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Nand Kishore Vs. Commissioner of Police - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 6108 of 1978
Judge
Reported in1982CriLJ1439
ActsIndian Penal Code (IPC), 1860 - Sections 148, 307, 324, 392 and 427
AppellantNand Kishore
RespondentCommissioner of Police
Appellant AdvocateB. Veerabhadrarao, Adv.
Respondent AdvocatePublic Prosecutor
Excerpt:
.....clear that every failure to furnish copy of a documents to which reference is made in the grounds of detention is not an infringements of art. it is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violator of fundamental rights guaranteed by art. there is no particular charm in the expression relied on 'referred to' or 'based on' because ultimately all these expressions signify one thing namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention .whether the documents concerned are referred to relied upon or taken into consideration by the detaining authority..........circumstances.' 14. in rameshwar v. district magistrate. : 1964crilj257 (following ujagar singh v. state of punjab, : [1952]1scr756 it has been held that :- 'the past conduct or antecedents history of a person can be taken into account in making a detention order and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. it is however, necessary to bear in mind that the past conduct or antecedents history of the person on which the authority purports to act should ordinarily be proximate in point of time and should bear rational connection with the conclusion that the detention of the person is.....
Judgment:

Gangadhara Rao, J.

1. This Writ Petition and writ petitions Nos. 6482/1981 and 6741/1981 were heard together. Common question of law raised in all the three writ petition are decided in this petition. Since facts are separate, separate orders are pronounced in the other two writ petitions.

2. This writ of habeas corpus is filed by Nanda Kishore questioning the detention of Sri Arjun Singh under Section 3(2) of the national Security Act, 1980 by the commissioner of Police Hyderabad, by his order dt. 15th May, 1981.

3. The grounds of detention mentioned are :

'On 27-7-80 at 3.00 p.m. you along with Bhagwan Singh, Pratap Singh and Prakash went to Maharaja Bar & Restaurant, Basheerbagh. After consuming beer in the said Bar Sri Bhagwan Singh questioned Sri Sunil Roberts who plays according in the Band, as to why he failed to play the tune requested by him two or three days ago. So saying Sri Bhagawan singh caught hold of Sri Sunil Roberts to beat him. Due to intervention of beat artists the matter was subsided. Again on the same day at about 5.15 p.m. you along with Sri Bhagawan Singh, Pratap Singh, Prakash Anoop Singh and sham went to the said bar and you along with S/Sri Bhagawan Singh and Anoop Singh attacked Sri Sunil Roberts who was sitting in front of the counter. You were holding barbers razor and Sri Anoop Singh was holding knife, Sunil Roberts was beaten by Anoop Singh, Bhagawan Singh and shyam with knife causing professed bleading injuries. In the meanwhile you approached Shah Buddin with barber's razor and inflicted injuries on his right shoulder, neck also right hand fingers. You and your associates also caused knife injuries to two or three customers who ran away immediately. You and your associates also broke the mirror which was in front of the counter and broke four or five glasses. You after cutting telephone wire threw it on the floor. After commission of the above offences you all fled away in a taxi. Your above activities created terror and panic in the locality. On the complaint of Sri Abdul Salis, Manager of maharaja Bar & Restaurant in case in Cr. No. 19/80 under Section 148, 324, 427 and 307, I.P.C. read with 149 I.P.C. was registered at Narayanaguda P.S. and investigated. During the course of investigation you and your associates were arrested. A charge sheet was filed against you in the court of IVth M.M. Hyderabad. The case is committed to the court of Metropolitan Sessions Judge, Hyderabad.

2. On 19-2-1980 at about 10.30 a.m. you entered into the lace factory known as nagari lace Factory situated in premises No. 13/2/592, Raheempura and demanded Rs. 50/- from the Sri Ashok partner of the said factory. To avoid payment Sri Ashok told that he had no money with him and his father was also not present in the factory upon which you took out a barber's razor and inflicted stab injuries to Sri Ashok on his left chest and again demanded money. Due to fear Sri Ashok paid you Rs. 50/- while leaving the premises you warned Ashok not to report this matter to the police or else you would kill him and you filed away from the place of incidents you created terror and panic in the locality. The statements of Ashok was recorded and a case in Cr. No. 80 under Section 392 I.P.C. was registered at police station. Mangalghat against you. During the course of investigation you were arrested and remanded to judicial custody. The case was charge sheeted in the court of the III Metropolitan Magistrate, Hyderabad and is pending trial.

3. You are a rowdy of Mangalghat P.S. and you have criminal record since 196. Thus you have been acting in a manner prejudicial to the maintenance of the public order by your highhandedness and goondaism affecting the even tempo of the life of the community. Your above activities show that you are a dangerous and desparate character. Hence I am satisfied that you are a fit person to be detained to prevent you from acting in a manner prejudicial to the maintenance of public order. Accordingly I passed order of detention against you.'

