JUDGMENT D.S. Sinha and D.K. Seth, JJ.
1. Besides deciding instant petition, challenging the order of preventive detention of the petitioner, passed under the provisions of the National Security Act, 1980 hereinafter called the 'Act,' on merits, the principal agenda of this Full Bench is to answer the following question posed by a Division Bench--
Whether the order of preventive detention can at all be challenged on the ground of parity, the origin of which has been traced in Article 14 of the Constitution and if it can be claimed, what should be its extent and basis?
2. On merits, the petition has already been allowed with the direction to set the petitioner at liberty forthwith, if not required to be detained in any other case, vide order of the Court dated 4th December, 1998. The said order did not give reasons in its support on that day. According to the order, the reasons were to be given later on. The 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, particularly in respect of defence, security, public order and services essential to the community," the legislature found it imperative to arm the appropriate Government with powers of preventive detention for dealing with the given situation effectively. Thus, the Act was enacted.
4. According to Section 2(a) of the Act the "appropriate Government" means, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government.
5. Section 3 of the Act empowers the appropriate Government to make orders detaining certain persons. It reads thus:
3. Power to make orders detaining certain persons.--
(1) The Central Government or the State Government may,--
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential 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 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 particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government :
Provided that where under Section 8 of the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days," the words "fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government under this section the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
6. A bare perusal of the provisions contained in Section 3 of the Act makes it abundantly clear that, for ordering the detention of a specified person what is required is the satisfaction of the appropriate Government entrusted with the duty of maintaining law and order, and none else, regarding existence of the given circumstances. Such satisfaction of the appropriate Government for ordering preventive detention is, unquestionably, subjective satisfaction which may be founded on myriad diverse and variable factors, relevant for achieving and furthering the object, content and intent of the Act, including mere suspicion or reasonable probability. But, the factor or suspicion or probability must not be collateral or ulterior.
7. The satisfaction means the slate or fact of being satisfied by some fact, event or state of things perceived on observation, which may vary from observer to observer. Grammatically, the word 'satisfied,' in the context, is past Or perfect participle of the verb 'satisfy' which means 'to make one-self content (with something), to consider it sufficient (to do something), or to find it sufficient.' Subjectivity inheres in it and has personal element as its basic component. It does not, rather cannot, admit any notion of parity.
8. Application of the principle of parity in reaching the satisfaction contemplated by Section 3 of the Act will necessarily import in it objectivity which is foreign and runs counter to the 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 the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revolce the detention order and cause the person concerned to be released forthwith.
10. The initial order of detention of a person is passed under Section 3 of the Act and the final order, either confirming the detention order and continuing the detention of the person concerned or revoking the same, is passed under Section 12 of the Act. Where the Advisory Board reports that there is, in its opinion, no sufficient cause for the detention of a detenue the appropriate Government has no choice but to revoke the detention order and cause the detenue to be released forthwith. Revocation of the detention order and causing the release of the detenue is statutory obligation and compulsion under Sub-section (2) of Section 12 of the Act. It is imperative and no discretion is allowed to the appropriate Government. Thus, in the situation covered by the said provision, there is no occasion for application of any parity.
11. In a case falling in Sub-section (1) of Section 12 of the Act, no statutory obligation or compulsion to revoke the detention order and cause the detenu to be released is envisaged. According to this provision, if the Advisory Board reports that there is, in its opinion, sufficient cause for the detention of a detenue the appropriate Government may confirm the detention order and continue the detention of the detenue for such period as it thinks fit. Indeed, the report of the Advisory Board about the existence of sufficient cause for detention of a detenue lends support to the satisfaction of the appropriate Government for passing the detention order detaining the detenue and its confirmation. However, if the appropriate Government itself is not satisfied about the justification for confirming the detention order it may revoke the detention order and release the detenue forthwith without being obsessed by the report of the Advisory Board about the existence of sufficient cause for the detention of the detenue.
12. The expression 'may confirm' used in Sub-section (1) of Section 12 of the Act impliedly confers on the appropriate Government the option and discretion 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 non-application of mind on the part of the learned Judges. While it is true that they were entitled to come to a particular conclusion upon the facts of a given case, they could not possibly have quashed the impugned order of detention merely on the ground that detention orders in similar cases had earlier been revoked. Each case has to be decided on its own facts. Accordingly, the appeal succeeds and is allowed. The judgment and order of the High Court are set aside and it is directed to dispose of the writ petition as expeditiously as possible; and in any event, not later than four weeks from today.
