1. This writ petition relates to the detention of Riasuddin Siddique (Siddiq) under the National Security Act 65 of 1980. He was detained on March 16, 1982. The grounds of detention were served on him on March 20, 1982. He is the Secretary of a body corporate. The United Co-operative Housing Society Limited - incorporated under the State Act 7 of 1964. This Society in the grounds of detention is described to be a benami Society controlled by one Mohd. Ibrahim Khan who, it is averred, with the aid and assistance of the Assistant City Planner, G. M. Khan, Siddique and other associates, occupied extensive vacant lands in the city of Hyderabad, committed acts of violence, spread lawlessness, endangered lives of landowners, disturbed public order. In all the nefarious acts, Siddique is said to be a willing aide of Ibrahim Khan. These acts, now they were perpetrated, a representation was made to the Chief Minister and to the Police Commissioner on March 8, 1982, thereupon, necessary information was collected: Siddique and the connected persons were arrested. The detention of Siddique is attacked in this court as not only to have been made on insufficient evidence, but the incidents, per se, are attacked as 'stale': based on such grounds it is urged no citizen could be detained under Act 65 of 1980.
2. It is at first argued with reference to the contents of ground (in particular) reference is made to the prefatory note and para 4 that what is contained therein should be construed as ground and the detention be judged from that perspective. Whether a prefatory note should be construed a ground for detention was the subject of decision in Mohd. Yusuf v. State of J. & K., : 1SCR258 . In that case, two views were expressed. One of the Judges, among the three, observed, grounds cannot be trisected as 'introduction to the detention', background to the detention and as 'grounds for detention' and in that view, held, what is contained in preface is ground of detention. That view is not shared by the two Judges who wrote the principal opinion in that case. Therefore, following the view expressed by the two Judges, it is not possible to hold on a consideration of what is contained in the said two paras, they are grounds of detention for in the passages referred, no particular incident is referred to by the detaining authority. This objection raised on behalf of the detained person, therefore, fails.
3. Among the three grounds, next two incidents of Oct. 12 and Dec. 9, 1975, are adverted to as grounds of detention. In the incident relevant to Dec. 9, Siddique and Ibrahim Khan, together, in the presence of G. M. Khan, Assistant City Planner, obtained an agreement from Mir Mushtaq Ali Khan, a member of the erstwhile Banganpally Nawab family as respects 7,200 sq. meters of land covering S. Nos. 184 and 185 in Amberpet and paid him Rs. 60,000/-. As to the incident pertaining to Oct, 12, 1975, Ac. 6-17 guntas of land in S. Nos. 11, 12, 16, 17, 18, 20 of Somajiguda including premises bearing Nos. 6-3-1902 and 1903 by deceiptful and fraudulent means practised by Siddique and Ibrahim Khan, Smt. Sunita Devi deprived of land under deed on Oct. 12, 1975, whereunder, she sold her land at a nominal price of Rs. 11/- per sq. yard. The third incident refers to Gulam Dastagir, Tajuddin, Sadiq Mohiuddin Siddique who, with other members of Citizens Welfare Committee, made a representation to the Commissioner of Police and the Chief Minister on Mar. 8, 1982, therefore, for their acts, they were threatened; their lives were put in danger by Siddique, his master, Ibrahim Khan and others.
4. These incidents are referred as grounds for detention. It is seen , excluding the third ground, the incidents referred to, viz., Oct. 12 and Dec. 9, 1975 are of more than 6 years old, and realising the difficulty, it was argued on behalf of the Commissioner of Police that though ordinarily. Courts will not countenance stale incidents as grounds for detention, the learned Advocate General relied on the following three cases which according to him, show a different approach, when warranted by the circumstances of a case : Gora v. State of West Bengal, : 1975CriLJ429 ; Wasi Uddin Ahmed v. District magistrate, Aligarh. : 1981CriLJ1825 and Fitrat Raza Khan v. State of U. P. : 1982CriLJ338 . It is argued, placing reliance upon the ratio of the decisions that in extraordinary or relevant cases, it is not irrelevant to rely on incidents which are not of recent past. It was argued, the detaining authorities to show 'live links' with reference to 'past' of the detained person, incidents even which are not recent, reliance can be placed and such material is admissible. It was emphasised in finding out what is the causal action, incidents which are not of recent past, can also be relied on. The test of proximity, it was submitted, should not be applied in rigidity or in a mechanical manner. Reliance was placed on the observations made in : 1981CriLJ1825 supra: 'The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rationale connection with the conclusion that the detention of the person is necessary'. In a more recent case in : 1982CriLJ338 supra, it was held, the incidents of Aug. 13, 1980 and July 24, 1981 were relied to justify the detention. In placing reliance upon the incidents of Oct., 12 and Dec. 9, 1975, it is further argued proclivities of the detained person, his antecedent history and to show a rational connection with the incidents for Oct, 12 and Dec. 9, 1975 are admissible, from that standpoint, the incidents of Oct. 12 and Dec. 9, 1975, in the instant case, it is argued, cannot be construed as stale incidents.
