TaxTMI 
TaxTMI 
1999 (2) TMI 713
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....e reasons are now given in the judgment of Hon'ble R.R.K. Trivedi, J. Trius, it is not necessary to dilate the discussion on merits of the case. The judgment also beams light on the question of law referred to the Full Bench. Assenting to it instant additament purports to focus attention on the question framed by the Division Court to crystallise and fortify the erudite conclusion arrived at by Hon'ble R.R.K. Trivedi, J. 3. Taking note of the fact that "the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues; and that "the anti-social and anti-national elements including secessionist, communal and pro-caste elements and also other elements who adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom, "the legislature considered it necessary that the law and order situation in the country is tackled in a most determined and effective way; and further, "considering the complexity and nature of the problems, parti....
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.... Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (2), exercise the powers conferred by the said sub-section : Provided that the period specified in an order made by the State Government under this subsection shall not, in that first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (4) When any order is made under this section by an officer mentioned in Sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other ....
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....he scheme of the section. The satisfaction of the appropriate Government for ordering detention of each person, by its nature, has to vary on account of variance in perception of nature and extent of the danger for prevention whereof the Act has been enacted. Indiscriminate uniformity in perception is inconceivable. To be precise, subjective satisfaction envisaged by Section 3 of the Act and concept of parity are incompatible with each other. 9. After power of detention based on subjective satisfaction of the appropriate Government has been exercised, the Act provides for and requires certain procedures to be strictly followed. Last being the submission to the appropriate Government of the report of the Advisory Board containing its opinion about the existence or lack of sufficient cause for detention of a detenu. The action upon report of the Advisory Board to be taken by the appropriate Government is provided in Section 12 which runs as below:-- 12. Action upon the report of the Advisory Board.-- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm....
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....scretion not to confirm the detention order ignoring the report of the Advisory Board certifying the existence of sufficient cause for detention of a detenue. It is for the appropriate Government, and no body else, to assess and to be subjectively satisfied whether for achieving the object of the Act it is imperative to order preventive detention of a person. Such assessment and subjective satisfaction for exercise of power under Sub-section (1) of Section 12 of the Act has to be founded on various diverse and variable factors which may vary in content, intent, nature! and extent qua each person. Variance and dissimilarity of such factors constituting substratum of subjective satisfaction of the appropriate Government excludes applicability of the principle of parity. 13. During the course of hearing attention of the Court was drawn to the short, but enlightening, decision, rendered by the Hon'ble Supreme Court of India in District Magistrate v. Kulbir Chand, reported in 1990 SCC (Cri) 538, which is reproduced below : ORDER 1. Special leave granted. Arguments heards. 2. After hearing learned counsel for the parties, we are distressed to find that there was complete ....
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....idity on the anvil of the Articles 14, 19, 21 and 22 of the Constitution of India in the decision given by the Hon'ble Supreme Court of India in A.K. Roy v. Union of India, reported in AIR 1982 SC 710 : 1982 Cri LJ 340. 17. Thus, subject to the statutory limitations, disparity in treatment in the realm of preventive detention is legislatively sanctioned and constitutionally permitted. 18. In the backdrop of foregoing discussion, the inevitable answer to the question referred by the Division Court is that the order of preventive detention cannot be challenged on the ground of parity. All decisions of this Court taking contrary view must and shall stand overruled. R.R.K. Trivedi, J. 19. After hearing learned counsel for the parties at length, the detenue petitioner-Chandresh Paswan was set at liberty by our order dated 4-12-1998 as his continued detention in pursuance of the impugned order of detention dated 6-1-1998 was found to be illegal. The order contemplated that the reasons for passing the order of release shall be given later. The reasons are accordingly given now. 20. Division Bench while hearing this writ petition noticed the conflicting views expressed b....
