DILIP GIRJA SHANKAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Detention of the petitioner is made in this case in exercise of powers under S.3(3) of the National Security Act (for short, 'the Act'), by District Magistrate, Bhind. Unfortunately, in the detention order (Annexure-R-1) dt. 7-9-1987 the detaining authority has referred to the provisions of S.3(2) of the Act. True, for achieving the statutory objective of maintaining "public order" the District Magistrate has been duly authorised by the State Government and, in the instant case, he has passed the impugned order to achieve that objective. Whatever that may be, we are not in the least swayed by technical considerations, as there are substantial reasons to take the view that the continuing detention of the petitioner under the Act is illegal and unconstitutional.

(2.) A three-fold contention is forcefully urged by counsel appearing for the petitioner, and we are satisfied that the contentions pressed must prevail. It is first contended that although the detention order was passed on 7-9-1987, it is not disclosed in the return by the detaining authority as to where the detenu was taken into custody which was his bounden duty to do to satisfy this Court that the conspectus of the several safeguards envisaged under different Sub-Sections of S.3 had not been infringed. Indeed an onerous constitutional burden in terms of Arts. 21 and 22(5) has been saddled inexerably on the detaining authority to ensure due observance of the statutory procedure and also to satisfy the Court that detenu's right reserved thereunder is not infringed in any manner. 2A. The constitutional imperative of communicating to the detenu the "grounds'' as per Art.22(5) evidently implies that the duty in that regard must be carried out in strict compliance with the relevant statutory provision in respect of the time-scale of Section 3(4) as also other requirements. To discharge he constitutional burden it becomes foremost duty of the detaining authority to disclose in the Return itself, clearly and affirmatively, the date of detention and supply or communication of the "grounds" and to establish the facts pleaded to the satisfaction of the Court placing before-the Court credible material. Failure to do so would impair the validity of the Return, and the defective Return would be fatal to continued detention of any person made under the Act. Support for this view we read in Munna Tuin, AIR 1982 SC 878 wherein the detention made under the Act was set aside and the petitioner was released because Return filed by the detaining authority was found to be defective. Indeed, in that case the detaining authority did not file himself the affidavit sought by the Court to discharge his burden of non-communication of "grounds" in terms of Art.22(1) by not supplying some important documents considered by him along with the "grounds".

(3.) Secondly, it is submitted by Shri Rakesh Saxena, if there is anything on records to indicate the date of petitioner's apprehension, that cannot be any other date than 25-10-1987, inasmuch as petitioner's detention for a period of 12 months was confirmed up to 26-10-1988. Indeed, the order of confirmation Annexure-R-29, recites that petitioner's detention "shall confirmed till the expiry of 12 months from. the date of his detention, that is, up to 26-10-1988." Thirdly, it is contended that there is total non-application of mind by the State Government in acting under S.12 of the Act in continuing further petitioner's detention for the maximum, period without being sure of the date of petitioner's apprehension. It is manifestly clear that the date of actual apprehension of the petitioner was not clearly known to the concerned authority and no mention of that date is, therefore, made in the order (Annexure-R-29), while the mandatory provisions of Ss.12 and 13 envisage that the maximum period of detention cannot be more than 12 months "from the date of detention".