SAKUNTHALA Vs. STATE

JUDGEMENT

(1.) 1.00 Parties: 1.01 DOG RAVI is the pet name of the detenu though his real name is Ravikumar. 1.02 It is stated before us that like Gabbar Singh in SHOLAY and Mugambo in Mr. India, he too claims as terror in Tamil Nadu, more particularly in Southern Districts of the State. 1.03 His mother is the petitioner herein. She is challenging the legality and correctness of the order of detention. 1.04 The first respondent is the State represented by the Commissioner of Police, Madurai City and the second respondent is the Secretary of the Government of Tamil Nadu.

(2.) 2.00 Counsel 2.01 Sri. V.Kathirvelu, learned advocate argued for the petitioner. 2.02 The learned Additional Public Prosecutor appeared on behalf of the respondent.

(3.) 5.00 Discussion 5.01 Before we proceed to discuss in detail on the merits and demerits of the detention, we would like to focus our attention on the law of preventive justice and the legal principles emerging there from since settled by the Apex Court in similar cases in order to apply in this case. BACKGROUND HISTORY 5.02 Detention laws in India have their roots since British days. When India got independence, an opportunity to taste the freedom has come and it was nothing but natural that all the natural rights, human rights, legal rights, which were denied to our citizen for long by the British monorch are restored through our Constitution. However, framers of our constitution thought fit that the preventive legislation to be continued under the constitution subject to certain safeguards laid down therein. 5.03 Inclusion of the provision for preventive detention was justified by the founding fathers of the Indian Constitution on the ground of safe guarding the hard earned freedom of the country which could be jeopardised by the anti- national and anti-social elements. 5.04 Reading of the Constituent Assembly debates discloses that there was detailed deliberations on the subject and our great freedom fighters and the prominent leaders including Pandit Jawaharlal Nehru, Sardar Vallabhai Patel and Dr.B.R.Ambedkar thought that the preventive justice is necessary though they themselves had suffered with the legislation by abuse and misuse of power in pre-independence days. 5.05 The Preventive Detention Act 1950 came into force to curb violence and terrorists activities for the welfare of the people at large. It is therefore evident that for the sake of freedom of an alleged culprit the peace of millions of innocent citizens can not be made to sufferer. OBJECTIVE: 5.06 The preventive justice consists in restraining a man from committing a crime which he may commit but has not yet committed. The preventive detention is a precautionary measure and its object is not to punish a man but to prevent him from disturbing the public peace. It is an anticipatory action. In the case of preventive detention, there are inbuilt natural justice in the relevant act and in the Constitutional provision. 5.07 The basis of detention is satisfaction of the executive of the reasonable probability or prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. In other words, likelihood of the detenu acting in a manner similarly to his past acts may satisfy the detaining authority by detention from doing the same. Thus, the detention must be preventive and not punitive. It is well recognised that prevention is better than cure and the real enforcing is prevention than detection after the act is committed. 5.08 Constitutional Provision: Article 22 of the Constitution deals with protection against arrest and detention. Article 22(5) deals with preventive detention and reads as follows: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." 5.09 The object of the framers of the constitution in giving constitutional status to the preventive detention is to prevent anti-social and subversive elements from imperiling the welfare of the republic. The Constituent Assembly after elaborate dialogue recognized the necessities to make laws for preventive detention by providing certain safeguards to mitigate their harshness placing fetters on the legislative power conferred on the subject. 5.10 JUDICIAL REVIEW: In A.K.Gopalan v. State of Madras (1950 SCR 88: AIR 1950 SC 27) The landmark judgement of the Apex Court says in a case of preventive detention, the procedure prescribed by the law must be strictly follows, if it is not done, a person detained is entitled to be released by the Court. It is the guiding principle. In A.K.Roy vs. Union of India(AIR 1982 SC 710) It has been clearly observed that it is not necessary either to state or establish an actual breach of public order. It is the past conduct of the detenu and the antecedents, form the basis for an order of detention. However, the order, the detention authority must justify the detention. A criminal proceeding and preventive detention are not parallel proceedings as the former is to punish a person for an offence committed and the later is an anticipatory measure and it may not relate to any offence. In Hardhan Saha vs. State of W.B. (AIR 1974 SC 2154) It is clearly held that a pendency of a prosecution is no bar to an order of preventive detention nor is an order of preventive detention a bar to prosecution and it is also observed that the order of preventive detention may be made relying on the same facts on which the prosecution may be or may have been launched. In Samir Chatterjee v. State of W.B. (AIR 1975 SC 1165) It is clearly observed that it is for the detaining authority to determine, in his subjective satisfaction, whether, there are sufficient materials to place the person under preventive detention in order to prevent him from action in a manner prejudicial to public order or the like in future. 