4. Sri B. Veerabhadra Rao the learned counsel for the petitioner has attacked the order of detention on the following grounds :-

(1) There is a delay of five months in passing the order of detention from the second incident mentioned in the grounds, and that delay is not explained. Therefore, the order of detention is bad.

(2) the national Security Act 1980, (here in after called the Act) was passed on 27th December, 1980. There is no incident, after the act came into force. At the time the when the detenu has committed the two offences mentioned in grounds 1 and 2 they could not have furnished a ground to deprive him of his liberty under the Art. 20 of the Constitution. If the Act was in force on those relevant dates then the detenu would have taken precaution not to give any room for detaining him under the Act.

(3) The material supplied to the detenu was not enough to enable him to make an effective representation.

(4) The power conferred by the State Government on the commissioner was for a particular purpose while the order of detention passed against the detenu was different. Therefore, it was really passed in exercise of a power not conferred on him.

(5) Grounds 1 and 2 have no nexus to the purpose of the Act.

5. It is true that the incident mentioned in grounds No. 2 has occurred on 9th December, 1980. The order of detention was passed on 15th May, 1981. Thus, there is a gap of five months between that incidents and the order of detention. In the writ petition no such grounds is taken, therefore, the commissioner of Police had no occasion to traverse that grounds in his counter-affidavit. It is true that in a case of an application for a writ habeas corpus the court need not follow the stricts rules of pleading nor place undue emphases on the question as to an whom the burden of proof lies. (Icchu Devi v. Union of India : [1981]1SCR640 ). But the Commissioner of police cannot be expected to image all plausible grounds that are likely to be raised in the arguments though not raised in the affidavit field in support of the writ petition and answer them in his counter affidavit. When a specific ground is not taken which is not purely legal but which depends on evidence necessarily that grounds must be raised in the writ petition or at least advance notice must be given to the respondents so that he might file his counter-affidavit or place the necessary material before the court in that regard. Even otherwise mere delay in passing a detention order is not fatal.

6. In Lakshman Khatik v. State of W. B. : 1974CriLJ936 it was observed that : 'mere delay in passing a detention order is not conclusive but the court has to see the type of grounds given and consider whether such a grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the person from preventing him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains'.

It was further observed that :-

'The authorities concerned must have due regard to the object with which the order was passed and if the object was to prevent disputation of supplies of foodgrains one should think that promptaction in such matters should be taken as soon as incidents like those which are referred to in the grounds are taken place.'

On the fact that cases the Supreme Court held that the order of detention was invalid.

7. In Kamal Pramanik v. State of W. B. : AIR1975SC730 the detention order was passed after one year of the incidents mentioned in the grounds. When it was argued that there was no reasonable proximity between the facts alleged and the detention order the Supreme Court held that

'that there was no substances in that arguments in view of the counter affidavit filed by the District magistrate in that case'.

It shows that mere delay is not fatal. We have to see in each case whether the delay was reasonable.

8. In Abdul Munnaf v. State of W. B. : 1974CriLJ1233 it was held that :-

'the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of person that an inference can be drawn whether he is likely in the future to act a manner prejudicial of the maintenance of supplies and services essential to the community. But in order to justify such an interference it is necessary to bear in mind that such past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. No doubt it is both inexpedient and undesirable to lay down any inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. If in a given case the time-lag between the prejudicial activity of a detenu and the detention order made because of that activity is exfacie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order'.

9. In R. R. Narang v. M. G. Mugwe 1976 Cri LJ 135 a Division Bench of the Bombay High Court held that the proximity if the antecedents of the detenu are not measurable only in terms of months and years without regard to complexities and requirements of a given situation and it is inadvisable to count the period mechanically in terms of months and to lay down any flexible standard for tracing such 'live link'.

10. In the case on hand the detenu was detained on the ground that he is a rowdy with a criminal record and he was acting in a manner prejudicial to the maintenances of the public order by his highhandedness and goodaism affecting the even tempo of the life of the community and that his activities show that he is a dangerous and desparate character.

11. On the facts of this case we can not say that the gap of five months between the second incidents and the date of order of detention in such a long period as not to provide a nexus between the activities of the detenu and the order of detention. We must take the totality of the grounds mentioned in the order of detention and then decide whether they passing the order of detention. In our opinion the antecedents of the detenu provide sufficient justification for passing the order of detention. Hence we reject the first contention.