14. It is to be noticed that in the above decision handed down by the Apex Court in District Magistrate v. J. Kulbir Chand 1990 SCC (Cri) 538 (supra) the idea of quashing the detention order merely on the ground that detention orders in similar cases had earlier been revoked has been unequivocally spurned. Succinctly and exactly stated, applicability of the principle of parity in the matter of preventive detention has been rejected by the Hon'ble Supreme Court of India.
15. The principle of parity, which is only a facet of and steins from the doctrine of equality as enshrined in Article 14 of the Constitution of India, cannot be invoked ignoring the limitations prescribed by the statute and dictated by, inter alia, nature; purposed contemporary conditions and standards prevailing in the society, urgency of the given situation and, above all, well being of the people. Unbridled "right to equality before law" or "equal protection of the laws" is destructive of meaningful enjoyment of the right to equality itself guaranteed by the Constitution and is fraught with the peril of procreating serious disorder and disruption of the society. It is true that right to personal liberty is very precious. But, it is not absolute and cannot be above the public-weal. The prime object of all laws is promotion of the well being of the people, and the welfare of the people is the Supreme Law. See Latin Maxim 'salus populi suprema lex esto,' which means : Let the welfare of the people be the final law.
16. All rights are subject to the provisions of constitutionally valid legislations. So is the right of parity flowing from Article 14 of the Constitution of India. It is eclipsed by the provisions of the Act which has already stood the test of constitutional validity 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 by Division Benches of this Court and the view expressed by Hon'ble Supreme Court in applying the doctrine of parity in granting release to the detenu and referred this case to a larger Bench for having an authoritative view on this legal question. Relevant portion of the referring order is being reproduced below :
The orders under the Act are passed on subjective satisfaction arrived at on the basis of the material produced before the detaining authority. The prime consideration is the maintenance of public order irrespective of the fact whether criminal case has been registered or not. It is not uncommon that even in cases where the offence is committed by more than one person, the order of detention is passed only against one or a few of them. It is thus necessary to examine as to whether the order of preventive detention can at all be challenged on the ground of parity, the origin of which has been traced in Article 14 of the Constitution and if it can be claimed, what should be its extent and basis?
21. Hon'ble the Chief Justice by his order dated 23-11-1998 nominated this Bench for deciding this case and this how the case has come up before us.
22. This writ petition has been filed questioning the legality and validity of the order dated 6-1-1998 by which respondent No. 2, District Magistrate, Gorakhpur, directed detention of petitioner-Chandresh Paswan, under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act). In pursuance of the aforesaid order, the petitioner was arrested and detained in jail on 7-1-1998. Along with the order of detention, petitioner was also served with the grounds on which basis respondent No. 2 formed his subjective satisfaction for passing the impugned order of detention. The grounds mentioned are :
1. That on 9-7-1997, at 12.30 p.m.. petitioner along with his ten associates, was sitting in the office of Block Development Officer, Khorabar, District Gorakhpur. When the Block Development Officer, Dr. Abhai Kumar Srivastava reached his office, he found the petitioner and his associates sitting there. He asked about the work for which they were waiting there. The petitioner and his associates expressed their anger for payment of the amount for construction of the Banrahi road up to Chandra Ghat. On this the Block Development Officer placed before the detenu and his associates 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 the railway line and became a little slow, 4-5 persons there were waiting and were standing near the Tata Mobile vehicle with a board displaying name of the petitioner-Chandresh Paswan Vidhayak and another group of 4-5 persons standing on other side started hurling bombs on the police van and were saying, "Kill, Rajesh and Brahma have come and they are in the van." The police personnel travelling with the van fired ten rounds in self-defence on account of which one of the person was injured and the bomb in his hand exploded. On this the miscreants put their injured friend in the vehicle and ran away. The Circle Officer, Rajghat, reached on the spot with police force and chased the red vehicle and also fired with his revolver. Immediately thereafter Circle Officer, Gorakhnath and other police officers also reached and they also chased the miscreants. On account of the bombs thrown by the miscreants, the Government vehicle was damaged and the police personnels, Udai Narain Tiwari, Sri Niwas Rai, Tirath Raj