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R. Lallawama Vs. District Magistrate - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantR. Lallawama
RespondentDistrict Magistrate
Excerpt:
.....be read. we are, therefore satisfied that the grounds do have relevancy with the security of the state. state of gujarat 1979crilj1306 .what has been stated further in this case after taking note of previous decisions is this (para 8):-nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. however, the failure, of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. where an express allegation is made that the order of detention was issued in mechanical fashion..........him to make an effective representation.9. in the present case too, we are dealing with underground activities. the completeness of the facts have to be judged in this background. the non-mentioning of particular persons in ground no. 2(a) who had collected the taxes may be because the names were not really known, and only their affiliation to the group of ss (self-styled) lt. thanzuala came to light. similarly, the name of 'unidentified mnf' could not be given in 2(b) as he could not really be identified,. the non-mentioning of any specific date in ground 2(b) is accounted by the fact that as per this ground, the visits were frequent and as such the two terminal dates were specified. for the similar reason we would not regard the non-mentioning of the names of '2 other mnf.....
Judgment:

B.L. Hansaria, J.

1. Every detention without a trial almost puts the Court itself on trial when it is approached for redress. On the one hand it has to guard the cherished liberty of the individual, and on the other it has to see to the smooth functioning of the social order. When anything puts in jeopardy the security of the State, the Court has to approach the matter with still greater care and circumspection.

2. The present is a case where the petitioner was detained to prevent him from engaging in activities. which are prejudicial to the security of the State. The impugned order was passed on 21-7-1982 and it came to be served on the same day along with the grounds leading to the above subjective satisfaction. We may set out the grounds. These read:-

(1) That you are the leading supporter of the unlawful MNF Organisation in Theiriat Village and have been actively harbouring and providing shelter to outlawed MNF elements for the furtherance of the organisation which has been aiming at and working for the secession of Mizoram from India.

(2) That your such activities have been disturbing public order and endangering the security of the State of Mizoram will be evident from the facts and particulars given below and it is necessary to prevent you from acting in such manner:-

(a) That on 11-6-1982 you helped two MNF hostiles of SS Lt. Thanzuala group in collecting of taxes in Theiriat Village.

(b) That in between 1-4-1982 to 15-5-1982, SS Sgt. Khumtira along with one unidentified MNF frequently visited your house and sometimes spent the night in your house with your knowledge, consent and assistance.

(c) That on 24-3-1982 night, you provided shelter and meal for SS.2/Lt. Biakzawna of the unlawful MNF organisation.

(d) That you provided, shelter to SS Lt. Nowawia and 2 other MNF hostiles on 16-3-1982.

2. Before adverting to the points urged by Shri Tanti relating to the grounds, we may refer to some other points urged in the petition. Though it has been stated that the order was not served on the petitioner within the statutory period provided by the National Security Act, 1980, hereinafter the Act, the same does not seem to be correct inasmuch as the order was not passed on 12-7-1982 as is the averment in the petition, but on 21-7-1982. The order dated 12-7-1982 referred in para 2 of the petition is not an order of detention but is an order conferring power on the District Magistrate to exercise powers under the Act. The grievance about non-disposal of representation is also unfounded as from the return on behalf of the Union Territory, it appears that the representation reached, the Home Department on 11-8-1982, and it was disposed of on 17-8-82. So also there is no substance in the allegation that the matter was not reported to the Government of India inasmuch as it was so done, as per the aforesaid return, on 31-7-1982 after the order of the District Magistrate was approved by the Government on 26-7-1982, which is also within the statutory period. Similarly, there is no illegality as to the disposal of the matter by the Advisory Board because the confirming order of the Board is of 6-9-1982 and as such within a period of 7 weeks from the date of detention.

3. We may now come to the submissions relating to the ground. The first point urged is that what has been stated under ground No. 1 is absolutely vague inasmuch as no details of the alleged activities of the petitioner in actively harbouring and, providing shelter to outlawed MNF elements have been given. That this para is bereft of details is apparent. The submission of the learned Standing Counsel for Mizoram, however, is that this para, is in the nature of a preamble or introduction. Reliance is placed on a recent decision of the Supreme Court in Dhananjoy Das v. District Magistrate : 1982CriLJ1779 . This decision has clearly held that there can be a preamble or introductory para in the grounds of detention. Of course, whether it is so has to be determined on the facts of each case, but the mere fact that the para has found, place in 'grounds of detention' is not decisive in this regard. Indeed, in Dhananjoy Das as well, the para which was held to be introductory was referred as a part of the grounds of detention. Even so, the Court regarded that paragraph as in the nature of a prelude. So far as the case at hand is concerned, from the language used in paras 1 and 2, we are satisfied that the contents in paragraph 1 have to be regarded as merely introductory in nature. The vagueness of this paragraph cannot therefore, be a ground to set aside the order.