12. The instances mentioned in the grounds of detention happened on 27-7-1980 and 9-12-1980. It is true that the national Security Act 1980 came into force from 27th December, 1980. But before that we had the national Security Ordinance, 1980 which was promulgated on 23rd September 1980. The Ordinance was replaced by the Act. S. 18 of the Act has replaced the Ordinance. It is also says that notwithstanding such repeal anything done or any action taken under the said ordinance shall be deemed to responding provisions of this Act as if day of September 1980. The second incidents the Ordinance was in force. It is true that the first incidents has occurred on that the first incident was occurred on 27-7-1980, when the Ordinance was not in force. It is true that no incident has happened after the Act has come into force. On that score it cannot be said that those incidents could not taken into consideration for passing an order of detention under the Act. Admittedly the order of detention was passed after the Act has come into force. It is now well settled the detention is only preventive but not punitive. The detenu is not punished for any offence committed by him. He is only prevented from acting in any manner prejudicial to the maintenance of public order, that could only be decided on the basis of his antecedents or past record. His antecedents need not be confined only for the duration of the Act. Otherwise the Act itself become unworkable in many cases.

13. In Saha v. State of W. B. : 1974CriLJ1479 it has been held that :-

'the power of preventive detention is qualitatively different from the punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding and it does not overlap with prosecution even if it is relies on certain facts for which prosecution may be launched or may have been launched'.

It was also observed that (Paras 33 and 34) :-

'While in a prosecution an accused is sought to be punished for a past act in preventive detention the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. The order of detention is a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.'

14. In Rameshwar v. District Magistrate. : 1964CriLJ257 (following Ujagar Singh v. State of Punjab, : [1952]1SCR756 it has been held that :-

'the past conduct or antecedents history of a person can be taken into account in making a detention order and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. It is however, necessary to bear in mind that the past conduct or antecedents history of the person on which the authority purports to act should ordinarily be proximate in point of time and should bear rational connection with the conclusion that the detention of the person is necessary.'

15. The learned Counsel for the petitioner submitted that when the two alleged incidents have occurred the detenu could not have been detained under the National Security Act for, then the act was not inforce and if the Acts was then in force them he would not have committed those offences and given room for passing the order of detention. It is also submitted that taking into consideration the two incidents that have occurred before the Act came into force offends Arts 20 and 21 of the Constn. In the connection he invited our attention to A. K. Gopaln v. State of Madras, : 1950CriLJ1383 and Meneka Gandhi v. Union of India, AIR 1978 SC 579.

16. We find it difficulty to accept his contention, Art. 20 relates to conviction of a person for an offence. It has nothing to do with preventive detention. The detenu is not convicted of an offence, therefore, he cannot invoke Art. 20, Art. 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Art. 22 deals with preventive detention. If the detention of a person under Art. 22 is valid we do not see how he could invoke Art. 21.

17. It is true that in Meneka Gandhi v. Union of India : [1978]2SCR621 (supra) differing from Gopalan's case (1950) 51 Cri LJ 1383 (supra) it has been held that :

'Now if a law depriving a person of personal liberty and prescribing a procedure for the purpose within the meaning of Art. 21 has to stand the test of one or more of the fundamental right conferred under Art. 19 which may be applicable in a given situation ex hypothesi it must also be liable to be tested with reference to Art. 14.'

We do not see how this arguments could be raised on the facts of this case and how the case Meneka Gandhi v. Union of India : [1978]2SCR621 (supra) is relevant.

18. As stated by us already conviction is different from preventive detention and the incidents of both are different.

19. Next it is submitted that the grounds are vague and the material supplied to the detenu was not enough to make proper representation and therefore, the order offends Art. 22(5) of the Constn. It is true that the grounds should not be vague, the necessary particulars and commands should be furnished to the detenu in order to enable him to make an effective representation, See Sasthi Keot v. State of West Bengal, : 1974CriLJ464 , Alek Mohammad v. State of West Bengal, : 1974CriLJ747 , Mohd. Alam v. State of West Bengal, : 1974CriLJ770 , Mohd. Yousef v. State of Jammu and Kashmir, : [1980]1SCR258 L. M. S. Ummu Saleema v. B. B. Gujaral, : [1981]3SCR647 and Kirit Kumar v. Union of India, : [1981]2SCR718 .

20. We find some difference of opinion between L. M. S. Ummu Saleema v. B. B. Gujaral, : [1981]3SCR647 and Kirit v. Union of India, : [1981]2SCR718 In L. M. S. Ummu Saleema v. B. B. Gujaral, : [1981]3SCR647 a bench of three Judges of the Supreme Court held that on 14th May, 1981 that -

'It is therefore clear that every failure to furnish copy of a documents to which reference is made in the grounds of detention is not an infringements of Art. 22(5) fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violator of fundamental rights guaranteed by Art. 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing references may be made in course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.'

21. In Kirit Kumar v. Union of India (1981 Cri LJ 1267) (supra) a Bench of two Judges of the Supreme court held on 30th January, 1981 that :

'Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. There is no particular charm in the expression relied on 'referred to' or 'based on' because ultimately all these expressions signify one thing namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention ....... whether the documents concerned are referred to relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make effective representation immediately on receiving the grounds of detention'.