Prasad, Anjani Kumar Singh and female constable Arti Pandey and the under-trials Shambhu Gupta, Vinod Upadhyaya, Shambu Saran Srivastava, Om Prakash Pandey, Avinash Tiwari, Ishtiaq Khan, Arjun, Anil Verma, Rannu and Pushpa were also injured. Information was given to prevent any railway accident as the explosives were thrown on the railway track. The miscreants had left a revolver at the spot which was recovered along with the splinters of the bombs. On account of this incident the flow of the road and railway traffic was stopped. Commotion prevailed all around, a big crowd assembled and a fearful atmosphere was created. The public order was badly disturbed. Thereafter another vehicle was summoned from the police lines by which the under-trials who were not injured were sent to jail and the remaining injured under-trials and police personnels were sent for treatment to the hospital. About the aforesaid incident a criminal case was registered as Case Crime No. 1076 of 1997, under Sections 147/148/149/332/427, I.P.C., 3/5 Explosive Substances Act, 7 Criminal Law Amendment Act, 3/ 25 of Arms Act and 3/4 of Public Property Act, at P.S. Shahpur, district Gorakhpur. During investigation involvement of the petitioner-Kamlesh Paswan, Sunil Paswan, Subhash Pasi, Ram Briksha Yadav, Shahabuddin, Raja Ram, Arun Kumar, Sheeri driver and Ram Nageene alias Nageena was revealed 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 statement that the Tata Mobile Vehicle was standing at the door of the petitioner and the blood which was lying inside the vehicle was washed away by Raja Ram and Arun Kumar. The injured accused was found inside the house of the petitioner and from there he was taken to the hospital. During investigation a live bomb was recovered from the railway crossing which contained marks of H.I. 36 Service Grenades. The bomb disposal team was summoned from Ram Nagar and the live bomb was defused by Shri Priyatosh Tripathi, Gulab Singh, Radhey Shyam and Swami Nath Singh. Members of the police informed that the service grenage was so powerful that it could destroy the entire vehicle and could kill all the under-trials and the police personnel. The petitioner and Kamlesh Paswan thus had entered into a criminal conspiracy to commit such an incident in public place which created atmosphere of fear and terror among the people and they felt wholly insecure. On account of the said incident, the under-trials felt themselves insecure and they were also under fear and terror. This incident was widely published in various newspapers. It has been further stated that the petitioner is accused in the aforesaid case Crime No. 1076 of 1997 and is still participating in objectionable activities. The detaining authority has further said that he is personally satisfied that the petitioner is participating in criminal activities which is causing serious prejudice to the public order and he felt satisfied that with a view to prevent the petitioner from acting in any maner prejudicial to the maintenance of the public order it is necessary to make an order that he may be detained under the Act.
4. The petitioner was also informed that he has right to make a representation before the State Government and the Advisory Board. The petitioner was also informed that under Section 11(1) of the Act, he is entitled for personal hearing before the Advisory Board and if he desires so, he may mention this fact in his representation which may be communicated through the Superintendent of Jail.
23. The impugned order of detention was approved by the State Government on 14-1-1998, under Section 3(4) of the Act. The petitioner was afforded an opportunity of hearing before the Advisory Board on 8-2-1998. The Advisory Board gave its report on i 9-2-1998 which was received by the State Government on 20-2-1998. 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 respondent No. 4. Besides the aforesaid counter-affidavits, two supplementary affidavits and supplementary counter-affidavits were also filed. The petitioner also filed the rejoinder affidavits.
26. We have heard Shri D.S. Mishra, learned counsel for the petitioner, Shri Mahendra Pratap Singh learned Add!. Government Advocate, for respondents No. 1 to 3 and Shri S.N. Srivastava learned senior standing counsel for the Union of India, for respondent No. 4 and perused the material on record.
27. Shri D.S. Mishra, learned counsel for the petitioner, questioning the legality of the impugned orders of detention and the continued detention of the petitioner thereunder, has made the following submissions:--
1. The order of detention under Section 3(2) of the Act was passed against Kamlesh Paswan. For passing the detention order against the petitioner and Kamlesh Paswan, the incident dated 24-11-1997 was a common ground. However, the order of detention against Kamlesh Paswan was revoked by the State Government on 1-5-1998 after receipt of the report of the Advisory Board. Thus it is submitted that the incident dated 24-11-1997 was not a sufficient ground for passing the order of detention against Kamlesh Paswan. This ground became non-existent in respect of the present petitioner also and on the basis of parity, the petitioner is entitled for the same treatment.
