J.N. Bhatt, J.
1. Centuries old, classic, constitutional, conceptual, and critical contest between; a personal liberty, a life of Democracy; 'Rule the Stale by the Normal', on one hand and 'Oh Liberty! What crimes are committed in thy name'; on the other, has again been, surfaced in this Referential consideration and adjudication, in this petition based on Constitutional writ remedy under Art. 226 of the Constitution of India.
PREFATORIAL PROFILE :
2. All human beings are born free and equal in dignity and rights. All men are endowed by their creator with certain 'unamenable rights'. Justice, Liberty and Equality have been the pursuits of Man in civilized society. Preservation of human life is the most important right for an individual. Personal liberty has been claimed as a part of 'right to life' and with the development of this concept, Courts have come to protect various aspects of personal liberty as part of protection of life. Art. 3 of the Universal Declaration of Human Rights provides : 'Every one has right to life, liberty and security of person,'
Article 21 of the Indian Constitution provides :
'No person shall be deprived of his life or personal liberty except according to procedure established by law.'
Liberty is a dynamic concept, therefore, continual research is necessary to regularly assess the changing dimension of the right to personal liberty guaranteed under Art. 21 of the Constitution of India.
3. Preventive Detention is a serious encroachment on the liberty of a person. But at limes, it is necessitated on account of larger public order and justice. Some enactments, still, on account of their nature, continue to have the provisions of Preventive Detention. No doubt, detention without trial is terribly obnoxious. However, larger societal interest furnishes justification. Preventive Detention should primarily be treated, also, as psychological deterrent in a fight against anti-social, anti-national, habitual and dangerous offenders and such other subversive activities and should not be taken or characterised as downfall of liberty. Preventive Detention is qualitatively different from punitive detention. Their designs and desicieratums are different. We propose to discuss and highlight the jurisprudential aspect, the significance, the role and the legal status of both, preventive detention and punitive detention, little later hereinafter, in course of our discussions, in this referential judgment, since we deem it expedient to first advert to, projection of relevant factual scenario and material legal profile.
FACTUAL PROJECTION :
4. The gist of the constitution of this Larger Bench is an order under reference, of learned single Judge of this Court, dated 14-12-2000 (Coram : Kundan Singh, J.) as in the course of hearing this petition, he found that divergent views are taken in three Division Bench cases and one Single Bench case. He, therefore, desired following questions to be considered and determined by the Larger Bench :
'(1) Which of the decisions taken by the Division Benches in the cases of Nasimbanu M. Shaikh v. Commissioner of Police, reported in 1988 (2) GLH 475 or in the case of Zubedabibi Rasid Khan Pathan v. State of Gujarat, reported in 1995 (2) GLR 1134 and/or in the case of Unusbhai Hasanbhai v. District Magistrate in L.P.A. No. 1056 of 1999 decided on 15-9-1999 and/ or in the case of Sagar Shrikrishna Ahir v. Police Commissioner, Ahmedabad, is correct one?
(2) Whether it is necessary for the detaining authority before resorting preventive detention to take steps for cancellation of bail under Section 437(5) of the Criminal Procedure Code, in the cases in which the detenu has, already, been granted bail?
(3) Where the detaining authority has taken into consideration that the cancellation of bail under Section 437(5) of Criminal Procedure Code would take long process and not resorting to take action for cancellation of bail under Section 437(5) of Criminal Procedure Code in the registered cases in order to prevent antisocial activities of the detenu, action for preventive detention is required. Even then will the satisfaction of the detaining authority be deemed to be impaired if any action for preventive indulging in anti-social activities?'
5. A spectrum of skeleton projection of the facts, may be, highlighted, at the outset, so as to appreciate the merits and the challenge against the aforesaid questions in this reference.
6. The petitioner assailed legality and validity of the order of detention passed by the District Magistrate, Bhavnagar-respondent No. 1, on 21-7-2000, in exercise of his powers conferred, under Section 3(2) (and not under Section 2(c) as mentioned in reference order and probably mistakenly) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (popularly, colloquially and customarily characterised, briefly and known as the 'P.A.S.A. Act') (Gujarat Act, XVI of 1985). The detaining authority passed the impugned order of detention, on 21-7-2000, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, in the area pertaining to Alang Police Station, Bhavnagar City, finding him a dangerous person, as defined in Section (2) clause (c) of the P.A.S.A. Act and chieftain of gang frequently committing offences under Indian Penal Code.
7. The petitioner-detenu was supplied with the grounds of detention along with documents running into 93 pages on the same day i.e., 21-7-2000. The detaining authority has referred to and relied upon three cases registered against the petitioner, at Alang Police Station, Bhavnagar City, for the offences punishable under Chapter XVI and XVII of the Indian Penal Code ('I.P.C.' for short hereinafter). All the three cases have been shown as pending trial. The detaining authority has also based his satisfaction from the statements of three witnesses, wherein, the privilege under Section 9(2) of the P.A.S.A. Act has been claimed. The detenu was granted bail in all the three cases registered against him and relied on by the authority and copies, whereof, are also supplied to the detenu.
8. The P.A.S.A. Act is designed to provide preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders and property-grabbers to prevent their anti-social and dangerous activities prejudicial to the maintenance of public order. It is a State Act which came into force, on 27-5-1985. Section 3 of the P.A.S.A. Act prescribes power to make orders to detain certain persons. The impugned detention order is passed under sub-section (2) of Section 3 of the P.A.S.A. Act by the District Magistrate, Bhavnagar-respondent No. 1. The order of detention was, actually, executed upon the detenu on the same day by the detaining authority, the date on which the order of detention came to be passed.
9. The impugned detention order is challenged on multi-dimensional and divergent grounds and such grounds were raised before the learned single Judge in the course of final hearing. One of the contentions raised before the learned single Judge was that the petitioner-detenu has, already, been granted bail in all the three I. P. C., cases which were registered against him. The detaining authority could have approached the Court for the cancellation of bail granted to him under Section 437(5) of the Code of Criminal Procedure, 1973 ('Cr. P. C.') in order to preventing him from carrying on illegal and frequent nefarious activities as such a course would have been less drastic than resorting to pass an order of detention under the P.A.S.A. Act. It was, also, urged that, had, an application for cancellation of bail been moved, the detenu would have got an opportunity to contend that he was not a habitual offender. But the detaining authority, wrongly, took a very drastic action in passing the impugned detention order against the petitioner which is illegal.
10. It was further submitted that the detaining authority had not considered that the cancellation of bail in the registered cases, would not be sufficient for preventing him from doing criminal activities. As such, therefore, the impugned order suffers from the vice of non-application of mind which vitiates the subjective satisfaction of the detaining authority. Reliance was placed on behalf of the detenu upon the Division Bench decision of this Court in Zubedabibi's case (supra). Reliance was also placed on the order of the learned single Judge of this Court in Sagar Ahir's case (supra) recorded in Special Civil Application No. 9005 of 1999, decided on 19-1-2000 and on the Division Bench decision of this Court in Unusbhai's case (supra) decided on 15-9-1999. The learned single Judge found that contrary view had been taken by a Division Bench of this Court in Nasimbanu's case (supra) which was not brought to the notice of subsequent Division Bench decision in Zubedabibi's case though which is followed in other two subsequent cases, as it was earlier decision in point of time. Therefore, he made a reference to a Larger Bench to resolve the finality of the controversy. That is the gist and genesis of the reference placed before this Larger Bench.
11. During the course of hearing, the learned Counsel appearing for the detenu and the learned A. G. P., for the State, have taken us through the excursion of the entire record which we have, dispassionately examined and also, through the aforesaid four decisions of this Court and the relevant proposition of law, and other case-law to which we shall make reference, hereinafter, as and when, required at an appropriate juncture.
