Skip to content


Atul Chandra Koch Etc. Vs. District Magistrate, Dibrugarh and ors. - Court Judgment

LegalCrystal Citation
Subject;Constitution
CourtGuwahati High Court
Decided On
Case NumberCivil Rule Nos. 63 (HC) and 64 (HC) of 1981
Judge
ActsNational Security Ordinance, 1980 - Sections 3 and 3(2); Constitution of India
AppellantAtul Chandra Koch Etc.
RespondentDistrict Magistrate, Dibrugarh and ors.
Appellant AdvocateS.N. Medhi, B.P. Borah, P. Pathak and U. Baruah, Advs.
Respondent AdvocateD.N. Choudhury and P. Prasad, Advs. and A.K. Choudhury, Govt. Adv.
DispositionPetition allowed
Excerpt:
.....and services essential to the community. it is true that there is another relative purpose, namely, maintenance of sen-ices and supplies'.to the intertwining or mingling of relevant and irrelevant purposes of detention, the rule of severally would not apply, the whole of the order of detention must fail......of the grounds or to substitute an objective judicial test for the subjective satisfaction of the executive authority. though the executive is supreme in this field vet no shortfall no casual and careless or uninformed disposal of others freedom is permitted to be allowed. the ordinance confers extraordinary powers on the executive to detain a person without recourse to the ordinary laws and without trial in an open court. such a power places personal liberty in extreme peril against which the detenu is provided with a limited right of challenge. to keep the delicate balance between social security and citizen's freedom it is imperative for the court to construe such a law strictly and to examine meticulously whether the powers exercised by the executive have been carried out.....
Judgment:

Lahiri, J.

1. The Habeas Corpus applications preferred by the detenus were heard together on 23-2-1981 as they involved common questions of law and facts. Upon hearing the Counsel for the parties we issued Writs of Habeas Corpus to liberate the petitioners with an observation that a reasoned judgment would follow. The reasons to bear up the order of release are now set forth.

2. The' petitioners were detained under Section 3(2) of the National Security Ordinance. 1980 (II-hereinafter referred to as 'the Ordinance', by the District Magistrate, Dibrugarh 'with a view to preventing' them 'from acting in manner prejudicial to the public order

and the maintenance of supplies and services essential to the community'. Later, the grounds were furnished by the detaining authority who bottomed the grounds that the detenus had been acting 'in a manner prejudicial to 'the maintenance of law and order and maintenance of supplies and services essential to the community'.

3. It follows that when the detention orders were passed the Detaining Authority considered their detention necessary for preventing them from acting in a manner prejudicial to the public order whereas on appraisal of the basic materials or the grounds he was satisfied that the acts of the petitioner were prejudicial to the maintenance of 'law and order' and maintenance of supply and

services essential to the community.

4. In a plethora of creative pronouncements the Supreme Court has built into the vast powers vested in the Executive under the Preventive Detention Laws, legal or constitutional breakwaters, blinkers and bulwarks which have extensively humanised the harsh authority over personal liberty that otherwise exercisable arbitrarily by executive fiat. Judicial vigilance is the price of liberty and freedom of the person is the founding faith of our Republic. The Constitutional mandates and the pronouncements of the Supreme Court command us under Article 141 of the Constitution to examine the legal circumstances of the detention in the light of the constitutional constraints and the procedural safeguards of the Preventive Detention Laws. The three broad purposes for which the power of Preventive Detention may be legitimately exercised under 'the Ordinance' are (i) the security of India/security of State; (ii) maintenance of public order, and, (iii) maintenance of supplies and services essential to the community. Neither Entry 9,

List I nor Entry 3 of List III confers on legislatures to make any law relating to preventive detention for reasons connected with the maintenance of law and order 'and persons subjected to such detention'. Non-conferment of such power is obvious- If the law and order problems were allowed to be controlled by or under the preventive detention laws the executive would have surely taken recourse to the extraordinary machinery of detention without trial on bare subjective satisfaction rendering the ordinary criminal law otiose, futile and superfluous. It follows therefore that detention for the purpose of 'law and order' is foreign to the preventive detention of laws. Further, the provisions of Section 3 of 'the Ordinance' do not empower the Government or their officers to make any order of detention for preventing a person from acting in any manner prejudicial to the maintenance of 'law and order'. Although the maintenance of public order is a large umbrella under which a variety of interests parade yet it does not take within its fold 'law and order'. It is the consistent and persistent rule of the Supreme Court since 'the Cross Road case', namely. Romesh Thappar v. State of Madras, AIR 1950 SC 124.

