IMPORTANT POINT
Under Clauses (i), (if) and (iv) of Section 2(d) of the Bihar Control of Crimes Act a persistent repetition of acts or omissions of the same kind is necessary by the person concerned to treat him as an anti-social element. If the acts in question are not of the same kind or if there is long interval of time between them the requirements of the Section are not satisfied.

Headnote:(i) Bihar Control of Crimes Act 1981, Sections 12(2) and 2(d), Constitution\ of India, Article 32-Petitioner was declared an anti-social element and detained under Section 12(2) of the 1981 Act-Petitioner's grounds of detention narrated 3 isolated anti-social acts committed at different points of time.
       Question :
       Do these isolated acts make the petitioner an anti-social element liable for detention?
       (No) (Para 24)
       (For dissenting opinion see paras 8-12)
       (ii) Bihar Control of Crimes Act 1981, Section2(d)-definition of Anti-social-ele ment and Section 12(2)- Detention or antisocial elements.
       Question :
       Are all the clauses of Section 2(d) to be read independent of each other for purposes of detention under Section 12(2) of the 1981 Act? (Yes) (Para12)
       (For dissenting opinion see para 12)
       (iii) Bihar Control of Crimes Act 1981 Section 2(d) clauses (i)(ii) and (iv) Habitual offender.
       Question:
       For a person to be termed a habitual offender is a persistent commission of acts' of a similar kind necessary? (Yes)
       (Paras 25 and 26)
       (For contra-definition see paras 8 and 9)
       Result:
       (Per majority A.P. Sen dissenting) The petitioner cannot be considered an anti-social element hence his detention under Section 12(2) of 1981 Act is quashed-petition is allowed.
       (Paras 3 and 29)

JUDGMENT

Chinnappa Reddy, J. - I entirely agree with my brother Venkataramiah, J. both on the question of interpretation of the provisions of the Bihar Control of Crimes Act, 1981 and on the question of the effect of the order of grant of bail in the criminal proceeding arising out of the incident constituting one of the grounds of detention. It is really unnecessary for me to add anything to what has been said by Venkataramiah, J. but my brother Sen, J. has taken a different view and out of respect to him, 1 propose to add a few lines. 1 am unable to agree with my brother Sen, J. on several of the views expressed by him in his dissent. In particular, I do not agree with the view that 'those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. It is too perilous a proposition. Our constitution does not give a carta (sic) blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilized thought and damocratic policy that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen, J. when he says, "It has always been the view of this court that the detention of individuals without trials for any length of time, however, short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law".

2. I am of the view that the decision in Kamlakar Prasad Chaturvedi1 case and the host of earlier cases are not distinguishable. This court has always taken the view that remoteness in point of time makes a ground of detention irrelevant. In Fitrat Raza Kllan's2 case, the two incidents were not separated by any great length of time. On the other hand, they were bound by a strong bond of inflammable communal violence.

3. 1 agree with all that has been said by my brother Venkataramiah, J. and concur with him and direct the detenu to be set at liberty forthwith.

Sen, J. - I have had the benefit of reading the opinion prepared by my learned brother Venkataramiah, J. and. it is my misfortune that I cannot subscribe to the view expressed by my learned brethren. I would like to give my reasons for the dissent.

5. Although the petitioner claims to be a student leader and has taken his degree in Master of Arts. in Sociology in the year 1982 and at present is a student of Law in the Bhagalpur Law College, and asserts that at one time, in the year 1980-81, he was elected as the President of the Post-Graduate Department of the Bhagalpur University and also selected as a Senator, the facts emerging from the grounds of detention clearly show that he has taken recourse to a life of crime. The petitioner applies for a writ of habeas corpus for quashing an order of detention dated August 16, 1983 passed by the District Magistrate, Bhagalpur on being satisfied that his detentio

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Cases Referred (3)