criminal court, great caution should be exercised in
scrutinising the validity of an order of preventive detention which is based on
the very same charge which is to be tried by the criminal court.
Per A. P. Sen, J.
Merely because there was pending prosecution and the detenu was
already in jail, there is no impediment for his detention if the detaining
authority is satisfied that his being enlarged on bail would be prejudicial to
the maintenance of public order.^^s
Detenu released on bail or acquitted — Facts and circumstances involved in
the criminal proceedings can be taken into account in forming subjective
satisfaction for passing detention order
Even if a prosecution against a person fails or bail is granted an order
of detention could be passed drawing the satisfaction therefor from the facts
and circumstances involved in the criminal proceedings. An offender might
secure an acquittal by intimidating witnesses. It all depends upon the
circumstances of each case. But it is necessary for the detaining authority to
resist the temptation to prefer and substitute, as a matter of course, the easy
expedience of a preventive detention to the more cumbersome one of punitive
detention. Ayya v. State of U.P., (1989) 1 SCC 374, 383: 1989 SCC (Cri) 153:
AIR 1989 SC 364:1989 CriYj 991.
Non-application of nund — Detaining authority aware about detenu's
anticipatory bail application — Grounds showing likelihood of recurrence of
anti-social activities by the detenu and compelling necessity of his detention
— Held on facts, non-application of mind by detaining authority not
established - Gujarat Prevention of Anti-Social Activities Act, 1985, S. 3(2).

184. Swaran Singh v. State of J&K, 1989 Supp (1) SCC 88: 1989 SCC (Cri) 191: AIR 1989 SC
188:1989 Cri L] 792.
185. Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, 24, 28, 35:1984 SCC (Cri) 361: AIR
1984 SC 1334:1984 Cri LJ 909.
 193

The appellant/petitioner contended that there was non-application of

mind on the part of the detaining authority inasmuch as there was nothing to
show his awareness of the fact that the appellant had apphed for grant of
anticipatory bail and his satisfaction about the compelling necessity to make
an order for detention which, it is said, was punitive in character. Dismissing
the appeal and the writ petition of the detenu.
Held:
Earlier two incidents stated in the grounds were not really the grounds
for detention but they, along with the transaction in question of importation
of foreign liquor in bulk, show that his activities in this transaction afforded
sufficient ground for the prognosis that he would indulge in such anti-social
activities again, if not detained. Having regard to the recital in the grounds of
detention as also the counter-affidavit of the detaining authority stating that
he was aware of the fact that the detenu had on January 21,1987 applied for
anticipatory bail but no orders were passed, there is no force in the contention
about non-application of mind.^*^
Detention order challenged on ground that continued detention caused
detenu's mental disorder — Psychiatiist reporting to the contrary —
Detention order not open to challenge on this ground. ^^^
The contention that the detention would be illegal in view of dismissal
of detenus from service is really without merit. The subsequent order of
dismissal is not germane to examine the validity of the detention. ^^^
COMMUNICATION OF GROUNDS OF DETENTION
Article 22(5) requires that the grounds of detention must be
'commimicatedS to the detenu. "Communicate" is a strong word which means
that sufficient knowledge of the basic facts constituting the 'grounds' should
be imparted effectively and fully to the detenu in writing in a language which
he understands. The whole purpose of communicating the 'grounds' to the
detenu is to enable him to make a purposeful and effective representation. If
the 'grounc^s' are only verbally explained to the detenu and nothing in writing
is left with him, in a language which he understands, then that purpose is not
served, and the constitutional mandate in Art. 22(5) are infringed.!*^
Communication of grounds — Government letter to the detenu claiming
privilege in respect of certain information — Letter signed by Assistant
Secretary using first person (word T) — Contention that it was Government
and not the Assistant Secretary that could claim the privilege, held, untenable

186. Rajendrakumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC153,165; 1988 SCC (Cri)
575: AIR 1988 SC1255.
187. Raverdy Marc Germain Jules v. State of Maharashtra, (1982) 3 SCC 135:1982 SCC (Cri)
638: AIR 1983 SC 311.
138. Angoori Devi v. Uruon of India, (1989) 1 SCC 385, 392:1989 SCC (Cri) 164: AIR 1989 SC
371:1989 Cri LJ 950.
189. Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427: 1981 SCC (Cri) 463: AIR
1981 SC 728: (1981) 2 SCR 352:1981 Cri LJ 288:1981 MLJ (Cri) 350.
 194

as the use of the first person by the Assistant Secretary was a mere clerical
mistake which Government rectified later.^^o
There is an inexorable connection between the obligation on the part of
the detaining authority to furnish the 'grounds' and the right given to the
detenu to have an 'earliest opportunity' to make the representation. Since
preventive detention is a serious inroad on individual liberty and its
justification is the prevention of inherent danger of activity prejudicial to the
community, the detaining authority must be satisfied as to the sufficiency of
the grounds which justify the taking of the drastic measure of preventive
detention. The requirements of Art. 22(5) are satisfied once 'basic facts and
materials' which weighed with the detaining authority in reaching his sub-
jective satisfaction are communicated to the detenu. The test to be applied in
respect of the contents of the grounds for the two purposes are quite different.
For the first, the test is whether it is sufficient to satisfy the authority, for the
second, the test is whether it is sufficient to enable the detenu to make his
representation at the earliest opportunity which must, of course, be a real and
effective opportunity. The court may examine the 'grounds' specified in the
order of detention to see whether they are relevant to the circumstances under
which preventive detention could be supported e.g. security of India or of a
State, conservation and augmentation of foreign exchange and prevention of
smuggling activities, maintenance of public order, etc. and set the detenu at
liberty if there is no rational connection between the alleged activity of the
detenu and the grounds relied upon, say public order. ^^^

Meaning of effective representation and need to furnish copies of documents

and other materials relied upon in grounds of detention, restated —
Constitiition of India, Art, 22(5). "2
Non-furrvishing of relevant material and vital facts to detenu would
vitiate the detention.
If "material and vital facts" which would influence the mind of the
detaining authority one way or the other on the question whether or not to
make the detention order, are not placed, it would vitiate the subjective
satisfaction rendering the detention order illegal That was not so in the
present case. There was ample material before'the Distiict Magistrate for him
to base his subjective satisfaction as to the necessity for passing the impugned
order, as stated by him in his affidavit, i^^
Habeas corpus petition under Art. 226 on ground that documents referred to
in grounds of detention not supplied to detenu— Held, High Court cannot

190. Kavita v. State of Maharashtra (7), (1981) 3 SCC 558, 565: 1981 SCC (Cri) 743: AIR 1981
SG 1641.
191. Rajendmkumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC 153,161:1988 SCC (Cri)
575: AIR 1988 SC 1255.
192. Wasiuddin Ahmed v. DM, (1981) 4 SCC 521, 529, 530: 1982 SCC (Cri) 4: AIR 1981
SC2166:1981 Cri LJ1825.
193. K. Aruna Kumari v. Govt, of A.P., (1988) 1 SCC 296, 305, 306: 1988 SCC (Cri) 116: AIR
1988 SC 227:1988 Cri LJ 411.
 195

decide their relevancy by itself examiruiig them — Ccmstitution of India, Arts,

226 & 22(5).
It is not open to the High Court to wade through the confidential file of
the government in order to fish out a point against the detenu. Further, the
question of relevance is not to be decided by the court by the detaining
authority which alone has to consider the representation of the detenu on
merits and then come to the conclusion whether it should be accepted or
rejected, i^*
(b) Language of communication
Grounds are always required to be furnished in. a language which is
understood by the detenu and this requirement is not limited to or^Iy where
the grounds are complicated or lengthy — Detenus being not conversant with
EngUsh Language, held, supply of the grounds in that language vitiated their
detention - Constitution of India, Art. 22(5).i95
Communication of grounds of detention — Language of communication
— Whether known to the detenu — Should be ascertained by court in the
facts and circumstances of the case by applying commonsense — On facts
held, detenu feigning ignorance of the language in which grounds were
communicated to him - COFEPOSA Act, 1974, S. 3(3) - Constitution of
India, Art. 22(5)
Whether grounds were communicated or not depends upon the facts
and circumstances of each case. Court should apply commonsense while
considering constitutional provisions for safeguards against misuse of powers
by authorities though these constitutional provisions should be strictly
construed.
In the present case in the background of the facts that the grounds of
detention were given to the detenu following search and seizure of gold
biscuits from his room in his presence, that a mercy petition was made by him
to the Government which was written in English though signed by him in
Gujarati, and that he was in constant touch with his daughter and sons who
knew English and Hindi, it cannot be said that the grounds were not
communicated in the sense the grounds of detention were not conveyed to the
detenu. The detenu was merely feigning ignorance of English in which the
grounds were furnished to him. The mere fact that Llindi translation of the
grounds was served beyond the period of 5 days stipulated in S. 3(3),
COFEPOSA Act is inconsequential even in absence of any exceptional
circumstances because his daughter and sons knew both English and Hindi.
Prakash Chandra Mehta v. Commr, and Secy, Govt, of Kerala, 1985 Supp SCC
144:1985 SCC (Cri) 332: AIR 1986 SC

Grounds of detention — Communication of— Language — Grounds of

detention as well as the entire documents and materials relied upon therein

194. Kirit Kumar Chaman Lai Kundaliya v. Union of India, (1981) 2 SCC 436, 441:1981 SCC
(Cri) 471; AIR 1981 SC 1621; (1981) 2 SCR 718; 1981 Cri L) 1267; (1981) 22 GLR1067.
195. Surjeet Smgh v. Union of India, (1981) 2 SCC 359:1981 SCC (Cri) 535: AIR 1981 SC 1153:
(1981) 3 SCR 205:1981 Cri LJ 614,
 196

must be supplied to the. detenu in the language known to him — Such

supplies must be made within 5 days and in exceptional circumstances within
15 days from the date of detention — Written reasons indicating the
exceptional circumstances in justification of delay up to 15 days must be
communicated to the detenu along with the grounds, documents and
materials — Non-compliance with any of these mandates would vitiate the
detention order - COFEPOSA Act, 1974 (52 of 1974), S. 3(3) - Constitution
of India, Art. 22(5)
On a combined reading of Art, 22(5) of the Constitution and S. 3(3) of
the COFEPOSA Act and having regard to the case-law evolved through the
decisions of the Supreme Court, the following propositions emerge in the
context:
(a) All documents, statements and other materials incorporated in the
grounds by reference and which have influenced the mind of the detaining
authority in arriving at the requisite subjective satisfaction must be furnished
to the detenu in a script or language which he understands.
(b) All these materials must be furnished to the detenu along with grounds or
in any event iiot later than five days ordinarily and in the exceptional
circumstances and for reasons to be recorded in writing not later than 15 days
from the date of his detention.
(c) The detenu must be informed about the existence of exceptional
circumstances and what they were for delay in supplying grounds of
detention and/or documents and statements incorporated therein in the
language which he understands. This flows from the right which is conferred
upon the detenu to make representation against his detention inasmuch as
the detenu is entitled to satisfy either the superior authority or the
Advisory Board that
the delay that has occurred in the supply of requisite material to him was not
justified either because exceptional circumstances did not exist or those put
forward were unreal or invalid. Obviously, the detenu will not be in a
position to do so if the alleged exceptional circumstances are not
communicated to him. In other words, what he has done before the Court
now, he could have done before the superior authorities or the Advisory
Board.
Failure to comply with any of the above requirements would amount
to breach of the mandate contained in Art. 22(5) read with S. 3(3), COFEPOSA
Act. In preventive detention jurisprudence whatever httle safeguards the
Constitution and the enactment authorising such detention provide assume
utmost importance and must be strictly adhered to.
In the present case supply of bulk of documents and statements
incorporated in the grounds in the script or language understood by the
detenu was delayed beyond the normal period of five days. The respondents
filed an affidavit and also produced the office notings before the Court which
explained the reason for the delay, by stating that there were a large number
of documents requiring translation and on account of the holy month of
Ramzan Urdu translators were not available and those handful of translators
 197

who were available and were put on the job were prepared to work only from
12 noon to 4 p.m. Such an explanation camiot be regarded as constituting
exceptional circumstances justifying the delay. Since the petitioner was
already in judicial custody and no bail had been granted, there was no fear of
his abscondence and no urgency and therefore, the detaining authority could
have kept all the material ready in Urdu and supplied the same to him
immediately after detaining him second time. Moreover, the office noting
neither gave particulars of how many Urdu translators were put on the job
except vaguely stating 'handful of tianslators' were available, nor indicated
whether and if so what efforts were made to avail the services of the
additional Urdu translators who had nothing to do with the observance of
Ramzan fasts.
Further, the alleged exceptional circumstances contemplated by S. 3(3),
COFEPOSA Act were not communicated to the detenu at the time of the
delayed supply of the concerned documents and statements in Urdu
language.
Lastly, Urdu translations of quite a few documents and statements
referred to in the grounds of detention and relied upon by the detaining
authority were not supplied to the detenu at all. The petitioner is a Pakistani
national and Urdu seems to be his mother tongue and a little knowledge of
English figures, ability to read English words written in capital letters and a
smattering knowledge of Hindi or Gujarati would not justify the denial of
Urdu translations to him of the material documents and statements referred
to as incriminating documents in the grounds and relied upon by the
detaining authority in arriving at its subjective satisfaction.
The aforesaid failures on the part of the authorities constituted breach
of Art. 22(5) of the Constitiition read with S. 3(3) of the COFEPOSA Act and
vitiated the continued detention of the petitioner.^^^
Grounds of detention must be explained in the language and script
understandable to the detenu — Detenu specifically stating to be knowing
Arabic language only — Hence, explaining the grounds in Hindi
inconsequential — Averment in the counter-affidavit that the detenu made
his submission iri Hindi before Advisory Board, wholly Inadmissible in
absence of testimony of any reliable witness — In absence of any proof of
explaining the grounds in Arabic, held, continued detention of the detenu
illegal
Orders of detention which touch the valuable rights of citizens and
their liberty are matters of moment and cannot be dealt with in a casual or
routine manner. The iiecessaiy safeguards laid down by the Supreme Court
and enshrined in Art. 22(5) of the Constitution have to be compUed with
however onerous and difficult the task may be. Moreover, with huge
resources at the command of the State, it is not at all difficult for the detaining

196. Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440:1983 SCC (Cri) 66; AIR 1982
SC1500.
 198

authority to see that these Uttle things are comphed with so that the detenu
does not complain that the authorities try to play with his liberty.
There is no cogent proof in this case that the detenu who admittedly is
an Arab knew Hindi at all or that the grounds were actually explained and
translated to him. If the detenu did not know Hindi, explaining the grounds
in Hindi to him is absolutely of no consequence. On this ground alone, the
detenu is entitled to be released as his continued detention becomes legally
invaHd.197

Language — Grounds must be in the language which detenu understands —

Strict compliance with this requirement essential — Test of prejudice caused
to the detenu as a result of language used in the grounds not material for
determining effective communication of the grounds — While detenu
claiming to know Ladhaki language only grounds suppUed in a different
language — Held, requirements of law not complied with — Fact that the
detenu's wife understands the language in which grounds were supplied not
sufficient — Constitution of India, Art. 22(5).^^^
Language - Detenu held under S, 3(1) (i) of COFEPOSA Act alleging that
English version of the grounds stated that detention intended to prevent him
from indulging in smuggling activities which is covered by S. 3(1) (i) but
Tamil version disclosed that it intended to prevent him from transporting
contraband goods which is covered by S. 3(1) (iii) — Held, on facts, the two
versions not so different as to cause any prejudice to the detenu —
COFEPOSA Act, S. 3(l)(i). 1^9
"Commuiiicate' is a strong word. It requires that sufficient knowledge
of the basic facts constituting the grounds should be imparted effectively and
fully to the detenu in writing in a language which he understands, so as to
enable him to make a purposeful and effective representation. Where the
grounds are couched in a language which is not known to the detenu, unless
contents of the grounds are fully explained and translated to the detenu, it
would tantamount to not sei^ving the grounds to the detenu and would thus
vitiate the detention ex facie. If the grounds are only verbally explained to the
detenu and nothing in writing is left with him in a language which he
understands, then that purpose is not served and Art. 22(5) is ir^fringed. Thus
what is considered necessary is a working knowledge of the language
enabling the detenu to understand the grounds or full explanation or
translation thereof in the language understood by the detenu.
It would be open for the court to consider the facts and the
circumstances of a case to reasonably ascertain whether the detenu is feigning
ignorance of the language or he has such working knowledge as to
understand the grounds of detention and the contents of the documents
furnished. It would involve a subjective determination. It would, of course,

197. Nafisa Khalifa Ghanem v. Union of India, (1982) 1 SCC 422:1982 SCC (Cri) 236.
198. Tsering Dolkar v. AdnTinistrator, Union Territory of Delhi, (1987) 2 SCC 69, 73: 1987
SCC (Cri) 275: AIR 1987 SCI 192:1987 Cri LI 988.
199. A. Alangarasamy v. State of T.M., (1987) 3 SCC 159: 1987 SCC (Cri) 477: AIR 1987 SC
1725.
 199

always be a safer course in such cases to furnish translations in the detenu's

own language.
In the present case when the detention order and the grounds of
detention were served the detenu received them and acknowledged the
receipt thereof, as it appears from the records, putting his signature in
English. He did not complain that the grounds of detention were not
understood by him. On the other hand in the very grounds of detention it was
stated that in course of interrogation he answered the questions in English
including the questions as to how he happened to learn English. The gist of
his answers in this regard was also given in the grounds of detention. The
statements contained number of informations peculiar to the detenu himself
which could not have been communicated by him to the interrogators unless
he knew the English language. In several places he corrected the statements
putting appropriate English words and signing the corrections; No objection
regarding non-communication of the grounds in a language understood by
the detenu was made within the statiitory period for furnishing the grounds.
The representation was beyond the statutory period, almost a month after the
grounds were served, along with the detenu's statements as to how he learnt
English. In the meantime bail petitions were moved on his behalf before the
Chief Judicial Magistiate and the High Court. There is nothing to show that
he did not give instructions to his counsel. In the circumstances of the case it
must be held that the detenu understood the English language, had working
knowledge of it and was feigning ignorance of it, and there was no violation
of Art. 22(5) of the Constitution on the ground of non-communication of the
grounds of detention in a language understood by him.^oo
Communication of detention order — Order reciting S. 3(1) of the COFEPOSA
Act served in English but grounds of detention together with basic materials
served, along with the order, in the language known to the detenu — Held, on
facts, neither Art. 22(5) violated nor was detenu handicapped in submitting
his representation.201
It is imperative that the detaining authority has to serve the grounds of
detention which include also all the relevant documents which had been
considered in forming the subjective satisfaction by the detaining authority
before making the order of detention and referred to in the list of documents
accompanying the grounds of detention in order to enable the detenu to make
an effective representation to the Advisory Board as well as to the detaining
authority. Hence the refusal on the part of the detaining authority to supply
legible copies of the said relevant document to the detenu for making an
effective representation infringed the detenu's right under Art. 22(5) of the
Constitution. The order of detention is, therefore, set aside and the detenu is

200. Kubic Darusz v. Union of India, (1990) 1 SCC 568, 573-578:1990 SCC (Cri) 227: AIR 1990
SC 605.
201. Devji Vallabhbhai Tandel v. Administrator, (1982) 2 SCC 222: 1982 SCC (Cri) 403: AIR
1982 SC 1029:1982 Cri L] 799.
 200

directed to be released forthwith. Dharmista Bhagat v. State of Karnataka,

1989 Supp (2) s e c 155; 1990 SCC (Cri) 39. 202
Supply of illegible copies of documents— Detention order confirmed before
supply of legible copies made — Held, right of making representation denied
— Constitution of India, Art 22.^03
Supply of illegible copies of documents- Held, procedural safeguards
provided by Constitution violated - Detention quashed - On facts of the
case Supreme Court did not go into question whether those documents were
relevant or material — Constitution of India, Art. 22(5). ^o*
Delay in supplying documents and materials in support of the grounds of
detention, held, would vitiate the detention - The detention also stands
vitiated by the delay of more than a month in disposing of the representation
- Constitiation of India, Art 22(5). 205
Delay in serving beyond mandatory period under S. 8(1) of National Security
A c t - Rigours of limitation prescribed under S. 8(1) to be literally interpreted
and stiictly followed — No relaxation permissible merely because detenu
had been released on bail or parole and hence was not in detention — Where
detention order sewed on September 29, detenu released on bail on October 2,
police officer sent to Bombay for serving the grounds going back to Delhi
having failed to trace the detenu though his address was well known and
grounds ultimately served on October 14, held, inaction after October 6 till
October 14 sufficient for violation of S. 8(1) in absence of satisfactory and
acceptable explanation — Detention order quashed — National Security Act,
1980, S. 8(1)- Constitiition of India, Art. 22
In this case there is no acceptable or satisfactory explanation as to what
the officer or the officers did after October 6,1986, this inaction after October
6,1986 till October 14,1986, by itself is sufficient for us to hold that S. 8(1) has
been violated by the officer concerned and on that ground alone the order of
detention has to be quashed.
An attempt was made to contend that the delay in communicating the
grounds of detention caused in this case has to be condoned and the rigour of
the section relaxed since the detenu had been released on October 2,1986, and
hence was not in detention. This according to us is specious plea which
cannot stand legal scrutiny. If this contention is to be extended to its logical
conclusion it would be clothing the authorities with powers to delay
communication of the grounds of detention indefinitely, whenever a detenu
secures from a court of law either bail or parole. To accept this contention
would be to destroy the effect of the mandate of the section. As indicated
earlier, the mandate enacted in the section is a safety^ valve for a citizen who is

202. Devji Vallabhbhai Tandel v. Administrator, (1982) 2 SCC 222: 1982 SCC (Cri) 4.03: AIR
J982SC 1029:1982 Cri L] 799.
203. Biiupinder Singh v. Union of India, (1987) 2 SCC 234:1987 SCC (Cri) 328.
204. Manjit Singh Grewal v. Union of India, 1990 Supp SCC 59: 1990 SCC (Cri) 608(2).
205. Mehdi Mohd. Jowdi v. State of Maharashtra, (1981) 2 SCC 358:1981 SCC (Cri) 534: AIR
1981 SC1752:1981 Cri L] 1282.
 201

robbed of his liberty and to disable the authorities from manipulating the
grounds of detention. The section has to be Interpreted literally. No relaxation
is permissible. If the original time of 5 days has to be extended, such extension
must be supported by an order recording reasons. If reasons are not so
recorded the order of detention will automatically fail Even if reasons are
recorded they have to inspire confidence in the court and are subject to legal
scrutiny. If the reasons are unsatisfactory courts would still quash the order of
detention, ^o^
Documents and materials mentioned in grounds of detention to be supplied
to the detenu immediately on demand — Explanation for delay of about 28
days in supplying the same not convincing — Hence, continued detention of
the detenu illegal - Constitution of India, Art. 22(5)
A demand for documents should not be taken lightly but the detaining
authority must be prepared to supply at least those materials or documents
which are clearly mentioned in the grounds of detention and he must have
those material ready with him so as to be given to the detenu as and when
asked for, with utmost despatch. The dilatory procedure adopted by the
detaining authority in referring the question of supplying of documents to
various authorities and inviting their comments is condensable. The detenu
cannot make any effective representation unless he gets copies of the docu-
ments which are expressly mentioned in the grounds of detention. In the
present case the explanation given by the detaining authority for delay of
about 28 days in sending the documents to the detenu does not appear to be
satis-factory or convincing. The continued detention of the detenu therefore,
becomes illegal on this ground also. ^07
Grounds of detention must be furnished as soon as practicable and need not
be furnished simultaneously along with the detention order — Grounds
furnished within two days of the detention — Held, delay reasonable and
therefore the detention order not vitiated on ground of such delay alone —
Constitiition of India. Art 22(5) - National Security Act} 1980 (65 of 1980),
S.8.
There is no constitutional imperative that no person shall be detained
under preventive detention law without being informed of the grounds for
such detei"ition. The law is that the detaiiiing authority must, as soon as may
be, i.e. as soon as practicable, communicate to the detenu the grounds on
which the order of detention has been made. That period has been specified
by S. 8 of the Act to mean a period ranging from five to 10 days depending
upon the facts and circumstances of each case.
In the present case the detenu was served with the grounds of
detention within a period of two days, that is, within the period allowed by S.
8 of the Act and that was "as soon as practicable". In absence of any
allegations as to mala tides on the part of the detaining authority or that the

206. Hem Lai! Bhandari v. State of Sikkim, (1987) 2 SCC 9,14: 1987 SCC (Cri) 262: AIR 1987
BC762:]987CriL]718.
207. Naftsa Khalifa Ghanem w Union of India, (1982) 1 SCC 422:1982 SCC (Cri) 236,
 202

detention was for non-existent grounds, the order of detention is not rendered
invalid merely because the grounds of detention were furnished two days
later. 208

Documents and materials relied upon in grounds of detention - Copies of,

supplied to the detenu more than one month after furnishing of grounds of
detention - Held, detenu thereby deprived of his constitutional right to make
effective and expeditious representation - Hence, continued detention of
detenu rendered void - COFEPOSA Act, 1974 (52 of 1974), S, 3.209
Documents reUed upon in the grounds not supplied to detenu within 15 days
from the date of order of detention - On "detenu's request by his
representation dated April 6, the documents suppUed to him on April 24 and
the representation disposed of by Advisory Board on April 29 — Held, failure
on the part of the detaining authority to supply the material documents
prevented the detenu from making an effective representation against the
grounds of detention and as such mandatory requirements of Art. 22(5) of the
Constitution r/w S. 3(3) of COFEPOSA Act not complied with - Order of
detention, therefore, illegal and bad and liable to be quashed— COFEPOSA
Act, 1974, S. 3(3) and (1) - Constihition of India, Art. 22(5). 210
Icchu Devi Clioraria v. Union of India, (1980) 4 SCC 531:1981 SCC (Cri) 25 and
Kamla Kanyalal Khushalam v. State of Maharashtra, (1981) 1 SCC 748: 1981 SCC
(Cn) 287, relied on
Prevention of Elicit Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1988, Ss. 3(3) and 10(1) — Period of Umitation prescribed under S.
3(3) is for communicating the grounds to detenu and not applicable to
declaration under S. 10(1)— Detention order passed on December 19 and
grounds furnished and declaration made on December 20 and declaration
served on February 2 — Period taken in serving the declaration adequately
explairied — Held on facts, grounds furnished to the detenu within the period
prescribed by S, 3(3) and detenu had also not been denied any opportunity of
making effective representation against the declaration under S. 10(1).2"
The order of detention was passed on March 5, 1986 and served on
March 6,1986 when the appellant was already in jail in connection with other
cases. Even so the grounds of detention were served on May 11, 1986, i.e.
more than two months after the service of the order of detention.
There is clear contravention of S. 17 of the Bihar Act. The order of
detention is therefore quashed. 212

208. Ashok Kumar v, Delhi Admn., (1982) 2 SCC 403:1982 SCC (Cri) 451: AIR 1982 SC 1143:
1982 Cri L] 119.
209. Mohd. Zakir v. Delhi Admn., (1982) 3 SCC 216: 1982 SCC (Cri) 695: AIR 1982 SC 696:
1982 Cri LJ 611.
210. Ashok Kumar v. Union of India, (1988) 1 SCC 541, 546: 1988 SCC (Cri) 193: (1988) 15
i;CC4bl: (1988)1 Crimes 791.
211. Azra Fatima (Smt) v. Union of India, (1991) 1 SCC 76:1991 SCC (Cri) 641: AIR 1990 SC
1763: 1990 Cri LJ 1731.
212. Raghubansh Rai v. State of Bihar, 1990.Supp SCC 613:1991 SCC (Cri) 151.
 203

Supply of relevant material to detenu- Whether delayed — Information as

towhether exporters were interrogated to find out circumstances under which
gold came to be exported - Statements of the exporters, having not been
recorded at the time of making detention order, not forming part of the
materials placed before detaining authority - Reply to the desired
information therefore sent after obtaining comments of customs authorities —
In the circumstances and having regard to the promptness with which the
matter moved in the office, held, supply of the information to the detenu not
delayed — Constitution of India, Art. 22(5).2i3
Copies of documents and materials relied upon in grounds of detention and
forming basis of the detention order must be furrushed to the detenu along
with the grounds of detention - Supply of such copies seven days after
furnishing of the grounds rendered detention illegal and void — Constitution
of India, Arts. 22(5) and 21 - COFEPOSA Act, 1974 (52 of 1974), S. 3(3).
The documents and materials in support of the grounds on the basis of
which the detention order has been made, the same being ex hypothesi in
existence at the time of the issuance of the detention order and framing of the
grounds, should be supplied to the detenu along with the grounds. Non-
supply of such material and documents along with the grounds would clearly
amount to a violation of the safeguard guaranteed under Art. 22(5) of the
Constitution. Since in the instant case that safeguard afforded to the detenu
has been violated, further detention of the detenu would be illegal and
void.214

Detenu has right to have copies of vital documents irrespective of whether he

knows about their contents or not. The detenu has the right to be furnished
with the grounds of detention along with the documents relied on. If there is
failure or even delay in furrushing those documents it would amount to
denial of the right to make an effective representation guaranteed under Art.
22(5). It is immaterial whether the detenu already knew about their contents
or not. The question of demanding the documents is also wholly irrelevant
and the infirmity in that regard is violative of Art. 22(5). ^is
Documents and materials to be supplied - Confessional statements of detenu
on which grounds of detention based not supplied to the detenu along with
grounds of detention - Held, detention illegal in view of failure to furnish
necessary documents to the to make a proper representation - National
Security Act, 1980, Ss. 3(2) and 8.216
Documents forming vital part of the grounds not supplied to detenu - Held,
detenu entitled to be released. 217

213, Madhu Khanna v. Administrator, Union Territory of Delhi, (1986) 4 SCC 240, 245-1986
s e c (Cri) 426: AIR 1987 SC 48:1987 Cri LJ318.
214, Sunil Dutl v. Union of India, (1982) 3 SCC 405:1983 SCC (Cri) 62: AIR 1982 SC 53.
215, M. Ahamedkutt\' v. Union of India, (1990) 2 SCC 1,12,13:1990 SCC (Cri) 258.
216, Kailash Pandey v. State ofU,R, (1984) 2 SCC 397: 1984 SCC (Cri) 265: AIR 1983 SC 317-
1983 Cri L] 452.
217 Nandagopal Saha v. Union of India, 1987 Supp SCC 576:1988 SCC (Cri) 107(1),
 204

Documents to be supplied- Allegation that summons issued under S. 108(1)

of Customs Act not supplied to the detenu despite demand — S. 61, Criminal
Procedure Code, 1973 requiring the summons to be in writing - In view of
positive case of the State that no summons had been issued and the detenu
had only been orally directed to attend the office of the authorities concerned,
held, no summons was in existence and therefore, detenu suffered no
prejudice - COFEPOSA Act, 1974, S. 3(l).2i8
Documents to be supplied - Bail application and bail order - Constituted
vital materials - Non-consideration of, by detaining authority or non-supply
of copies thereof to detenu would be violative of Art 22(5) and continued
detention would be illegal - Constitution of India, Art. 22(5)
The appellant-detenu was intercepted at Trivandrum Airport and was
arrested and produced before Chief Judicial Magistrate on January 31,1988 on
charge of smuggling of gold. The Magistrate remanded him to judicial
custody till February 12, 1988 when he was granted bail on condition, inter
aha, that he would report before the Superintendent (Intelligence) Air
Customs, Trivandrum on every Wednesday until further orders, and that he
would not change his residence without prior permission of court to
"February 25,1988". Tlie Collector of Customs sent the proposal for detention
on May 275 1988 along with the draft grounds. In the Screening Committee
meeting held on June 21, 1988 the detenu's case was considered to be fit for
detention under the COFEPOSA Act. The impugned order of detention was
thereupon passed on June 25S 1988 under S. 3(l)(i) of COFEPOSA Act by the
Home Secretary, Government of Kerala with a view to prevent the appellant
from smuggling gold. It was contended that non-furnishing of the bail
application and the bail order vitiated the detention order.
Held:
It is imperative that if the detenu was already in jail the grounds of
detention are to show the awareness of that fact on the part of the detaining
authority, otherwise there would be non-application of mind and detention
order vitiated thereby. In the present case it appears from the records that the
bail application and the bail order were furnished to the detaining authority
on his enquiry and therefore it cannot be said that the detaining authorit}' did
not consider or rely on them. It was stated in the grounds of detention that the
detenu was remanded to judicial custody and he was subsequently released
on bail. The bail application contained the grounds for bail including that he
had been falsely implicated as an accused in the case at the instance of
persons who were inimi-cally disposed towards him, and the bail order
contained the conditions subject to which the bail was granted. Considering
the facts the bail application and the bail order were vital materials for
consideration. If those were not considered the satisfaction of the detaining
authority itself would have been impaired, and if those had been considered,
they would-be documents relied on by the detaining authority though not
specifically mentioned in the armexure to the order of detention and those