5.11 The ambit of the Court's jurisdiction are dealt in detail by the Honourable Supreme Court in catena of decisions and we thought fit to note them once again for educating ourselves and refreshing our memory to follow in future and for ever. 5.12 The dictum of the Apex Court from the inception till date is that the Court may examine the grounds mentioned in the order of detention, to note whether they are relevant to the circumstances under which preventive detention could be supported. For example maintenance of public order. It is further observed that it is not necessary to establish that there has been actual breach of the peace or danger to the security of the State or the like caused by the activities of the detenu. It is enough if the conduct and antecedents of the person concerned reveal a tendency to do an act prejudicial to the public order or the like and the detenu had previously committed grave offences punishable under law, it is sufficient to detain. It is also held that the Court may examine the ground whether the order is based on material or whether the grounds supplied have relevant connection with the order. 5.13 The Supreme Court clarified that the Court would not undertake an investigation in this connection as to the sufficiency of the materials on which the satisfaction of the detaining authority was grounded. It would examine the bona fides of the order and interfere if it is mala fide, that is to say, if the law of preventive detention was used for any purpose other than that they which it was made. The Court may also have to examine the grounds communicated to the detenu in order to see whether they are sufficient to enable him to make an effective representation and the sufficiency in the sense whether it would give reasonable satisfaction to the detenu for making meaningful representation. 5.14 The Supreme Court has also held that whether the statutory condition precedent that is the requisite subjective satisfaction was really formed with due care and caution before making the order. 5.15 The Court would strike down the detention order where the authority has not applied its mind at all to the materials or has acted under the dictation of some other person or where he has applied a wrong test or misconstrued the statute or relied upon on grounds or materials which are extraneous of the scope or purpose of the statute or have no rationally probative value in forming the subjective satisfaction or the power is applied for a dishonest or improper purpose. 5.16 The Most memorable findings of Hon'ble Justice P.N.Bhagwati in- Khudiram Das vs. State of West Bengal (AIR 1975 SC 550) are land mark and still hold the field and with great respect we follow the same. The Supreme Court clearly observed that in Habeas Corpus proceeding, what has to be considered by the Court is (i) whether the detention is prima facie legal or not, (ii) whether the detaining authority has properly reached the satisfaction on question of fact, (iii)whether the authority acted with bona fide intention or whether there are any mala fides in issuing the order. (iv) If an order of detention is malafide and if it is made for a clear "collateral" of "ulterior" purpose i.e., a purpose other than what the legislature had in view in passing the law of preventive detention, i.e. prevention of acts prejudicial to the maintenance of public order and the security of the State, then the Court is to necessarily interfere. 5.17 In Additional Secy, Govt. of India Vs. Alka(1992 Supp.(1)SCC 496) The Apex Court clarified that in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not correct mere errors of law or facts. Discretionary jurisdiction is not permitted as an alternative remedy for relief. The Court does not, by exercising writ jurisdiction, permit the machinery created by the statute to be bye passed. The Court does not generally enter upon the determination of questions which demand an elaborate examination of evidence. The Court does not interfere on the merits that the determination of issues passed by the authority vested with statutory power particularly when they are related to matters calling for expertise. 5.18. In K.M.Agarwal's case it has been clearly held that the Court can not interfere if there is some evidence before the detaining authority, upon which a reasonable man could have formed the satisfaction which is the sine qua non for the detention. 5.19 Similarly the Supreme Court has clearly observed in Alkos case, what the Court generally do when the order of preventive detention is challenged. It is held that the Court would interfere. i) where the authority acting under a concerned law, does not have the requisite authority, ii) the order passed is not warranted or is not is in breach of the provisions of the concerned law. iii) Where the authority has misused his powers, iv) where authority has not applied its mind, vi) where an authority excised his power, dishonestly or improper purpose. 5.20 S.K.Jainal Vs. District Magistrate (AIR 1975 SCC 229) It is also observed that the onus of proving mala fide is upon the detenue. The order of detention is usually not treated as malafide, merely because a criminal prosecution is pending at the time of order of detention has been passed after he is discharged in a criminal case or on one single instance or the offence is of trivial in nature or on the wrong facts placed before the authorities or the action of police is mala fide or he will come out on bail. Since the detaining authority has to apply his mind and pass order in all those issue that can not be treated as mala fide. The general rule is if the order is found to be bona fide and when the order of detention is referred to the past activities of the detenu as giving right to the satisfaction of the detaining authority, the Court can not enquire in to the reasonableness of the subjective satisfaction of the detaining authority.