MAIN LEGAL PROPOSITIONS OF REFERRED CASE-LAW :
12. The Nasimbanu's case (supra), was decided, on 17-3-1988, by the Division Bench of this Court (Coram : S.B. Majmudar, J., (as he then was) and B.S. Kapadia, J.), following propositions were elucidated and propounded :
(i) The detaining authority had stated in the grounds of detention the list of criminal cases pending before the competent Courts against the detenu under Section 66-B, 65-E and 81 of the Bombay Prohibition Act. In all the three cases, the detenu was released on bail. It was held that the detenu was enlarged on bail and this fact was considered and detaining authority was alive to the fact that the detenu was enlarged on bail by the competent Court. The competent authority, also found, from time to time, when he was involved in criminal cases which were pending trial against him, and despite that he had continued his nefarious activities as a bootlegger.
(ii) The contention that the concept of consideration of alleged less drastic remedy of cancellation of bail at the instance of the detaining authority was not necessary. The detaining authority had observed that it was not possible to immediately, prevent the detenu from his activities by taking steps under ordinary law and as per ordinary law, criminal cases were filed against the detenu and the same were pending hi the criminal Courts and still he had continued his illegal activities. Such recitals and observations of thedetaining authority in the grounds were held to be indicative of the tact that the detaining authority was aware that cancellation of bail would not serve any purpose and cancellation of bail also pertains to the realm of ordinary law. It was, also, held that the aspect of cancellation of bail was considered by the detaining authority before reaching to his subjective satisfaction of immediate need to detain the detenu under the P.A.S.A. Act.
(iii) It was, also, held that the concept of less drastic remedy by cancellation of bail cannot be considered to be relevant on the ground that it is not a lesser drastic remedy. It is not obligatory for the detaining authority to consider the question of getting bail order of the Court cancelled instead of passing the detention order. It was, therefore, held that the non-consideration of the aspect of cancellation of bail, as alleged less drastic remedy, by the detaining authority was not relevant for deciding validity of the detention order and getting conditions imposed regarding bail was, also, held to be irrelevant in such cases. The detention order was upheld and the petition of the detenu was thrown overboard.
13. In Zubedabibi's case, divergent views were taken by the Division Bench (Coram: K.J. Vaidya & S.D. Dave. JJ.). It was decided on 9-3-1995. The decision in Nasimbanu's case was not brought to the notice of the Division Bench in Zubedabibi's case. Zubedabibi's case was followed in Unnsbhai's case by a Division Bench of this Court (Coram : C.K. Thakker, J., (as he then was) and A.L. Dave, J.). In Sagar Ahir's case, again Zubedabibi's case was followed. It was decided by a Single Bench (Coram : A.K. Trivedi, J.), The view taken by the Division Bench of this Court in Zubedabibi's case is, directly, in conflict with the Division Bench decision in Nasimbanu's case.
14. In Zubedabibi's case (supra), the Division Bench of this Court has held that the subjective satisfaction recorded by the detaining authority will be impaired, when the detaining authority has not resorted to cancellation of bail under Section 437(5) of the Cr. P. C., as the powers of the Court for cancellation of the bail are not limited to those cases only in which the conditions have been imposed and the person released on bail is guilty of violating the terms and conditions of the bail. There would be non-application of mind on the part of the detaining authority in not considering or adopting statutory requirement under the ordinary law or the existing legal process contained in Section 437(5) of the Code. The detenu in that case was released on bail in all the cases. In that case, it was also held that the detenu had been released on bail in all the cases and the detaining authority had not resorted to provisions of Section 437(5) of the Code for cancellation of the bail. Even in absence of any breach of conditions, it would tantamount to non-application of mind, and therefore, the detention order was held suffering from the patent vice of non-application of mind, and on that count, the petition was allowed and the detention order was quashed and set aside.
15. In Unusbhai's case (supra), decided on 15-9-1999 Zubedabibi's case was followed by the Division Bench of this Court. It was, also, found in that case that in Zubedabibi's case (supra), the case of Nusimbanu was not brought to the notice of the Court. The Court, also, observed in this case that in'Nasimbanu's case' (supra), the Division Bench construed the aspect of cancellation of bail granted to the detenu, as accused in a case registered against him in the context of the provisions of Section 437(3) of the Code, whereby, conditional bail was granted and cancellation was claimed on the breach of conditions by the detenu. It was further observed that the aspect of wider power for cancellation of bail and resorting to take person into custody, invoking power under Section 437(5) of the Cr. P. C. has not been considered as one of the preventive measures to preclude detenu from repeating or indulging into antisocial activities by enforcement of general provisions of law. Further, the decision rendered in the case of 'Zubedabibi' (supra) by the Division Bench was subsequent in time and the view expressed therein, would hold valid and good law. Thus, the case of 'Zubedabibi' was followed and the case of Nasimbanu was not followed.
16. In Sagar's case (supra), learned single Judge (Coram : A.K. Trivedi, J.), which was decided on 19-1-2000, the Nasimbanu's case was not followed. The learned single Judge followed Zubedabibi's case. It was, also observed that in the case of Zubedabibi, the cancellation of the bail granted to the detenu as 'accused' in a case registered against him in the context of provisions contained in Section 437(3) of the Code, whereby, conditional bail was granted and cancellation was claimed on the ground of breach of the conditions by the detenu. The aspect of wider power for cancellation of bail and taking a person into custody under Section 437(5) of the Code had not been considered as one of the preventive measures to preclude detenu from repeating or indulging into anti-social activities by enforcement of general provisions of law. The detention order was, therefore, quashed and the petition was allowed.
17. Obviously, therefore, the question in focus for our consideration and adjudication is as to whether it is necessary for the detaining authority, before resorting to preventive detention, to take steps for cancellation of bail under Section 437(5) of the Cr.P.C. in the cases in which the detenu has, already, been granted bail? This question is decided affirmatively by this Court in Zubedabibi, Unusbhai and Sagar all the three cases referred hereinabove, whereas, in Nasimbanu's case (supra), the Division Bench of this Court has held that the cancellation of bail cannot be considered to be relevant as it is not a lesser remedy or less drastic measure and non-consideration of this aspect of cancellation of bail, by the detaining authority could not be said to be relevant or obligatory for determining the legality and validity of the detention order. It was further held that even getting the conditions imposed regarding bail, is also, irrelevant and unnecessary in such cases.
18. In this connection, it was further observed in that case that the Magistrate cannot impose as a condition precedent of bail, pending investigation and trial of such offence, that the accused shall not commit similar offence for which, he is arrested and brought before him. The condition that he may not commit same type of offence during investigation or trial or in any case, or he may not disturb public order, which would be a condition, would be, totally, diverse from and contrary to the provisions under Section 437(1) read with Section 437(3). If such condition cannot legitimately be imposed while granting bail then in such prohibition cases, it is obvious, that there would be no question for approaching the Criminal Court with a request to cancel the bail for non-compliance of such impermissible condition. Therefore, there would remain no occasion for the detaining authority to consider such a speculative or hypothetical question before deciding to preventively detain the detenu, on being satisfied that the detenu, while on the bail, had disturbed the public order and such situation required immediate preventive detention. The cancellation of bail first was held to be not important or imperative under General Law to pass preventive detention order under Special Law.
PATHOGENESIS OF BAIL-LAW :
19. Section 437(3) of the Code reads as under :
'(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more of any offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (XLV of 1860), or abetment of, or conspiracy or attempt to commit any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary, -
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interest of justice.'
It can be very well seen from the aforesaid provisions that the conditions of Section 437(3)(b) can be imposed while granting bail in case of non-bailable offence. When a person is accused of or suspected of commission of offence punishable with imprisonment which may extend to 7 years or more or of any offence under Chapter VI, XVI and XVII of Indian Penal Code, 1860 or abetment of, or conspiracy or attempt to commit any such offence, the Court is empowered to impose any condition, which the Court considers necessary in order to ensure that such person shall not commit an offence similar to the offence of which he is accused of or of the commission of which, he is suspect. While granting bail in a non-bailable offence, it is not imperative for the Court, even in such cases falling within sub-section 3 of Section 437. Therefore, the Court may or may not impose the condition while granting bail in non-bailable offence.