218. Poonam Lata v. M.L Wadhawan, (1987) 4 SCC 48,53:1987 SCC (Cri) 685: AIR 1987 SC
2098:1987 Cri L] 1924: (1987) 14 ECC 17.
 205

ought to have formed part of the documents suppUed to the deteriu with the
grounds of detention and without them the grounds themselves could not be
said to have been complete. It must therefore, be held that it amounted to
denial of the detenu's right to make an effective representation and that it
resulted in violation of Art. 22(5) rendering the continued detention of the
detenu illegal and entitling the detenu to be set at liberty in this case. 2^9
Documents to be supplied - Only copies of documents on which order
of detention primarily based should be supplied to detenu and not any and
every document. 220
Material document relied upon by detaining authority in forming its
subjective satisfaction - Copy of, not supplied to the detenu - Held, order
of detention rendered void - COFEPOSA Act, 1974 (52 of 1974), S. 3.221
Material document relied upon by detaining authority in forming its
subjective satisfaction - Copy of, not supplied, to the detenu - Held, order
of detention rendered void - COFEPOSA Act, 1974 (52 of 1974), S. 3.222
Non-supply of relevant documents to detenu - Copies of statements
recorded under S. 161, CrPC furnished long after passing of order of
detention and communication of the grounds - Held, order of detention
illegal and bad. 223
Basic facts and materials which influenced the mind of detaiiaing authority
in making detention order must be supplied to the detenu within the time
stipulated in S, 3(3), COFEPOSA Act, 1974 (52 of 1974) - All the documents
and materials relied upon by the detaining authority in passing the order of
detention must be supplied to the detenu, as soon as practicable, to enable
him to make an effective representation.
In the instant case, the materials and documents which were not
supplied to the detenu were evidently a part of those materials which had
influenced the mind of the detaining authority in passing the order of
detention. In other words, they were a part of the basic facts and materials,
and therefore, should have been supplied to the detenu ordinarily within five
days of the order of detention, and, for exceptional reasons to be recorded,
within fifteen days of the commencement of detention as contemplated in S.
3(3) of the COFEPOSA Act.224
Copies of material documents referred to in the grounds of detention cannot
be denied to the detenu on the mere ground that the detenu was already

219. M Ahamedkutty v. Union of India, (1990) 2 SCC1,13,16:1990 SCC (Cri) 258.

220. Madan LalAnandv, Union of India, (1990) 1 SCC 81: 1990 SCC (Cri) 51: AIR 1990 SC
176: (1990) 25 ECC 277:1990 Cri L] 659: (1990) 45 ELT 204.
221. Thakor Mulchandani v, Asstt Secy., Govt of Maharashtra, (1982) 3 SCC 321: 1983 SCC
(Cri) 30: AIR 1982 SC 1221:1982 Cri L] 1730.
222. Yumnam Mangibabu Singh v. State of Manipur, (1982) 3 SCC 18: 1982 SCC (Cri)
627: AIR 1983 SC 300.
223. State of U.P. v. Kamal Kishore SainL (1988) 1 SCC 287, 292, 296:1988 SCC (Cri) 107(2):
AIR 1988 SC 208:1988 Cri L] 405.
224. Lallubfiai jogibhai Patel v. Union of India, (1981) 2 SCC 427, 435:1981 SCC (Cri) 463; AIR
1981 SC 728: (1981) 2 SCR 352:1981 Cri IJ 288:1981 ML] (Cri) 350.
 206

aware of the contents of those documents - Held, failure to furnish to the

on demand vitiated the detention - Constitution of India, Art 22(5).^25
Documents and materials forming part of grounds of detention - Whether
supplied to detenu or not? is a question of fact - Findings of High Court in
this regard not open to interference under Art 136 - Constitution of India,
Art 136.226

Documents and materials which form the basis of detention order must be
supplied to the detenu along with grounds of detention — Where grounds
of detention not accompanied by these documents and materials and disposal
of detenu's representation delayed for 25 days, held, continued detention of
the detenu void - Both Arts. 21 and 22(5) must be fully and strictly compUed
with - Goverrmient officials responsible for the lapse resulting in release of
the detenu must be held personally responsible or at least must owe an
explanation— Constitution of India, Arts. 21 and 22(5)
It is of the utmost importance that all the necessary safeguards laid
down by the Constitution under Art. 21 or Art. 22(5) should be compHed with
fully and shictly and any departure from any of the safeguards would void
the order of detention. The law of preventive detention has now to satisfy a
twofold test; (1) that the protection and the guarantee afforded under Art,
22(5) is comphed with, and (2) that the procedure is just and reasonable. If a
procedure under Art. 21 has to be reasonable, fair and just, then the words
'effective representation' appearing in Art. 22(5) must be construed so as to
provide a real and meaningful opportunity to the detenu to explain his case to
the detaining authority in his representation. In this view of the matter, unless
the materials and documents relied on in the order of detention are supplied
to the. detenu along with the grounds, the supply of grounds simpliciter
would give him not a real but merely an illusory opportunity to make a
representation to the detaining authority.
For the above reasons the continued detention of the detenu is void,
whenever a detention is struck down by the High Court or the Supreme
Court, the detaining authority or the officers concerned who are associated
with the preparation of the grounds of detention, must beheld personally
responsible and action should be taken against them for not complying with
the constitutional requirements and safeguards (viz. delay in disposing of the
representation, not supplying the documents and materials reUed upon in the
order of detention pari passu the order of detention, etc. etc.) or, at any rate,
an explanation from the authorities concerned must be called for by the
Central Government so that in future persons against whom serious acts of
smugghng are alleged, do not go scot-free. In the instant case, not only were
the documents and materials not supplied along with the order of detention,
but there has been a delay of about 25 days in disposing of the representation

225. Mehmnissa v. State of Maharashtra, (1981) 2 SCC 709:1981 SCC"(Cri) 592: AIR 1981 SC
1861:1981 Cri LI 1283,
226. State of Gujarat v. jat Harun Dadn, (1981) 4 SCC 659; 1982 SCC (Cri) 27: AIR 1981 SC
2238: 1981 Cri LJ1872.
 207

of the detenu and no explanation for the same has been given. These are
matters which must be closely examined by the government. 227
Documents forming basis of the grounds of detention not supplied to the
detenus —Detention, held, improper.228
Documents which are only referred to in the grounds of detention must also
be supplied along with the grounds - Constitution of India, Art 22(5).
Once the documents are referred to in the grounds of detention it
becomes the bounden duty of the detaining authority to supply the same to the
detenu as part of the grounds or pari passu the grounds of detention. There is
no particular charm in the expressions 'relied on', 'referred to' or 'based on'
because ultimately all these expressions signify one thing, namely, that the
subjective satisfaction of the detaining authority has been arrived at on the
documents mentioned in the grounds of detention. The question whether the
grounds have been referred to, relied on or based on is merely a matter of
describing the nature of the grounds. This having not been done in the present
case the continued detention of the petitioner must be held to be void .229
Failure to supply the documents and materials forming basis of detention
order to the detenu along with the of detention and unexplained delay of
a month in disposing of the detenu's representation would render continued
detention of the detenu void - Constitution of India, Art 22(5).230
Supply of copies of documents on which detention order is based— Held,
mandatory under National Security Act also, like that under COFEPOSA
Act.231

Detenu, held, deprived of his right of representation by delayed supply of

some of the documents relied upon in the order of detention — Detention
rendered void — Constitution of India, Art, 22(5).232
Non-production of relevant and vital materials before detaining authority
— Application of the co-accused as well as statement made in the bail
application filed on behalf of the detenus alleging that the detenus had been
falsely implicated and pohce report thereon not produced before detaining
authority before passing the detention order - Held, order of detention
invaUd and illegal - National Security Act, 1980, S. 10. 233

227. Kamla Kanyalal Khusalini v. State of Maharashtra, (1981) 1 SCC 748, 751-753:1981 SCC
(Cri) 287; AIR 1981 SC 814: (1981) 2 SCR 459:1981 Cri LJ 353,
228. Ana Carelina D'Souza v. Union of India, 1981 Supp SCC 53(1): 1982 SCC (Cri) 131: AIR
1981 SC 1620:1981 Cri L] 1277,
229. Kirit Kumar Chaman Lai Kundaliya v. Union of India, (1981) 2 SCC 436:1981 SCC (Cri)
471: AIR 1981 SC 1621: (1981) 2 SCR 718:1981 Cri LJ 1267: (1981) 22 GLR 1067.
230. Virendra Singh v. State of Maharashtra, (1981) 4 SCC 562:1981 SCC (Cri) 874: AIR 1981
SC 1909:1981 Cri LJ 1283.
231. Aziz V. Delhi Minn,, (1981) 3 SCC 557:1981 SCC (Cri) 742: AIR 1981 SC 1389:1981 Cri L]
1011.
232. Tararnati Chandulal Sejpa! v. State of Maharashta'a. (1981) 2 SCC 17:1981 SCC (Cri) 314:
AIR 198 ISC 871:1981 Cri L] 445.
233 State of U.P. V. Kamal Kishore Saini, (1988) 1 SCC 287, 2925 296:1988 SCC (Cri) 107(2):
AIR 1988 SC 208:1988 Cri LJ 405.
 208

Non-supply of copies of documents relied upon by detaining authority in the

detention order, along with grounds of detention, would render continued
detention of the detenu void.234
(iii) Documents and materials which need not be supplied
Particulars to be supplied - If ground supported is precise containing all
relevant details, held, absence of those details, in extracts of CID report
enclosed with the would not vitiate the detention on ground of denial of
opportunity to make effective representation and non-application of mind —
Extracts to be read together with the ground - National Security Act, 1980,
S. 3(2), (3).
The ground of detention mentioned each and every one of the material
particulars which the respondent was entitled to know in order to be able to
make a full and effective representation against the order of detention. This is
not a case in which the ground of detention contains a bare or bald statement
of the conclusion to which the detaining authority had come, namely, that it
was necessaiy to the order of detention in order to prevent the detenu from
acting in a manner prejudicial to the interest of public order. The CID report
was furnished to the detenu as forming the source of information leading to
the conclusion that he had made a speech which necessitated his detention in
the interests of public order. In the circumstances, the grounds and the
material fur-to the detenu have to be read together as if the material in the
form of the CID report was a continuation of the ground of detention.
Although the extiacts of the CID report did not refer to the details which were
mentioned in the ground, that did not cause any prejudice to the respondent,
nor did that intioduce any obscurity in the facts stated in that ground or
detract from the substance of the allegations mentioned in that ground. The
detaining authority had before it the whole of the CID report on the basis of
which it passed the order of detention. What was omitted from the extract
furnished to the respondent was incorporated in the ground. It is therefore,
not possible to accept the argument that the of detention was bad because the
detaining authority did not apply its to the question as to whether there was
material on the basis of which the respondent could be detained.

The detenu is not entitled to be informed of the source of information

received against him or the evidence which may have collected against him
as? for example, the evidence corroborating that the report of the CID is tiue
and correct. His right is to receive every material particular without which a.
full and effective representation cannot be made. If the order of detention
refers to or relies upon any document, statement or other material, copies
thereof have, of course, to be supplied to the detenu. But the furnishing of the
CID report, of which a tiuncated extract was furnished to the respondent, was
a superfluous exercise in the light of the facts of the instant case.
However, the detaining authority lessly applied his scissors excising
the which mentioned the date, the place, the tim.e and the occasion of the
meeting. While passing orders of detention, great care be to bear on their task

234. Ram Baochan Dubey v. State of Maharashtra, (1982) 3 SCC 383:1983 SCC (Cri)
 209

by the Preventive detention is a necessary evil but essentially an evil

Therefore, deprivation of personal liberty, if at all, has to be on the strict terms
of the Constitution.235
Documents and materials reHed upon in grounds of detention - Respondent
claiming privilege in respect of document not suppHed - But proper affidavit
not filed - Hence privilege claim fails and detention is vitiated -
Affidavit.236
Documents materials to be supplied - confidential source of information
reUed on in making the detention order - need not be supplied to the detenu.
The detenu is not entitled to a disclosure of the confidential source of
information used in the grounds or utilised for the making of the order. What
is necessary for the making of an effective representation is the disclosure of
the and not the source thereof. By indicating that the facts have been gathered
from confidential reports, a suggestive disclosure of the source has also been
made. In the present case there had been no infraction of the law in not
supplying the respondent copies of the reports or disclosing the source
thereof. The respondent had actually been given in the grounds all material
details necessary for making an effective representation.237
Documents to be supplied to detenu - Copies of documents (bail application
filed by detenu himself) not relied upon but only incidentally referred to in
the grounds — Refusal to supply, if not handicapped the detenu in making
effective representation, would not violate Art, 22(5) and vitiate the
detention— Gujarat Prevention of Anti-Social Activities Act, 1985, S. 3(1) —
of India, Art 22(5).238
Non-supply of copies of documents which are not material documents will
not vitiate the detention - COFEPOSA Act, 1974, S.3(l).
The application for relaxation of the conditions of bail submitted by the
petitioner and the order relaxing the conditions of bail passed by the
Additional Chief Metropolitan Magistrate on the said application were not
material documents and were not required to be considered by the detaining
authority. Therefore, the non-supply of the copies of the same to the petitioner
would not result in denial of the right of the petitioner to make a
representation under Art. 22(5). 239
Non-supply of relevant document viz, bail application and order
thereon - Bail application having been rejected after passing of detention
order, neither considered by detaining authority in coming to his subjective

235. State of Punjab v. Jagdev Singh Talwandi, (1984) 1 SCC 596, 603, 606: 1984 SCC (Cri)
135: AIR 1984 SC 444:1984 CriLJ 177,
236. Dina Nath Anand v. Administrator, (1983) 2 SCC 252:1983 SCC (Cri) 388.
237. State of v. Shamsher Singh, 1985 Supp SCC 4165 430: 1935 SCC (Cri) 421: AIR lOS'i SC:
1082:1985 CriLJ 1348.
238. Abdul Sattar Abdul Kadar Shaikh v. Union of India, (1990) 1 SCC 480: 1990 SCC: (Cri)
242.
239. M. Mohd. Sultlian v. Jt. Secy, to Govt of India, (1991) 1 SCC 144: 1991 SCC (Cri) 104:
AIR 1990 SC 2222:1990 Cri LJ 2473.
 210

satisfaction, nor referred to in grounds - In the circumstances held, non-

supply of the documents to the detenu did not prejudice him in making
effective representation - Interim order of Supreme Court in SLP against
rejection of bail that the detenu shall not be arrested in the meantime, not
relevant as that SLP was not against the detention order. Syed Farooq
Mohammad v. Union of India, (1990) 3 SCC 537, 544, 545:1990 SCC (Cri) 500:
AIR 1990 SC 1597:1990 Cri LJ1622,
Binod Singh v. Distiict Migistiate, Dhanbad, (1986) 4 SCC 416:1986 SCC (Cri)
490: (1986) 3 SCR 905; Suraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC
378:1986 SCC (Cri) 452: AIR 1986 SC 2177, distinguished
Supply of relevant documents to detenu - It is not necessary to furnish to
the detenu copies of all the documents under S. 37 of the FERA from him
which are not material and relevant for reaching subjective satisfaction of
detaining authority merely because they were mentioned in pan-chnama -
Moreover in absence of any application from the detenu requesting
detaining authority to furnish copies of such documents, held, detention
order not vitiated on ground that failure to supply those documents infringed
fundamental right to make effective representation - Constitution of India,
Art 22(5) - Foreign Exchange Regulation Act, 1973, S. 37 - National Security
Act, 1980, S. 3, Haridas Amarchand Shah v. K.L Verma, (1989) 1 SCC 250,
254 255:1989 SCC (Cri) 111: AIR 1989 SC 497: 1989 Cri LJ 983: (1989) 19 ECC
196.
Ashadevi v. K. Shiveraj, (1979) 1 SCC 222: 1979 SCC (Cri) 262 and Ashok
Kumar v. Union of India, (1988) 1 SCC 541:1988 SCC (Cri) 193, distinguished
Detaining authority not bound to disclose and supply to the detenu
intelligence report or history-sheet, relied upon in passing detention
order - Constitiition of India, Art. 22(6). Wasiuddm Ahmed v. D.M., (1981) 4
SCC 521, 532:1982 SCC (Cri) 4: AIR 1981 SC 1981 Cri LJ 1825.
Documents and materials forming basis of detention — Once supplied to
the detenu, held, further information regarding particular grounds which
influenced subjective satisfaction of detaining authority not required to be
furnished - Authorities also not bound to furnish legal information such as
the particular provisions of law prohibiting the smuggling activity alleged in
the grounds - Constitution of India, Art. 22(5)
When an order of detention together with the grounds of detention is
served on a detenu, the detenu may ask for particulars on which a ground is
based if they are not already there. When a document containing what are
called "grounds" which often consist of the background of a case, narration of
facts and instances of tiie detenu's activities, is supphed to the detenu, the
detenu is not entitled to know which part or parts of the *'grounds" was or
were taken into consideration and which not. The Court may not take mto
consideration any reply given by the detaining authority to such an enquiry,
for, the reply may be an afterthought. It will be for the Court to judge whether
the facts narrated constitijte a ground of detention or which facts might
possibly enter and influence the detaining authority in cornmg to its sub-
jective satisfaction. In the present case the request of the detenu for
 211

"information" whether his detention was inter aha based on seizures of certain
articles mentioned in the list of grounds of detention and the reply of the
authority to the request were irrelevant.
Further, the Government is not under any Uability to furnish the
detenu with legal information available from legal literature. The Uability of
the detaining authority is only to comply with the requirement of Art, 22(5) of
the Constitution. In the present case, therefore, the "information" sought by
the detenu regarding the provision under which the import of the article in
question (Palladium) is prohibited is untenable, for it is an information on a
question of law and can be obtained from statutes, rules or notifications.
Moreover, the plea that the Goverimient's failure to furnish, him with that
"information" prevented him filing a proper representation is not permissible
on the ground of public policy, for, any detenu may plead that he does not
know whether the entry of the item smuggled by him is restricted.^^o
Copy of State Government's order under s. 3 (3) of NJSL Act, 1980,
authorizing District Magistrate or Commissioner of Police to make order of
detention not required to fee supplied to detenu.
The Act does not provide for supplying a copy of an order under S.
3(3) of the Act. The said order has not been relied upon by the Commissioner
of Police in passing the impugned of detention in the present case. Though by
virtue of the order passed under S. 3(3), the Commissioner of Police could
exercise the powers of the detaining authority under that section, but that has
nothing to do as to the subjective satisfaction of the Commissioner of Police in
making the impugned order of detention. ^41
Documents to be suppUed — Copies of FIRs — Where under S. 173(5), CrPC
all the documents or relevant extiacts thereof on which the prosecution relied
on in criminal cases against the detenu "were supplied to him, held, failure to
furnish copies of FIRs filed against him would not deprive him of his right to
make effective representation. ^42
Failure to furnish copy of a mere forwarding letter which does not form the
basis of grounds of detention would not vitiate the detention order. 243
Failure to supply the documents materials which are only casually or pass-
ingly referred to in the course of narration of the facts in the grounds of
detention and are not relied upon by the detainiaig authority in making
detention order, held5 would not render the detention illegal.244

240. Hemlata Kaniilal Shah v. State of Maharashtra, (1981) 4 SCC 6475 654- 1982 SCC (Cri)
16: AIR 198 ISC 8.
241. Jitender Tyagi v. Delhi Admn., (1989) 4 SCC 6539 661:1989 SCC (Cri) 787- AIR 1990 SC
487. '
242. Wasiuddin Ahmed v. D.M, (1981) 4 SCC 521, 531, 532: 1982 SCC (Cri) 4- AIR 1981 SC
2166:1981 Cri IJ 1825.
243. S. Gayathri v. Commr. of Police, (1981) 4 SCC 171: 1981 SCC (Cri) S i r AIR 1981 SC
1672.
244. LM.S. Ummu Saleerna v. B.B. Gujaral, (1981) 3 SCC 317, 320: 1981 SCC (Cri) 720- AIR
1981 SC 1191: (1981) 3 SCR 647:1981 Cri L] 889.
 212

Particulars to be supplied to the - Evidence gathered by detaining authority

against detenu and details of sources of information need not be furnished to
the detenu.245
Documents and material relied upon in grounds - Intelligence report - No
privilege against disclosure of, claimed - But failure to furnish copy of
intelligence report, on facts held, caused on prejudice to the detenu as ade-
quate material had been supplied to him.^^^
The documents are such that even in their absence subjective satisfaction
would not be affected, then failure to place the documents before the
detaining authority would be immaterial - Documents having bearing on the
subjective satisfaction of detaining authority but not relied upon by him must
be placed before the detaining authority at the time of passing of detention
order.-"^^
The grounds of detention served along with the order are nothing but a
narration of facts.2^**
The 'grounds' under Art, 22(5) of the Constihition do not mean mere
factual inferences but mean factual inferences plus factual material which led
to such factual inferences. -''^
Scope of the word 'grounds' - Basic facts and subsidiary facts
While the expression 'grounds' includes not only conclusions of fact
but also all the "basic facts" on which those conclusions were founded, they
are different from subsidiary facts or further particulars or the basic facts.^so
Constituents of — 'Basic facts' and 'subsidiary facts' — Distinction between
- Non-compliance of S. 3(3), COFEPOSA Act and Art, 22(5) in
communicating basic facts to the detenu would be fatal to the detention order,
but a marginal delay in furnishing supplementary or additional materials
may in the particular circumstances not vitiate the detention — Where
grounds elaborately stated contained basic facts, delay of 17 days in fur-
nishing copies of documents and particulars relied upon in the grounds of
detention, being only additional in nahjre, held in the totality of facts and
circumstances of the case, not so unreasonable as to deny detenu's right to
make effective representation - COFEPOSA Act, 1974, 5. 3(3) - Constitution
of India, Arts. 19, 21 and 22.

245. State of Punjab v, Jagdev Singh Tal-wandi, (1984) 1 SCC 596, 608: 1984 SCC (Cri) 135-
AIR 1984 SC 444:1984 Cn Lj 177.
246. . Asha Keshavrao Bhosale v, Union of India, (1985) 4 SCC 361, 367- 1985 SCC (Cri) 561-
AIR 1986 SC-283.
247 Madan Lai Anand v. Union of India, (1990) 1 SCC 81, 88 to 90- 1990 SCC (Cri) 51- AIR
1990 SC 176: (1990) 25 ECC 277:1990 Cri L] 659: (1990) 45 ELT 204.
248. K. Aruna Kumari v. Govt, of A.P., (1988) I SCC 296, 305, 306: 1988 SCC (Cri) 116- AIR
1988 SC 227:1988 Cri LJ 411.
249. Prakash Chandra Mehia v. Commr. and Secv., Govt of Kerala, 1985 Supp SCC 144 166-
1985 SCC (Cri) 332: AIR 1986 SC 687.
250. Prakash Chandra Mehtd v. Commr, and Sec\., Govt, of Kerala, 1985 Supp SCC 144-167-
1985 SCC (Cn) 332: AIR 1986 SC 687.
 213

The expression 'grounds' in Art. 22(5), and for that matter, in S. 3(3) of
the COFEPOSA Act, includes not only conclusions of fact but all the 'basic
facts' on which conclusions are founded. The basic facts are different from
subsidiary facts or further particulars of the basic facts. If in a case the so-
called 'grounds of detention' communicated to the detenu lack the basic or
primary facts and this deficiency is not made good and communicated to the
detenu within the period specified in S. 3(3), the omission will be fatal to the
vaUdity of the detention. If, however, the grounds communicated are
elaborate and contain all the 'basic facts' but are not comprehensive enough to
cover all the details or of the 'basic facts', such particulars, must be suppUed to
the detenu, if asked for by him with reasonable expedition, within a
reasonable time. What is reasonable time conforming with reasonable
expedition, required for the supply of such details or further particulars, is a
question of fact depending upon the facts and circumstances of the particular
case. In the circumstances of a given case, if the time taken for supply of such
additional particulars, exceeds marginally, the maximum fixed by the statute
for communication of the grounds, it may still be regarded 'reasonable', while
in the facts of another case, even a delay which does not exceed 15 days, may
be unjustified, and amount to an ii\fraction of the constitutional imperative of
affording the earUest opportunity for making the representation.
In the instant case, the grounds supplied to the detenu were elaborate
and full and contained all the 'basic facts', although they did not set out all the
details or particulars of those 'basic facts' relied upon or referred to therein.
There was thus no breach of the first constitutional imperative embodied in
Art. 22(5).
However, there had been a delay of about 17 days (excluding the time
taken for communications in hansit) in the supply of the further particulars of
the basic facts to the detenu. But in the facts and circumstances of the case the
period of 17 days was not an unreasonably long one which could amount to a
denial of the detenu's right to make an effective representation. Several causes
had contributed to this 'delay'. [The Supreme Court after con-the
circumstances found them relevant for condoning the delay and that the
delay of 17 days could not be said to be so unreasonable as to amount to an
infractionof Art. 22(5)].251

Interference of Court with grounds - Court carmot examine the propriety or

sufficiency of the grounds - Prevention of Black-marketing and Maintenance
of Supphes of Essential Commodities Act, 1980, S. 3.
The subjective satisfaction of the detaining authority as regards the
factiial existence of the condition on which the order of detention can be
made, namely, the grounds of detention constitute the foundation for the
exercise of the power of detention and the court carmot be invited to consider
the propriety or sufficiency of the grounds on which the satisfaction of the
detaining authority' is based. Nor can the court, on a review of the grounds.

Hansmukh v. State of Gujarat, (1981) 2 SCC 175: 1981 SCC (Cri) 387: AIR 1981 SC 28-
(1981) 1 SCR 353:1981 ML] (Cri) 172.
 214

substitute its own opinion for that of the authority. In the instant case the
ground of detention was only one, viz, the detenu was acting prejudicial to
the maintenance of supplies of commodity, that is, levy cement, essential to
the community by diverting it.to the open market. The question whether the
deteni was acting in a maimer prejudicial to the maintenance of supplies
essential to the life of the community is a matter of inference to be drawn
from facts. It appears from the grounds, i.e., the facts set out that the detenu
had made a statement admitting that he had diverted 600 bags of levy cement
issued to him for use in the masonry ballast wall along the railway track and
therefore the District Magistrate was justified in coming to the con-elusion
that he (the detenu) was acting in a manner prejudicial to the maintenance of
supplies of the commodity essential to the community.252
Reliance inter alia on certain grounds found to be bad and unsustainable
would be fatal to the entire order of detention — National Security Act, 1980
(65 of 1980), Ss. 3 and 8.253
(b) What should be stated in grounds
Criminal cases in which detenu found to be not guilty was acquitted — Held,
cannot form part of the grounds and hence cannot be taken into consideration
- National Security' Act, 1980 (65 of 1980), Ss, 3(2) and 8.254
It is not necessary to mention in the grounds the reaction of the detaining
authority in relation to every piece of evidence separately — Detaining
authorit}^'s view that not much credence could be attached to a particular
document need not be mentioned in the grounds especially when it was
stated in the grounds that the detaining authority formed his opinion after
consideration of that document - COFEPOSA Act, 1974, S, 3.255
Mere allegations against the detenu in an FIR, without showing that the
authorities had any vahd reasons to believe those allegations to be true —
Held, cannot constitute a ground even while the case registered on that
complaint pending trial.256
Particular of prejudicial activities need not be specified in the detention order
if subsequently furnished in ground of detention— National Security Act,
1980, S. 3.
A notification dated February 8, 1982 was published in the Gazette
specifying 16 items of supplies and services and which were essential to the
community. An order of detention was passed thereafter under S. 3(2) read
with S. 3(3) of the National Security Act against the respondent without

252. K, Aruna Kumari v. Govt, of A,P., (1988) 1 SCC 296, 305? 306: 1988 SCC (Cri) 116: AIR
1988 SC 227:1988 Cri LJ 411.
253. Simla Dewan v. Lt.-Governor, (1982) 2 SCC 469:1982 SCC (Cri) 484: AIR 1982 SC 1257:
1982 Cri LJ 1737.
254. Simla Dewan v. Lt.-Governor, (1982) 2 SCC 469: 1982 SCC (Cri) 484: AIR 1982 SC 1257:
1982 Cri L] 1737.
255. State of Gujarat \, Sunil Fulchand Shah, (1988) 1 SCC 600, 604: 1988 SCC (Cri) 201: AIR
1988 SC 723: (1988) 16ECC 16: (1988) 1 Crimes 854.
256. Bunla Dewan \. Lt.-Governor, (1982) 2 SCC 469:1982 SCC (Cri) 484: AIR 1982 SC 1257:
1982 Cri L] 1737.
 215

specifying the particulars of the activities of the detenu which were

prejudicial to the essential supplies and services. But the grounds of
subsequently served on the detenu contained full particulars in that regard.
Before the High Court the detenu inter alia contended that in absence of
specification in the detention order as to which particular supply and/or
service the detaining authority had in mind while making the order, the order
was bad. Accepting the contention the High Court set aside the order.
Held:
It is manifest from the statutory scheme that the detenu's right to
represent is after the grounds are served on the detenu. 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. ^57
(c) Reading of the grounds
Detention order must be read with the grounds
In actual practice the grounds supplied operate as an objective test for
determining the question whether a nexus reasonably exists between grounds
of detention and the detention order or whether some infirmities had crept in.
A conjoined reading of the detention order and the grounds of detention is
therefore necessary.258
Mode of interpreting 'grounds'
The concept of 'grounds' has to receive an interpretation which will
keep it meaningfully in tune with the contemporary notions of the realities of
the society and the purpose of the Act in question in the light of concepts of
liberty and fundamental freedoms guaranteed by Arts. 19(1), 21 and 22 of the
Constitution. Reviewing several decisions in the case of Hasmukh Bhagwanji
v. State of Gujarat, (1981) 2 SCC 175:1981 SCC (Cri) 387, Supreme Court held
that a democratic Constitution is not to be interpreted merely from a
lexicographer's angle but with a realisation that it is an embodiment of the
living thoughts and aspirations of a free people. The concept of 'grounds'
used in the context of detention in Art. 22(5) of the Constitution and in sub-
section (3) of S. 3 of COFEPOSA, therefore, has to receive an interpretation
which will keep it meaningfully in tune with contemporary notions. ^59
Preamble or infa-oductory para — Whether part of the grounds is to be seen on
the facts and circumstances of each case - On facts held, the first para of the
grounds was only a preamble - Hence its vagueness not fatal.

