TMI Blog1988 (11) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... ni, Dalveer Bhandari, Rachna Joshi and H.K. Puri JUDGMENT: By this writ petition under Article 32 Of the Constitution, the detenu--Ayya alias Ayub, son of Babu Khan, residence No. 100, Khernagar, P.S. Delhi Gate, Meerut--challenges the order of detention dated 28/2/1988 passed by the District Magistrate, Meerut, ordering the detention of the petitioner under Sec. 3(2) of the National Security Act, 1980, on the said authority's satisfaction that such detention is necessary with a view to preventing petitioner from acting in a manner prejudicial to the maintenance of the "public-order". At the time of the passing of the order, petitioner was already in judicial- custody in connection with a criminal prosecution arising out of the incident referred to in one of the grounds of detention. 2. Section 3(2) of the Act provides, inter alia, that the Central Government or the State Government, may make an order with respect to any person for purposes of preventing him from acting in a manner prejudicial to the maintenance of the public-order. The sub-section provides for detention on certain other grounds which are not germane to the present matter as the avowed object of the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en complaint on the basis of which a report No. 8 of non-cognizable offence was registered u/s 504, 427 of I.P.C. Your aforesaid misdeed caused fear and terror among the common public and in this way you committed an act which is prejudicial to the maintenance of public order." "2. That, on 13.2.1988 at about 11.45 P.M. in front of Faize-e-Aam Inter College, Meerut on the open road you alongwith your other companions displayed "gundaism" and stopped Bus No. U.S.N. 8377 which was going from Medical College to City Station and you had broken the glass screens of the said bus and abused Shri Balram the driver and Vipin the conductor of the bus, which caused fear and terror among the general public. On the basis of the information given by Shri Anil Gautam the Report No. 15 for non-cognizable offence u/s 427, 504 of I.P.C. was registered at P.S. Delhi Gate. In this way you acted in such a manner which is prejudical to the maintenance of public order." 3. That, on 18.2.1988 near Caltex Petrol Pump on Delhi-Muzzafar Nagar Road at about 9.10 O'clock at night you alongwith your other three companions reached at the Book stall situated at the aforesaid petrol pump, and holding him by ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Learned counsel submitted that the satisfaction to be reached by the detaining-authority, subjective though it be must rest on material which is capable in law of producing the satisfaction and the concept of "public-order" is what law understands and recognises as such and not what the detaining-authority misunderstands it to be. 5. In regard to the third ground of detention, learned counsel said, the petitioner was taken into custody at 8.00 P.M. on 18.2.1988 and that the wireless message sent at 8.07 P.M. by the Mobile Van to the Circle Police Officer and the Superintendent of Police had specifically referred to the attack on Anil Gautam and had clearly omitted to mention the name of the petitioner and the alleged witnesses. Shri Garg submitted that the allegations that the attack on Anil Gautam at 9.10 PM that day, as now asserted in Ground No. III would stand disproved if the original "Log-Book" recording the wireless-messages had been produced. He submitted the sheaf of loose sheets purporting to be "Log-Book" produced before this Court was not the original "Log-Book". These loose-sheets, it is urged, had been discarded by the Learned Sessions Judge who had since g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prisonment to continue." [Thomas Pelham Dales' case, (1881) 6 QBD 376 at page 461]. It has been said that the history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the court against executive invasion of personal liberty and the due dispatch of judicial-business touching violations of this great is stressed in the words of Lord Dinning: "Whenever one of the King's Judges takes his seat, there is one application which by long tradition has priority over all others. Counsel has but to say 'My Lord, l have an application which concerns the liberty of the subject' and forth-with the Judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail, but, whatever form it takes, it is heard first." [Freedom under the Law, Hamlyn Lectures, 1949] 8. Personal liberty, is by every reckoning, the greatest of human freedoms and the laws of preventive- detention are strictly construed and a meticulous compliance with the procedural safeguards, however technical, is strictly insisted upon by the courts. The law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nn that shelters for the night is not journey's end and the law, like the traveller, must be ready for the morrow." As to the approach to such laws which deprive personal liberty without trial, the libertarian judicial faith has made its choice between the pragmatic view and the idealistic or doctrinaire view. The approach to the curtailment of personal liberty which is an axiom of democratic faith and of all civilised like is an idealistic one for, loss or personal liberty deprives a man of all that is worth living for and builds up deep resentments. Liberty belongs what correspond to man's inmost self. Of this idealistic view in the judicial traditions of the free-world, Justice Dougla said: "Faith in America is faith in her free institutions or it is nothing. The Constitution we adopted launched a daring and bold experiment. Under that compact we agreed to tolerate even ideas we despise. We also agreed never to prosecute people merely for their ideas or beliefs ......." [See: On Misconception of the Judicial Function and the Responsibility of the Bar, Columbia Law Review, Vol. 59, p. 232] Judge Stanley H. Fuld of the New York Court of Appeals said: "It is a delusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have been transgressed . . ." ( p 1336) In Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762 at 766, it was observed: "It is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers .......". 10. There are well recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the detaining-authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public-law and the public law courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the deg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of each case. But it is necessary for the detaining authority to resist the temptation to prefer and substitute, as a matter of course, the easy expedience of a preventive detention to the more cumbersome one of punitive detention. In Vijay Narain Singh's case (supra) this Court said: " .........It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The Law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution..." (P. 1345) " ..... When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court ." ( P. 1345) 12. However, we are persuaded to the view that the contention of Shri Garg that, the first two grounds which pertain to the commission of non-cognizable offences have no rational nexus relatable to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l log-book' It is equally unnecessary to decide whether the telegram dispatched by Mirazuddin was at 12.30 mid-night on 18.2.1988 or as suggested by the Respondents at 12.30 noon on 19.2.1988 It is extremely probable that it was sent not at 12.30 mid night as claimed by the petitioner. but only at 12.30 noon on 19.2.1988 as suggested by Sri Yogeshwar Prasad. But it cannot be disputed that such a telegram was sent. This telegram asserts, for whatever it was worth, that petitioner was taken into custody at 8.00 P.M. on 18.2.1988. The contention of Shri Garg is that the non-consideration of this telegram, which had a bearing on the complicity or otherwise of the petitioner in the alleged offence vitiates the detention for non-application of mind. The detaining authority in its affidavit says: ".....Deponent is not in a position to say about the facts of the telegram. It might have been given in pesh- bandi." What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining-authority. There would be vitiation of the detention on grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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