1. The petitioner Raj Prakash Varshney who was being detained in the Central Jail, Tihar, New Delhi by virtue of and under an order passed by respondent No. 1 under S, 3 (1) of the Maintenance of Internal Security Act, 197L hereinafter referred to as the Ala, by this petition under Am 226 of the Constitution of India prayed that a writ in the nature of habeas corpus be issued to respondents 1. 2, 3 and 7 with the direction that he be set at liberty. We have already allowed the petition and now proceed to record our reasons.
2. The petitioner is a citizen of India and was detained in the Central Jail Tihar, New Delhi, under authority of an order dated Apr. 21, 1977 (Copy Annexure P. 1) made by respondent No. 1, Additional District Magistrate, Delhi, in exercise of powers conferred by sub-clause (1) of clause (a) of sub-see. (1) of S. 3 of the Act. Originally, the petitioner was arrested on February 4, 1977 in connection with the investigation of F. I, R. 26/1977 lodged in Police Station Srinivaspuri under Ss. 3, 4, 5 and 9- of the Indian Official Becrets Act read with S. 120-B. I.P.C. An order under S. 3 (1) (a) of the Act and a declaration under S, 16-A of the Act was made by respondent No. 1 on February 11, 1977 but 'the same were not served on the petitioner to start with. The petitioner who had been remanded to police custody after his arrest early in February, 1977 was produced before Shri P. K. Dham, Metropolitan Magistrate on February 25, 1977 an the expiry of the period of remand granted by the Metropolitan Magistrate. On that date, according to the petitioner, he was forced to move an application before the Metropolitan Magistrate to the effect that tie wanted to make a voluntary confession. The Magistrate is alleged to have got upset when the police officers accompanying the petitioner told him that the petitioner wanted to make a voluntary confession. He, however, entertained the application and sent it for further action to Shri Jaswant Singh, Metropolitan Magistrate, who in his turn directed that the petitioner be produced before him on February 17, 1977. On that date Sri Jaswant Singh Metropolitan Magistrate was not available and so the petitioner was again brought to court on February 18, 1977. The alleged confession of the petitioner was then recorded. Immediately thereafter the petitioner was served with the order under the Act made by respondent No. I on February 11, 1977 and he was taken to Central Jail Tihar. On March 21, 1977 the order dated February 11, 1977 was revoked and fresh order of detention was made in respect of the petitioner purportedly on account of S. 16-A of the Act having lapsed on the revocation of the proclamation of emergency by the president. The grounds for detention as postulated by S. 8 of the Act were communicated to the petitioner on April 4, 1977. This order of March 21, 1977 as well as the 'grounds' were revoked on April 21, 1977. On the same day respondent No. 1 passed another order of detention under S. 3 (1) of the Act ordering detention of the petitioner. The order was served on, and the grounds for detention were communicated to, the petitioner on April 21, 1977 in jail. On April 25. 1977 the petitioner filed the present petition under Art. 226 of the Constitution. It came up for hearing before a bench of this Court on April 27, 1977 but was directed to be listed before some other bench. The matter was then laid before as on April 28, 1977. We issued rule nisi returnable before a Division Bench on May 11, 1977. On that date appearances were put in on behalf of the respondents but time was prayed for to file counter-affidavits by way of return to the rule nisi. Time was granted to the respendents to file their counter-affidavits in view of the fact that clear 8 days had not elapsed between service of the notice and the date of hearing as required by the High Court Rules and Orders. The returns of all the respondents except respondent No. 3 were thereafter filed and the matter came up before us for hearing. According to the returns of respondents 1, 2 and 7, in the meanwhile the order of respondent No. 1, the detaining authority, dated April 21, 19,77 along with the grounds were placed before the State Government, in this case the Administrator of the Union Territory of Delhi, who approved the same on April 29, 1977. A report was then made by the State Government to the Central Government on May 2. 1977. A reference was made to the Advisory Board on May 6, 1977 and the Advisory Board had considered the matter on May 16, 1977 but its report was awaited till the time of the filing of the returns.
3. The petitioner contended that his detention under the order dated February 11, 1977 and continued detention by virtue of orders dated March 21, 1977 and April 21, 1977 was illegal, mala fide, contrary to and in abuse of the process of law and vocative of his fundamental rights. According to him he was being detained for collateral reasons and not in furtherance of the objects postulated by the Act. It was further submitted that the detention was motivated and was an act of revenge or spite of respondents 4 and 5. The further contention was that respondents 4 and 5 forced the hands of the concerned authorities, namely respondents 1, 2 and 7 to detain the petitioner under the Act.
4. It has been stated in the petition that the petitioner graduated from the Banaras Hindu University in 1949 by doing B. Sc. in Metallurgy Engineering. Thereafter he took eight months training and worked as a Research Assistant from September, 1949 to January, 1950 in the College of Mining and Metallurgy Banaras Hindu University, Varanasi, Uttar Pradesh. From January 1950 to March 1950 he worked as a supervisor in the College of Mining and Metallurgy in the same University. From April, 1950 to March 1952 the petitioner took industrial training at Binani Metal Works Ltd., Howrah, West Bengal and later joined that concern as a Metallurgist. From April 9, 1952: the petitioner joined the Indian Air Force as a civilian technician and later served as an Assistant Foreman in the Inspectorate of Explosives, I.A.F., Khamaria. For a short period of five months from February, 1953 to July, 1953 he was on deputation to the Government of India for attachment with the Inspectorate of Armaments, Ministry of Supply, United Kingdom, for undergoing training in Metallurgy Development of Air-Force and explosive armament stores. In 1958 the petitioner applied to the Indian Air Force for permission to seek employment elsewhere to better his prospects. This permission was granted. The petitioner submitted an application to the U.P.S.C. for being selected in a recruitment being conducted by that body for the post of a lecturer in Metallurgy (Senior Scale) in the Delhi Polytechnic. The petitioner was selected for this post and was released by the Indian Air Force on October 14, 1958 to join the post. He joined the Delhi Polytechnic on October 15, 1958 and remained in the employment of that institution till September 29, 1962. It is stated by the petitioner that as his appointment in the Delhi Polytechnic was temporary, he retained his lien as a quasi-permanent Assistant Foreman in the Inspectorate of Explosives, Indian Air Force, Khamaria. During the time that the petitioner was in the employment of Delhi Polytechnic, he states, he had nothing to do with the Ministry of defense or any of the defense establishments or any other department or Ministry of the Government of India. He further says that although he wanted to do part-time research work in the defense Science Organisation yet his request was turned down on March 17, 1961 (vide the communication copy of which is Annexure P. 5). The petitioner then goes on to say that in order to better his prospects he kept on applying for other posts. On March 28, 1962 the Delhi Polytechnic forwarded his application for the post of Reader in Mechanical Engineering (Metallurgy) in the Roorkee University, Roorkee. This, the petitioner states, shows that he had nothing to do, even up to March 28, 1962, with any department of the Government of India and that his only occupation was teaching in the Delhi Polytechnic. On September 29, 1962 the petitioner left the service of Delhi Polytechnic and joined the Directorate of Technical Development & Production (Air) in the same grade in which he was serving in the Polytechnic. He served in the said Directorate till January, 1974 when on January 20, 19,74 he joined the Planning Commission as Director (Metals). This was the post that the petitioner was holding when he was arrested in February, 14J77. The petitioner submitted that from a narration of the above facts it was evident that in the year 1960-61 the petitioner was not an officer of the Directorate of Technical Development and Production (Air) nor was he in any way connected with any Government department or Ministry. According to the petitioner while he was in the Planning Commission he was concerned with examining the technical feasibility of the proposal of the Andhra Pradesh Industrial Corporation to set up a sponge iron plant aided by the United Nations Development Programme. The said proposal was based on American technology provided by the Allis Chalmers Corporation of the United States of America. The petitioner did not find the kid proposal worth accepting. He thereforee, rejected it. Pressure was then brought upon him to agree to the proposal because respondent No. 4 was the representative in India of Allis Chalmers Corporation. Inasmuch as the petitioner did not yield to the pressure, respondent No. 4 got annoyed and approached respondent No. 5 to have pressure put upon the petitioner. Respondents 4 and 5 were alleged to be old friends. Respondent No. 5 was then alleged to have insisted that the petitioner should give a clean chit to the proposal of accepting the technology supplied by Allis Chalmers Corporation. Inasmuch as the petitioner resisted, respondents 4 and 5, it was alleged, got a false case under the Indian Official Secrets Act registered against him and had him arrested and humiliated. His premises were searched and he was made to suffer all sorts of torture and indignities. Respondents 1, 2 and 7 were said to have been willing tools of respondents 4 and 5. When the petitioner did not yield he was tortured and threats were held out to the security and welfare of his wife and children. In this way he was compelled in the interest of his near-ones and dear-ones to voluntarily confess his being implicated in a 'diabolic charge' of obtaining for and supplying sensitive information and documents to an agent of a foreign country. In the meanwhile, it was averred, at the behest of respondents 4 and 5, respondents 1 and 2 had an order under the Act prepared on February 11, 1977. This was not served on the petitioner designedly as the police officers were using third degree methods to persuade the petitioner to make a voluntary confession. This confession having been obtained in the circumstances mentioned earlier on February 18. 1977 the order under the Act dated February 1.1, 1977 was then served on the petitioner and he was detained under the Act. No grounds of detention were served on the petitioner on account of the operation of S. 16-A of the Act which had come into force and remained in force for the duration of the emergency proclaimed by the President on June 25/26, 1975. When the emergency ended the petitioner was served with the detention order and grounds of detention dated March 21, 1977 which were later substituted by the impugned order and grounds of detention dated April 21, 1977. The petitioner contended that respondents 1, 2 and 7 acted at the behest and directions of 'extra Constitutional personalities' in the persons of respondents 4 and 5 and the exercise of power under the Act was thus mala fide, arbitrary, unconstitutional and for collateral purposes. The impugned detention order of April 21, 1977 was also attacked on the ground of its being based on non-existent and irrelevant facts.
