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Madhu Vs. the Commissioner of Police, Thane and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petns. Nos. 112 and 186 of 1984
Judge
Reported in1986(2)BomCR365
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 7; Indian Penal Code (IPC), 1860 - Sections 34, 323, 325, 326 and 394; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act - Sections 5A
AppellantMadhu
RespondentThe Commissioner of Police, Thane and Another
Excerpt:
criminal - detention - section 7 of criminal procedure code, 1973, sections 34, 323, 325, 326 and 394 of indian penal code,1860 and section 5a of conservation of foreign exchange and prevention of smuggling activities act - writ petition filed by detenu against order of detention - acts involving detenu as described in various incidents cannot be treated as mere individual and isolated acts - acts show tendency to disturb tempo of life of community which makes such acts prejudicial to maintenance of public order - mere fact that in one case order of detention executed before insertion of section 5a and another is executed after ordinance cannot make any difference - order passed by detaining authority justified - petition liable to be dismissed. - - on 15-9-1983 the complainant along.....shah, j.1. in these two petitions under art. 226 of the constitution one filed by the detenu madhu @ mahadu mangel tare and the other by the detenu prakash @ pakya dharamji kalyankar seek to challenge the orders of detention issued against them under s. 2 and s. 3 of the national security act, 1980 (for brevity called 'the act').2. a common question of law as to the interpretation of the provisions of the national security act (2nd amendment) ordinance no. 6 of 1984 whereby the said act is amended, arises in both these petitions. it would, therefore, be convenient to dispose of these two petitions by a common judgment. before we proceed to consider the provisions of the said ordinance it would be necessary to state the facts relating to the two petitions before us. before we take up for.....
Judgment:

Shah, J.

1. In these two petitions under Art. 226 of the Constitution one filed by the detenu Madhu @ Mahadu Mangel Tare and the other by the detenu Prakash @ Pakya Dharamji Kalyankar seek to challenge the orders of detention issued against them under S. 2 and S. 3 of the National Security Act, 1980 (for brevity called 'the Act').

2. A common question of law as to the interpretation of the provisions of the National Security Act (2nd Amendment) Ordinance No. 6 of 1984 whereby the said Act is amended, arises in both these petitions. It would, therefore, be convenient to dispose of these two petitions by a common judgment. Before we proceed to consider the provisions of the said Ordinance it would be necessary to state the facts relating to the two petitions before us. Before we take up for consideration the provisions incorporated in the Ordinance we would prefer to deal with the submissions which are unrelated to the Ordinance first.

Criminal Writ Petition No. 112 of 1984 :

3. In this petition the detenu has challenged the order dt. September 23, 1983, passed by the Commissioner of Police, Thane, under sub-section (2) of S. 3 of the Act directing detention of the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order. The order was served on the detenu the same day. The grounds of detention were also communicated to the detenu the same day at the time of serving the order of detention on him. By order dt. October 1, 1983, the Government of Maharashtra approved the said order made by the detaining authority. The grounds communicated to the detenu are as under :

1. You are a worker in 'Ajantha Paper' Company in which you and your associates were trying to bring Dr. Datta Samant's Maharashtra General Kamgar Union since 1982. As you were indulging in go slow, violent and terrorising activities against the loyal workers of the Ajantha Paper Mill Company, situated at Vadavali village, the Management of the said Company had suspended you and your associates with effect from 20-9-1982. Therefore, you again started your violent activities of assaulting the loyal workers and thereby created a reign of terror at Vadavali Village in Kalyan. The loyal workers of the company do not dare even to come out of the factory premises due to your threatening and terrorising activities which can be seen from the below mentioned incidents.

(a) Complainant Shri Moharamkhan Munirkasan Khan was a watchman in Ajantha Paper Mill, Vadavali. On 24-9-1982 at about 1915 hrs. when the complainant and other workers were going to attend their duties in company's motor car, you and your about 20 associates formed an unlawful assembly and way laid the motor car, dragged out the occupants of the car and assaulted the complainant and others with fist blows and sticks and caused them injuries. You also terrorised the loyal workers in order to restrain them from lawful duties, by using criminal intimidation against the loyal workers. In this connection on the complaint of Shri. Moharamkhan an offence at M.F.C. Police Station C.R. No. I 574/1982 u/ss. 341, 147, 149, 523, I.P.C. and Criminal Law Amendment Act S. 7 was registered. During the investigation you and your 15 associates were arrested and charge-sheeted in the court of law on 4-10-1982. The case is sub judice.