2. It is also submitted that the first ground was stale and had no proximity so as to be utilised for passing the impugned order of detention after expiry of about six months. The impugned orders cannot be sustained on the basis of ground No. 1.
3. The submission of the learned counsel for the petitioner is that with regard to the incident dated 24-11-1997 challenging the involvement of the petitioner, Writ Petition No. 2807 of 1997 was filed in this Court. This Court passed an interim order on 25-12-1997 staying arrest of the petitioner. The impugned order of detention was passed during the period the interim order dated 25-12-1997 was in force. However, the writ petition which contained counter-version of the petitioner and the interim order passed by this Court were not placed before the detaining authority and the impugned order stood vitiated for non-consideration of the aforesaid material.
4. All the relevant documents should also have been placed before the State Government at the time of 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 petitioner by the Central Government. The representation ought to have been decided independently without being influenced by the report of the Advisory Board.
28. Learned counsel for the petitioner placed reliance on various judgments of this Court as well as Hon'ble Supreme Court in support of his submissions which shall be considered at the relevant places.
29. Shri Mahendra Pratap learned Addl. Government Advocate, on the other hand, submitted that the doctrine of parity cannot be applied at all in cases of preventive detention which are passed on the basis of subjective satisfaction. Learned counsel has submitted that if Article 14 of the Constitution is the basis of the claim of parity, it has to be shown which provision of law has been violated in passing the order. The orders under the Act are passed with the object to prevent the detenu from acting in any manner prejudicial to the public order in future which may affect the society. Subjective satisfaction of the detaining authority is thus against an individual on the basis of the material available against him. The involvement of the detenu in a criminal case thus cannot be a sole basis for passing the order of preventive detention. Learned Addl. Government Advocate placed before us the provisions contained in Sections 3(2), 3(4), 8, 19, 11, 11(2), 12(1) and 12(2) of the Act and has strongly submitted that from the grounds along similarity in two cases cannot be found. It is also submitted that the material which transpired the Judges consisting the Advisory Board for forming an opinion before giving report is confidential. The petitioner and for that matter no body else could have definite information about the material which was available to the Advisory Board, in the absence of which the parity could not be claimed as for such a claim absolute similarity is essential. It is submitted that in view of the scheme and object of the Act and the procedure provided therein the doctrine of parity cannot be applied as it runs counter to the same. It is submitted by the learned counsel that the views expressed by the Division Benches applying the doctrine of parity in cases of preventive detention are based on the' involvement and the role assigned to the detenu in a criminal case which could not be legally applied in cases of preventive detention. There could be various other factors on which 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 XXI of the Rules of the Court. In absence of the necessary pleadings, it is not open to raise this ground. The facts were alleged in the rejoinder affidavit and the detaining authority and the State Government could not have any opportunity to reply this fact. It is further submitted that the detaining authority considered it as a fact and no prejudice has been caused to the petitioner. The office of the Advocate General was closed on the date the interim order was passed. The copy of the writ petition could not be made available to the detaining authority. Learned counsel has submitted that the law cannot expect to perform something which is impossible. It is further submitted that the documents were not relied on for forming subjective satisfaction and supply of the same was not necessary. Learned counsel has further submitted that ground No. 1 cannot be termed as stale. In this respect also there is no pleading in the writ petition, hence explanation for delay could not be given. Learned counsel has further submitted that even if ground No. 1 is found to be stale, the validity of the order of detention cannot be affected in view of the provisions contained in Section 5A of the Act.
31. So far as the delay is concerned, it has been submitted that the representation of the petitioner was decided by the State Government within a reasonable time. So far as Central Government is concerned, the right available to the petitioner under Section 14 of the Act is only statutory and it is not constitutional. So far as the constitutional safeguard is concerned, it stood complied with, as the representation was considered by the appropriate Government and rejected well within time. The learned Addl. Government Advocate also relied on various authorities in support of his submission which shall be considered at the relevant places.