5. Respondent No. 1 is the Additional District Magistrate, New Delhi who passed the impugned orders under the Act. Respondent No. 2 is the Union of India, the Central Government. Respondent No. 3 is the Superintendent, Central Jail, Tihar in whose custody the petitioner was lodged in jail, Respondent No. 4 is one Shri Adil Shahryar son of Shri Mohd. Yunus, special envoy to the former Prime Minister of India. Respondent No. 5 is Shri Sanjay Gandhi son of former Prime Minister of India. Respondent No. 6 is the Director of the Central Bureau of Investigation, New Delhi and Respondent No. 7 is the Delhi Administration.
6. According to respondent No. 6 the C.B.I. had nothing to do with the arrest of the petitioner or his interrogation or detention. Learned counsel for the petitioner conceded this. In this view of the matter the rule against respondent No. 6 is discharged,
7. Respondent No. 1, Mrs. Meenakshl Datta Ghosh, Additional District Magistrate, New Delhi has stated in her counter-affidavit that it is wholly incorrect that any orders of detention in respect of the petitioner were made by her on the dictation or at the behest of respondents 4 and 5. She admits that the detention orders dated February 11, 1977, March2l, 1977 and April 2.1, 1977 were made by her. She further admits that the petitioner was detained in the Central Jail, Tihar, by virtue of an order made by her under S. 3, (1) of the Act on April 21, 1977 and the grounds of detention were also communicated to the petitioner on April 21, 1977. Copies of the impugned detention order and the 'grounds' are Annexures R. 1 and P. 2 to the counter-affidavit. Respondent No. 1 denies that the impugned order of April 21, 1977 or the orders of February 11, 1977 and March 21, 1977 were illegal or unenforceable. She affirms that the said orders were made by her on her personal bona fide satisfaction on the basis of the material placed before her. In paragraph 2 of her counter-affidavit she states that the petitioner was first detained by an order dated February 11. 1977 which was issued on the same day and forwarded to the Superintendent of Police, New Delhi for being served on the petitioner but the order was served on February 18, 1977. In respect of this order she deposes that she was satisfied that the petitioner's detention under the Act was necessary for effectively dealing with the emergency which was then in force and, thereforee, in exercise of the powers conferred by sub-section (3) of S. 16-A of the Act she made a declaration that the detention of the petitioner was necessary to effectively deal with the emergency, She revoked the order of February 11, 1977 by an order dated March 21, 1977 on the revocation of the emergency which had been proclaimed on June 26, 1975. Even then she considered it necessary that the petitioner be detained under S. 3(l) of the Act on being satisfied that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the security of India. thereforee, she made a fresh order of detention on March 21, 1977. The grounds of detention were communicated to the petitioner on April 4, 1977. The said order and the grounds communicated to the petitioner recited the purpose of his detention as 'to prevent him from acting in any manner prejudicial to the maintenance of security of India'. It was pointed out by the Home Department Delhi Administration in consultation with its Law Department that the use of the expression 'maintenance of' was superfluous and was not envisaged by the Act, thereforee, she by an order dated April 21, 1977 revoked the order of detention dated March 21, 1977. However, being satisfied on the basis of material available on April 21, 1977 that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the security of India she made the impugned order under S. 3 (1) of the Act and directed that the petitioner be detained in the Central Jail, Tihar, New Delhi. The grounds of detention were communicated on the same day. Thereafter she sent the order of detention dated April 21, 1977 with her report to the Administrator, Union Territory of India (Delhi?) who approved the same on 29-4-1977. Respondent No. 1 in paragraph 4 of her counter-affidavit states that she was not in a Position to admit or deny the averments made by the petitioner in paragraphs 5 to 8 of the writ petition. These pertain to the various positions in which the petitioner was working till he joined the Directorate of Technical Development and Production (Air). With regard to the material which led to her satisfaction for making the order dated April 21, 1977, respondent No. 1 states that she had before her a report from the Superintendent of Police, C.I.D. (Special Branch) Delhi which, inter alia, stated that the petitioner had made a confessional statement before Shi Jaswant Singh, Metropolitan Magistrate. New Delhi on February 18. 1977 and that according to the confessional statement of the petitioner he came in contact with the agent of a foreign power in 1960-61 when he was working in the Directorate of Technical Development & Production (Air) Ministry of defense. She states that she had no reason to doubt the genuineness or correctness of the facts and circumstances stated in the said report since the same had been furnished by a responsible Government officer. She believed them to be true and ordered the detention of the petitioner under S. 3(l) of the Act. Respondent No. 1 denies any direction or compulsion of respondents 4 and 5 and states in paragraph 6 of her counter-affidavit as follows:-
'The order dated 21-4-77 in respect of the petitioner was made by me on being personally and bona fide satisfied of the necessity so to do. It was made at the request of the Government of India, Ministry of Home Affairs, the Home Dept. Delhi Administration and the Superintendent of Police, C.I.D. (S,B.) Delhi and on the basis of information furnished by the first and last of these authorities and not at the instance of respondent Nos. 4 and 5 as alleged by the petitioner. The allegation of conspiracy against 'the petitioner is wholly misconceived and far-fetched.'
Respondent No. 1 claimed privilege to disclose in open court the number and the names of other persons who also had been ordered to be detained for reasons of their suspected involvement in the commission of offences which are subject-matter of the F.I.R. 26/77 P, W. Srinivaspuri. She has averred that the petitioner is not the only person who had been ordered by her to be detained for the purpose stated in the order of April 21, 19,77 but there were some more persons who had been detained 'in connection with the alleged offences in respect of the F.I.R. mentioned in the grounds of detention dated April 21, 1977'. She has asserted that the impugned order of April 21, 1977 had been made by her on her personal bona fide satisfaction and not under the influence of any other persons and not in any case under the influence of the 4th and 5th respondents. She has denied the allegation of victimisation or the obtaining of a confession from the petitioner under duress or by making of false promises.