(b) During the lockout of 'Ajantha Paper Mill' Vadavali, complainant Shri. Rajkumar Ray was searching for the job in other factories. On 9-12-1982 at about 10.00 hrs. you and your 2 associates assaulted him with fist blows and threatened him with dire consequences on the reason that the complainant was searching for another job. On the complaint of Shri. Rajkumar Ray, a Public Non-cog. complaint No. 2141-82 u/ss. 325, 504, 506 I.P.C. was registered at Mahatma Phule Chowk Police Station, Kalyan.

(c) Complainant Shri. Mansing Amarbahadursing is working as a Supervisor in 'Ajantha Paper Mill' Vadavali, Kalyan. On 11-11-1983 at about 11.30 hrs. complainant along with S/Shri Pradeep Mukherjee, Ranjitkumar Bhagwandas Sachadeo was going in company's motor car towards Ajantha Paper Mill. When the motor car was passing by the side of Vadavali Rly. crossing gate, you and your three associates asked the driver to stop the motor car. However, as the driver did not stop his motor car, you and your associates got annoyed and indiscriminately hired stones on the motor car with the result the complainant and Shri Ranjitkumar Sachadeo sustained head injuries and also the car was damaged to the tune of Rs. 350/-. In this connection an offence at M.F.C. Police Station C.R. No. 121-1983 u/ss. 336, 357, 427, 34 I.P.C. and S. 7 of the Criminal Law Amendment Act was registered. During the course of investigation you and your associates were arrested and charge-sheeted in the court of law of 9-2-1983. The case is sub judice.

(d) Complainant Shri Bandu Narayan Desale was working as a worker in Ajantha Paper Mill, Vadavali. On 13-1-1983 at about 19.30 hrs. when the complainant and other workers of the company were having dinner in the hotel situated just near the Ajantha Paper Mill, Vadavali, you along with your 10/12 associates formed an unlawful assembly assaulted the complainant and other workers with sticks and caused them injuries only on the ground that they were working in Ajantha Paper Mill. You also set on fire a heap of grass lying near Vadavali village and thereby criminally intimidated and terrorised the loyal workers. In this connection an offence at M.F.C. Police Station, Kalyan C.R. No. I 28/1983 u/ss. 147, 148, 149, 435, 423 I.P.C. and S. 7 of the Criminal Law Amendment Act was registered. In this case, you and your 7 associates were arrested and charge-sheeted in the court of law on 14-2-1983. The case is sub judice.

(e) Complainant Shri Vinod Hargovind Mahad @ Bihari is working as an Operator in Ajantha Paper Mill at Vadavali, Kalyan. On 15-9-1983 the complainant along with co-workers Sakharam Shankar Ingawale and Sharadprasad Ramesh Kurmi had been to Kalyan to enjoy Ganpati festival. After witnessing various idols of Ganpati at Kalyan, they were returning to the factory. At about 2030 hrs., when they came near the gate of company, you and your 5 associates formed with iron bar, knives, formed an unlawful assembly and assaulted the complainant causing him head injury and fracture of left leg. You and your associates also assaulted co-workers S/Shri. Sakharam Ingawale and Sharadprasad Kurmi causing them head injuries and on chest respectively. In this connection an offence at M.F.C. Police Station, Kalyan C.R. No. I 421/1983 u/ss. 147, 149, 326 I.P.C was registered. During the course of investigation you and your associates were found criminally intimidating the loyal workers of the Ajantha Paper Mill and disturbing the public order in the localities and industrial complex at Vadavali. Therefore, you were arrested in this case which is pending investigation.

2. From the above incidents it will be seen that you are a desperate worker resorting to violent and terrorising activities due to which the loyal workers of Ajantha Paper Mill are feeling insecure and the atmosphere of terror is prevailing in the premises of Ajantha Paper Mill at Vadavali and the adjoining area and localities in Kalyan town. Due to yours terrorising activities, 'the public order in the above localities is disrupted and therefore there is no other alternative' but to detain you under the provisions of the National Security Act, 1980, to allay the fear in the minds of terror-striken workers in the industrial complex Vadavali and the residents of the above localities.'

4. Mr. Malvankar, the learned counsel appearing for the detenu has submitted that none of the grounds has any rational connection with the aspect of maintenance of public order. According to him, these incidents have arisen out of a labour dispute between the employees and the Management and at the most it can be said that they have some relation with the maintenance of law and order. It is not possible to accept this submission. A perusal of the incidents clearly go to show that they have taken place at a public place and the intention was to create terror in the minds of the employees who did not support the union to which the detenu belonged. Thus all these incidents read together clearly go to show that they affected a fairly large segment of the society viz. the employees residing in the industrial complex. It is not necessary that each and every member of the public in the locality should be affected in order to draw the conclusion that the prejudicial activity is likely to affect the maintenance of public order. The incidents clearly go to show that they have taken place near about the industrial complex and were intended to strike terror in the minds of the workers of the factory. It is not a case of individual dispute or an isolated incident which has no bearing to the aspect of the public order. The incidents show that the intention was to create fear in the minds of the loyal workers i.e. workers who did like to work in the factory and further who were reluctant to join the labour union to which the detenu belonged. The incidents are clearly of a grave nature and involved the detenu and his associates on one side and the workmen who were opposed to them on the other. We, therefore, see no merit in the contention that the incidents relied on by the detaining authority have no rational connection with the maintenance of public order.