257. DM. V. Sarat Mudoi, (1984) 1 SCC 25, 27, 28:1984 SCC (Cri) 21: AIR 1984 SC 43.
258 State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, 43:1990 SCC (Cri) 1: AIR 1990 SC
231:1990 Cri LJ 584.
259 Prakash Chandra Mehra v. Commr. and Secy., Govt of Kerala, 1985 Supp SCC 144S
166,167:1985 SCC (Cri) 332: AIR 1986 SC 687.
 216

The grounds of detention may contain a preamble or introductory

paragraph. The preamble betokens that which follows. It is a preliminary
statement, a preface, a prelude.
Whether a particular paragraph in the grounds amounts only to a
preamble or introduction is to be determined on the facts and circumstances
of each case and it is open to the court to come to its own conclusion whether
that paragraph is only an introductory para or contains the grounds on the
basis of which the detaining authority had the subjective satisfaction for
passing the order of detention.
In the present case the first paragraph of the grounds of detention, in
substance, only indicates the modus operandi adopted by the various
organizations to the current agitation on foreigners issue in Assam. The
second and third paragraphs of the grounds alleged a specific part played by
the detenu in the agitation. Reading the grounds of detention as a whole it is
clear that the first paragraph of the grounds was only a preamble, prelude or
introductory para. In view of this position the vagueness cannot be made a
ground of attack on the impugned order of detention.
[The observations made in Mohd. Yqusuf Rather case (1979) 4 SCC 370,
do not indicate that there can be no preamble or intioductory para in the
grounds of detention. The observations only mean all allegations of facts
which have led to the passing of the order of detention will form part of the
grounds of detention.j^^o
(d) Relevancy of grounds
(i) Generally
Relevancy — Ground of inciting and fomenting communal hatred and
violence and creating an atmosphere of fear and tension in the town— Grave
communal disturbances then prevailing in the town— Criminal cases
pending against detenu and detention order served in view of
possibility of detenu's release on bail — In the circumstances held, grounds
not irrelevant. 26i
Relevancy of grounds — Relevancy of single ground sufficient under S,
3(1) of COFEPOSA Act, 1974.
The Court is only concerned whether there are relevant materials on
which a reasonable belief or conviction could have been entertained by the
detaining authority on the grounds mentioned in S. 3(1) of the Act. Whether
other grounds should have been taken into consideration or not is not
relevant at the of the passing of the detention order. 262
Grounds — Relevancy of material —

260. Dhananjoy Das v. DM, (1982) 2 SCC 521: 1982 SCC (Cri) 488: AIR 1982 SC 1315: 1982
Cri L] 1779.
261. National Security Act, 1980, S, 3, v. State of U.P., (1983) 4 SCC 537, 539:1984 SCC (Cri)
16: AIR 1984 SC 46:1983 Cri LJ1785,
262. Prakash Chandra Mehta v. Commr. and Secy., Govt, of Kerala, 1985 Supp SCC 144,167:
1985 SCC (Cri) 332: AIR 1986 SC 687.
 217

Reading grounds together held, allegations made in the grounds were

factual inferences justifiably drawn from the circumstances — Hence grounds
cannot be held to be based on without material.^^s
Three incidents mentioned in the grounds — First and third incidents relating
to public order problem — Detention order passed pursuant to the third
incident — Held, mention of the first two incidents also in the grounds, not
fatal to the detention specially when the-first incident to the order problem —
Basis of detention — Public Order. ^64
Irrelevant ground— Ground of causing communal riot — Offences causing
outbreak of riot alleged to have been committed by detenu after 9 a.m. on
May 19 but communal riot breaking out in the night intervening between
18/19 May - Held, it was inaccurate to state that riot broke out due to the
incidents attributed to the detenu on May 19.265
(ii) Past records or antecedents of detenu
History sheet not linking to the proximity of two alleged incidents of
extorting money by threatening the shopkeepers and throwing bomb on
police party another day — Held on facts, 'detention order invahd. ^66
Past prejudicial conduct or antecedent of detenu when can be considered by
detaining authority.
The past conduct or antecedent history of a person can appropriately
be taken into account in making a detention order. It is indeed usually from
prior events showing tendencies or inclination of a man that an inference is
drawn whether he is likely in the future to act in a manner prejudicial to the
maintenance of pubUc order. Of course, such prejudicial conduct or
antecedent history should ordinarily be proximate in point of time and should
have a rational connection with the conclusion that the detention of the
person is necessary.267
Past antecedents of detenu — ReliabiUty of
It is usually from prior events showing or inclinations of a man that an
inference can be drawn whether he is likely, in the future, to act in a manner
prejudicial to the maintenance of public order. It is not correct to say that
merely because there was an acquittal of an 'anti-social element', the detaining
authority carmot take the act complained of leading to his trial into
consideration. ^68

263. Sonain Yongda v. State of Sikkim, (1986)3 SCC 594: 1986 SCC (Cri) 341: AIR 1986 SC
1736:1986 CriLJ 1606.
264. Yogendra Murari v. State of T.P., (1988) 4 SCC 559, 563: 1988 SCC (Cri) 992: AIR 1988
SCC 1835:1988 BLJR 592.
265. Shashi Aggarwal v. State of U.P., (1988) 1 SCC 436, 440: 1988 SCC (Cri) 178: AIR 1988
SC 596: 3 Crimes 184.
266. Gulab Mehra v. State of U.P., (1987) 4 SCC 3025 317: 1987 SCC (Cri) 721: AIR 1987 SC
2332.
267. Wasiuddin Ahmed v. D.M., (1981) 4 SCC 521, 534:1982 SCC (Cri) 4: AIR 1981 SC 2166:
1981 Cri LJ1825.
268. Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, 24:1984 SCC (Cri) 361: AIR 1984
SC 1334: 1984 Cri LJ 909.
 218

Past conduct or antecedent history can be taken into consideration —

The past conduct or antecedent history of a person can appropriately be taken
into account in making a detention order — It is usually from prior events
showing tendencies or inclinations of a man that an inference can be drawn
whether he is likely, in the future, to act in a manner prejudicial to the
maintenance of public order.^^^
Antecedents of detenu — Future conduct of detenu can be assessed on the
basis of his past conduct
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 notified items of supplies and services which
were essential to the community 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. 270
Relevancy of grounds — Anticipated behaviour based on past conduct
may provide sufficient ground
The power of preventive detention is precautionary power exercised
reasonably in anticipation and may or may not relate to an offence. It cannot
be considered to be a parallel proceeding. The anticipated behaviour of a
person based on his past conduct in the Ught of surrounding circumstances
may provide sufficient ground for detention. It cannot be said that the
satisfaction of the detaining authority on the basis of his past activites that if
the detenu were to be left at large he would indulge in similar activities in
future and thus act in a manner prejudicial to the maintenance of public order
etc. shall not be based on adequate materials.^^i
Relevancy of grounds — Past criminal record — Theft case against detenu
relied on the grounds — Recovery memo. — In absence of any past criminal
history on the part of detenu, held, statement found in recovery memo not
form basis of satisfaction for detention.272
(iii) ConsequepiCe of irrelevancy
Irrelevancy or non-existence of one of the grounds would not vitiate the
detention order in view of S. 5-A of COFEPOSA Act.
There is, no authority to hold that even if one of the grounds or reasons
which led to the subjective satisfaction of the detaining authority is non-

269. Fitrat Raza Khan v. State of U.P., (1982) 2 SCC 449: 1982 SCC (Cri) 472: AIR 1982 SC
146:1982 Cri L] 338.
270, D.M V. Sarat Mudoi, (1984) 1 SCC 25, 28:1984 SCC (Cri) 21: AIR 1984 SC 43.
271 State of Punjab v, Sukhpal Singfi, (1990) 1 SCC 35, 44:1990 SCC (Cri) 1: AIR 1990 SC
231:1990 Cri LJ 584.
272 Anand Prakasfi v. State of U.P., (1990) 1 SCC 291, 296: 1990 SCC (Cri) 96: AIR 1990 SC
516.
 219

existent or misconceived or irrelevant, the order of detention would be invalid

despite inti-oduction of S. 5-A of the COFEPOSA Act. 2^3
(e) Extraneous considerations
Detention based on single ground - Some extianeous materials also taken
into consideration by detaining authority in passing the detention order
— Held, detention order vitiated thereby and cannot be saved under S. 5-A of
National Security Act on the plea that the order could be sustained on the
basis of the ground itself — National Security Act, 1980, S. 5-A.
The contention based on S. 5-A of the National Security Act that the
extraneous materials have no bearing on the validity of this impugned order
which can be sustained on the material set out in the grounds of detention
itself carmot be sustained. Section 5-A can be invoked where there are two or
more grounds covering various activities of the detenu. In the present case the
order had been passed on the sole ground relatable to a single incident. The
conclusion is only on the basis that the extianeous materials, placed before the
detaining authority, might have influenced the mind of the detairung
authority. It is not on the ground that one of the grounds of the detention
order has become invaUd or inoperative for the mentioned in S. 5-A(a). ^^4
Detention on a ground which was not before the detaining authority at the
time of making detention order - refuting detenu's allegations in this
regard, without filing any affidavit - State's stand not acceptable
High Court's decision allowing habeas corpus petition, upheld — Practice —
Aftidavit.275

Extraneous consideration — Police report making averments reflecting

on character of detenu, though furnished with the sole ground, but not
mentioned in the ground itself— These averments, being extraneous in
nature, might have influenced the mind of the detaining authority — Hence
detention order vitiated by consideration of extraneous material — National
Security Act, 1980, S. 3(3).
An order of detention was passed against the detenu under S. 3(3) of
the National Act. The only ground of detention furnished to the detenu was
that he (along with the associates) had at the time of auction of liquor held in
the campus of CoUectorate threatened the bidders that they along with their
family members would be shot down if they dared to bid the shop falling
within his area and that when police officials advanced towards the detenu,
he fired gun-shots at the police party, exploded bombs and fled away creating
panic among the people and completely disturbing the public order. Along
VN^ith the ground of detention four documents viz. a report of SSP, a report of
SHO, a copy of the chik of the case registered against the detenu in connection

273. Pushpa Devi M. Jatia v. ML. Wadhawan. (1987) 3 SCC 367, 380:1987 SCC (Cri) 526: AIR
1987 SC 1748:1987 Cri LJ1888: (1987) 12ECC356,
274. Vashisht Narain Karwaria v. State of U.P., (1990) 2 SCC 629, 633, 634; 1990 SCC (Cri)
372: AIR 1990 SC 1272:1990 Cri L] 1311:1990 All LJ 296.
275. State of Maharashtra v. Ramesh Kumar Shobhraj Jain, (1988) 1 SCC 597: 1988 SCC
(Cri) 199: AIR 1988 SC 2138.
 220

with the incident stated in the ground and a copy of general diary relating to
the offence were furnished. The averments made in the police reports
unequivocally and clearly spell out that the detenu was a hardened criminal,
having a his control often committing heinous crimes, that many cases against
the detenu were registered in various police stations and that he was in the
habit of committing offences. Question was whether the sponsoring authority
had placed extraneous materials which had influenced the mind of the
detaining while passing the detention order and as such the detention order
was Hable to be quashed. Quashing the detention order.
Held:
The above averments which are extraneous touching the character of
the detenu, though not referred to in the grounds of detention, might have
influenced the mind of the detaining authority to some extent one way or
other in reaching the subjective satisfaction to the decision of directing the
detention of the detenu. Had these extraneous materials not been placed
before the detaining authority, he might or might not have passed this order.
The detention order was suffering from the vice of the consideration of
extraneous materials vitiating the validity of the order. "^^^
Vashisht Narain Karwana v. State of U.P., 1990 Cri LJ NOC 36 (AH), reversed
Extraneous considerations — Affidavit in opposition showing that in arriving
at the subjective satisfaction, detenu's association with a pohtical party
operating in the country — Whether consideration extianeous or irrelevant
which would vitiate the detention order, not considered. 277
(f) Vagueness of grounds
Vague grounds — Particulars about victims and places of offence alleged
against detenu not mentioned in grounds — Held, grounds vague —
Detenu could not make effective representation against his detention —
Hence detention order illegal and bad — Constitution of India, Art. 22(5).^78
Vague grounds violative of Art, 22(5) — Detenu alleged to be a dangerous
person within the meaning of S. 2(c) of Gujarat PASAA — In absence of
particulars regarding the victims and places of the alleged offences, held on
facts, grounds vague — Statement that the alleged activities of the detenu was
coming in the way of maintenance of public order also vague — In the
circumstances detenu not able to make proper and effective representation —
Hence, Art, 22(5) violated - Gujarat Prevention of Anti-Social Activities Act,
1985, Ss. 2(c) and 3(1) - Constitiition of India, Art 22(5).
Article 22(5) requires that the grounds must not be vague but must be
specific, relevant in order to enable the detenu to make an appropriate and
effective representation against the same before the Advisory Board as well as

276. Vashisht Narain Karwaria v. State of U.P., (1990) 2 SCC 629, 633: 1990 SCC (Cri) 372:
AIR 1990 SC 1272:1990 Cri LJ 1311:1990 All L} 296.
277. Merugu Sat\'anaravana v. State of A.P., (1982) 3 SCC 301: 1983 SCC (Cri) 18- AIR 1982
SC 1543:1982 CriLJ 2357,
278. jahangirkhar\ Fazalkhan Pathan v. Police Commr., (1989) 3 SCC 590, 595, 596:1989 SCC
(Cri) 664: AIR 1989 SC 1812: (1989) 3 Crimes 24.
 221

before other authorities ir\cluding detaining authority. The grounds and the
averments made in the grounds which were served on the detenu are vague
and as such they are violative of Art. 22(5). ^79
Pushkar Mukherjee v. State ofW.B., (1969) 1 SCC 10; Piyush Kantilal Mehta v.
Commr, of Police, Ahemdahad, 1989 Supp (1) SCC 322, relied on
Vagueness — Allegations should not be vague and general in nahire and
should be supported by particular incidents — On facts held, grounds
vague.2^0
Vagueness — Grounds to be construed in the context of facts.^^^
Vagueness — Absence of particulars or details regarding pendency of
many cases/offences as well as other allegations against detenu made in the
documents furnished along with the sole ground — Held, allegations vague
which prevented the detenu from making effective representation — Con-
stitution of India, Art. 22(5).
No particulars or details had been given in the police report enclosed
with the grounds of detention in regard to the alleged 'many cases/offences9
said to have been registered in various police stations against the detenu and
in regard to the allegations that he was a hardened criminal and had a gang
often committing heinous crimes and that it had become the habit of the
detenu to commit offences. There is therefore force in the submission that the
had been deprived of making an effective and purposeful representation as
envisaged under Art. 22(5). ^82
Vagueness — Facts on which conclusion regarding detention drawn by
detaining authority constitute the grounds — Document containing the
grounds must be read as a whole for ascertaining subjective satisfaction of the
authority — Vagueness of any ground will violate Art, 22(5) and render the
detention order void — But absence of minute details in the grounds will
not denote vagueness — Vagueness to be determined on facts and cir-
cumstances of each case— On facts held, grounds not vague — National
Security Act, 1980 (65 of 1980), S. 3(3) - Constitiition of India, Art. 22(5)
The grounds of detention must be in existence on the date when the
order was passed and the authority concerned has to be satisfied about the
grounds of detentioii on the date of the order and the satisfaction of the
detaining authority must be clear on the face of it from the grounds of
detention itself. The material facts on the basis of which subjective satisfaction
was derived for passing the order of detention become a part and parcel of
the grounds and must be supphed to the detenu. It is the document itself
which will be taken to be the proof of what weighed with the detaining

279. Abdul Razak Nannekhan Pathan v. Police Commr., (1989) 4 SCC 435 50:1989 SCC (Cri)
679
280. Piyush Kantilal Mehta v. Commr. of Police, 1989 Supp (1) SCC 322? 328:1989 SCC (Cri)
438: AIPv 1989 SC 491:1989 Cri LJ 956.
281. Shafiq Alimad v. D.M., (1989) 4 SCC 556:1989 SCC (Cri) 774: AIR 1990SC^00.
282. Vashisht Narain Karwaria v. State of U.P., (1990) 2 SCC 629, 634: 1990 SCC (Cri) 372:
AIR 1990 SC 1272:1990 Cri LJ 1311:1990 All LJ 296.
 222

authority while passing the order of detention and for this no extraneous
evidence is admissible.
The Inclusion of an or non-existent ground, among other relevant grounds is
an infringement of the right to be informed, as soon as may be, of the grounds
which led to the subjective satisfaction of the detaining authority and the
inclusion of an obscure or vague ground among clear and definite grounds is
an infringement of the right to be furnished with sufficient particulars to
enable the detenu to make a representation provided under Art. 22(5).
The question whether a particular ground is vague will depend on the facts
and circumstances of each case because vagueness is a relative term; If the
basic facts have been given in a particular case constituting the grounds of
detention which enable the detenu to make an effective representation,
merely because meticulous details of facts are not given will not vitiate the
order of detention. ^83
Vagiteness — Material disclosed vague with reference to the persons affected
or victimised by detenu as also time and place of such victimisation —
Consequently detenu unable to make an effective representation — Held,
detention order vitiated and violative of An. 22 (5). ^84
A.K. Roy V. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152, relied on
Vagueness — Separate incidents of extorting money from shopkeepers
by threatening them and of throwing bomb on police party causing panic
alleged in the grounds — Particular of names of persons who had been
threatened for money and names of witnesses in whose presence threat was
given or alleged bomb was thrown not furnished — Held, grounds vague —
Constitiition of India, Art. 22(5) - National Security Act, 1980, S. 3(2)
The grounds were vague and it was not possible for the detenu to give
an effective representation against the grounds which is one of the
requirements enjoined in Art, 22(5). The police personnel who witnessed the
incidents and those who recorded the FIR could have come forward to give
evidence. In such circumstances, the open statement made in the affidavit of
the Sub-Inspector of Police that the witnesses were afraid of disclosing then-
names and coming forward to give evidence is wholly incredulous and it
cannot be accepted. The prosecution of the appellant for the • substantive
offences can be properly proceeded with in this case. ^85
Ahdid Gaffer v. State ofW.B., (1975) 4 SCC 59:1975 SCC (Cri) 309, followed
Vagueness — Statement of witnesses who had deposed against detenu
supplied to detenu without disclosing their names — Detaining authority-
stating that disclosure of the names might have led to infliction of bodily
injuries or even death of the witnesses - Though " there may be certam

283. Dhananjoy Das v. AM., (1982) 2 SCC 521: 1982 SCC (Cri) 488: AIR 1982 SC 1315: 1982
Cri LJ1779.
284. Ahmedhussain Shaikhhussain v. Commr, of Police, Ahmedabad, (1989) 4 SCC 751, 757,
758:1990 SCC (Cri) 86: AIR 1989 SC 2274:1989 Cri LJ 2312.
285. Gulab Mehra v. State of U.P., (1987) 4 SCC 302S 318:1987 SCC (Cri) 721: AIR 1987 SC^
2332.
 223

situations where disclosure of names has to be withheld but question whether

on facts such withholding would by itself vitiate the detention order need not
be decided.286
Where each activity of the detenu is a separate ground by itself, then the order
of detention will not be vitiated merely because one of the grounds of
detention is vague or irrelevant — Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (52 of S. 5-A -Object and scope)
What S. 5-A provides is that where there are a number of grounds of
detention covering various activities of the detenu spreading over a period or
periods, each activity is a separate ground by itself and if one of the grounds
is irrelevant, vague or unspecific but the grounds are clear and specific, then
that by itself would not vitiate the order of detention of Gujarat v.
SonL (1981) 2 SCC 24:1981 SCC (Cri) 311: AIR 1981 SC1480: (1981) 2 SCR 500:
1981 Cri LJ 1042: (1981) 51 Com Cas 631.
Expressions like 'defence of India', 'relations of India with foreign powers'.
Security of India', 'security^ of the State' and acting in any manner prejudicial
to the maintenance of and services essential to the community so vague,
general broad as to be on ground of and uncertainty. Held, the first four
expressions are constitutional but:must be narrowly construed— The power
under the last expression is made subject to the prior enumeration and
publicity of the suppUes and services to be regarded as essential — National
Security Act, 1980, S. 3(1 )(a) & (2) Constitiition of India, Arts. 14,19 & 22(5).
It was contended on behalf of the petitioners that the various
regarding of detention in S. 3(l)(a) and (2) were so vague, and elastic that
besides not so grave conduct even lawful conduct can be included depending
on the whim and caprice of the detaining authority to the deti-iment of the
libert)' of the subject. Rule of law requires that citizens must know when
lawful conduct ends and unlawful conduct begins.
Held:
It is true that the vagueness and the consequent uncertainty of a law of
preventive detention bears upon the unreasonableness of that law. A person
cannot be deprived of his hberty by a law which is nebulous and uncertain in
its definition and application.
But expressions may not be capable of precise definition. Formulation
of definitions cannot be a panacea to the evil of vagueness and uncertainty.
Even so the impossibility of framing a definition with mathematical precision
camiot either justify the use of vague expressions or the total failure to frame
any definition at all which can furnish, by its inclusiveness at least, a safe
guideline for understanding the meaning of the expressions by the legislature.
But the point to note is that there are expressions which inlierently
comprehend such an infinite variety of situations that definitions, instead of
lending to them a definite meaning, can only succeed either in robbing them
of their intended amplitude or in making it necessary to frame further

286. Ahmedhussain Shaikhhussain v. Commr of Police, Ahmedabad, (1989) 4 SCC 751, 758:
1990 SCC (Cri) 86: AIR 1989 SC 2274:1989 Cri LJ 2312.
 224

definitions of the terms defined. Acts prejudicial to the 'defence of India',

'security of India', "security of the State', and 'relations of India with foreign
powers' are concepts of that nature which are difficult to encase within the
straitjacket of a definition. The use of language carries with it the
inconvenience of the imperfections of language.
What is expected is that the language of the law must contain an
adequate warning of the which may fall within the prescribed area when
measured by common understanding, In criminal law, the legislature vague
expressions.
If it is permissible to the legislature to enact laws of preventive
detention, a certain amount of minimum latitude has to be conceded to it m
order to make those laws effective. In other words, though an expression may
appear in cold print to be vague and uncertain, it may not be difficult to apply
it to life's practical realities. This process undoubtedly involves the possibility
of error but then, there is hardly any area of adjudicative process which does
not involve that possibility.
The impugned expressions in the very nature of things are difficult to
define. They cannot therefore, be struck down on ground of their vagueness
or uncertainty. In practice, courts must strive to give to those concepts a
narrower construction than what the literal words suggest. While construing
laws of preventive detention like the National Security Act, care must be
taken to restrict their application to as few situations as possible.
The same cannot, however, be said regarding the expression "acting in
any manner prejudicial to the maintenance of supplies and services essential
to the community", which supplies and services are essential to the com-
munity can easily be defined by the legislature. Reading it along with the
Explanation, this power is therefore capable of wanton abuse in that, the
detaining authority can place under detention any person for possession of
any commodity on the basis that the authority is of the opinion that the
maintenance of supply of that commodity is essential to the community. This
provision therefore violates Art. 21 on ground of vagueness and uncertainty.
The other part of the expression, namely "services essential to the
coiTtmunity" also requires a prior enumeration of the services as are
considered essential to the community'. People have to be forewarned if new
categories are to be added to the Hst of services which are commoi-ily accepted
as being essential to the communit}'.
Since the object of the above provision is justified, the power is not
being stiuck down and it is held, that no person can be detained with a view
to preventing him from acting in any manner prejudicial to the maintenance
of supplies and services essential to the munity unless, by a law or notification
or pubhshed fairly in advance, the supplies and services, the maintenance of
which is regarded as essential to the community and in respect of which the
 225

order of detention is proposed to be passed, are made known appropriately,

to the public. ^87
(g) State grounds
State or irrelevant or vague grounds sufficient to render detention order
invalid Grounds of detention must be pertinent and not irrelevant, proximate
and not state, precise and not vague. Irrelevance, stateness and vagueness are
vices, any single one of which is sufficient to vitiate a ground of detention.
And, a single vicious ground is sufficient to vitiate an order of detention.
In the present case the order and the grounds of detention were served
on the detenu-petitioner in November 1980 while the incidents enumerated in
one of the grounds were of the years 19745 1975,1977 and 1978. That ground
thus suffered from the vice of stateness because of the passage of time since
the happeriing of some of the incidents. Moreover, that ground was to the
effect that the detenu and his associates had terrorised the common man in
the area by various criminal acts which disturbance to public peace and
public safety. Several incidents were narrated to substantiate this ground.
Thus the incidents are related to'law and order' and not to the maintenance of
'public order5. That ground, therefore, also suffered from the vice of
irrelevance. Hence the detenu is entitled to be released, Shiv Prasad
Bhatnagar v. State of M.P. (1981) 2 SCC 456:1981 SCC (Cri) 489: AIR 1981 SC
870: (1981) 3 SCR 81:1981 Cri LJ 594,
State grounds - Proximity of time between events referred to in grounds and
passing of detention order — Determination of —Two old incidents of more
than 5 and 2 years prior to the date of order of detention mentioned in the
grounds — All the incidents proximate to each other showing history of
prejudicial activity of the detenu — Order of detention, if vitiated — National
Security Act, 1980, S. 3(2).
An order of detention was passed against the petitioner under S. 3(2) of
the National Security Act. The grounds of detention mentioned seven
incidents in which the petitioner was involved. Those incidents occurred on
March 20,1978, August 9,1980, July 13,1982, July 26,1982, September 8,1982,
Januaiy 1, 1983 and March 25, 1983 respectively. The petitioner contended in
the present writ petition that the first two grounds were state and not
proximate to the time when the detention order was made and therefore, they
were irrelevant and vitiated the detention order.
Held:
Per Chinnappa Reddy and Vamdarajan, //.
It is not open to the detaining authority either to pick up an old and
state incident and hold it as the basis of an order of detention under S. 3(2) of
the Act, or to contend that it has mentioned only to show that the detenu has
a tendency to create problems resulting Ln distiirbance to public order, for as a
matter of fact it has been mentioned as a ground of detention.

287. A.K. Roy v. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152; AIR 1982 SC 710:1982
Cri L] 340:1982 ML] (Cri) 524.
 226

In the present case the two were too remote and not proximate to the
order of detention. In absence of any provision in the National Security Act
similar to S. 5-A of the CQFEPOSA Act it cannot be postulated what view
would have been taken by the detaining authority about the need to detain
the petitioner under S. 3(2) of the Act if he had not taken into account the
and not proximate grounds into consideration in arriving at the subjective
satisfaction. Therefore, the petitioner's detention is unsustainable in law and
accordingly the detention order must be quashed.
Per Desni, ]. (dissenting)
The detaining authority may examine the history of the criminal
activity of the detenu and take into account a continuous course of conduct
showing repeated indulgence into prejudicial activity which may permit an
inference that unless preventive detention is resorted to it would not be
possible to wean away such person from such prejudicial activity, for
ordinarily a single stray incident may not, unless contiary is shown, be
sufficient to invoke the drastic power of preventive detention, However, if
there is a big time lag between the last of the events leading to the detention
order being made and the remote earUer event, the same cannot be tieated as
showing a continuity of criminal activity. But if events in close proximity with
each other are taken into account for drawing a permissible inference that
these are not or spasmodic events but disclose a continuous prejudicial
activit}^ the reference to earlier events camiot be styled as state or remote
which would vitiate the order of detention. The test of proximity is not a rigid
or mechanical test to be blindly appUed by merely counting the number of
months between the offending acts the order of detention. The question is
whether the past activities of the detenu are such that the detaining authority
can reasonably come to the conclusion that the detenu is likely to continue in
his unlawful activities.

In the present case if each event is examined in close proximity with

each other, the events of 1978 and 1980 referred to in the first two grounds
cannot be rejected as stiay or not proximate to the making of the detention
order. They provide the genesis of the continuity of the prejudicial activity of
the detenu and they appear to have been relied upon for that limited purpose.
Therefore, the detention order cannot be quashed on the short ground that
incidents set out in the first two grounds were state and irrelevant, ^ss
State ground— Two incidents regarding instigating members of a particular
community to communal violence referred to — Second incident taking place
after a lapse of a year — But both the incidents having rational nexus with the
subjective satisfaction of the detaining authority — Held, first ground not
state.289

State grounds' — Remoteness of — Alleged speeches of detenu referred to in

ground made in February or earlier and detention order passed in January

288. Kamlakar Prasad Chaturvedi v. Stati- of MP., (1983) 4 SCC 443, 445, 452:1983 SCC (Cri)
848: AIR 1984 SC 211.
289. Pitrat Raza Klian v. State of U.P., (1982) 2 SCC 449:1982 SCC (Cri) 472: AIR 1982 SC 146:
1982 Cri LJ 338.
 227

next year — But speeches mentioned in the ground as a part of the continuous
course of conduct brought out by the remaining grounds — Held, allegation
regarding speeches in the ground not too remote to make it irrelevant.^^o
Punitive and state order of detention— Commission of alleged criminal
offences by the detenu about one and a half years back forming basis of
detention order — No explanation given for failure to take action under
preventive detention \a^A^ at the earliest after commission of the offence —
Detenu appearing before magistrate on all dates of hearing in criminal case
pending against him for the alleged offences even after passing the detention
order but no reason given for failure to take him under custody during that
period — Held, the charge too to have any real nexus with the detention and
in the circumstances the detention is punitive rather than preventive in nature
and therefore, vitiated - COFEPOSA Act, 1974 (52 of 1974), S. 3(1). 29i
Alleged incidents about one year old — But proximity between the incidents
existing indicating detenu's criminal propensity — In the circumstances,
held, conclusion of the detaining authority that detenu was habitually
committing or abetting commission of offences, not open to interference by
Court - Bihar Control of Crimes Act, 1981, Ss. 2(d) & 12(2).
Upon the materials the DM in his order of detention under S. 12(2) of
the Bihar Control of Crimes Act, 1981 stated that he was satisfied that the
detenu was an anti-social element and was habitual in committing offences
punishable under Chs. XVI and XVII, IPC and as such his movements and
acts adversely affected the public order. The incidents referred to in the
grounds of detention showing criminal propensity of the detenu had taken
place one year prior to the date of passing of the detention order.
Held:
While adequacy or sufficiency is no ground for a challenge, relevancy
or proximity is relevant in order to determine whether an order of detention
was arrived at irrationally or unreasonably.
In the background of the present case and having regard to the
definition of anti-social element in S. 2(d) of the Bihar Control of Crimes Act,
if an appropriate authority charged with the implementation of the Act comes
to the satisfaction that the detenu is one who is habitually committing or
abetting the commission of offences, such a conclusion is neither irrational nor
unreasonable. Anti-social elements creating havoc have to be taken care of by
law. The power of preventive detention cannot be said to have been used to
clip the 'wings of the accused' who was involved in a criminal prosecution.
The fact that the detenu was in jail had been taken into consideration. All the
relevant documents were in fact supplied and no other document was asked
for. In the facts of this case and having regard to the nature of the offences, the
impugned order cannot be said to be invalid and improper one. There was.

290. Sonam Yongda v. State of Sikkim, (1986) 3 SCC 594: 1986 SCC (Cri) 341: AIR 1986 SC
1736:1986 Cri LJ1606.
291. Harnek Singh v. State of Punjab, (1982) 1 SCC 116:1982 SCC (Cri) 121: AIR 1982 SC 682:
1982 CriLJ 420.
 228

therefore, no ground- for the Court's interference with the order of

detention.292
Remoteness in time with the activity — Smuggled electronic goods seized on
February 4 — Detention order under COFEPOSA passed on September 19,
held, could not be said to be very remote from the fact of seizure of smuggled
goods. 293

Grounds of detention — Proximity of time between incidents mentioned in

the ground — Long lapse of time between two prejudicial acts or omissions of
the detenu—Whether detenu can be said to be habitual offender of public
order - Bihar Control of Crimes Act, 1981 (7 of 1981), S. 17.
Per Venkataramiah, J.
The third ground which is based on the pending Sessions case is no
doubt of the nature of acts or omissions referred to in sub-clause (i) of S. 2(d)
but the interval between the first ground which falls under this sub-clause
and this one is nearly eight years and carmot, therefore, make the petitioner a
habitual offender of the type falling under sub-clause (i) of S. 2{d).
PerA.P. Sen,}.
On merits the impugned order carmot be to be vitiated because of some
of the grounds of detention being non-existent or irrelevant or too remote in
point of time to furnish a rational nexus for the subjective satisfaction of the
detaining authority. ^94
(h) Solitary ground
Detention order based on solitary incident when proper — COFEPOSA Act,
1974, S. 3(1).
It was contended that there was no necessity to pass an order for the
detention of the petitioner because except the solitary incident mentioned in
the grounds of detention involving the recovery of seven gold bars from the
person of the petitioner there is no reference in the grounds of detention to
any antecedent activity involving smuggling of goods by the petitioner. It is
urged that a single incident could not afford the basis for arriving at the satis-
faction that the petitioner might repeat such acts in the future and it was
necessary to detain him in order to prevent him from doing so.
Held:
An order for preventive detention is founded on a reasonable
prognosis of the future behaviour of a person based on his past conduct
judged in the light of the surrounding circumstances. Such past conduct may
consist of one single act or of a series of acts. It must be of such a nature that
an inference can reasonably be drawn froin it that the person concerned

292. Raj Kumar Singh v. State of Bihar, (1986) 4 SCC 407, 412 to 415:1986 SCC (Cri) 481: AIR
1986 SC 2173:1986 CriLJ 2042.
293. Rajendra Prasad v. State of U.P., (1981) 4 SCC 558:1981 SCC (Cri) 870: AIR 1982 SC
1256.
294. Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, 26, 35: 1984 SCC (Cri) 361: AIR
1984 SC 1334:1984 Cri LJ 909.
 229

would be likely to repeat such acts as to warrant his detention. The question
which, therefore, needs to be considered is whether from the past conduct of
the petitioner as set out in the grounds of detention it could reasonably be
inferred that the petitioner would be likely to repeat such acts in the future.
In the present case the evidence would show that the petitioner was
indulging in. the activity of smuggling of gold as a carrier for monetary
consideration. This was a deliberate act on the part of the petitioner and he
had prepared himself for it by obtaining a passport in a false name and
acquiring requisite skill to conceal such a large quantity of gold in his body.
Taking into consideration the circumstances an inference could reasonably be
drawn that unless detained the petitioner would be likely to indulge in
smuggling of goods in future and, therefore, there was a reasonable basis for
the detaining authority to arrive at the requisite satisfaction. ^95
Solitary ground — When not sufficient to sustain detention — Further
grounds cannot be supplemented by filing affidavit — National Security Act,
1980, S. 3(3).
Even one ground may be regarded as sufficient if the activity alleged is
of such a nature that the detaining authority could reasonably infer that the
detenu must be habitually engaged in such activity or there may be other
circumstances set out in the grounds of detention from which the detaining
authority could reasonably be satisfied even on the basis of one ground that
unless the detenu is detained, he might indulge in such activity in future. But
in the instant case the only ground alleged against the petitioner was that he,
along with others, jointly committed murder in broad daylight. No other cir-
cumstances were mentioned. It was difficult to infer from the solitary ground
that the act alleged to have been committed by the petitioner would have
disturbed public order as distinct from law and order or that one single act
committed by the petitioner was of such a character that it could reasonably
be inferred by the detaining authority that if not detained, he would be likely
to indulge in such activity in future. Therefore, the ground of detention given
in support of the order of detention was irrelevant.
The detaining authority cannot by an affidavit filed in court
supplement what is stated in the grounds of detention or add to it. ^96
Solitary incident of smuggling — Facts and circumstances giving rise to
the inference that detenu was member of a smuggling syndicate — Merely
because only one incident coming to light does not mean that it was his
maiden act of smuggling — Held, detaining authority justified in reaching
satisfaction that detenu was engaged in smuggling — COFEPOSA Act, 1974,
S. 4. 297

295. M. Mohd. Sulthan v. Jt. Secy., to Govt, of India, (1991) 1 SCC 144: 1991 SCC (Cri) 104:
AIR 1990 SC 2222:1990 Cri LJ 2473.
296. Ramveer Jatav v. State of U.P. (1986) 4 SCC 762; 1987 SCC (Cri) 10: AIR 1987 SC 63.
297. Shiv Ratan Makim v. Union of India, (1986) 1 SCC 404:1986 SCC (Cri) 74: AIR 1986 SC
610:1986 Cri LJ 813.
 230

Sufficiency of, for passing detention order — Quality and nature of the
incidents and not their quantity material — Even one incident may be
sufficient to satisfy the detaining authority — On facts held, subjective
satisfaction arrived at by detaining authority on the basis of two incidents
referred to in the grounds proper. 298
(i) Identical grounds to different detenus
Same ground, different detenu — Identical ground, on which another person
involved in the same transaction, found by Advisory Board as insufficient for
sustaining that person's detention — Held, is a highly relevant circumstance,
though not binding, in the context of detention of the petitioner-detenu —
Failure to place that circumstance before the detaining authority when it
passed order of detention against the petitioner, held, amounted to non-
application of mind — Hence, detention order against the petitioner must be
set aside.299
REPRESENTATION BEFORE APPROPRIATE AUTHORITY/GOVT.
Expeditious consideration of detenu's representation — Detenu's right to
and detaining authority's corresponding obligation in regard to, held, is a
constitutional imperative under Art. 22(5) and is not dependant on any
particular preventive detention legislations which must conform to Art 22(5)
— An unreasonable delay in considering the representation cannot be
justified on the ground that unlike COFEPOSA Act, National Security Act
makes the delay inevitable — Administrative red tapism cannot afford a valid
explanation for such delay — On facts, held, unreasonable and unexplained
delay rendered continued detention of the detenus illegal — Constitution of
India, Art 22(5) - National Security Act, 1980 (65 of 1980), Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of
1974), S. 3(3).30o
The detenu has an independent constitutional right to make his
representation under Art. 22(5) of the Constitution of India. Correspondingly,
there is a constitutional mandate commanding the concerned authority to
whom the detenu forwards his representation questioning the correctness of
the detention order clamped upon him arid requesting for his release, to
consider the said representation within reasonable dispatch and to dispose
the same as expeditiously as possible. This constitutional requirement must
be satisfied with respect but if this constitutional imperative is observed in
breach, it would amount to negation of the constitutional obligation rendering
the continued detention constitutionally impermissible and illegal, since such
a breach would defeat the very concept of liberty — the highly cherished right
— which is enshrined in Art 21.