8. The counter-affidavit on behalf of the Union of India, respondent No. 2, has been sworn by Shri Suresh Chand Vaish, Director in the Ministry of Home Affairs, Government of India. New Delhi, He by and large supports the stand taken by respondent No. 1. In paragraph 5 of the counter-affidavit Shri Vaish has stated that it is admitted that the petitioner joined the Directorate of Technical Development and Production (Air) on September 29, 1962. He deposes, 'this fact has been ascertained by the answering respondent now in order to enable a reply to be file by the answering respondent in this Hon'ble Court' . Shri Vaish admits that emergency was declared under clause (1) of Art. 352 of the Constitution by a Presidential Proclamation dated June 26, 1975. He also admits that the petitioner was concerned with examination of a proposal of the Andhra Pradesh Industrial Development Corporation. This proposal, according to Shri Vaish, was still under consideration although it was admitted that the Allis Chalmers Corporation's technology did come up for consideration. Shri Vaish admits the petitioner's averment that respondent No. 4 accompanied by the Vice-President of M/s Allis Chalmers Corporation did see the petitioner aroun i the dates mentioned in paragraph 22 of the writ petition and that Sarvashri B, U Jethra and P. N. Shali were also present that time, although it is said only for some time. With regard to the petitioner's allegation in paragraph 23 of the writ petition that respondent No. 5 rang up Shri V. G. Rajadhyaksha, Chief Consultant, Planning Commission, that Allis Chalmers Corporation's technology should be pushed through by the petitioner, Shri Vaish in paragraph 10 of his counter-affidavit states that it has been verified from Shri Rajadhyaksha that it is incorrect to say that respondent No. 5 telephoned to him and complained to him a out the attitude of the petitioner. In paragraph 17 of his counter-affidavit Shri Vaish avers that on verification it has been found that Shri Rajadhyaksha and Shri Satvapal had separately asked the petitioner about the nature of discussions that took place between respondent No. 4 and the representative of Allis Chalmers Corporation 'as a matter of routine administrative procedure.' This averment is made to traverse the allegation in paragraph 24 of the writ petition that Sarvashri Rajadhyaksha and Satyapal both of the Planning Commission and officers senior to the petitioner spoke to him about the call from respondent No. 5, but the petitioner was not browbeaten because as a technical person he knew that the defects discovered by him were genuine. In paragraph 23 of the writ petition the petitioner has stated that respondent No, 5 thereafter tried to pressurise the officers of the Planning Commission to withdraw their objections and agree to the American process and for this purpose respondent No. 5 telephoned to Shri Rajadhyaksha, Chief Consultant of the Planning Commission and complained to him that the petitioner had misbehaved with respondent No. 4. It may be noted that the counter-affidavit of Shri Vaish has been verified to be true on information derived by him from official records of the Central Government and believed by him to be true Respondent No. 4 has stated in his counter-affidavit that he has nothing to do with the detention of the petitioner or the criminal case registered against him. According to him the petitioner has involved him only to make out a false case of mala fides by making false allegations against him. He admits that he is the Industrial Consultant Representative of Allis Chalmers Corporation in India from December 1, 1976. After setting out his academic and professional qualifications and activities, this respondent states that he did see the petitioner connection with furthering the scheme IV-M/s Allis Chalmers Corporation for adoption in the sponge iron plant to be setup in Andhra Pradesh. He denies that he in any way coerced the petitioner of threatened him. He denies any connection-of respondent No. 5 in this matter. In order to show that he was not in any way taking advantage of his father's official position he has stated that his mother and father had separated in 1964 and he had been living with his mother separately from his father and following his independent profession. He has further stated that he is not connected with respondent No. 5 in any political work or in any industry or business. He emphatically denies being an extra-constitutional authority or power' or in any way being c6nnected in this behalf with respondent No. 5 who also he denies was an 'extra-constitutional authority'. He justifies the technical feasibility of Ws Allis Chalmers process and submits that he was not connected with any conspiracy against the petitioner or conspiracy to import any defective technology in India as mentioned in the Financial Express in its issue of December, 1976. He admits that he wrote and got published in the press a letter contesting the claim made by the Financial Express. Indeed, he further goes on to say that after he had given the clarification, the matter was reconsidered and the Public Investment Board agreed to have a fresh look into the technology provided by M/s Allis Chalmers Corporation.
9. Respondent No. 5 in his counter-affidavit denies knowledge of the Petitioner's arrest or detention or his connection with the Planning Commission or any other body. He denies the alleged connection between him and respondent No. 4. He also denies that he put pressure on the Planning Commission or anyone else for any purpose.
10. Respondent No. 7 has filed its return by the counter-affidavit of Shri T. R. Kalia, Deputy Secretary (Home) in the Delhi Administration. He has stated that the report regarding the detention order dated April 21,1977 was received by the Administrator, Union Territory of Delhi, on April 22, 1977. On consideration of the material for the order of detention dated April 21, 1977, the Administrator approved the same on April 29, 1977. On May 2, 1977 the Delhi Administrator had accorded his approval to the detention order on April 29, 1977 and sent together with the report the grounds on which the order had been passed by the first respondent. The Delhi Administration also forwarded the grounds on which the order of detention had been made to the Advisory Board constituted under S. 9 of the Act. No representation had been received from the petitioner against the order of detention. The Board had fixed May 16, 1977 as the date on which to consider the matter and directed the production of petitioner on that date. Shri Kalia admits that the Petitioner was employed in Delhi Polytechnic as stated by him and left the service of Delhi Polytechnic on September 29, 19,62. According to Shri Kalia 'this fact has been ascertained by the answering respondent now in order to enable a reply to be filed by the answering respondent in this Hon'ble Court', In every other respect the affidavit of Shri Kalia supports the affidavits of respondents 1 and 2, He has disputed the allegations of the petitioner that he was coerced or tricked into making a confession or that the confession was not correctly and legally recorded by Shri Jaswant Singh, Metropolitan Magistrate. Shri Kalia has declined to comment on the culpability of the petitioner in the suspected activity in view of the fact that investigation on the basis of F.I.R. 26/77 P. S. Srinivaspuri is still in progress.
11. The petitioner also filed before us an application under S. 482 of the Code of Criminal Procedure, inter alia, praying that much of the controversy raised by the counter-affidavits could be resolved if a direction is given to the respondents to produce in court the relevant records pertaining to the petitioner particularly because the affidavits on behalf of respondents 2 and 7 have been affirmed on the basis of official records and not on personal knowledge. The petitioner also prayed by this application that respondent No. 4 be called in court for being cross-examined on his affidavit because many of the statements of fact made therein do not, prima facie, seem to be feasible or tenable. Mr. A. B. Saharya who earlier appeared as counsel for respondents 1, 2 and 7 very fairly offered to place all relevant record before the court and make it available even for the Inspection of the petitioner's counsel. In this view of the matter the application was not pressed. We note with satisfaction the attitude of learned counsel for the respondents 1. 2 and 7 who not only offered to place the relevant record but did place the same before us and we had the opportunity of perusing it. The relevant portions were also read out by learned counsel in open court. Mr. P. N. Lekhi, learned counsel for the petitioner, did not accept the offer of being shown the record. Thus, we had the benefit of perusing the record besides hearing arguments advanced by all the counsel with great ability.
