Skip to content


Lalit Rajkhowa Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantLalit Rajkhowa
RespondentState of Assam and ors.
Prior history
K. Lahiri, J.
1. The petitioner has been detained by the State Government under Section 3(2) of the National Security Act, 1980, for short 'the Act' for preventing him from acting in any manner prejudicial to (1) the maintenance of 'public order' and (2) the supplies and services essential to the community. The petitioner has questioned the validity of his detention in this Habeas Corpus application.
2. The competent authority may detain any person under the Act on the basis of 'subjective sat
Excerpt:
.....which has satisfied or contented occasioned by some facts, events or state of things. (i) when the detaining authority has failed to apply its mind to arrive at the subjective satisfaction (ii) if the satisfaction is not grounded on materials which are of rational probative value, (iii) if no rational being can consider any connection which the facts and the satisfaction reached, (iv) if the grounds are not relevant to the subject-matter of the enquiry or extraneous to the scope and purposes of the act. (v) if the authority has taken into account, as a relevant factor, something which it could not properly take into account in deciding whether or not to exercise the power or the manner or the extent to which it should be exercised or if the authority has failed to take into consideration..........is a preventive measure and detention is permissible even on the subjective satisfaction of the detaining authority.3. the petitioner has questioned the validity of the detention and complains, inter alia, that the grounds are nonexistent, there is total non-application of the mind of the detaining authority and it has acted in excess of power which the legislature confided in it.4. whenever and wherever human liberty is in peril and justice is threatened, the citizen must receive the fullest protection from the court, within the four corners of article 22 of the constitution benignly stretched. the safeguards provided under the constitution and 'the act' should be liberally interpreted, of course, within the legitimate limit the cherished personal liberty, worth of human dignity and.....
Judgment:

K. Lahiri, J.

1. The petitioner has been detained by the State Government under Section 3(2) of the National Security Act, 1980, for short 'the Act' for preventing him from acting in any manner prejudicial to (1) the maintenance of 'public order' and (2) the supplies and services essential to the community. The petitioner has questioned the validity of his detention in this Habeas Corpus application.

2. The competent authority may detain any person under the Act on the basis of 'subjective satisfaction' reached by it However, the power of detention is limited to certain activities only, namely, if the activities are prejudicial to the security of the State and/or prejudicial to public order and/or prejudicial to the maintenance of supplies and services essential to the community. This is a preventive measure and detention is permissible even on the subjective satisfaction of the detaining authority.

3. The petitioner has questioned the validity of the detention and complains, inter alia, that the grounds are nonexistent, there is total non-application of the mind of the detaining authority and it has acted in excess of power which the legislature confided in it.

4. Whenever and wherever human liberty is in peril and justice is threatened, the citizen must receive the fullest protection from the Court, within the four corners of Article 22 of the Constitution benignly stretched. The safeguards provided under the Constitution and 'the Act' should be liberally interpreted, of course, within the legitimate limit The cherished personal liberty, worth of human dignity and liberty are cherished value which must be watched over by the court However, at the same time we must bear in mind that the survival of the State and the protection of society are no less important It is always necessary, just and prudent to balance the two competitive forces which run parallel to each other. Detention without trial being a serious matter the order of detention must be justified by the detaining authority.

5. While dealing with, such Habeas Corpus matters one cannot overlook the limitations of judicial review. In such cases the Court cannot consider the propriety or sufficiency of the grounds on which the subjective satisfaction is based. However, the Court can consider whether the grounds have a rational probative value and not extraneous to the purpose of detention. We cannot substitute our own opinion for that of the detaining authority by applying objective test to decide the necessity of detention for a specified purpose. While considering the grounds, we must consider that the action is anticipatory one and is primarily based on suspicion or anticipated mischief. We cannot interfere with the order of detention if there is some material in the grounds upon which a reasonable man may form the subjective satisfaction. This Court can consider whether the grounds are germane to the reasons or purposes for the detention. The reason for this restrictive view is the meaning of the expressions 'subjective satisfaction'. The term 'subjective' means pertaining or relating to the subject namely, the detaining authority. The term satisfaction relates to the 'thinking' of the detaining. authority. The term has a reference to the mental element of the subject, Le. the desires or feelings of the detaining authority. In a wider sense the term 'satisfaction' may include 'pleasure'. However, in the context in which the term 'satisfaction' has been used indicates that there must be a state1 of mind which has satisfied or contented occasioned by some facts, events or state of things. Therefore it is not an absolute pleasure on the basis of which a person can be detained. A satisfaction cannot be formed on vacuum. There must exist some facts, some events or some state of things to reach the subjective satisfaction for a valid order of detention under 'the Act'. Therefore, we find that grounds are required to be furnished to the detenu which must contain basic facts and materials which are nothing but events, state of things or facts, the basis on which the subjective satisfaction is reached. This is also the reason why apart from the grounds of detention the documents and materials relied upon by the detaining authority while making the order of detention must be supplied to the detenu 'pari passu' the grounds of detention. Naturally so, as all these materials form an integral part of the grounds or events or state of things or facts which help the detaining authority to reach the conclusion as to the necessity of detention. This is the reason why it has been ruled out by their Lordships of the Supreme Court that the documents and materials relied on must be of 'rational probative value and must not (be) extraneous to the purpose of detention'. The facts, events or state of things must be of such nature and character that they may lead a rational human being to reach the satisfaction