5. It was next contended that the term 'loyal' referred to in the grounds is vague. There is no substance in this connection since the term is used in relation to employer and employee relationships and the word 'loyal' workers means those who are not willing to join hands with the striking employees or those who wish to raise a dispute with the Management.

6. It was then contended that as regards incident of December 9, 1982, the first information report does not refer to his full name, but only refers to 'Madhu' as one of the accused persons. Now, it is not disputed that except the first information report there was no other material in relation to this incident placed before the detaining authority. There is nothing to show that the person by name Madhu mentioned in the first information report is the detenu. The possibility of another person having the name 'Madhu' cannot be ruled out. In the absence of any material to connect the accused referred to in the first information report as being the detenu himself, it will have to be held that this incident relied on by the detaining authority against the detenu is based on no material since there is nothing to indicate the identity of the detenu as the person taking part in the incident. This ground is, therefore, invalid.

7. As regards the incident of November 11, 1983, it was tried to be contended that the said incident had not taken place in a public place. It is quite clear that the incident as disclosed shows that it had taken place by the side of the railway crossing on the road which is obviously a public place. The incident discloses that the detenu along with his associates indiscriminately hurled stones on the company's motor car carrying the complainant and the other workmen towards the factory.

8. Then as regards the incident of January 13, 1983, Mr. Malvankar contended that the said ground discloses a total non-application of mind on the part of the detaining authority inasmuch as the only material connecting the detenu with that incident is the charge-sheet where his name is mentioned as one of the accused, whereas the two statements in relation to that incident placed before the detaining authority do not specifically refer to the name of the detenu as one of the assailants. We see no merit in this contention since the charge-sheet also is a material and such material could be relied on by the detaining authority. The mere fact that additional material such as the statements of other witnesses who had implicated the detenu in the incident were not placed before the detaining authority cannot be a ground to hold that the detaining authority had not applied his mind to the material placed before it. So long as the material which could be validly relied on is placed before the detaining authority and is relied on by him, the contention of non-application of mind on the part of the detaining authority cannot be accepted.

9. It was lastly submitted that the grounds do not disclose that the detaining authority had reached the subjective satisfaction that it was necessary to detain the detenu with a view to preventing him from acting prejudicial to the maintenance of public order. Now it is true, para 2 of the grounds which has been quoted above does not specifically use the language of sub-section (2) of S. 3 viz. that the detaining authority was satisfied that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. However, in our view, reading the para as a whole the same thing has been expressed in another language. There is a clear reference to the violent and terrorising activities of the detenu, the feeling of insecurity and the atmosphere of terror prevailing in the factory premises and the adjoining area of the town and the consequent disruption of the public order in the above localities. It is stated that for these reasons there was no 'alternative' but to detain the detenu under the Act in order to allay the fear in the minds of the terror-striken workers in the industrial complex and the residents of the localities in question. It was suggested that the use of the word 'alternative' indicates that the detaining authority wanted to inflict a punishment by way of detention. It is not possible to accept this interpretation, particularly having regard to the language used and considered in its totality. Further the order of detention clearly mentions that the detaining authority was satisfied with respect to the detenu that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order directing him to be detained under the Act. Thus it cannot be said that it is an afterthought that such a contention of satisfaction has been taken for the first time in the affidavit in reply. We are, therefore, not impressed by the submission advanced by the learned counsel that the order is vitiated by reason of the non-mention of the satisfaction of the detaining authority in the language used in the section.

