1987 Supreme(Bom) 69

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
G.H. Guttal P.V. Nirgudkar, JJ.
Shaikh Moin @ Kabadi.... Petitioner.
Versus
District Magistrate, Parbhani others.... Respondents.
Criminal Writ Petition Nos. 102, 104, 108, 117 118 of 1986, decided on 12-2-87.
Advocates appeared :
N.P. Chapalgaonkar, for petitioner in W.P. 102/86.
Akbar Patel, for petitioner in W.P. 104/86.
S.A. Deshmukh, for petitioner, in W.P. 108/86.
K.G. Kader and Asif Ali, for petitioner, in W.P. 117/86 118/86.
B.B. Jadhav, A.P.P., for respondents in W.P. 102/86, 104/86, 108/86, 117/86 118/86.

Headnote:Section 5-A (As amended by Amendment Act (60 of 1984)-Even if some of grounds of detention are vague, nonexistent, irrelevant or remote grounds which are relevant and proximate can still foundation of a valid detention order.

       Indeed in terms of Section 5-A of the Act, the order of detention is deemed to have been made separately in respect of each of the cases against the petitioners detenus. The legislative intervention by section 5-A of the Act has thus removed from the authority of the courts the question of remoteness or the relevance of the grounds where some grounds are irrelevant or remote. The submission made on behalf of the Petitioners that the incidents of 1984-85 have influenced the order of detention which was made also on the basis of the incidents in Crimes Nos. 77/1986 and 107/1986 and therefore, the whole order is Illegal is opposed to the statutory mandate of Section 5-A of the Act. Thus, even if some of the grounds are vague, non-existent, irrelevant or remote, the grounds which are relevant and proximate can still form the foundation of a valid order of detention. The Legislature has enacted that the order of detention shall be deemed to have been made after being satisfied with reference to .the remaining grounds which means the grounds with reference to the Crimes.

       Section 33 (1)-Preventive detention-Guidelines and principles for passing orders of preventive detention-Courts jurisdiction in matters of preventive detention.

       By their very nature, the orders of preventive detention involve forecasts in general terms based on past conduct of which particulars can be given. All that can be done is to state the apprehension in the form of grounds as to what the detenu is likely to do having regard to the particulars of past activities which may be given so that preventive detention is shown to have become necessary. Another principle which is required to be borne in mind is that the law of preventive detention is a different field of criminology which has its own guidelines, and the Court has to go by them without telescoping into them what a Criminal Court expects in a trial of an accused brought before it The Courts jurisdiction is confined to the examination of violation of those guidelines which have been woven in a consistent fabric by the decisions of the Supreme Court over the years. Anil Dey v. State of West Bengal, AIR 1974 SC 832. The third principle is that where the opinion of the officer should be honest and real and not so fanciful or imaginery, that on the facts alleged no rational individual will entertain the opinion necessary to justify the detention. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link between the vicious episode and the prejudicial activities sought to be indicated.

       It is both "inexpedient and undesirable to lay down any inflexible test 114 to how far distant the past conduct or the antecedent history should be for reasonable and rationally justifying the conclusion that the person concerned, if not detained may indulge in prejudicial activities". There is no inflexible test to how remote or how proximate the events should be but the detaining authority should explain the delay with a view to show that there was proximity between the prejudicial activity and the detention order.

       There was a time lag of six months between the offending acts and the date of detention order. The Supreme Court held that since there was no hard and fast rule that merely because there was a time lag of six months, the causal link must be taken to be broken and the satisfaction of the detaining authority was sham or unreal. The Supreme Court emphasized that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. The determinative factor is whether the past activities of the detenu are such that a reasonable prognosis can be made as to the future conduct of the detenu. The test of proximity is thus a subsidiary test. Finally, the Supreme Court considered that the solitary daring act of dacoity committed six months ago provided the necessary nexus with the detention order. In our opinion while time lag may be subsidiary yet relevant test, qualitative nexus cannot be overlooked.

       Coming to the facts of this case, the offences, though isolated, involved use of weapons. The subsequent events revealed that the petitioners were in fact importing weapons and using them to terrorise people. The element of terrorising is clear from the fact that some offences were committed in public places and against the public servants. The detaining authority who had before him the record of all these cases considered that they provided a chain of events culminating in the last incident of March, 1986, involving the same persons and came to the conclusion already referred to.

       The District Magistrate who considered these events in injunction with the Court Cases No. 77/1986 and 107/1986 involving distribution of arms for communal riots affirms that he was satisfied that the petitioners activities imperil public order. If the grounds were relevant and were so related to the last incident as to raise an apprehension that the petitioners would use the weapons, terrorise people and disturb public order, we do not consider that they were irrelevant or too remote to justify the order of detention.

       Section 3 (1)-Detention under-Non application of mind-Release on ball -Validity of.