6. Judicial review in this area is permissible, apart from other considerations, on the following grounds: (i) When the detaining authority has failed to apply its mind to arrive at the subjective satisfaction (ii) If the satisfaction is not grounded on materials which are of rational probative value, (iii) If no rational being can consider any connection which the facts and the satisfaction reached, (iv) If the grounds are not relevant to the subject-matter of the enquiry or extraneous to the scope and purposes of the Act. (v) If the authority has taken into account, as a relevant factor, something which it could not properly take into account in deciding whether or not to exercise the power or the manner or the extent to which it should be exercised or if the authority has failed to take into consideration the relevant factors made available to ii which it could not overlook in deciding whether or not to exercise the power or the manner or the extent to which it should be exercised, (vi) When the power is exercised mala fide by the detaining authority (vii) If the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it The power of interference is not in exercise of the appellate power. This Court exercises power as a judicial authority which is concerned only to see whether the statutory authority has contravened the law by acting in excess of the power which the legislature has confided in it If there is, violation of procedural safeguards conferred by and under the Constitution, or the provisions of the Act, the Court will surely intervene.

7. The court has undoubted power to consider whether the grounds are vague or irrelevant If one of the substantial grounds is found to be vague or nonexistent or misconceived, the order of detention must be declared to be invalid. These are culled from various decisions of the Supreme Court including Shibban Lai Saksena v. State of U.P : : [1954]1SCR418 , Ram Manohar Lohia v. State of Bihar : : 1966CriLJ608 , Moti Lal Jain v. State of Bihar : 1969CriLJ33 , Pushkar Mukherjee v. State of West Bengal : : 1970CriLJ852 , Biram Chand v. State of U.P : : 1974CriLJ817 , Bhupal Ch. Ghosev. Arif Ali : : 1974CriLJ326 , Satya Brata Ghose v. Arif Ali : : 1974CriLJ329 , Bhut Natb Mate v. State of West Bengal : : 1974CriLJ690 , Ram Bahadur Rai v. State of Bihar : : 1975CriLJ269 , Dwarika Prasad v. State of Bihar : : 1975CriLJ221 and Khudiram Das v. State of W. B.: : [1975]2SCR832 . We quote the relevant observations of Bhagawati, J, speaking for the court in Khudiram (supra)

But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewabiliry. The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subject to the judicial scrutiny....Then again the satisfaction must be grounded 'on materials which are of rationally probative value'. Machinder v. King AIR 1950 FC 129 : 1950 (51) Cri LJ 1480. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the noisier or extent to which it should be exercised, the exercise of the power would be bad.... The power of the Court to interfere in such a case is not as an appellate authority to override a decision taken by the statutory authority, but as a judicial authority which is concerned and concerned only to see whether the statutory authority has contravened the law by acting in excess of the power which the legislature has confided in it.

8. We are thus confirmed that if the High Court reaches the conclusion that the satisfaction is based on material on which no rational human being could find any connection with the reason for detention, the order must be set aside. We are also of the opinion that if the authority has taken into account, even with the best of intention, as relevant factors something which it could not properly take into account or left out of consideration a very relevant material which was before it while making the order of detention, the exercise of power would be bad. The scope of judicial review is projected in this area to find out whether the statutory authority has overstepped or contravened, the basic principles of law or the provisions of the law by action in excess of or beyond the power which the legislature has confided in it.