10. In the result all other contentions urged by the learned counsel except as to the invalidity of the ground in relation to the incident of December 9, 1982, are rejected and as the law stood prior to the promulgation of the National Security (Second Amendment) Ordinance, 1984, the entire order would have been vitiated. However, in view of the provisions of S. 5A which has been inserted in the Act by the said Ordinance the order of detention must be deemed to have been made separately on each of the grounds and merely because one of the grounds is held invalid the order as above is not vitiated and has to be maintained. Now, we may mention at this stage that it is contended that S. 5A does not apply to a person who is already in detention on the date of coming into force of the Ordinance as it does not apply to a case where the order of detention has taken place prior to the commencement of the Ordinance. The contention raised before us is that S. 5A would apply only to cases of detention where the order is passed prior to the Ordinance, but execution of the order takes place after the coming into force of the provisions of S. 5A under the Ordinance and since in this case admittedly the order of detention as well as the execution of the order are prior to the coming into force of the Ordinance, S. 5A would have no application and the order of detention is vitiated by reason of the invalidity of even a single ground. This contention has also been raised in the companion petition and we will deal with the same in the paras that follow :

Writ Petition No. 186 of 1984 :

11. In this case the detenu Prakash alias Pakya Dharamji Kalyankar has challenged the order of his detention Dt. October 5, 1983, passed by the Commissioner of Police, Thane. The detenu was served with an order on the same day i.e. October 5, 1983. Along with the order the detenu was also served with the grounds of detention. The grounds communicated to the detenu are as under :

'1(a). On 7-11-1981 between 21.30 to 22.00 hours, complainant Shri. Yeshwant Pundalik Kapase resident of Wadeghar was returning from Azad Tailor, Shankarrao Chowk, Kalyan. When he come near Home Guards Office, Kalyan, your associate Anant Davade dashed against him and, therefore, there was a hot exchange of words between you and the complainant. During the scuffle, your associate Anant Bavade gave 3/4 fist blows to the complainant. You also caught hold of him at the point of knife and your associate Bewa Navare stabbed him with a knife on his buttock and caused him grievous injury. In this connection, an offence at Bazarpeth Police Station C.R. No. I-363/1981 under Ss. 326, 34. I.P.C. was registered. During investigation, you and your associates (1) Revanath @ Rewa Navare and (2) Anant Govind Bavade were arrested and charge-sheeted in the court of law on 29-11-1981. The case is sub judice.

(b) On 7-7-1982 at about 15.00 hours, complainant Shri. Gopinath Balu Chikanakar resident of Umbarde village had been to New Prakash cinema talkies to witness a movie along with his friends (1) Gulam Kundalik Lokhande, (2) Kathod Rajaram Bhandari While entering the auditorium of cinema talkies, there was altercation between your associates and the door keeper Narayan Laxman Bhoir and witness Kathod Rajaram Bhandari. Therefore, when the complainant and his friends were seated in the chairs, you along with your two associates went to them with open knife and hockey sticks and enquired with them as to where they were residing. Shri. Kathod replied that they were from Umbarde village. Upon this, you slapped the complainant and stabbed him with the knife and caused injury on his right thigh. Your associate Digambar alias July Madhukar Borade also gave a fist blow to witness Shri. Kathod Rajaram Bhandari and caused him injury on his lips. In this connection, on the complaint of Shri. Gopinath Balu Chikankar, an offence at Bazarpeth Police Station C.R. No. I-216/82 and under Ss. 326, 34 I.P.C. was registered. During the investigation, you were arrested and a knife which was used in the commission of offence was recovered from you. After due investigation, were charge-sheeted in the Court of law on 23-7-1982. The case is sub judice.

(c) On 27-10-1982 at about 22.30 hrs. complainant Shri Shivaji Baliram Mhatre and his friends S/Shri (1) Shivram Motiram Mhatre, (2) Shri Manohar Parshram Mhatre and Suresh Krishna Karale were returning to Kon village after attending 'Navratra Utsav' at Kalyan. When they came near, New Prakash Cinema Talkies, you, your brother Naresh and the other associates armed with sword and hockey sticks came all of a sudden from Kumbharwada lane and assaulted the complainant Shri Shivaji Mhatre with hockey sticks and forcibly removed his golden chain and wrist watch valued at Rs. 2,430/- from his person. In this connection an offence at Bazarpeth Police Station C.R. No. I-340/1982 under Ss. 394, 34 I.P.C. was registered. During the investigation, you were arrested and charge-sheeted in the Court of law on 18-11-1982. The case is sub judice.

(d) On 9-11-1982 at about 22.00 hours, in the premises of New Prakash Cinema Talkies Kalyan you, your brother Naresh and associates Suresh Ramchandra Jambhale @ alias Palke assaulted complainant Shri Ajit Manohar Vyawahare resident of Ahilyabai Chowk, Kalyan with hockey stick, iron bar and a knife and caused injuries to his left knee resulting in dislocating of bones. In this connection, an offence at Bazarpeth Police Station C.R. No. I-365/1982 under Ss. 325, 34 I.P.C. was registered. During the investigation, you and your associates were arrested on 1-12-1982 and recovered iron bar and a knife from you. In this case, you were charge-sheeted in the Court of law on 21-1-1983. The case is sub judice.