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....es the letter of the Member of Parliament in which the payment was recommended. On this the petitioner and his associates lost their temper and abused and beat Dr. Abhai Kumar Srivastava and while leaving the office, threatened him to be killed if he complained about the incident. On account of this incident, commotion prevailed in the office of the Block Development Officer. The employees and the persons of public present there were under fear and felt terrorised. On the basis of this incident a case Crime No. 703 of 1997, under Sections 147/148/332/504/506, I.P.C. and 7 Criminal Law Amendment Act was lodged against the petitioner and ten others, at Police Station, Khorabar. The offence was under investigation. It is stated in the grounds that on account of this activity of the petitioner and his associates, an atmosphere of fear and terror prevailed among the employees and the persons of public which caused prejudice to the maintenance of the public order. 2. That, on 24-11-1997, at 4.30 p.m., forty undcr-trials were being taken by the police personnels from Court in Government vehicle No. U.P. 53 F-3210 to the District jail. When the vehicle was on way and it crossed th....
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....d and a charge-sheet had been filed in Court and trial is pending. 3. It is further stated that brother of petitioner, late Shri Om Prakash Paswan was killed on 25-3-1996 while he was holding an election meeting. From investigation Brahma Yadav, Rakesh Yadav, Shripat Darhi, Shiv Murat Darhi, Rishi Muni Tiwari were found involved and charge-sheet was filed against them. Brahma Yadav, Rakesh Yadav and their associates were lodged in Gorakhpur Jail. At the instigation of Raja Ram, father and Arun Kumar, brother-in-law of late Om Prakash Paswan, Kamlesh, son of Om Prakash Paswan and his brother petitioner, entered into a criminal conspiracy and with an object to take revenue, the offence of 24-11-1997 was committed. From the evidence found during investigation it has come to light that Kamlesh Paswan and Chandresh Paswan had promised to pay Rs. 50,000/- to each of the miscreants and had also assured them for full protection. The red Tata Mobile which carried a board displaying the name of the petitioner was being used by him from before. The injured accused was taken away by Subhash Pasi and other persons, the vehicle was being driven by Sheeri Harijan. Kharju has given statem....
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....1998. The State Government confirmed the order of detention under Section 12(1) of the Act by order dated 23-2-1998. The petitioner made his representation on 24-1-1998 to the State Government as well as to the Central Government. The State Government considered the representations of the petitioner and rejected the same on 7-2-1998. 24. Representation of the petitioner dated 24-1-1998 was received by the Central Government on 5-2-1998. The Central Government on 5-2-1998 by a communication dated 10-2-1998 called for a report of the Advisory Board from the State Government. The report of the Advisory Board was sent by the State Government on 20-2-1998 which was received by the Central Government on 6-3-1998. The representation, however, was rejected on 24-4-1998. 25. In this petition counter-affidavits have been filed by Shri R.S. Agarwal, Joint Secretary to the Government of U.P. for respondent No. 1, by Shri K.L. Meena, the then District Magistrate, Gorakhpur, for respondent No. 2, by Shri P.K. Srivastava, A.D.M. City/Superintendent of District Jail, Gorakhpur for respondent No. 3 and by Shri Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India for res....
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....f approval under Section 3(4) of the Act as well as the time of passing an order of confirmation under Section 12(1) of the Act. As the copy of the Writ Petition No. 2807 of 1997 and the stay order dated 25-12-1997 contained the counter- version of the petitioner and could affect the mind of the detaining authority in forming subjective satisfaction, the non-consideration of these documents vitiated the subsequent orders also. It is submitted that it was necessary for the detaining authority and the State Government and the Central Government to consider the counter-version of the petitioner regarding his involvement in the case. 5. Lastly, it has been submitted that the continued detention of the petitioner has been rendered illegal on account of inordinate and unexplained delay in deciding his representation by the Central Government. It is submitted that there is a total delay of 76 days in deciding the representation. In connection it has been submitted that even if the Minister of State for Home was not available, the representation could be placed before the Home Minister. The report of the Advisory Board was not at all necessary for deciding the representation of the peti....
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....basis the detaining authority could have subjective satisfaction that an order in the nature of preventive detention was necessary against a particular individual to prevent him from indulging in similar activities. The same considerations could not be applicable to other accused of the same case. The report of the Advisory Board may not be binding in case of other detenu. It could only be a relevant circumstance to be taken into account. The constitutional validity of the Act has been examined by Hon'ble Supreme Court and it has been found to be constitutionally valid. 30. The learned Addl. Government Advocate has further submitted that the non-placing of the copy of the Writ Petition No. 2807 of 1997 and the interim order dated 25-12-1997 before the detaining authority and the 1State Government could not invalidate the orders passed by them. It is submitted that the subject-matter of challenge in the writ petition was regarding a criminal case which cannot have any relevance to the proceedings under the Act, where the orders passed are preventive in nature. It has also been submitted that in the writ petition there is no pleading in this regard as required under Chapter XX....