4. As to para 2, the first submission is that this would speak of non-application of mind by the detaining authority inasmuch as though the activities in question were regarded to have disturbed public order and endangered the security of the State, the order of detention came to be passed only to prevent the petitioner from acting prejudicially to the security of the State. It is, therefore, urged that though two objects of detention were mentioned in the grounds, the detaining authority ultimately stated about one of the objects only, which would show that it had not applied its full mind. Reference has been made in this connection to Bhupal Chandra v. Arif Ali : 1974CriLJ326 and Satyabrata v. Arif Ali : 1974CriLJ329 . In both these cases the order of detention was to prevent the petitioner from acting in any manner prejudicially to the maintenance of public order. In the grounds, however, reliance was placed on threat to the security of the State. By going through the grounds it was found that some of them were indeed connected with the security of the State, while some were thought to have no rationale relation with public order. As the order was thus based on some ground having no rationale connection with the maintenance of public order, the detention order was set aside. As to the grounds relatable to the security of the State, it was observed that either the District Magistrate had no information of these grounds at the time of passing of the order, or if he had, he did not believe them to be factually correct and so did not base his order on them. It was, therefore, observed that them District Magistrate cannot now seek to buttress his detention order by those grounds because if he did not think it proper to rely on them while making the detention order, he cannot deploy them now as another string to the blow.

5. This decision has not held that in a contingency like the one at hand non-application of the mind can be read. The ratio rather is that if the order is founded on irrelevant grounds, the same can be set aside. So also if there are some facts in the grounds which speak of say, threat to security of the State, but the avowed object of the order of detention is not to prevent a person from acting prejudicially to the security of State, no reliance can be placed on the related grounds to sustain the order. Further, mentioning of only one objective in this case would rather show that the authority did apply its mind as to the object which it wanted to advance by detaining the petitioner, though there were materials according to it to detain the petitioner for his activities disturbing public order also, this runs counter to the submission of non-application of full mind.

6-7. Let it now be seen whether the incidents mentioned in para 2 have nexus with the object of maintaining security of the State. One central theme which runs through 3(four) episodes is the association of the petitioner with the MNF (Mizo National Front) which was declared an unlawful association by a notification dated 20th January, 1982 mainly because of its object of the formation of an independent Mizoram by bringing about the secession of the said areas from the Union of India. The four incidents as mentioned in the grounds cover the period from 16-3-1982 to 11-6-1982 and, as such all of them had taken place after the MNF had been declared an unlawful association under the provisions of the Unlawful Activities (Prevention) Act, 1967. The acts of harbouring and helping the MNF to collect taxes have to be regarded as showing rather close association of the petitioner with the MNF. If the avowed objective of the MNF be secession of Mizoram from India, the activities of the petitioner have to be regarded as prejudicial to the security of the State. It may be pointed out that this conclusion is based, not on one or two stray acts of the petitioner, but his consistent behaviour over a period of about 3 months testifies the same. We are, therefore satisfied that the grounds do have relevancy with the security of the State.

8. Let it now be seen whether the grounds are vague. It has been urged by Shri Tanti that in ground No. 2(a), the names of the two MNF hostiles have not been given, neither has it been stated as to from which persons of Theiriat Village the t,ax had been collected. Qua 2(b) the submission is that the name of the unidentified, MNF man is not to be found; and that no specific date about the visit has been given. In so far as 2(d) is concerned ,the contention is that the name of '2 other MNF hostiles' have not been stated. There is a plethora of decisions as to when a ground can be regarded as vague. It would be a futile exercise in 'trying to note even some of them. It is enough to say that vagueness is a relative term and its meaning must vary with the facts of each case as stated in State of Bombay v. Atma Ram AIR 1951 SC 1557 : 1951-52 Cri LJ 373. The case which is closer on facts is that of Lawrence D'Souza v. State of Bombay : 1956CriLJ935 . In that case, the grounds of detention read as below (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 Goans National Movement, are prejudicial to the security of India and, to the relations of India with Portugal.

The above grounds were not held to be vague inasmuch as having regard to the nature of alleged activities, it was stated that no more could be gathered or furnished. In coming to this conclusion it was noted by the court that the detenu had also not applied to supply him with more particulars to enable him to make an effective representation.

9. In the present case too, we are dealing with underground activities. The completeness of the facts have to be judged in this background. The non-mentioning of particular persons in ground No. 2(a) who had collected the taxes may be because the names were not really known, and only their affiliation to the group of SS (self-styled) Lt. Thanzuala came to light. Similarly, the name of 'unidentified MNF' could not be given in 2(b) as he could not really be identified,. The non-mentioning of any specific date in ground 2(b) is accounted by the fact that as per this ground, the visits were frequent and as such the two terminal dates were specified. For the similar reason we would not regard the non-mentioning of the names of '2 other MNF hostiles' in ground No. 2(d) as having introduced, any vagueness in this ground.

10. Thus, we do not think if the present is a case where the order can be set aside because of any vagueness in the ground. Apart from these submissions made by Sri Tanti, the one which struck us for examination is recourse to preventive detention though the petitioner could have been criminally prosecuted for the alleged activities. Not that the possibility of launching a criminal prosecution is an absolute bar to an order of preventive detention but the ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention as stated in Kanchanlal v. State of Gujarat : 1979CriLJ1306 . What has been stated further in this case after taking note of previous decisions is this (para 8):-

Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure, of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that the question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu.