32. Shri S.N. Srivastava, learned counsel appearing for the Union of India has submitted that the delay in deciding the representation has been fully explained in paras 6 and 7 of the counter-affidavit filed by Bina Prasad. In the writ petition necessary pleadings on the question of delay have not been made for which the averment made in paragraph 39 is insufficient. The short delay shall not affect the validity of the order which has been explained. Learned counsel has placed reliance on the case of Kamla Bai v. Commr. of Police, Nagpur, 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 influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes eve.n hold the society to ransom.
2. Considering the complexity and nature of the problems, particularly in respect of defence, security, public order and services essential to the community, it is the considered view of the Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers of preventive detention. The National Security Ordinance, 1980, was, therefore, promulgated by the President on September 22, 1980.
34. Thus, one of the objects of the Act is to maintain the public order which faced serious threats on account of communal disharmony, social tensions, extremist activities and anti-social and anti-national elements including secessionist, communal and pro-caste elements. Section 3 of the Act confers power 4 on the Central Government and the State Government to pass orders for detaining certain persons. Section 3 also provides the circumstances and the manner in which the powers to make orders for detaining certain persons may be exercised. It also provides for procedural safeguards available to the detenu. In a way, it is a pivotal provision in the Act around which the entire proceedings revolve. Section 3 of the Act is being reproduced below:--
3. Power to make orders detaining certain persons--
(1) The Central Government or the State Government may,--
(a) if satisfied with respect to any person that with a view to preventing him from acting in any ' manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, It is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if satisfied with respect to any person that with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential 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 the said sub-section:
Provided that the period specified in an order made by the State Government under this subsection shall not, in the 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 particulars as. in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government.
Provided that where under Section 8 the grounds' of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days," the words "fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government under this section. The State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
Section 4 of the Act provides for execution of the detention orders. Section 5 provides power to regulate place and condition of detention. Section 5A protects the order of detention if one or some of the grounds are found invalid. Section 6 validates the orders of detention passed against persons residing outside the territorial jurisdiction of the Government or officer making the order. Section 7 confers powers in relation to absconding persons against whom the order of detention has been passed. Section 8 provides that the grounds of order of detention shall be disclosed to persons affected by the order. Section 8 is being reproduced below:--
8. Grounds of order of detention to be disclosed to persons affected by the order.
(1) When a person is detained in pursuance of a detention order, the authority 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 representation, if any made by the person, affected by the order, and in case where the order has been made by an officer mentioned in Sub-section (3) of Section 3. also the report by such officer under Sub-section (4) of that section.
11. Procedure of Advisory Boards.--
(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through Government or from the person concerned, and if, any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter concerned with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
36. Section 12 provides for action by the appropriate Government on the report of the Advisory Board. Section 13 provides for the maximum period of detention. Section 14 confers power of revocation of orders of detention on the Central Government and the State Government.
37. From a close scrutiny of Sub sections 3(2), 3(4), 8(1) and (2), 10 and 11(4) of the Act, it appears that while passing the order of preventive detention, the detaining authority considers the grounds on which the preventive detention is sought and forms its opinion also on the basis of such other particulars which may have a bearing on the matter. Such consideration does not appear to be confined to the grounds alone which generally pertain to involvement in a criminal case. In Sub-section (4) of Section 3, 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 through the appropriate Government or from the person concerned. The person concerned, namely the detenu is also heard by the Advisory Board of its own or if he so desires. The detenu at the time of hearing may submit any material in his defence for consideration of the Advisory Board. After considering the entire material the report is submitted to the appropriate Government. The report of the Advisory Board is made in a separate part. Subsection (4) of Section 11 provides that except that part of the report, the proceedings' of the Advisory Board and its report shall be confidential. Under the scheme and the procedure provided under the Act, the order of preventive detention is passed against an individual on concentrated consideration about his past and present conduct and likely future conduct, his association with others, his pursuits in life and so many other things connected with him. in view of this, in our opinion, the learned Addl. Government Advocate rightly submitted that from the grounds alone similarity in two cases cannot be found. From the grounds alone, it is difficult to judge as to what transpired to the Judges constintUng the Advisory Board to make a report in favour of or against the preventive detention of an individual. For applying the doctrine of parity, the complete similarity is necessary which, in our opinion, if not impossible, is very difficult to find in respect of two detenus in such cases where the order have been passed on the basis of subjective satisfaction.
