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Basi Singh Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBasi Singh
RespondentState of Assam and ors.
Prior history
D. Pathak, Actg. C.J.
1. The petitioner has been detained Under Section 3 (2) of the National Security Ordinance, 1980, for short 'the Ordinance'. The crux of the order of detention against him is that his activities were prejudicial to the security of the State as he had entered into a conspiracy to overthrow the Government by Armed Rebellion with intent to secede from the Union of India; the activities of the detenu were of grave and serious in nature and character which led the detaining au
Excerpt:
- - the petitioner has taken up various grounds in his writ application and in one of the grounds he has stated that the advisory board recommended for release of shri nagen saikia although the grounds of detention of shri saikia were more serious than the grounds of detention of the petitioner and as such, the determination of the advisory board was discriminatory, arbitrary and violative of article 14 of the constitution. we also -find that the secret training inside the hills near basistha was completed in the middle of july, 1980. in the representation the detenu complained about non-furnishing of the precise dates, time and places about his activities, yet he took up a positive plea about his absence from gauhati from 14-6-1980 to 24-7-1980. we were a bit surprised and inquisitive..... d. pathak, actg. c.j.1. the petitioner has been detained under section 3 (2) of the national security ordinance, 1980, for short 'the ordinance'. the crux of the order of detention against him is that his activities were prejudicial to the security of the state as he had entered into a conspiracy to overthrow the government by armed rebellion with intent to secede from the union of india; the activities of the detenu were of grave and serious in nature and character which led the detaining authority (government of assam) to make the order of detention on a reasonable prognosis of future behaviours of the petitioner.2. the petitioner, an auto-rickshaw driver of manipuri basti, gauhati, was arrested by police on 9-8-1980 in connection with gauhati police case no. 176 (7) of 1980 under.....
Judgment:

D. Pathak, Actg. C.J.

1. The petitioner has been detained Under Section 3 (2) of the National Security Ordinance, 1980, for short 'the Ordinance'. The crux of the order of detention against him is that his activities were prejudicial to the security of the State as he had entered into a conspiracy to overthrow the Government by Armed Rebellion with intent to secede from the Union of India; the activities of the detenu were of grave and serious in nature and character which led the detaining authority (Government of Assam) to make the order of detention on a reasonable prognosis of future behaviours of the petitioner.

2. The petitioner, an auto-rickshaw driver of Manipuri Basti, Gauhati, was arrested by police on 9-8-1980 in connection with Gauhati Police Case No. 176 (7) of 1980 Under Sections 121A/124A, IPC on suspicion that he was in 'hand and gloves' with 'PREPAK' and 'United People's Liberation Army of Seven States' for short 'UPLASS', with a transit camp at Beltola. The petitioner was a close associate of the absconding accused Sri Rajesh alias Nimesh. The said Nimesh also used to organise Armed Training at Basistha Hill. The transit camp at Beltola was searched and some incriminating documents had been seized (vide Annexure I to the petition — the Forwarding Note of the Police in the case). The petitioner was produced before the Chief Judicial Magistrate, Gauhati. He was granted bail on 7-11-1980, on the expiry of 90 days, as no charge-sheet could be submitted by police against him. The order of detention was served upon the petitioner on 7-11-1980. The petitioner contends that it was served while he was in Jail whereas the State in its counter-affirms that the order was served just after the release of the petitioner outside the jail gate (vide para 3 of the Affidavit-in-opposition). Along with the order of detention he was served with 'the Grounds of detention'. The order of detention was made by the State Government on 15-10-1980. The State Government forwarded the order of detention along with the grounds to the Central Government as required Under Section 3 (5) of 'the Ordinance'. On 24-11-1980 the detenu submitted a long and exhaustive representation. He expressed no difficulty in understanding the meaning of the abbreviated word 'PREPAK', nor did he ask for furnishing him particulars about the time, place etc. His prayer in the representation reads as follows:—

It is, therefore, prayed that the Government may release me forthwith on perusal of this representation and in case if the Government decides otherwise I may be given reasonable opportunity of being heard before the Advisory Board.