5. The view expressed in the above four cases by the Supreme Court is totally different from the view that has been set out in a large number of cases where incidents which are not a recent in character, have been totally ignored, in Harnek Singh v. State of Punjab. : 1982CriLJ420 the incident of 18 months, in Abdul Munnaf v. State of West Bengal, : 1974CriLJ1233 the incident was of 9 months and in Lakshman Khatik v. State of West Bengal, : 1974CriLJ936 , the incident was of 7 months; Having regard to the periods involved or proximity of time in the three decisions, the Supreme Court stated are 'stale' in character and inadmissible. These three cases are representative in character and cases can be multiplied. The three cases demonstrate, even where the incident was 7 months' period, the incident wad held not relevant. Therefore, I am enable to accept the argument advanced on behalf of the Police Commissioner that with a view to understand the proclivities of the detained or antecedent history, the incident of 7 years as in the instant case, can be relied on under Act 65 of 1980. In stating so, I am not oblivious to the view expressed in the cases cited on behalf of the Police Commissioner. May be in the said cases, a new view is being crystallised. That view is trailing behind the view (not leading the earlier or that view has not ripened into a precedent) that has been expressed in a large number of cases of which the three cases are representative in character. In that view, the incidents of Oct. 12 and Dec. 9, 1975 in the two grounds are stale incidents for detention and are irrelevant for consideration of Siddique's detention.
6. It was next argued that a report submitted by the Crime Branch of CID to the commissioner of Police was not supplied to the detained, therefore, for that reason, the detention is bad in law. Adverting to this objection, it was argued on behalf of the Police Commissioner that the report of the Crime Branch of CID is a document which falls under cl. (6) of the Constitution of India and such a document is an exception to the documents that are served under cl. (5) of art. 22 of the constitution. This aspect is no more res integra and has been adverted to by the Supreme Court in Lawrence D' Souza v. State of Bombay, : 1956CriLJ935 and in many other subsequent cases. Therefore, Siddique is not entitled to be served the report of the Crime Branch of CID which was relied on by the Commissioner of Police.
7. Lastly, it was argued with reference to G. O. Ms. No. 146 dated mar. 17, 1982 that from its contents, it is seen, the Director-General of Police made a recommendation for the detention of Siddique and that was accepted by the State Government, therefore, it is argued, at the behest of the State Government, the Commissioner of Police had detained the person without applying his mind to the facts of the case, therefore, the detention order is a mala fide order, and on that ground, it should be quashed.
8. Having regard to the conclusion that I have arrived at with reference to the incidents pertaining to Oct. 12 and Dec. 9, 1975 as remote and stale, it is not necessary to go into the question any further.
9. For all the aforesaid reasons, I am of the view that the order of detention cannot be sustained and is accordingly set aside. Siddique, therefore, is ordered to be released forthwith.
Madhava Rao, J.
10. I have just now heard the judgment dictated by my learned brother Raghuvir, J. I am in agreement with the learned Judge that the detenu should be released. The order was passed yesterday and the detenu was released.
11. The facts are already stated by my learned brother in his order and I need not repeat the same. I would like to express my view on the question whether the past conduct or antecedent history of a person can properly be taken into account in making a detention order. It is usual that from the prior events showing the tendency or inclinations of a man, an inference can be drawn whether he is likely, in future to act in manner prejudicial to the maintenance of public order.