20. Even in a case falling within Section 437(3), any condition imposed while releasing the accused on bail for ensuring that he shall not commit offence similar to the offence of which he is accused of or of the commission of which he is suspected, whether detaining authority is obliged to get such a bail order cancelled before passing a detention order under the General Law by invoking the provisions of Section 437(5) of the Cr. P. C.? Is it a lesser remedy or less drastic measure? In our opinion, it cannot be treated or it would not tantamount to a less drastic remedy. Again, it is not necessary to be resorted to, beforepassing detention order and keeping him in judicial custody cannot put him to more freedom or liberty. He will be a detenu as an undertrial prisoner.
21. Nothing has been brought on record or even submitted in this behalf that an undertrial prisoner enjoys higher liberty or greater freedom of movement as compared 10 preventive-detenu. In either case, as an under-trial prisoner or as detenu, it would deprive such a person of liberty and freedom and movement and all the same, he would remain a detenu for all practical purposes. Therefore, it cannot be contended that the detaining authority must consider the question of getting the bail cancelled and taking prospective detenu in the judicial custody. In our opinion, therefore, the submission that the detaining authority should first, invariably, resort to cancellation of bail invoking the provisions of the general remedy of Cr. P. C. under Section 437(5), is totally foreign to the scope of preventive detention, and therefore, such a submission is devoid of any force of law.
22. Secondly, again, one more processual realm and area of cancellation of bail is required to be explored. Rejection of bail, when bail is applied for, is one thing, whereas, cancellation is different thing. Cancellation, as such, involves the review of the decision, already, made and can by and large be permitted only, if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. Even in many cases while granting bails, the Court may not impose conditions even if the case is covered under Section 437(3) regarding insurability that the accused shall not commit an offence similar to the offence of which he is accused of. In such a case, there would not arise a question of cancellation of bail on account of the breach of such condition.
23. Thirdly, even if such a condition is imposed, when the case falls under Section 437(5), then, also, for cancellation of bail, substantial and cogent material is required for an order seeking cancellation of bail. The Apex Court in Bhagirath Sinh Jadega v. State of Gujarat, AIR 1974 SC 372, has lucidly expounded the legal process on this count. It has been held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend is towards granting bail, because it is, now well settled by a number of decisions that the power to grant bail is not to be exercised as if to punish before trial is commenced. The only material consideration in such a situation is whether the accused would be readily available for his trial and wether he is, likely, to abuse the discretion in his favour by tampering with evidence. This legal proposition is also very well expounded and approved by the Hon'ble Apex Court in Daulatram v. State of Haryana, 1995 SCC 439.
24. Fourthly, Section 437(5) empowers the Court to relpase the person on bail, if the Court is satisfied on the basis of material placed on the record and not mere apprehension or suspicion. Bail, once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoining the concession of bail during the trial. Havingonce the Court considered the necessities of grant of bail to the accused, the revisability of cancellation of bail order requires substantial material or cogent or overwhelming circumstances.
25. Fifthly, one more factor, which must engage our attention and requires to be considered, is about consumption of time in the long process of cancellation of bail order which even if done is subject to challenge in the higher forum. The very purpose and object of passing of detention order is to prevent a person from indulging in nefarious, anti-social or illegal, anti-national and such other activities, when he is likely to commit such offences. Whereas, the authority empowered of passing detention order is required to consider the case for preventive detention expeditiously.
26. Suppose, if he is obliged to first get the bail order granted to the detenu-accused cancelled, then he will have to undergo through a very long legal conduit-pipes which will entail, undoubtedly, the procrastination or long delay and such a delay, in all probability, in many cases, would defeat the very purpose and the object of legislative mechanism of preventive detention. In our opinion, it is not even required to be considered much less resorted to as a condition precedent for passing detention order. We cannot, also, be oblivious that Section 437 empowers the Magistracy Courts to grant bail in case of non-bailable offences, whereas Section 439 of Code provides for special powers of High Court and Court of Sessions regarding bail.
27. Sixthly, again, even if the grant of bail-order has merged with the order of the Sessions Court or the High Court or for that purpose with the order of the Apex Court, the original Court, which has granted bail, cannot pass an order for the revocation of the bail. So, what will be the practical situation if the detaining authority has to first get the bail order cancelled? He will have to approach the Court whose order has become final or the hail order granted by the trial Court merging with the higher Court. In such a factual situation and practical scenario, the very objective and expeditious action, against habitual offenders, headstrong persons, smugglers and anti-social and anti-national elements, by passing preventive detention order, may be frustrated. No provision or any authority is pointed out or placed before us in this behalf by the petitioner's Advocate contrary to the view which we have taken.
28. Seventhly, there is again one very material, interesting and important aspect, which requires serious consideration. It is pertaining to compulsive bail or default-bail under Section 167 of the Cr. P. C. Section 167 of the Code provides procedure when investigation cannot be completed in twenty-four hours. The right of accused to be released on bail it the charge-sheet is not filed within a statutory period of 60 or 90 days, as the case may be, is absolute. Under Section 167(2) of the Code, an accused is entitled to be released on bail upon expiry of 90 days when the investigation relates to an offence punishable with death or imprisonment for life or 10 years and upon expiry of 60 days, where the investigation relates to any other offence. The accused person shall be released on bail if he is prepared to furnish bail on the expiry of period of 90 days or 60 days, as the case may be.
29. Thus, it becomes clear that if charge-sheet is not filed within the statutory period, the accused becomes entitled to be released on bail and the release of accused on bail under Section 167(2) shall be deemed to be released under the provisions of Chapter XXXIII of Cr. P. C., for the purpose of that Chapter. Therefore, the release of accused under compulsive bail or default bail under Section 167(2) should be considered as one under Sees. 437(1) or 437(2) of the Code. Mere subsequent filing of challan or charge-sheet by police subsequent to such release is not itself sufficient or efficient ground for the cancellation of the bail ipso-facto. Release of accused on bail under proviso to Section 167(2) of the Cr. P. C., is deemed to be so released under Chapter XXXIII of the Cr. P. C. Therefore, it becomes obvious that the only method by which bail may be cancelled or revoked is to proceed either under Section 437(5) or Section 439(2) of the Code.
30. The deeming Section of correlating the release on bail under sub-section 2 of Section 167 with Chapter XXXIII of Cr. P. C., remains. Like that, under Sees. 437 and 439 of the Code it has to be treated the order as one passed and the later provision once the order of release by fiction of law and order passed under Section 437(1) or (2) or Section 439(1). It follows as a natural consequence that the said order can be understood under sub-section 5 of Section 437(1) or Section 437(2) as it has provisions relevant for cancellation of any order thereunder. Therefore, the bail granted to the accused cannot be cancelled on mere filing of charge-sheet. It is a default bail - on account of fault on the part of the investigating agency to conclude the investigation within the period prescribed. In view of the proviso to sub-section (a) (2) of Section 167, he shall be deemed to have been so released under the provisions of Chapter XXXIII of the Cr. P. C.
31. It cannot be held, therefore, that an accused charged of an offence, including offence under T.A.D.A., if released on bail, because of default in failure of completion of the investigation, then, no sooner the charge-sheet is filed, then the order of granting bail to such an accused has to be cancelled. The bail of even such an accused, who has been released because of default on the part of the investigation officer to complete investigation, can be cancelled, but not only on the ground that after his release, the charge-sheet has been submitted against such an accused for any offence for which he is charged. For cancellation of bail, even in case like T.A.D.A., the well-settled principle in respect of cancellation of bail will have to be made out. Therefore, the cancellation of the bail in case of default or compulsive bail under Section 167(2)(a) could only be passed when a case for cancellation is made out either under Section 437(5) or 439(2) of the Cr. P. C.
