DEVENDRA ALIAS NIKKU Vs. DISTRICT MAGISTRATE DEHRADUN

JUDGEMENT

(1.) Petitioner Devendra alias Kikku has challenged his de tention under Section 3 (2) of the National Security Act (hereinafter referred to as the Act ). He has been detained in pursuance of the order dated June 28, 1981 of the District Magistrate, Dehradun (Annexure) '1') accompanied by the grounds of detention of the same date furnished to him. The State Government approved the order of deten tion on July 8, 1981 and after receiving the Advisory Board, it confirmed the order of detention on August 26, 1981. It is prayed that the order of detention dated June 8, 1831 as well as the order of the State Gov ernment dated August 26, 1961, confirming it may both be quashed and the detenu be set at liberty. 2. One of the grounds urged is that the representation of the detenu was not placed before the Advisory Board within the stipulated period and when the Ad visory Board heard the case of detenu on August 11, 1981. The counter-affidavit on record would show that the representation along with the com ments of the District Magistrate was received in the Secretariat on August 10, 1981 and the State Government did forward the re presentation as to place it before the Advi sory Board on August 11, 1931. As this fact was still disputed, we perused the relevant records with the State Government, per taining to the detention of the detenu and on perusal of the same we are satisfied that: the representation of the detenu was with the Advisory Board when the Advisory Board had the hearing on August 11. 1981. This is borne out by the notings as well as on a perusal of the Advisory Board's order and the letter by which the papers furnish ed to the Advisory Board were returned by it, mentioning number of files enclosed with it and on record on the file, which we pro cured from the State Government and per used. We, therefore, do not find any force in the submission of the learned counsel for the detenu that the representation was not placed before the Advisory Board within the stipulated period and before the matter was heard of the Advisory Board. 3. The other submission is that on of the grounds furnished to the detenu was so vague that the detenu could not make any effective representation concerning such ground. It would be found that after laying down 9 grounds the District Magistrate has further laid down one more ground stating that the detenu is a hardened criminal and on account of his criminal activities he is known in entire Dehra Dun and in most of the first information reports the detenu is named and only the iron bars if the prison can prevent the detenu from committing such crimes and the detenu has committed numerous crimes pertaining to which on account of fear and terror any information in the police was not lodged, and the acti vities of the detenu are a blot to the com munity and are dreadful to the public. Thereafter, further recitals are made stating that the detenu is likely to act in a man ner prejudicial to the public order and to prevent him from that his detention is ne cessary. 4. It is urged that how could the de tenu make any representation concerning such recitals, when any particulars regard ing the alleged crime he committed, with out any police report being lodged him, as stated, were not furnished. On a perusal of the aforesaid recitals in the grounds for detention, we are satisfied that as per afore said recital, one of the grounds upon which the satisfaction of the District Magistrate was based was that the detenu committed a number of crimes concerning which any report could not be lodged aga inst him on account of the fear. 5. Any ground cannot be set up with out furnishing the materials in its report. True that the Dist. Magistrate may not have personally known about such crimes, which the detenu committed but reports were not lodged. However, obviously conjectures are not open and materials must exist before any ground is formulated. The District Ma gistrate, therefore, should have laid down to what were such crimes, who was the vic tim and when such crimes were committed etc. This was not done, nor any materials concerning such particulars appear to have been furnished and without the same no effective representation concerning this ground would be possible. The law is well settled that in cases of preventive detention in compliance of the spirit of Article 22 (5) of the Constitution the detenu must be afforded an opportunity to make an effective representation, and if that is not done, the provisions of that Article would be defeat ed. 6. In the case of Bhut Nath v. State of West Bengal A. I. R. 1974 S. C. 806, where the police had sent to the District Magistrate a report stating that the detenu is poor and illiterate; has associates in notorious wagon breakers and anti-social elements, has developed spirit of lawlessness and aptitude for anti-social acti vities, many of the reported and unreported cases of such activities exist to his cre dit. The Supreme Court observing that in stances, though relevant are kept back from the petitioner, held as follows: "if such be the case, Section 3 (3), read with Art. 22 (5), stands contravened and the right to represent rendered barren. And yet particulars prejudicial to the de tenu played over the judgment of the authorities but the petitioner never knew of such injurious in formation, and could answer back. This Court in many weighty pronouncements over two decades has stressed that Arti cle 22 (c) vests a real, not illusory right, that communication of facts is the corner stone of the right of representation and orders based on uncommunicated materials are unfair and illegal. " The aforesaid principles laid down by the Supreme Court hold good in this case also, as the instances concerning unreported crimes were kept back from the petitioner and no particulars were furnished to enable him to make an effective representation. 7. In the case of Moti Lal Jain v. State of Bihar A. I. R. 1968 S. C. 1509, concerning preventive detention on the grounds of black marketing, one of the grounds was that the detenu in that case has sold match boxes and soap to shop keeper of Purnia court compound at higher price than the price fixed and it was held as the name of the shopkeeper to whom the articles were sold and the price fixed and at the price at which the articles were sold were not mentioned, there was a futility of making representation against an unknown man in respect of an unspecified price and the detenu was left to attack a shadow. The ground was held to be vague as well as irre levant and as one of the grounds was so found the detention was held to be bad. 8. How can a man make a representa tion, without knowing when and against when he committed any crime and what was the crime committed, unless such par ticulars are furnished to him. Either such a ground should not have been taken into consideration, or when taken in' -. o considera tion, particulars have to be furnished not withstanding that report was not lodged. If unreported incidents are also made one of the grounds for detention, as has been doe in this case, the matter will rest upon con jectures, unless there are Home materials and in case of such materials the necessary particulars should have been mentioned and not left to pure imagination. We, therefore, hold that that the aforesaid ground concern ing the unreported incidents is vague and lacks necessary particulars and when that is the position, the order of detention itself is vitiated and is rendered bad. We, there fore, need not enter into the other pleas raised by the petitioner assailing his deten tion. 9. In the result, the petition is allowed. The order of detention dated June 28, 1981 of the District Magistrate and the order dated August 26, 1981 of the State Govern ment confirming the detention of the detenu are both quashed and it is directed that the petitioner be set at liberty, unless required to be detained in any other case in accord ance with law. Petition allowed. .