12. Mr. P. N. Lekhi, learned counsel for the petitioner, attacked the petitioner's detention on six grounds. These Were:-
1. That the order of detention dated April 21, 1977 is not an order made on the subjective satisfaction of the officer authorised by S. 3(2) (b) of the Act but Is made by Mrs. Meenakshi Datta Ghosh, an A.D.M., under directions issued by and on the dictate of officers and authorities to which she is subordinate and at the bidding of higher and other authorities and persons. In other words, the order is not the result of the personal bona fide subjective satisfaction of the first respondent but is an order issued under dictate.
2. No reasonable opportunity was given to the petitioner to know the relevant and material particulars on which the grounds of detention were based.
3. The grounds of detention as communicated to the petitioner show that the same were non-existent. misconceived and irrelevant and lacking in material particulars.
4. The impugned order was mala fide and was a continuation of the earlier mala fide orders made at the instance of respondents 4 and 5 or higher authorities.
5. The detention of the petitioner was b4d on account of parallel proceedings pending under the Code of Criminal Procedure for offences envisaged by the Indian Official Secrets Act, read with Indian Penal Code.
6. Section 8(1) of the Act was really being abused by issue of successive detention orders.
13. Before we proceed to dilate upon the submissions made on behalf of the petitioner it would be proper to set out and notice a few pertinent documents and nothings from the record of the detaining authority shown to us.
14. With regard to the detention order dated February 11, 1977 we find from the record that an official D.O. letter was addressed by Shri S. C. Vaish, Directoi (IS), Government of India, Ministry of Rome Affairs, on February 11, 1977 to Shri Sushil Kumar, the then Chief Secretary, Delhi Administration. A copy of this communication was also sent to the District Magistrate for information and necessary action. The relevant portions of this letter read as under:-
'Pending further investigation of Srinivaspuri P.S. Case No. 26 dated January 26, 1977 u/ss. 3 & 9 of the Official Secrets Act read with Section 120-B Ipc, the following persons involved in this case may be detained under MISA:-
(i) ...... ...... ...... (ii) ...... ...... ...... (iii) R. P. Varshney, Director, Planning Commission
(iv) K. K. Sarin, Director, Planning Commission.
(v) ...... ...... ...... For obvious reasons it will not be possible to disclose the grounds of detention and hence S. 16-A of the Act will have to be invoked. We may be informed after the action is taken. '
The above letter was followed by a D.O. letter dated February 11, 1977 from Shri T. R. Kalia, Deputy Secretary (Home), Delhi Administration to Shri B. K. Goswami, the then Deputy Commissioner, Delhi. The relevant portions of this letter read as under:-
'In connection with the detection of a Cia net-work in India, it has been decided that pending further investigation of Srinivaspuri P.S. Case No.26 dated the 26th January, 1977 u/ss. 3 & 9 of the Official Secrets Act read with S. 120-B Ipc, the following persons involved in this case may be detained under MISA:-
1. ...... ...... 2. ...... ...... 3. Shri R. P. Varshney, Director, Planning Commission.
4. Shri K. K. Sarin, Director, Planning Commission.
5. ...... ...... For obvious reasons it will not be possible to disclose the grounds of detention and hence S. 16-A of the Misa should be invoked. It has the approval of the Govt. of India, Ministry of Home Affairs. I am, thereforee, desired to request you to kindly have the detention orders issued and detain them immediately under intimation to this Administration. .
The first respondent thereupon recorded the following note on the 'detention file' and has signed it on February 11, 1977:-
'I have carefully perused the d.o. letter dated 11-2-77 from Sh. S.C. Valsb6 Director (IS), Ministry of Home Affairs New Delhi. I am satisfied that the activities of Sh. R. P. Varshney, Director, Planning Commission are prejudicial to the maintenance of security of India and I, thereforee accordingly direct that the said Sh. R. P. Varshney be detained u/s 3(l)(a) (i) of Misa, 1971 as amended. I further hold that the detention of the said Sh. R. P. Varshney is necessary for dealing effectively with the Emergency proclaimed by the President under clause (1) of Art. 352 of the Constitution of India, on 25-6-1975.
Issue detention order and the declaration placed below with forwarding letter to the Delhi Administration, Delhi for the approval of the Administrator as required u/s 3(3) of the MISA. As per S. 16-A (6 (b) of Misa (Amendment) Ordinance, 1915 it is not necessary to disclose to any person detained under Misa under the provisions of S. 16A(3), the grounds on which the order has been made.'
15. With regard to the detention order dated March 21, 1977 the first respondent recorded the following note.-
'Sh. R. P. Varshney, Director Planning Commission was detained under Misa, 1971, as amended, vide detention order u/s 3Q) (a) W of Misa dated 11-2-77, with a view to preventing him from acting in any manner prejudicial to the maintenance of security of India, The Emergency proclaimed on 25-6-75 has been revoked by the President of India. Hence S. 16-A of Misa stands lapsed. Issue the revocation order directing Supdt. Jail to release the detenu.
However, it is still considered necessary to redetain the said Sh. R. P. Varshney under the provisions of Misa with a view to preventing him from acting in any manner prejudicial to the maintenance of security of India. Issue fresh detention order and a copy thereof be sent to Delhi Administration, Delhi for the approval of the Administrator as required u/s 3(3) of the MISA.'
The above note is dated March 21, 1977. A perusal of the file, however, discloses that there is on the file a carbon copy of the communication No. 905/Z dated March 22. 1977 which has been addressed by Shri K. S. Bajwa, Superintendent of Police, Cid (SB), Delhi to Shri B. K. Goswam.4 District Magistrate, Delhi. The relevant portions of this communication read as under:-
P1 'The following 8 accused persons were arrested in case Fir No. 26 Dt. 26-1-77 u/ss. 3, 4, 5, 9 0 C Act and 120-B Ipc of Police Station S. N. Puri, South Distt. N. Delhi. They were also detained under MISA. Since the emergency has been lifted, their previous orders of detention stand revoked automatically. Their detention under Misa, is however, absolutely necessary for the security and defense of the country. thereforee. detailed notes giving grounds of detention of each (in triplicate) are enclosed herewith for issue of their detention orders afresh:- 1. ...... ...... 2. 3. ...... ...... 4. 5. ...... ...... 6. 7. ...... ...... 8. 9. Raj Prakash Varshney s/o Dori Lal r/o c-II/34, Moti Bagh, New Delhi
9. 10. ...... ...... 11. 12. ...... ...... 13. 14. ...... ...... 15. Along with the above communication dated March 22, 1977 are sent grounds of detention for the petitioner, paras 3 and 5 of which read as under:-
'3. According to the confessional statement of the accused, he came in contact with the agent of a foreign power in 1960-61 when he was in the Directorate of Technical Development & Production (AIR) Ministry of defense. This agent allured him into passing on secret information and confidential documents from his office against handsome payments and the accused acceded to it. Since then he had been removing secret confidential and sensitive documents from his office and passing on the same to the agent of a foreign power clandestinely against handsome payments in cash. In all, he received about Rs. 15000-1- from this foreign agent for having supplied him the information and sensitive documents from his office.
4. ...... ...... 5. The accused has done a lot of damage to the national security by supplying sensitive information to the agent of a foreign power. His detention is necessary in order to prevent him from acting in any manner prejudicial to the security of the State and also India's relations with foreign power. It is, thereforee, recommended that the accused may be got detained under MISA.'
The grounds of detention postulated by S. 8 of the Act in respect of the detention order dated March 21, 1977, inter alia, read as under:-
a) On receipt of information that Sh .R. P Varshney Director, Planning Commission, New Delhi, was in close collaboration with the agent of a foreign power and had been passing on to him secret information and classified documents after removing the same from his office against handsome payments, he was arrested on 4-2-1977 in case Fir No. 26/77 under Ss. 3, 4, 5 and 9 Ios Act read with S. 120-B Ipc, P. S. Srinivaspuri. New Delhi. According to the confession made before Shri Jaswant Singh, Metropolitan Magistrate on 18-2-1977 Sh. Varshney came in contact with the agent of a foreign power in 1960-61 when he was in the Directorate of Technical Development and Production (AIR), Ministry of defense. Since then he had been removing secret confidential and sensitive documents from his office and passing on the same to this agent clandestinely against handsome cash payments. He is reported to have received Rs. 15000/- from this foreign agent for the information and confidential documents furnished to him.'