12. The learned counsel for the petitioner in this connection, referred to Lakshman Khatik v. State of West Bengal, : 1974CriLJ936 . It was held in that case that the delay of seven months in passing the order of detention was not explained and therefore the order is vitiated. In Abdul Munnaf v. State of West Bangal, : 1974CriLJ1233 it was held that 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 ex facie 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. If the detaining authority fails to do so in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.
13. The learned counsel next referred to the decision in Harnek Singh v. State of Punjab, : 1982CriLJ420 . Wherein it was held that (at pp. 682-683),
'.....................offences which are said to have been committed by the detenu as for back as 27th Feb., 1980 could hardly form a ground for his detention on a date as late as 10th July 1981, the gap between the two being well-nigh a year and a half. No explanation at all has been furnished on behalf of the State as to why action under the Act was not taken at the earliest possible after the alleged commission of the offences which are the foundation of the grounds of detention.'
Therefore, the Supreme Court was of the opinion that the charge was so stale in relation to the detention as not to have any real connection with it. It was further noted that no reason was put forward for the detenu not being taken in custody in pursuance of the impugned order (for which the detaining authority was moved in the 1st instance by the Senior Superintendent of Police, Amritsar) right from Jan. 2, 1981 till July 10, 1981 although he appeared in Court on all the dates of hearing fixed by the Magistrate during that period. In those circumstances, the Supreme Court held that the detention takes the character of punitive rather than preventive action and is therefore vitiated. In all the three cases referred to by the learned counsel, the Supreme Court has laid down the criteria that any delay in the making of the detention order from the date of the act committed by the detenu which happened long before the order of detention has to be explained, as the delay in detention could be excused and that, if the detaining authority fails to do so, the detention order could not be justified.
14. The learned Advocate-General, on the other hand, submitted that with reference to Fitrat Raza Khan v. State of U. P., : 1982CriLJ338 , past activities of the detenu could be referred to find out the antecedents of the detenu. In Filrat Raza Khan v. State of U. P., it will be relevant to note that the detention order was passed on two grounds; The first ground related to an incident of Aug. 13, 1980, relating to the communal riots that occurred in Moradabad City, and the second of July 24, 1981 when the petitioner was alleged to have incited the Muslims to communal violence. After the second incident, the detenu was detained. The argument addressed was that, firstly, the grounds of detention, apart from being vague and lacking in particulars, did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority while passing the order of detention. In this writ petition, we are only concerned with the first contention. In respect of the first contention, the Supreme Court opined, (at p. 148).
'It is true that the order of detention is based on two grounds which relate to two incidents, one of Aug, 13, 1980 and the other of July 24, 1981, i.e. the second incident was after a lapse of about a year, but both the incidents show the propensities of the petitioner to instigate the members of the Muslim community to communal violence.'
It further held, (at p. 148),
'The unfortunate communal riots which took place in Moradabad City led to widespread carnage and bloodshed resulting in the loss of many innocent lives. The memory of the communal riots is all too recent to be a thing of past. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. Although there was a lapse of a year but the incident of July 24, 1981, was just on the eve of the Id festival and the ground alleged is that the petitioner was trying to instigate the Muslims to communal violence by promise of better arms, with a view to an open confrontation between the two communities. It cannot be said that the prejudicial conduct or antecedent history of the petitioner was not proximate in point of time and had no rational connection with the conclusion that his detention was necessary for maintenance of public order. There is no substance in the contention that the incident of July 24, 1981, related to law and order and not to public order.'
The above passage extracted would indicate that the recent incident was in July, 1981 and the prior incident was in the month of Aug., 1980, just on the eve of Id festival. In the recent past, in Moradabad City, there was bloodshed on account of communal riots and the detenu was responsible for inciting communal riots. That memory of the communal riots was all too recent to be a thing of the past. In that connection, the Supreme Court observed that it cannot be said that the prejudicial conduct or antecedent history of a person cannot be taken into consideration in making the detention order. The same incident was repeated roughly after an interval of one year on the eve of Id festival. It is pointed out that from prior events showing tendencies and inclination of a man an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. Therefore, taking that view, the Supreme Court held that the grounds are nothing but narration of facts bringing out the antecedent history of the petitioner and that, therefore, the ground for the making of the order for detention is one and the same and so the detention could not be said to be vitiated on that ground.