(e) Complainant Shri Subhash Babaji Joshi resident of Chikhale Baug, Agra road, Kalyan, took Rs. 30,000/- as a loan from Shri A. T. Balam for his business of building contracts. Shri Joshi repaid a part payment of Rs. 6,000/- out of Rs. 30,000/- to Shri Balam and balance of Rs. 24,000/- could not be paid due to some difficulties.

On 28-5-1983 between 13.15 hours to 13.45 hours Shri A. T. Balam along with you and your 7/8 associates went to the residence of Shri Subhash Joshi and took him to Kumbharwada, Kalyan on a false pretext. On arrival near a ground at a Kumbharwada, you and your associates armed with hockey sticks, cable wire, cycle chain etc. formed an unlawful assembly and assaulted the complainant and caused him injuries on his face, chest, back and right leg. Further the complainant Shri Joshi was wrongfully confined forcibly and threatened him with dire consequences if he would not pay the balance of Rs. 24,000/- to Shri Balam till evening. However, P.S.I. Kambale and other staff of Bazarpeth Police Station, Kalyan on information rushed to the spot in time and arrested you and your associates (1) Shashikant Raghorao Bavade, and (2) Digamber alias July Madhukar Borade. After due investigation you and your associates were charge-sheeted in the Court of Law on 4-8-1983. The case is sub judice vide Bazarpeth Police Station C.R. No. I-166/1983 under Ss. 143, 147, 148, 393, 342, 323, I.P.C.

(f) On 5-8-1983 at about 15.30 hours, the complainant Shri Raju Bhalchandra Joshi resident of Kala Talav went to a cycle shop of Shri Vijay Bhosale to bring a screw-driver. However, Vijay Bhosale was not in the shop; but his servant Namdeo Khatuk was present in the shop. In the meantime, you along with your associates Digamber alias July Madhukar Borade and (2) Anant Govind Bavade armed with swords entered the cycle shop and enquired with Shri Namdeo Khatuk about Shri Vijay Bhosale. As Shri Khatuk replied in negative you got annoyed and assaulted the complainant with sword and caused him injuries on his right hand and waist. You were also found carrying lethal weapons i.e. swords in a public place in contravention of prohibitory orders issued by the Commissioner of Police, Thane. In this connection, an offence at Bazarpeth Police Station C.R. No. I 122/1983 under Ss. 324, 34 I.P.C. and Ss. 37(1), 135 of the Bombay Police Act was registered. During the investigation, you were arrested and swords were recovered at the instance of your associate Revanath Dashrath Davade. After the due investigation, you and your associates were charge-sheeted in the court of law on 6-9-1983. The case is sub judice.

2. From the above facts and as a result of your violent activities, the residents of the localities in Kalyan within the jurisdiction of Bazarpeth Police Station are experiencing a sense of insecurity. In spite of number of prosecutions, you have not refrained from indulging in violent activities. Due to your violent and terrorising activities, the public order in the above mentioned areas is disrupted and, therefore, there is no other alternative but to detain you under the provisions of the National Security Act 1980 (No. 65 of 1980).

12. Mr. Chitnis the learned counsel appearing for the detenu challenged each of the grounds as invalid. As regards the first ground he submitted that whereas the incident relied on is dt. November 7, 1981, the impugned order of detention has been passed almost two years thereafter. He also submitted that there was considerable gap between the said incident and the next incident which took place on July 7, 1982. It was, therefore, contended that this ground is a stale ground which could have been relied on by the detaining authority. We see considerable substance in this contention. Having regard to the time-lag between the first incident dt. November 7, 1981, and the second incident of July 7, 1982, and also the time-lag between the first incident of November 7, 1981, and the date of the detention order it must be held that it is a stale ground and could not have been relied on by the detaining authority. The ground based on the incident of November 7, 1981, must, therefore, be held to be invalid on the ground of staleness.

13. As regards the incident of July 7, 1982, it was submitted that the assault was on a specified individual and the incident also arose as the result of some altercation between the associates of the detenu and the door keeper of the theatre. The counsel contended that it cannot be said that this incident has any rational connection with the aspect of the maintenance of public order since it cannot be said that the even tempo of life of the society as a whole is not affected. It is not possible to accept this contention. In the first place the incident took place at a public place and looking to the manner in which the detenu and his associates started the incident and caused serious injuries to persons referred to in the ground and the weapons used it is clear that it was a deliberate attack with a view to create terror in the minds of the people who had come to the theatre to watch the movie. Moreover, this incident cannot be read in isolation and has to be viewed in the light of other incidents of a similar nature which took place thereafter. These incidents have been quoted in extenso above. The subsequent incidents also took place at the theatre and in those incidents the detenu and his associates armed with weapons, swords, hockey sticks, iron bars and knives assaulted different persons. We, therefore, reject the submission that this incident has no relation with the maintenance of public order, but merely involves law and order.