32. The cancellation of bail or reconsideration or revisability of earlier order demands and commands cogent, material and strong circumstances. In case of preventive detention, parameters are different. It is not a punitive order. It is neither a rehabilitative nor resortative order. The detention order is passed to prevent person on suspicion so as to prevent him from indulging in illegal, antisocial, anti-national and such other activities which would affect the public ordersituation and national security. If the contention of the petitioner that the cancellation of the bail is required to be resorted to by the detaining authority, as a less drastic remedy, which in fact, does not seem to be a part of legislative history or a scheme, if accepted, then it would entail adverse and paralytic result and impact on the main design and desideratum of the provisions of the preventive detention law.
33. Again, for cancellation of bail on merits, it would become available to Court only after filing of the challan because earlier thereof, merit of bail would not be considered at the time of grant of compulsive bail, whereas, passing an order of detention for prevention of illegal activities of prospective detenus, is to secure his detention, expeditiously, for ensuring public peace, public tranquility, public order and preventing anti-social, anti-national activities like indulgence in terrorism or smuggling or drug-trafficking or immoral trafficking, etc. Therefore, cancellation of bail cannot be said to be a condition precedent or less drastic remedy for passing detention order. Therefore, we are of the dear opinion that it is not necessary for the detaining authority, before resorting to preventive detention, to take steps for cancellation of bail under Sec, 437(5) of the Code in cases in which the detenu has already been granted bail.
34. Obviously, now, it will take us to the consideration of the next question that, where the detaining authority has taken into consideration that the cancellation of bail under Section 437(5) of the Cr. P. C., would take long process and not resorting to take action for cancellation of bail under Section 435(5) of the Cr. P. C., in the registered cases in order to prevent anti-social activities of the detenu, action for preventive detention is required. Even then, will the satisfaction of the detaining authority would be deemed to be impaired, if any action for preventive indulging in anti-social activities?
35. The State Government under sub-section (1) and the District Magistrate or the Commissioner of Police as per sub-section (2) of Section 3 of the P.A.S.A. is satisfied that with a view to prevent a person from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, he is empowered to make an order directing that such person shall be detained. The subjective satisfaction has to be reached on an objective consideration of facts. The satisfaction of the authorities is 'sine qua non' The detaining authority has to take into consideration all the relevant and vital facts and circumstances before reaching to the satisfaction for passing the preventive detention order. No doubt, such a satisfaction should be reasonable and genuine.
DOCTRINE OF SUBJECTIVE SATISFACTION :
36. The order of detention is passed on the basis of what come to be known as subjective satisfaction of the detaining authority. Obviously, 'subjective' expression does not mean capricious, whimsical or fanciful. But that it may vary from one person to other. It is one possible opinion which any reasonable person can arrive at. 'Satisfaction' denotes the intimate opinion of the person concerned and not the logic conclusion arrived at, upon strict rules of evidence. Equally true is, the fact that such subjective satisfaction must be arrived at, on two points :
(1) Upon vital facts imputed of the person to be detained.
(2) On prognosis of the detaining authority that the person concerned is liable to indulge again in similar type of illegal or nefarious activities. Of course, second point depends on the first, but the subjectiveness is on a higher pedestal insofar as second aspect is concerned.
37. Circumstances prevailing at the time, in the society may, also, be taken into consideration. Of course, it is a matter of expediency and not incumbency subject to judicial review. As tar as, the first point is concerned, the detaining authority, which has to formulate an opinion of authenticity of the factual panorama or profile is obliged to consider all the relevant and vital facts, those which are against, as well as, those in favour of the person concerned and the approach of the detaining authority ought to disclose that he has effectively engaged himself into such required exercise. It is not the intention of the Court to find out whether the opinion reached by the detaining authority is sound or its quality. The Court has to verity whether the detaining authority has proceeded in the proper manner and approach to comprehend the reality with all the materials available with him.
38. It is, rightly, said, preventive detention is 'largely precautionary and based on suspicion' and Lord Finally in Rex v. Hallidy, 1917 AC 260, observed that 'the Court was a least appropriate Tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based'. It is, therefore, clear that the resort to detention under detention law is taken by way of precaution to prevent mischief to the community and in the larger public interest. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably believable, he would do. It must, necessarily, proceed in all the cases to some extent of suspicion or anticipation as distinct from proof.
39. By catena of judicial pronouncements, following aspects have emerged, unquestionably, which are required to be kept live on the mental radar before reaching to the subjective satisfaction for passing the order for detention.
(i) Only relevant and vital material is required to be taken into consideration for subjective satisfaction of the detaining authority.
(ii) It is an unwritten law, constitutional and administrative, that wherever a decision making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit incumbency to apply his mind to the pertinent and proximate matters only eschewing the irrelevant and remote aspects.
(iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which cannot be questioned by the Court. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated.
(iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court shouldbe to ascertain as to whether the decision-making process for reaching the subjective satisfaction on objective facts, is in any way influenced, coloured or affected by any caprice, malice or irrelevant considerations or non-application of mind.
(v) Subjective satisfaction cannot be re-examined or reviewed by the Court on the ground that ordinarily general criminal law can be invoked instead of special enactment.
(vi) At the time of making a detention order, the authority should arrive at proper satisfaction and such satisfaction should be reflected, clearly, and in categorical terms in the order of detention.
(vii) The satisfaction cannot be inferred by very making of the order which says that 'it was necessary to prevent the detenu from acting in a manner prejudicial' falling within the mischief of Section 3(1) of the Act.
(viii) The detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention by an expression of satisfaction.
(ix) Justification for such an order should exist in the very ground furnished to the detenu to reinforce the detention order. Ordinarily, it cannot be explained subsequently by substituting further reasons. It is, therefore, clear that the decision of the authority must be natural culmination of the application of mind to the relevant and material facts.
(x) The subjective satisfaction is based on mental process and it must be followed by the authority in taking action for passing the detention order.
(i) First, in such a process, in the first stage is to examine the material adduced against the prospective detenu to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner.
(ii) Second, if the aforesaid material appears, satisfactorily, to the authority concerned, then the detaining authority has to further consider whether it is likely that the said person would act in prejudicial manner in the near future, if he is not prevented from doing so by passing an order of detention.
For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. In absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority.
40. It would be appropriate, at this juncture, to articulate the most important and guiding observations, made in a very recent decision of Constitutional Bench of the Hon'ble Apex Court, in Sunil Fulchand Shah v. Union of India, 2000 SCC (Cri) 659 : 2000 (2) GLR 1532 (SC) : 2000 (3) SCC 409.
'Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Art. 22 in the Constitution so as to limit the power of the State to detain a person without trial, whichmay otherwise pass the test of Art. 21, by humanising the harsh authority over individual liberty. Since, preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of the State or public order, it has been recognised as 'a necessary evil' and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. However, the power being drastic, the restrictions placed on a person to preventively, detain must, consistently with the effectiveness of detention, be minimal. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. This Court, as the guardian of the Constitution, though not the only guardian, has zealously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.'
41. In Amrutlal v. Union Government, 2001 SCC (Cri) 147, it has been held that prevention detention order, based on subjective satisfaction can be passed even if the detenu is already in jail provided the detaining authority is satisfied about the cogent material before him for passing of detention order. There must be, thus, substantial and cogent facts and circumstances before the detaining authority for passing the detention order, that the detenu is likely to be released on bail. Of course, even the inference has to be drawn from the available material on record. But it should not be on caprice or arbitrariness. This decision shows that even detention order can be passed even if the detenu is in custody and there is cogent material to indicate that he is likely to be released on bail. This proposition, evidently, runs diametrically counter to the contention that the detaining authority, first, has to get even the bail cancelled in a case registered against the detenu as less drastic remedy under the general law, before resorting to preventive detention under the special enactment.
42. The action by way of preventive detention is based on apprehension and the Court is not a proper forum to investigate the question whether the circumstances leading to suspicion exists warranting restrain of a person. The language of Section 3(1)(2) of P.A.S.A., clearly, indicates that the responsibility for making a detention order rests upon the detaining authority which alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the Court substitutes its judgment for the satisfaction of the authority on an investigation undertaken regarding sufficiency of the material on which such satisfaction was grounded.