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.... 1993 SCC (Cri) 913 : 1993 AIR SCW 2305. 33. We have thoroughly considered the rival submissions made by the learned counsel for the parties. As this case has been mainly referred to this Bench for giving an authoritative opinion on the legal question regarding the application of parity in cases of preventive detention, we propose to deal with this question first. Before entering into the discussion on this question, it would be relevant to have a look to the object and reasons for which the legislature enacted the National Security Act, 1980, and the provisions of the Act dealing with the preventive detention. The objects and reasons for enacting the Act, as stated in the Bill, were as under :-- In the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitations on different issues, it was considered necessary that the law and other situation in the country is tackled in a most determined and effective way. The anti-social and anti-national elements including secessionist, communal and pro-casts elements and also other elements who adversely....
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....ial to the community it is necessary so to do, make an order directing that such person be detained. Explanation.-- For the purposes of this subsection, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to Sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances of prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (2), exercise the powers conferred by t....
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....ity making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be regarded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. 35. Section 9 contains provision for constitution of the Advisory Board Sections 10 and 11 provide for making reference of cases for preventive detention to and the procedure of Advisory Boards. Both are very relevant and are being reproduced below :-- 10. Reference to Advisory Boards.-- Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 9. the grounds on which the order has been made and the....
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....the grounds and other particulars are separately mentioned/The consideration by the detaining authority is one individual, his conduct which was prejudicial to the public order and his nature and tendency to commit similar activity in future which are sought to be prevented by passing an order of preventive detention. The involvement of such individual in a criminal case which caused disturbance to the public order is one factor and is not whole of the consideration about him. Under Section 8 the detenu is communicated the grounds and the detaining authority may, in public interest, not disclose other facts which it considers to be against the public interest. Under Section 10 of the Act if the order of preventive detention has been made by an officer mentioned in Sub-section (3) of Section 3, his report is required to be submitted before the Advisory Board together with the grounds on which the order has been made and the representation, if filed by the detenu. Under Section 11 the area of consideration further widens as the Advisory Board may call for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose throug....
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....be between the parties before the Advisory Board. Hon'ble Supreme Court in case of A.K. Roy (supra) described the nature of the proceedings before the Advisory Board in the following words (para 99 of AIR):-- In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned. The detention, it must be remembered, is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi-judicial Tribunals, before which there is a lis to adjudicate upon. 39. In para 100 of the report, Hon'ble Supreme Court also mentioned about the nature of the right of the detenu in such proceedings which is being reproduced below :-- Apart from this consideratio....
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....from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision in this regard only on the ground that the persons concerned are all joined as accused in a criminal case. 41. Now, at this place, it shall be proper to consider the views taken by Division Bench of this Court which have been relied on by the learned counsel for the petitioner. The first case is of Wazir Yadav v. State of U.P. (1992) 2 EFR 697 : 1993 Cri LJ 1220 on behalf of the petitioner, the submission before the Division Bench was that since co-detenu whose grounds of detention were identical has been released in pursuance of the revocation order passed by the State Government which was in consonance with the opinion of the Advisory Board, the petitioner's detention should also be declared void as the continuous detention of the petitioner is per se arbitrary action on the part of the State Government inasmuch as the action of the Advisory Board and the State Government is hit by Article 14 of the Constitution of India. This was accepted. The principle of parity was applied purely on the basis of the grounds served along with the order of detention. T....
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.... of parity when the co-detenu with identical cases had already been set at liberty. The writ petition, therefore, deserves to be allowed on this score alone. 42. A perusal of the aforesaid portion of the judgment clearly demonstrates that the learned Judges had before them the similarity between the two detenus on the basis of their involvement in the criminal case which provided the grounds for passing the order. With great respect to the learned Judges, we are of the opinion that the view taken was not correct. The equality before law contemplated under Article 14 of the Constitution can be applied among those who are equal in all respects. The similarity sought in the cases was in respect of one factor, namely involvement in the criminal cases which, as already observed by us above, was only one factor among many other considerations which led to passing of an order of preventive detention on the basis of the subjective satisfaction. The legal maxim "parium Eadem Est Ratio Idem Jus" which means "of things equal the reason and the law is the same," thus may be gainfully quoted for applying parity which, in other words, may be stated that, for law being the same, the things mus....
