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PETITIONER: DEVI LAL MAHTO

       Vs.

RESPONDENT: STATE OF BIHAR AND ANR.

DATE OF JUDGMENT18/10/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1982 AIR 1548            1983 SCR  (1) 630  1982 SCC  (3) 328        1982 SCALE  (2)910

ACT:      National Security Act, 1980-Sub.s. (2) read with sub-s. (3) of s. 3-Detention Order-Detenu already in jail-Detaining authority unaware-Inordinate  delay in  considering detenu’s representation-Validity.

HEADNOTE:      The petitioner  who had  been arrested on March 2, 1982 and whose  application for  bail had  been rejected on March 25, 1982  was in  jail when the District Magistrate, Dhanbad made the  impugned order  of detention  against him on April 20, 1982  under sub-s.  (2) read  with sub-s. (3) of s. 3 of the National  Security Act,  1980. Another  application  for bail moved by the petitioner was rejected on April 23, 1982. The grounds  of detention  were served on April 23, 1982 and the representation  submitted to the State Government on May 13, 1982  was rejected  on June  3, 1982  and the  order  of detention was confirmed on June 10, 1982.      It was contended that the impugned order could not have been made  against the petitioner as he was already in jail, that the  order was  vitiated by  non application of mind as the  detaining   authority  was   not  even   aware  of  the petitioner’s custody  in jail  and as  there was  inordinate delay in considering the representation against the order.      Allowing the petition, ^      HELD: When a preventive detention order is made against a person  already deprived  of  his  personal  liberty,  the detaining authority must show awareness of the fact that the person against  whom the  detention order  is proposed to be made is  already in  jail and  is incapable  of acting  in a manner prejudicial  to the  maintenance of  public order and yet, for reasons which may appeal to the detaining authority on  which   its  subjective   satisfaction  is  grounded,  a preventive detention  order is  required to  be  made.  This awareness must  appear in  the order  or  in  the  affidavit justifying the order when challenged. [633 A-B]      In the  instant case  neither in  the order  nor in the affidavit was  there even  a whimper  of this  aspect  being present to  the mind of the detaining authority while making the order.  The order  having  been  mechanically  made  and suffering from  the vice  of  non-application  of  mind  was

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vitiated. [633 C]      Rameshwar Shaw  v. District  Magistrate, Burdwan & Anr. [1964] 4  S.C.R. 921;  Vijay Kumar  v. State of J&K and Ors. AIR 1982 SC 1023; Biru Mahto v. 631 District Magistrate,  Dhanbad, [1983]  1 S.C.R.  584 and  M. Satyanarayana, etc. v. State of Andhra Pradesh & Ors. [1983] 1 S.C.R. 635 followed.      (b) When  a detention  order is made in exercise of the power conferred  by sub-s.  (2) read with sub-s. (1) of s. 3 of the  Act, sub-s.  (4) makes  it obligatory upon the State Government to  examine the order and approve the same within a period  of 12 days from the date of making the order. [633 G-H]      In the  facts and  circumstances of the instant case, a time of  21 days  taken by the State Government in examining the representation  of the  detenu showed  inordinate  delay which vitiated the order. [634 B]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No. 1075 of 1982.      (Under article 32 of the Constitution of India)      V.J. Francis for the Petitioner.      S.N. Jha for the Respondent.      The Judgment of the Court was delivered by      DESAI, J.  On October 4, 1982, we quashed and set aside the impugned  detention  order  dated  April  20,  1982,  in respect of  detenu Devi  Lal Mahto,  reserving the giving of the reasons  for our  order to  a later  date. Here  are the reasons.      This is  a petition  under Article  32 for  a  writ  of hebeas corpus filed by detenu Devi Lal Mahto challenging the order of  preventive detention dated April 20, 1982, made by the District Magistrate, Dhanbad.      Detenu Devi  Lal Mahto  was arrested  on March 2, 1982, and was  produced before  the Chief Magistrate, Dhanbad, who remanded him  to jail  custody till March 17, 1982. On March 1982, detenu  moved an  application for bail which was fixed for hearing  on March  24, 1982.  On March 25, 1982 the bail application was  rejected. On  April 20,  1982, the District Magistrate, Dhanbad, made the impugned order of detention in exercise of the power conferred by sub-s. (2) read with sub- s. (3) of s. 3 of the National Security Act, 1980 (’Act’ for short). The  District Magistrate  stated in  his order  that with a view to preventing the detenu from acting in a manner prejudicial  to  the  maintenance  of  public  order  he  be detained. Grounds of detention 632 were served  upon the  detenu on  April  23,  1982.  Another application for  bail moved  by detenu was rejected on April 23,  1982   On  May   13,  1982  the  detenu  submitted  his representation to  the State  Government which  came  to  be rejected by  the State Government on June 3, 1982. The order of detention  was confirmed  by the State Government on June 10, 1982.      Mr. V.J.  Francis, learned counsel who appeared for the petitioner canvassed  three contentions before us. They are: (i) the  detenu  being  already  deprived  of  his  personal liberty having been confined in jail from March 2, 1982, and his bail  application having  already been rejected on March 25, 1982,  he was  not even if so inclined, in a position to repeat his  activity and therefore, the preventive detention

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order  could  not  be  made  against  him  with  a  view  to preventing him  from indulging  into activity prejudicial to the  maintenance   of  public   order;  (ii)  the  detaining authority was  not even aware that the detenu was already in jail  when   he  made  the  impugned  detention  order  and, therefore,  the   order  suffers   from  the  vice  of  non- application of mind which would vitiate the order; and (iii) there was inordinate delay which has remained unexplained in considering the representation of the detenu and, therefore, the detention order is vitiated.      Undoubtedly, for  a period of one month and 18 days the detenu  was  in  jail,  his  bail  application  having  been rejected nearly  25 days  before the  date of  the  impugned detention order.  It is  difficult  to  appreciate  how  the District  Magistrate   was  subjectively  satisfied  that  a detention order  in respect of the detenu was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. This aspect we have most meticulously examined  in four  decisions of this Court, and therefore, we  need not  examine the same again. As early as in Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,(1) and as  late as  Vijay Kumar  v. State of J & K and Ors.(2), the two  recent most  decisions in  Biru Mahato  v. District Magistrate, Dhanbad(3),  and M. Satyanarayana, etc. v. State of Andhra  Pradesh &  Ors.,(4) it has been held that one can envisage a hypothetical case in which a preventive detention order 633 may have to be made against a person already deprived of his personal liberty  by being  confined or detained in jail but in such  a  situation  the  detaining  authority  must  show awareness of  this fact  that the  person against  whom  the detention order  is proposed  to be  made is already in jail and is  incapable of  acting in  a manner prejudicial to the maintenance of  public order  and yet  for the reasons which may  appeal   to  the   District  Magistrate  on  which  his subjective satisfaction  is grounded  a preventive detention order is  required to  be made. It is further held that this awareness  must  appear  either  in  the  order  or  in  the affidavit  justifying  the  impugned  detention  order  when challenged. Neither  in the  order nor  in the  affidavit we find even a whimper of this aspect being present to the mind of the detaining authority while making the detention order. Therefore, it  clearly discloses non-application of mind and following the  aforementioned decisions it must be held that the order  of preventive  detention having been mechanically made and  suffering from the vice of non-application of mind is vitiated.      The last  contention is  that there  was an  inordinate delay in  considering the  representation of the detenu and, therefore, the  detention order is vitiated. The detenu made a representation  on May  13, 1982.  It also transpires that the case of the detenu was referred to the Advisory Board on May 15,  1982. The  affidavit  in  reply  recites  that  the representation was  rejected by the State Government on June 3, 1982.  How the representation was dealt at various levels from May  13, to  June 3,  has not  been dealt  with in  the affidavit on  behalf of the respondents. It may be mentioned here that the counter-affidavit on behalf of the respondents has been filed by one G.P.A. Kujur who has described himself as Deputy  Collector of  Dhanbad. Obviously  he was  not the detaining  authority.   The   detaining   authority   though impleaded as  a respondent  has not filed the affidavit. Mr. Jha, learned  counsel who appeared for the respondents after referring to the file with him urged that the representation

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was received  on May  14, 1982  and it  was on May 24, 1982, that its  examination commenced. There was no further detail available as  to how  it was  dealt with.  When a  detention order is  made by the District Magistrate in exercise of the power conferred  by sub-s.  (2) read with sub-s. (3) of s. 3 of the  Act, sub-s.  (4) makes  it obligatory upon the State Government to  examine the order and approve the same within a period  of 12  days from  the date of making of the order. There is  a proviso  appended to  the section  which is  not relevant. There  is nothing  to  show  that  the  order  was approved. 634 There is  nothing to  show why  for a  period of 10 days the representation was  not examined by the competent authority. There is  nothing to  show how  the file moved after May 24, 1982, till  the representation was rejected on June 3, 1982. In our opinion in the facts and circumstances of this case a time of  21 days  taken by the State Government in examining the representation  of the detenu made under s. 8 of the Act shows inordinate  delay in  dealing with  the representation and that would vitiate the order.      For these  reasons we  had quashed  and set  aside  the impugned detention order. H.L.C.                                     Petition allowed. 635