15. The learned Advocate-General next referred to Wasi Uddin Ahmed v. District Magistrate, Aligarh, : 1981CriLJ1825 wherein the Supreme Court held, (at pp. 2175-76).
'The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course such prejudicial 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.'
The learned Advocate-General further referred to the decision of the Supreme Court in Gora v. State of West Bengal, : 1975CriLJ429 . Bhagwati, J., speaking for the Bench, held that there can be no mechanical test by counting the months of the interval. It all depends upon the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. It was also observed that one has to investigate whether the causal connection has been broken in the circumstances of each case and that there is no hard and fast rule that merely because there is time lag of about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District magistrate must be regarded as sham or unreal. At any rate it was held that each case depends on the circumstances of that case. It was further held )(at p. 475).
'The test of proximity is not a Regis or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part o an organised operation of a complex agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is ,therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.'
In that case, the act alleged against the petitioner was a daring act of dacoity in a village by a gang consisting of the petitioner and his associates and if this act was judged in its correct setting grave proportions and clear implications, it would be clear that it could not be a stray isolated act but must be the work of a habituated and hardened criminal given to commit dacoities and the District magistrate could, therefore, reasonably arrive at a satisfaction that with a view to preventing the petitioner from carrying on such activities it was necessary to detain him. It will be relevant to note that in that case, a criminal case was filed in the Court of the Sub Divisional Judicial Magistrate, Diamond Harbour on 26th June, 1973 and he was arrested in connection with that case, but it appeared during investigation that witnesses were unwilling to give evidence in open court against the petitioner and his associates and it was, therefore, felt that it was futile to proceed with the criminal case and it was decided to drop it against the petitioner. If that criminal case were dropped, the petitioner would have to be released and in that event he would be free to carry on his nefarious activities. The District magistrate passed the order of detention on 29th Dec. 1973. The order of detention was infect passed in anticipation of the petitioner being released as a result of the criminal case against him. The record of the case, which was produced before the Court showed that the criminal case was actually pending against the petitioner on 3rd. 1974. That means that the criminal case must have been dropped and the petitioner must have been discharged sometime between 3rd Jan. 1974 and 18th Jan. 1974, the latter being the date when he was once again arrested pursuant to the order of detention. Therefore, the order of detention was warranted in those particular circumstances; and if six months' time elapsed for passing the order of detention, it was considered that the detention order could not be held to be invalid.
16. The learned Advocate-general submitted that in order to point the tendencies of the detenu, the grounds narrated point out his activities in the year 1975. The Supreme Court has laid down that the test of proximity is not a rigid or mechanical test to be blindly applied. But, in all the cases referred to before us, it is evident that in none of the cases there is a time lag of 6 to 7 years except one year and odd or mostly below one year . The test of proximity may not be rigid test, but it should be a reasonable proximity - not that it can be years and years delay. Even if there is a delay of 6 months , 9 months or one year, in all the decisions that delay was explained. Even in Fitrat Raza Khan v. State of U.P. , : 1982CriLJ338 ( supra ) , it was held that in the month of Aug., 1980, on the Id festival occasion, offending acts were committed, for which the detenu was responsible and in the succeeding year , he repeated the same acts, and so it was observed that on the eve of the Id festival , communal incitement was being carried on by the detenu, which was evident in the previous year 1980 and also in 1981. Therefore, the acts committed one year back on a similar occasion were treated to be of proximity in point of time. So even in keeping in view, the principle of proximity in point of time, it has to be seen whether the act committed by the detenu is of a recent past and not of a remote past which has no connection with the recent time. In my view, it will not be appropriate to hold that events that had happened in the year 1975 can reasonably be held to be of a recent proximity in the year 1982 even as per the view taken by the Supreme Court. Therefore, Grounds Nos. 1 and 2 in which the incidents have been narrated are, in my view, stale grounds which have no connection with the recent events and, therefore, they have to be seen in isolation. If that is so, the detention has to be held to be vitiated. It is not disputed that if these grounds are treated as separate and independent, they cannot stand and the detention becomes bad. As I am of the view that both the grounds are not in proximity in point of time, I hold that the detention is bad. The detention order is, therefore quashed and the detenu is set at liberty. The writ petition is accordingly allowed.
17. Petition allowed.