16. With regard to the impugned detention order dated April 21, 1977 the record has on it the communication No. 905/Z dated March 22, 1977 from Shri K. S. Bajwa, to Shri B. K. Goswami and the copy of the 'grounds' sent along with that letter. The first respondent had recorded the following note on April 21, 1977:-
'Detention orders under S. 3(l) (a) U) of Misa, 1971 were issued against Sh. R. P. Varshney, Director Planning Commission, New Delhi on 21-3-77 with a view to preventing him from acting in any manner prejudicial to the maintenance of security of India. A copy of the said order was also sent to Delhi Administration, Delhi for approval of the Administrator as required u/s. 3(3) of the Misa, 1971. The Administrator has not so far approved the said detention order.
Shri T. R. Kalia, Dy. Secretary (Home), vide his letter dated 20-4-77 has stated that the expression of the word 'maintenance of' in the detention order is not correct. He has accordingly requested to issue fresh detention orders. Since the detention order dated 21-3-77 has not been approved by the Administrator so far, issue the revocation order directing Supdt. Jail to release the detenu.
However, on consideration of the material before me, supplied by Supdt. of Police, Cm (SB) it is considered necessary to redetain the said Shri R. P. Varshney under S. 3(l) (a) (Q of Misa with a view to preventing him from acting in any manner prejudicial to the security of India. issue fresh detention order and a copy of the said detention order be sent to Delhi Administration, Delhi for the approval of the Administrator, Delhi as required u/s. 3(3) of the Misa, 1971.' We now proceed to deal with the various contentions.
17. It is common ground that no writ in the nature of habeas corpus or any other writ, order or direction is prayed for or can be issued against respondents 4 and 5. They have been arrayed as respondents only on account of the allegations made by the petitioner qua them. We will, thereforee, first deal with the case against these two respondents.
18. Mr. Ram Panjwani, who appeared for respondent No. 4 and whose arguments were adopted by Mr. A. N. Khanna who appeared for respondent No. 5, first urged that respondents 4 and 5 should not have been allowed to be dragged before this court in a matter where this court has been called upon to exercise its jurisdiction to issue a high prerogative writ of habeas corpus. It was contended that such a writ can only issue to the person wrongfully detaining the petitioner or at the most against a person on whose orders the petitioner was being detained. A number of decisions of the Supreme Court and even courts in England were cited in support of this contention. In our view none of those judgments are relevant. Respondents 4 and 5 were rightly arrayed as defendants in view of the allegations made about them in the writ petition. When serious allegations showing bad faith or interference with administration, executive or even judicial, is imputed to a person such person should at least have opportunity of being heard lest in his absence some finding adverse to him is given. On this principle alone, thereforee, respondents 4 and 5 cannot be said to have been wrongly arrayed as respondents.
19. As noticed earlier, respondents 4 and 5 have both denied any connection with the arrest and detention of the petitioner. Apart from a suggestion nothing cogent was brought on the record to show that respondents 4 and 5 had anything to do with the petitioner being arrested and detained either in connection with the investigation of Fir 26 of 1977, Police Station Srinivaspuri or under the Act. The only thing which stands established on record is the meeting that respondent No. 4 had with the petitioner and his obvious interest in furthering the case of Allis Chalmers Corporation, U.S.A. It is also established on record that the petitioner was not favoring the American technology and his superior officers did have a talk with him about what transpired at the meeting between the petitioner on the one hand and respondent No. 4 and representative of Allis Chalmers Corporation on the other From these facts established on record the complicity of respondents 4 and 5. as alleged, in what the petitioner calls a conspiracy to arrest and detain him, cannot be found as a fact. What transpired between the petitioner and Servashri Jethra, Shali, Rajadhyakshya and Satyapal has unfortunately not been clarified either in the affidavit of Shri S. C. Vaish filed on behalf of respondent No. 2 nor have the affidavits of these four gentlemen been filed. All the same, no inference adverse to respondents 4 and 5 can be taken and we must hold that the petitioner has failed to substantiate his allegation vis-a-vis these two respondents. The rule against them is, thereforee, discharged.
20. Coming now to the main issue before us, first of all we will deal with the contention on behalf of the petitioner and resisted on behalf of respondents 1, 2 and 7 that the impugned order of detention has been made not on the personal bona fide satisfaction of the first respondent but on the dictate of superior or other officers and at the bidding of higher authorities.
21. It is common ground that the first requisite of a valid order of detention under S. 3 of the Act is that it should be made on the personal bona fide satisfaction of the authority ordering the detention and not on the dictate of anyone else or on being influenced by anyone else.
22. S. A. de Smith in his Judicial Review of Administrative Action (second Edition) has commented upon the validity of an administrative order made while acting under dictation. In our judgment recently delivered in Criminal Writ No. 19 of 1977 : (reported in 2 Delhi 605), Mahabir Parshad v. V. K. Duggal, we have had occasion to notice with approval the observations of the learned author. To quote from our said judgment, 'An authority entrusted with power or discretion must not in the purported exercise of that power act under the dictation of another body or person. It may be true that sometimes authorities entrusted with statutory discretion or power may be obliged to take considerations of Public policy and in some context the policy of a Minister or of the Government as a relevant factor in weighing those considerations but this does not absolve them from their duty to exercise their personal judgment in individual cases. An authority invested with power must exercise it for the purpose for which it has been conferred and not for any collateral purpose. One may only refer in this connection to the decision of the Court of Appeal in the Queen v. Lord Leigh (1897) 1 Q.B.D. 132 and Earl Fitzwilliam's Wentworth Estates Co. Ltd. v. Minister of Town and Country Planning (1951) 2 K. B. 284.'
23. We repeat, as we have done before, the words of Lord Denning, M. R. in R. v. Governor of Brixton Prison (1963) 2 Q.B.D. 243. '.......... The court must investigate whether the Home Secretary has exercised his discretion without pressure by the United States Authorities. If the exercise of his discretion has been subject to pressure the deportation order is a sham. On the facts of this case (of) the cause of the deportation order was the pressure of the United States authorities. Reliance is placed on the following facts: there was no denial of the truth of what 'The Times' said in its report of August 8, 1962; the Home Secretary repeatedly gave directions under Art. 8 to El Al to remove the applicant to the United States although he knew that the airlines would not comply with them, thereafter he did not exhaust his powers under Art. 8 and direct the airlines to remove the applicant to another destination. Had it been the Home Secretary's policy simply to expel the applicant he could have deported him to Czechoslovakia which was willing to receive him or he could have sent him back to Israel where the airlines was willing to transport him.
Throughout the Home Secretary has insisted on removing the applicant to the United States. The only rational Explanationn of the Home Secretary's conduct is that he was seeking to appease American pressure for the surrender of the applicant. That is further borne out by the press statement of August 11, 1962, when the order was made, and by the other events of that day. The Home Secretary has been motivated by a desire to surrender the applicant to the United States Government. He has resorted to the expedient of a deportation order to achieve the illegal purpose. On the evidence the detention of the petitioner is prima facie unlawful. Hence, the deportation order is a sham.'
24. It is in the light of settled law and the rule enunciated as set out above that we have to examine whether the orders of detention in the present case are vitiated on the ground of having been issued not on the personal subjective satisfaction of the detaining authority but on the dictate of someone else.