9. With this backdrop let us consider the grounds of detention. The grounds of detention were:

On Nov. 18, 1982 you along with Sarvasree Nagen Sarma, Digen Bora, Shrigu Phukan, Nurul Hussain Atul Koch and some, others attended the Executive committee meeting of All Assam Students' Union (AASU) held at Gauhati University, which was precided by Sri Prafulla Kumar Manama The meeting decided to observe 24 hours Assam Bundh from 0500 hrs. of Nov. 24 to 0500 hrs of Nov. 26, 1982. Subsequently this decision was discussed in the Executive Committee meeting of All Assam Gana Sangram Parishad (AAGSP) on Nov. 19, 1982 at the Gauhati University student Day Home which was also attended by you and the programme to observe Assam Bundh was modified. It was decided to observe the Bundh from 0500 hrs. of Dec. 2, 1982 to 0500 hrs. of Dec. 3, 1982. In pursuance of the above decision Assam Bundh was observed on Dec. 2 1982 throughout the Brahmaputra Valley district of Assam. As a result of observance of Assam Bundh private transports were off of the road in many parts of the Brahamputra Valley district A large number of Banks remained closed affecting Banking services throughout the Brahmaputra Valley district As per Government Notification Banking services and transport service for carrying passengers and goods are notified as services essential to the life of the community for the purpose of National Security Act 1980. Besides affecting supplies and services essential to the community, several incidents of violence took place in the Brahmaputra Valley districts of Assam. There were two bomb explosions, assaults, mischief’s and sabotages and obstructions of willing employees from attending their duties and also attempt to disrupt road and railway communications. A list of incidents which took place around Dec. 2 1982 is appended. All these incidents affecting supplies and services essential to the community and public order are the direct outcome of your decision to observe Assam Bundh on Dec. 2, 1982.

On bare perusal of the grounds of detention we find that there is no inkling in the grounds that the detenu had any connection with the AH Assam Students' Union - for short 'AASIT or the All Assam Gana Sangram Parishad for short ' AAGSP'. There is nothing to indicate in which capacity the petitioner attended the meetings. Was he an invitee, guest, reporter or a member of the organizations? Prima facie the grounds do not show that the detenu had taken any part in taking the prejudicial resolution. The only averment we notice is that he was present in the meetings held on Nov, 18, 1982 and Nov. 19, 1982, What were the act actions or conduct of the detenu in the meetings? Apart from the fact that the detenu was either a spectator or a passenger or merely a passive attendant to the meetings, we do not find that he took any part in moving the resolution or seconding it or adopting it In short we find that the detenu was a bare 'passive attendant' in the meetings and nothing more. Therefore, the activity of the detenu is only limited to the fact that he was present in the meetings without taking any active part in it Can it be said that he was the author, maker or active participant in the meetings? The simple answer to it must be in the negative. Mere presence of the petitioner where others took part in taking the decision, cannot be a ground of detention of the petitioner under 'the Act'. The alleged activity, Le. mere presence and nothing more does not appear to be a ground of detention on that facts and circumstances of the case. The grounds even do not detail any connection of the detenu with the organizations who took the resolutions. Therefore, we are of the view that on such conduct a person cannot be detained without trial. However, we do not propose to express any final opinion on the point as there are more substantial grounds.