14. As regards the incident of October 27, 1982, it was contended that it was a case of mere assault and not dacoity as is sought to be projected. The ground shows that in the incident the detenu and his associates not only assaulted the complainant with hockey sticks, but forcibly removed his gold chain and wrist watch valued at Rs. 2,430/-. This is, therefore, not merely a case of assault and it cannot be said that the detaining authority did not apply his mind to the material in respect of the said incident placed before it.

15. As regards the incident of November 9, 1982, it was contended that the ground was vague because it is not specifically stated as to who caused a particular injury. There is no substance in this contention. The mere fact that it is not possible to connect the detenu or his associates with the particular injury caused in the assault it cannot render the ground vague.

16. As regards the incident of May 28, 1983, it was submitted that it was a case of individual dispute and the assault was intended either to recover the moneys which were due from the complainant to Shri Balam or to take revenge against him for his failure to pay the dues to Balam. Looking to the number of assailants, the weapons used by them and the injuries caused to the complainant Shri Joshi and the tendency to disrupt the maintenance of public order disclosed by such an incident it cannot be said that the incident should be viewed as the one affecting the law and order. It was pointed out that one of the offences mentioned in the said ground is only S. 323 of the I.P.C. However, it can be found from the charge-sheet that the offences registered is not only under S. 323, but also under Ss. 143, 147, 148, 393 and 342 of the I.P.C.

17. Then as regards the incident of August 5, 1983, referred to in the grounds it was submitted that one of the offences said to have been committed is under S. 37(1) read with S. 135 of the Bombay Police Act. According to the learned counsel there is a clear distinction between sub-section (1) of S. 37 and sub-section (3) of S. 37. Whereas sub-section (1) refers to the preservation of public safety sub-section (3) refers to the preservation of the public order and since it is not the allegation that the detenu contravened sub-section (3) of S. 37, on the face of it the whole incident cannot be said to have any relation to the aspect of maintenance of public order. There is no substance in this contention. The breach of the order issued under sub-section (1) of S. 37 is only one aspect of the offence committed by the detenu. In the incident he has committed other offences viz. under S. 324 read with S. 34 of the I.P.C. and the nature of the incident clearly discloses a tendency on the part of the detenu and his associates to commit serious offences even without any provocation or on slightest provocation. The incident read as a whole clearly indicates potentiality of disrupting the public order.

18. In Ashok Kumar v. Delhi Administration, : 1982CriLJ1191 , it has been pointed out that (at p. 1195 of Cri LJ) :-

'The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.'

19. The acts involving the detenu as described in the various incidents cannot be treated as mere individual and isolated acts and not affecting the society. They clearly show a tendency to disturb even tempo of the life of the community which makes such acts prejudicial to the maintenance of public order.

20. It was then contended by the learned counsel that para 2 of the grounds clearly discloses a total non-application of mind the detaining authority and also shows that the detaining authority considered the detention as a punishment for the unlawful acts attributed to the detenu. Now, it is true that the detaining authority has used the expression 'there is no other alternative but to detain' and has not specifically stated that having regard to the past activities he had reached the subjective satisfaction to detain him with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. However, para-2 of the grounds containing the above mentioned expression has to be read as a whole and mere absence of the specific language of sub-section (2) of S. 3 cannot disclose non-application of mind on the part of the detaining authority nor can it be said that the detaining authority has not reached the requisite subjective satisfaction. In our view, the contents of para-2 clearly express the requisite satisfaction on the part of the detaining authority though in different language. Furthermore, it is not possible to accept the submission that the use of the word 'alternative' in para 2 of the grounds indicates the detaining authority decided upon the detention as an alternative to punishment. The detaining authority having reached the requisite subjective satisfaction is also clear from the contents of the order of detention issued, simultaneously wherein it is clearly mentioned that 'the detaining authority is satisfied that it is necessary to make an order directing detention of the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.' This is also mentioned in the affidavit in reply. It cannot be said that it is an afterthought as being raised for the first time in the affidavit in reply.

21. Now, the question is whether our finding that one of the grounds which is invalid vitiates the entire order in view of S. 5A which has been inserted in the Act by an Ordinance. If S. 5A is not applicable then under the well settled principles governing the law of detention, even if one of the grounds is invalid for any reason whatsoever the entire order must fail since it is not possible to hold that the detaining authority making such order is satisfied with respect to the remaining grounds as provided in S. 3. In other words it is not possible for the Court to predicate whether the detaining authority would have passed the order on the basis of the remaining valid grounds and, therefore, the order must fail as a whole even where one or more grounds are held to be invalid and some of the grounds are held to be valid and can be the basis of the requisite subjective satisfaction.