The representation was duly considered by the Government and his case was placed before the Advisory Board, which heard the petitioner and opined that there was sufficient cause for his detention, On receipt of the report of the Advisory Board, the Government confirmed the order of detention. The petitioner has taken up various grounds in his writ application and in one of the grounds he has stated that the Advisory Board recommended for release of Shri Nagen Saikia although the grounds of detention of Shri Saikia were more serious than the grounds of detention of the petitioner and as such, the determination of the Advisory Board was discriminatory, arbitrary and violative of Article 14 of the Constitution. In order to show that the grounds of detention of Shri Saikia were more serious the petitioner has filed from Jail the order of detention of Shri Nagen Saikia, resident of Basistha, Gauhati, marked Annexure VI and the grounds of detention marked Annexure VII. We may tarry here and state that the petitioner was in jail all throughout but he produced the grounds of detention of Shri Nagen Saikia and annexed it in his petition. On perusal of the grounds of Shri Nagen Saikia, we note that Shri Saikia was detained in connection with the same activities with which the detenu was concerned. Therein, we find the name of the detenu as one of the collaborators. We also find that the extremists elements came to Gauhati for organising the activities of 'the United People's Liberation Army of Seven States' (UPLASS), and formed the same at Gauhati with the extremists elements of the seven Eastern States with the object of liberating the entire North Eastern Region. We also -find that the secret training inside the hills near Basistha was completed in the middle of July, 1980. In the representation the detenu complained about non-furnishing of the precise dates, time and places about his activities, yet he took up a positive plea about his absence from Gauhati from 14-6-1980 to 24-7-1980. We were a bit surprised and inquisitive as to how and why the detenu took up the plea that he was away from Gauhati from 14-6-1980 to 24-7-1980 and claimed that he resided at the residence of his uncle, C. I. D. Inspector of Police. Now it becomes clear that the same was the period when the arms training was completed and the petitioner had full knowledge from the grounds of detention of Nagen Saikia and accordingly took up the same plea. Interestingly, his uncle Shri Manidhan did not file any affidavit in support of the case of the detenu that he had instructed the detenu to live at his residence at Hojai to look after his (Manidhan's) parents. On the other hand the State in its Additional Affidavit-in-Opposition has clearly stated that the detenu was at Gauhati during the period in question.

3. It has not been questioned as it was beyond question that the Central Government in exercise of its power under the Unlawful Activities (Prevention) Act, 1967, hereinafter referred as 'the Act', declared the Revolutionary People's Front (formerly known as the Armed Revolutionary Government of Manipur), in short styled as 'RPF', the People's Liberation Army, People's Revolutionary Party of Kangleipak, shortly described as 'PREPAK' and the Red Army, all belonging to the Meitei Extremists Organisation and other Bodies set up by them including the Armed Forces, named above, were 'unlawful associations', who had (1) openly declared as their objectives, the formation of an independent Manipur and resorted to violent activities in pursuance of their objectives and bringing about secession of the said State from the Union of India; (2) employ-ed Armed forces, namely, People's Liberation Army and Red Army and other bodies set up by them to achieve their aforesaid objectives; (3) in furtherance of their aforesaid objectives, employed their armed forces in attacking the security forces and the Civil Government and the citizens in the State of Manipur and indulging in acts of looting and intimidation against civilian population and collection of funds for their organisation and in order to achieve their aforesaid objectives, maintained contact with foreign countries through their organisation with a view to se-curing assistance by way of arms training etc. and had secured such assistance. The said notification was published in the Gazette of India, Extraordinary, October 26, 1979, Part-JI, Section 3, Sub-section (ii) at pages 1061 and 1062. The action of the Government was found to be justified by the Tribunal constituted under the Act. Therefore, 'PREPAK' is one of the assemblies declared to be so, under 'the Act'. Any member of the Organisation carries with him the stigma that he is a member of a secessionist organisation. The term 'PREPAK' is well known as the notifications were duly published and the objectives of the organisation were made clear in the Gazette Notification, the detenu had no difficulty in understanding the meaning of the term and in fact he did not express any such difficulty to understand the meaning. Secession from India is one of the objectives of the 'PREPAK'.

4. The crux of the allegations is that the petitioner along with others including some members of the unlawful association, namely, PREPAK, entered into a conspiracy to overthrow the Government by armed rebellion and in order to achieve that object formed a party of the extremists elements of the Seven North Eastern States for liberating the entire North Eastern Region through armed revolution and to secede from the Union of India. If we analyse the grounds of detention it will be clear that the substance thereof is that a group of extremists elements of PREPAK, an unlawful association, duly declared to be so by the Government came to Gauhati in the early part of 1980 and established contact with some extremists elements of Gauhati with a view to form a party of the extremists elements of the Seven North Eastern States for liberating the entire North Eastern Region through Armed revolu-_ tion. One Nilkanta Singh, an active member of the PREPAK made contact with the detenu and used to stay in his house. The said Nilkanta established contact with some named extremists elements of Gauhati and its suburb through the petitioner. The detenu used to meet the extremists elements Who were residing in a rented house at Beltola. Thereafter the extremists elements from Manipur in collusion with the local extremists elements opened a training camp inside a hill at Basistha from 2-7-1980 for imparting arms training to some 15 volunteers and when the arms training was proceeding the extremists elements came to Beltola camp for ration and the detenu was there and he assured them despatch of ration and asked them to wait in a particular place to receive ration and in fact he supplied them to the trainees who carried them to their training camp. On completion of arms training at Basistha while the trainees came back from Basistha to Beltola, the detenu along with two others were present there. The detenu took some of the extremists to the house of Nimesh Saikia of Basistha where they stayed for the night. On the following evening the detenu accompanied the trainees and the extremists to Burnihat camp in a jeep and took some rice, dal, utensils etc. Therefore, the detaining authority, in view of the contacts, acts and activities of the detenu was satisfied that he was a security hazard and to prevent him to continue with the activities, which were prejudicial to the security of the State, detained him.

