1986 (9) TMI 387 - SC - Indian Laws

Preventive detention - contention of the petitioner/appellant that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail. The service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under section 3(2) of the Act. Held that - Appeal allowed. Though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration. It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority. The order of detention, therefore, is set aside.

Summary

Issues:
Challenge to detention order under National Security Act, 1980 based on criminal activities leading to disturbance of public order, sufficiency of grounds for detention, consideration of detenu's status at the time of service of detention order, necessity of preventive detention, principles governing preventive detention cases.

Analysis:
The Supreme Court heard Criminal Appeal No. 317 of 1986 and Writ Petition No. 316 challenging the detention order under the National Security Act, 1980. The detenu was detained by the District Magistrate Dhanbad based on activities prejudicial to public order, including incidents of indiscriminate firing and violence between rival groups. The order of detention cited multiple criminal cases against the detenu, highlighting a pattern of disruptive behavior in the area. The detenu contended that the order was served while he was already in custody, and he was not provided with all relevant documents. Despite making representations and appearing before the Advisory Board, the detenu was not given a hearing, leading to the challenge in the High Court of Patna. The grounds of challenge included the timing of the detention order, ongoing criminal cases, and the necessity of preventive detention.

The District Magistrate justified the detention citing the disruptive activities of the detenu and his associates, creating panic and fear in the community. However, it was noted that the detenu had surrendered in a criminal case before the service of the detention order. The Court emphasized that preventive detention should be exercised cautiously and only in exceptional cases where there is a genuine need. The detaining authority failed to consider the detenu's status at the time of service of the order, particularly the likelihood of his release from custody. The Court highlighted the importance of proper consideration of all relevant factors before exercising the power of preventive detention.

The Court referred to previous decisions on preventive detention cases and stressed the need for a rational nexus between the grounds for detention and the objectives of the Act. While the initial detention order was justified based on the available information, the failure to consider the detenu's custody status at the time of service rendered the continued detention unjustified. The Court set aside the detention order, allowing the appeal and writ petition. However, it was clarified that this decision did not affect the detenu's detention under the criminal cases. If the detenu is released on bail in those cases, the appropriate authority should reconsider the service of the detention order in accordance with the law. The Court concluded by stating that there were no orders for the immediate release of the detenu.

In summary, the judgment addressed the legality of the detention order under the National Security Act, emphasizing the need for proper consideration of the detenu's status and the necessity of preventive detention. The Court set aside the detention order due to the failure to adequately assess the detenu's custody situation at the time of service, highlighting the importance of upholding fundamental freedoms while ensuring public safety.