22. In order to appreciate the submissions of the learned counsel as to the non-applicability of S. 5A to the present case it is necessary to refer to the relevant provisions of the Act as they stood before the amendment and after the amendment. Section 3 of the Act deals with the power to make orders detaining certain persons. Under sub-section (1) of S. 3 the Central Government or the State Government as the case may be is empowered to detain a person with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India and also the power to detain a foreigner with a view to regulating his continued presence in India or to making arrangements for his expulsion from India. Sub-section (2) of S. 3 provides that the Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. There is an explanation to sub-section (2) However, it is not necessary for our purpose to refer to the same. Section 4 provides for execution of the detention orders. Section provides for disclosure of the grounds of detention to the person affected by the order. Section 14 as it stood prior to the amendment by the said Ordinance read as under :

'14. (1) Revocation of detention orders. - Without prejudice to the provisions of S. 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified, -

a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of S. 3, by the State Government to which that officer is subordinate or by the Central Government.

b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under S. 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer mentioned in sub-section (3) of S. 3, as the case may be, is satisfied that such an order should be made.'

23. Now, under the said provisions the detaining authority, State Government or the Central Government has been given power to revoke the order of detention.

24. A drastic change in law has been brought about by the National Security (Second Amendment) Ordinance, 1984, which came into force on June 21, 1984. Sub-section (2) of S. 1 of the Ordinance provides that the Ordinance shall come into force at once, with the result that it has come into force on June 21, 1984, when it was published in the Gazette. By S. 2 of the Ordinance, after S. 5 of the Act, S. 5A has been inserted. S. 5A which has been so inserted provides :

'5A. Where a person has been detained in pursuance of an order of detention (whether made before or after the commencement of the National Security (Second Amendment) Ordinance, 1984) under S. 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly :

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever,

and it is not, therefore, possible to hold that the Government or Officer making such order would have been satisfied as provided in S. 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or Officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.'

25. By S. 3 of the Ordinance sub-section (2) of S. 14 of the Act is replaced by the following sub-section (2) which runs as under :

'(2) The expiry or revocation of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not (whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Ordinance, 1984) bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under S. 3 against the same person;

Provided that if a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period to twelve months from the date of detention under the earlier detention order.'

26. Section 4 of the Ordinance is not relevant for our purpose since it relates to the amendment of S. 14A of the Act as applicable to the State of Punjab and the Union Territory of Chandigarh with which we are not concerned.

27. It has been consistently held by the Courts that the entire detention order gets vitiated when one or some of the grounds are found to be vague, irrelevant, non-existent, stale or otherwise invalid. In view of this interpretation by the courts, for the first time a provision similar to S. 5A inserted in the National Security Act by the Ordinance was earlier inserted in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, by an amendment in the year 1975. Section 5A of COFEPOSA Act, however, does not incorporate any express words making the provision retrospective. By the insertion of S. 5A in the National Security Act a deeming fiction has been introduced to the effect that the order of detention shall be deemed to have been made separately on each of the grounds on which the order of detention is based. Mr. Chitnis contended that in the case of a provision which is of a penal nature or a provision which makes serious inroads on the liberty of a citizen must be strictly construed. Even where retrospective operation is intended such retrospective operation should be given only to the extent expressed in clear language or by necessary implication. As far as S. 5A of the Act is concerned, it is clearly retrospective as is clear from the qualifying words 'whether made before or after the commencement of the National Security (Second Amendment) Ordinance, 1984.' used in the Section. On a reading of S. 5A it does not appear to give retrospective effect to cases of past detention order which have come to an end by expiry of the period of detention or otherwise prior to the commencement of the Ordinance. However, having regard to the language of S. 5A there is no doubt that retrospective effect is given to order of detention made before the commencement of the Ordinance. However, it is contended by Mr. Chitnis that the retrospectivity contemplated by the wording of S. 5A is limited to an order of detention made before 'the commencement of the Ordinance provided the execution of the order of detention takes place after the commencement of the Ordinance. In other words, according to him, where the person is undergoing detention on the date of the Ordinance pursuant to an order of detention made before the commencement of the Ordinance, S. 5A will not apply. He submitted that the words 'has been detained' in S. 5A support his contention. The question is what is the meaning to be given to the words 'has been detained' in S. 5A, Mr. Chitnis referred to the decision of the Supreme Court in State of Bombay v. Vishnu Ramchandra, : 1961CriLJ450 . In that case the provisions of S. 57 of the Bombay Police Act came up for consideration of the Supreme Court. In S. 57 of the Bombay Police Act, the Legislature used the words 'has been convicted' in relation to certain offence for the purpose of taking action of externing a person under the provisions of the Act. Section 57 in so far as material runs thus :

'Removal of persons convicted of certain offences. -

If a person has been convicted -

(a) of an offence under ..............