298. AUjan Mian v. Distt. Magistrate, (1983) 4 SCC 301, 308:1983 SCC (Cri) 840: AIR 1983 SC
1130:1983 Cri LJ1649.
299. Mohd. Shakeel Wahid Ahmed v. State of Maharashtra, (1983) 2 SCC 392: AIR 1983
SC541.
300. Khatoon Begum v. Union of India, (1981). 2 SCC 480:1981 SCC (Cri) 493: AIR 1981 SC
1077: (1981) 3 SCR 137:1981 Cri LJ 606:1981MLJ (Cri) 466.
 231

True, there is no prescribed period either the provisions of the

Constitution or under the concerned detention law within which the
representation should be dealt with. The use of the word "as soon as may be"
occurring in Art. 22(5) reflects that the representation should be expeditiously
considered and is disposed of with due promptitude and diligence and with a
sense of urgency and without avoidable delay. What is reasonable dispatch
depends on the facts and circumstances of each case and no hard and fast rule
can be laid down in that regard. However, in case the gap between the receipt
of the representation and its consideration by the authority is so unreasonably
long and the explanation offered by the authority is so unsatisfactory, such
delay could vitiate the order of detention. ^Q^
It is not possible to treat representations from whatever source
addressed to whomsoever officer of one or other department of the Gov-
ernment as a representation to the Government requiring the appropriate
authority under the COFEPOSA to consider the matter. Neither the countless
petitions, memorials and representations presented to the Prime Minister and
other Ministers are statutory appeals or petitions, nor the diplomatic
communications between one country and another are representations to the
statutory authorities functioning under the Act which are to be considered
and disposed of in the manner provided in the Act. The Bout de Papier and
the reminder being diplomatic communications between the Governments of
the two countries cannot be treated as representations to the Central
Government under S. 11, COFEPOSA Act and will be attended to and
answered through appropriate diplomatic channels in proper time and with
necessary expedition. ^02
Representation made to President amounts to representation to Central Gov-
ernment by virtue of S. 3(8) of General Clauses Act — National Security Act,
1980, S. 14. 303
Detenu falsely claiming to have sent his written representation to the
President of India through another person — Government preferring
application under S, 340 Criminal Procedure Code, 1973 for prosecution of the
persons responsible for forging the documents and making interpolations in
dak register of President's Secretariat — CBI enquiring into the matter —
Hence passing of final orders on the application under S. 340 deferred till
completion of investigation by CBI — Criminal Procedure Code, 1973, S.
340.304

Comments of detaining authority on the representation ~ Effect of — When

representation is made to government, comments called for from detaining

301. R?ma Dhondu Borade v. V.K. Sarqf, (1989) 3 SCC 173, 179, 180: 1989 SCC (CM) 520:
AIR 1989 SC1861: (1989) 2 Cri LJ 653.
302. Phillippa Anne Duke v. State of T.N., (1982) 2 SCC 389:1982 SCC (Cri) 444: AIR 1982 SC
1178:1982 Cri LJ 1389.
303. Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650:1986 SCC (Cri) 60: AIR 1986
SC 356:1986 Cri LJ 493:1986 All LJ 397.
304. Pushpa Devi M, Jatia v. M.L Wadhawan, (1987) 3 SCC 367, 395 to 399:1987 SCC (Cri)
526: AIR 1987 SC 1748:1987 Cri LJ 1888: (1987) 12 ECC 356.
 232

authority would not vitiate government order rejecting the representation

on ground that such comments would influence mind of the government.
Unless the comments of the relevant authorities are placed before the
Minister^ it will be difficult for him-to properly consider the representation.
There is no substance in the contention that any comment from the detaining
authority would influence the mind of the government. Such assumption is
without any foundation, ^os
Non-application of mind in rejecting representation alleged on ground that all
relevant material not taken into cor\sideration by detaining authority — Held
on facts, allegation not made out. ^06
Right to make effective representation— Denial of — Discrepancy between
statements in detention order and grounds of detention as also between the
English version and the regional language in which the order and the
grounds had been served — In the regional language necessity of detention
stated in the detention order to be to prevent the detenu from smuggling and
abetting the smuggling under S, 3(1 )(i) & (ii) of COFEPOSA Act whereas the
necessity stated in the grounds to be to prevent from concealing, transporting
smuggled goods falling under S. 3(l)(ii) and (iv) of that Act — English version
of detention order stating that the order passed only for abetting the
smuggling of goods — Held, discrepancy caused confusion, as a result of
which detenu was unable to make effective representation and
thereby his right under Art. 22(5) denied - COFEPOSA Act, 1974, S. 3(1)-
Constitution of India, Art. 22(5). 307
Only written and not oral representation permissible which may be
sent through Jail Authorities or any other suitable mode — Constitution of
India, Art. 22(5). 308
All representations sent by detenu considered by Central Government and
rejected —Plea of non-consideration of representation therefore not
maintainable. Kamla Rajkumar Rajani v. Union of India, 1990 Supp SCC 135:
1990 s e c (Cri) 539.
Consideration of second representation by Central Government — State
Government taking decision on detenu's representation and then forwarding
the same to Central Government — Central Government once taking a
decision on the representation, held, not obliged to consider another
representation addressed to the Prime Minister for revocation of detention
order — Nature of Central Government's power to revoke detention order
stated - National Security Act, 1980, S. 14 - MISA, 1971, S. 14 -
COFEPOSA Act, 1974, S, 11(1 )(b).

305. Vijay Kumar v. Union of India, (1988) 2 SCC 57, 68: 1988 SCC (Cri) 293: AIR 1988 SC
934; 17 ECC 82: (1988) 3 Crimes 50.
306. Sanjay Kumar Aggarwal v. Union of India, (1990) 3 SCC 309, 317:1990 SCC (Cri) 473:
AIR 1990 SC 1202:1990 Cri LJ 1238.
307. Vijay Kumar Dharna v. Union of India. (1990) 1 SCC 606:1990 SCC (Cri) 247: AIR 1990
SC 1184: (1990) 48 ELT159.
308. Devji Vallabhbhai Tandel v. Administrator, (1982) 2 SCC 222:1982 SCC (Cri) 403: AIR
1982 SC 1029:1982 Cri LJ 799.
 233

The power of revocation conferred on the Central Government under

S. 14 of the National Security Act is a statutory power which may be exercised
on information received by the Central Government from its own sources
including that supplied by the State Government under S. 3(5) or from the
detenu in the form of a petition for representation. It is for the Central
Government to decide whether or not it should revoke the order of detention
in a particular case.
At one time it was thought that S. 14 of the Maintenance of Internal
Security Act, 1971 which was in pan materia with S. 14 of the National
Security Act, did not confer any right or privilege on the detenu but there is a
definite shift in the judicial attitude, for which there appears to be no
discernible basis.
In the present case, the detenu was not deprived of the right of making
a representation to the detaining authority under Art, 22(5) of the
Constitution read with S. 8(1) of the Act. Although the detenu had no right to
simultaneously make a representation against the order of detention to the
Central Government under Art. 22(5) and there was no duty cast on the State
Government to forward the same to the Central Government, nevertheless the
State Government forwarded the same forthwith. The Central Government
duly considered that representation which in effect was a representation for
revocation of the order of detention under S. 14, Therefore, it was not
obligatory on the part of the Central Government to consider a second
representation for revocation under S. 14. ^09
Shyam Ambalal Siroya v. Union of India, (1980) 2 SCC 346: 1980 SCC (Cri)
447; Sabir Ahmed v. Union of India, (1980) 3 SCC 295:1980 SCC (Cri) 675 and
Rattan Singh v. State of Punjab, (1981) 4 SCC 481:1981 SCC (Cri) 853, doubted
Denial of opportunity to make effective representation alleged by detenu
— Burden to establish that proper opportunity afforded to the detenu rests
strictly on the State — Constitution of India, Arts, 226,136 and 32.
The obligation rests on the detaining authority to establish that
sufficient particulars of the grounds of detention were furnished to the
respondent so as to enable him to exercise effectively his constitutional right
of making a representation against the order of detention. The rigour of the
obligation cannot be relaxed under any circumstances. In the present case the
State has discharged its obligation, ^^o
(b) Consideration of representation independent of reference to Advisory
Board
Appropriate Government obliged to consider detenu's representation
independent of consideration by Advisory Board — Representation must be
considered at the earliest—Held on facts, representation considered by State

309. State of U.P. v. Zavad Zama Khan, (1984) 3 SCC 505, 5095 511:1984 SCC (Cri) 425: AIR
1984 SC1095.
310. State of Punjab v. Jagdev Singh Talwandi, (1984) 1 SCC 596, 605: 1984 SCC (Cri) 135:
AIR 1984 SC 444:1984 Cri LJ177.
 234

Government, the detaining authority, without any delay — Constitution of

India, Art. 22(5).
Article 22(5) itself does not say to whom the representation is made or
who will consider the representation. By virtue of provisions of the statute
under which he has been detained, the appropriate government is legally
obliged to comply with these requirements. It is obligatory on the appropriate
government to consider the detenu's representation separate^from other con-
sideration of the detenu's case by the Advisory Board, The Central
Government which has the power to revoke the detention order passed by the
State authority, is also under legal obligation to dispose of the representation
without delay, ^n
Khudiram Das v. State ofVM.B., (1975) 2 SCC 81:1975 SCC (Cri) 435, relied on
The failure on the part of the State Government to consider the
representation made by the appellant addressed to the Chief Minister without
waiting for the opinion of the Advisory Board also rendered the continued
detention of the appellant invalid and constitutionally impermissible. The
constitution of an Advisory Board under S. 8 of the Act does not relieve the
State Government from the legal obligation to consider the representation of
the detenu as soon as it is received by it. 3i2
Narendra Purshotam Umrao v. B.B, Gujral, (1979) 2 SCC 637:1979 SCC (Cri) 557,
followed
In case of preventive detention of a citizen, the obligation of the
appropriate government is two-fold: (0 to afford the detenu the opportunity'
to make a representation and to consider the representation which may result
in the release of the detenu, and (ii) to constitute a Board and to communicate
the representation of the detenu along with other materials to the Board to
enable it to form its opinion and to obtain such opinion. The former is distinct
from the latter. Corresponding to this obligation there is a twofold right in
favour of the detenu to have his representation considered by the appropriate
government and to have the representation once again considered by the
Government in the light of the circumstances of the case considered by the
Board for the purpose of giving its opinion.
In the present case the State Government failed to discharge the first of
the two-fold obligation and waited till the receipt of the Advisory Board's
opinion which resulted in non-consideration of the representation for an
unexplained period of twenty-four days. This shows there was no
independent consideration of the representation by the State Government
which is a clear non-compliance of Art. 22(5). The order of detention is,
therefore, liable to be quashed. ^13

311. Abdu Salam v. Union of India, (1990) 3 SCC 15, 18: 1990 SCC (Cri) 451: AIR 1990 SC
1446:1990 Cri LJ 1502: (1990) 48 ELT162: (1990) 3 Crimes 82.
312. Mohinuddin v. D.M., (1987) 4 SCC 58,66, 67:1987 SCC (Cri) 674: AIR 1987 SC 1977.
313. Rahamatullah v. State of Bihar, (1981) 4 SCC 559:1981 SCC (Cri) 871: AIR 1981 SC 2069:
1981 Cri LJ 1698. v^
 235

Detaining authority not justified in deferring its decision on the

representation till receipt of Advisory Board's report — Constitution of India,
Art 22(5).
The detenu has an independent constitutional right to have the
representation considered by the detaining authority irrespective of whatever
the Advisory Board may do in the present case although the representation
was received by the detaining authority on February 25,1980, it was rejected
on March 13,1980, a day after the Advisory Board had given its opinion. The
Collector's remarks which were sent for were available to the detaining
authority as far back as on March 6; 1980 and there could be no reason for the
detaining authority to have deferred its decision on the representation till the
receipt of the opinion of the Advisory Board. 3^'*
Representation made after confirmation of detention by Advisory Board
— Non-consideration by detaining authority on the ground that the detenu
had requested that his representation be forwarded to the Advisory Board
also - Held, improper - Art 22(5) contravened - COFEPOSA, S. 11.3i5
(c) Competent authority to consider representation
Competent authority to consider — Chief Minister — Held, competent to
dispose of the representation where statute requires the representation to be
made to appropriate Government — National Security Act, 1980 (65 of 1980),
S.8.
It follows from the specific provision in S, 8 of the National Security
Act for affording earopportunity to make representation not to the detaining
authority but to the appropriate Government that the appropriate
Government must consider the representation. Where the Chief Minister
considered the representation and rejected it after calling for parawise
remarks of the detaining authority, the failure of the detaining authority to
consider the representation would not invalidate the detention order. 3i6
Competent authority to consider—-Home Secretary or Home Minister —
Held, competent under Maharashtra Rules of Business — Maharashtra
Government Standing Order No. SI. 3(A) PSA 1181 dated October 13,1981 -
COFEPOSA Act, 1974 (52 of 1974), S. 3(1). 3^^
Competent authority to consider — Held, need not be the detaining authority
itself — Any other authorised person, such as State Home Minister, is
competent to dispose of the representation, for and on behalf of the State
Government — Rules of Business of Government of Maharashtra, Rr. 6 and
15.

314. Nafisa Khalifa Ghanem v. Union of India, (1982) 1 SCC 422:1982 SCC (Cri) 236.
315. Tara Chand v. State of Rajasthan, (1981) 1 SCC 416: 1981 SCC (Cri) 165: AIR 1980 SC
2133.
316. Raj Kishore Prasad v. State of Bihar, (1982) 3 SCC 10:1982 SCC (Cri) 530: AIR 1983 SC
320.
317. Raverdy Marc Germain Jules v. State of Maharashtra, (1982) 3 SCC 135:1982 SCC (Cri)
638: AIR 1983 SC31L
 236

Whether the detaining authority or the State Home Minister disposed

of the representation, would be immaterial since both had authority to act for
the State Government and whatever be the instrumentahty, it would be the
State Government which would be considering and dealing with the
representation. There is no requirement express or implied in any provision of
the COFEPOSA Act that the same person who acts for the State Goverraiient
in making the order of detention must also consider the representation of the
detenu. The only requirement of Art. 22(5) is that the representation of the
detenu must be considered by the detaining authority which in the present
case is the State Government and this requirement was clearly satisfied, ^is
Competent authority to consider — May be other than the detaining authority
— State Home Minister competent to deal with the representation where
authorised to do so by relevant rules and orders of the Government —
Maharashtra Government Rules of Business, R. 6.
The Minister of State for Home Affairs, Government of Maharashtra
was entitled to deal with the representation of the detenu, by virtue of the
Standing Order made by the Chief Minister and the State Home Minister read
with R. 6 of the Maharashtra Government Rules of Business made undff Art.
166(2) and (3) of the Constitution. There is no substance in the suggestion that
it would have been more appropriate if the representation had been con-
sidered by the very individual who had exercised his mind at the initial stage
of making the order of detention, namely the Secretary to the Government.^i^
[Ed: See also Mamma v. Slate of Maharashtra, (1981) 3 SCC 566 where the
Court has affirmed the above view]
Detaining authority itself must take a decision on the detenu's representation
so as to afford remedy to the detenu to approach the higher authorities in case
of rejection of his representation — Constitution of India, Art 22(5) —
COFEPOSA Act, 1974 (52 of 1974), Ss. 3 and 11.
Under Art. 22(5) as also under S. 11 COFEPOSA Act a representation should
be considered by the detaining authority, who on a consideration thereof can
revoke the detention order and if the representation is rejected by detaining
authority it is open to the detenu to approach the State Government for
revocation of the order and failing that it is open to him to approach the
Central Government to get the detention order revoked.
In the present case the Chief Secretary, Delhi Administration, who was
the detaining authority, considered the detenu's representation on receipt of
comments of Secretary, Law and Justice, but instead of himself rejecting it, he
submitted, the same to the Administrator with an endorsement to the effect
"the representation may be rejected". The Administrator made ^ an
endorsement below that of the Chief Secretary to the effect that he had
considered the representation as well as the comments of the Customs

318. Mamma v. State of Maharashtra, (1981) 3 SCC 566, 568-570:1981 SCC (Cri) 750: AIR
1981 SC1753; 1981 Cri U1256.
319. Kavita v. State of Maharashtra (I), (1981) 3 SCC 558, 563, 564:1981 SCC (Cri) 743: AIR
1981 SC 1641.
 237

Department and after examination thereof he agreed that the representation

had no merit and must be rejected. It is thus clear that the representation had
only been considered by the detaining authority at the highest but he did not
take the decision to reject the same himself and as such the constitutional
safeguard under Art. 22(5) had not been strictly observed or complied with.
The continued detention of the detenu was therefore illegal Santosh Anand v.
Union of India, (1981) 2 SCC 420:1981 SCC (Cri) 456.
Representation — Must be considered and rejected by the detaining authority
— Where detaining authority is Home Minister, but detenu's representation
rejected by Secretary, held, the Secretary had no jurisdiction to consider or
pass any orders on the representation and hence the continued detention of
the detenu becomes void.320
(d) Delay in transmitting representation
Representation to Central Government — Failure of jail authorities to
forward detenu's representation to Central Government either directly or
through State Government — Representation lying unattended for several
months - Held, detention illegal - COFEPOSA Act, 1974 (52 of 1974), S. 11.
Section 11(1) of the COFEPOSA Act confers upon the Central
Government the power to revoke an order of detention even if it is made by
the State Government or its officer. That power, in order to be real and
effective, must imply the right in a detenu to make a representation to the
Central Government against the order of detention.
The failure of the Jail Superintendent to either forward the
representations to the Government concerned or to have forwarded them to
the State Government with a request for their onward transmission to the
Central Government has deprived the detenu of his valuable right to have his
detention revoked by that Government. The continued detention of the
detenu must therefore be held illegal and the detenu be set free. ^21
Delay of one month, five days in communicating representation of detenu
from jaii to detaining authority — Held, right to representation under Art.
22(5) contravened — Detention held illegal.322
Representation to Central Government— Detenu has right to make
representation under S. 14(1), N.S. A. — Unexplained delay on the part of State
Government in forwarding detenu's representation to Central Government
resulting in delay of more than two months in considering the representation
by Central Government — Held, the delay rendered continued detention of
the detenu illegal — National Security Act, 1980, S, 14(1) — Constitution of
India, Art. 22(5).
Section 14(1) of the Act confers upon the Central Government the
power to revoke an order of detention even if it is made by the State

320. Kirit Kumar Chaman Lai Kundaliya v. Union of India, (1981) 2 SCC 436:1981 SCC (Cri)
471: AIR 1981 SC 1621: (1981) 2 SCR 718:1981 Cri LJ1267: (1981) 22 GLR1067.
321. Rattan Singh v. State of Punjab, (1981) 4 SCC 481:1981 SCC (Cri) 853: AIR 1982 SC 1.
322. Tara Chand v. State of Rajasthan, (1981) 1 SCC 416: 1981 SCC (Cri) 165: AIR 1980 SC
2133.
 238

Government or its officer. That power, in order to be real and effective, must
imply a right in a detenu to make a representation to the Central Government
against the order of detention. Thus, the failure of the State Government to
comply with the request of the detenu for the onward transmission of the
representation to the Central Government has deprived the detenu of his
valuable right to have his detention revoked by that Government. That being
so, the continued detention of the detenu must be held to be illegal and
constitutionally impermissible. 323
Representation for, made by detenu to President and Prime Minister received
in Ministry of Home Affairs after about two months and one week and
disposed of within a week by the Home Ministry — Delay in Secretariats of
President and Prime Minister not explained — Held, part of the delay may be
due to detenu's failure to send the representation direct to the concerned
ministry viz, the Home Ministry but that cannot justify the enormous delay —
In view of unexplained and unduly long delay in disposal of the
representations, further detention of the detenu, held, illegal NSA, 1980,
Ss. 14 & 3. 324
(e) Delay in disposal of representation
Inordinate delay in disposal of, in absence of proper explanation, violates Art
22(5) - Constitution of India, Art, 22(5).
The detenu submitted representation against his detention originally
on January 1,1988 which he got back and resubmitted it on February 2,1988.
It was stated on behalf of the State that the representation dated February 2,
1988 was received in the COFEPOSA section of Ministry of Finance on
February 16,1988 witli a letter dated February 5, 1988 from the Government
of Kerala; that as certain information was not available with the Central
Government, the Collector of Customs, was asked to get a copy of the
representation from the State Government and to send his comments; that
Collector of Customs, informed the Central Government by a telex message
dated March 1,1988 which was received in the COFEPOSA section on March
8, 1988 informing that the representation was not available with the Home
Department; that thereafter a copy of the representation was forwarded to the
Collector of Customs by post on March 8, 1988; that the comments of the
Collector were received back on March 28, 1988; that then the representation
along with the comments were placed before the Joint Secretary, COFEPOSA
section on March 30,1988, who forwarded the same to the Minister of State
for Revenue on the same day and on April 4, 1988 the Minister of State
forwarded his comments to the Finance Minister who considered and rejected
the representation on April 8,1988.
Held:
The representation of the detenu had not been given prompt and
expeditious consideration, and was allowed to lie without being properly

323. Haji Mohd. Akhlaq v. Distt. Magistrate, 1988 Supp SCC 538:1988 SCC (Cri) 886.
324. Raghavendra Singh v. Supdt, Distt, Jail, (1986) 1 SCC 650, 652, 653: 1986 SCC (Cri) 60:
AIR 1986 SC 356:1986 Cri LJ 493:1986 All LJ 397.
 239

attended to. The explanation that the delay has occurred in seeking the
comments of the Collector of Customs etc. is not a convincing and acceptable
explanation. The delay of 72 days in the absence of satisfactory explanation is
too long a period for ignoring the indolence on the part of the concerned
authority. Hence, the unexplained delay in disposal of the representation of
the detenu is violative of Art, 22(5) rendering the order of detention invalid.325
Non-disposal of — Request describing as representation made for furnishing
translated copies of the grounds of detention in the language known to the
detenu — Addressed to Chairman, Central Advisory Board sent through Jail
Superintendent — Held, amounted to a representation to the appropriate
government, which was obliged to consider and dispose it of independently
irrespective of reference to the Board — Failure to do so violated Art, 22(5)
and vitiated the detention - Constitution of India, Art 22(5) - COFEPOSA
Act, 1974.
Under Art. 22(5) no proforma for representation has been prescribed.
Opportunity to make a representation comprehends a request for supply of
translated copies. Therefore, the detenu's 'representation' asking for copies of
documents must be held to have amounted to a representation.
Article 22(5) does not say which is the authority to whom
representation shall be made or which authority shall consider it. But it is
indisputable that the representation may be made by the detenu to the
appropriate government and it was mandatory on the part of the appropriate
government to consider and act upon it at the earliest opportunity and failure
to do so would be fatal to the detention order. In the present case though the
representation was addressed to the Chairman, Central Advisory Board the
same was forwarded by the Jail authorities and it must be taken to have been
a representation to the appropriate government which was to consider it
before placing it before the Advisory Board. But there was no consideration
before and even after the Advisory Board considered the case of the detenu. It
is settled law that delay in disposing the representation when inordinate and
unexplained the detention would be bad and the detenu must be ordered to
be released forthwith. Therefore, Art. 22(5) was violated.^26
Non-consideration of representation alleged — Absence of counter-affidavit
by State — Allegation remaining uncontraverted — Continued detention of
detenu, held, illegal and constitutionally impermissible— Detention quashed
- National Security Act, 1980, S. 3(2) - Constitution of India, Art, 22(5). 327
Representation to appropriate authority — Should be disposed of
expeditiously — Delay in disposal should he satisfactorily explained by all the
concerned authorities individually where detaining authority is unable
to personally explain delay at various stages — Inordinate and unexplained

325. T.A. Abdul Rahman v. State of Kerala, (1989) 4 SCC 741, 751: 1990 SCC (Cri) 76: AIR
1990 SC 225.
326. Kubic Darusz v. Union of India, (1990) 1 SCC 568, 578-580: 1990 SCC (Cri) 227: AIR
1990 SC 605.
327. Ranbir Singh v. T. George Joseph, DM, Meerut, 1990 Supp SCC 54:1990 SCC (Cri) 613.
 240

delay fatal to the detention irrespective of enormity and gravity of

allegations made against the detenu - COFEPOSA Act, 1974, S. 3(1)
In the counter-affidavit filed by the Joint Secretary, Department of
Revenue, Ministry of Finance it was stated that the petitioner had made his
representation on August 21,1989 and not on August 18,1989 as alleged by
the detenu-appellant and that it was received in the office of his department
on August 23,1989 and the same was forwarded to the concerned sponsoring
authority on August 25? 1989. The sponsoring authority sent his comments
only on September 11, 1989. Thereafter, the representation along with the
comments was processed and put up before the Minister of State for Revenue,
who considered and rejected the same on September 15, 1989 subject to the
approval of the Finance Minister. On September 18,1989 the file was received
back from the Finance Minister's office and the memorandum was issued on
September 19S 1989 rejecting the representation. It was contended on behalf
of the detenu that there was an inordinate delay in considering and disposing
of the representation and as such continued detention of the detenu was
violative of Art. 22(5). Allowing the appeal and directing that the detenu be
set at liberty forthwith.
Held:
Except merely mentioning that the representation was forwarded to
the concerned sponsoring authority on August 25, 1989 and the comments
from the sponsoring authority was received by the department on September
11, 1989, there is absolutely no explanation as to why such a delay had
occurred. This undue and unexplained delay is in violation of Art. 22(5)
rendering the detention order invalid.
A representation of a detenu whose liberty is in peril should be
considered and disposed of as expeditiously as possible; otherwise the con-
tinued detention will render itself impermissible and invalid as being
violative of Art. 22(5). If any delay occurs in the disposal of a representation,
such delay should be explained by the appropriate authority to the
satisfaction of the court. In case the appropriate authority is to explain
personally the delay at various then it will be desirable — indeed appropriate
— for the concerned authority or authorities at whose hands the delay has
occurred to individually explain such delay. In absence of any explanation,
court cannot wink at or skip over or ignore such an infringement of the
constitutional mandate and uphold an order of detention merely on the
ground that the enormity of allegations made in the grounds of detention is of
a very serious nature as in the present case. 328
Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police, (1989) 3 SCC 173:1989
sec (Cri) 520, followed
Requirement of prompt disposal of representation restated — On facts held,
delay in disposal vitiated the detention - National Security Act, 1980, S. 8(1)
— Constitution of India, Art. 22(5).