5. In Khudiram v. State of West Bengal : [1975]2SCR832 , Bhagwati, J. speaking for the Supreme Court explained in the clear language that the exercise of the power of detention is dependant on the subjective satisfaction of the detaining authorities with a view to preventing a person from acting in a prejudicial manner as set forth in the laws of detention. Section 3 of the Ordinance clearly states that a detaining authority may make an order of detention 'if satisfied' with respect to any person that his detention is necessary to prevent him from acting in any manner prejudicial to the three-fold purposes. It has been observed in Khudiram (supra) that the expression 'if satisfied' is indicative of the fact that the act of detention is based on 'subjective satisfaction' of the detaining authority before an order of detention can be made. The power of detention is nothing but a preventive measure and does not partake the nature of punishment. The measure is taken by way of precaution to prevent mischief to the community and/or the State. Every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do. It must necessarily proceed in all cases more or less on suspicion or anticipation as distinct from 'proof'. In State of Madras v. V. G. Row : 1952CriLJ966 , Patanjali Sastri, J. expressed that preventive detention was 'largely precautionary and based on suspicion'. To this observation, Bhagwati, J. in Khudiram (supra), added the following expressions of Lord Finlay in Rex v. Halliday, 1917 AC 260:

the Court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.

From the very nature of the proceeding it is well nigh impossible to test the subjective satisfaction with objective assessments. The detaining authority should be left unfettered in the field of consideration as to whether the person proposed to be detained, having regard to his past conduct judged in the light of the surrounding attending circumstances and other relevant material would likely to act in a prejudicial manner contemplated in Section 3 of 'the Ordinance' and to decide whether it is necessary to detain him with a view to preventing him from so acting. These considerations are not susceptible to objective determination and they cannot be intended to be judged by objective standard. The process involved is nothing but administrative determination for taking administrative action. Such determinations are deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of the position it holds, experienced and expertise are best fitted to decide them. The subjective satisfaction of the detaining authority in this constituency is prohibited area which the Court cannot be asked to consider either the propriety or the sufficiency of the grounds on which the satisfaction is grounded. The Court cannot on a review of the grounds substitute its own opinion for that of the authority. The condition precedent to exercise the power of detention is grounded on subjective determination of the necessity of detention for a specified purpose and not on objective determination of the necessity. The subjective opinion must be formed by the detaining authority as regards the necessity of detention. The power of detention is not a quasi-judicial power. Therefore, while reviewing the grounds for detention which are the foundation of the order of detention, we must consider that the exercise of power is purely an administrative action. It would be wrong to equate the power with quasi-judicial power. However, no administrative action can be allowed to stand if it is unfair, unjust and arbitrary. While considering the acts and actions or the activities it is necessary to consider the nature and character of the activities of the activists. A public disorder by way of overt actions is almost always done openly and in the view of the world. Whereas unlawful activities of the unlawful organisations are always done in 'a hush hush manner', secretively; the activities have a clear tendency of hoodwinking others including the law men. No secret activities are done openly. It has been strenuously argued by the learned Government Advocates that traces of such secretive activities are found only after the activists slip out. Counsel for the State have contended before us that the Government was in a doldrum and almost nothing functioned even in half-gear during the period in question. The crucial and necessary material like oil, wood were blocked. Governmental functioning were brought almost to a grinding halt. Law and order and public order were in a precarious condition. Imposition of prohibitory order, curfews, Police firing were 'the order of the day', so much so, that the entire State of Assam was declared a 'disturbed area' and the Assam Disturbed Areas Act as well as the Armed Forces (Special Powers) Act had to be brought into operation. The skeleton police force were too meagre to keep traces of the persons indulging in unlawful activities throughout the length and breadth of the State. Nothing functioned nor even the High Court, submitted the learned Counsel for the State. It is true that this Court should not be influenced by the happenings but some extraordinary events of the nature, as submitted by the learned Government Advocates did happen. We cannot shut our eyes and decide the case sitting in our laboratory oblivious of the facts and events that really happened. We shall certainly consider that the Police force was under great stress and strain during the period. Indeed the prevailing circumstances at the relevant time were duly considered by the Supreme Court in various cases while considering the preventive detention cases. We shall keep in mind the attending circumstances as urged by the learned Govt. Advocates. Mr. J. M. Choudhury, counsel for the petitioner did not dispute the contentions put forward by the learned Counsel for the State but stated clearly and emphatically that the petitioner, under all fact situation, must be guaranteed constitutional and statutory protections. Mr. Choudhury's contention has a strong force.