25. The first respondent has strenuously asserted in her affidavit that she made the detention orders on the basis of the material placed before her and on being personally and bona fide satisfied that it was necessary to detain the petitioner to fulfilll the objector in furtherance of the object mentioned in the detention order. Learned counsel for respondents 1, 2 and 7 had urged that perusal of the record shown to us, including the letters from the Central Government and the Delhi Administration, establishes the personal bona fide satisfaction of the first respondent: and that the letters from the Home Ministry or the Central Government or the Home Department of Delhi Administration are no more than mere information being conveyed to a detaining authority for such action as that authority may like to take in the circumstances of the case. It was further stressed that this court in its writ jurisdiction cannot go into the sufficiency or adequacy of the material on which the subjective satisfaction of the first respondent was arrived at. All that the court can see is whether there was some material justifying the making of an order under the Act. It was also urged that though it was not admitted that the orders of detention dated 11-2-1977 or 21-3-1977 were invalid or illegal yet any defect in those could not mitigate against the validity or the efficacy of the order of detention dated April 21, 1977. For judging the validity of the impugned order what had to be seen was that the same on the face of it recites that it has been issued on the satisfaction of the first respondent. S. 114(e) of the Evidence Act would raise a presumption in favor of the validity of the order. Even on an investigation of the record of the detaining authority it would be apparent that there was sufficient material to enable the first respondent to arrive at the statutory satisfaction and make an order. The first respondent has affirmed on affidavit that the impugned order was issued on her personal and bona fide satisfaction of the necessity to make the order. It was conceded that the only material to make the impugned order A April 21, 19,77 was the report of the Superintendent of Police already extracted above. Reliance was also placed on the assertion of the first respondent in her affidavit that she had no reason to doubt the correctness of the report of Superintendent of Police, it having emanated from a senior and responsible officer who in normal course would have material to give that report and there was no reason to doubt that the report was made without there being any material for making the report.
26. Regarding the sufficiency of the material we will make our observations hereafter. For the time being we will confine ourselves only to the submission that the impugned order and the previous two orders were made under dictate and if so with what effect. We may here reiterate the law regarding 'acting under dictation' and will quote from Halsbury's Laws of England (Fourth Edition) Volume 1, para 31:-
'A body entrusted with a statutory discretion must address itself independently to the matter for consideration. It cannot lawfully accept instructions from or mechanically adopt the view of, another body as to manner of exercising its discretion in a particular case, unless that other body has been expressly empowered to issue such directions or unless the deciding body or officer is a subordinate element in an administrative hierarchy within which instructions from above may properly be given on the question at issue'.
27. Applying the above principles, we have no doubt in holding that the detention order dated February 11, 1977 was issued under the dictate of officers and other authorities superior to the first respondent when those officers and authorities do not have any statutory power or jurisdiction to issue the dictates. The note of the detaining authority extracted earlier shows that she acted mechanically and in obedience to orders she had received to detain the petitioner and others as contained in the communication, dated February 11, 1977 from Shri S. C. Vaish, Director (18), Government of India, Ministry of Bono Affairs, New Delhi and as gleaned from the directions in the letter dated Feb. 11, 1977 addressed by Shri T. P. Kalia to Shri B. K. Goswami. Section 3 of the Act authorises the Central Government or the State Government or the designated officers to make orders of detention. It is riot understood why the Central Government or the Delhi Administration should have asked the District Magistrate, Delhi, to issue detention orders in respect of the petitioner and some others and ensure that the detention orders are issued and executed. All the same, it has to be noted that these instructions were issued, and as the note of the first respondent dated February 11, 1,977 makes it clear, it was only on a perusal of these letters that the detention order was issued. We am further fortified in coming to this conclusion because of the manner in which S, 16A of the Act was applied, Though S 16A of the Act dispensed with the necessity of communicating the grounds of detention to a person detained under S. 3 of the Act for the period of the proclamation of emergency declared by the President yet there is no warrant in law for grounds of detention not being in existence. None were found to exist on the record. The contention on behalf of the respondents that the satisfaction had to be on the basis of whatever material was available to the detaining authority irrespective of its adequacy cannot be accepted in the context. It cannot be gauged from the two letters of February 11, 1977,which was the only material before the detaining authority how the alleged involvement of the petitioner and others in a case under the Official Secrets Act read with S. 120-B Ipc could be detrimental to 'the maintenance of security of India'. There is no material on the record to show that the involvement of the petitioner and others in the alleged criminal activity would be detrimental to the security of India as opposed to, say defense of India or India's relations with foreign powers or the security of the State. In our view the order recorded by the first respondent on February 11, 1977 falls within the mischief of mechanically adopting the view of a superior authority. It is pertinent to note that both the letters of Shri S. C. Vaish and Shri T. R. Kalia state that as it will not be possible to disclose the grounds of detention so, S. 16-A at the Act should be invoked or will have to be invoked. Mechanically, the first respondent invoked that provision of the Act and made a declaration. Besides the question of mala fides, which we will deal with later, It clearly shows following the dictate of superior authority and acting mechanically. We cannot persuade ourselves to agree with the submissions of learned counsel for the respondents that because the first respondent chose or in her mind formulated the object to be achieved by the detention of the petitioner, the impugned action spells out tier applying her mind and thus arriving at the statutory satisfaction. The order of February 11, 1977 is, thereforee, held to have been issued under dictate.
28. We now come to the order of March 21, 1977. It is curious that whereas this order and the grounds of detention accompanying this order are dated March 21, 1977, the information from the Superintendent of Police Shri K. S. Bajwa is dated March 22, 1977 and yet the grounds of detention are a precis of the grounds of detention sent by Shri K. S. Bajwa with his communication No. 905/Z dated March 27, 1977. It is also worth noting that the need to revoke the order of February 11, 1977 by the order of March 219 1977 arose because S. 16-A of the Act had ceased to be applicable in view of the revocation of the proclamation of emergency by the President. It is also significant to note that the communication of Shri Bajwa inter alias also mentions revocation of the emergency and further sets out that the detention under the Act of the petitioner and others was absolutely necessary for the security and defense of the country. How from the material supplied with this letter the security and defense of the country was jeopardised is neither disclosed nor known. The grounds of detention sent with the aforesaid letter mention a confessional statement made by the petitioner to the effect that he has been removing secret/confidential sensitive documents from his office and passing the same to the agent of a foreign power clandestinely against handsome payment in cash. What these documents were and how they adversely affected the security of India or the defense of India is neither disclosed to nor sought to be known by the first respondent. Following the dictate, or as the learned counsel for the respondents would have us believe 'the request', of the Superintendent of Police the first respondent mechanically passed the detention order dated March 21, 1977 incorporating in the grounds of detention the information contained in the grounds sent by the Superintendent of Police. If this is not acting under dictate or acting to oblige the Superintendent of Police we do not know what else is. We have already set out earlier the observations of Lord Denning, M. R. in the case of Regina v. Governor of Brixton Prison. (1963) 2 Qbd 241 The present case falls squarely within the rule enunciated by the learned Master of Rolls. We have, thereforee, no hesitation in holding that the order of March 21, 1977 was also issued under dictate.
29. Lastly we have the impugned order in force which is dated April 21, 1977. According to the noting of the first respondent extracted earlier the impugned order was issued only to correct an error which had crept in the order of March 21, 1977. There is no other material which could justify the issue of the order dated April 21, 1977. What we have observed about the order of March 21, 1977, thereforee, applies with full force to the order of April 21, 1977. The submission of learned counsel for the respondents 1, 2 and 7 that the report of the Superintendent of Police dated March 22, 1977 was before the detaining authority to justify the issue of the present order and it cannot be said that the report of the Superintendent of Police was irrelevant or insufficient material to arrive at a valid satisfaction cannot be accepted. Our attention was invited to several paragraphs of the affidavit of the first respondent in, this connection. We may refer only to paragraph 6. The very reading of this paragraph would show the working of the mind of the first respondent and fortify our conclusion that it was issued under dictate and not on her personal and bona fide satisfaction, as contended. The relevant part of this paragraph in the affidavit of the first respondent reads -
'....... The order dated 21-4-1977 in respect of the petitioner was made by me on being personally, and bona fide satisfied of the necessity so to do. It was made at the request of the Govt. of India, Ministry of Home Affairs, the Home Deptt. Delhi Administration and the Supdt. of Police, Cid (SB), Delhi and on the basis of information furnished by the first and last of these authorities........'