38. Learned counsel for the petitioner relying on the judgment of Hon'bie Supreme Court in A.K. Roy v. Union of India, AIR 1982 SC 710 : 1982 Cri LJ 340 submitted that Article 14 of the Constitution shall be applicable to the proceedings before the Advisory Board and the action taken under the Act and thus the doctrine of parity shall be applicable. It cannot be disputed that Article 14 of the Constitution may be attracted in a given case if discrimination is noticed in proceedings before the Advisory Board between the detenu and the State, but before the Advisory Board proceeding against each detenu is independent and it may not have any impact or effect in a proceeding in connection with another detenu though their involvement in one or two incidents which formed the grounds for passing the orders may be common. The discrimination for attracting Article 14 must 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 consideration, it is a matter of common experience that in cases of preventive detention, witnesses are either unwilling to come forward or the sources of information of the detaining authority cannot be disclosed without detriment to public interest. Indeed, the disclosure of the identity of the informant may abort the very process of preventive detention because, no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross-examination. It is, therefore, difficult in the very nature of things, to give to the detenu the full panoply of rights which an accused is entitled to have in order to disapprove She charges against him. That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands. Just as there can be an effective hearing without legal representation even so, there can be an effective hearing without the right of cross-examination. The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determined whether these rights must be given as components of natural justice.
40. The constitutional validity of the Act was examined and upheld by Hon'ble Supreme Court in A.K. Roy's case 1982 Cri LJ 340. The observations in the judgment quoted above clearly demonstrate that the possibility of there being such material before the detaining authority or the Advisory Board cannot be ruled out on which basis subjective satisfaction in respect of two detenus was different and the report of the Advisory Board was also different though some of the grounds were similar against both the detenus for passing the order of preventive detention. The observations of Hon'ble Supreme Court in case of Yogendra Murari v. State of U.P., 1988 SCC (Cri) 992 : 1988 Cri LJ 1825 in para 9 of the judgment are very material which are being reproduced below :--
There is no merit whatsoever in the petitioner's grievance of discrimination on the ground that the other co-accused persons have not been detained. The role of the petitioner and that of the others are not identical and the reasonable apprehension as to their future conduct must depend on the relevant facts and circumstances which differ 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. The important aspect that there may be some other particulars before the Advisory Board for giving different report in respect of the two detenus could not be considered. Learned Judges also relied on the judgment dated 2-4-1991 passed by another Division Bench in Habeas Corpus Petitions No. 11 of 1991 and 12 of 1991. The relevant paragraph of the judgment dated 2-4-1991 which has been quoted in the judgment given in the case of Wazir Yadav may be relevant to be reproduced here at Pp. 1226-27 of Cri LJ :--
In the first place learned counsel for the petitioners assailed the orders of detention on the ground that the third detenu Wahid against whom similar order of detention on the same ground was passed, has already been released after cancellation of his detention order of the same date passed by the District Magistrate, Lucknow, under Section 3(2) of the Act. To be specified, in paragraph 19 of the writ petitions, the petitioners submitted that Wahid's detention order was not confirmed by the Advisory Board though the ground for detention of the petitioners and Wahid was one and the same. In the reply given to this point, in the counter-affidavit furnished by the detaining authority, that is, the District Magistrate, Lucknow, all that is stated is that the order of detention against Wahid was revoked by the State Government. On receipt of the opinion of the Advisory Board and that each case depended on its own facts and circumstances. Thus, it is not the case of the opposite parties that the case of the detenu Wahid was different and distinct from that of the present petitioners. The contents of the First Information Report (reproduced above) which formed the basis of the detention order against Wahid and the present petitioners, makes out that the implication of Wahid and the present petitioners, in the occurrence was identical and Wahid was in no way less involved in that occurrence or the offence. Thus, there is force in the contention of the learned counsel for the petitioners that the case of all the three detenus being identical and they having been detained on the same grounds, the present petitioners are entitled to their release like that of Wahid on the ground of parity. In Writ Petition No, 9493 of 1988, Khalil v. State of Uttar Pradesh, Division Bench of this Court had decided on 1-5-1989 that a detenu was entitled to release on the ground 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 must also be equal in all respects. Hence necessary conditions on which doctrine of parity can be applied, in cases of preventive detention, in our considered view, cannot be available. It was for the above reason that Hon'ble Supreme Court case of District Magistrate v. Kulbir Chand, reported in 1990 SCC (Cri) 538, disapproved the quashing of the detention order merely on the ground that the detention orders in similar cases had earlier been revoked. The relevant paragraph 2 has not been correctly reproduced in the judgment in the case of Wazir Yadav, hence it is being reproduced below :--
