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SUPREME COURT OF INDIA
R. S. Pathak and Sabyasachi Mukharji, JJ.
Binod Singh - Petitioner
versus
District Magistrate, Dhanbad, Bihar and others - Respondents
Criminal Appeal No. 317 of 1986 with W.P. (Criminal) No. 316 of 1986
Decided on 26-9-1986
Held-Yes, only when it was passed but service of the order was not on proper consideration. (Para 7)
Further held, when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipso dixit of the officer. If there was cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. (Para 7)
Result-
Appeal allowed. Order of detention set aside.
JUDGMENT
Sabyasachi Mukharji, J. –Criminal Appeal No. 317 of 1986 arises out of the judgment and. order of the High Court of Patna and the Writ Petition No. 316 is in respect of the same detenu. Both these challenge the order of detention dated 2nd January, 1986 passed by the respondent No. 1. The District Magistrate Dhanbad in respect of the petitioner under section 3(2) of the National Security Act, 1980, hereinafter called the 'Act' on the ground that the petitioner's activities were prejudicial to the maintenance of public order. Several criminal cases had been filed against the petitioner between 3rd January, 1983 to 18th February, 1985. On or about 2nd January, 1985 the order of detention was passed on an incident relating to the exchange of fire between two rival groups. The order states the grounds as follows:
1. On 24.12.1985, between 10 and 10.30 a.m. the subject along with Ramashish Bangaali, Gulam, Rambriksha armed with Rifle, gun, etc. came in Car No. BHG-9372 on Katras Coal Dump and started indiscriminate firing to kill Birendra Pratap Singh a rival of his calendestine business of coal to establish his criminal superiority in full view of the shopkeepers customers and passersby of the area. Birendra Pratap Singh and his associates who were there also returned the firing in same manner. As a result of this firing one innocent namely Bcahamdeo Mishra was killed. The exchange of indiscriminate firing in the main market area of Katras created great panic and alarm in the area. The normal tempo of life was completely disturbed. The people started running helter and shelter for their lives. Shopkeepers put down their shutters. Doors and windows were closed. The vehicular traffic came to halt. This refers to Katras P.S. Case No. 381/85 dated 24.12.85 under section 149/307/326 IPC/27 Arms Act.
Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject.
1. Katras P.S. Case No. 5/83 dated 3.1.83 under section 147, 341/353/307 I.P.C.
In this case subject and his associates tried to set free the trucks and driver from the police custody by force and when he failed in his attempt he threatened the police officer and CISF Personnel to do away with their lives, C.S. No. 5/133 has already been submitted in this case.
2. Katras P.S. Case No. 303/83 under section 147/148/152/323 I.P.C.
In this case subject and his associates went to the tailoring shop of Saukat Ansari and asked him to keep his cloths ready by 9.10.83 and on his refusal, he assaulted him in presence of customers and others C.S. No. 196/83 has already beel1 submitted in this case.
3. Jogta P.S. Case No. 22/84 dated 11.3.84 under section 147/148, 307/326/353/333/324/325 I.P.C./27 Arms Act.
In this case subject and his associates opened fire on police party who went to apprehend Raghunath Singh absconder under NSA. As a result of this indiscriminate firing by him and his associates one Police Officer namely Shri R. K. Verma, received serious head injury and is still incapable to work. Charge sheet No. 25/84 has already been submitted in this case.
4. Jogta P.S. Case No. 9/85 dated 18.2.85 under section 369, 307/323/324/ 176/34 I.P.C./27 Arms Act.
In this case Sisir Rajan Das, who was coming in a religious procession on the eve of Shivratri and was dancing in the role of Shiva was compelled by his associates to dance before the marriage party of subject's sister. Sri Sisir Rajan Das, however, acceded to their request and started dancing. When he was dancing some of the members opened lire on him as a result of which he fell down. The subject and his associates however put his body in his car and fled away Neither Shri Das nor his body could be traced out till date. Charge sheet No. 20/85 his already been submitted in this case. (Emphasis supplied)
5. Jogta P.S. Case No. 68/85 dated 1.12.85 under section 341/34 I.P.C.
In this case subject threatened Sri Krishana Ballav Sahay, General Secretary, C
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