TMI Blog1974 (8) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... e could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances. Appeal dismissed. - Writ Petitions Nos. 1999 & 1913 of 1973 - - - Dated:- 21-8-1974 - RAY, A.N. (CJ), REDDY, P. JAGANMOHAN, MATHEW, KUTTYIL KURIEN, BEG, M. HAMEEDULLAH AND ALAGIRISWAMI, A., JJ. R. K. Garg, S. C. Agarwala, S. S. Bhatnagar and V. J. Francis, for the Petitioners (in both the Petitions) P. K. Chatterjee, and G. S. Chaterjee, for the Respondents L. M. Singhvi and Y. M. Jain for the Applicant/Intervener (The State of Rajasthan) L. N. Sinha, Solicitor Gen. of India, P. P. Rao and R. N. Sachthey for the Attorney General for India. JUDGMENT: RAY, C.J. The constitutional validity of the Maintenance of Internal Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an officer specified in Subsection (2) of section 3 of the Act has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself, a report in writing is to be made to the Presidency Magistrate or a Magistrate of the first class. Thereafter the provisions of sections 87, 88 and 89 of the Code of Criminal Procedure 1898 (now the corresponding sections in the 1973 Act) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate. An order can also be passed directing such person to appear and if he fails to comply with the directions he shall unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. Section 8 provides that when a person is detained the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 21 of the General Clauses Act, 1897 a detention order may, at any time, be revoked by the appropriate Government. Section 15 provides that the appropriate Government may, at any time, direct the release of any person detained without conditions or upon such conditions specified in the direction. The Government may also cancel his release. In the background of these provisions of the Act the petitioners contend as follows : The Act does not provide for an objective determination of the facts which are the foundation of a decision for detention. The opportunity to make a representation cannot be reasonable if the order does not disclose the material on the basis of which the detaining authority arrives at a conclusion that grounds for detention exist. The representation cannot be reasonable if the detenu has no opportunity to test the truth of the materials relied on for detention. The Act does not define or lay down the standards for objective assessment of the grounds for detention. The Act does not, oblige the Government to consider the representation against detention and decide every detention on facts and on law against grounds communicated to the detenu. In short, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-bridled. The Act is so framed by reproducing Article 22(5) that nothing is shown to spell out the requirements of procedure available in a reasonable manner. to ensure fair play and justice against grounds communicated and not withheld under Article 22(6). Finally, the petitioners contended that section 3 of the Act violated Article 14 because it permits the same offence to be a ground for detention in different and discriminatory ways. The petitioners submit that A may be prosecuted but not detained preventively or B may not be prosecuted but only detained preventively or C may be prosecuted and also detained preventively. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, trade or business were therefore held to be directly invaded by the nationalisation of Banks. It is in this context that the Bank Nationalisation case (supra) held that in spite of Article 31(2). the acquisition of property directly impinged on the right of the Banks to carry on business other than Banking guaranteed under Article 19(1)(g) and Article 31(2) was not a protection against infringement of that guaranteed right. We may proceed on the assumption that the Act which is for preventive detention may be tested with regard to its reasonableness with reference to Article 19. Section 3 of the Act is to be interpreted in the light of various existing Statutes which deal with the various acts mentioned in section 3. Acts sought to be prevented are found in various legislations like the Essential Commodities Act, the Essential Services Act. It is not necessary that the person to be detained should have actually committed a crime or a forbidden act. In some cases the person who has not already committed a crime is likely to commit an act to prevent which section 3 provides for detention of such a person. Some times it may be possible that an act which is not forbidden by law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board. Section 14 of the Act clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as changed or new factors call for the exercise of that power. This shows that the authorities can consider new factors or changed circumstances. This Court has already held in Fagu Shaw etc. v. State of West Bengal A.I.R. 1974 S.C. 613 that when Parliament prescribed two years or until the expiry of the Defence of India Act, whichever is later, it satisfied the requirements of Article 22(7)(b) of fixing the maximum period. The further requirement of a six monthly review as contended for by the petitioners suggests a new provision. That does not go to reasonableness but to policy of legislature and due process of law. Section 8 of the Act follows the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice then the Court does not completely ignore the mandate of the legislature. The Court notices the distinction between the duty to act fairly and a duty to art judicially in accordance with natural justice. The detaining authority is under a duty to give fair consideration to the representation made by the detenu but it is not under a duty to disclose to the detenu any evidence or information. The duty to act fairly is discharged even it there is not an oral bearing. Fairness denotes abstention from abuse of discretion. Article 22 which provides for preventive detention lays down substantive limitations as well as procedural safeguards. The principles of natural justice in so far as they are compatible with detention laws find place in Article 22 itself and also in the Act. Even if Article 19 be examined in regard to preventive detention it does not increase the content of reasonableness required to be observed in respect of orders of preventive detention. The procedure in the Act provides for fair consideration to the representation. Whether in a particular case, a detenu has not been afforded an opportunity of making a representation or whether the detaining authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts a person and later on enlarges him on bail and initiates steps to prosecute him under-the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate, issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances. For the foregoing reasons, we are of opinion that the Act does not suffer from any constitutional infirmity In the case of Madanlal Agarwala it is submitted that the detention order w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
