TMI Blog1989 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... ting him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with efforts of Government in coping with the terrorist with disruptive activities. He was furnished with the grounds of detention contained in 9 paragraphs thereof and saying that on account of the said activities, the President of India was satisfied that he should be detained. As no arguments have been based on the grounds themselves, we have not extracted them. The detenu was also informed that he had a right to make representation in writing against the deten- tion order and if he wished to make any such representation, he should address it to the State Government through the Superintendent of Jail, and that as soon as possible, his case would be submitted to the Advisory Board within the stipulated period from the date of his detention and if he wished to make a representation to the Central Government, he should address it to the Secretary, Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi through the Superintendent of Jail where he was detained. It further stated that he had also a right to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1393 of 1988. The High Court upheld the above contentions of the petitioner, namely, lack of subjective satisfaction, delay in considering representation and the denial of opportunity to appear before the Advisory Board; and accordingly quashed the order of detention and ordered the detenu to be set at liberty forthwith unless required in connection with any other case. The learned Attorney General of India for the appellant assailing the findings of the High Court submits that the High Court's finding that there was no subjective satisfaction of the detaining authority simply because no criminal case was registered against the detenu for his public speeches is erroneous both in law and facts. The allegations were that during the period from November 19, 1987 to May 11, 1987 the detenu made 9 provocative speeches as stated in the grounds of detention inciting communal hatred and violence between Hindus and Sikhs, inciting Sikhs to armed violence against the Government established by law both in the State and in the Centre and making the offer of monetary and other assistance to the terrorists. When the detention order was passed the detenu was already detained in Burail J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here. In this regard one has to bear in mind the relevant facts and circumstances of a case including the time and place concerned. In this view we find support from the decision in Fazal Ghosi v. State of U.P. Ors., AIR 1987 SC 1877: [1987] 3 SCR 471, wherein it was pointed out that the Act provided for preventive detention which was intended where it was apprehended that the persons might act prejudicially to one or more considerations specified in the statute, and the preventive detention was not intended as a punitive measure for curtailment of liberty by way of punishment for the offence already committed. Section 3 read with Section 14A of the Act clearly indicated that the power of detention thereunder could be exercised only with a view to preventing a person from acting in a manner which might prejudice any of the situations set forth in the Section. To apply what was said in Rex v. Halliday, Ex parte Zadig, 1917 AC 260, one of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of per- sons whom there may be any reason to suspect of being dis- posed to commit what is enumerated in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Is it correct to say that if such possibility was not present in the mind of the detaining authority, the order of the detention is necessarily bad? Unless it clearly appears that preventive detention is being resorted to as the line of least resistance where criminal prosecution would be the usual course, no fault can be found with it. What is to be seen is whether the detaining authority has applied its mind or not to the question whether it was necessary to make preventive detention. In the instant case there is evidence of application of mind. The proximity between the date of commission of an offence and of detention order cannot also be said to be absent in this case. As we have already seen the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is precautionary power exercised reasonably in anticipation and may or may not relate to an offence. It cannot be considered to be a parallel proceeding. The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may pro- vide sufficient ground for detention. It cannot be said that the satisfaction of the detaining aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. The justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of prosecution to prevent mischief to the State. There is no reason why executive cannot take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that no prosecution can possibly succeed against the detenu because he had influence over witnesses and against him no one is prepared to depose. However, pusillanimity on the part of the executive has to be deprecated and pusillanimous orders avoided. It is submitted that in the instance case, there were sufficient materials to show that the detenu would act in the future to the prejudice of the maintenance of public order, security of the State and the Government's effort to curb terrorism. From the nature an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offender beyond reasonable doubt. Considering the relevant facts and circumstances including the time and place, the contents of the detention order and the allegations in the grounds of detention in this case, we are of the view that nonregistration of any criminal case could not be said to have shown non-application of mind or absence of subjective satisfaction on the part of the detaining authority. Assailing the finding as to delay in disposing of the detenu's representation, the learned Attorney General submits that on 1.9.1988 the detenu filed representation against his detention addressed to the President of India through the Home Secretary, Government of Punjab and the Superintendent of District Jail, Agartala (Tripura). The State Government was not aware of pendency of any such representation with it. On 13.9.1988 the Central Government issued a teleprinter message which was duly received on 14.9.1988 in which the Central Government wanted to know the date on which the grounds of detention were supplied to the detenu and also sought para wise comments on the representation of the detenu. However, the Central Government did not send any copy of the representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the copy went to the Central Government. Mr. Sibal, however, assets that the detention order having said; whereas the President of India is satisfied , the detenu was required under law to address the representation to the President of India and in view of the fact that it was routed through the Superintendent of the District Jail, Agartala (Tripura) and the Home Secretary, Government of Punjab, there was no reason why it should not have been delivered to the State Government of Punjab. The learned Attorney General points out that the detention order itself having said that if the detenu wished to make such representation, he should address it to the State Government through the Superintendent of Jail as soon as possible and the grounds of detention having also similarly stated that the detenu should address the representation to the State Government through the Superintendent of Jail, the delay caused up till the receipt of the photostat copy from the Central Government must be attributed to the detenu himself and the State Government could not be blamed and the detention order could not be said to have been vitiated by any latches, negligence or delay in disposing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warded to the Advisory Board before the Advisory Board makes its report and the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. The time imperative cannot be absolute and the Court's observations are not to be so understood, and there has to be lee-way depending on the facts and circumstances of the case. However, no allowance can be made for lethargic indifference or needless procrastination but allowance has to be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the departure from the time imperative is always on the detaining authority. The emphasis is on the constitutional right of a detenu to have his representation considered as expeditiously as possible and it will depend upon the facts and circumstances of each case whether or not the appropriate Government has disposed of the case as expeditiously as possible. 