43. The anxiety of the Court should be only to examine the grounds-disclosed by the Government in order to see whether they are germane to the object enshrined in the Act and to prevent the detenu from engaging in nefarious activities. The satisfaction to be reached before passing detention order by the detaining authority is subjective in nature and such a satisfaction if based on objective facts and relevant grounds cannot be stated to be invalid. The Court has to examine whether the detaining authority has applied its mind to the facts relevant and vital in reaching to the subjective satisfaction before passing thedetention order. The Court can upon judicial review examine whether the grounds disclosed are relevant to the objects of preventive detention act. But it cannot act as a Court of an appeal.
44. No doubt, detention order is subject to judicial scrutiny and review. Nonetheless, the Court can only examine the grounds disclosed by the authority or the Government, as the case may be with a view to consider as to whether they are germane to the objective or relevant to the purpose which the legislature has in view, that is, to prevent the detenu from engaging in anti-social, immoral trafficking, property-grabbing, boot-legging, which are prejudicial to the maintenance of public order. Such a satisfaction is subjective in nature, and if founded on the relevant grounds and vital circumstances, cannot be characterised to be illegal or invalid. In a recent judgment, the Hon'ble Supreme Court in Union of India v. Arvind Shergill, 2000 AIR SCW 3258, relying on the proposition of law laid down in the Landmark Constitution Bench decision of the Supreme Court in Sunil Fulchand Shah v. Union of India (supra), has lucidly, expounded this proposition of law.
45. In Radhakrishnan Prabhakaran v State of T.N., 2000 (9) SCC 170, it has been, clearly, propounded that when the detaining authority has compelling reason to pass detention order, in the circumstances manifested in the grounds of detention, it is not for the Court to substitute its satisfaction, but it is only a scrutiny to be made to ascertain whether the detaining authority had, really, arrived at the satisfaction that the detenu has to be preventively detained in public interest. It has also been clearly, propounded, in this decision, that only documents which were relied upon by the detaining authority in reaching its subjective satisfaction about the necessity of preventive detention of the detenu are required to be furnished. A prior order rejecting bail of the detenu would be of no relevance, and therefore, copy thereof, need not be supplied when, subsequently, order granting bail was passed and copy thereof had been given to the detenu. Counter-affidavit filed by the department as against the bail application being not a matter which engaged the attention of the detaining authority while passing the detention order, copy of the same, also, need not have been furnished to the detenu. Thus, the proposition of law is amply and evidently explained and expounded that the detaining authority is obliged to furnish and the detenu is entitled to be furnished only those documents which are relied upon by the detaining authority in reaching its subjective satisfaction,
46. In Haridas Amarchand Shah v. K.L. Verma, AIR 1989 SC 497, it has been held by the Hon'ble Supreme Court that it is not necessary to furnish to the detenu copies of all the documents seized or collected by the detaining authority, which are not material and relevant for reaching the subjective satisfaction of the detaining authority. It was further held that, moreover, in absence of any application from the detenu requesting detaining authority to furnish copies of such documents, detention order is not vitiated on the ground that failure to supply documents infringed the fundamental right to make effective representation. This decision was rendered under the National Security Act and while interpreting the provisions of Section 3 of the said Act and the provisionsof Art. 22(5) of the Constitution. It is further observed that bail granted to the detenu with the condition requiring to attend Enforcement Department everyday varied on detenu's application requiring him to attend the Department as and when required were held not vital and material document. It was, therefore, held that failure to produce the same before the Authority before arriving at the subjective satisfaction would not vitiate the detention order.
47. The order of preventive detention can be recorded against the detenu, who is, already in jail or in custody. Therefore, the order of preventive detention may be made before or during the prosecution. It could, also, be made with or without prosecution and or in anticipation or after discharge or even acquittal. This proposition, is very well expounded in Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154. Not only that, in many cases, the Courts have also found that second order on the same ground can be passed if the order of detention is found to be bad or detective on technical ground.
48. It will be, also, interesting to refer here to the proposition elucidated by the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India, AIR 1991 SC 2261. Therein, preventive detention was recorded under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detaining authority had' noted that though the detenu was in jail, there was likelihood of his being released on bail and the authority was, also, satisfied that the detenu was likely to indulge in smuggling activities. There were compelling reasons to pass the detention order. It was, also, found that vital documents, like, bail application and order refusing bail, were not placed before the detaining authority. However, neither of them had been referred to nor relied upon by the detaining authority. It was, therefore, held that there was no need to supply the same to the detenu and non-supply of such documents which are not relied on would not affect, or in any case, vitiate the subjective satisfaction of the detaining authority since there were compelling necessity for passing the order of detention on other relevant and Material on record. In this case, the Hon'ble Supreme Court has explained and distinguished the proposition on this count propounded in M. Ahamedkutty v. Onion of India, 1990 (2) SCC 1.
49. We are, also, prompted to mention that in Ashim Kumar v. State of W.B., AIR 1972 SC 2561, the Apex Court on evaluation of the facts and circumstances has, laid down the proposition that arrest of the petitioner to prosecute him under Criminal Procedure Code and later on enlargement on bail is no bar against the detaining authority in issuing the order of preventive detention. It, also, clearly, goes to show that the detaining authority, is not obliged to first go for cancellation of the bail granted. Even if the detenu has filed an application for being enlarged on bail, and such document is, incidentally, referred to in the grounds of detention by the detaining authority, if copies of documents like such an applications which are not relied upon, but only, incidentally referred to in the grounds, even refusal on the part of the detaining authority to supply to the detenu, in making effective representation, would not violate the provisions of Art. 22(5) and vitiate the detention, if he is not handicapped in making effective representation. It was a case decided under Sec.3(1) of the P.A.S.A. The case in reference, also, pertains to the preventive detention under sub-section (2) of Section 3 of P.A.S.A., same provision under which the petitioner has been detained.
50. The Hon'ble Supreme Court has, also, held in Shiv Ratan Makim v. Union of India, AIR 1986 SC 610, while dealing a case under Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, that possibility of instituting criminal prosecution would not constitute a ban or bar to ordering preventive detention. Similar view is, also, taken by the Supreme Court in Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177. In Poonam Lata v. M.L. Wadhawan, AIR 1987 SC 2098, held that the detention order would not be illegal when the detenu was in custody and when the detaining authority was aware of the fact, while passing the order of detention and if he has been satisfied of compelling reasons that his detention is necessary. Let it be, also, mentioned, at this stage, that in Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1, a Bench of three Hon'ble Judges has, extensively, explored and lucidly expounded the proposition of powers of the Court for cancellation of bail under Section 437(5) or under Section 439(2) in a case of default bail.
51. It has been, clearly, observed in the said decision that bail granted under Section 437(1) or (2) or under Section 439(1) can be cancelled under Section 437(5) and 439(2) on certain grounds. Some of them are illustrated. However, it has been, also, observed that rejection of bail stands on one footing, but cancellation of bail is a harsh order because it interferes with the liberty of an individual, and hence, it must not be lightly resorted to. When the Legislature made it obligatory that the accused shall be released on bail, if the charge-sheet is not filed within the outer limit provided by proviso (a) to Section 167(2) of Cr. P. C., it manifested concern for individual liberty, notwithstanding the gravity of the allegation against the accused. The fact that bail was earlier rejected or that it was secured by thrust of proviso (a) to Section 167(2) then recedes in the background. The Court is, therefore, required to consider the question of cancellation of bail on the merits of the case.
52. Therefore, if the contention that the detaining authority, first must resort to the remedy of cancellation of bait is accepted to be correct as a condition precedent for passing the order for preventive detention, it would run counter to the very design and desideratum of the concept and philosophy of passing preventive detention in a given situation.