22. Evidently, L. M. S. Ummu Saleema v. B. B. Gujaral (1981 Cri LJ 889) (supra) is a decision of three Judges pronounced on 4th May, 1981, while Kirit Kumar v. Union of India (1981 Cri LJ 1267) (supra) was pronounced on 30th January, 1981, Following the later decision of three Judges it has to be held that it is the copies of documents that were relied upon the detaining authority that should be supplied to the detenu.

23. In the present case with regard to the incident dated 27th July, 1980 (in the first ground) first the relevant facts are given, thereafter, it is stated that a criminal case was also registered 3and a charge sheet was filed and the case is now pending in the court of the Metropolitan Sessions Judge, Hyderabad. Similarly, with regard to the second incident dated 9th December 1980 (mentioned in ground No. 2) first all the facts are mentioned. Then it is stated that a crime was also registered and a charge-sheet has been filed in the court of the IIIrd Metropolitan Magistrate, Hyderabad and it is now pending for trial. In the counter affidavit filed by the commissioner of Police it is stated that the detenu is an illiterate person that he does not know anything to read and documents were served on him within the prescribed time, that all of them were explained to him in Hindi, that subsequently the grounds of detention were translated into Hindi the same were served upon him, the Jailor of the Central prison explained the grounds of detention and the contents of the copies of documents in Hindi to the detention and the detenu understand the grounds and the contents of the documents fully and clearly. It is denied that the documents regarding the incidents were not supplied to the detenu. In the affidavit field in support of the writ petition it is badly stated that no documents whatsoever was supplied to him. This is patently false. In the course of the arguments it is stated that no documents whatsoever supplied to him. that is patently false. In the course of the arguments it is stated the material supplied is not sufficient to make effective representations, that only the copies of the First information Report in the two cases were furnished to the detenu, that documents like the doctor's certificate or the panchanama conducted at the scene of offence and the statements of the investigation were not supplied to the detenu. The detenu is not being prosecuted for an offence when he is detained for an offence when he is detained under the National Security Act, So it is not necessary to furnish him the copies of the Doctor's certificate of the panchanama or the statements of witnesses recorded in the course of the investigation. In our opinion it is sufficient if the copies of the First Information Report are furnished to him and in fact they were furnished to him.

24. Next it was submitted that in the grounds it is stated that the detenu is a rowdy of Mangalghat police station and he has criminal record since 1976 and a copy of that record was not furnished to him. That arguments is advanced on the assumption that it is a ground for detention. A reading of that paragraph shows that it is not really a ground for detention. It is mere description of the detenu. On the facts of this case we are satisfied that necessary material had been supplied to the detenu and he is not in any way prejudiced from making an effective representation as contemplated by Art. 22(5) of the Constn.

25. It was also contended by the learned counsel for the petitioner that the order of detention passed by the Commissioner of Police is not valid, for the conditions mentioned in sub-section (3) are not satisfied. This question was not raised in the writ petition. Even otherwise it has to be answered against the detenu in view of the Division Bench decision of this court in W.P. No. 1805 of 1981. The bench referred to the notifications issued by the Government and held that the delegation to the District magistrate in the State in respect of the district and also the commissioner of Police in the twin cities to exercise the power conferred under sub-section (2) of the S. 3 is valid. Following that decision we reject this contention.

26. Grounds 1 and 2 show that the detenu by his activities has created terror and panic in the localities of Hyderabad. They clearly relate to public order. Sometimes even a single incident may be sufficient. In Md. Dhana Ali Khanv. State of West Bengal, : 1976CriLJ622 the Supreme court held that a single incident of robbery in running train a person under the Maintenance of Internal Security Act 1971.

27. It is now well settled by the decisions of the Supreme Court that the satisfaction of the detaining authority under Section 3(2) is his subjective satisfaction and is not justiciable. It will not be open to the detenu to ask the court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It will not be open for instance to the detenu to contend that the grounds supplied to him to to do not necessarily or reasonably lead to the conclusion that it he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in court of law : the adequacy of the material on which the said examined in a court of law. See Rameshwar v. District magistrate, : 1964CriLJ257 ; ram Monohar v. State of Bihar, : 1966CriLJ608 .

28. In view of these decisions we can not go into the adequacy of material provided it is relevant and germane and say that the Commissioner of Police could not have satisfied himself that the Petitioner should be detained, so as to prevent him from acting in a manner prejudicial to the maintenance of public order.

29. In the result we see no ground to interfere with the impugned order of detention passed by the Commissioner of Police, Hyderabad and we dismiss this writ petition but in the circumstances of the case without costs. Advocate's fee Rs. 250/-.

30. Petitions dismissed.


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