TMI Blog2017 (5) TMI 1743X X X X Extracts X X X X X X X X Extracts X X X X ..... to know both, the purpose and the procedure of law. It is no answer to say that the authority was satisfied. The influence of the stale incidents in the detention order is too pernicious to be ignored, and the order must therefore go; both on account of being vitiated due to malice in law and for taking into account matters which ought not to have been taken into account - There is another reason why the detention order is unjustified. It was passed when the Accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. Appeal allowed. - Criminal Appeal No. 885 of 2017 - - - Dated:- 3-5-2017 - S.A. Bobde And L. Nageswara Rao, JJ. For the Appellant : Vikas Singh, Vedula Venkata Ramana, Sr. Advs., Anupam Lal Das, Anirudh Singh and Krishanu Barua, Advs. For the Respondent : Harin P. Raval, Sr. Adv., H. Venugopal, S. Udaya Kumar Sagar and Mrityunjai Singh, Advs. JUDGMENT S.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of detention are stale. They are based on the incidents which are said to have occurred between the period from 2002 to 2007 and are relied on by the detaining authority while forming its opinion and recording its satisfaction that the detenu needs to be detained on 23.11.2016. 7. The aforesaid contention of Mr. Singh, learned Senior Counsel for the Appellant, may be examined with reference to the detention order. The detention order mentions six cases as follows: Sl. No. Case No. Date of Incident Date of Reporting the incident Offences under Indian Penal Code 1. Crime No. 554/2013 26.9.2013 21.11.2013 447, 427, 506 2. Crime No. 8/2014 21.11.2014 23.11.2015 447, 427 3. Crime No. 361/2016 2007 13.08.2016 363, 384, 420, 120B, Section 4 of AP LG Act and 25 1(B) of the Arms Act. 4. Crime No. 362/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not inclined to consider the impact of those cases on public order etc. We are satisfied that they ought to have been excluded from consideration on the ground that they are stale and could not have been used to detain the detenu in the year 2016 under the Act of 1986 which empowers the detaining authority to do so with a view to prevent a person from acting in any manner prejudicial to the maintenance of public order. 13. We are not inclined to accept the justification offered by Mr. Harin P. Raval, learned Senior Counsel appearing on behalf of the Respondents, that the mere reference to two other cases which are 2-3 years old should be considered as relevant and proximate grounds of detention, though the detaining authority itself has not done so. Every statement in the detention order must be taken to have been made responsibly. Where the detaining authority has detailed 4 cases and stated that these have been considered as the grounds of detention it must be considered as true-speaking. Moreover, those incidents appeared to be cases of ordinary criminal trespass which would not, in any way, be of much significance since they do not deal with the disruption of any public ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain alias Gama v. Commissioner of Police, Calcutta and Ors. (1974) 4 SCC 530, this Court observed as follows: No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil To Rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, the prevention of acts prejudicial to public safety and tranquility, for satisfaction in this connection must be grounded on material which is of rationally probative value. Later, in the case of Khudiram Das v. The State of West Bengal and Ors. (1975) 2 SCC 81, while considering the judicial reviewability of the subjective satisfaction of the detaining authority, the Court surveyed the area within which the validity of the subjective satisfaction can be subjected to judicial scrutiny in the following paragraphs: 9....... There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose: such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'Improper purpose', that is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the House of Lords in Smith v. Rest Eller Rural District Council and Fawcett Properties Ltd. v. Buckingham County Council-the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere . In such a case, a legitimate inference may fairly be drawn either that the authority did not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts'....... 11. This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. Law has reached its finest moments , said Justice Douglas, when it has freed man from the unlimited discretion of some ruler, some...official, some bureaucrat... Absolute discretion is a ruthless master. It is more destructive of freedom then any of man's other inventions . United States v. Wunderlich and this is much more so in a case where personal liberty is involved. That is why the courts have devised various methods of judicial control so that power in the hands of an indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o examine the aspect of malice in law. It is not necessary to say that there was an actual malicious intent in making a wrong detention order. In Smt. S.R. Venkataraman v. Union of India and Anr. (1979) 2 SCC 491, this Court cited Shearer v. Shields (1914) AC 808, where Viscount Haldane observed as follows: A person who inflicts an injury upon another person in contravention of law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly and in that sense innocently. 22. This Court then went on to observe in Smt. S.R. Venkataraman (supra) as follows: 6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard. C.J. in Pilling v. Abergele Urban District Council where a duty to determine a question is conferred on an authority which state their reasons f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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