LIBERTY VERSUS PUBLIC INTEREST :
53. Jurisprudential Exposition.
Aged-old conflict of interest between personal liberty versus public order is the substratum of the reference on hand. There are multitudes of persons whose idea of liberty is the right to do what they please, instead of the right of doing that which is lawful and the best. Lean liberty is better than fat slavery. Liberty is the right to do whatever the law permits. The Judge is intrusted with the liberties of the people and his saying is the song of the law. Although man is born free, he is everywhere in chains, undoubtedly of law. Lord Action.has said rightly that liberty, next to religion, has been the motive of good deeds and the pretext of crime. In Liversidge v. Anderson, (1942 AC 206), Lord Atkin has also, observed, 'In this country, amid the dash of arms, the laws are not silent. They may be changed, but they speak the same language in war or as in peace.' It has always, been one of the pillars of freedom, one of the principles of liberty for which on recent authority, we are now fighting that Judges are no respecters of persons and stand between the subject and any attempted encroachment of his liberty by the executive, alert to see that when any coercive action is justified in law. Lord Dening has rightly said, 'It is better to have too much freedom than too much control; it is better still to strike the happy means.' As such, liberty is the right to do whatever law permits. Liberty is the only thing you cannot have unless you are willing to give it to others. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no Court can save it.
54. Liberty is the delicate fruit of the mature civilization. It is not a means to higher political end, but it itself is the highest political end, the great aim of the struggle for liberty has been equality before law. When someone is punished for having violated other's rights, thereby, affecting public order or peace, it is not the case that the criminal has alienated from others, otherwise, lost his right, rather it is the case that criminals' choice to live in a rights - violating one is being respected. Law grants liberty only to those, who follow and love it and who are always ready to guard and defend it. History shows the greatest dangers to liberty lurk in insidious encroachment by power, by men of zeal, may be well meaning, but without proper sanction and without understanding. We must not forget that we have guided missiles but misguided men. It is, rightly, said in a free society, the conflict between social conformity, public order and peace, an individual liberty is permanent, unresolvable and at times not unnecessary. George Bernard Shaw has rightly said that liberty means responsibility and that is the reason why most of us dread it. Life without liberty is like a body without spirit. As such, liberty is the mother, not the daughter, of order. The love of liberty is the love of others, whereas, the love of power is the love of ourselves.
55. The important task of the Court is to maintain a balance between liberty and authority. By the term, 'liberty', as employed in the provision of 14th Amendment in U.S. Constitution, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to not to act in such a manner not inconsistent with the equality rights of others, as his judgment may dictate for the promotion of happiness, that is to pursue such callings and avocations as may be most suitable to develop those faculties and capacities and give them their highest enjoyment.
56. Cardozo has aptly observed, 'Liberty, as a legal concept, contains an underlining paradox. ' Liberty, in the most literal sense, is a negation of law, for law is restraint, and the absence of restraint is anarchy. On the other hand, anarchy by destroying restraint would leave liberty with exclusive possession of the strong or unscrupulous. It must, also, be observed that mere is no basisfor saying that liberty and public order are not compatible. Would it not be a decision of desperate out of exasperation?
57. Liberty is not mere absence of restraint. It is not a spontaneous product of majority rule of law. It is not achieved merely by lifting under-privileged classes to power, nor is it the inevitable by-product of technological expansion. It is achieved only by rule of law. It is a hard-earned Treasure.
58. Personal liberty is guaranteed to the individual and the constitutional law, under Art. 21, which provides that life and liberty of the individual shall not be deprived of, by the State, without the procedure established by law. The safeguard provided by the term 'procedure established by law' is against the legislature and the action of the executive, to maintain the liberty of the individual. Thus, Art. 21 in our Constitution, is a counter-part of the American term, 'procedural due process'. Personal liberty is accorded special recognition in the Constitution of India. The solemn declaration contained in the preamble assures, 'the dignity of the individual.' Art. 14 mandates that the State shall not deny equality before law and equal protection of laws. An. 19 guarantees fundamental freedoms. Art. 21, which has acquired new dimensions in Indian Constitutional Law by the creative and dynamic role of the Hon'ble Apex Court and various High Courts, shows that the person shall not be deprived of his life or personal liberty, except according to the procedure established by law and again, which, according to Maneka Gandhi's case, AIR 1978 SC 597, should not only be 'just and right', but should not be arbitrary, fanciful, capricious or oppressive. Personal Liberty is one of the important human rights. Where a person is in prison or under arrest or even in detention, he cannot be denied the benefit of this precious right. The question is, if the State or the authority or for that purpose any power, fails to carry out these constitutional obligations towards its citizens, where should the citizens go? It is here that the role of the Courts assumes higher significance and considerable importance in safeguarding these valuable rights.
59. The expression 'Human Rights' has not been specifically defined in any declaration or convenant of the United Nations. Human Rights are, generally, defined as 'those rights which are inherent in our nature and without which we cannot live as human beings.' Recognition of these natural rights of human beings is as ancient as the human civilization. The Human Rights track back to the Magna Carta (1214 A. D.) the Petition of Rights (1627 A.D.) and the Bill of Rights (1688) in U. K. The Declaration of Rights of Men (1789) by the French National Assembly influenced and framing of the Constitution of U.S.A. and in the 19th century, these rights became the basic principles of the Constitution Law of modern civilized, states. In the realm of protection of fundamental' rights and sustenance of social justice, the Supreme Court of India, with its dynamic and creative contribution, has emerged as guardian of Constitution and protector of social justice and social peace and public order. The role and invaluable contribution of Hon'ble Supreme Court of India is extremely commendable and highly appreciable in expanding the human rights and it is found that Art. 21 as the most fruitful constitutional provision. It (Roleof Hon'ble Supreme Court of India), is, undoubtedly, semantic, sound, and stellar in World Road-Map of concept and protection of 'Right to Life'. Right to life and liberty has been taken on very high pedestal in expansive and elaborate analysis by the Hon'ble Supreme Court of India.
60. Personal liberty is of non-negotiable value. It is inalienable fundamental right, which cannot be abridged or curtailed, except according to the procedure established by law. Art. 21 of the Constitution prescribes fundamental and important right to life and personal liberty. It is rightly, said, 'What light is to the eyes, what air is to the lungs, what love is to the heart, liberty is to the soul of the man.' Franklin De Roosevelt inspired the world by his address where he said, 'We would rather die on our feet than live on our knees.' A fragmented legal fragile country, warring within itself and maddening in an insatiable race for power and ego at the cost of others, can never be serene, sublime or stable. Pathological insensitivity makes for a savage of world order where human rights ideology is a stranger. So, let us build a new brave system, a strong love for the liberty, a powerful legal system making valuable access to one and all concerned so as to translate the dream of Founding Fathers of our Constitution.
61. Needless to reiterate and emphasise that the concept of preventive detention is very old. It always curtails liberty of an individual. The concept of liberty is also not a new thing. It represented a facet of higher values, which mankind began to cherish in its evolutionary stages. The principle that no one shall be deprived of his life or liberty without the authority of law was a necessary corollary of the concept relating to the sanctity of life and liberty. This concept grew and acquired dimensions in response to the inner urges and noble impulses with the emergence of civilization. It ought to be noted that liberty is not absolute. It is confined and controlled by law - whether common, general law, statute law or ethics. In fact, liberties are regulated freedom. It cannot be said to be an abstract or absolute freedom. One would be reminded of 'Magna Carta' when one makes an inquiry into the right of personal liberty based on principles of rule of law with the executive against interfering with the liberty of a person except by authority of law. There is no authoritative definition of term 'preventive detention' in Indian law. The expression has its origin in the language used by Judges or the Law Lords in England.