6. We shall bear in mind that the shackles of bondage were broken to pieces. We are free. But at what cost Thousands of Indians fought as one man, sacrificed their precious lives, thousands of mothers lost their sons, millions lost everything they had. They sacrificed all to give us 'Freedom'. Blown up supplies and services can be repaired, public order causing destruction of lives and property and values can be restored. Loss of lives and destruction of properties can be considered minimal when compared with threat to the security of the State. When the security of the nation is endangered, when crops up question of secession, in the name of all those martyrs who have given their precious lives, the threat that endangers the security of the State or secession of a part of it can never be tolerated by any Indian. India is one. Only one thread runs through the entire polity of India — a golden thread of unity. That golden thread must continue to retain its strength and shine. The shining golden thread binds so many previous gems and this region is a gem of gems inextricably intertwined in the same golden thread and nobody for howsoever noble purpose has the right or the authority to weaken the golden thread. Any attempt to snap the golden thread by overt or covert action, prompted by the elements outside or inside the country commits a heinous crime against the people of India, against the Constitution and against mother India. The first duty of the State is to survive. Judiciary is a part of the State. It has a prime duty and obligation to see that the nation survives. To perform the first duty of the State it has got to deal with enemies both overt and covert — whether they be inside the country or outside. A country is not defended merely by the members of the Armed Forces. The security of ' the country is not the exclusive preserve of the members of the Armed Forces. It is the prime duty and obligation of each individual Indian. It is the obligation of the three organs of the State to look after the security of the country arid/or its defence. The days are gone by when one had to worry about the security of a country or its defence only during 'warm wars'. Cold wars are more dangerous than pitched frontal battles. In war you known the enemy and they attack from outside, but when the enemy agents, agents provocateurs manage to infiltrate and eat up the Indianness of the Indians, make them anti-Indians, sabotage the values enshrined in the Constitution, they are the most dangerous enemies. To call the activities as crime is to use a very soft language.

7. Indeed, as Judges and citizens, personal liberty is as dear to us as to anyone else. We shall bear in mind Lord Atkin's significant observations in Liversidge v. Anderson, 1942 AC 206 that amidst the clash of arms, the laws are not silent, they may be changed, but they speak the same language in war and peace, reverberated in their ears. Where freedom is in peril and justice is threatened all citizens shall receive the fullest protection from the Court within the four corners of Articles 21 and 22 of the Constitution and the safeguards provided in the Ordinance benignantly stretched and liberally interpreted, within the legitimate limit. We are aware that the worth of human person has a cherished value carefully watched over by the Courts. We shall also bear in mind that preventive detention was created by our freedom fighters who had endured its repressive impact as it was realised by them that such law was a necessary evil to cure malignant diseases by drastic remedies. We hold the delicate balance between the security and liberty as Judges are, in part, sentinels on the qui vive. No matter in what black colour the petitioner has been pictured he shall receive the fullest protection from us within the four corners of Articles 21 and 22 to the extreme and the safeguards of the act liberally stretched, within the legitimate limits.

8. (a) The first contention is that the petitioner was detained along with one Nagen Saikia Under Section 3.(2) of 'the Ordinance' on similar facts and the allegations against Shri Nagen Saikia were more serious but the Advisory Board recommended the detention of the petitioner while reported for the release of Shri Nagen Saikia. It was violative of Article 14 of the Constitution. We can brush aside the contention as the proceedings of the Advisory Board and its report excepting that part of the report in which 'the opinion' of (he Advisory Board is specified are confidential Under Section 11 (4)'of the Ordinance. We cannot examine the confidential part of the proceedings, scrutinize the reasons of the Advisory Board nor have we any jurisdiction to interfere with the findings for any purposes whatsoever. The confidential report of the Board is beyond judicial review of the Court. The decision of the Advisory Board is not justiciable. In any view of the matter the question of violation of Article 14 of the Constitution does not arise at all. We dismissed the contention. The learned Counsel in fitness of things did not press the point before us.

(b) The second ground taken in the petition is that the State Government did not forward, within seven days, the fact of such detention to the Central Government together with the grounds on which the order had been made and such other particulars as required Under Section 3 (5) of 'the Ordinance'. We have scrutinised the records, perused the affidavit of the respondents and hold that the provisions of Section 3 (5) were faithfully followed in the instant case. This contention as well was not pressed by the learned Counsel though taken in the petition.

(c) The third ground taken in the petition is that the petitioner's case was not referred to the Advisory Board within three weeks from the date of detention as required Under Section 10 of 'the Ordinance'. The petitioner was detained on 7-114980. The case of the petitioner was forwarded to the Advisory Board on 15-1M98O along with all connect-ed records (vide para 16 of the affidavit-in-opposition of the respondents). The learned Advisory Board considered the materials placed before it and submitted its report oft 19-12-1980 to the Government within 7 weeks from the date of detention in due compliance with the provisions of Sections 10 and 11 of 'the Ordinance'. In the result, we hold that there is no merit in the contention. The point was not pressed by the learned Counsel for the petitioner.

(d) The next grounds taken by the petitioner in the petition is that the provisions of 'the Ordinance' are violative of Articles 19, 21 and 22 of the Constitution. However, no argument has been advanced by the learned Counsel for the petitioner on the point. We have scanned the entire Ordinance but do not find that any provision of the Ordinance, is directly or indirectly violative of the provisions of Articles 19, 21 and 22 of the Constitution. The contention is rejected.

(e) The next ground is that there was delay in considering the representation of the petitioner and as such it was violative of Article 22(5) of the Constitution. As alluded the petitioner submitted his representation on 24-11-1980, the same was received by the Government on the same day and duly considered and disposed of on 25-11-1980. In the ret suit, we hold that the Government promptly considered the representation and the question of delay in considering the representation does not at all arise in the instant case. The contention fails.