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....tion order is dated 17-8-1997 and the board considered his case and representation in September, 1997. He had been given an opportunity of personal hearing before the Board and what facts had prompted the Board to justify his detention are not open to be looked into by a writ Court. It is true that the State had the discretion to revoke the order in respect of Prabhat or Deepak, even after the reports of the Advisory Board in view of revocation of the order of Ramendra, if not under Section 12(1) of the National Security Act, but at least under Section 14(a) of the Act. But the State did have before it not only the F.I.R. but also the respective representations of the different detenus. In Ramendra Pal Singh's case we do not have the representation before us in the record to know as to what special pleas were taken up by the detenu. So far the F.I.R. is concerned Ramendra Pal Singh was attributed the role of counting the sheets whereas Deepak and Prabhat were given mere active roles and the difference in the alleged role is not academic as suggested by the learned counsel. Whatever be the allegations in the F.I.R., we had called upon the learned A.G.A. to produce the records, r....
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.... binding on the detaining authority which ordered the detention of the petitioner, but, it cannot be gainsaid that the fact that the Advisory Board has recorded such an opinion on identical facts involving common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in this case. 45. Thus, Hon'ble Supreme Court did not apply the doctrine of parity though on similar facts, the Advisory Board had given a different opinion favourable to other detenu. The Court only said that it was a relevant circumstance for consideration of the detaining authority. In the present case, the order of detention against the petitioner was passed on 6-1-1998. The Advisory Board gave its report on 19-2-1998 which was received by the State Government on 20-2-1998 and the order was confirmed on 23-2-1998, under Section 12 of the Act, whereas the order of detention against Kamlesh Paswan was passed on 21-3-1998. Naturally, the opinion of the Advisory Board must have been given subsequently and the order of detention against Kamlesh Paswan was revoked by the State Government under Section 12(2) of the Act on 1-5-1998. Thus, there was no question of p....
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....s. Explanation could be found in the record of the particular case but as it was not raised, reasons could not be indicated. It has been further submitted that the procedure for application under Article 226 of the Constitution for a writ in the nature habeas corpus is governed by the rules provided in Chapter XXI of Part IV of the Rules of the Court. The Rules require that the application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a direction, order or writ, and shall conclude with a prayer stating clearly, so far as the circumstances permit, the exact nature of the relief sought. The Rules further require that the application shall be accompanied by an affidavit of the person restrained verifying the facts stated therein by reference to the numbers of the paragraphs of the application containing the facts. The Rules provide separate procedure for applications, if received by post or telegram. It has been submitted that as the petitioner filed writ petition in writing it was obligatory on him to furnish the grounds on which the relief has been sought and in absence of pleading he i....
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....ndia 1990 SCC (Cri) 258 (supra), after examining number of cases, Hon'ble Supreme Court held that mere delay in passing the order of detention will not by itself vitiate the detention order. It has to be seen whether the delay has been satisfactorily explained or not and the Court finds that the grounds are stale or illusory and there was no real nexus between the grounds and the impugned order of detention. Similar view has been expressed almost in every decision. 53. In the present case, the incident mentioned in ground No. 1 was of 9-7-1997 in which it is alleged that petitioner along with his ten associates beat the Block Development Officer, Dr. Abhai Kumar Srivastava and threatened him for life. Case in this connection was registered as Case Crime No. 713 of 1997, under Sections 147/141/ 332/504/506, I.P.C. and 7 Criminal Law Amendment Act. The Block Development Officer is a senior gazetted officer at the block level. From the incident, as narrated in the grounds, it cannot be doubted that it must have disturbed the public order in that locality as the incident took place at 12.30 p.m. during office hours in presence of employee and persons of the public. The impugned ....