       Whether the detaining authority did not apply its mind to the fact that petitioners were enfact released on bail by orders of Court. Whether the detaining authority applied these mind to this fact or not is a question of fact. It was not necessary for the petitioners to urge in their petition that this fact was not taken into consideration before the order of detention was made. In the absence of such averment in the petition, respondent cannot be expected to meet this point. The detaining authority might have considered this point or he may have some explanation about the relevance of the petitioners release. If there is no pleading of this fact and its effect, respondents cannot be expected to meet such a point. It was held that on this account the order not "Suffers from the non-application of mind.

       Section 3(1)-Detention under section 3(1)-Validity of-Explaining of detention to detenu in a language understood by him.

       The original panchanama bearing signatures of the petitioners in token of having understood the contents of the grounds were shown to us and we have satisfied that the grounds were in fact explained to the petitioners in a language understood by them in token of which they affixed their signatures. The subsequent conduct of the petitioners in not urging before the Advisory Board that the grounds were not communicated in a language understood by them together with the fact that they did make representations and signed them are inconsistent with the submissions made for first time in this Court.

       The facts of these petitions reveal that the petitioners were infact explained the grounds in their language of which panchanamas were made they made detailed representations of nearly 8 pages to the Advisory Board. The representation of the petitioner in Criminal Writ Petition No. 102 of 1986 was supported by affidavits of in certain persons. The affidavits which are in Marathi reveal that those who made affidavits knew what the grounds were about. They have referred to the enmity between Hindus and Muslims and recommended that the petitioners did not do anything against public order. All these affidavits could not have been secured unless petitioner knew what the grounds were. It cannot, therefore, be held that the petitioners did not understand the grounds on which they were detained.

       There was a mere assertion by the detaining authority that the grounds were explained in Marathi. The detaining authority relied upon mere signature of the detenu in Marathi and presumed that the detenu knew Marathi. In the present case, there is unimpeachable evidence to prove that the contents were in fact explained in Urdu to the petitioners. Secondly, the petitioners made representations supported by affidavits the contents of which disclosed knowledge of the facts relevant to the accusations made against the petitioners. Thirdly the petitioners never made this grievance in their representations to the Advisory Board.

       Section 3 (1)-Preventive detention-Validity of-Factors which lead to subjective satisfaction of detaining authority, for preventive detention of detenu - Even solitary incident may justify detaining authority in being satisfied that It was necessary to present activities by detention of detenu.

       Whether purchase of arms from the Gurudwara and its distribution for the purposes of spreading communal riots could be the basis of a prognosis about the petitioners future conduct was for the detaining authority to decide. He has done so far reasons stated by him. There is no cut and dried formula to determine as to what should satisfy the detaining authority. There are cases and cases, incident and incidents. A solitary incident may be so unique in its gravity and potential to disturb the public order that the detaining authority be justified in being satisfied that it was necessary to prevent the activities by detention of the detenue. We do not consider it necessary to quote the judgments of the Supreme Court on this point but we will refer to them briefly. The substance of the matter is that the nature of the act and attendant circumstances and quality of the act of the petitioner, are of supreme importance.

       The solitary incident of organised armed train dacoity were held sufficient to establish the nexus with the detention. It is the quality of the incident, its potential for threatening public order, propensity of the detenue to repeat such crimes land the organised nature of the activity are factors which naturally weigh with the detaining authority. If these factors are present, one or more of these factors may be enough to lead to the subjective satisfaction necessary for making the order of detention. In our opinion, the detaining authority for the reasons stated by him was justified in making the orders of detention.

       Sections 3 (1) and 5-A-Preventive detention-Even if some of grounds of detention are irrelevant, detention order can be upheld if remaining grounds are relevant.

       The effect of acquittal of the petitioners in some of the cases was strongly relied on and it was urged that the detaining authority having been influenced by those incidents in respect of which they were acquitted acted on irrelevant material in making the order of detention. In the first place, having regard to Section 5-A of the Act, even if some of the grounds are irrelevant, the order can be upheld if the remaining grounds are relevant. Even so, we will examine this submission. It is true that the petitioners in Criminal Writ Petitions Nos. 104 of 1986, 108 of 1986 and 118 of 1986 were acquitted in two out of four cases filed against each of them in 198485 and the remaining cases are pending. But mere acquittal in some of the cases does not mean that the facts of those cases .cannot be taken into account for the purpose of detention provided, that the detaining authority has explained the reasons for such acquittal. In the affidavits in reply filed in each of the petitions, the detaining authority bas asserted that because of the petitioners intimidating and violent activities the witnesses do not come forward to testify. This resulted in their acquittal.

       We are of the opinion that merely because in some of the cases, the petitioners were acquitted is no reason for concluding that an order of detention could not be subsequently made on the same facts. It may be that an accused cannot be prosecuted again. But the considerations which apply for preventive detention are different from those applicable to the Courts trying criminal cases. If the facts disclosed during the investigation of the cases in which the petitioners were acquitted are relevant for the formation of opinion by the District Magistrate, an order of detention can be validly made.