The sole authority to form the requisite opinion to detain a person under 'the Ordinance' rests with the Government or the officers authorised. Indeed, this court is prohibited to enter in that domain to reconsider the sufficiency of the grounds or to substitute an objective judicial test for the subjective satisfaction of the executive authority. Though the executive is supreme in this field vet no shortfall no casual and careless or uninformed disposal of others freedom is permitted to be allowed. The Ordinance confers extraordinary powers on the Executive to detain a person without recourse to the ordinary laws and without trial in an open court. Such a power places personal liberty in extreme peril against which the detenu is provided with a limited right of challenge. To keep the delicate balance between social security and citizen's freedom it is imperative for the court to construe such a law strictly and to examine meticulously whether the powers exercised by the executive have been carried out scrupulously with extreme care and caution within the bounds laid

down in such a law- There must be 'bona fide satisfaction' about the prejudicial activities of the detenus. Absence of bona fide in this context does not mean proof of malice, or, an order can be mala fide although the officer is innocent. The satisfaction of the public functionary, though subjective must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects and purposes enumerated in Section 3(2) of 'the Ordinance'. The detention order and the grounds require closest scrutiny of the materials on which the decision is formed leaving no room for errors or at least avoidable errors. Tyson Edward's quip, 'Accuracy is the twin brother of honesty, inaccuracy is a near kin to falsehood' may not be true for all occasions but the statement is very helpful and ought to be borne in mind while considering the grounds of detention.

5. In this backdrop let us examine the detention order passed against the petitioners. The detention orders were for the 'public order'. Indubitably the petitioners were arrested on the subjective satisfaction that the detentions were necessary for the purpose of public order. The Detaining Authority was misinformed or had exercised the power mechanically without application of his mind or at least demonstrated elements of casualness as the grounds of detention do not show any material in support of the said object/purpose of detention. The Detaining Authority himself bottomed the grounds for detention not for the purpose of public order but for a completely different purpose, namely, 'law and order'. Under these circumstances the order of detention must be held to be invalid as mechanical exercise without application of mind or exercise of power in a casual manner. The grounds conclusively establish that the detention was for the maintenance of 'law and order' and not for the public order. Some of the grounds may perhaps have some connection with the law and order, but 'the concept of law and order is not identical with the concept of public orders vide Bhupal Ohandra Ghosh v. Arif Ali. AIR 1974 SC 255 (256). It follows therefore that the detentions were for the purpose of maintenance of law and order. No detention under 'the Ordinance' is permissible for the said 'purpose'. As such, the order of detention are invalid as the Detaining Au-

thority had no jurisdiction vested in it by law to detain a person under 'the Ordinance' for the said purpose. It is true that there is another relative purpose, namely, 'maintenance of sen-ices and supplies'. To the intertwining or mingling of relevant and irrelevant purposes of detention, the Rule of severally would not apply, the whole of the order of detention must fail. When one purpose is not germane to the Ordinance whereas the other one is, to say that the other purpose which survives is sufficient to sustain the order would be to substitute the objective judicial test for the subjective satisfaction of the Executive Authority which is against the legislative policy behind 'the Ordinance'. In such cases, we think the position would be the same as if one of these two purposes was irrelevant for the purpose of 'the Ordinance' and this would vitiate the detention order as a whole.

6. These were the reasons for which we issued Writs of Habeas Corpus to liberate the petitioners upon holding the orders of detention as invalid.

D. Pathak, Ag., C.J.

7. I agree.


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