10. One of the purposes of detention was preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The decision taken on Nov. 18, 1982 was abortive. On that date 'the meeting decided to observe 24 hours' Assam Bundh'. There is nothing to show that the detenu also had taken part in the decision. Similarly, in the meeting dated 19th Nov. 1982 the programme to observe the bundh was modified and the extent of the bundh was reduced to 'Bundh1 only and not 'Assam Bundh'. The detaining authority considered that it was a total bundh and included supplies and services essential to the community as notified by the Government of India in notification No. LGL/23/82/10 dated 24.2.82 published in the Assam Gazette dated Mar. 3, 1982. It is apparent that the detention of the petitioner was considered necessary because he was a party to the Bundh which included within its purview supplies and services essential to the, community. Did the meeting decide to call for Bundh to include within its purview supplies and services essential to the community? In reply to the query, Mr. A.K. Choudhury, learned Government Advocate for the respondents submits that in none of the documents, at the disposal of the respondents, namely, the dossier and the connected papers there is nothing to show that the decisions of the 'Bundh' included participation of persons connected with the supplies and services essential to the community. We have perused the dossier placed at our disposal. We do not find anything to show that any resolution was taken in any of the meetings to include within the purview of the Bundhs, supplies and services essential to the community. Was there any material before the detaining authority to show that the resolution of the meeting did not include within its purview the supplies and services essential to the community? Admittedly there was a very material document to show that the resolution was not to include within the purview of the Bundh, the supplies and services essential to the community. We find a reference to that effect in the Assam Tribune, a local daily, dated Nov. 26, 1982. The reference of the newspaper is in the dossier as well Admittedly, the paper report was also a source of information about the resolutions, and the detaining authority had that document at the time of making the order of detention. It was a material document A copy thereof has been furnished to us, which we have (sic) as Annexure 'A'. The portion of the dossier, which refers to the Assam Tribune dated 26th, Nov. 1982 is marked as 'Y' Both the documents 'X' and 'Y' are sealed. Document marked 'X' goes counter to the ground of detention and destroys the basic facts narrated in the grounds. It says that the meeting held of Nov. 19, 1982 was a joint meeting of A ASLT and 'AAGSP'. But that is immaterial in the context to what we find from the paper report, the source of information to the detaining authority. The paper was undoubtedly taken into consideration by the detaining authority but the same was admittedly not supplied to the detenu. We have no manner of doubt that non furnishing of the copy of the document which was also a basic material before the detaining authority deprived the petitioner his right to make 'an effective representation'1 contemplated under Article 22(5) of the Constitution as well as his statutory right under Section 8(1) of 'the Act' This document clearly shows that the resolutions taken declared that the essential services would be exempted from the purview of the Bundh. As such, we have no hesitation in reaching the conclusion that in the instant case non furnishing of the copy of the Assam Tribune, which the detaining authority had taken into consideration while making the order of detention seriously affected 'the right of representation' of the detenu. The material document placed at the disposal of the detaining authority while making the order of detention was surely required to be supplied to the detenu 'pari passu' the grounds of detention, as they formed an integral part of 'the grounds'. The materials negative 'the subjective satisfaction' of the detaining authority that the Bundh call included supplies and services essential to the community. The detenu could have made an effective representation to the authority who would have surely taken the material into consideration and would have recommended for the release of the detenu. In our opinion non furnising of the material was violative of Article 22(5) of the Constitution read with Section 8(1) of the Act and the order of detention must be set aside. In reaching the conclusion we rely on Ramchandra A. Kamat v. Union of India decided on 22.2.1980 per S.M. Fazal Ali P.S. Kailasam and A.D. Koshal JJ. : [1980]2SCR1072 Hansmukh v. State of Gujarat per R.S. Sarkaria and R.S. Pathak JJ. decided on 4.8.80 : 1980CriLJ1286 Cor.P.N. Bhagawati, A.P. Sea JJ; Icchu Devi v. Union of India, per P.N. Bhagawati and E.S. Venkataramiah JJ. decided on 9.9.80 : [1981]1SCR640 Pritiam Nath Hoon v. Union of India Per V.R. Krishna Iyer and A.D. Koshal JJ. decided on 11.9.80 : 1980CriLJ1340 Mangalbhai Motiram Patel v. State of Maharashtra Corr. P.N. Bhagawati, A.P. Sen and E.S. Venkataramiah JJ. decided on 26.9.80 : 1981CriLJ331 Smt Shalini Soni v. Union of India per R.S. Sarkaria and O.C. Reddy JJ decided on 24.10.1980, : 1980CriLJ1487 , S. Gurdip Singh v. Union of India per Corr. S.M. Fazal Ali and A.D. Koshal JJ. decided 13.11.80 : : 1981CriLJ2 , Lallu Bhai Jogibhai v. Union of India per R.S. Sarkaria and O.C. Reddy JJ. decided on 15.12.80 : : 1981CriLJ288 and Kamla Kanyalal Khushalani v. State of Maharashtra per Corn Fazal Ali and A. Varadarajan JJ. decided on 6.1.81 : 1981CriLJ353 .

11. The order of detention is also invalid due to non application of mind of the detaining authority. This essential document which negatived the imputation that the activities of the detenu were prejudicial to the supplies and services essential to the community, was admittedly before the detaining authority, but it left out of consideration and reached a satisfaction which no reasonable person could have arrived at Therefore, one of the grounds or purpose of detention is bad. This is the main purpose of detention is or the substantial ground of detention. If one ground fails the entire order of detention must be set aside as it cannot the predicated that the detaining authority would have detained the petitioner on the other ground or purpose.

12. Now, turning to the question of the public order we find that there was no resolution taken in any of the meetings to create any law and order problem not to speak of public order. It is too remote to draw a conclusion that the resolution included creation of public disorder. There is no averment in the grounds that the meeting resolved to create any public disorder. If taking advantage of the bundh some persons commit some offences the persons involved in the resolution cannot be detained for preventing them from acting in a manner prejudicial to the maintenance of public order. There is no smell of creation of any law and order or to disturb public order in the resolution. Therefore, this ground of detention is based no non-existent material.

For the foregoing reasons we hold that the impugned order of detention is invalid, and, accordingly we allow the petition and direct that the petitioner should be set at liberty forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //