IMPORTANT POINT
National Security Act does not envisage communication of the exceptional circumstances and the reasons recorded for non-supply of grounds of detention within 5 days of the detention order hence the ground it self is not sufficient to hold that detention order was vitiated.

Headnote:National Security Act, 1980-Section 3(1) & 8-Detention order-Grounds of detention not communicated within five days of detention order-Reasons recorded for exceptional circumstances for non-communication of grounds within five days-Act does not envisage communication of the exceptional circumstances and reasons recorded for non-supply of the grounds-Ground itself is not sufficient to hold that detention order was vitiated -If Court is not satisfied with the recorded exceptional circumstances that might be one of the circumstances which the Court may consider whether detention order was vitiated.
Held : The question is: whether the non-supply of the exceptional circumstances and the reasons recorded for non-supply of the grounds of detention before the expiry of five days but within the outer limit of ten days, along with the grounds of detention, vitiates the order of detention? The Division Bench has taken the view that detenu has a valuable right of representation against the order of detention to the appropriate Government or to the Advisor Board. Unless the exceptional circumstances and the reasons for non-supply of the grounds of detention and the documents in support thereof are communicated to the detenu, by necessary implication, the valuable right of representation at the earliest opportunity, as envisaged under Article 22(5), is breached. Thereby, the detenu becomes entitled to be released from detention. It could be seen that what is material and mandatory is the communication of the grounds of detention to the detenu together with documents in support of subjective satisfaction reached by the detaining authority. When the representation has been made by the detenu to the appropriate Government or to the Advisory Board, it may be one of the grounds for him to impugn the order of detention that he was not supplied with the grounds within the time prescribed and thereby he was unjustifiably detained, without any reasonable justification. When such a ground has been raised and pressed for consideration, it would be for the detaining authority to satisfy the appropriate Government or Advisory Board or in an appropriate case in the proceedings under Article 226 of the Constitution. The exceptional circumstances are those due under which the grounds and the documents could not be supplied to the detenu and that the same were recorded in writing in the record of the detaining authority. If the appropriate Government or the Advisory Board or the Court are not satisfied with the recorded exceptional circumstances due to which the grounds of detention could not be supplied, after five days but before the expiry of 10 days, that may be one of the circumstances which the appropriate Government or Advisory Board or the Court may consider whether the detention order is vitiated or is an infraction of Article 22(5) of the Constitution. But since the Act does not envisage communication of the exceptional circumstances and the reasons recorded for non-supply of the grounds that ground of non-communication or their non-supply by itself is not sufficient to hold that the order of detention is in violation of Article 22(5) of the Constitution. (Para 9)

ORDER

Pursuant to the order of this Court dated August 21, 1987 doubting the correctness of Ibrahim Ahmad Batti v. State of Gujarat & Ors.1, the case has been referred to this Bench.

2. These appeals by special leave arise from the Division Bench judgment of the High Court of Rajasthan at Jodhpur in Writ Petition Nos. 831/87 and batch.

3. The facts are that the respondents were detained under Section 3(1) of the National Security Act, 1980 (for short, the Act ), by proceedings of the District Magistrate, Jaisalmer dated January 7, 1987. The exceptional circumstances were recorded on January 11, 1987 for non-supply of the grounds and documents to the detenu. The grounds of detention with the material were supplied on January 16, 1987. The detenu made his representation on January 20, 1987 to the State Government which was rejected on February 2, 1987. He made a representation to the Advisory Board on February 9, 1987 and it was considered and rejected on February 19, 1987. The State Government confirmed the order of detention on March 13, 1987 for a period of one year w.e.f. January 7, 1987. When the orders of detention were challenged, primarily on the ground that the exceptional circumstances and the reasons recorded by the District Magistrate were not communicated to the detenu, the order of detention was held violative of Article 22(5) and the High Court by the impugned order dated June 9, 1987 enlarged the respondents from detention. It is not necessary to go into the other grounds since the reference is on the correctness of the view taken by a Bench of two Judges of this Court in Batti s case.

4. It is contended by Shri K.S. Bhati, Jain, Advocate on behalf of the appellant, that after thorough preparation and analysis of facts, the view taken by the High Court and this Court in Batti s case is not correct in law. The objects and reasons of the Act disclose the gravity under which detention could be resorted to. Section 3 and Section 8 of the Act are to be read together. The detaining authority, 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 the maintenance of public order or of supplies and services essential to the community, it is necessary so to do, may pass an order directing that he be detained. In case the order is not communicated to the detenu within five days as envisaged in Section 8(1), the detaining authority is required to record reasons for and the exceptional circumstances under which order could not be communicated to the detenu, and to serve the grounds of detention within 10 days the date of the order of detention. In this case reasons have been recorded. It is not a condition that exceptional circumstances or reasons need be supplied to the detenu along with the grounds of detention. The view taken in Batti s case is not correct in law. It is contended by the learned counsel for the respondents, Shri Sushil Kumar Jain, that the view of this Court in Batti s case followed by that the High Court is correct in law for the reasons that under Article 22(5) of the Constitution, the detenu is entitled to be supplied with, as soon as may be, the grounds of detention, with a view to make representation against his deprivation of liberty at the earliest opportunity. Unless the reasons and the exceptional circumstances for non-supply of the order of detention are communicated to the detenu along with the grounds of detention, the detenu would be prevented to make effective representation either to the appropriate Government or to the Advisory Board or the court. Therefore, the communication of exceptional circumstances or reasons recorded along with the grounds of detention, is a pre-condition. Non-compliance thereof tantamounts to violation of Article 22(5) of the Constitution. The view, therefore, is correct in law.

5. In view of the diverse contentions, the question that arises for consideration is: whether the view e

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1996 Supreme(SC) 1731

IMPORTANT POINTNational Security Act does not envisage communication of the exceptional circumstances and the reasons recorded for non-supply of grounds of detention within 5 days of the detention order hence the ground it self is not sufficient to hold that detention order was vitiated.

Cases Referred (2)

IMPORTANT POINT
National Security Act does not envisage communication of the exceptional circumstances and the reasons recorded for non-supply of grounds of detention within 5 days of the detention order hence the ground it self is not sufficient to hold that detention order was vitiated.