(b) ..................

(c) ..................

the Commissioner .......... if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction ......'

28. The Supreme Court held that the language of S. 57 does not bar an action based on past actions of the offender before the Act is passed and the words 'has been' in S. 57 of the Act are intended to mean 'shall have been'. It describes past actions and is used to express a hypothesis without regard to time. While interpreting the said provision in para 12 of the judgment the Supreme Court observed as follows :

'Now, S. 57 of the Bombay Police Act, 1951, does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons to have been convicted of offences of a particular kind. The second only enables the authorities to take note of their convictions and to put them outside the area of their activities, so that the public may be protected against a repetition of such activities ......

An offender who has been punished may be restrained in his acts and conduct by some legislation, which takes note of his antecedents; but so long as the action taken against him is after the act comes into force, the statute cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but prospectively.'

Thereafter while considering the question whether the language of S. 57 bars an action based on past actions the Supreme Court observed :

'The verb 'has been' is in the present perfect tense and may mean either 'shall have been' or 'shall be'. Looking, however, to the scheme of the enactment as a whole and particularly the other portions of it, it is manifest that the former meaning is intended. The verb 'has been' describes past actions and to borrow the language of Fry, L.J. in (1884) 12 QBD 334 'is used to express a hypothesis without regard to time'.'

29. Section 5A will have to be interpreted in the light of the object sought to be achieved and in the background of the view consistently taken by the courts that the entire order is liable to be struck down even if one or some of the grounds is or are vague, non-existent, not relevant, stale or invalid for any other reason since it was not possible to hold that the detaining authority making the order reached the requisite subjective satisfaction as provided in S. 3 with reference to the remaining ground or grounds and made the order of detention. The object of inserting S. 5A in National Security Act is to overcome the effect of such interpretation by the courts, as a result of which, the order of detention were liable to be struck down even if a single ground was found invalid. It is in this background and keeping in view the object in inserting S. 5A that we have to consider the verb 'has been' used in S. 5A. As explained in State of Bombay v. Vishnu Ramchandra (cited supra) 1961 (1) Cri LJ 450 the verb will have different shapes of meaning depending on the language of section and the scheme of the enactment. In abstract the verb 'has been' mean either 'shall have been' or 'shall be' or may be interpreted as being used 'to express a hypothesis, without regard to time'. Looking to the expression in giving retrospective effect to the past orders of detention, it is clear that the expression 'has been detained' in S. 5A is used to express a hypothesis to a factual situation viz. the detention of the detenu either prevailing on the date of the commencement of the Ordinance or at any time thereafter. Having regard to the background in which the provision was sought to be brought into force and the object sought to be achieved as also having regard to the language used in the section it is not possible to read the provision as to make a distinction between the orders of detention executed before the provision came into existence and the order of detention which has been made before the provision came into existence but was executed thereafter. The mere fact that in one case the order of detention is executed before the insertion of S. 5A and in another is executed after the Ordinance cannot make any difference. There is nothing to indicate that the Legislature intended to make such a distinction between the two situations as urged by the learned counsel.

30. It may further be noticed that the verb 'has been' is used twice in S. 5A and once in S. 14. Sections 5A and 14 are provisions connected with each other. It is well settled canon of construction of a statutory provision that it is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in the same section or different parts of an Act. The observation of the Supreme Court in K. N. Guruswamy v. State of Mysore, : [1955]1SCR305 , would be relevant :

'The same word appearing in the same section of the same set of Rules must be given the same meaning unless there is anything to indicate the contrary.'

31. See also Maxwell on the Interpretation of Statutes, 12th Edn. 278, where it is stated :

'It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act.'

32. Having regard to the object and the language used in the section it is clear to us that S. 5A applies to all cases of past detention orders which are in force on the date of the coming into operation of the Ordinance irrespective of the fact whether the order of detention which is made before the coming into operation of the Ordinance is executed before or after the Ordinance. Verb 'has been' is used in S. 5A and S. 14 denotes the factual position or hypothesis without any reference to time.

33. Although, therefore, on merits we have held in both the cases that one of the grounds on which the order is based is invalid, the impugned order is not liable to be set aside as under S. 5A the order is deemed to have been made separately on each of the grounds and we have found all the other grounds to be valid. In the result, both the petitions fail. Rule discharged in both the petitions.

34. Petitions dismissed.


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