1. Special leave granted. Arguments heard.
2. After hearing learned counsel for the parties, we are distressed to find that there was complete non-application of mind on the part of the learned Judges. While it is true that they were entitled to come to a particular conclusion upon the facts of a given case, they could not possibly have quashed the impugned order of detention merely on the ground that detention order in similar cases had earlier been revoked. Each case has to be decided on its own facts. Accordingly, the appeal succeeds and is allowed. The judgment and order of the High Court are set aside and it is directed to dispose of the writ petition as expe-ditiously as possible; and in any event, not later than four weeks from today.
43. Learned counsel for the petitioner also referred to several other unreported judgments of other Division Benches. However, it does not appear necessary to refer to all the judgments as the reasoning adopted was the same as in the case of Wazir Yadav 1993 Cri LJ 12220. On the other hand, another Division Bench in case of Deepak Sharma v. District Magistrate, Aligarh, reported in 1998 (37) All Cri C 200, took a contrary view. Paras 8 and 9 of the judgment are relevant which are being reproduced below :--
8. As noted above, the petitioner Deepak Sharma was detained by an order dated 21-6-1997, his detention order and representation were considered by the Advisory Board and the Board's opinions were given prior to 19-8-1997. The decision regarding Ramendra was taken by the Board long thereafter as Ramendra was detained by an order dated 17-8-1997. On what materials the Advisory Board had taken two views for Ramendra and Deepak Sharma are not justiciable before this Court. For Prabhat Sharma the detention 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, regarding Ramendra Pal Singh. The records were produced before us including the report of the Advisory Board and we have found that a specific plea of Ramendra Pal Singh on fact was accepted by the Board upon which the revocation was ordered.
9. We are, therefore, unable to hold that there had been any discrimination on the part of the State not to revoke the order of detention simply on the ground that the order in respect of Ramendra Pal Singh was revoked. In this connection reference could be made to a decision of the Supreme Court in the case of District Magistrate as reported in 1990 SCC (Cri) 538. It was observed by the Supreme Court that an order of detention could not be quashed merely on the ground that detention order in similar cases had been revoked. Each case was to be decided on its own fact. The judgment of the High Court quashing the order of detention was set aside and the High Court was directed to dispose of the writ petition within a particular given time.
44. In our opinion, the view taken in the case of Deepak Sharma 1998 (37) All Cri C 200 was correct and in consonance with the scheme of and procedure provided in the Act. Learned counsel for the petitioner in this connection also submitted that at the stage of Section 12 of the Act, the satisfaction of the State Government for confirming the order of preventive detention is objective and not subjective as initially done by the detaining authority. In our opinion, this submission cannot be accepted. It is the subjective satisfaction of the detaining authority which is approved or confirmed by the State Government. At no stage there was a dispute to be adjudicated upon. The appropriate Government under Section 12, of the Act only acts on the basis of the report of the Advisory Board and the material supplied to it by the detaining authority. We also find support from a judgment of constitutional Bench of the Hon'ble Supreme Court in case of Wahid Ahmad v. State of Maharashtra, AIR 1983 SC 541 : 1983 Cri LJ 967. The question before the Court was similar as involved before us. As the Advisory Board had given a different opinion in respect of other detenu also detained on the basis of the same case, the Hon'ble Court held as under (para 6 of AIR):--
...The opinion of the Advisory Board that there was no sufficient cause for Samsi's detention may not have been 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 placing the report of the Advisory Board at the time of confirmation of the order against the petitioner. Thus, on facts also, the claim of parity raised on behalf of the petitioner could not be accepted.
46. Thus for the reasons stated above, our conclusion is that the order of release from preventive detention cannot be claimed on the basis of parity that the other detenu who was detained on the basis of similar grounds had been released under Section 12 or 14 of the Act and the contrary view taken by the Division Benches is not correct and they are consequently overruled.
47. The second submission of the learned counsel for the petitioner is that ground No. 1 mentioned in the grounds served on the petitioner along with the impugned order of detention was stale and had no proximity for passing the order of detention. The alleged occurrence took place about six months before passing the order of detention. In support of his submission learned counsel for the petitioner has placed reliance on certain judgments of Hon'ble Supreme Court which are being mentioned below.
