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SUPREME COURT OF INDIA
D.A. DESAI AND R.B. MISRA, JJ.
Merugu Satyanarayana, Petitioner
Versus
State of A.P. and others, Respondents.
Writ Petns. (Crl.) Nos. 1166 and 1167 of 1982
Decided on 18-10-1982.
AND
Bandelal, Petitioner
Versus
State of A.P. and others, Respondents.
Held in Rameshwar Shaw v. District Magistrate Burdwan and another this court held that as an abstract proposition of law the detention order can be made in respect of a person who is already detained. But having said this, the court proceeded to observe as under:-
"As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the consideration of proximity of time will not be irrelevant. On the other hand, if a person who is, undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may he possible for the authority to consider the antecedent history of the said person and decide whether after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case." (Para 11)
(ii) National Security Act 1980-Sub-section (2) read with sub-section (3) of section 3-Person already in Jail-Detention order still served - Whether obligatory for the detaining authority to show that the person in respect of whom detention order is made is already in Jail and yet a detention order is compelling necessity? –Yes - No such awareness on record-Detenus released.
Held that the detention order refers to the name of the detenu and the place of his residence. There is not even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of one month and four days. The detenu is referred to as one who is staying at a certain place and appears to be a free person. Assuming that this inference from the mere description of the detenu III the detention order is impermissible, the affidavit is conspicuously silent on this point. Not a word is said that the detaining authority was aware of the fact that the detenu was already in Jail and yet it became a compelling necessity to pass the detention order. Therefore, the subjective satisfaction arrived at clearly discloses a non-application of mind to the relevant facts and the order is vitiated. (Para 15)
(iii) National Security Act, 1980-Section 3-Affidavit not filed by detaining authority but by Sub-inspector of Police-Supreme Court refused to take notice of affidavit-District Magistrate told to act with responsibility, circumspection and wisdom.
Held if the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a Sub-inspector of police, the safeguards noticed by this court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy. We only hope that in future the District Magistrate would act with responsibility, circumspection and wisdom expected of him by this court as set out earlier. However, the conclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority. We refuse to take any notice of an affidavit in opposition filed by a Sub-inspector of Police in the facts and circumstances of this case. (Para 17)
JUDGMENT
DESAI, J.:— On Oct. 8, 1982, we quashed and set aside the detention order dated Dec. 26. 1981 in respect of detenu Merugu Satyanarayana s/o Ramchander, deferring th giving of the reasons to a later date.
2. On the same day we quashed the detention order dated Feb. 13, 1982, in respect of detenu Bandela Ramulu @ Lehidas @ Peddi Rajulu @ Ramesh, . s/o. Venkati, deferring the giving of the reasons to a later date.
3. Identical contentions were raised in both these petitions and, therefore, by this common order we proceed to give our reasons on the basis of which we made the aforementioned orders.
W. P. 1166/82.
4. Detenu M. Satyanarayana was working in Belampalli Coal Mines. According to him he was arrested on Oct. 22, 1981, but was kept in unlawful custody till Oct. 31, 1981, when he was produced before the Judicial Magistrate who took him in judicial custody and sent him to Central Jail, Warangal. According to the respondents detenu was arrested on Oct. 30, 1981, and was produced before the Judicial Magistrate on Oct. 31, 1981. When he was thus confined in jail a detention order dated Dec. 26, 1981 (in the counter-affidavit the date of the detention order is shown to be Dec. 28, 1981) made by the District Magistrate, Adilabad, in exercise of the power conferred by subsection (2) read with sub-sec. (3) of S. 3 of the National Security Act, 1980 (Act for short) was served upon him on Dec. 29, 1981. The District Magistrate also served upon the detenu grounds of detention on Jan. 2, 1982. It is not clear from the record or from the counter-affidavit filed on behalf of respondents 1 to 3 whether any representation was made by the detenu and when the matter was disposed of by the Advisory Board.
W. P. 1167/82.
5. Detenu Bandela Ramulu according to him was arrested on Jan. 1, 1982, and he was produced before the Judicial Magistrate on Jan. 11, 1982. The dates herein mentioned are controverted by the respondents and they assert in the counter-affidavit that the detenu was arrested on Jan. 8, 1982, and was produced before the Judicial Magistrate on Jan. 9, 1982. During, the period of his incarceration the District Magistrate. Adilabad in exercise of the power conferred by sub-section (2) read with sub-sec. (3) of S. 3 of the Act made an order of detention which was served on the detenu in District Jail, Nizamabad, on Feb. 14, 1982. Even in this case it is not clear from the record whether the detenu made any representation or how his case was dealt with by the Advisory Board.
6. The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court. It appears both the petitions were rejected. Thereafter the present petitions were filed.
7. It may be stated at the outset that there is some dispute about the date of arrest of detenu in each case. But in order to focus attention on the substantial contention canvassed in each case we would proceed on the assumption that the date of arrest given in each case by the respondents is correct. We do not mean to suggest that the averment of the respondents with regard to the date of arrest is correct but that would be merely a presumption for the purpose of disposal of these petitions.
8. Mr. Gobinda Mukhoty, learned counsel who appeared for the detenu in each petition urged that on the date on which the detention order came to be made against each detenu he was already deprived of his liberty as he was already arrested and was confined in jail and, therefore, he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order. Hence no order of detention could be made against him
9. The impugned detention order in each case recites that the detaining authority, the District Magistrate of Adilabad, made the Impugned detention order with a view to preventing the detenu from continuing to act further in the manner prejudicial to the maintenance of public order.
10. The fact situation in each case as transpires
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