(f) The next contention is (hat only a free man can be ordered to be detained under the law of preventive detention and no such order can be passed against a person in jail. If an order is passed against a prisoner in jail, the requisite satisfaction of the detaining authority as to the necessity of his detention is vitiated on account of casualness. The learned Counsel for the petitioner submits that the order of detention was rendered by the detaining authority on 15-10-1980 when the detenu was admittedly in jail as a suspect in a police case. The learned Counsel further submits that the order of detention was served on the detenu before he was released from jail. The learned Counsel relics on Labaram v. State of Assam AIR 195l Assam 43 : 1951-52 Cri LJ 434; Hari Das Deka v. State AIR 1952 Assam 175 : 1952 Cri LJ 1670 and Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 wherein the two Assam decisions were approved. In those cases the orders of detention were passed against prisoners in jail and were served on the prisoners whilst they were in jail. Accordingly the orders of detention were set aside. The rationale behind the decisions arc that the main object of the laws of preventive detention is to prevent a free man from acting in a prejudicial manner and there must be satisfaction of the detaining authority that if such a person is not detained he would act in a prejudicial manner. It postulates that the persons sought to be detained must have freedom of action at the time of making the order. How can it be rationally postulated that a person in jail custody, either as a result of his conviction or remand order during the investigation on trial of a case, is required to be detained in order to prevent him from acting in a prejudicial manner'? Accordingly in Labaram and Had Das Delta (supra) the orders of detention passed when the detenus were in jail were considered to be bad. In fact, it was held that the making of the orders were bad in view of the lack of requisite satisfaction of the detaining authority. However, in Rameshwar Shaw (supra), Gajendra-gadkar, J. speaking for the Court, explained that the execution of an order of detention whilst the prisoner in jail was bad and accepted the proposition of law of Labaram and Haridas (supra) as correct to that extent. However, in para 14 of the judgment his Lordship has clearly explained that an order of detention may be passed against a prisoner in jail and the service thereof shall not be affected if detained after he is actually released from jail. The decision rules that an order of detention can be passed against a person even though he may be in jail custody but it must be served on the detenu after his release. Therefore, we cannot accept the broad proposition put forward by Mr. Choudhury that an order of detention made against a prisoner in jail is ipso facto bad. We pause here for a moment and state that the respondents have clearly and categorically stated that the detenu was served with the order of detention along with the grounds immediately after his release from jail. We have no reason to disbelieve the statement. On 7-11-1980 after expiry of 90 days from the date of detention of the accused-petitioner, he was directed to be released by the Magistrate. He executed the bail bond and was released from jail. But on his release just outside the jail gate he was served with the detention order and the grounds and taken into custody and as such, on the basis of the decision of Rameshwar Shaw (supra) neither the order of detention nor the act of service of the detention order can be said to be illegal. In Makhan Singh v. State of Punjab : 1964CriLJ269 , it was sought to be contended that the order of detention was invalid because at the time when the order had been made the appropriate authority knew that the detenu was in jail. Their Lordships observed (Para 16):. in that case also (meaning Rameshwar Shaw 1964 (1) Cri LJ 257 (supra), Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid.

Their Lordships confirmed the view expressed in Rameshwar Shaw (supra) that an order of detention can be validly made against a person in jail custody. It has been further observed that when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may, in a given case, take the view that the criminal proceedings may end very soon and may terminate on his acquittal. In such cases it would be open to the appropriate authority to make an order of detention and serve it on the person concerned after he is discharged or acquitted in the said criminal proceedings. It has been rightly contended by the learned Government Advocate that the detaining authority, in view of the gravity of the allegation, did not take any risk and as an abundant caution and in the public interest kept the order of detention ready for service after the release of the prisoner from jail. It has been rightly contended by the learned Government Advocate that if the authority would have awaited for the release of the detenu and then made the order of detention and issued it for service there was every likelihood of whisking away of the prisoner from the jail gate in view of the grave allegations made against him. The learned Government Advocate has very rightly contended that to grant bail is the order of the day and as such the detaining authority was justified in keeping the order of detention ready for service. From the very fact that on the expiry of 90 days from the date of detention the petitioner was released, we can assume that the detaining authority was justified in making the order ready on the apprehension that the prisoner would be released on bail. In view of the nature of the allegation we hold that the order of detention was validly made on the apprehension of likelihood of release of the prisoner on bail.

In Ashim Kumar Ray v. State of West Bengal, : AIR1972SC2561 , it has been held that mere arrest and detention of a person to prosecute him under the Criminal Procedure Code, does not debar an authority to make an order of preventive detention if at the time of making of the order of detention he was satisfied that it was necessary to do so. Their Lordships have slated in passing that if a person is in jail custody at the time of making of the order of detention but was not likely to be released for a fair length of time, it might be possible to contend that there was no satisfaction on the part of the detaining authority. The decision is an authority for the proposition that an order of detention can be made by the authority even if a person is in jail in connection with a case when there is a hunch in the mind of the detaining authority that he may be released soon. We hold that the present case was such a case where the detaining authority had a hunch of the nature. In Abdul Aziz v. District Magistrate, Burdwan : [1973]2SCR646 , it was contended that the order of detention passed during the pendency of a prosecution launched against the petitioner for the very same incidents in regard to which the order of detention was passed and, therefore, the satisfaction of the detaining authority was vitiated. Chandrachud, J. (as his Lordship then was) speaking for the Court turned down the contention and held that the mere circumstances that a detention order was passed during the pendency of a prosecution would not vitiate the order. In conceivable cases, his Lordship observed, it might be'come necessary to pass an order of detention in anticipation of an order of discharge or acquittal. In our opinion, this is the case in which the underlined portion is squarely applicable. In Haradhan Saha v. State of West Bengal : 1974CriLJ1479 , it has been held that the power of preventive detention is qualitatively different from punitive detention. The former is a precautionary power exercised on reasonable anticipation and it may or may not relate to any offence. It is not a parallel proceeding with a criminal prosecution nor does it overlap with criminal prosecution. It has been observed inter alia (Para 32) :