62. The word, 'preventive' is used in contradiction to the expression 'punitive'. According to Lord Finalley, 'It is not punitive, but a precautionary measure. ' Lord McMillan has observed in Liversidge v. Anderson that the object is not to punish a man for having done something, but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification of such detention is suspicion or reasonable probability and not criminal conviction, which only are warranted by permissible legal evidence. There is vital distinction between preventive detention and punitive detention. In 'Francis Colliery Mullein v. The Administrator U. T. ' it has been observed, 'Punitive detention is intended to inflict punishment on person who is found by the judicial process to have committed an offence,while preventive detention is a necessary evil and is tolerated in free society in the larger interest of the security of the state and maintenance of public order. ' It is drastic policy to detain a person without a trial and there are many countries where it is not laid down to exercise except in times of war or aggression. LEGAL ANTHOLOGY AND PATHOLOGY :
63. We have, in our foregoing prefatory discussions, observed that 'Preventive Detention' is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment, after he is found guilty of wrong doing, as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to prevent him from doing harm in future and opportunity that he has to contest the action of the executive, is very limited. Having regard to this distinctive character of preventive detention, which aims at not punishing an individual, for the wrong done, but for the apprehension to indulge in injurious activities in future, it has been observed by the Supreme Court in Sampat v. State of Jammu & Kashmir AIR 1967 SC 1157 that the restrictions placed on a person preventively detained must be consistent with the effectiveness and the detention be minimal. The basis of detention is a satisfaction of the executive of a reasonable probability of the likelihood of the detenu going in a manner similar to his past acts and preventing him by detention from doing the same, whereas, conviction on a criminal trial, on the other hand, is for an act already done, which can possibly be done by trial upon permissible legal material. Punitive action can be taken on the proof of guilt beyond reasonable doubt, whereas, in preventive detention, a person is prevented from doing something necessary for reasons mentioned in various statutes on preventive detention.
64. Preventive detention is, thus, a precautionary measure, which is expected to be taken to prevent the recurrence of apprehended events. The power of preventive detention is thus, obviously and qualitatively different from punitive action. In Smt. Hemlata Shah v. State of Maharashtra, AIR 1982 SC 8, it has been, clearly, expounded in some cases of prosecutions that it may not be possible to bring home a culprit to book as in case of professional bully or mafias or professional murderers or dacoits, hardened, habitual and dangerous persons, as witnesses do not come forward to depose against wrong-doer or an offender out of fear or in case of international criminal network, like smuggling, drug -rackets, immoral trafficking, etc. it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt. Rule, therefore, has been laid down that the prosecution or the absence of it would not be a bar or ban for passing an order of preventive detention. If the detaining authority is satisfied that the offender has the tendency to go on violating often laws of the land and with a view to disable such persons to repeat or indulge in such illegal activities or offences, the preventive detention order can be recorded.
65. The right to liberty is a very valuable right and it can be interfered with only in strict compliance of law and only in a manner laid down by the statute. The law relating to preventive detention must conform to the limitsstatutorily provided and constitutionally imposed in Art. 22 of the Constitution of India. Since it is a restriction on the fundamental rights of the citizen, it must be noted that the liberty of the citizen, which is invaluable, inalienable fundamental right, should not necessarily be restricted more than it is necessary to effectuate the object of that provision. Art. 22 of the Constitution of India provides safeguards and protection against arrest and detention in certain cases. Protection of clauses (1) and (2) of Art. 22 are not available to persons detained preventively. Preventive detention must conform to the requirements provided in clauses (4), (5), (6) and (7) of Art. 22. Laws providing for preventive detention are knit together being amenable to certain common features emanating especially from Arts. 21 and 22 of the Constitution of India. Since preventive detention is a serious encroachment on the liberty of a person, constitutional safeguards must be, fully, observed and adhered to.
66. In Bhorjahan Oherey v. State of West Bengal, AIR 1972 SC 2256, the Hon'ble Supreme Court in, 3 Judges Bench, has held that merely because detenu is liable to be tried in a criminal Court for the commission of criminal offence ought to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the government from taking action for his detention under Act. It is clearly propounded that the preventive detention provided by the act is design to deal urgently and effectively that the more serious situation, inter alia, affecting the security of India and maintenance of public order. Judicial trial for punishing the accused for the commission of offence as also, preventive security proceedings in a criminal Court against the person merely for keeping the peace or for good behaviour under Chapter VIII of the Code of Criminal Procedure is the jurisdiction distinct from that of detention under the Act. In para 4 of the said judgment, classic observations are made in Kamrunissa v. Union of India, AIR 1991 SC 1640, it has been held that in the case of person in custody, a detention can validly be passed, (i) if the authority passing the order is aware of the fact that he is actually in custody; (ii) if he has reason to believe on the basis of reliable material placed before him; (a) that there is a real possibility of his being released on bail and; (b) that on being so released he would in all probability indulge in prejudicial activity and; (iii) even it is felt essentially to detain him or preventing him from so doing, if the authority passed an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to pass the bail and if the bail is granted. Notwithstanding such opposition to question it before a higher Court. In para XIII, elaborate discussion is made. The decision of Supreme Court in Ramesh Yadav, AIR 1986 SC 315 is explained and distinguished. In Ramesh Yadav's case, it was observed that ordinarily detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It is also held in the said case that mere statement that certain documents were not supplied is not sufficient, the detenu must show that non-supply has impelled his right of effective representation under Art. 22(5).
67. The Full Bench of this Court in Valjibhai Ranchorebhai Patel v. Commissioner of Police, 1992 (2) GLR 1538, it has been held that an order of detention under Section 3 of P.A.S.A. Act would not get vitiated on account of non-consideration of the question as to whether the less drastic action of externment under Section 57 of Bombay Police Act would serve the purpose or not. Thus, it is very clear from the Full Bench decision of this Court that detaining authority is not obliged to consider externment as less drastic action before passing a detention order.
68. This Court in Division Bench decision of Nasimbanu (supra) has taken into consideration following unreported decisions of this Court :
(A) Judgment in Special Criminal Application No. 902 of 1987 rendered on 29-12-1987 (Coram: A. P. Ravani & B. S. Kapadia, JJ.)
(B) Judgment in Special Criminal Application No. 807 of 1987 rendered on 16-12-1987. (Coram : A. P. Ravani & B. S. Kapadia, JJ.)(C) Division Bench Judgment in Special Application No. 831 of 1987 rendered on 29-12-1987 (Coram : A. P. Ravani & B. S. Kapadia, JJ).
(D) Division Bench Judgment in Special Criminal Application No. 683 rendered on 29-12-1987. (Coram A. P. Ravani and B. S. Kapadia, JJ).
(E) Division Bench Judgment in Special Criminal Application No. 585 of 1987 rendered on 17-12-1987 (Coram : A. P. Ravani & B. S. Kapadia JJ.)
69. In Nasimbanu's case (supra) various Supreme Court decisions are, also, considered. Thus, it is very clear that in this case the Division Bench has propounded ratio after considering unreported judgments of Gujarat High Court and various judgments of Hon'ble the Supreme Court, and has found that, concept or consideration of less drastic remedy of cancellation of bail is not necessary before passing detention order under Section 3(1) of the P.A.S.A. Act. The exposition of legal proposition and logical views and conclusions are indubitably exemplary and enviable in Nasim Banu's case.
70. It will be, also, necessary to refer the decision of Supreme Court in Asim Kumar Ray v. State of West Bengal. AIR 1972 SC 2561. It has been propounded that arrest of petitioner to prosecute him under Cr. P. C., and later on enlargement on bail is no bar against District Magistrate issuing order of detention. Therefore, the contention that cancellation of bail by the detaining authority is necessary before passing detention order otherwise it would affect his subjective satisfaction. This decision was, also, rendered by the Bench of 3 Hon'ble Judges of the Apex Court.
71. Even if the detenu is in the custody and the detaining authority is satisfied that his preventive detention is necessary in view of compelling reasons, it cannot be said that the detention order was illegal. It has been held that what is necessary in a case of that type, is to satisfy the Court when detention is raised or challenged on that ground that the detaining authority was aware of the fact that the detenu was, already, in custody and yet he was subjectively satisfied that his order of detention became necessary.