1n F.C. Mullin's case the representation of the detenu made on December 22, 1979 was not communicated to the Advisory Board as it ought to have been, when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be made or which authority shall consider it. By s. 8(1) of the Act the authority making the order is required to communicate to the detenu his grounds of detention and to afford him the earliest opportunity of making a representation against the order to the appropriate Government. In Khudiram Das v. The State of West Bengal Ors., [1975] 2 SCC 81 it was explained that the constitutional Imperatives enacted in Article 22(5) are two fold; (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made and (2) the detaining authority -must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safe- guards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security. In State of Orissa Anr. v. Manilal Singhania Anr., (supra) the representation was made on October 21, 1974 and it was received by the District Magistrate on the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation to the Central Government. Someone tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it with the inevitable result that the detenu had been unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chandrachud, C.J. speaking for the Court observed: But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly ignored and kept it unattended for a period of seven days and as a result of that the representation reached the Government 11 days after it was handed over to the Jail Superintendent without any explanation despite opportunity given by this Court. Pandian, J. speaking for the Court observed: In our view, the supine indifference, slack- ness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary; had ultimately caused undue delay in the disposal of the appellant's representation by the Government which received the representation 11 days after it was handedover to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. Similarly in T.A. Abdul Rahman v. State of Kerala Ors., Jt. Today 1989 3 SC 444, the representation was submitted originally on 25.1.1988, but was got back and resubmitted on 2.2.1988 and was received by the third respondent only on 16.2.1988 and took time upto 28.3.1988 in receiving the comments of the Collector of Customs. Again th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Government took only 13 .days including 4 holidays in dis- posing of the representation. Considering the situation prevailing and the consultation needed in the matter, the State Government could not have been unmindful of urgency in the matter. But the facts remain that it took more than two months from the date of submission of the representation to the date of informing the detenu of the result of his representation. Eight days were taken after disposal of the representation by the State Government. The result is that the detenu's constitutional right to prompt disposal of his representation was denied and the legal consequences must follow. Assailing the finding of the High Court that opportunity was not afforded to the detenu to appear and produce his witnesses before the Advisory Board, the learned Attorney General submits that the finding is not correct inasmuch as in spite of the best endeavour on the part of the detaining authority to produce the detenu and his witnesses before the Board in terms of the High Court's order dated 27.9.1988, the detenu himself on a lame excuse avoided appearing and producing his witnesses before it and thereby left no other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder s. 12(2) of the Act to release the detenu forthwith. The detenu in this case did not have that opportunity to show that there was no sufficient cause for this detention. Expressing inability to appear once could not have been treated as the detenu's not desiring to be heard under s. 11(2) of the Act. In fact he desired to be heard and to produce his witnesses. The result was that despite the State Government's communication he was deprived of this opportunity. What then would be the result? As was observed in Dr. R.K. Bhardwaj v. The State of Delhi Ors., [1953] SCR 708 preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. Following D.S. Roy v. State of West Bengal, [1972] 2 SCR 787 it can be said that Article 22(4) provides that no law providing for Preventive Detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within that period that there is in its opinion sufficient cause for such detention. Law therefore mandates a reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the detenu the opportunity to make a representation and to consider that representation and there is the Government's obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. It was also reiterated that when liberty of the subject is involved under a preventive detention law it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. Two of these safeguards under Art. 22 which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are to be found in Article 22(5) of the Constitution. These safeguards might be designated as a regulative postulate of respect, that is respect for the intrinsic dignity of the human person. The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our Government. As was pointed out in V.C. Jawantraj Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y offer other oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him. If the detenu desires to examine any witnesses, he shall keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them. The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. If report is submitted by the Advisory Board without hearing the detenu who desired to be heard it will be violative of the safeguards provided under Article 22 of the Constitution .and ss. 10 and 11 of the Act. Failure to produce the detenu, unless it is for wilful refusal of the detenu himself to appear, will be equally violative of those provisions. In State of Rajasthan v. Shamsher Singh, [1985] Suppl. 1 SCR 83 the importance of the proceedings before the Advisory Board was highlighted. In fact it is the only opportunity for the detenu of being heard along with his representation for deciding whether there was sufficient cause for his detention. The increasing need for ensuring public safety and security in the State of Punjab and the Union Terri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here such person had been detained with a view to preventing him 'in any disturbed area'- (1) from interfering with the efforts of Government in coping with the terrorists and disruptive activities , was inserted. We find that while sub-section (2) of section 3 of the Act before the amendment of 1984 provided that the Central Government and the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained, section 14A as inserted by the Amendment Act of 1984 provided that notwithstanding anything contained in the foregoing provisions of this Act any person in respect of whom an order of detention has been made at any time before the 3rd day of April, 1986 may be detained without obtaining the opinion of the Advisory Board for a period longer than three months but not exceeding six months, from the date of ..... 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