11. After noting this decision, it was stated in Hemlata v. State of Maharashtra : 1982CriLJ150 that what is required is that the detaining authority is to satisfy the Court that it had, in mind the question whether the prosecution of the offender was possible and sufficient in the circumstances of the case. It was recognised that in some cases prosecution may not be possible to bring home the culprit to book as witnesses may not come forward to depose out of fear or it may not be possible to collect necessary evidence without unreasonable delay. In the case before the Court, in the counter-affidavit awareness of prosecution was shown. The statement in the affidavit was accepted to satisfy the requirement of the law.

12. In the case at hand, as no allegation or averment was made about the possibility of prosecution, in the return filed there is no mention as to whether prosecution was possible and sufficient. Judicial notice may, however, be taken of the fact that it would be quite difficult in the prevailing circumstances of Mizoram to bring home such culprits to book because it may be difficult to get witnesses to come forward to depose in such cases, out of fear. This being the position, we are of the view that recourse to preventive detention in a case like the present one, cannot be said to be due to non-application of mind on this vital question.

13. In the result, we are not persuaded to accept any of the submissions and the petition stands dismissed.

T.N. Singh, J.

14. I agree with the order proposed by my learned brother Hansaria, J. But I feel inclined to add a few words of my own on one aspect of the matter to buttress the conclusion arrived at by him. What I feel is that taking too technical a view generally in the matter of preventive detention is helpful neither to the State, nor to the society, nor even to the citizen. Personal liberty is man's birth right which is loudly proclaimed in unequivocal terms in national Constitutions particularly of almost all the third world countries as well as in the International Human Rights documents. It is not the gift of law. Law, it is universally recognised, merely regulates it. It is, therefore, best protected if the law is exposed at times and not allowed to remain encased in clinches and cants even of legal contour because it is necessary to define the ambits of the legal restraints to check the possible misuse thereof.

15. What I feel in the context of the facts of this case is that the test of subjective satisfaction is not to be viewed merely in technical sense. It is, I feel, amenable to empirical analysis. It is possible, and at time rather necessary, to pierce the time-hardened crust of forms to reach the heart of the matter when a doubt arises in any case or a new factsituation surfaces compelling the court to view the matter from a fresh perspective. In this case the court is faced with such a fact-situation and a factual projection of the test of subjective satisfaction, is, therefore, called for. I do so as below :

There is a situation warranting immediate preventive action to achieve one or more of the 'objectives' defined by law for the protection of the State or the society. It is noticed by the prescribed authority that certain activities of a person are defeating any one or more of the defined objectives. The authority then decides to exercise its power under the law to detain such person to prevent him from indulging in any further activity which may, in his opinion, defeat any one or more of the legal objectives. Thus, before passing the order of detention he must first apply his mind to the offensive activities ('grounds') and then look to the Jaw to see if he has the power to do so by referring to the legal objectives. Thus, in an order for preventive detention there may be a mention of more than one objective and there also may appear one or more grounds. On account of neither plurality of 'objectives' nor of the 'grounds', the subjective satisfaction can be said to be tainted.

16. Whether the satisfaction is 'real' or not is to be ascertained from the manner of treatment by the authority of the materials ('objectives' and 'grounds') before him when he passed the order of detention. It has to be seen if he has formed his opinion with the due care and caution and not in a caveliar manner. Thus, if there are two 'objectives' mentioned, in the order and there are eight 'grounds' of which only six are relatable to one or the other 'objectives' it may be contended that the satisfaction was not 'real' as the fact that due care and caution was not exercised appeared on the face of the 'objective-ground' combination. But, in a case where there is only one 'objective' mentioned in the order and there are several 'grounds' which are all relatable to the stated objective the mere fact that the 'grounds' also mentioned another 'objective' which is not stated in the order will not indicate that the satisfaction was not real, because, 'power' is exercised with reference to the 'objectives'. If the grounds are to be tested with reference to the stated 'objective' as is the settled law and if all the grounds are found, to be relatable thereto, it is apparent that the 'objective' so mentioned is not to be treated as a part of the 'grounds'. Moreso, because the 'grounds' are the 'facts' which indicate the 'activities' which the authority consider offensive and therefore mere mention in the 'grounds' of any of the 'objectives' will not indicate that the satisfaction was not real if all the 'grounds' are relatable to the sole objective mentioned in the order. Here, in this case, security of State is the sole 'objective' mentioned, in the order and all the 'facts' or 'activities' itemised under ground No. 2 are relatable to the stated objective. It does not appear to me that in forming its opinion to detain the petitioner the authority concerned did not have only these 'facts' or 'activities' in its mind, as the expression 'public order' finds mention only incidentally in ground No. 2 without any 'fact' or 'activity' relatable to the said expression being also itemised. I am, therefore, in respectful agreement with the conclusion arrived at by my learned brother that the satisfaction in this case is neither tainted nor unreal.


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