An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

It follows, therefore, that pendency of a criminal case does not debar a detaining authority to make an order of detention. In Dr. Ramkrishna Rawat v. Dist. Magistrate, Jabalpur : 1975CriLJ46 , the detention, order was served upon a person who was committed to jail custody in security proceeding Under Sections 151/117 of the Criminal Procedure Code (old). Their Lordships explained Rameshwar Shaw 1964 (1) Cri LJ 257 (SC) (supra); Makhan Singh 1964 (2) Cri LJ 217 (SC) (supra), relied on Haradhan Saha 1974 Cri LJ 1479 (SC) (supra) and held that mere service of detention order on the petitioner in jail would not vitiate the order, if the custody in jail was obviously for a short duration. This is an authority for the proposition that not only an order of detention, may be made when a person is in jail, but it can be validity served on a prisoner if it is obvious that his detention in jail is only for a short duration. In the result, we conclude that the making of the order of detention on 15-10-80 when the detenu was in jail, in view of the grave and serious allegation against him, was valid. Even assuming that the order of detention was served on the detenu while he was inside the jail the fact remains that on 7-11-80 he was directed to be released by the Magistrate and the service cannot be said to be invalid as the detenu was obviously to come out from the jail either on that date or the following date and as such, the service cannot be declared to be bad on the authority of Dr. Ramkrishna Rawat (supra). However, it was not so. In fact, the petitioner was served with the detention order when he had come out from the jail gate and as such the service of the order was on a free man. It may be added at this stage that the detaining authority passed the order of detention having had the full knowledge that the petitioner was in jail in connection with the criminal case which we find on perusal of the history sheet on the basis of which the order of detention was made. We hold that the detaining authority performed a public duty and in the public interest in making the order ready and taking no chance to prepare the order of detention only on release of the detenu and thereafter to serve the same on him after due preparation and giving the detenu an opportunity to be whisked away from the jail gate. We are constrained to observe that the contention has no merit and the same does not stand.

(g) The next contention of the learned Counsel for the petitioner is that the grounds are irrelevant and vague. To appreciate the argument it is necessary to set out the grounds which we do hereunder :

Grounds of detention in respect of Shri Basi Singh s/o. Shri Madhu Mangal Singh of Manipuri Rajbari, Gauhati-7, Kamrup.

You are an associate of S/Shri Nimesh Saikia of Basistha, Nilakanta Singh of Imphal, Hemanta Borgohain of 6th Mile Khanapara.

You came in contact with Nilakanta Singh of Keisampat Imphal who is an active worker or PREPAK (People's Revolutionary Party of Kangleipak) an extremist organisation of Manipur, who used to stay in your house. Groups of extremist elements of PREPAK Manipur came to Gauhati in the early part of 1980 and established contact with the extremist elements of Gauhati with a view of forming a party of the extremist elements of the Seven North Eastern States for liberating the entire North Eastern Region through armed revolution. Nilakanta Singh established contact with Nimesh Saikia, Hemanta Borgohain through you and subsequently with others for organising extremist activities in Assam.

You used to meet the extremist elements who were residing in rented house at Beltola. Thereafter extremist elements from Manipur in collusion with the local extremist elements had opened a training camp inside a hill near Basistha from 2-7-80 for imparting arms training to about 15 volunteers. While arms training to the volunteers were given in the said camp, one day R. K. Zila Singh and Krishna Das Sarma came to Beltola camp for ration and found you in the Beltola camp. You assured them about despatch of ration and asked them to wait in a particular place. Accordingly, you along with others carried about 30 kg. Dal and about 10 kg. Rice to that place and handed over to the trainee who carried the same to Basistha Training camp.

After completion of the arms training at Basistha camp while the trainees came back to Beltola camp, you along with two others were present there. On that day, you took R. K. Zila Singh, Joy Singh, Krishna Das Sarma and Rajen Singh (Junior) to the house of Nimesh Saikia of Basistha where they stayed there for the night. On the following evening, while the trainees were taken to Bornihat camp in a jeep you also went there along with them taking rice, dal, utensils etc.

Thus you along with others, as mentioned above, entered into a conspiracy to overthrow the Government by armed rebellion with intent to secede from the Union of India and as such your aforesaid activities are prejudicial to the security of the State.

You have the right of making a representation against the order of detention to the Government.

Jt. Secretary to the Govt.

of Assam, Political (A)

Department.

(h) The contention of the petitioner is that the order of detention i was passed on 1540-1980 for the detenu's alleged activities in the early part of 1980. On this premise counsel submits that the incidents were stale and could not be .grounds for detention. We are constrained to hold that a chain of events has been expressed in the grounds which commenced in the first part of 1980 and continued up to July, 1980. The chain of events are connected with each other and pointedly show that they had nexus with the object for detention. The incidents have rational nexus with the object of detention, namely, the security of the State and are positively proximate in point of time. It appears from the affidavit of the State that the involvement of the detenu in the incidents could be gathered from the interrogated statements of the co-accused of the case, namely, R. K. Zila Singh and others in connection with the criminal case being Gauhati P.S. Case No. 176 (7) of 1980. As such the detaining authority could obtain this information in or after the month of July, 1980. The detenu was arrested in connection with the case on Aug. 9, 1980 and was in jail, but the order of detention was made on 15-10-1980 whilst the detenu was in jail. Therefore, the contention of the learned Counsel that the incidents are not proximate, does not appeal to us and it is turned down.

(i) The next contention of the learned Counsel for the petitioner is that the grounds are vague as no specific date, time and places have been furnished to the petitioner. No basic facts and materials have been supplied. The grounds are self-sufficient and self-explanatory readily intelligible by any reasonable person. We have stated in a number of cases, following observations of the Supreme Court, that the question whether the grounds furnished are vague or not must be determined on consideration of various facts and circumstances. What may be said to be vague in one case, may not be so in another set of facts and circumstances. The expression 'vagueness' is a relative expression. One is to consider whether the details withheld were the essential constituents of the grounds or they were merely the subsidiary facts or further particulars of the basic facts. We have already alluded that from the very nature of the acts and activities alleged, traces thereof could be found only after the acts and activities were over. In some cases it is not possible to furnish the exact date, time or places of the incidents in view of the peculiar secretive action. We are of the opinion that this is that type of case. We have noticed, on perusal of the Dossier, that nothing was suppressed and the detaining authority furnished all the materials available to it. The approximate date and time could be gathered from the statement of the co-accused. They may not be evidence under the Evidence Act to base conviction on the basis thereof, but a detention under the laws of preventive detention can be grounded on suspicion or anticipation as distinct from proof. We have already narrated the circumstances under which the police had to act during the period in question. They were fully pre-occupied. They would have certainly arrested the detenu and his associates had they had any knowledge of their activities when the activities were being carried out. They could gather the information furnished to the detenu after the activities were over.

In Ram Singh v. State of Delhi : [1951]2SCR451 , the ground of detention was:

In pursuance of Section 7, Preventive Detention Act, you are hereby informed that the grounds on which the detention order dated 22-8-1950 has been made against you are that your speeches generally in the past and particularly on ... August 1950 at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.

This was considered to be sufficient ground in view of the prevailing circumstances. We would like to observe that in the instant case the detenu never asked for particulars. However, even if he would have asked the particulars, no more particulars were available with the detaining authority. Therefore, nothing was suppressed.

In Tarapada Dey v. State of West Bengal, : 1951CriLJ400 , their Lordships held that on the facts and circumstances of that case the materials not furnished did not affect any of the rights of the detenu.

In Lawrence Joachim Joseph D'Souza v. State of Bombay : 1956CriLJ935 , the grounds of detention furnished to the petitioner were as follows (Para 4) :

With the financial help given by the Portuguese authorities you are carrying on espionage on behalf of the Portuguese Government with the help of underground workers. You are also collecting intelligence about the security arrangements', on the border area and you make such intelligence available to the Portuguese authorities. These activities which are being carried on by you with the object of causing further deterioration in the relations between the Portuguese Government and the Indian Government over the question of Gaon National Movement are prejudicial to the security of India arid to the relations of India with Portugal.' In the above case, like the present one, the detenu did not apply to the Government 'to be supplied with the particulars of the grounds furnished to him'. Of course, the State claimed privilege under Article 22(6), but their Lordships held inter alia, that the detenu was intimated that in the opinion of the Government, the activities of the detenu were considered prejudicial to the security of India and to the relations of India with Portugal. Their Lordships observed (Para 4):

It is true that these allegations are not as precise and specific as might have been desired. But having regard to the nature of the alleged activities of the appellant, it is not unlikely that no more could be gathered or furnished. In this context it is relevant to notice that the appellant himself does not appear to have felt that the grounds furnished were so vague as to hamper him in his right to make a representation under Article 22(5) and Section 7 of the Act. It does not appear that he applied to the Government to be supplied with particulars of the grounds furnished to him. Such a right to call for particulars has been recognised in the case in : 1951CriLJ373 , as flowing from his constitutional right to be afforded a reasonable opportunity to make a representation to the Board. In that Case it has been stated that —

If the grounds are not sufficient to enable the detenu to make a representation, the detenu.... If he likes, may ask for particulars which would enable him to make the representation.

The fact that he had made no such application for particulars is, therefore a circumstance which may well be taken into consideration, in. deciding whether the grounds can be considered to be vague. In the circumstances and having regard to the fact that what is alleged is espionage activity at a time when relations between the two Governments on the affairs of Goa were somewhat delicate, we are inclined to think, with the High Court, that the grounds cannot be considered to be vague.'

In our opinion, the observations of the constitution Bench are squarely applicable in the instant case as well.