328. Mahesh Kumar Chauhan v. Union oi India, (1990) 3 SCC 148:1990 SCC (Cri) 434: AIR
1990 SC1455:1990 Cri LJ1507.
 241

On September 1, 1988 the detenu filed representation against his

detention addressed to the President of India through the Home Secretary,
Government of Punjab and the Superintendent of District Jail, Agartala
(Tripura). The State Government was not aware of pendency of any such
representation with it. On September 13,1988 the Central Goveriunent issued
a teleprinter message which was duly received on September 14, 1988 in
which the Central Government wanted to know the date on which the
grounds of detention were supplied to the detenu and also sought parawise
comments on the representation of the detenu. However, the Central
Government did not send any copy of the representation to the State Gov-
ernment. Even so, it directed the police, vide letter dated September 14,1988,
to supply the required information to the Central Government. It was
intimated to the Central Government that parawise comments on the
representation could not be offered as copy of the representation was not
available with the State of Punjab. The Central Government vide teleprinter
message dated October 6, 1988 which was received on October 10, 1988
intimated that the photostat copy of the representation had been sent along
with the post copy of the teleprinter message. The representation was duly
received on October 19, 1988 by the State of Punjab and it was examined at
various levels on October 19,1988, (October 20,1988 was a holiday), October
21, 1988 (October 22,1988 and October 23, 1988 were holidays), October 24,
1988 (October 24, 1988 was again a holiday), October 26, 1988, October 27,
1988 and October 28, 1988. The representation was duly put up before the
competent authority who rejected it after deliberation and consideration on
October 28, 1988, It was contended on behalf of the appellant State that the
delay was caused by the representation having been addressed to the
President of India, even though the detention order itself stated that if the
detenu wished to make such representation, he should address it to the State
Government through the Superintendent of Jail as soon as possible.
Held:
The clear instructions in the grounds of detention that the detenu
should address the representation to the State Government through the
Superintendent of the Jail where he was detained should have been followed.
May be this was due to the fact that Punjab was under President's rule at the
relevant time but Rashtrapati Bhawan, New Delhi was not the proper
destination of the representation to the State Government. However, from the
facts of the case it is clear that after receipt of the xerox copy from the Central
Government, the State Government took only 13 days including 4 holidays in
disposing of the representation. Considering the situation prevailing and the
consultation needed in the matter, the State Government could not have been
unmindful of urgency in the matter. But, it took more than two months from
the date of submission of the representation to the date of informing the
detenu of the result of his representation. Eight days were taken after disposal
of the representation by the State Government. The result is that the detenu's
constitutional right to prompt disposal of his representation was denied and
the legal consequences must follow. It is a settled law that in cases of
 242

preventive detention expeditious action is required on the part of the

authorities in disposing of the detenu's representation. ^29
Delay in considering — Determination of, would depend upon facts and
circumstances of each case — Unavoidable delay would not render continued
detention invalid.
The question whether the representation submitted by a detenu has
been dealt with all reasonable promptness and diligence is to be decided not
by the application of any rigid or inflexible rule or set formula nor by a mere
arithmetical counting of dates, but by a careful scrutiny of the facts and
circumstances of each case; if on such examination, it is found that there was
any remissness, indifference or avoidable delay on the part of the detaining
authority/State Government in dealing with the representation, the court will
undoubtedly treat it as a factor vitiating the continued detention of the
detenu; on the other hand, if the court is satisfied that the delay was
occasioned due to unavoidable circumstances or reasons entirely beyond his
control such delay will not be treated as furnishing a ground for the grant of
relief to the detenu against his continued detention. In the present case there
was no avoidable delay on the part of the District Magistrate in forwarding
the petitioner's representation. 330
Delay in considering representation — 'Earliest opportimity' — Meaning of
— Delay (of 14 days) in transit and (of 19 days) in disposal of the
representation by the Government, held, rendered the detention illegal —
Duty to take expeditious action at all levels stressed — Jammu and Kashmir
Public Safety Act, 1978, S. 13 - Constitution of India, Art. 22(5).
The word 'earliest' in S. 13 of the Jammu and Kashmir Public Safety
Act, which qualifies "opportunity" must equally qualify the corresponding
obligation of the State to deal with the representation, if and when made, as
expeditiously as possible. The 'opportunity' contemplated by the section is the
opportunity to make a representation against the detention order to the
Government.
If the Government enacts a law like the present Act empowering
certain authorities to make the detention order and also simultaneously
makes a statutory provision of affording the earliest opportunity to the
detenu to make his representation against his detention, to the Government
and not the detaining authority, of necessity the State Government must gear
up its own machinery to see that in these cases the representation reaches the
Government as quickly as possible and it is considered by the authorities with
equal promptitude. The intermediary authorities who are communicaling
authorities have also to move with an equal amount of promptitude. The cor-
responding obligation of the State to consider the representation cannot be
whittled down by merely saying that much time was lost in the transit, Any
slackness in this behalf not properly explained would be denial of the

329. State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35,489 49,54:1990 SCC (Cri) 1: AIR 1990
SC 231:1990 Cri LJ584.
330. Raisuddin v. State of U.P., (1983) 4 SCC 537, 540: 1984 SCC (Cri) 16: AIR 1984 SC 46:
1983 Cri LJ1785.
 243

protection conferred by the statute and would result in invalidation of the

order.
In the present case the representation handed over by the detenu in jail
to the Jail Superintendent at J.ammu was received by the Government in
Srinagar after 14 days. While forwarding the representation the Jail Super-
intendent had also sent a wireless message on the same day informing the
Government that the representation had been sent by post. But in spite of
being aware that a representation had been made, when it reached the
concerned office in Srinagar, the Government took 19 days in its disposal
Thus there are two vital time-lags and the delay, apart from being inordinate,
is not explained on any convincing grounds. Thus the representation was not
dealt with as early as possible or as expeditiously as possible, and, therefore,
there would be contravention of S. 13 of the Act which would result in the
invalidation of the order.^^i
Under the COFEPOSA Act, a detenu has the right to simultaneously
make a representation to the detaining authority which has to be considered
by the Advisory Board, as also the right to apply to the Central Government
for revocation of the detention order under S. 11. It is wrong to contend that
the power of revocation by the Central Government under S. 11 is not
attracted till the State Government has considered the representation of the
detenu and rejected it and till the Advisory Board has submitted its Report to
the State Government.
When a simultaneous representation under S. ll(l)(b) is endorsed to
the Central Government, the State Government has the corresponding duty
not to withhold but to forward it to the Central Government forthwith for
necessary action. A lapse on the part of the State Government in forwarding
the representation simultaneously made by the detenu to the Central
Government for revocation of the order of detention under S. 1.1 would result
in striking down the detention order.
In the present case the representation made by the detenu was
forwarded to the Central Government after a lapse of 2 months and 15 days.
But the Central Government acted with great promptitude in dealing with the
representation and found no ground to interfere with the order of detention.
Thus there is nothing but the unexplained delay on the part of State
Government and that by itself is not sufficient to invalidate the order of
detention. The detenu was not deprived of the right of making a
representation to the State Government, i.e. the detaining authority, as well as
of the right of making a representation to the Central Government for
revocation of the order of detention under S. 11 of the Act. The Court must
look at the substance of the matter and not act on mere technicality. ^32
The supine indifference, slackness and callous attitude on the part of
the Jail Superintendent who had unreasonably delayed in transmitting the

331. Vijay Kumar v. State of J & K, (1982) 2 SCC 43:1982 SCC (Cri) 348: AIR 1982 SC 1023:
1982 Cri LJ 988:1982 MLJ (Cri) 471.
332. Sat Pal v. State of Punjab, (1982) 1 SCC 12:1982 SCC (Cri) 46: AIR 1981 SC 2230.
 244

representation as an intermediary, had ultimately caused undue delay in the

disposal of the appellant's representation by the government which received
the representation 11 days after it was handed over to the Jail Superintendent
by the detenu. This avoidable and unexplained delay has resulted in
rendering the continued detention of the appellant illegal and coristitutionally
impermissible.
When it is emphasised and re^emphasised by a series of decisions of
the Supreme Court that a representation should be considered with
reasonable expedition, it is imperative on the part of every authority, whether
in merely transmitting or dealing with it, to discharge that obligation with all
reasonable promptness and diligence without giving room for any complaint
of remissness, indifference or avoidable delay because the delay, caused by
slackness on the part of any authority, will ultimately result in the delay of the
disposal of the representation which in turn may invalidate the order of
detention as having infringed the mandate of Art. 22(5). It is neither possible
nor advisable to lay down any rigid period of time uniformly applicable to all
cases within which period the representation of detenu has to be disposed of
with reasonable expedition but it must necessarily depend on the facts and
circumstances of each case.^^^
Representation before Central Government — Should be disposed of with
reasonable expedition — No rigid rule laid down — Delay of one month and
five days in disposal of the representation, in absence of negligence, callous
inaction and avoidable red-tapism, held, not fatal to the detention —
COFEPOSA Act, 1974, Ss. 11 & 3.
Though strictly speaking the Central Government is not the detaining
authority within the meaning of Art. 22(5) yet they are under legal obligation
to dispose of the representation as early as possible. But such delay by the
Central Government should not be subjected to such a rigorous scrutiny as is
done in the case of a delay caused by the appropriate government namely the
detaining authority. The Central Government should consider the
representation with reasonable expedition. What is reasonable expedition
depends upon the circumstances of the particular case. No hard and fast rule
as to the measure of reasonable time can be laid down. But it certainly does
not cover the delay due to negligence, callous inaction, avoidable red-tapism
and unduly protracted procrastination. From the explanation given in the
present case for the delay of one month and five days on the part of the
Central Government in disposal of the representation, it is clear that the
representation was considered most expeditiously and there was no
"negligence or callous inaction or avoidable red-tapism". Therefore, the
detention was not vitiated due to the delay. 334
Delay in disposal of — Explanation for — Representation alleged to have
been made on behalf of the detenu by his advocate who had no authority to

333. Aslam Ahmed Zahire Ahmed Shaik v. Union of India, (1989) 3 SCC 277,280 to 282:
1989 SCC (Cri) 554: AIR 1989 SC1403:1989 Cri LJ1447: (1989) 22 ECC 308
334. Abdu Salam v. Union of India, (1990) 3 SCC 15,19,20:1990 SCC (Cri) 451: AIR 1990 SC
1446:1990 Cri LJ 1502: (1990) 48 ELT162: (1990) 3 Crimes 82.
 245

make he same or whose authority had not been checked — Such allegation
not made in counter-affidavit — No enquiry made about authority of the
advocate — Held, making of the representation by an advocate failed to
explain the delay in its disposal.
The contention regarding the authority of the advocate to file
representation on behalf of the detenu had not been taken up in the counter-
affidavit and cannot be urged merely at the hearing of the petition. There is
nothing in law which prevents a representation being made by an advocate
on behalf of the detenu, If there was any difficulty on that ground, enquiries
should have been made with the advocate as to what was his authority to
represent the detenu, but no such enquiry had been made in the present case.
Thus, in the present ease, the fact that the representation was made by the
advocate does not explain the delay in dealing with that representation.^^^
Delay in disposal of — Explanation for — That delay caused no prejudice to
the detenu as he had filed a writ petition before High Court against his
detention which had been dismissed — When cannot furnish a good
explanation — Constitution of India, Arts. 32 and 226.
Although the detenu-petitioner had preferred a writ petition before the
High Court, but a special leave petition filed against that decision is pending
in the Supreme Court. Moreover, at the time when the writ petition was
dismissed, the detenu-petitioner had not made any representation to the State
Government at all and hence the dismissal of his writ petition by the High
Court cannot be regarded as any substitute for consideration of his
representation by the State Government which, urilike the court, might be
entitled to go into the factual merits of the grounds forming the basis of
detention order. 3^6
Delay in disposal of — Held on facts, there vsas no laches or negligence on
the part of the detaining authority or the other authorities concerned in
dealing with the less representation of the detenu — Detaining
authority explained the delay and hence detention order not vitiated on
ground of delay. 3^7
Inordinate and unexplained delay in disposal of detenu's representation to
Chief Minister, held rendered continued detention of the detenu illegal and
unconstitutional — Explanation that Chief Minister remained on tour and
busy with important matters of the State not acceptable — Mandate of Art
22(5) explained — Constitution of India, Art. 22(5).
The District Magistrate passed an order of detention against the
appellant under S. 3(2) of the NSA on September 7, 1986. The appellant was
taken into custody or September 8 and grounds of detention were served on

335. Piara Singh v. State of Punjab, (1987) 4 SCC 550, 556:1987 SCC (Cri) 783: AIR 1987 SC
2377.
336. Piara Singh v. State of Punjab, (1987) 4 SCC 550, 556:1987 SCC (Cri) 783; AIR 1987 SC
2377.
337. Madan Lai Anand v. Union of India, (1990) 1 SCC 81, 94:1990 SCC (Cri) 51: AIR 1990
SC 176: (1990) 25 ECC 277:1990 Cri LJ 659: (1990) 45 ELT 204.
 246

him on September 14. On September 22, he made a representation to the Chief

Minister through the Jail Superintendent. The Jail Superintendent forwarded
it to the Home Department on September 24. The Home Department received
it on September 26 and forwarded it to the District Magistrate on the same
day for his comments. The District Magistrate returned the representation
along with his comments on October 3 which was received by the Gov-
ernment on October 6. The State Government, in the mean while, under S. 3(4)
of the Act accorded its approval to the impugned order of detention on
September 18, 1986. On October 6, 1986 the appellant made another
representation to the Advisory Board which met and considered the same on
October 8,1986. On October 13,1986 the advisory Board after considering the
representation made by the appellant together with the materials placed
before it forwarded its report to the Government recommending confirmation
of the impugned order of detention. It is said that thereafter the
representation was processed together with the report of the Advisory Board
and was forwarded to the Chief Minister's Secretariat where the same was
received on October 23,1986. Acting upon the report of the Advisory Board,
the State Government by its order dated November 19, 1986 confirmed the
order of detention. The appellant filed a habeas corpus petition before the
High Court contending that there was unexplained, unreasonable delay in
disposal of the representation which was sufficient to render his continued
detention illegal. The High Court dismissed the petition mainly on ground of
imperfect pleadings regarding delay in the disposal of the representation. In
the appeal before the Supreme Court the detaining authority i.e. the District
Magistrate and the Desk Officer, Home Department (Special) filed counter-
affidavits. The District Magistrate generally denied that there was any such
delay in disposal of the representation. But the Desk Officer explained the
delay by saying that the Chief Minister remained preoccupied with very
important matters of the State which involved tours as well as two Cabinet
meetings on October 28 and 29 and November 11 and 12,1986.

Held:
The continued detention of the appellant was illegal and he must be set
at liberty forthwith. The representation made by the appellant addressed to
the Chief Minister could not lie unattended to in the Secretariat while the
Chief Minister was attending to other political affairs. Nor could the
Government keep the representation in the Secretariat till the Advisory Board
submitted its report.
In view of the wholly unexplained and unduly long delay in the
disposal of the representation by the State Government the further detention
of the appellant must be held illegal. There was utter callousness on the part
of the State Government to deal with the representation to the Chief Minister.
There was no reason why the representation submitted by the appellant could
not be dealt with by the Chief Minister with all reasonable promptitude and
diligence. The explanation that he remained away from Bombay is certainly
not a reasonable explanation.338

338. Mohinuddin v. D.M., (1987) 4 SCC 58,65 to 68:1987 SCC (Cri) 674: AIR 1987 SC 1977
 247

Representation before Central Government — Delay in disposal of — Material

evidencing that after receipt of the representation of the petitioner,
it v^ras sent to the detaining authority for his comments and immediately after
receipt of the comments of the detaining authority the same were processed
and put up before the Minister concerned who rejected the representation
after corisidering the comments of the detaining authority and the State
Government — Held, delay of one month properly explained. 339
Representation before Central Government — Delay of 6 days in disposal,
held, not unduly long.
The time actually taken by the Central Government in considering the
representation was six days. The said period of six days cannot, be regarded
as unduly long. It is therefore, not possible to hold that there was inordinate
delay in consideration of the representation of the petitioner by the Central
Government and the detention of the petitioner cannot be held to be invalid
on that basis, ^^o
Representation made to detaining authority — After rejection of the
representation by the detaining authority for-warding the file to Minister for
his consideration — Held, that would be inconsequential and would not
vitiate the detention.^^i
Second representation — Delay in disposal of — Detenu has no right to get
his successive representations based on the same grounds rejected earlier
to be formally disposed of again — No period of detention having been fixed
under the Act, rejection of the second representation on the same ground
three months after its filing not open to challenge — Prevention of
Blackmarketing and Maintenance of Supplies of Essential Commodities Act,
1980, S. 14.342
Representation sent on January 31 by jointly addressing to State Government,
Central Government and Advisory Board — Representation rejected by State
Government on February 21 and by Central Government on March 3 — On
facts held, the adequate and detailed reasons given by High Court in holding
that the delay had been explained acceptable. 343
Declaration by Central Government under S. 9(1) of COFEPOSA Act for
detention beyond three months without Advisory Board's opinion —
Detenu's representation rejected and declaration under S. 9(1) made on
the same day but in different files — Mere non-reference to the representation
in the declaration would not show failure of detaining authority to consider

339. Syed Farooq Mohammad v. Union of India, (1990) 3 SCC 537, 547:1990 SCC (Cri) 500:
AIR 1990 SC1597:1990 Cri LJ1622.
340. M. Mohd. Sulthan v. }t. Secy, to Govt, of India, (1991) 1 SCC 144: 1991 SCC (Cri) 104:
AIR 1990 SC 2222:1990 Cri LJ 2473.
341. Vijay Kumar v. Union of India, (1988) 2 SCC 57, 68, 69:1988 SCC (Cri) 293: AIR 1988 SC
934: (1988) 17 ECC 82: (1988) 3 Crimes 50.
342. K. Aruna Kumari v. Govt, of A.P., (1988) 1 SCC 296, 304:1988 SCC (Cri) 116: AIR 1988
SC 227:1988 CriLJ 411.
343. Azra Fatima (Smt) v. Union of India, (1991) 1 SCC 76:1991 SCC (Cri) 641: AIR 1990 SC
1763:1990 Cri LJ 1731.
 248

the representation before making the declaration — Held on facts, there was
ample evidence to show consideration of the representation before the
declaration- COFEPOSA Act, 1974, S. 9(1). ^
Delay in considering representation caused in soliciting comments from other
departments and allowing the representation to lie unattended — Held, the
delay would render the detention unconstitutional— Representation must be
taken up for consideration by detaining authority as soon as received and
unless it is absolutely necessary to wait for some assistance, it must be dealt
with continuously until final decision is taken and communicated to the
detenu - Constihition of India, Arts. 22(5) and 226. ^45
Delay in disposal of — Detailed representation challenging detention made
by an association on behalf of detenu disposed of expeditiously — Another
representation made by petitioner on behalf of the detenu, found by High
Court to be second one, mainly concentrating on necessity of keeping the
detenu in a Bombay jail instead of sending him elsewhere and only casually
impugning the detention — On facts, held, delay in disposal of petitioner's
representation did not prejudice detenu's case.^^^
Delay of one and a half months in considering — In absence of satisfactory
explanation fatal to continuance of detention. ^47
Rejection of representation about two months after the date of detention
without any reasonable explanation, held, is sufficient to vitiate detention
order — Representation must be considered by government within a
reasonable time without waiting for opinion of Advisory Board —
Constitution of India, Art 22(5) and (7). 348
Representation — Delay in considering — There is no absolute time factor in
considering representation — Detaining authority returning to India from a
foreign trip three days after receipt of the representation and disposing of the
representation three days thereafter — Held, delay not unreasonable.
The time imperative can never be absolute or obsessive. The occasional
observations made by the Supreme Court that each day's delay in dealing
with the representation must be adequately explained are meant to emphasise
the expedition with which the representation must be considered and not that
it is a magical formula, the slightest breach of which must result in the release
of the detenu. 349

344. Madhu Kharma v. Administrator, Union Territory of Delhi, (1986) 4 SCC 240, 243:
1986 SCC (Cri) 426: AIR 1987 SC 48:1987 Cri LJ 318.
345. Harish Pahwa v. State of U.P., (1981) 2 SCC 710:1981 SCC (Cri) 589: AIR 1981 SC 1126:
(1981) 3 SCR 276:1981 CriLJ 750.
346. Asha Keshavrao Bhosale v. Union of India, (1985) 4 SCC 361, 365:1985 SCC (Cri) 561:
AIR 1986 SC 283.
347. Vinay Kumar Verma v. Union of India, 1986 Supp SCC 528:1987 SCC (Cri) 169.
348. Ashok Kumar v. State of J & K, (1981) 2 SCC 73:1981 SCC (Cri) 329: AIR 1981 SC 851:
1981 CriLJ 439.
349. LM.S. Ummu Saleema v. B.B. Gujarat, (1981) 3 SCC 317:1981 SCC (Cri) 720: AIR 1981 SC
1191: (1981) 3 SCR 647:1981 Cri LJ 889.
 249

Representation to Central Government - Must be considered and

disposed of with utmost expedition - COFEPOSA Act, 1974 (52 of 1974), S. 11.
In matters touching the personal liberty of a person preventively
detained, the constitutional imperative embodied in Art. 22(5) is that any
representation made by him should be dealt v^ith utmost expedition. In the
present case this constitutional mandate has been honoured in breach
regarding the representation sent by the detenu to the Central Government.^so
Delay of one day on the part of Senior Technical Officer to put up the matter
before detaining authority after receiving comments from DRI as he had to be
present before Advisory Board on the due date with relevant records in
connection with hearing of detenu's case - Held, delay justified, ^^i
Disposed of within 4 days - Held, disposal not delayed.
The appellant/petitioner contended that there was delay in the
disposal of the representation made by the appellant to the State Government
which rendered his continued detention invalid and constitutionally
impermissible.
Held:
There was no delay, much less inordinate delay, in consideration of the
representation, Rajendrakumar Natvarlal Shah v. State of Gujarat, (1988) 3
s e c 153,167:1988 SCC (Cri) 575: AIR 1988 SC1255.
A week's time taken by Central Government in considering and disposing of
the representation— Held, delay reasonable.352
Unexplained delay of about 20 days on the part of jail authorities in
forwarding the representation to DM. and of three days on the part of D.M. in
forwarding it to the Government - As a result of the delay, the
representation could not be forwarded to Advisory Board, which after
giving a personal hearing to the detenu, submitting its report — Government
considering the representation thereafter and rejecting it - Held, the delay
rendered continued detention of the detenu illegal - Constitution of India,
Art. 22(5).353
Twenty-one days taken by State Government in examining the representation
under S. 8 of the National Security Act, 1980 - Disposal of the representation,
held, inordinately delayed in view of the period fixed under S, 3(4) for the
same - In absence of any explanation delay would vitiate the detention
order. ^54

350. Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427: 1981 SCC (Cri) 463- AIR
1981 SC 728: (1981) 2 SCR 352:1981 Cri LJ 288:1981 MLJ (Cri) 350.
351. Vijay Kumar v. Union of India, (1988) 2 SCC 57, 675 68:1988 SCC (Cri) 293- AIR 1988
SC 934: (1988) 17 ECC 82: (1988) 3 Crimes 50.
352. Suresh Bhojraj Chelani v. State of Maharashtra, (1983) 1 SCC 382: 1983 SCC (Cri) 202-
AIR 1983 SC 181:1983 Cri LJ 342.
353. Youssuf Abbas v. Union of India. (1982) 2 SCC 380: 1982 SCC (Cri) 440- AIR 1982 SC
1170:1982 Cri LJ 1396.
354. Devi Lai Mahto v. State of Bihar, (1982) 3 SCC 328:1983 SCC (Cri) 37- AIR 1982 SC 1548-
1982 Cri LJ 2363.
 250

Unexplained delay of more than three weeks in supplying copies of

documents and statements referred to or relied upon in grounds of detention
and of 37 days in considering the representation of the detenu, held,
unreasonable and vitiates the detention order — COFEPOSA Act, 1974, S.
3(3).
Under Art. 22(5) of the Constitution, the detenu has got a two-fold
right: First, the detenu has a right to be served with the grounds of detention
as soon as practicable. [Under subsection (3) of S. 3 of COFEPOSA, such
grounds must be communicated to the detenu within five days, and in
exceptional cases, for reasons to be recorded, within 15 days of his detention.
Secondly, he should be furnished with all the basic facts and materials,
with reasonable expedition, which has been relied upon in the grounds of
detention. The unreasonable delay of more than three weeks in supplying the
detenu with copies of those basic documents had infringed this constitutional
imperative, and had stultified and impeded his constitutional right to make a
speedy and effective representation, ^ss
Unexplained delay of 22 days in disposing of the detenu 9s representation,
held, rendered continued detention void. ^56
Representation before detaining authority — Delay of 27 days in disposal of
— Explanation given in counter-affidavit filed by a Dy. Superintendent of
Police instead of detaining authority or any other responsible officer
personally connected with the case, not acceptable — In absence of any other
explanation, held, delay vitiated the detention — Constitution of India, Art
22(5) — Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988, S. 3(1). 3^7
Delay in disposal of — Delay of over one month and ten days without any
proper explanation, held, vitiated order of detention. 3^8
Delay in considering — Period of 4 or 5 days taken by customs authorities in
furnishing their parawise comments on the representation — Consequent
delay, held, not unreasonable. 359
Unexplained failure on the part of State Government to dispose of detenu's
representation, held, rendered his further detention illegal- Disposal of a
representation by detaining authority would not be substantial compliance of
Art 22(5) as detenu has right to make representation to State Government

355. Suryakant v. State of Maharashtra, (1981) 2 SCC 202:1981 SCC (Cri) 408: AIR 1980 SC
2130.
356. Sardar Kashmir Singh v. Union of India, 1981 SCC 55:1982 SCC (Cri) 133.
357. Gazi Khan v. State ofRajasthan, (1990) 3 SCC 459: AIR 1990 SC 1361: 1990 Cri LJ1420:
(1990)29ECC5.
358. Piara Singh v. State of Punjab, (1987) 4 SCC 550, 555:1987 SCC (Cri) 783: AIR 1987 SC
2377.
359. Masuma v. State of Maharashtra, (1981) 3 SCC 566, 573:1981 SCC (Cri) 750: AIR 1981
SC 1753:1981 Cri LJ 1256.
 251

also - Gujarat Prevention of Anti-Social Activities Act, 1985, S. 3(2) -

Constitution of India, Art. 22(5).36o
Mohinuddin v. District Magistrate, Seed, (1987) 4 SCC 58:1987 SCC (Cri) 674,
relied on
Writ petition against detention filed almost simultaneously v^ith the receipt of
the representation by the government - Government hardly having time to
consider the representation, held, petition on ground of delay not
maintainable - Constitution of India, Arts. 32, 22(5). 36i
A fortnight's time taken by State Government in considering the
representation at all levels, held on facts, does not amount to undue delay .362
Total delay of 28 days in disposal of representation - Nine days taken by
detaining authority in examining the representation and forwarding its
comments - Remaining period taken in rotating files at governmental levels
- Held, delay inordinate and vitiated the detention order. 363
Delay in disposal of - Inordinate and unexplained delay in disposal may
vitiate the detention order - Representation disposed of by Central
Government after 28 days and order of rejection of the representation
communicated to detenu after 32 days of receipt of the representation on the
sole explanation that further information required from State Government
received by it after 14 days and the representation disposed of 10 days
thereafter within which period there were certain holidays — Held, delay
inordinate and unreasonable and explanation unsatisfactory and
unacceptable — Hence detention order set aside on ground of breach of Art.
22(5) - Constitution of India, Art. 22(5) - National Security Act, 1980, S. 8 -
National Security (Conditions of Detention) (Maharashtra) Order, 1980.^64
Delay in considering— Government examining and rejecting the
representation and referring it to Advisory Board two days after it was made
- Advisory Board fixing a date for production of the detenue in accordance
with the detenue's request and tendering its advice to the Government about
19-20 days after the reference - Held on facts, delay not
unreasonable.365

9. ADVISORY BOARD
(a) Constitution of the Board
Board not yet constituted - Passing of detention orders in such situation
deprecated - Constihition of India, Art. 22(4).

360. Salim Rajmohmad Muslim v. State of Gujarat, (1988).3 SCC 476 477- 1988 SCC fCri^
688. ' ' ^ '
361. Iris Fernandes v. Union of India, (1981) 3 SCC 663:1981 SCC (Cri) 788.
362. Fitrat Raza Khan v. State of U.P., (1982) 2 SCC 449:1982 SCC (Cri) 472- AIR 1982 SC146-
1982 Cri LJ 338.
363. Raj Kishore Prasad v. State of BiJiar, (1982) 3 SCC 10:1982 SCC (Cri) 530- AIR 1983 SC
320.
364. Rama Dhondu Boradev. V.K. Sara, (1989) 3 SCC 173,180:1989 SCC (Cri) 520- AIR 1989
SC 1861: (1989)2 Cri LJ 653.
365. S. Gavathri v. Commr. of Police. ('1981U SCC 17.^ /I Q81 c:rr /Tra RI i • A TD i QQI en i ,:rro
 252

That an order for preventive detention was passed knowing fully well
that there was no Advisory Board to whom it could be referred to betrays a
casual and indifferent approach to citizens' rights and has to be deprecated. ^^
Constitution of Advisory Board under National Security Act — Held, cannot
be judged with respect to proposed amendment to Art. 22(4) by the
Constitution 44th Amendment— States, however, free to constitute Advisory
Boards according to proposed amendment — National Security Act, 1980, Ss.
9,10 & 11.
The constitutionality S. 9, NSA providing for constitution of Advisory
Boards cannot be judged with reference to Art. 22(4) as it would stand
amended when S. 3 of the Constitution 44th Amendment is enforced.
Of course Parliament is free to amend S, 9 to bring it in line with the
proposed Art. 22(4). So also can the executive appoint members according to
the proposed amendment. The standard of the present Art. 22(4) cannot be
derogated from but can be improved upon. It is hoped that the Parliament
will take the earliest opportunity to amend S. 9 of the NSA by bringing it in
line with S. 3 of the 44th Amendment as the Ordinance did and that, the
Central Government and the State Governments will constitute Advisory
Boards in their respective jurisdictions in accordance with S. 3 of the 44th
Amendment, whether or not S. 9 of the Act is so amended.367
(b) Reference to the Board
Reference to— Statutory requirement to refer the case to the Board mandatory
— Non compliance with the requirement will result in order ceasing to be in
force after the specified period of three months— A.P. Prevention of
Dangerous Activities of leggers, Dacoits, Drug Offenders, Goondas,
Immoral Traffic Offenders and Land Grabbers Act, 1986, S. 10 — Constitution
of India, Art, 22(7).
The case of the appellant was not at all referred to the Advisory Board
as required by S. 10 of the Act and by Art. 22. Section 10 prescribes a period of
three weeks from the date of detention irrespective of whether the person
continues to be in detention or not. Therefore, even though the detenu was
released, if the detention order was in force, his case was required to be
the Advisory Board. This being a mandatory provision and having not been
complied with the detention order even if otherwise it was in force cannot be
said to have been in force after three weeks. ^^^
Detenu's right to make representation against detention order and right to be
heard by Advisory Board — Requirement to apprise detenu of his rights,
mandatory — But failure to do so would not vitiate the detention order where
the detenu, being an enlightened person, is well aware of such rights —

366. Abdul Latif Abdul Wahab Sheikh v. B.K. Jha, (1987) 2 SCC 22, 25:1987 SCC (Cri) 244:
AIR 1987 SC 725:1987 Cri LJ 700.
367. A.K. Roy v. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152: AIR 1982 SC 710:1982
Cri LJ 340:1982 MLJ (Cri) 524
368. SMD. Kiran Pasha v. Govt, of A.P., (1990) 1 SCC 328,343,344:1990 SCC (Cri) 110.
 253

Constitution of India, Art 22(5) - National Security Act, 1980 (65 of 1980) S,
8.369

Statutory requirement to refer the case to the Board mandatory — Non-

compliance with the requirement mil result in order ceasing to be in force
after the specified period of three months — A. P. Prevention of Dangerous
Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral
Traffic Offenders and Land Grabbers Act, 1986, S. 10— Constitution of India,
Ar. 22(7). 370

Duty to make a reference to Advisory Board is on Government and not on

any officer of the Government - COFEPOSA ACT, 1974, S. 8.
In the matter of making a reference of the case of a detenu to the
Advisory Board under S. 8(b), the duty of making the reference is cast only on
the Central Government or the State Government as the case may be, and not
on the officer of the Central Government or the State Government ii he makes
the order of detention in exercise of the powers conferred on him under S.
3(1). 371

(c) Delay in placing representation before the Board

Delay in placing the representation before Advisory Board — In absence of
negligence on the part of the State Government and prejudice to the detenu.
High Court erred in quashing the detention order on ground of such delay —
But in view of long lapse of time since the quashing of the detention order, no
interference with High Court's order called for— Constitution of India, Art.
136.372

Hari Singh Thakur v. Union of India, 1985 All LJ1126, reversed

Placing of representation before Advisory Board — Requirement under S.
10, National Security Act, held, mandatory — Where representation made by
detenu "within reasonable time, the same must be placed before the Board
promptly — Failure to do so fatal to the detention — Where detention order
made on August 7 but representation made by detenu on August 16 which
reached State Government through jail authorities and District Magistrate on
August 25 and received by the Board on August 29 i.e. 22 days after
detention, held, detention not vitiated. 3"3
Requirement of placing before the Board detenu's representation "within
three weeks from the date of detention" under S. 10 of National Security Act
— Held, not mandatory but conditional upon making of the representation
and date of its receipt by the appropriate Government — Belated

369. Wasiuddin Ahmed v. D.M., (1981) 4 SCC 521, 531:1982 SCC (Cri) 4; AIR 1981 SC 2166:
1981 Cri LJ 1825.
370. SM.D, Kiran Pasha v. Govt, of A.P„ (1990) 1 SCC 328:1990 SCC (Cri) 110.
371. State of Maharashtra v. Sushila Mafatlal Shah, (1988) 4 SCC 490, 501: 1989 SCC (Cri) 1:
AIR 1988 SC 2090:18 EEC 322.
372. State of U.P. v. Hari Singh Thakur, 1987 Supp SCC 190:1988 SCC (Cri) 44: AIR 1987 SC
2080:1987 Cri L] 1923.
373. State of U.P. v. Mahant Singh, (1985) 4 SCC 624, 626: 1986 SCC (Cri) 56: AIR 1986-SC
207:1985 All LJ 1314.
 254

representation of detenu resulting in one day's delay in placing it before the

Board despite expeditious action of the Government — Advisory Board
having the representation four days before the date of hearing — In absence
of any prejudice caused to the detenu and any negligence on the part of the
Government and in view of impossibility to forward the representation
within time, held, detention not vitiated.
An order of detention was passed under S. 3(2) of the National Security
Act against the respondent on August 14,1984 and he was taken into custody
on the following day. On August 22,1984 the State Government referred the
matter to the Advisory Board comprising three Judges of High Court and
placed before it the grounds of detention as also the materials referred to
therein. The respondent made a representation on August 28,1984, which was
received by the Superintendent of the Central Jail where the detenu had been
lodged and the same was received by the State Govermiient on August 30,
1984. After looking into the contents of the representation of the State
Government caused it to be placed before the Advisory Board on September
6,1984. The Board having already fixed the consideration of the respondent's
detention at the meeting on September 10,1984, it got the representation four
days before the date of hearing. The Board recommended detention of the
respondent. The High Court quashed the detention order.
While making of the reference to the Advisory Board under S. 10 of the
National Security Act and forwarding of the grounds of detention to it are
mandatory, the requirement of placing before it the representation is condi-
tional upon it having been made and receipt thereof by the appropriate
Government, It is, however, obligatory for the appropriate Government to
forward the representation, when received, to the Board without delay.
In the present case there had been a day's delay in placing the
representation of the respondent before the Board, though reference to the
Board furnishing grounds of detention was made within a week of
commencement of the detention in compliance with S. 10 of the Act. As by the
time of making the reference and furnishing grounds no representation from
the respondent had been received, it was not possible to place the same before
the Board along with the grounds. The doctrine of impossibility of
performance (lex non cogit ad impossibilid) indicates that however
mandatory the provision may be, where it is impossible of compliance that
would be a sufficient excuse for non-compliance, particularly when it is a
question of the time factor.
The first meeting of the Advisory Board was fixed within four weeks
from the date of detention and the consideration of the matter by the Board
was not required to be adjourned on account of any delay in receiving the
copy of the representation of the detenu. The legislative scheme in fixing the
limit of three weeks in S. 10 and the further limit of seven weeks in S. 11
allows at least four weeks' time to the Board to deal v/ith the matter.
In the facts of the present case, it cannot be said that there has been any
negligence or remissness on the part of the State Government in dealing with
the representation of the detenu or in the matter of causing the same to be
placed before the Advisory Board. No prejudice has been caused to the
 255

detenu on account of the delay of a day beyond the statutory period in

placing the representation before the Advisory Board inasmuch as the Board
had caused the matter to be heard on September 10, 1984, and before the
appointed date the representation was before the Board. 374
(d) Proceedings before the Board
Procedural fairness must be observed by Advisory Board. There is no
particular procedure prescribed for the Advisory Board since there is no lis to
be adjudicated. Section 11 of the Act provides only the broad guidelines for
observance. The Advisory Board, however, may adopt any procedure
depending upon varying circumstances. But any procedure that it adopts
must satisfy the procedural fairness. ^^^
Procedure — Board should send all the relevant materials to the Government
along with its report to enable the Government to apply its mind and decide
whether to confirm the detention or revoke the same — National Security Act,
1980, S. 11.
Though the procedure established by law i.e. S. 11 of the National
Security Act, does not require the entire record to be sent by the Advisory
Board to the State Government, yet it is certainly proper that the entire record
or at least all relevant materials should be made available to the State
Government when it proceeds to apply its mind to decide whether the
detention should be continued or revoked on the basis of the report of the
Board under S. 12(1). The Board should, therefore, forward the record
containing the papers placed before it at the of the matter along with its report
so that the matter can be attended by the State Government with due
despatch and on taking a full view of the matter.
In the present case the grounds of detention as well as materials
referred to in the grounds were available with the State Government. Only the
documents which the detenu claimed to have produced before the Board
were not available to the Government. But on a perusal of those documents it
appeared to the Court that they did not contain any material which could
persuade the Govermnent to act in a different way. Though it is for the
Government and not for the Court to act as the confirming authority and non-
compliance with the procedure laid down by law makes the order of
detention liable to be quashed, but as non-placing of the record of the Board
before the appropriate Government is not a failure of compliance with the
prescribed procedure, the Court could look at the record to find out if it could
be said to be a defect having material bearing on the question and a matter of
prejudice so far as the detenu is concerned. ^76

374. State of Rajasthan v. Shamsher Singh, 1985 Supp SCC 416, 423-425: 1985 SCC (Cri) 421:
AIR 1985 SC1082:1985 Cri LJ1348.
375. State of A.P. v. Balajangam Subbarajamma, (1989) 1 SCC 193, 203: 1989 SCC (Cri) 75:
AIR 1989 SC 389: (1988) 3 Crimes 729.
376. State of Rajasthan v. Shamsher Singh, 1985 Supp SCC 416,428, 429:1985 SCC (Cri) 421:
AIR 1985 SC 1082:1985 CriLJ 1348.
 256

Must forward record of its proceedings along with its report to the State
Government — If the Board fails to forward the record, confirmation of
detention order only on the basis of Board's report would amount to non-
application of mind and violation of Art 21, which would render the
detention order illegal — Prevention of Black marketing and Maintenance of
Supplies of Essential Commodities Act 1980 (7 of 1980), Ss. 11(1) and 12 The
State Government while confirming the detention order under S. 12 of the Act
has not only to peruse the report of the Advisory Board, but also to apply its
mind to the material on record. If the record itself was not before the State
Government, it follows that the order passed by the State Government under
S. 12 of the Act was without due application of mind and the procedure
adopted was not in consonance with the procedure established by law. This is
a serious infirmity in the case which makes the continued detention of the
detenu illegal.377
Failure to forward detenu's letter retracting his confessional statement to the
Board — Held, will not vitiate the detention order where the detenu, a highly
qualified and highly placed person, was himself present before the Board
— Detenu would have informed the Board about the retraction.^''^
Held on the basis of counter-affidavit of the State, necessary materials
despatched to Advisory Board and Central Government — Detenu failed to
clearly aver what material had not been despatched — Hence detention order
not vitiated on ground of non-despatch of materials, A. Alangarasamy v. State
of T.N., (1987) 3 s e c 159:1987 SCC (Cri) 477: AIR 1987 SC1725.
Proceedings before the Board cannot be made public — National Security Act,
1980, Ss, 9,10,11.379
It is not possible to accept the plea that proceedings of the Advisory
Board should be made public. The right to a public trial is not one of the
guaranteed rights under our Constitution as it is under the 6th Amendment of
the American Constitution which secures to persons charged with crimes a
public, as well as a speedy trial. Considering the nature of the inquiry which
the Advisory Board has to undertake, the interests of justice will not be served
better by giving access to the public to proceedings of the Advisory Board.
Carrying on correspondence with the detenus through Government — Held,
justified where the Board consisting of High Court Judges having no
administrative office of its own — No mala fide intention made out.^^o
Writ petition under Art. 32 challenging the detention filed during pendency
of detenu's representation before Advisory Board is maintainable —
Representation — Constitution of India, Art. 32. ^^i

377. Nand Lai Bajaj v. State of Punjab, (1981) 4 SCC 327, 334:1981 SCC (Cri) 841: AIR 1981
SC2041:1981 Cri LJ.1501.
378. Raverdy Marc Germain Jules v. State of Maharashtra, (1982) 3 SCC 135:1982 SCC
(Cri) 638: AIR 1983 SC 311.
379. A.K. Roy v. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152: AIR 1982 SC 710:1982
Cri LJ 340:1982 MLJ (Cri) 524.
380. Phillippa Anne Duke v. State of T.N., (1982) 2 SCC 389:1982 SCC (Cri) 444: AIR 1982 SC
1178:1982 Cri LJ 1389.
381. Piyush Kantilal Mehta v. Commr. of Police, 1989 Supp (1) SCC 322,325:1989 SCC (Cri)
438: AIR 1989 SC 491:1989 Cri LJ 956.
 257

Prabhu Dayal Deorah v, DM, Kamrup. (1974) 1 SCC 103:1974 SCC (Cri) 18,
followed
(ii) Hearing
Proceedings — Hearing — Failure to afford opportunity to detenu to appear
and produce witnesses before the Board within the statutory period of
submission of report by the Board — Held, fatal to the detention — Effect of
amendments of National Security Act — National Security Act 1980, Ss. 11,
14-A (as applicable to Punjab and Chandigarh) — National Security
(Amendment) Act, 1984 - National Security (Second Amendment) Act, 1984
— National Security (Amendment) Act 1987.
It was decided to hold the sitting of the Advisory Board at Indore on
November 12, 1988 which was a week before the mandatory last date for
submitting the report. On November 8,1988 the detenu at Agartala prayed for
postponement of the Board sitting. The State Government informed the Board
on the basis of teleprinter message dated November 8, 1988 received from
Agartala that the detenu was unable to undertake the journey from Agartala
to Indore. Thereafter, the arrangements made to carry the detenu and his
witnesses to Indore by plane were also cancelled by the State Government of
Punjab and the detenu was told through the Inspector-General of Prisons,
Tripura by communication dated November 11, 1988 that the next date of
hearing as fixed by the Board will be intimated. It was contended that
opportunity was not afforded to the detenu to appear and produce his
witnesses before the Advisory Board.
There was a communication gap. Though the Advisory Board is not a
judicial body and is charged with the responsibility of advising the executive
government, but when it advises in favour of the detenu, namely, that there
was no sufficient cause for detention, it would be binding upon the
government under S. 12(2) of the Act to release the detenu forthwith. The
detenu in this case did not have the opportunity to show that there was no
sufficient cause for his detention. Expressing inability to appear once could
not have been treated as the detenu's not desiring to be heard under S. 11(2) of
the Act. In fact he desired to be heard and to produce his witnesses. The result
was that despite the State Government's communication he was deprived of
this opportunity.
As a result of the amendments of the National Security Act applicable
to, the State of Punjab and the U.T. of Chandigarh, on one hand there is
addition to the grounds of detention and on the other, there is extension of the
period during which a person could be detained without obtaining the
opinion of the Advisory Board. There is, however, no amendment as to the
safeguards provided under Art. 22 and Ss. 9, 10 and 11 of the Act. Indeed,
there could be no such amendment. Lex uno ore omnes alloquitur. Law
addresses all with one mouth or voice. Quotiens dubia interpretatio libertatis
est secundum libertatem respondendum erit — Whenever there is a doubt
between liberty and bondage, the decision must be in favour of liberty. State
 258

of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, 55? 59: 1990 SCC (Cri) 1: AIR
1990 SC 231:1990 Cri LJ 584.
(iii) Representation by friend/lawyer before Board
Detenu's request for being represented by lawyer must be made before the
Advisory Board and not before Government — On receipt of such request the
Board must take a decision in the matter considering the merits of each case
- Constitution of India, Arts. 22(1) and 21 - COFEPOSA Act} 1974, S. 8(e)
While S. 8(e) disentitles a detenu from claiming as of right to be
represented by a lawyer, it does not disentitle him from making a request for
the services of lawyer. Often adequate legal assistance may be essential for the
protection of right to procedural fairness, which is a part of the fundamental
right guaranteed by Art. 21 of the Constitution, as also right to be heard given
to the detenu under S. 8(e), COFEPOSA Act. Therefore, where a detenu makes
a request for legal assistance, his request would have to be considered on its
own merit in each individual case. In the present case, the Government
merely informed the detenu that he had no statutory right to be represented
by a lawyer before the Advisory Board. Since it was for the Advisory Board
and not for the Government to afford legal assistance to the detenu the latter,
when he was produced before the Advisory Board, could have, if he was so
minded, made a request to the Advisory Board for permission to be
represented by a lawyer. He preferred not to do so. In the special circum-
stances of the present case it cannot be held that the detenu was wrongfully
denied the assistance of counsel so as to lead to the conclusion that procedural
fairness was denied to him.382
Legal assistance in proceedings before Advisory Board — Though detenu has
no right to such assistance, held, he is entitled to make a request in that regard
and the Board is bound to consider the same and take a reasonable decision
— Permitting the detaining authority to be represented by counsel while
denying legal assistance to the detenu despite his requests, held, violative of
Arts. 14 and 21 — Constitution of India, Arts. 14 and 21 — Prevention of
Blackmarketing and Maintenance of Supplies of Essential Commodities Act,
1980 (7 of 1980), S. 11 - COFEPOSA Act, 1974, S, 8(e)
Arbitrariness is the very antithesis of Art. 14. The principle of
reasonableness is an essential element of equality and the procedure
contemplated by Art. 21 must answer the test of reasonableness in order to be
in conformity with Art. 14. The history of personal liberty is largely the
history of procedural safeguards for observance of procedural safeguards,
particularly in cases of deprivation of life and liberty is, therefore, of prime
importance to the body politic. It is increasingly felt that in the context of
"deprivation of life and liberty" under Art. 21, the "procedure established by
law" carries with it the inherent right to legal assistance. The right to be heard
before the Advisory Board would be in many cases, of little avail if it did not
comprehend the right to be heard by counsel.

382. Kavita v. State of Maharashtra (I), (1981) 3 SCC 558, 564, 565: 1981 SCC (Cri) 743: AIR
1981 SC 1641.
 259

The Advisory Board is expected to act in a manner which is just and

fair to both the parties. It is the arbitrariness of the procedure adopted by the
Advisory Board that vitiates the impugned order of detention. While there is
no right under S. 11(4) of the Prevention of Black-marketing and Maintenance
of Supplies of Essential Commodities Act, 1980 or S. 8(e) of the COFEPOSA
Act to legal assistance to a detenu in the proceedings before the Advisory
Board, he is entitled to make such a request to the Board and the Board is
bound to consider such a request when so made.
In the present case? the detenu made such a request, but in the absence
of the record of the Advisory Board, it is not possible to infer whether the
request was considered. Even if it was denied, as the petitioner himself
allegess there was no rational basis for a differential treatment. Under S. 11(4)
the detenu had no right to legal assistance in the proceedings before the
Advisory Board, but it did not preclude the Board to allow such assistance to
the detenu, when it allowed the State to be represented by an array of
lawyers. 383
Legal representation before Advisory Board - No right in detenu to claim -
Board has discretion to such representation in particular circumstances -
COFEPOSA Act, 1974 (52 of 1974), S. 8(e) - Constitution of India, Art. 21
Section 8(e) of the COFEPOSA Act only lays down that the detenu cannot
claim representation by a lawyer as of right. It has given the Board a
discretion to permit or not to permit representation of the detenu by counsel
according to the necessity in a particular case. Certain cases may be
complicated and assistance of lawyers may be necessary on behalf of the
parties to explain the facts and law involved in the case.
However, the contention that the Advisory Board's rejection of the
detenu's request for representation by a lawyer on the ground that in the past
no legal representation had been allowed on behalf of any detenu was based
on misconception of law is not acceptable because in this case: (1) the Board
was not a party before the Court and (2) and Court's decision on the point
would be merely academic as after the rejection of the request the Board
reviewed the case of the detenu and gave its opinion whereupon the
Government confirmed the detention. 3^4
Board directing presence of Customs Officers with files before it while
disallowing detenu's request for being represented by someone - Held, Art.
14 not violated - Constitution of India, Art 14 - COFEPOSA Act 1974 S
8(c). 385

[Ed.: In Phillippa Anne Duke v. State of T.N., (1982) 2 SCC 389, the Court held
that merely allowing some Customs Officers to be present in the corridor so
as to enable them to produce the relevant files whenever required for perusal

383. Nand Lai Bajaj v. State of Punjab, (1981) 4 SCC 327; 1981 SCC (Cri) 841: AIR 1981 SC
2041:1981 CriLJ 1501.
384. Hemlata Kantilal Shah v. State of Maharashtra, (1981) 4 SCC 647, 652- 1982 SCC (Cri)
16: AIR 198 ISC 8.
385. Suresh Bhojraj Chelani v. State of Maharashtra, (1983) 1 SCC 382: 1983 SCC (Cri) 202-
AIR 1983 SC 181:1983 Cri LJ 342.
 260

by the Board while disallowing the detenu's demand for representation

would not amount to inequality of treatment before the Board.]
Detenu has a right to be represented by a friend who is not a legal practitioner
- Denial of such right would amount to non-compliance with the procedure
by the Board which would vitiate entire proceedings before it and render
continued detention of the detenu illegal - Constitution of India, Art, 21 -
COFEPOSA Act, 1974, S. 3.386
A.K. Roy V. Union of India, (1982) 1 SCC 271: 1982 SCC (Cri) 152; Devji
Vallabhbhai Tandel v. Administrator cfGoa, Daman & Diu, (1982) 2 SCC 222:1982
SCC (Cri) 403, followed
Detenu's right to be represented by a friend - Arises when detaining
authority is allowed to be represented by high-ranking government officers -
In such circumstances, derual of representation by a friend to detenu "would
vitiate his detention - Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980, Ss. 11 and 12 - Constitution of
India, Art. 22(4) and (5).
The opinion of the Advisory Board under S. 11(2) as to sufficient cause
is required to be reached with equal opportunity to the State as well as the
person concerned, no matter what the procedure. It is important for laws and
authorities not only to be just but also appear to be just. The action that gives
the appearance of unequal treatment or unreasonableness — whether or not
there is any substance in it — should be avoided by the Advisory Board.
Therefore, it is the duty of the Advisory Board to see that the case of detenu is
not adversely affected by the procedure it adopts. It must be ensured that the
detenu is not handicapped by the unequal representation or refusal of access
to a friend to represent his case.
In the instant case, since the Advisory Board has heard the high-
ranking officers of the Police Department and others on behalf of the
government and detaining authority, it ought to have permitted the detenu to
have the assistance of a friend who could have made an equally effective
representation on his behalf. Since that has been denied to the detenu, the
High Court, was justified in quashing the detention order. 3«7
Legal representation - Denial of right of counsel to detenu not
unconstitutional - He can, however, take help of a friend - Government not
allowed to put up lawyers or officers to put forward its case before Advisory
Boards unless it gives the same right to the detenu -National Security Act,
1980, Ss. 9,10,11.
Regarding procedure before the Advisory Board the Constihition itself
by Art. 22(3) (fr) denies to a detenu under preventive detention the right to
consult a legal practitioner or to be defended by him. Since the Constitution as
originally constituted so provided it cannot be said to be unfair, unjust or

386. Abdul Zabbar v. State of Rajasthan, (1984) 1 SCC 443:1984 SCC (Cri) 106- AIR 1983 SC
505:1983 Cri LJ 853:1983 MLJ (Cri) 526.
387. State of A.P. v. Balajangam Subbarajamma, (1989) 1 SCC 193, 203- 1989 SCC (Cri) 75-
AIR 1989. SC 389: (1989) 21 ECC17:1989 Cri LJ 853. '
 261

unreasonable since the standard of reasonableness and fairness for Arts. 19

and 21 is provided by the Constitution itself. The rights available to an
accused can be different from those available to a detenu.
Also under Art. 22(5) the written representation of the detenu does not
have to be expatiated upon by a legal practitioner.
While the detenu has no right to appear through a legal practitioner in
the proceedings before the Advisory Board, the detaining authority or the
Government also cannot take the aid of a legal practitioner or a legal adviser
before the Advisory Board. This bar would apply also to officers of the
Government in the concerned departments even though they are not legal
practitioners or legal advisers. Else Art, 14 requires that if the detaining
authority or the Government takes the aid of a legal practitioner or an adviser
before the Advisory Board, the detenu must be allowed the facility of
appearing before the Board through a legal practitioner.
The embargo on the appearance of legal practitioners, however, does
not extend to preventing the detenu from being aided or assisted by a friend
who, in truth and substance, is not a legal practitioner. A detenu, taken
straight from his cell to the Board's room, may lack the ease and composure to
present his point of view. The friend would assist him to give coherence to his
stray and wandering ideas. Incarceration makes a man and his thoughts dis-
hevelled. So whenever demanded the Advisory Board must grant this facility.
388

Legal representation — Detenu's right to - Detention order passed by

Administrator of a Union Territory under COFEPOSA Act — Held, detenu
has no right to appear through a lawyer before the Administrator or before
the Advisory Board — A friend or agent of the detenu may, however,
represent the detenu provided he is not a legal practitioner — COFEPOSA
Act, 1974 (52 of 1974), S. 8(e) - Constihition of India, Art. 22(5).
A detention matter which is pending before the Administrator is a
'matter connected with the reference to the Advisory Board' within the
meaning of S. 8(e) of the COFEPOSA Act and therefore, the detenu has no
right to appear before the detaining authority or before the Advisory Board
by a legal practitioner.
In view of Art. 22(3) any law providing for preventive detention would
not be unconstitutional even if it contravenes Art. 22(1) and (2). Thus a person
detained under a law providing for preventive detention cannot claim as a
matter of constitutional right to consult and be defended by a lawyer of his
choice.
Assuming that the right to make a representation and the
corresponding obligation cast on the detaining authority to consider the
representation expeditiously is not a matter connected with the reference to
the Advisory Board and that both are independent stages, it cannot be said
that the refusal of the Administrator to hear the Advocate of the detenu while

388. A. K. Roy v. Union of India, (1982) 1 SCC 271: 1982 SCC (Cri) 152: AIR 1982 SC: 710:
1982 Cri LJ 340:1982 MLJ (Cri) 524.
 262

considering the representation would be denial of conimon law right of the

to be represented by an agent. It is implicit in Art. 22(5) that the
representation has to be a written representation communicated through the
Jail Authorities or through any other mode which the detenu thinks fit of
adopting but the detaining authority is under no obligation to grant any oral
hearing at the time of considering the representation. Now, if the
representation has to be a written representation, there is no question of
hearing anyone much less a lawyer.
A 'friend' who, in truth and substance, is a friend of the detenu may
appear for the detenu but if such a 'friend' also happens to be a legal
practitioner, he can not as of right, appear before the Advisory Board on
behalf of the detenu. The same reasoning will apply to appearance by an
'agent'. In passing it must be stated that a man has a right to appoint an agent
which may be called a common law right, but there is no obligation on the
other side to deal with the agent. The other side has an equal right to refuse to
deal with an agent. But a 'friend' or an 'agent' of the detenu who is essentially
a comrade in the profession of the detenu for which he is detained, such a
'friend' or 'agent' will also be barred from appearance on of the detenu.
In the present case in response to the telegram of the detenu's lawyer to
the Administrator asking for time and place for appearing before him on
behalf of the detenu, the Administrator only advised the lawyer that the
detenu could make representation to him through Jail Authorities. Such
gratuitous9 advice can hardly mislead a lav^er. 389
Legal representation before the Board — Where Advisory Board, consisting of
High Court Judges, after hearing the detenus considered it not necessary to
provide legal representation to the detenus, held, Supreme Court's
interference is not called for — Representation by a 'friend' can be allowed by
the Board only when so demanded by the detenus — Proceedings before the
Board, held, not vitiated on ground of absence of a friendly representation
where no such demand made — Merely allowing some Customs Officers to
be present in the corridor so as to enable them to produce the relevant files
whenever required by the Board, while disallowing detenus' demand for
representation, held, would not amount to inequality of treatment before the
Board - Constitution of India, Arts, 14 and 22(7) - COFEPOSA Act, 1974 (52
of 1974), S. 8(e). 39o

Natural justice - Detenu's allegation that opportunity of being represented

by a friend who was not a lawyer denied by the Board - Statement of
secretary of the Board in his affidavit that officers of the Department were not
present at the time of hearing and that no request was made by detenu for
being represented, being of a responsible officer, acceptable - Detention
order not vitiated on ground of violation of natural justice. 3^1

389. Devji Vallabhbhai Tandel v. Administrator, (1982) 2 SCC 222:1982 SCC (Cri) 403- AIR
1982 SC 1029:1982 Cri L] 799.
390. Phillippa Anne Duke v. State of T.N., (1982) 2 SCC 389:1982 SCC (Cri) 444: AIR 1982 SC
1178:1982 Cri LJ1389.
391. Tusher Govindji Shah v. Union of India, (1985) 1 SCC 571:1985 SCC (Cri) 135- AIR 1985
SC 511:1985 Cri LJ 793.
 263

Representation by friend — Though Board permitted detenu to be

represented by a friend, detenu failed to take friends help — No
representation made before the Board that adequate time had not been given
to get the services of a friend — In the circumstances held, cannot take the
advantage of his own lapses and raise a contention that detention order was
illegal because he was not represented by a friend before the Board's meeting
— National Security Act, 1980, S. 1L.392
Representation by lawyer or friend -
Services of two persons available for understanding the statement of
the detenu and deciphering his representation in Gujarati which was
forwarded to the Board by State Government — On facts held, ground of not
allowing the detenu to be represented properly before Advisory Board cannot
be sustained - COFEPOSA Act, 1974, S. 8.393
Representation by nest friend —
Whether absence of next friend would vitiate proceeding before the
Board — Test to determine is one of prejudice in making effective
representation of case at the hearing before the Board — Detenu failing to
available his friend on the date of hearing when Board enquired about such a
— Board finding the detenu to be worldly wise, sufficiently educated, not
suffering from any deficiency and in a fit condition to represent his case,
declining to adjourn and proceeding without any representation of detenu by
a friend — Held, detenu not prejudiced in making effective representation of
his case before the Board in absence of a friend. Asha Keshavrao Bhosale v.
Union of India, (1985) 4 SCC 361,369:1985 SCC (Cri) 561: AIR 1986 SC 283.
Taking assistance of a friend in proceedings before, where detaining authority
assisted by high officials — When should be allowed — Triend in the context
— of— Detenu seeking assistance of a retired official was justified — On
refusal detention vitiated - COFEPOSA Act, 1974, S. 8(e).
The detenu, a clearing and forwarding agent aged around 26 or 27
years was detained under S. 3(l)(i) of the COFEPOSA Act. On the date of
hearing of the representation of the detenu by the Advisory Board, while the
detaining authority was being assisted by a Deputy Collector and a
Superintendent of Customs and Central Excise the specific request of the
detenu to permit a retired Assistant Collector of Central Excise to assist him
as a friend was rejected by the Board on the ground that on being asked the
said retired Assistant Collector had admitted that he was not a friend of the
detenu, though he was inclined to assist the detenu because of his
professional experience. The detenu contended that he had sought assistance
of the friend the retired Asstt Collector because the case before the Board
involved certain facts which required acquaintance with the legal provisions
and the procedure and practice adopted by the customs authorities with
which he was not well versed. The present appeal by special leave was
preferred by the father of the detenu against the dismissal of writ petition by

392. Sharad Kumar Tyagi v. State of U.P., (1989) 1 SCC 736:1989 SCC (Cri) 294: AIR 1989 SC
764: (1989)1 SCR 257.
393. Prakash Chandra Mehta v. Commr. and Secy, Govt, of Kerala, 1985 Supp SCC 144,170:
1985 SCC (Cri) 332: AIR 1986 SC 687.
 264

the High Court challenging the order of detention against his son. Allowing
the appeal.
Held:
In the facts of the case if the retired Assistant Collector had been
permitted to the detenu his case would have been better placed before the
Advisory Board. Moreover, as the detaining authority had the assistance of
the Deputy Collector of Central Excise and a Superintendent of Central
Excise, who play the role of legal advisers, the Board had no justification to
refuse assistance of the retired Assistant Collector to the detenu. In view of
the position of law and the facts of the case, the refusal by the Advisory Board
to permit the detenu to be assisted by the retired Assistant Collector as a
friend was bad and continued detention of the became vitiated.
The term 'friend' used In the judgments of the Court was more in the
sense of an 'ally' or a 'supporter' than meaning a person known well to
another and regarded with liking, affection and loyalty'. A person not being a
friend in the normal sense could be picked up for rendering assistance within
the frame of the law as settled by the Supreme Court. The Advisory Board
has, of course, to be careful in permitting assistance of a friend in order to
ensure due observance of the policy of law that a detenu is not entitled to
representation through a lawyer. What cannot be permitted directly should
not be allowed to be done in an indirect way.
It is, however, not for the Court to examine and assess what prejudice
had been caused to the detenu on account of assistance by a friend. Matters
relating to preventive detention are strict proceedings and warrant full
compliance with the requirements of law. 394
(iv) Evidence
Evidence — Detenu entitled to present his own evidence oral, or
documentary, to rebut the allegations made against him — National Security
Act, 1980, Ss, 9,10 & 11.
There can be no objection in granting to the detenu the right to lead
evidence in rebuttal before the Advisory Board. Neither the Constitution nor
the National Security Act contains any provision denying to the detenu the
right to his in rebuttal of the allegations made against him. The detenu
therefore offer oral and documentary evidence before the Advisory Board in
order to rebut the allegations which are made against him.
But, if the detenu desires to examine any witnesses, he shall have to
keep them present at the appointed time and no obligation can be cast on the
Advisory Board to summon them. The Advisory Board, like any other
tribunal, is free to regulate its own procedure within the constraints of the
Constitution and statute. It would be open to it, in the exercise of that power,
to limit the time within which the detenu must complete his evidence.^^s
Whether Board considered documentary evidence produced by the detenu —
Affirmative inference drawn from the facts that the Board comprised High

394. Johney D'Couto v. State of T.N., (1988) 1 SCC 116,119 to 121: 1988 SCC (Cri) 70: AIR
1988 SC109; (1988) 63 Com Cas 781:1988 Cri LJ178.
395. A.K. Roy v. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152: AIR 1982 SC 710:1982
Cri LJ 340:1982 ML] (Cri) 524.
 265

Court Judges and that the detenu himself was a practising advocate — Board
is required to furnish its conclusion only and not the reasons, pleas, evidence
produced by the parties etc. in its report — It is therefore not proper to
conclude from the report that the Board did not consider documentary
evidence.
*
There was no justification to hold that the documentary evidence
produced by the detenu had not been considered by the Board. The Board is
not required to write out a judgment wherein one would expect mention of
the respective pleas, materials produced by the parties, specification of
contentions advanced and reasons for the conclusion as may have been
drawn. What is required is the unbiased and impartial conclusion on the
materials available with reference to the grounds of detention as to whether
the detention order when made and the continued detention of the person
concerned are justified.
The Advisory Board in the instant case was constituted by three Judges
of the High Court, one of them being the Chairman. That would justify the
assumption that the members of the Board by their professional ability and
acumen were capable to assess the matter in a proper way and form an
objective opinion on the basis of materials produced. The detailed conclusion
with reasons given by the Board has also been disclosed. That shows that the
detenu made before the Board very lengthy arguments and cited a number of
authorities in support of his submissions. The detenu in the instant case is a
practising advocate and it can be assumed that such a practising advocate
must have very properly placed his points before the Board. ^^^
(v) Examination and cross-examination of witnesses
Cross-examination — Detenu does not have right to cross-examine the
persons on whose statements the detention is based or the detaining authority
itself - National Security Act, 1980, Ss. 9,10,11.
Regarding a right to the detenu of cross-examination, the primary
question that arises is whether it is an integral and inseparable part of the
principles of natural justice.
A detenu cannot claim the right of cross-examination in the proceeding
before the Advisory Board. The question for consideration of the Board is not
whether the detenu is guilty of any charge but whether there is sufficient
cause for the detention of the person concerned. The proceeding of the
Advisory Board has therefore to be structured differently from the proceeding
of judicial or quasi-judicial tribunals, before which there is a lis to adjudicate
upon.
Also in cases of preventive detention, witnesses would be most
reluctant to testify and often it may harm public interest to disclose their
identity. It is therefore, difficult, in the very nature of things, to give to the
detenu the full panoply of rights which an accused is entitled to have in order
to disprove the charges against him. Just as there can be an effective hearing

396. State of Rajasthan v. Shamsher Singh, 1985 Supp SCC 416, 427, 428:1985 SCC (Cri) 421:
AIR 1985 SC1082:1985 Cri LJ1348.
 266

without legal representation even so, there can be an effective hearing

without the right of cross-examination. The nature of the inquiry involved in
the proceeding in relation to which these rights are claimed determines
whether these rights must be given as components of natural justice.
Hence, in the proceedings before the Advisory Board, the detenu has
no right to cross-examine either the persons on the basis of whose statement
the order of detention is made or the detaining authority. ^^'^
Detenu has no right to cross-examine in proceedings before the Board.
398Detenu has right to examine defence witnesses in rebuttal of allegations
against him if the witnesses are present and willing — In absence of any
statutory prohibition in this regard, this right must be read into the statute —
Any contrary procedural regulation of the Board would be invalid — Board
erred in denying this right to the detenu, and instead allowing him only to
produce affidavits of the witnesses - COFEPOSA Act, 1974, S. 8(b) and (c)
The detenu has a right to lead evidence in rebuttal of the allegation
against him before the Advisory Board. This right being a right in the nature
of a constitutional safeguard embodied in Art, 22(5) as construed by Supreme
Court in A.K. Roy case has necessarily to be deemed to be incorporated in the
statute dealing with detention without trial viz. S. 8(b) and (c) of the
COFEPOSA Act S. 8 of the COFEPOSA Act is a sequel to Art. 22(7)(e). There is
nothing in S. 8 prohibiting oral evidence of the witnesses tendered by a
detenu being taken. The concept of inquiry by the Advisory Board takes
within its ambit this aspect of 'hearing' also. If this right is denied to a detenu
the necessary consequence must follow.
All that is necessary is that the detenu should keep the witnesses ready
for examination at the appointed time since there is no obligation on the
Advisory Board to summon them. The Board is entitled to regulate its own
procedure within the constraints of the Constitution and the statute and this
procedure is referable to the time limit within which the Advisory Board must
complete its inquiry. The Board had not regulated any procedure that oral
evidence will not be permitted when it inquires into orders of detention. Even
if there was any such procedure it would be of no legal consequence after the
law in this behalf had been laid down in A.K. Roy case.
Unless there is any legal bar for oral evidence of the detenu being
adduced before the Advisory Board it should be left to the detenu to choose
between affidavit evidence and oral evidence subject of course to the rigorous
limitation placed upon this right by the Court in A.K. Roy case relating to
constraints of time.
It is wrong to say that the witnesses on behalf of the detenu produced
in rebuttal of the allegation against him cannot be cross-examined. Cross-
examination of such witnesses has to be by the detaining authority and that
right cannot be denied to them. ^^^

397. A.K. Roy v. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152: AIR 1982 SC 710:1982
Cri LJ 340:1982 MLJ (Cri) 524.
398. Devji Val-labhbhai Tandel v. Administrator, (1982) 2 SCC 222:1982 SCC (Cri) 403: AIR
1982 SC 1029:1982 Cri LJ 799.
399. Harbans Lai v. ML. Wadhawan, (1987) 1 SCC 151, 155 to 159: 1987 SCC (Cri) 47: AIR
1987 SC 217:1987 Cri LJ 324: (1987) 12 ECC128.
 267

Natural justice — Examination of detenu's witnesses and assistance of

detenu's friend — Specific prayer regarding, must be made by detenu in
proceedings before the Board and not merely in his representation to the
Board — In absence of such a prayer, held, the Board cannot be said to have
acted illegally and in violation of principles of natural justice in taking a
decision without examining the witnesses and without assistance of detenu's
friend. 4oo
Advisory Board cannot consider continuation of detention beyond the date of
its report.
The obligation on the Advisory Board under S. 11(2), National Security
Act, to find sufficient cause for the detention cannot be extended to the
consideration of the question as to whether it is necessary to continue the
detention of the person beyond the date on which it submits its report or
beyond the period of three months after the date of detention. Such question
is for the detaining authority and not the Board.
The duty and function of the Advisory Board is to determine whether
there was sufficient cause for detention of the person concerned on the date
on which the order of detention was passed and whether or not there is
sufficient cause for the detention of that person on the date of its report, ^oi
Opinion of Advisory Board for detention exceeding one year — COFEPOSA
Act, 1974 - Ss. 8(b), (c) and (f), 9(1) and (2) and 10 - Board must specifically
opine that there was sufficient cause for 'continued detention' of the
detenu — Omission of words 'continued detention' in the opinion not mere
clerical or typographical error — Mere opinion regarding necessity of
'detention', would vitiate detention under Ss. 8 and 9. ^02
Jusub Haji Ismail v. State of Gujarat, 1985 Guj LH 617, reversed
Whether detention continued to be justified on the date of the report of the
Board even if it was justified on the date of making the detention order —
Board's failure to consider the question, would not vitiate proceedings before
it in view of short passage of time (one month) between the two dates and in
absence of any intervening circumstances requiring compartnientwise
consideration of the detention on those dates — In the circumstances held, the
Board's report that there was sufficient cause for detention necessarily
implied that the detention was found to be justified on both the dates.^os
Report of the Board
Advisory Board's failure to submit its report to the Government within eight
weeks from the date of detention, held, would render further detention of
the detenus illegal - J&K Public Safety Act, 1978, S. 16(1) - Constitution of
India, Art. 22(4) to (7).
Clauses (4) and (7) of Art. 22 envisage time-bound stages for thb
processing of a case as it reaches its determination. The obligation placed on

400. Vijay Kumar v. Union of India, (1988) 2 SCC 57, 66:1988 SCC (Cri) 293: AIR 1988 SC
934: 17 ECC 82: (1988) 3 Crimes 50.
401. A.K, Roy v. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152; AIR 1982 SC 710:1982
Cri LJ 340:1982 MLJ (Cri) 524.
402. Satar Habib Hamdani v. K.S. Dilipsinhji, (1986) 1 SCC 544:1986 SCC (Cri) 91: AIR 1986
SC 418:1986 Cri LJ 378: (1986) 8 ECC 133.
403. PhilUppa Anne Duke v. State of T.N.. (1982) 2 SCC 389:1982 SCC (Cri) 444: AIR 1982 SC
1178:1982 Cri LJ 1389.
 268

the Advisory Board under S. 16(1) of the J & K Public Safety Act to submit its
report within the prescribed period must be construed strictly inasmuch as
the personal liberty of a person is involved and having regard to the emphasis
which the Constitution has placed, and which emphasis is reflected in the Act,
on the necessity of expeditiously determining whether the detention of the
person concerned should be continued. Any proceedings taken by the
Advisory Board after the expiry of the prescribed period of eight weeks from
the date of detention can be of no consequence in supporting the further
detention of the detenu and the Court cannot grant any adjournment where
the Board is programmed to sit after expiry of the prescribed period. ^04
Advisory Board is required under S, 11 to dispose of within 7 weeks the
matter 'placed before' it by Government within three weeks from the date of
detention under S, 10 of National Security Act, 1980.
Section 10 casts a duty on the appropriate Government to forward to
the Advisory Board within three weeks from the date of detention, the
relevant papers pertaining to the detention. Therefore, the words 'place
before' in that section does not mean anything more than forward to or
submit before the Advisory Board the relevant papers relating to the
detention of the detenu. The Advisory Board is a wholly independent body
which can regulate its schedule of holding meetings and conducting its
business in accordance with the procedure laid down under S. 11 of the Act
which has specified a time limit of seven weeks from the date of detention for
the submission of the Board's report to the appropriate Government, In the
present case, the Advisory Board disposed of the petitioner's case well within
the period of seven weeks specified in S. 11(1), Consideration of the case
beyond three weeks would not therefore, vitiate the detention on the alleged
ground of violation of S. 10. ^os
10. REVOCATION OR CONFIRMATION
(a) Revocation
The meaning of the verb 'revoke*' and its noun seem to signify that
revocation is a process of recall of what had been done.^o^
Revocation of detention order — Duty to exercise power of revocation arises
only when new and relevant facts and circumstances come to light. ^O''
The power of revocation of detention order conferred on the
appropriate Government under S. 11 of the COFEPOSA Act is independent of
the power of confirming or setting aside an order of detention under S. 8(f). It
is an overriding power and is intended to be a check or safeguard against
arbitrary or improper exercise of power of detention by the detaining
authority or the State Government, in addition to the protection under Art.
22(5) available to the detenu by way of making a representation against the

404. Ashok Kumar Binny v, State ofJ&K, (1982) 1 SCC 174:1982 SCC (Cri) 128: AIR 1982 SC
978:1982 Cri LJ 848.
405. Raisuddin v. State of U.P„ (1983) 4 SCC 537, 541, 542:1984 SCC (Cri) 16: AIR 1984 SC
46:1983 Cri LJ 1785.
406. Ibrahim Bachu Bafan v. State of Gujarat (1985) 2 SCC 24, 29: 1985 SCC (Cri) 149: AIR
1985SC697:1985 Cri LJ 533.
407. K. Aruna Kumari v. Govt ofA.R, (1988) 1 SCC 296, 304: 1988 SCC (Cri) 116: AIR 1988
SC 227:1988 Cri LJ 411.
 269

detention order to the detaining authority, which has to be referred by the

appropriate Government to the Advisory Board constituted under S. 8(a).
The power of revocation of detention order under S. ll(l)(b) may
either be exercised on information received by the Central goverriment from
its own sources including that supplied by the State Government under
S. 3(2), or, from the detenu in the form of a petition or representation. It is for
the Central Government to decide whether or not, it should revoke the order
of detention in a particular case. The use of the words "at any time" in S. 11,
gives the power of revocation an overriding effect on the power of detention
under S. 3. Ordinarily, the Central Government would in such a case like to
await the Report of the Advisory Board under S. 8(c), before taking any action
under S. ll(l)(b) but the circumstances may differ, and there may be a case
where the Central Government finds that the order of detention passed under
S. 3 is mala fide or constitutes an abuse of power on the part of the State
Government or an officer of the State Government specially empowered in
that behalf, it may "at any time", revoke the order of detention, ^os
Revocation of detention order must be made by the Govt, concerned specified
in S. 11(1) of COFEPOSA Act - Quashing of order of detention by High
Court under Art. 226 does not amount to revocation — COFEPOSA Act, 1974,
S. 11(1).
The words without prejudice to the provisions of S. 21 of the General
Clauses Act, 1897, used in S. 11(1) of the Act give expression to the legislative
intention that without affecting that right which the authority making the
order enjoys under S. 21 of the General Clauses Act, an order of detention is
also available to be revoked or modified by authorities named in clauses (a)
and (b) of S. 11(1) of the Act.
The power conferred under clauses (a) and (b) of S. 11(1) is an
extension of the power recognised under S. 21 of the General Clauses Act and
while under the General Clauses Act the power is exercisable by the authority
making the order, the named authorities under clauses (a) and (b) of S. 11(1)
are also entitled to exercise the power of revocation. When the High Court
exercises jurisdiction under Art. 226 it does not make an order of revocation.
'Revocation' is a process of recall of what had been done. By issuing a high
prerogative writ like habeas corpus or certiorari it quashes the order
impugned before it and by declaring the order to be void and striking down
the same it nullifies the order. The ultimate effect of cancellation of an order
by revocation and quashing of the same in exercise of the high prerogative
jurisdiction vested in the High Court may be the same but the maimer in
which the situation is obtained is patently different and while one process is
covered by S. 11(1) the other is not known to the statute and is exercised by an
authority beyond the purview of S, 11(1). In a situation where the order of
detention has been quashed by the High Court, S. 11(2) is not applicable and
the detaining authority is not entitled to make another order under S. 3 on the
same grounds.

408. Sat Pal v. State of Punjab, (1982) 1 SCC12:1982 SCC (Cri) 46: AIR 198 ISC 2230.
 270

Once the orders of detention are held to be invalid, the declarations

made subsequently under S. 9 could not be made and would have no
consequence. ^09
Government counsel stating that Central Government had in fact considered
the report sent by the State Government and saw no reason to revoke the
order in exercise of its powers under S, 14, N.S. Act — There is no reason to
doubt the correctness of this statement - Hence challenge on ground of
non-application of mind not sustainable - National Security Act, 1980, Ss,
3(2) and 4. 410

Scope of power of revocation under S. 11 of COFEPOSA Act, 1974 — General

Clauses Act, 1897, S. 21.
Section 11 does not confer any power of revocation on an officer of the
Central or State Government nor does it empower the Central or State
Government to delegate the power of revocation to any of its officers. Even
though S. 11 specifies that the powers of revocation conferred on the Central
Government/State Government are without prejudice to the provisions of
S. 21 of the General Clauses Act, this reservation will not entitle a specially
empowered officer to revoke an order of detention passed by him because the
order of the specially empowered officer acquires 'deemed approval' of the
State or Central Government, as the may be, automatically and by reason of
deemed approval the powers of revocation, even in terms of S. 21 of the
General Clauses Act, will fall only within the domain of the State Government
and/or Central Government. ^^^
Decision on continuation of detention three months need not be made till
opinion of Advisory Board is received authorising it — Appropriate
Government is only bound to make the reference to the Advisory Board
within five weeks and not later — Hence making of reference within the
statutory period without first determining the period for which detenu was to
be detained not improper—Constitution of India, Art 22(4) and (7) —
COFEPOSA Act, 1974, S. 8(b) and (f)
Whenever any order of detention is made, whether the detention is to
continue for a period than three months or a period of three months or less or
the detaining authority has not yet applied its mind and determined how long
the detention shall be continued, the appropriate Government is bound
within five weeks from the of detention to make a reference to the Advisory
Board and if it fails to do so, the continuance of the detention after the
expiration of the period of five weeks would be rendered invalid. However, it
is not at all necessary for the detaining authority to apply its mind and
consider at the time of passing the order of detention or before making a
reference to the Advisory Board, as to what shall be the period of detention

409. Ibrahim Bachu Bafan v. State of Gujarat, (1985) 2 SCC 24: 1985 SCC (Cri) 149: AIR 1985
SC 697:1985 Cri LJ 533.
410. Sharad Kumar Tyagi v. State of U.P., (1989) 1 SCC 736, 747: 1989 SCC (Cri) 294: AIR
1989 SC 764: (1989)1 SCR 257.
411. State of Maharashtra v. Sushila Mafatlal Shah, 4 SCC 490, 501, 502: 1989 SCC (Cri) 1:
AIR 1988 SC 2090.
 271

and whether the detention is to be continued beyond a period of three months

or not. The only inhibition on the detaining authority is that it cannot lawfully
continue the detention for a period longer than three months unless the
Advisory Board has, before the expiration of the period of three months, that
is in its opinion sufficient cause for such detention. ^^^
Government not obliged to record reasons for confirming the maximum
period of detention - Act, 1974, Ss. 8(f), 10 and 11.
PerDuttJ.
Section 10 of the COFEPOSA Act does not provide that in imposing the
maximum period of detention, any reason has to be given. In confirming the
order of detention, it may be reasonably presumed that the government has
applied its mind to all the relevant facts and, thereafter, if it imposes the
maximum period of detention, it cannot be said that the government has not
applied its mind as to the period of detention. In any event, under S. 11 of the
Act, a detention order may, at any time, be revoked or modified by the
government. In the circumstances, it cannot be said that the detenu was in the
least prejudiced or that there has been non-application of mind by the
government to the question of period of detention of the detenu. Per Shetty, J.
(concurring).
If the Advisory Board reports that there is in its opinion sufficient
cause for the detention of the person, the concerned authority may confirm
and continue the detention of the person for such period as it thinks fit. The
expression "as it thinks fit" in S. 8(f) of the Act indicates that the concerned
authority after considering the report of the Advisory Board may fix any
period for detention. The authority is not required to give any special reason
either for fixing a shorter period or for fixing the maximum period prescribed
under S. 10. The opinion of the Advisory Board and the grounds of detention
are the only basis for confirming and continuing the detention, for any period,
even up to the maximum period prescribed. Section 11 provides for
revocation of detention order. The detention order may at any time be
revoked or modified. When the power to revoke the order of detention could
be exercised at any time, it is not necessary for the authority to articulate
special reasons for continuing the for any period much less for the period
prescribed under the Act. ^13
(b) Confirmation
Protection of Art. 22(4) by requiring confirmation of detention within three
months by an Advisory Board, held, cannot be evaded by making successive
detention orders before expiry of three months of the earlier order — S. 15 of
Gujarat Prevention of Anti-Social Activities Act, 1985 must therefore be read
down.

412. Masuma v. State of Maharashtra. (1981) 3 SCC 566, 571, 572: 1981 SCC (Cri) 750; AIR
1981 SC 1753:1981 Crip 1256.
413. Vijay Kumar v. Unior\ of India, (1988) 2 SCC 57,70,72:1988 SCC (Cri) 293: AIR 1988 SC
934: (1988) 17 ECC 82: (1988) 3 Crimes 50. Bharat v. DM, 1986 Cri LJ1976 (MP),
overruled
 272

Even though S. 15(2) permits issuance of a subsequent detention order

against the same person on the expiry or revocation of an earUer detention
and that such detention on the same facts cannot exceed 12 months of the
issuance of the first order, the same to be constitutionally valid in conformity
with Art. 22(4) must be read down. It, therefore, becomes imperative to read
down S. 15 of the Gujarat Prevention of Anti-Social Activities Act, 1985 which
provides for the making of successive orders of detention so as to bring it in
conformity with Art, 22(4) of the Constitution. If there is to be a collision
between Art. 22(4) of the Constitution and S. 15 of the Act, S. 15 has to yield.
But by reading down the provision, the collision may be avoided and S. 15
may be sustained. So read if the report of the Advisory Board is not made
within three months of the date of detention, the detention becomes illegal
notwithstanding that it is within three months from the date of the second
order of detention. '^^^
Confirmation of detention by Central Government — Non-application of
mind - Failure of Advisory Board, to forward to the Central Government
complete records of the proceedings) due to non-mention of the Board's
refusal to allow the detenu to examine defence witnesses who were present
and willing - Whether confirmation of detention by the Central Government
amounted to non-application of mind — Question not considered —
COFEPOSA Act, 1974, S. 8(f).
The complaint by the detenu's counsel that the Advisory Board failed
to send the entire records of proceedings before it to the Central Government
inasmuch as it did not contain all the necessary information regarding the
availability of the witnesses, the readiness of the detenu to examine them,
rejection of the request to examine them and directing instead filing of the
affidavits, cannot be said to be wholly unjustified. However, it is not
necessary to go into the contention regarding non-application of mind of the
Central Government on the ground of absence of full information before if
due to failure of the Advisory Board to mention in the record forwarded by it
to the Government about presence of the defence witnesses and the Board's
refusal to record their evidence, ^is
Competent authority to pass — Detention order passed by Secretary but con-
firmation order passed by the Minister of State for Home Affairs - That
Minister being duly authorised by the Chief Minister to pass requisite
confirmation orders, held, order passed by him valid - COFEPOSA Act,
1974, S. 8(f). 416
Failure to mention period of detention in confirmation order passed by
Government, held, would not vitiate that order - Such failure implies that
the detention is for the maximum period specified in the Act - Detention

414. Abdul Latif Abdul Wahab Sheikh v. B.K. Jha, (1987) 2 SCC 11, 25: 1987 SCC (Cri) 244-
AIR 1987 SC 725:1987 Cri LJ 700.
415. Harbanslal v. ML. Wadhawan, (1987) 1 SCC 151,160: 1987 SCC (Cri) 47- AIR 1987 SC
217:1987 Cri LJ 324: (1987) 12 ECC128.
416. Suresh Bhojraj Chelani v. State of Maharashtra, (1983) 1 SCC 382- 1983 SCC (Cri) 202-
AIR 1983 SC 181:1983 Cri LJ 342. '
 273

beyond the maximum period will be illegal - COFEPOSA Act, 1974, Ss. 8(f),
9 and 10. «7
Application of mind by confirming authority - Whether deposition of
defence witness not considered by confirming authority — Advisory Board in
its report referring to evidence of the defence witness — Confirming
authority, having considered the report of Advisory Committee, held, cannot
be said to have not applied his mind to the evidence of the defence witness -
Advisory Board not obliged to refer in detail evidence of the defence witness
in its report and hence non-mention of relevant portion of evidence of such
witness in the report would not indicate confirming authority's failure to
consider the same. ^^^
Confirmation or revocation by Government - National Security Act, 1980, Se
12 - If Advisory Board's report is against the detention, State Government is
duty-bound to release the detenu - But if the Board reconmiends the
detention. Government has option either to confirm or to revoke the
detention. 4i9
Detention order passed on September 11 confirmed by State Government
on October 21 — Confirmation having been made beyond the period of 15
days prescribed by S. 3(4) of National Security Act, 1980, held, continued
detention of the petitioner illegal, ^^o
11. ORDER OF DETENTION
Order passed immediately after revocation of the earlier order on the basis
of report of Advisory Board — State Government failing to defend its
action despite two adjournments given by the Court — Held, further
detention of the petitioner would be unconstitutional in the circumstances —
Constitution of India, Arts. 21 and 22. ^21
Basic materials constituting subjective satisfaction in the earlier order of
detention, which was quashed by High Court, considered along with other
materials by detaining authority in drawing subjective satisfaction for
passing the fresh order of detention and not merely for showing the
antecedents of the detenu — Held, fresh order of detention liable to be
quashed - Gujarat Prevention of Anti-Social Activities Act, 1935, S, 3(2).422
Chhagan Bhagivan Kahar v. N.L Kalna, (1989) 2 SCC 318:1988 SCC (Cri) 367,
followed

417. Suresh Bhojraj Chelani v. State of Maharashtra, (1983) 1 SCC 382: 1983 SCC (Cri) 202:
AIR 1983 SC181:1983 Cri LJ 342.
418. Advisory Board. Madhu Khanna v. Administrator, Union Territory of Delhi, (1986) 4
SCC 240,245:1986 SCC (Cri) 426: AIR 1987 SC 48:1987 Cri LJ 318.
4! 9. State of Rajasthan v. Shamsher Singh, 1985 Supp SCC 416,429:1985 SCC (Cri) 421 • AIR
1985 SC 1082:1985 Cri LJ 1348.
420. Ranbir Singh v. T. George Joseph, D.M., Meerut, 1988 Supp SCC 425- 1988 SCC /Cri)
855. " ^ '
421. Mohd, Ibrahim Mohd. Sasin v. State of Maharashtra, 1987 Supp SCC 32:1987 SCC (Cri)

422. Ramesh v. State of Gujarat (1989) 4 SCC 124, 127, 128: 1989 SCC (Cri) 716" AIR 1989
SCISSl; 1989 Cri LJ 2094. '
 274

Consideration of grounds set out in previous orders of detention which had

been quashed by court - Held, fatal to the fresh order of detention - Gujarat
Prevention of Anti-Social Activities Act, 1985, S. 15.
Under S. 15 of the Gujarat PASAA the modification and revocation of
detention order by the State Government shall not bar making of another
detention order on fresh facts when the period of detention has come to an
end either by revocation or by expiry of the period of detention. However, an
order of detention cannot be made after considering the previous grounds of
detention when the same had been quashed by the court, and if such previous
grounds of detention are taken into consideration while forming the
subjective satisfaction by the detaining authority in making a detention order
the order of detention will be vitiated. It is of no consequence if the further
fresh facts disclosed in the grounds of the impugned detention order have
been considered.
In the present case in the grounds of detention specific reference had
been made to the earlier two orders of detention against the petitioner-detenu.
In the schedule of documents annexed to the grounds of detention not only
the copies of the order of detention but also of the grounds of detention in the
earlier detention cases had been given to the petitioner. Thus the detaining
authority while considering the fresh facts disclosed in the grounds had taken
into consideration the previous grounds of detention as well as the orders
made therein even though the same were nullified by the High Court as well
as by the Advisory Board, for the purpose of showing that the detenu in spite
of those earlier orders of detention was continuing in his bootlegging
activities. ^23
Abdul Latif Abdul Waheb Sheikh v. B.K. Jha, (1987) 2 SCC 22; Chhagan
Bhagwan Kahar v. N.L Kalna, (1989) 2 SCC 318, followed.
Fresh facts — Grounds taken in earlier detention, which was quashed by
High Court by issuing writ of habeas corpus, considered as one of the
material documents, along with other materials, in drawing subjective
satisfaction in the subsequent order — Held, fresh order of detention vitiated
thereby - Gujarat Prevention of Anti-Social Activities Act, 1985, Ss. 3(2) and
15 - Constitution of India, Art. 226.
Even if the order of detention comes to an end either by revocation or
by expiry of the period of detention there must be fresh facts for passing a
subsequent order. A fortiori when a detention order is quashed by the court
issuing a high prerogative writ like habeas corpus or certiorari the grounds of
the said order should not be taken into consideration either as a whole or in
part even along with the fresh grounds of detention for drawing the requisite
subjective satisfaction to pass a fresh order because once the court strikes
down an earlier order by issuing rule it nullifies the entire order. In the
present case the detaining authority took into consideration, along with the
other grounds of detention, also the grounds taken in the earlier detention

423. Jahanglrkhan Fazalkhan v. Police Commr., (1989) 3 SCC 590, 594 595- 1989 SCC (rri\
664: AIR 1989 SC1812: (1989) 3 Crimes 24. ' " ^'"-''^^"^
 275

which had been nullified by the High Court by issuing a prerogative writ of
habeas corpus. Hence the fresh order of detention is Uable to be set aside.424
Fresh order of detention on the same grounds cannot be made under S. 11(2)
read with S, 3 of COFEPOSA Act where previous order quashed by High
Court under Art. 226 - Such afresh order being invalid, subsequent
declaration under S. 9 inconsequential - COFEPOSA Act, 1974, Ss. 11(2), 9
and 3.425
Referring to incident which stituted subject-matter of an earlier order of
detention would vitiate the order. ^26
(a) Affidavit
Affidavit must be filed by the detaining authority who actually passed the
Girder - Mere holder of office of that authority cannot arrogate to substitute
subjective satisfaction of that authority and therefore not competent to file
affidavit justifying the detention - National Security Act, 1980 (65 of 1980),
S. 3. 427
Though normally detaining authority should personally affirm on oath the
stand by him, but this is not an inflexible rule and depends upon
circumstances of each - Where Home Minister who was detaining authority
was not available having ceased to be a minister before filing of affidavit, and
the then Deputy Secretary, Home who was fully conversant with the case had
filed his affidavit and original file was also produced before Court to dispel
any doubt as to subjective satisfaction of detaining authority, held, failure of
detaining authority to file affidavit personally not of much importance —
Detention order- Application of mind - COFEPOSA Act, 1974, S. 3.428
Counter-affidavit — Should disclose all such facts and documents as are
relevant for the purposes of the writ petition and necessary for its disposal —
Constitution of India, Art, 32.429
Counter-affidavit in response to writ petition filed by detenu — Should be
filed by detaining authority especially in sensitive cases of detention - But
failure to do so would not ordinarily vitiate the detention in absence of
allegations of mala fides - Constitution of India, Arts. 226 and 32 - Habeas
corpus, writ of.
In matters of a routine nature, if indeed are any matters of a routine
nature in the field of detention, a counter-affidavit may be sworn by a person

424. Chhagan Bhagwan Kahar v. N.L Kalna, (1989) 2 SCC 318? 324:1989 SCC (Cri) 367- AIR
1989 SC1234:1989 Cri LJ1145.
425. Ibrahim Bachu Bafan v. State of Gujarat, (1985) 2 SCC 24:1985 SCC (Cri) 149- AIR
1985 SC 697:1985 Cri LJ 533.
426. Ahmed-hussain Shaikhhussain v, Commr. of Police, Ahmedabad (1989) 4 SCC 751
757:1990 SCC (Cri) 86: AIR 1989 SC 2274:1989 Cri LJ 2312.
427. Biru Mahato v. DM, (1982) 3 SCC 322:1983 SCC (Cri) 31: AIR 1982 SC 1539:1982 Cri LJ
2354.
428. State of Gujarat v. Sunil Fulchand Shah, (1988) 1 SCC 6005 604:1988 SCC fCri^ 201 • AIR
1988 SC 723: (1988) 16 ECC16: (1988)1 Crimes 854. y ) • ^
429. Ram Jethmalani v. Union of India, (1984) 3 SCC 571:1984 SCC (Cri) 451. '
 276

who derives his knowledge from the record of the case. However, in. sensitive
matters of the present nature, the detaining authority ought to file his own
affidavit in answer to the writ petition and place the relevant facts before the
court which the court is legitimately entitled to know. However, failure to
furnish the counter-affidavit of the detaining authority may not be of much
consequence, especially if there was no allegation of mala fides against the
detaining authority. In the present case there were no allegations of mala fides
against the D.M., the detaining authority. There are degrees of impropriety
and the line which divides grave impropriety from illegality is too thin to
draw and even more so to judge. Conceivably, there can be cases in which
such impropriety arising out of the failure of the detaining authority,in filing
his own affidavit may vitiate the order of detention. 430
Counter-affidavit - Must be filed by detaining authority himself - Affidavit
of a clerk in the judicial section on behalf of the defaming authority not
acceptable -Detaining authority failing to file the counter-affidavit despite
Supreme Court's specific direction in that regard - In absence of any
explanation or return before the Court to rebut the allegations made by the
detenu in the writ petition, detention order must be set aside.^s^
Counter-affidavit- Should be of the detaining authority - Counter-affidavit
filed by Police S.O. indicates that subjective satisfaction of the detaining
authority was influenced by police personnel.
The detaining authority had not forward to file an affidavit stating
whether he had taken into consideration the fact that the appellant was
already in judicial custody and on considering his past activities he was
subjectively satisfied that if set free or released from jail custody on bail, there
was likelihood of the appellant indulging in criminal activities endangering
public order. On the other hand, the Station Officer of the Police Station, filed
a counter stating that the District Magistrate passed the impugned detention
order when the appellant was already in jail on the apprehension that the
appellant was likely to be on bail in .the near future and if the appellant is
bailed out, the public order problem will become worse.
Held:
This clearly goes to show that the Sub-Inspector had arrogated to
himself the knowledge about the subjective satisfaction of the District
Magistrate on whom the -power is conferred by the Act. The District
Magistrate, the detaining authority in this case, had not to file his affidavit.
The affidavit-in-opposition filed by the Station Officer of Police implies that
he had access to the file of the District Magistrate or he influenced the
decision of the District Magistrate for making the detention order. 432

430. state of v. Jagdev Taiwandi, (1984) 1 SCC 596, 609, 610:1984 SCC (Cri) 135- AIR 1984 SC
4441984 Cri LI 177. ' V ; • mivo^^^
431. Murnia Tuin v. Distt, Magistrate, (1982) 3 SCC 320; 1983 SCC (Cri) 29- AIR 1982 SC 878-
1982 Cri LJ 630(1). ' ^"^=>^°^o.
432. Gukb Mehra v. State of U.P., (1987) 4 SCC 302, 316,317:1987 SCC (Cri) 721: AIR 1987 SC
 277

Counter-affidavit - Not detaining authority himself - That will not in all

circumstances be fatal to the sustenance of the order of detention - Though
could not state whether the documents were relied upon by detaining
authority or not but in the facts stated in the counter-affidavit, held, this part
of the statement of the deponent should be taken to be his submission - A
deponent who has no personal knowledge about any fact may, on the basis of
some other facts make his submissions to the court.^^^
Detention order passed by Joint Secretary - But counter-affidavit filed by
Under Secretary who was dealing with the papers relating to the particular
order of detention and had placed those papers before the Minister concerned
- In the circumstances, held, the counter-affidavit can be considered in
absence of any allegation of mala fide or malice or extraneous consideration
personally against the detaining authority in making the impugned
order of detention.^s^
Filing of counter-affidavit by detaining authority himself essential where
personal allegations of mala fide or bias made by detenu against the
detaining authority^^^
Filing of counter-affidavit by detaining authority himself essential where
personal allegations of mala fide or bias made by the detaining authority,
Madan Lai Anand v. Union of India, (1990) 1 SQC 81, 92:1990 SCC (Cri) 51:
AIR 1990 SC176: (1990) 25 ECC 277:1990 Cri LJ 659: (1990) 45 ELT 204.
Rule Nisi - Counter-affidavit - Who should file - Detention order
passed by Administrative Secretary and Commissioner, Home Department
'while counter filed by a Dy. Superintendent of Police claiming himself to be
person appointed as officer-in-charge of the case but who was not
connected with the of the detention order and subsequent processing of the
case — In the circumstances, explanation given in the counter for delay in
disposal of detenu's representation not acceptable.
In response to the rule nisi a counter-affidavit should normally be filed
by the detaining authority himself though it cannot be suggested as a rigid or
inflexible rule applicable in all cases of detention under all circumstances.
However, when allegation of mala fide or abuse of powers or personal bias is
attributed to the detaining authority, the said authority should himself swear
to the counter-affidavit. In the absence of any such allegation in the petition a
counter-affidavit may be sworn by a responsible officer who personally dealt
with or processed the case or by an officer duly authorised under the Rules of
Business of the government concerned.
In the present case the reply affidavit and the additional affidavit
before the High Court as well as the Supreme Court were filed by the Deputy

AK l^x\ZAmcTml^"'°'' " '"'"• <"^* ' ^ = '''' '^•- '*» ^^ ( « , 500:

f™5'"'°" '•'" * " " ' ' "• '^"'™ °""''«' ("*) 1 see 81:1990 SCC (Cril 51' AIR 1<m ^ MI.
(1990) 25 ECC 277:1990 Cri LJ 659: (1990) 45 ELT 204. '
 278

Superintendent of Police stating that he was 'appointed as officer in charge in

this case'. It was shocking and surprising that a poHce officer who had no
connection whatsoever with the detention order and who had not at any
relevant time personally dealt with the case has come forward to swear about
the entire proceedings from the beginning right up to the rejection of the
representation including the holding of the meeting of the Advisory Board on
behalf of the appropriate authority, This practice of allowing a police officer
who has not dealt with the case at any point of time at any level and who in
the very nature of the case could not have any personal knowledge of the
proceedings, to swear the counter and reply affidavits on behalf of the
appropriate authorities should be highly deprecated and condemned and the
counter and reply affidavits sworn by such officer merit nothing but
rejection.436
Counter-affidavit - Pleas not taken up in counter-affidavit cannot be raised
for the first time before court in writ petition - Constitution of India, Arts. 32
and 226.437
Counter-affidavit - When detention order challenged on ground of non-
application of mind, return to the rule of the court should be filed either by
the detaining authority or a person directly connected with the making of the
order — Affidavit filed in a casual manner by some other official on the basis
of record of the case not acceptable — Detention Order.^^s
Detaining authority not filing affidavit justifying detention order —
Affidavit in opposition filed by Sub-Inspector of Police on behalf of District
Magistrate, the detaining authority, indicating his knowledge about sub-
jective satisfaction of the detaining authority — Held, amounts to abdication
of power and hence such affidavit not acceptable — National Security Act,
1980 (65 of 1980), S. 3.
A Sub-Inspector of Police cannot arrogate to himself the knowledge
about the subjective satisfaction of the District Magistrate on whom the power
is conferred by the Act. In absence of any averment of the Sub-Inspector
clarifying as to how he came to know about the subjective satisfaction of the
District Magistrate, whether he had access to the file or he was making the
affidavit on the basis of the record maintained by the District Magistrate, the
inference is irresistible that at the behest of Sub-Inspector of Police who was
the investigating officer in some criminal case in which each of the detenu
was implicated, the District Magistrate completely abdicating his
responsibilities, made the detention order. In the circumstances it is not
possible to take notice of the affidavit in opposition. Merugu Satyanarayana v
State of A.P., (1982) 3 SCC 301:1983 SCC (Cri) 18: AIR 1982 SC1543-1982 Cri
LJ 2357.