72. It will, also, be interesting to mention that the object of making an order of detention is preventive when the object of criminal prosecution ispunitive. Even if a criminal prosecution fails and order of detention is then made, it would not invalidate the order of detention because the purpose of preventive detention being different of conviction and punishment and subjective satisfaction being necessary for detention order. It cannot be said that the detention order would be bad merely because criminal prosecution has failed. Therefore, if the failure of the criminal prosecution can be no bar for passing detention order, obviously, therefore, mere fact that the criminal prosecution can also be instituted, that ground would not operate as a bar against the making an order of detention. This proposition is very well established and explained by the Supreme Court in Sri Shiv Ratna Makim v. Union of India, AIR 1986 SC 610. How can, therefore, it could be submitted that cancellation of bail is always necessary or an incumbency being less drastic remedy before passing detention order.
73. It will be, also, interesting to note that even existence of one ground is sufficient to sustain detention order, detention order can be ordered even on the likelihood of detenus being released on bail. Detaining authority is not precluded from ordering detention. It cannot be said that simply because a person has been discharged in a criminal case, the ground in that case cannot be the ground for preventive detention. Of course, there must be a live link or nexus between the grounds of criminal activities alleged by the detaining authority and the purposes of detention. In absence of any mala fide, the challenge of purpose of detention, the formation of opinion and sufficiency of grounds would not be germane. Our views in this behalf are very much reinforced by the 3 Judges Bench decision of the Supreme Court in Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177.
74. Bail is a security given for the due appearance of a prisoner in order to obtain his release from imprisonment, a temporary release of a person upon security to one who provides bail. As per Law Lexicon, bail is defined as :
'To set at liberty a person arrested or imprisoned or security being taken for his appearance on a day and at a place ascertained, because party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required in order that he may be safely protected from the prison. According to the lucid exposition of expression 'bail' made by Supreme Court in Kamlapati v. State of West Bengal, AIR 1979 SC 777, the concept of bail is a technique involved for effecting a synthesis of two basic concept of human value, namely, the right of an accused to enjoy his personal freedom and the public interest on which persons' release is conditioned on the surety to produce the accused person in Court to stand the trial. The Supreme Court in Sunil Fulchand Shah (supra) has, succinctly, propounded the concept of bail and temporary release. It has been stated that the effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through security. If bail is granted on self-bond, then, in that case, constructive control would be through the conditions of bond.
75. In a recent judgment, the Hon'ble Supreme Court in Fulvani Jagdamba Prasad Pathak v. State, AIR 2000 SC 2527, has, evidently, expounded theconcept of preventive detention and its necessity. It has been held in that case that preventive detention order is harsh, but it becomes necessary in the larger interest of society. It is in the nature of precautionary measure taken for preservation of public order. It has also clearly observed that in absence of provision satisfying type of material which may or may not be taken into consideration by the detaining authority and keeping in view of the purpose the statute is intended to achieve the power vested in the detaining authority should not be unduly restricted. It is neither possible nor desirable to catalogue and categorise the circumstances which should be considered or not. There should be direct nexus of facts with objects.
76. The order of preventive detention is not curative or reformative or punitive action, but a preventive and precautionary, the action of which being to prevent the anti-social and anti-national, hardened and head-strong and dangerous elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging organised criminal activities or from indulging immoral trafficking or in Narcotics Drugs & Psychotropic substances offences, etc. Preventive detention is devised to afford protection to society and its welfare and public order, national integrity, security and such other activities subject to requisite defined safeguards and parameters.
IN CONCLUSION : OUR ANSWERS TO THE QUESTIONS REFERRED :
77. After having taken into consideration the submissions raised by the learned Advocate for the petitioner and the learned A.G.P., for the respondents and the relevant proposition of law along with host of case law and the underlying design and object of the preventive detention concept and the aforesaid discussions, We answer the questions referred to us, hereinabove, as under in a tabular form for convenience sake.
(1) Which of the decisionstaken by the Division Benches in the cases of Nasimbanu M. Shaikh v. Commissioner of Police, reported in1988 (2) GLH 478 or in the case of ZubedabibiRasid Khan Pathan v. Slate ofGujarat, 1995 (2) GLR 1 134 and/or in the case of Unusbhai Hasanbhai v. District Magistrate,in L.P.A. No. 1056 of 1999, on 15-9-1999 and/or in the case of Sagar Shrikrishna Commissioner, Ahmedabad,in S.C.A. 9005 of 1999, is correct one?
Division Bench decision in 'Namsimbanu M. Shaikh v. Commissioner of Police, 1988 (2) GLH 478, as stated in our reasons, is the correct decision.
(2) Whether it is necessary for the detaining authority before resorting preventive detention to lake steps forcancellation of bail under Sec. 437(5) of the Criminal Procedure Code in thecases in which the' detenu has already been granted bail?
No, Not necessary. It is notobligatory. Resort to Sec. 437(5)Cr. P. C. not required.
(3) Where the detainingauthority has taken into consideration that the cancellation of bail under Sec.437(5) of Criminal Procedure Code would take long process and not resortingto take action for cancellation of bail under Sec. 437(5) of Criminal Procedure Code in the registered cases in order to prevent antisocial activities of thedetenu, action for preventive detention is required. Even then will the satisfaction of thedetaining authority be deemed to be impaired if any action for preventive indulging in antisocial activities?'
No. Subjective satisfaction ofthe detaining authority shall not be deemed to have been impaired.
TELEOLOGICAL ANATOMY OF RIGHTS AND DUTIES :
78. It would be expedient to recall the relevant : The Father of Nation's concepts; 'The Gandhian Jurisprudence', in relation to the rights and duties. To Mahatma, Rights and Duties are interdependent and inseparable; Rights flow from Duties and Duties confer Rights. Gandhi writes, 'If all simply insist on Rights and no Duties, there will be utter confusion and chaos. If, instead of insisting on Rights, everyone does his Duty, there will, immediately, be the Rule of Order established amongst men.' Gandhiji had comprehensive philosophical and ideal conception of Rights and Duties. His philosophy of Rights represents a synthesis of the individualistic and teleological conception of Right. He does not only teach social compliance and acquiescence or complete political subordination as Hegal and Bosanquet do.
79. To understand Gandhian-Jurisprudence,-one has to look at it also from the light of legalistic. Gandhinan School of Jurisprudence is nothing, but the theory of radical humanism and forensic and sociological politics. Lot of Science, lot of humanism, lot of religion, cross fertilized each other for him and vibrated on the same wave-length. From these rhythmic notes, arise the symphony of his Juris-conscience. Gandhiji believed that the main aim of law is to see that love is stronger than hate, that, suffering is more potent than its infliction. Ruskin, Thoroue and Tolstoy, undoubtedly, contributed in moulding Gandhiji to Mahatma and some thoughts of each have fused into his jurisprudential philosophy. Gandhiji believed that the 'Power without justice is tyranny and justice without power is an anarchy'.
80. A PROROGUE WITH A CAVEAT :
Before concluding, we are unable to resist the temptation of placing a broad and bright; serene and semantic; practical and palliative; parting Caveat :
Freedom is not free; Law is a means to an End and Justice is that End; Liberty is the first condition of growth, but nobody is above law.
A born democrat is a born disciplinarian. Democracy comes naturally to him who is habituated normally to yield willing obedience to all Laws, Humanor Divine. The highest form of Liberty and Freedom carries with the greater measure of discipline and humility;
The only right one has, is to do one's duty. No people have risen who thought only of rights. The true source of rights is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed, we run after rights, they will escape us like a will-o'-the-wisp.
Since, we have answered three questions formulated in the reference by the learned single Judge in the writ petition, hereinabove, this reference, therefore, shall stand disposed of accordingly. Consequently, the Registry of the High Court is directed to place this writ petition before the Bench of learned single Judge for the disposal of the petition.
81. Questions answered.