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....re of the requirements of the rules applicable to such writ petitions. The learned counsel referred to ground No. 9 raised in the writ petition. We have perused ground No. 9. However, in this ground also, it has not been alleged that ground No. 1 was stale. In the fact of the case, the petitioner cannot seek help of the observations of Hon'ble Supreme Court in case of Icchu Devi AIR 1980 SC 1983 (supra). From perusal of the judgment it appears that Hon'ble Supreme Court made observations with regard to the procedure applicable in Supreme Court. However, in this Court the procedure in such writ petitions is governed by the Rules and in normal course they ought to be complied with. For the applications received through post or telegram, the procedure is different. 55. For the reasons stated above, we do not find any merit in the submission made by the learned counsel and, in our opinion, the delay of about six months in the present case cannot be said to be inordinate or long so as to snap the live link with the purpose of the order of preventive detention. Ground No. 1 became more relevant as the second incident, which took place after about four months, was again an inci....
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....he petitioner to make necessary averments as required by Rules 2 and 3 contained in Chapter XXI of Part IV of the Rules of the Court. Learned counsel has further submitted that 25-12-1997 was holiday. The writ petition was filed at the residence of the learned Judge of this Court and copies were not served in the office of the Government Advocate. The office of the Advocate General was closed from 24-12-1997 to 4-1-1998. In the circumstances, necessary papers could not be in possession of the detaining authority or the Sponsoring authority. As the petitioner could not be arrested in view of the interim order passed by this Court, the sponsoring authority was aware of the fact that there is some interim order in favour of the petitioner which was mentioned by him fairly in his report. The order of detention was passed on 6-1-1998. Learned counsel also submitted that record of writ petition No. 2807 of 1997 may be summoned and perused by this Court. It is submitted that as a document was not relied on for forming subjective satisfaction, no prejudice has been caused to the petitioner. It was only considered as a fact that petitioner was not arrested and he may commit similar activiti....
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....27;्रिम आदेश दिनांक 19.1.98 तक पार्थीगण को अपराध संख्या 1976-77, अंतर्गत धारा 147, 148, 149, 307, 333, 427, 109, 120 बी. आई.पी.सी. व धारा एक्सप्लोसिव एक्ट धारा 7 किमिनल अमेंडमेंट एक्ट व आर्मस एक्ट, पब्लिक प्रॉपर्टीज एक्ट, पी.एस. शाहपुर जिला गोरखपुर में गिरफ&....
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....de an interim order while issuing show cause notice on the special leave petition and directing that in the meantime the petitioner shall not be arrested, that the impugned order of detention is illegal. This order was made in the special leave petition which did not challenge the impugned order of detention but questioned the rejection of the application for anticipatory bail. The order of detention was made on December 20, 1989, i.e. prior to the passing of The said order dated January 22, 1990. The said order of this Court lias, therefore, nothing to do with the subjective satisfaction arrived at by the detaining authority in passing the order of detention in question. It has been urged in this connection that the facts in between the passing of the detention order and implementing the detention order have to be taken into' account whether the detention order should be served on the detenu even after passing of the order by this Court dated January 22, 1990 stating that the petitioner shall not be arrested in the meantime.1 The counsel for the petitioner referred the case of Binod Singh v. District Magistrate, Dhanbad, (1986 (4) SCC 416 : AIR 1986 SC 2090 : 1986 Cri LJ 1959 ....
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....e order. It has to be seen in the facts of each case whether non-consideration of the alleged facts could vitiate the Order or not. In our considered view and particularly after perusal of the record of writ petition No. 2807 of 1997, the order does not suffer from any illegality on the alleged ground. 64. The last submission of the learned counsel for the petitioner was that the continued detention of the petitioner has been rendered illegal on account of inordinate and unexplained delay in deciding his representation by the Union of India. The representation was made by the petitioner on 24-1 -1998 which was received by the Centra] Government in the Ministry of Home Affairs on 6-2-1908. On this representation certain information, that is, the opinion of the Advisory Board was required from the State Government by wireless message dated 10-2-1998. 'This information was received by the Central Government on 23-2-1998. On receiving the said information the case was processed by the Dy. Secretary on 6-3-1998. Then (he matter was put up before the Joint Secretary on 9-3-1998. However, as private secretary to the Minister of State for Home informed that the Minister is not likel....