BIKAS NARAYAN SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) "Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae". These observations had fallen from Chinnappa Reddy, J. in Ummu Saleema v. : [1981]3SCR647 , while dealing with the question as to whether there was any reasonable delay in considering the representations of the detenu. It had been observed earlier that the occasional observations made by the Court that each day's delay must be explained were meant to emphasize the expedition required in such a matter, and not that it is a magical formula, the slightest breach of which must result in release of the detenu. Thinking on the same wave length, may we say that though the procedural safeguards must be made available to a detenu to the greatest extent, at the same time the inner object and intent behind the framing of such laws which are sanctioned by the Constitution itself cannot be allowed to be totally frustrated by overplaying the safeguards too much.

(2.) THESE thoughts have occurred to us because in this application challenging the detention of the petitioner under National Security Act (for short, the Act) as unconstitutional and illegal, one of the points urged is that as the petitioner was under arrest when the order of detention had been passed, the same has to be struck down showing either non -awareness of this fact, or because of non -supply of vital facts to the detaining authority. It is impressed upon us by referring to three recent decisions of the Supreme Court in Biru Mahato v. : 1982CriLJ2354 ; M. Satyanarayana v. : 1982CriLJ2357 , and Devi LaL Mahto v. : 1982CriLJ2363 , that where a person is already in jail or under detention, the detaining authority must show awareness of this fact and must further consider that a preventive detention order is yet a compelling necessity. An alternative argument is that if the fact of arrest is not made known to the detaining authority, the same would amount to withholding of vital fact which is not permissible on the part of the "machinery of detention". To support the latter aspect in particular, reference has been made by Sri Goswami to a Bench decision of this Court in Joynath Sharma v. State of Assam Civil Rule (HC) No. 13 of 1983 disposed of on 7 -3 -83 reported in .

(3.) REFERENCE to the aforesaid three decisions, all of which are by a Division Bench of Desai and Misra, JJ. would show that the rationale behind requiring the detaining authority to show awareness of the fact of earlier confinement and of the compelling necessity is that if a person is already in jail or under detention he is not a free man to indulge in any prejudicial activity. To put it differently, such a person is sufficiently prevented from acting in a prejudicial manner. Despite this, an order of preventive detention may be necessary where it is known that a person undergoing imprisonment would soon be released in which case a valid order of detention can be made a few days before the person is likely to be released as was stated in Rameswar Shaw v. : 1964CriLJ257 . It may be stated that this decision has been relied on in the aforesaid pronouncements, Vijay Kumar v. : [1982]3SCR522 has also accepted this position, though it has been added that in such a situation there must be compelling reasons for a preventive detention order to be made.