TaxTMI 
TaxTMI 
1988 (11) TMI 343
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....he grounds of detention. 2. Section 3(2) of the Act provides, inter alia, that the Central Government or the State Government, may make an order with respect to any person for purposes of preventing him from acting in a manner prejudicial to the maintenance of the public-order. The sub-section provides for detention on certain other grounds which are not germane to the present matter as the avowed object of the impugned detention is in relation to, and for the purposes of, the maintenance of public order. Sec. 5A of the Act also provides that where a person has been detained on two or more grounds, such order shall be deemed to have been made separately on each of such grounds. The object of Sec. 5A is that if any of the grounds is found to be vague, non-existent, not relevant, not connected with the detenu or is invalid for any other reason whatsoever, it should be open to the detaining-authority to support the detention order on such ground or grounds as may not be so vitiated 3. We have heard Shri R.K. Garg, learned Senior Counsel for the petitioner and Shri Yogeshwar Prasad, learned Senior Counsel for the detaining-authority. Shri Garg stre....
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....lic. On the basis of the information given by Shri Anil Gautam the Report No. 15 for non-cognizable offence u/s 427, 504 of I.P.C. was registered at P.S. Delhi Gate. In this way you acted in such a manner which is prejudical to the maintenance of public order." 3. That, on 18.2.1988 near Caltex Petrol Pump on Delhi-Muzzafar Nagar Road at about 9.10 O'clock at night you alongwith your other three companions reached at the Book stall situated at the aforesaid petrol pump, and holding him by neck you pulled Shri Anil the book seller and you, with intent to kill him gave blows of knife on his neck and chest and you also assaulted with knife on other parts of his body, because of which the nearby shops were closed down due to fear and terror caused by you and the people were alarmed. You committed the above misdeed because on 30th December 1987 at about 7.00 P.M. you had teased a girl who was the daughter of an Army Major, while she was buying a magazine from the aforesaid Book-stall and this was objected by Mr. Anil but you did not refrain from teasing the girl, then Anil had beaten you. On which you and your companions threatened Mr. Anil that this Enmity will be too expensive for hi....
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....Gautam and had clearly omitted to mention the name of the petitioner and the alleged witnesses. Shri Garg submitted that the allegations that the attack on Anil Gautam at 9.10 PM that day, as now asserted in Ground No. III would stand disproved if the original "Log-Book" recording the wireless-messages had been produced. He submitted the sheaf of loose sheets purporting to be "Log-Book" produced before this Court was not the original "Log-Book". These loose-sheets, it is urged, had been discarded by the Learned Sessions Judge who had since granted Bail to the petitioner. Learned Counsel submitted that the object of the present detention was avowedly to render nugatory the benefit of the Bail. Shri Garg relied upon the pronouncement of this Court in Ramesh Yadav v. Distt Magistrate Etah, AIR 1986 SC 315, to contend that if the detention is ordered because the detaining-authority was apprehensive that in case the detenu was released on bail he would carry on his criminal activity, it would not be a proper exercise of the power to detain. 6. Shri Garg submitted that at 12.30 A.M. that very night, on 18.2.1988 a certain Mirazuddin acting on behalf of the &....
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....ounsel has but to say 'My Lord, l have an application which concerns the liberty of the subject' and forth-with the Judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail, but, whatever form it takes, it is heard first." [Freedom under the Law, Hamlyn Lectures, 1949] 8. Personal liberty, is by every reckoning, the greatest of human freedoms and the laws of preventive- detention are strictly construed and a meticulous compliance with the procedural safeguards, however technical, is strictly insisted upon by the courts. The law on the matter did not start on a clean state. The power of courts against the harsh incongruities and unpredictabilities of preventive detention is not a merely 'a page of history but a whole volume. The compulsions of the primordial need to maintain order in society. without which the enjoyment of all rights, including the right to personal liberty, would lose all their meaning are the true justifications for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public- order might. it is true, requi....
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....at is worth living for and builds up deep resentments. Liberty belongs what correspond to man's inmost self. Of this idealistic view in the judicial traditions of the free-world, Justice Dougla said: "Faith in America is faith in her free institutions or it is nothing. The Constitution we adopted launched a daring and bold experiment. Under that compact we agreed to tolerate even ideas we despise. We also agreed never to prosecute people merely for their ideas or beliefs ......." [See: On Misconception of the Judicial Function and the Responsibility of the Bar, Columbia Law Review, Vol. 59, p. 232] Judge Stanley H. Fuld of the New York Court of Appeals said: "It is a delusion to think that the nation's security is advanced by the sacrifice of the individual's basic- liberty. The fears and doubts of the moment may loom large, but we lose more than we gain if we counter with a resort to alian procedures or with a denial of essential constitutional guarantees. " [Quoted by Justice Douglas at p. 233--On Misconception of the Judicial Function and the Responsibility of the Bar; Columbia Law Review Vol. 59] It was a part of....
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.... lapses on the part of the officers .......". 10. There are well recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the detaining-authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public-law and the public law courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the degree of probative criteria for the satisfaction for detention is of course in the domain of the detaining-authority. To lose sight of the real and clear distinction between the "public-order" and "law and order" might lead, in the process of obliteration of their outlines, to the impermissible engrafting of the latter on the former. 11. In the present case, we are not, how....
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....ell settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The Law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution..." (P. 1345) " ..... When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court ." ( P. 1345) 12. However, we are persuaded to the view that the contention of Shri Garg that, the first two grounds which pertain to the commission of non-cognizable offences have no rational nexus relatable to the maintenance of public order is to be accepted. It is true that the acts themselves, in relation to their effect on public-order which might otherwise be free from the vice of affecting public-order might assume a sinister colour and significance from the circumstances under and the manner in which the....