The file of the order of detention date4 April 21, 1977 does not show my request of the Government of India or the Deft Administration It only shows the 'request' of the Superintendent of Police Cid (SB), Delhi It is obvious, thereforee, that what the first respondent had in her mind were the letters dated February 11, 1977. issued by the Home Ministry, Government of India and the Home Department of Delhi Administration. She does not set out the request of the Government of India or the Delhi Administration in her order in the noting section of the file in respect of the order of April 2-1-1977. The only conclusion which we can arrive at is that at the back of her mind was the dictate of the Central Government and the Delhi Administration contained in the letters of February 11, 1977 and the very positive 'request' of the Superintendent of Police contained in the note dated March 22, 1977.
30. Satisfaction to be a valid satisfaction, as postulated by S. 3 of the Act, has to be based not only an relevant material but has to be free from the vice of acting under dictate or a mechanical adoption of the views of a superior authority. At this stage we are not commenting upon the relevancy or sufficiency of the material. What we are concerned with is whether acting under dictation can be seen and gauged in the facts and circumstances, of the case. The mere assertion that the order was made on personal and bona fide satisfaction of the detaining authority or the mere reading of what is stated in the order of detention would not be sufficient to hold that the order was not made under dictation from a superior or other authority. The rule enunciated in Jaichand Lal vs. State of West Bengal : 1967CriLJ520 would not be attracted in this case, particularly in view of the fact that record of the detaining authority is before us. The assertion of the first respondent that she issued the impugned order of detention on her personal and bona fide satisfaction cannot be accepted in the background of the ca and in view of what she has stated herself in her affidavit in paragraph 6 which we have extracted above. We, thereforee hold that the impugned order of detention dated April 21, 1977 is, to quote the words at Lori Denning; M.R. 'a sham' and was issued at the behest of or on the dictation of Superior or other authority, if not by a mechanical adoption of the views of the Home Ministry of the Government of India, the Home Department of the Delhi Administration and the Superintendent of Police, CID(SB), Delhi that it was necessary to detain the petitioner under the Act.
31. We now proceed to deal with the question as to whether the material on which the first respondent arrived at her satisfaction could be called full and relevant material to issue the impugned order of April 21, 1977 or the earlier orders of February 11, 1977 or March 21, 1977. We have already noticed on what material the orders of detention dated February 11, 1977, March 21, 19,77 and April 21. 1977 were issued. We are conscious of the fact that it is not for this court to go into the sufficiency of the material but all the same we cannot shut our eyes to the provisions of S. 8 of the Act and Art. 22(5) of the Constitution. Preventive detention envisaged by our Constitution was permitted to exist side by side with the fundamental right guaranteed by Art. 21 of the Constitution in the exigencies of the time when our Constitution was promulgated in January, 1950. thereforee, though permitting preventive detention, the Constitution has provided for certain imperatives which must be complied with or which must pre-exist before a person can be detained without trial4 As was said by V. R. Krishna Iyer, J. in Bhut Nath Mate v. The State of West Bengal, : 1974CriLJ690 .
'Before getting to grips with the contentions we may indicate the constitutional dimensions of the freedom of which the Judges are, in part, sentinels on the qui viva. Civil liberty, a constitutional guarantee is, a strange bed-fellow with detention without trial, a British bequest. Begun from the days of the East India Company, our freedom fighters, including the Father of the Nation, have endured its repressive impact and so when the sombre, colonial story came to a close, our founding fathers enshrined freedom of the person as a fundamental right. But as realists they knew that we became free amidst blood bath and chaos and the environs of belligerency. The delicate balance between security and liberty had to be kept, conscious that, in the contemporary world, war is to peace near allied and 'thin partition do their bounds divide' and the defenses of a nation can be destroyed and the morale of its people broken not only by external aggression but also by internal disruption. The sensitive underside of the nation can be wounded by those who break up public order, breach State security, blow up essential supplies and services; and so, as an unhappy necessity preventive detention, apart from punitive prison term, was recognized and provided for. Being committed to the rule of law, a primary article of faith the framers of the Constitution mistrusted uncanalised power in the Executive and wrote into the paramount law provisions regulating preventive detention and proclamations of emergencies. After all, Lord Acton's dictum that absolute power corrupts absolutely was for them no new knowledge, and Lord Atkin's great words in Liverside v. Anderson, 1942 Ac 906 that amid the clash of arms the laws are not silent, that they may be changed, but they speak the same language in war and peace, reverberated in their ears. thereforee, where freedom is in peril and justice is threatened the citizen shall receive the fullest protection from the Court within the four corners of Art. 22, benignantly stretched, and the safeguards of the Act, liberally interpreted within legitimate limits. The worth of the human person is a chershed value carefully watched over by the Court. Such is the judicial perspective in the application of Art. 22 of the M. I. S. A., which it contains, controls and animates.'
It is in the context of the rule of law laid down by the Supreme Court and the fundamental rights guaranteed by Articles 21 and 22(5) of the Constitution that we say that the grounds of detention, whether to be communicated or not, must exist before la detaining authority can pass an order under S. 3 of the Act. Furthermore, the grounds of detention mu3t disclose material facts to arrive at the statutory satisfaction to prevent a particular evil for which it was necessary to detain a person without trial. Mere D.O. letters of the type issued in the present case cannot be regarded as relevant material having probative value on which the statutory satisfaction could be based. Indeed, the first respondent has been candid enough to admit that she on the basis of the said letters of the Government of India and the Delhi Administration arrived at the prescribed satisfaction. We cannot persuade ourselves to agree with the contention that a mere 'information' and 'request' as was contained in the letters of the Government of India or the Delhi Administration or the communication of the Superintendent of Police can form the basis of arriving at the statutory satisfaction, particularly in view of the phraseology of those letters and communication. The notes recorded by the first respondent in respect of the three orders of detention show adoption by her of the views of superior and other authorities and not application of her own mind to the material said to be constituted by these letters and communication. Furthermore, if the facts and material disclosed are insufficient for the purpose (.f Art. 22(5) of the Constitution or S. 8 of the Act, the detention order stands vitiated. We were referred to Prabhu Dayal Deorah v. District Magistrate, Kamrup, : 1974CriLJ286 and it was urged that sufficiency of material for the purposes of arriving at the statutory satisfaction is not justiciable except vis-a-vis the Constitutional imperative of Art. 22(5) of the Constitution. In our opinion, the rule laid down by the Supreme Court is not what was urged at the bar. The material facts on which the grounds of detention are framed and the statutory satisfaction arrived at are relevant I both for the purposes of finding out whether there was statutory satisfaction and whether the constitutional requirement of Art. 22(5) of the Constitution and the statutory requirement of S. 8 have, been met. As was observed by Mathew J. in Prabhu Dayal's case, 'If the detaining authority had no particulars before it as regards the smuggling operation. how it was possible for it to have been satisfied that the petitioner were smuggling rice to Meghalaya for undue profit?' That is precisely the situation in the present case. The satisfaction of the first respondent vis-a-vis the order of February 11, 1977 stands vitiated as it was merely based on adopting the view of and following the dictate of the superior authority. The satisfaction for the order of March 21, 1977 stands vitiated because in the background of the letters of February 11, 1977, adverted to earlier, there was almost a directive from the Superintendent of Police, Cid (SB) that the petitioner be detained, as contained in his note and the grounds of detention sent with it bearing the date March 22, 1977. The satisfaction for the order of April 22, 1977 is vitiated because it was merely follow up for corrective action to the earlier action taken by the first respondent. It has been held repeatedly and we need quote only the observations of Bhagwati J. in Xhudiram Das v. The State of West Bengal, : 2SCR832 , as to why 'grounds' must exist and are required to be communicated to a detenu. As his Lordship observed, 'Obviously the reason is twofold. In the first place, the requirement of communication of grounds of detention acts as a check -against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu so that, not only the detenu may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the power of judicial review howsoever limited and peripheral it may be. Secondly, the detenu has to be afforded an opportunity of making a representation'. Further his Lordship has observed: 'Then again the satisfaction must be grounded 'on materials which are of rationally probative value'. Machinder v. King Air 1950 Fc 129. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. It is in this context that one has to test the material on which the first respondent says she relied to arrive at the impugned satisfaction. In our view the first respondent cannot stand the test. Although the order of detention dated April 21, 1977 or March 21, 1977, and we need not dilate on the satisfaction for the order of February 11, 1977, is said to be based on the report submitted by the Superintendent of Police, Cid (SB) this fact was never communicated to the Petitioner. The material supplied by the Superintendent (if Police on the record has a 'request' to detain the petitioner and others as it was necessary to detain these persons which had been arrested in connection with the investigation of F.I.R. 26 of 1977, Police Station Srinivaspuri and since grounds had to be supplied on the revocation of the emergency and S. 16-A of the Act could no longer be invoked. To our mind to agree to the contention that there was statutory satisfaction would be a travesty of justice. There is absolutely no doubt on a reading of the various letters, communications and notes that the first respondent irrespective of what she has said in her affidavit, mechanically issued the order of detention by adopting the views expressed by superior and other authorities instead of herself applying her mind whether by detaining the petitioner in such circumstances any of the objects postulated by S. 3 of the Act were likely to be achieved. She had no material except the bare statement of the Superintendent of Police to come to a conclusion that the alleged activity of the petitioner prior to his arrest on February 4, 1977 was such which jeopardised the security of India Indeed, the Superintendent of Police was himself not clear whether it was the security of India or the defense of India which was being Jeopardised. We, thereforee, hold that there was no valid material with any rational probative value on which the postulated satisfaction could be arrived at.
32. We now come to the submission that the Impugned order of detention is vitiated on account of mala fides or bad faith. What is malice or mala fides or bad faith has already been commented upon by us in Criminal Writ No. 19 of 1977: (reported in 2nd (1977) 2 Delhi 605 adverted to earlier. We had referred to and we may with advantage again ref2r to the observation of V. R. Krishna Iyer, J. in Bhut Nath Mate v. The State of West Bengal, : 1974CriLJ690 . The learned Judge dealing with preventive detention laws observed:-
'We are concerned as earlier stated only with some aspects of the preventive detention jurisprudence, in the present case, and we confine ourselves to them. The District Magistrate should be bona fide satisfied about the prejudicial activities of the detainee. Absence of bona fides in this context does not mean proof of malice, for an order can be mala fide although the officer is innocent. The important point is that the satisfaction of the public functionary, though subjective must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects enumerated in S. 3 (1) of the Act. , 32A. The observations of Viscount Faldane L. C. made in Shearerv. Shields 1914 A C 808 were noticed with approval in Bhut Nath Mate's case AIR 1974 Sc 8, Viscount Haldane, L. C. had observed as follows:-
'Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind, he is taken to know the law, and he must act within the law. He may, thereforee, be guilty of malice in law, although, so far as the state of his mind is concerned, he, acts ignorantly and in that sense innocently. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated' 33. The first respondent may have acted innocently but in the circumstances of the case must be held to have acted in bad faith. It is true that we are concerned with bad faith of the detaining authority and no one else in this case but we are of the view that the impugned order is vitiated because of malice in law. Although the petitioner's allegations that the first respondent issued the impugned orders to oblige respondents 4 and 5 have not been proved, yet the order must be held to be vitiated on account of the vice of bad faith. The successive detention orders issued -and the circumstances in which they have been issued show bad faith. First of -all S. 16-A of the Act was invoked in respect of the detention ordered by the order of February 11, 19117 without there being any grounds of detention. On the revocation of the proclamation of emergency and because S. 16-A of the Act was no longer available, grounds of detention were sent by the Superintendent of Police, Cid (SB) who affirmed the necessity to detain the petitioner in the interest of security of India and the defense of India, and lastly because of a technical flaw in the language of the detention order of March 21, 1977 that order being revoked on April 21, 1977 without referring the matter to the Advisory Board and a fresh detention order being issued. The very initiation of the action against the petitioner on February 11, 1977 was mala fide and in abuse of the powers conferred by the Act. The continued detention by successive orders, it, is clear on a reading of the notes which have been extracted above, was also mala fide.
34. It is significant to note that the first respondent seems to have been satisfied on a report emanating from the Superintendent of Police. Cid (SB) without making any further enquiry in the matter. Preventive detention is a serious matter and not to be indulged in as a matter of routine and merely because a higher authority or some other authority requests a detaining authority to invoke the power vested in it. It was incumbent upon the detaining authority on receipt of the sort of request that she did from the Superintendent of Police mentioning a confessional statement of the petitioner to verify the facts before adopting the Precis of the confessional statement in the grounds sent by the Superintendent of Police along with his communication dated March 22, 1977. On subsequent enquiry it has been found by her that in 1960/1961 the petitioner was not working in the Directorate of Technical Development & Production (AIR) Ministry of defense. The nature of documents or information alleged to have been supplied by the petitioner to the agent of a foreign power was not known to the detaining authority. Disclosure of secret/confidential and sensitive documents may nit necessarily jeopardise the security of India or the defense of India. Disclosure of such documents may be an offence under the Official Secrets Act and nothing more. All these aspects were necessary to be found out before the information about the alleged confessional statement could have been relied upon to arrive at the statutory satisfaction. Not doing it would amount to bad faith in law.
35. It is obvious that the purpose of detention or at least asking for petitioner's detention under the Act was to see that S. 167 of the Code of Criminal Procedure is not taken advantage of. This would be collateral purpose and also makes the detention mala fide.
36. The detention of the petitioner was also vitiated on account of non-compliance with the constitutional imperative of Art. 22(5) and the statutory requirement of S.8 of the Act. The grounds of detention communicated to the petitioner do not set out, indeed it was not even known to the detaining authority, as to what was the nature of the documents which were allegedly communicated to the agent of a foreign power, how many documents were given, what information was passed on and to whom. The grounds communicated thus suffer from a serious defect, viz., lack of particulars or vagueness. We are fortified in coming to this conclusion from the observations of Ridayatullah, C. J. in Chaju Ram v, The State of Jammu & Kashmir, : 1971CriLJ281 , viz. (at P. 263, Pt. B. L. N.):-
'Where the grounds 8f detention supplied to a detenu detained under Jammu and Kashmir Preventive Detention Act 1964 charged him with having conspired with some leaders of Democratic Conference and having incited landless people of Rspura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them, but no details of the leaders of the Conference or of the persons incited or the dates on which he conspired at incited the squatters or the time when such Conference took place, were mentioned it would be impossible for anybody to make a representation against such grounds and they must be held to be vague.' 37. We need not deal with any other point that was urged. Accordingly, we accept this petition and quash the impugned order of detention dated April 21, 1977, issued by respondent No. 1 under S. 3 of the Act and also the grounds of detention dated April 21, 1977 communicated to the petitioner. We make the rule absolute against respondents 1, 2, 3 and 7 and issue a writ in the nature of habeas corpus directing that the petitioner be set at liberty forthwith.
38. Petition allowed.