In Shamrao Vishnu Parulekar v. District Magistrate, Thana, : 1957CriLJ5 , the communications sent to the petitioner run as follows (Para 3):

During the monsoon in the year 1955, you held secret meeting of Adivasis in Umbergaon, Dahnu, Palghar and Jawhar Talukas of Thana District at which you incited and instigated them to have recourse to intimidation, violence and arson in order to prevent the labourers from outside villages hired by landlords from working for landlords. As a direct result of your incitement and instigation, there were several cases of intimidation, violence and arson in which the Adivasis from these Talukas indulged. Some of these cases are described below....

The constitution Bench held that the communication as a whole was not vague and was sufficiently definite to apprise the detenus of what they were charged with and to enable them to give their explanation. In our opinion, in the present case more particulars have been furnished to the detenu.

In Puranlal Lakhanpal v. Union of India : 1958CriLJ283 , the relevant grounds of detention can be gathered from paragraph 14. As a matter of that, no particulars as to dates, persons and places were furnished to the petitioner. In that case privilege was claimed no doubt but their Lordships followed the rule laid down in Lawrence D'Souza ((1956) Cri LJ 935) (SC) (supra).

Their Lordships held in paragraph 15:

We are of the opinion that in the present case the grounds furnished to the appellant, though not as precise and definite as might be desired, gave him a sufficient opportunity of exercising his right under Clause (5) of Article 22 of the Constitution.

In our opinion, the quintessence of the decisions is that if the acts are prejudicial to the security of the State or cases of underground or the under-world activities they are always done secretly and full details are not possible to be obtained and furnished. The same view has been expressed by their Lordships in the case of Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur : 1975CriLJ46 .

In Vakil Singh v. State of Jammu and Kashmir : 1975CriLJ7 , their Lordships observed that only the pith and substance of the primary facts need be communicated but not the subsidiary facts. The grounds of detention were (Para 5):

Shri Vakil Singh cited above is an Pak Agent, who worked for Pak FIU. He supplied Indian Army information to Pak FIU Officers through Mian Rehman of Jumbian a notorious Pak agent and courier. He also paid various visits to Pudwal, Maharajke and Sialkot for supplying of Indian Army Intelligence to Pak FIU Officers. In lieu of the same he had been receiving money from Pak FIU.

Of Course, privilege was claimed under Article 22 (6). However, Their Lordships observed about the vagueness of the grounds thus — (Para 29).

Read as a whole they appear to be reasonably clear and self-sufficient to bring home to the detenu the knowledge of the grounds of his detention ... 'Grounds’ within the contemplation of...of the Act means 'materials on which the order of detention is primarily based. Apart from conclusions of facts 'grounds' have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. This requirement as to the communication of all essential constituents of the grounds was complied with in the present case....Nothing more was required to be intimated to enable him to make an effective representation.

Be that as it may, the details withheld were not an essential constituent of the grounds of detention. The basic material or the substance of the primary facts in a clear, succinct and intelligible form which was sufficient to enable the detenu to make a representation, was duly communicated to him.

We were of the opinion that in the instant case, the pith and substance of primary facts were furnished to the petitioner — the basic materials or the substance of the primary facts were furnished to the detenu in a clear and succinct and intelligible form which was sufficient to enable the detenu to make an effective representation.

We conclude that the prevailing condition in the State, as alluded to in the earlier part of our judgment, handicapped the police force and/or its intelligence branch to gather more information. This is also very relevant factor as to why more details could not be furnished to the detenu. The informations were gathered by police from other co-conspirators and the available materials were furnished to the detenu. The detenu never asked for details from the detaining authority. We are also of the opinion that from the nature of the activities it was difficult to gather the precise date, time and places of the activities. The substance of his activities available to the detaining authority was fully pictured in the grounds. The grounds read as a whole furnished adequate material to make an effective representation. The petitioner, on his own admission gathered further material from the grounds of detention of Shri Nagen Saikia which the detenu has annexed as Annexure-VII to the petition. We are of the opinion that under the facts and circumstances of the case, as also the attending circumstances, no further particulars could be made available to the detenu. There was no violation of the provisions of Article 22(5) and/or provisions of Section 3 of the Ordinance and as such we turn down the contention.

The ultimate submission of the learned Counsel is that the detenu was at Hojai when the arms training was imparted in the hills of Basistha. We have dwelt at length on the question. He claims that he was away from Gauhati on and from 11-6-80 to 24-7-80 and stayed at Hojai. There is nothing to show the distance from Gauhati to Hojai, nor is there any affidavit of his uncle Shri Manidhan Singh, a C. I. D. Inspector of Police, in support of the averment of the detenu. It weakens the case of the detenu. Be that as it may, the State caused an. enquiry to be made and found that at the relevant period the detenu had been at Gauhati. This clinches the issue. We cannot enter into the question of truth or otherwise of the statement of facts contained in the grounds, unless we find from the records a one-way traffic in favour of the detenu. However, in the instant case, the alibi of the detenu has been contested and denied. In the result we turn down this contention as well.

For the reasons set forth above,, we hold that there is no merit in this application and accordingly ihe same is dismissed.


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