436. Gazi Khan v. State of Rajasthan, (1990) 3 SCC 459,462,463- AIR 1990 SC 1361-1990 Cri T1
1420: (1990) 29 ECC 5. ^
437. Piara Singh v. State of Punjab, (1987) 4 SCC 550, 556: 1987 SCC (Cri) 783: AIR 1987 SC

438. Tsering Dolkar v. Administa-ator, Union Territory of Delhi, (1987) 2 SCC 69- 1987 ^C
(Cri) 275: AIR 1987 SC 1192:1987 Cri LJ 988. ; ^ ^ ^ ^ oy. i w bCC
 279

Persons competent to file counter-affidavit on behalf of the State

In return to a rule nisi issued by Supreme Court or the High Court in a
habeas corpus petition, the proper person to file the same is the District
Magistrate who had passed the impugned order of detention and he must
explain his subjective satisfaction and the grounds therefor ; and if for some
good reason the District Magistrate is not available, the affidavit must be
sworn by some responsible officer like the Secretary or the Deputy Secretary
to the government In the Home Department who personally dealt with or
processed the case in the Secretariat or submitted it to the Minister or other
officer duly authorised under the Rules of Business framed by the
Government under Art. 166 of the Constitution to pass orders on behalf of the
government in such matters.^39
Counter-affidavit made in writ petition under Art. 32 before Supreme
Court by Desk Clerk of Home Department - Defect fatal - But affidavits of
the concerned Police Commissioners filed in detenu's identical writ petition
under Art. 226 upholding issuance of the detention order and explaining
grounds and reasons for the same must be considered — So considered,
held, Government's view expressed in the counter-affidavits could be
taken into account — Constitution of India, Arts. 32 and 226.^°
(b) Pleadings
Impugning High Court's decision before Supreme Court on the ground of
being based on a wrong statement of facts —In absence of affidavit of the
counsel who appeared before the High Court, held, such a plea not
maintainable— Constitution of India, Art 136.441
Plea — Detenu claiming to have been rendered unable to give proper
instructions to counsel before Advisory Board - No grievance made by detenu
in that regard before the Board — Advocate representing the detenu before
the Board, arguing the detenu's case along with the cases of other detenus —
Held, the detenu cannot challenge his detention before the Court on ground
of his advocate's failure to effectively represent his case in absence of proper
instructions from him - Advisory Board.442
Plea for release - Whether detenu should be released since other like detenus
and the detenus had already undergone a substantial period (more than two-
third) of the detention, to be decided by the detaining authority and Court
cannot give any direction in that regard .443

439. Mohinuddin v. D.M, (1987) 4 SCC 58, 63,64:1987 SCC (Cri) 674; AIR 1987 SC1977.
440. Suraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC 378:1986 SCC (Cri) 452- AIR 1986 SC^
2177:1986 Cri LJ 2047. ^ ^ •
441. State of Maharashtra v. Ramesh Kumar Shobhraj Jain, (1988) 1 SCC 597-1988 SCC (Cri)
199: AIR 1988 SC 2138. ' ^ '
442. State of Punjab v. Jagdev Talwandi, (1984) 1 SCC 596, 610:1984 SCC (Cri) 135- AIR 1984
SC 444:1984 Cri LJ 177. '

19851?lOslS C r i W m r ^ ' " ^ ' ' ' ' ' ' '"PP ^ ^ ^ ' ' ' ' '^'•' '^^^ ^ ^ ^ ^^"^ 421: AIR
 280

Even though the High Court was In error in quashing the order of
detention made against the detenu, he will not be re-arrested and placed in
custody for the rest of the period of detention having regard to the facts that
the detenu was a young boy of 19/20 years and that he had already been in
custody for 5 months and 3 weeks and that no adverse information against
the detenu had come to the notice of the authorities after he was set at liberty
by the High Court.444
State of Bombay v. Purushottam Jog Naik, 1952 SCR 674: AIR 1952 SC 317: 1952
Cri L] 1269 and Emperor v. Vimalbhai Deshpande, ILR 1946 Nag 651: AIR 1946 PC
123: (1946) 2 MLJIO, relied on
Filing of return by State — State counsel requesting adjournment even though
service effected in New Delhi eight days before— Held, such
for filing a return and where the detenu's petition shows a prima facie good
case, detenu entitled to be released provisionally on filing bail bonds —
Constitution of India, Arts. 32 and 72{5).^^
Order wrongly quashed by High Court about 16 months back — While dis-
approving the view taken by the High Court, its judgment and order not
interfered with by Supreme Court because of long lapse of time — Practice
and Procedure.^^
Statement-of detenu recorded under S. 161 CrPC accepting allegations
against himself — Can be relied upon for the purposes of preventive
detention — Criminal Procedure Code, 1973, S. 161.
The detenu's statement recorded under S. 161 CrPC accepting
allegations against himself may noH>e a legally recorded corifession which
can be used as substantive evidence against the accused in the criminal case,
but it cannot be completely brushed aside on that ground for the of his
preventive detention.'^''
13. FACILITIES AND AMENITIES TO
Detenu to be afforded all reasonable facilities and amenities including
meetings with family members.
It must be impressed on the Government that the detenus must be
afforded all reasonable facilities for an existence consistent with human
dignity. There is no reason why they should not be permitted to wear their
own clothes, eat their own food, have interviews with the members of their
families at least once a week and, last but not the least, have reading and
writing material according to their reasonable requirements.

444. state of Maharashtra v. Sushila Mafatlal Shah, (1988) 4 SCC 490- 1989 SCC iCrW l- ATR
1988 SC 2090:18 EEC 322. ' \^n) i. ^n^
445. Tahira Begum v. B.B. Gujral, (1982) SCC 374:1983 SCC (Cri) 57(1).
446. State of U.P. v. Ekhlaq Ahmad, 1987 Supp SCC 68:1987 SCC (Cri) 622

227:' fmlrtlHT ' ' " " " ' '^ ^'^" ^^^^^^' ^^^ ^^^' ^^^'^ ^^^^ ^^^ ^^"^ "^^ ^^^ ^988 SC
 281

The courts are open to the detenu to determine whether the restraints
imposed upon the detenu in any particular case are excessive and unrelated
to the object of detention. If so, they shall have to be struck down.448
Failure to inform .detenu's members about passing of the order and place of
detention - Held, not fatal to the detention where detenu was already
an undertrial prisoner and his relatives knew the fact as one of them had
visited him in jail within two days of passing the order of detention -
Constitution of India, Art. 21 - COFEPOSA Act, 1974, S. 3(1).
The object and purpose of the imperative requirement (as enjoined by
the Supreme Court in A.K. Roy case) of informing the members of the
detenu's household in writing of the passing of the order of detention and
taking in custody of the detenu as also the place of detention immediately
after the detenu is taken in custody pursuant to the order, is that the family
members of the detenu should not be kept in darkness by withholding the
information about the passing of the order of detention and the place of
detention thereby preventing them from having any access and from
rendering any help or assistance to the detenu and similarly the detenu
should not be deprived of the privilege of meeting his relations and getting
any help or assistance. In the present case the family members had sufficient
knowledge about the detention of the detenu by virtue of the mittimus issued
as well as about the place of detention.*^?
Facilities to detenu in jail — Government having no objection to grant the
desired facilities to the detenu - Matter disposed of.^so
DETENTION OF FOREIGNER
Detention of a foreign national — Not justified having regard to the object of
preventive detention as also international law and human rights concept —
International Law - COFEPOSA Act, 1974, S. 3.
Preventive detention of a foreign national who is not resident of the
country involves an element of international law and human rights and the
appropriate authorities ought not to be seen to have been oblivious of its
international obligations in this regard. The Universal Declaration of Human
Rights include the right to life, liberty and security of a person, freedom from
arbitrary arrest and detention; the right to fair trial by an independent and
impartial tribunal; and the right to presume to be an innocent man until
proved guilty. When an act of preventive detention involves a foreign
national, though from the national point of view the municipal law alone
counts in its application and interpretation, it is generally a recognised
principle in national legal system that in the event of doubt the national rule is
to be interpreted in accordance with the State's international obligations.

448. A.K. Roy v. Union of India, (1982) 1 SCC 271; 1982 SCC (Cri) 152: AIR 1982 SC 710-1982
CriLJ 340:1982 MLJ(Cri) 524.
449. Union of India v. Vasanbharthi, (1990) 2 SCC 275, 277:1990 SCC (Cri) 317- AIR 1990 ST
1216:1990 Cri LJ1244: (1990)48ELT 169.

m " W^"CH L m ^ o ' ' " " ' * • " ' ' ' " " " ' " ' ''''''"' '''•• "«= = = ^ ' « ) '»•• ^ K
 282

There is need for harmonisatior\ whenever possible bearing in mind the spirit
of the Covenants. Crimen trahit personam. The crime carries the person. The
commission of a crime gives the court of the place where it is committed
jurisdiction over the person of the offender. Legal relations associated with
the effecting of legal aid on criminal matters is governed in the international
field either by the norms of multilateral international conventions relating to
control of crime of an international character or by special treaties concerning
legal cooperation. Smuggling may not be regarded as such a crime. The
system of extradition of criminals represents an act of legal assistance by one
State (the requestee) to another State (the requestor) with the aim of carrying
out a criminal prosecution, finding and arresting a suspected criminal in
order to bring him to court or'for executing the sentence. In concluding such
the States themselves on principles of humanitarianism in their, efforts to
contribute to the more effective achievement of the objectives of the correction
and re-education of violators of the law. Where such conventions exist, the
citizens of a State who were convicted to deprivation of freedom in another
signatory State are in accordance with mutual agreement of the States,
transferred to the country of which they are citizens to serve their sentences.
The transfer of the convicted person may take place only after the verdict has
entered into legal force and may be carried out on the initiative of either of the
interested States. The punishment decided upon with regard to a convicted
person is served on the basis of the verdict of the State in which he was
convicted. On the strength of that verdict the competent court of the State of
which the person is a citizen adopts a decision concerning its implementation
and determines. In accordance with the law of Its own State, the same period
of deprivation of freedom as was assigned under the verdict. While
ameliorative practices may be available in case of the foreign national being
criminally prosecuted, tried and punished, no such proceedings are perhaps
possible when he is preventively detained. There May be where while a
citizen and resident of the country deserves preventive detention apart from
criminal prosecution, in case of a foreign national not resident of the country
he may not be justifiably subjected to preventive detention In the event of
which no international legal assistance is possible unlike in case of criminal
prosecution and punishment.^s^

Foreign nationals directly involved in smuggling not entitled to be differently

treated and cannot seek deportation.'*52
CHALLENGE TO DETENTION AFTER RELEASE
Detention challenged after release - Action taken under Ss. 6 and 7 of
SAFEMA on the basis of order of detention under COFEPOSA - Failure of
detenu to challenge.

SC 6^5''^'' ^''"'^ ^' ""'''" °^ ^"'^''' ^'^^^^ ^ ^^^ ^^^' ^^^' ^^^- ^^^^ ^^^ (C") 227: AIR 1990
452. Plaridel-0-Daysor v. State of T.N., 1988 Supp SCC 535:1988 SCC (Cri) 883.
 283

Particular statutes
The detention order during his detention due to prevalence of
Emergency, held, would not operate as estoppel against his right to move the
court after his release for having his detention order quashed in order to
challenge the action taken under Ss. 6 and 7 of the SAFEMA - Smugglers
and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. Ss, 6
and 7 - Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974, Ss. 3(1) and 5.453
PARTICULAR STATUTES
[Note: The cross-references below are not exhaustive and the reader is
advised to study the synopsis at pages 2654-55 and follow the approach for
full advantage,]
(a) A. P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land
Grabbers Act, 1986
S. 2(3) - Afprwal of State gov-eminent - Failure to obtain State Gov-
ernment's approval within statutory period - Held, detention order would
cease to be in force after that period - A. P. Prevention of Dangerous
Activities of Bootleggers, Dacoits, Offenders, Goondas, Immoral Traffic
Offenders, and Land Grabbers Act, 1986, S. 2(3).
The detention order had not been approved by the State Government
within 12 days of its being made as required by S. 3(3) of the AJP, Prevention
of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas,
Immoral Traffic Offenders and Land Grabbers Act. The result is that the order
could not remain in force more than 12 days after making thereof and as such
must be treated as to have ceased to be in force and non-existent thereafter.^54
Legal relations associated with the effecting of legal aid on criminal
matters is governed in the international field either by the norms of
multilateral international conventions relating to control of crime of an
international character or by special treaties concerning legal cooperation.
Smuggling may not be regarded as such a crime.455
Ss. 2(e) and 3(1) - Smuggling - Raw material imported under Duty Exemption
Entitlement Scheme by detenu in the name of two fictitious benami firms
created for that purpose and instead of complying with the condition to
manufacture its product with the raw material and export the product
abroad within six months, the goods disposed of in local market - Held,
activity amounted to smuggling or abetment of smuggling within the
meaning of Ss. 2(e) and 3(1) of COFEPOSA Act read with Ss. 2(39) and ll(o)
of Customs Act - Abeyance order passed against the firm before expiry of the
six-month period cannot be said to be the reason for failure to manufacture

453. Union of India v. Haji Mastan Mirza. (1984) 2 SCC 427,430:1984 SCC (Cri) 271' AIR 1984
SC 681:1984 Cri L] 610: (1984) 2 ECC137. ^ '
454. S.M.D. Kiran Pasha v. Govt, of A.P., 1 SCC 328,343:1990 SCC (Cri) 110
Bihar Control of Crime Act, 1981
455. Kubic Damsz v. Union of India, (1990) 1 SCC 568,581:1990 SCC (Cri) 227: AIR 1990
 284

the product when the firms were actually nonexistent and there was neither
any factory nor any manufacturing device - Customs Act, 1962, Ss. 2(39) and
11(0).456

Per Shetty, ].
The order made under S. 3(1) is in the nature of an interim order. It is
subject to the opinion of the Advisory Board under S. 80 of the COFEPOSA
Act.457
In the enforcement of a law relating to preventive detention like the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 there is apt to be some delay, between the prejudicial activities com-
plained of under S. 3(1) of the Act and the making of an order of detention.
When a person is detected in- the act of smuggling or foreign exchange
racketeering, the Directorate of Enforcement has to make a thorough
investigation into all the facts with a view to determine the identity of the
persons engaged in these operations which have a deleterious effect on the
national economy. Quite often these activities are carried on by persons
forming a syndicate or having a wide network and therefore this includes
recording of statements of persons involved, examination of their books of
accounts and other related documents. Effective administration and
realisation of the purposes of the Act is often rendered difficult by reason of
the clandestine manner in which the persons engaged in such operations
carry on activities and the consequent difficulties in securing sufficient
evidence to comply with the rigid standards, insisted upon by the courts.
Sometimes such investigation has to be carried on for months together due to
the magnitude of the operations. Apart from taking various other measures
i.e. launching of prosecution of the persons involved for contravention of the
various provisions of the Acts in question and initiation of the adjudication
proceedings, the Directorate has also to consider whether there was necessity
in the public interest to direct the detention of such person or persons under
S. 3(1) of the Act with a view to preventing them from acting in any manner
prejudicial to the conservation and augmentation of foreign or with a view to
preventing them from engaging in smuggling of goods etc. The proposal has
to be cleared at the highest quarter and is then placed before a Screening
Committee. The Screening Committee may meet once or twice a month. If the
Screening Committee approves of the proposal, it would place the same
before the detaining authority. Being conscious that the requirements of Art.
22(5) would not be satisfied unless the 'basic facts and materials' which
weighed with him in reaching his subjective satisfaction, are communicated to
the detenu and the likelihood that the court would examine the grounds
specified in the order of detention to see whether they were relevant to the
circumstances under which the impugned order was passed, the detaining
authority would necessarily insist upon sufficiency of the grounds which

z. S ' Z E S "™s:«t' "*'*'''' ''•'"' ''• "^""''«' '^•- ^'«"««^

 285

would justify the taking of the drastic measure of preventively detaining the
person.
Hence, a distinction must be drav/n between the delay in making of an
order of detention under a law relating to preventive detention like the
Conservation of Foreign Exchange and Prevention of .Smuggling Activities
Act, 1974 and the delay in complying with the procedural safeguards of Art
22(5) of the Constitution. It has been laid down-by this Court in a series of
decisions that the rule as to unexplained delay in taking action is not
inflexible. Quite obviously, in cases of mere delay in making of an order of
detention under a law like the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 enacted for the purpose of
dealing effectively with persons engaged in smuggling and foreign exchange
racketeering who, owing to their large resources and influence have been
posing a serious threat to the economy and thereby to the security of the
nation, the courts should not merely on account of delay in making of an
order of detention assume that such delay, if not satisfactorily explained,
must necessarily give rise to an inference that there was no sufficient material
for the subjective satisfaction of the detaining authority that such subjective
satisfaction was not genuinely reached. Taking of such a view would not be
warranted unless the court finds that the grounds are 'state' or illusory or that
there is no real nexus between the grounds and the impugned order of
detention.458
Anil Kumar Bhasin v. Union of India, 1987 Cri L] 1632; Bhupinder Singh v. Union
of India, 1985 DLT493; Anwar Esmail Aibani v. Union of India, Crl Writ No. 375 of
1986, decided on December 11, 1986 (Del); Surinder Pal Singh v. M. L Wadhazuan,
(1987) 2 Crimes 449 (Del) and Ramesh Lai v, Delhi Administration, Cri. Writ No, 43
of 1984, decided on April 16,1984 (Del), overruled
S. 9(1) — Declaration under - Satisfaction of declaring authority — Whether
based on materials or vitiated by non-application of mind
Nothing contained in S. 9 shall affect the power of the appropriate
government in either case to revoke or modify the detention order at any
earlier time. This may imply an obligation on the part of the detaining
authority to place the facts and materials that occurred between the date of
detention and the date of declaration, so as to justify prolongation of the
period of detention. However, since non-furnishing of the copies of the bail
application and the bail order has resulted in violation of Art. 22(5), no
opinion need be expressed on this submission.^ss
The purpose and object of S. 10 is to prescribe not only for the
maximum period but also the method by which the period is to be com-
puted.460

458. Rajendrakumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC 153 162-1988 SCC ICri)
575: AIR 1988 SC1255. ^ iJo. lo^. iyoB bLL (Lri)
459. M Ahamedkutty v. Union of India, (1990) 2 SCC 1,18-1990 SCC (Cri) 258

ZT^cX^li,7;1'^^^,^::'^ ' ""^ '*'- '''•• « « ' s e e (C„, 506: A « »87 SC

 286

The key to the interpretation of S. 10 of the Act is in the words 'may be

detained'. The subsequent words 'from the date of detention' which follow the
words 'maximum period of one year' merely define the starting point from
which the maximum period of detention of one year is to be reckoned in a
case not falling under S. 9. There is no justifiable reason why the word 'detain'
should not receive its plain and natural meaning. According to the Shorter
Oxford English Dictionary, Vol. 1, p. 531, the word 'detain' means "to keep in
confinement or custody". Webster's Comprehensive Dictionary, International
Edition at p, 349 gives the meaning as "to hold in custody".46i
The scheme of S. 12, unless release by the appropriate government is
taken to be one of parole, keeps away parole from the subject of preventive
detention. At any rate, it is the appropriate government and not the court
which deals with a case of temporary release of the detenu. Since the Act
authorises the appropriate government to make an order of temporary
release, invariably the detenu seeking to have _ the benefit of temporary relief
must go to the appropriate government first. It may be that in a given case the
court may be required to consider the propriety of an adverse order by the
government in exercise of the jurisdiction under S. 12 of the Act. On the
principle that exercise of administrative jurisdiction is open to judicial review
by the superior court, the High Court under Art. 226 or this Court under Art.
32 may be called upon in a suitable case to examine the legality and property
of the governmental action. There is no scope for entertaining an application
for parole by the court straightway.^^2

Gujarat Prevention of Anti-Social Activities Act

S. 2(b) — Prejudicial activities — 'Bootlegger' — Person involved in illicit
liquor traffic business of importing Indian-made foreign liquor into a
prohibited area, held, falls within S. 2(b) read with S. 3(1). 463
S. 2(b) — 'Bootlegger' under —
Reference to crimes under Bombay Prohibition Act, 1949 made in the grounds
but detenu not figured in any one of them and no material of his involvement
in those cases produced — Held, detenu cannot be said to be a bootlegger —.
Gujarat Prevention of Anti-Social Activities Act, 1985, S. 2(b).464
Ss. 2(b) and 3(4) - 'Bootlegger' -
Activities of bootlegger must be shown to adversely affect maintenance of
public order under S. 3(4) - Held on facts, disturbance of public order not
proved — Hence detention on ground of the detenu being a bootlegger not
sustainable — Basis of detention — Public order

461. Poonam Lata v, ML. Wadhawan, (1987) 3 SCC 347, 357: 1987 SCC (Cri) 506: AIR 1987 SC
1987, Cri LJ 1130: (1987) 12 ECC 346.
462. Poonamlata v. ML. Wadhawan, (1987) 3 SCC 347, 359:1987 SCC (Cri) 506: AIR 1987 SC
1383:1987 Cri LJ 1130: (1987) 12 ECC 346.
463. Rajendrakumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC 153:1988 SCC (Cri) 575:
AIR 1988 SC 1255.
464. Ayub v. S.N. Sinha, (1990) 4 SCC 552,554:1990 SCC (Cri) 664: AIR 1990 SC2069.
 287

A conjoint reading of S. 2(b) and S. 3(4) with the explanation annexed thereto
clearly spells out that in order to clamp an order of detention upon a
'bootlegger* under S, 3 of the Act, the detaining authority must not only be
satisfied that the person is a bootlegger within the meaning of S. 2(b) but also
that the activities of the said bootlegger affect adversely or are likely to affect
adversely the maintenance of public order. In the present case the vague
allegations in the grounds of detention that the detenu was the main member
of the gang indulging in bootlegging activities and that the detenu was taking
active part in such dangerous activities, are not sufficient for holding that the
activities affected adversely or were likely to affect adversely the maintenance
of public order in compliance with S. 3(4) of the Act, that the activities of the
detenu had caused harm, danger or alarm or a feeling of insecurity among the
general public or any section thereof or a grave or widespread danger to life,
property or public health as per the explanation to S. 3(4). Therefore, the
impugned order of detention cannot be sustained on the ground that the
detenu was a 'bootlegger'. '^^
S. 2(c) — 'Dangerous person' under — Habitual offender — Who is — Three
crimes registered against the detenu out of which detenu acquitted in respect
of two and the only case pending against him lacking in supporting evidence
— Held, appellant not a habitual offender and hence not a dangerous person
— Gujarat Prevention of Anti-Social Activities Act, 1985, S. 2(c) — Words and
Phrases— 'Habitual'
The expression 'habitually' in S. 2(c) of the Gujarat PASA Act is very
significant. A person is said to be a habitual criminal who by force of habit or
inward disposition is accustomed to commit crimes. It implies commission of
such crimes repeatedly or persistently and prima facie there should be a
continuity in the commission of those offences.
Though three cases had been registered against the detenu-petitioner,
he had acquitted in respect of two. Though lengthy counter was filed averring
in general that the detenu was indulging in prejudicial activities but from the
solitary case pending investigation against him it cannot be inferred that the
petitioner was a 'dangerous person' within the meaning of S. 2(c). The
Sessions Judge in his order releasing the petitioner on bail in the pending case
has noted that there was no medical evidence to prove that anyone was
injured in the occurrence alleged in the FIR. If such is the only crime pending
in which the detenu is alleged to have participated, it cannot be said that he
comes within the meaning of 'dangerous person' and the conclusions drawn
by the detaining authority are bereft of sufficient material as required under S.
2(c) of the Act. This betrays non-application of mind by the detaining
authority. Consequently, the grounds on which the detention order is passed,
are irrelevant and non-existing. Therefore, the detention order cannot be
sustained. ^66

465. Rashidmiya v. Police Commr., (1989) 3 SCC 3215 327: 1989 SCC (Cri) 559: AIR 1989 SC
1703.
466. Ayub v. S.N. Sinha, (1990) 4 SCC 552,555,556:1990 SCC (Cri) 664: AIR 1990 SC 2069.
 288

S. 2(c) — Dangerous person — Detenu must be shown to be a habitual

offender under Chapter XVI or XVII or XXII of IPC or under Chapter V of
Arn\s Act — Registration of only one case under S. 307 IPC and S. 25 of Arms
Act against the detenu falling within the definition — General and vague
allegations of taking part in communal riots and conspiring to create terror
being member of a gang made against the detenu in the grounds — Held on
facts, ground of detenu being a dangerous person not made out
To bring a person within the definition of 'dangerous person' in S, 2(c)
of the Act, it be shown that he is habitually committing or to commit or
abetting the commission of offences punishable Under Ch. XVI or XVII or XXII
of IPC or under Ch. V of Arms Act. In the instant case, the registration of only
one case was mentioned under S. 307 of IPC and S, 25 of the Arms Act which
fell within the definition clause. This solitary incident would hardly be
to conclude that the detenu was habitually committing or attempting to
commit or abetting the commission of offences. The general and vague
made in the grounds of detention that the detenu was taking active part in
communal riots and entered into conspiracy to spread an atmosphere of
being a member of a gang, in the of any specific instance or registration of any
case thereof, cannot be construed as offences falling under any of the above
three chapters of the IPC or Chapter V of the Arms Act enumerated under S.
2(c) so as to charac-the detenu as a 'dangerous person'. Thus the conclusions
drawn by the detaining authority that the detenu is a dangerous person is
bereft of sufficient material as required under S. 2(c). Therefore, the detenu
cannot be termed as a 'dangerous person'.^67
S. 3(2). Expln. — Acts of removing permanent way material stocked along rail
lines for maintenance of rail tracks and removing parts of carriages wagons
and signal telecommunication materials utilised for repair of railway wagons
and maintenance of signals fall under.
For maintaining supplies throughout the country the railways is per se
essential, and, therefore, interference with railway lines would be
endangering the maintenance of supplies.'*^^
S. 3(2) Expln. — Acts prejudicial to the maintenance of supplies and services
to the community — S. 3(2) of National Security Act contemplates acts of
general nature whereas S, 3(1) read with Explanation of PBMSEC Act
contemplates acts of particular nature — Prevention of Black-marketing and
Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980).
S. 3(1) Expln.- The conduct of the detenu was prejudicial to the maintenance
of supplies and services essential to the community in general as con-
templated by S. 3(2) of the National Security Act and not in any particular

467. Rashidmiya v. Police Commr., (1989) 3 SCC 321, 326, 327: 1989 SCC (Cri) 559: AIR 1989
SC1703.
468. Suraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC 378; 1986 SCC (Cri) 452: AIR 1986 SC
2177:1986 Cri LJ 2047.
 289

mode contemplated by Expln. of S. 3(1) of Act 7 of 1980 and as such is not

excluded by the Expln. to S. 3(2) of the National Security Act.469
Ss. 3(3), 5, 8,13 and 16 - Constitutionality of - S. 3(3) upheld - S. 5 only in
exceptional circumstances can the detenu be put in a jail distant from his
home — Family must be informed of arrest and place of detention of detenu
and transfers if any — Ss. 8 13, read are constitutional — Protection to honest
acts of officers under S. 16 justified — General Clauses Act, 1897, S. 3(22) (1).
(1) Regarding the constitutionality of S. 3(3), in view of the in-built
safeguards, it cannot be said that excessive or unreasonable power is
conferred upon the District Magistrate or the Commissioner of Police to pass
orders under i sub-section (2).
(1) Regarding the power to regulate place and conditions of detention under
S. 5 it is neither fair nor just that a detenu should have to suffer detention in
'such place' as the Government may specify. The normal rale has to be that
the detenu will be kept in detention in a place which is near his or her
ordinary place of residence. To keep a person in a far off place is a punitive
measure. That makes it impossible for his friends and relatives to meet him
and for him to claim the advantage of facilities like having his own food etc.
The requirements of administrative convenience, safety and security may
justify in a given case the transfer of a to a place other than that where he
ordinarily resides, but that can only be by way of an exception and not as a
matter of general rule. Whatever smacks of punishment must be scrupulously
avoided in matters of preventive detention.
Moreover, in order that the procedure attendant upon detentions
should confirm to the mandate of Art, 21 in the matter of fairness, justness
and reasonableness, it is imperative that immediately after a a person is taken
in custody in pursuance of an order of detention, the members of his
household, preferably the parent, the child or the spouse, must be informed in
writing of the passing of the order of detention and of the fact that the detenu
has been taken in custody. Intimation must also be given as to the place of
detention, including the place where the detenu is transferred from time to
time. It is necessary to treat the detenu consistently with human dignity and
civilised norms of behaviour.
(3) No objection can be taken against the provisions of S. 8(1) since
furnishing of grounds of detention 'as soon as may be' is the normal rule.
Exceptional circumstances only permit delay within defined days.
(4) No objection can also be taken against S. 13 providing 12 months as the
maximum period of detention. There is no obligation to pass detention order
for 12 months and again, any order can be revoked or modified at an earlier
point of time.
(5) Under S. 16 a mala fide order cannot be protected. Only those passed in
good faith and in pursuance of the National Security Act are protected.

469. Suraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC 378:1986 SCC (Cri) 452: AIR 1986 SC
2177:1936 CriLJ 2047.
 290

Also the challenge to S. 1.6 as being unreasonable is without any force.

If the policy of a law is to protect honest acts, whether they are done with care
or not, it cannot be said that the law is unreasonable. In fact, honest acts
deserve the highest protection. Then again, the line which divides a dishonest
act from a negligent act is often thin and, speaking generally, it is not easy for
a defendant to justify his conduct as honest, if it is accompanied by a degree
of negligence. The fact, therefore, that the definition contained in S. 3(22) of
the General Clauses Act includes negligent acts in the category of acts done in
good faith will not always make material difference to the proof of matters
arising in proceedings under S. 16 of the Act.^^o
S. 3(4) — "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" — Computation of period of twelve days — Held, day on which
order made to be excluded, having regard to the significance of the "word
'after' — Confirmation of detention — Words and Phrases — 'After'
In computing the period of twelve days referred to in sub-section (4) of
S. 3 of the National Security Act, the day on which the cause of action arises
i.e. the order of detention was passed should be excluded. Though the officer
making the order of detention shall forthwith report the fact to the State
Government, but the word 'forthwith' will not be taken into consideration for
the purpose of computing the period of twelve days inasmuch as there is a
clear indication that the said period shall be computed 'after' the order is
made. The word 'after' in sub-section (4) is very significant and clearly
excludes any contention that in computing the period of twelve days the day
on which the ojder of detention is passed should be included. The expression
ssin the meantime" in sub-section (4) clearly indicates that the State
Government can approve of the order of detention even on the day it is
passed. The language of sub-section (4) is plain and simple and the question
whether the order of detention can be approved on the day it is passed or not
does not at all arise. In the present case the approvaL of the order of detention
was made within twelve days after the making of the order of detention.*^!
Prabhu Narain Singh v. Supdt, Central jail, Varanasi, ILR (1961) 1 All 427,
overruled
Manjuli v. Civil. Judge, AIR 1970 Bom I; 71 Bom LR 560: 1969 Mah L] 435; V.S.
Mehta, In re, AIR 1970 AP 234:1970 Cri LJ 797: (1970) 1 Andh LT 98, approved
A ground of detention which is invalid for any reason whatsoever,
shall be treated as non-existent and the surviving grounds which remain after
excluding the invalid grounds shall be deemed to be the foundation of the
detention order. However, in the present case, it is not necessary to express
any concluded opinion on this point. N. Meera Rani v. Govt, of T.N., (1989) 4
s e c 418: 1989 SCC (Cri) 732: AIR 1989 SC 2027: 1989 Crl LJ 2190: (19«9) 3
Crimes 173.

470. A.K. Royv. Union of India, (1982) 1 SCC 271:1982 SCC (Cri) 152: AIR 1982 SC 710:1982
Cri LJ 340:1982 MLJ (Cri) 524.
471. Jitender Tyagi v. Delhi Admn., (1989) 4 SCC 653:1989 SCC (Cri) 787; AIR 1990 SC487.
 291

S. 5-A — Invalidity of one or some of the grounds of detention would not

render the entire order of detention bad.
If more than one ground are stated In the grounds of detention then
the fact that one of the grounds is bad, would not alter order of detention after
the amendment of the National Security Act in 1984, provided the other
grounds were valid. But quite apart from the same, none of the grounds were
vague. The grounds must be understood in the light of the background and
the context of the facts.^^^
Prisoners Act, 1900
The 'places' envisaged for confinement of transportation prisoners
under S. 32 of the Prisoners Act, 1900 can be the places in the jails. Moreover,
as we shall point out later paragraph 719 of the Punjab Jail Manual clearly
shows that by several Notifications or orders issued by the Punjab
Government certain local jails within the Province have been constituted the
"places" under S. 32 of the Act for confinement of transportation prisoners. It
is thus clear that under S. 32 of Act 3 of 1900 a sentence of transportation
either for a term or for life could be and a sentence of life imprisonment can
be made executable in local jails by constituting such jails as the "places"
within the meaning of S. 32 under orders of the State Governments.*^^
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act,
1976
Ss. 2(2)(b), 6 and 7 — Condition precedent for taking action against any
person under Ss. 6 and 7 is existence of a valid order of detention under
COFEPOSA Act against him - Where detention order under COFEPOSA Act
found to be invalid and illegal due to any legal or constitutional infirmity,
such as non-supply of copies of documents and materials relied on in grounds
of detention to the detenu, held, action under Ss. 6 and 7 would be baseless
and unsustainable— Preventive Detention— Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, S. 3. ^74

472. Shafiq Ahmad v. D.M., (1989) 4 SCC 556,565:1989 SCC (Cri) 774: AIR 1990 SC 200.
473. Naib Singh v. State of Punjab, (1983) 2 SCC 454,463,464:1983 SCC (Cri) 536: AIR 1983 SC
855:1983 Cri LJ1345.
474. Union of India v. Haji Mastan Mirza, (1984) 2 SCC 427,423,433:1984 SCC (Cri) 271- AIR
1984 SC 681:1984 Cri LJ 610: (1984) 2 ECC137.