1. Jagannath Biswas v. State of West Bengal, AIR 1975 SC 1516 : 1975 Cri LJ 1329.
2. SK. Serajul v. State of West Bengal, AIR 1975 SC 1517 : 1975 Cri LJ 1328.
3. Md. Shahabuddin v. District Magistrate, 24 Parganas, AIR 1975 SC 1722 : 1975 Cri LJ 1499.
4. Rabindra Kumar Ghosel v. State of West Bengal, AIR 1975 SC 1408 : 1975 Cri LJ 1235.
48. Learned counsel has further submitted that this plea has been raised in ground No. 9 mentioned in the writ petition and in any view of the matter once a rule has been issued on the writ petition, burden is on the detaining authority to justify the order of detention and the strict rules of pleading do not apply to habeas corpus writ petitions. Learned counsel has placed reliance on the case of Smt. Ichhu Devi Choraria v. Union of India, AIR 1980 SC 1983. Learned counsel has also invited our attention towards certain paragraphs of the counter-affidavit and supplementary counter-affidavit filed by Shri K.L. Meena, the then District Magistrate, Gorakhpur, respondent No. 2.
49. Learned Addl. Government Advocate, on the other hand, submitted that in the writ petition there is total absence of pleading that ground No. 1 was stale and in the circumstances no explanation for the delay could be given by the respondents. 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 is not entitled for the relief on the ground that ground No. 1 was stale. Learned counsel has placed reliance on the case of T.A. Abdul Rehman v. State of Kerala, 1990 SCC (Cri) 76 : 1990 Cri LJ 578, M. Ahmad Kutti v. Union of India, 1990 SCC (Cri) 258; Abdul Salam v. Union of India, 1990 SCC (Cri) 451 : 1990 Cri LJ 1502; Sanjay Kumar Agarwal v. Union of India, 1990 SCC (Cri) 473 : 1990 Cri LJ 1238; Syed Farooq Mohammad v. Union of India, 1990 SCC (Cri) 500 : 1990 Cri LJ 1622 and Kishore Sukan Rai Jain v. State of Rajasthan, 1995 SCC (Cri) 847.
50. In the alternative, it has been submitted that even if the submission made by the learned counsel for the petitioner is accepted that ground No. 1 was stale, the order of detention will not be affected in view of the provisions contained in Section 5A of the Act.
51. On this question, we have considered the judgments of Hon'ble Supreme Court cited by the learned counsel for the parties in support of their contentions. In case of T.A. Abdul Rahman 1990 Cri LJ 578 (supra), Hon'ble Supreme Court, after considering various judgments including most of the judgments cited by learned counsel for the petitioner, held as under Para 11 of AIR :--
The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.
52. In case of M. Ahmad Kutti v. Union of India 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 order of detention was passed on 6-1-1998, i.e. after about six months. On 24-11-1997, it is alleged that the petitioner was involved in another case in which the police personnel who were carrying undertrials were attacked and injured. The petitioner had thus no regard to the Government machinery. In such facts and circumstances, it is difficult to accept that the live link between the prejudicial activity and the purpose of detention was snapped. It will not be out of place to mention that there is no pleading in the writ petition on the question of delay. Filing of the writ petition in the nature of habeas corpus is regulated by the Rules framed by the Court. Sub-rule (2) of Rule 1 and Rule 3 of Chapter XXI of Part IV of the Rules of the Court provision for such pleadings which are reproduced below :--
1 (1) x x x x x x x x (2) The application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the ground 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. It shall also state whether any previous application was moved by or on behalf of the person restrained, and, if so, with what result.
2. x x x x x x x x x x x
3. 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.
Provided that where the affidavit is made by a person other than the person restrained such affidavit shall also state the reason why the person restrained is unable to swear the affidavit himself.
The affidavit filed under this rule shall be restrained to facts which are within the deponent's own knowledge.
Provided that subject to such orders that may be passed by the bench concerned in this behalf, this rule shall not apply to an application made by post of telegram.
54. In our opinion, the petitioner ought to have mentioned in his application that ground No. 1 was stale for passing the impugned order of detention. In absence of such averment, explanation could not be given by the respondents. The petition has been filed with the help of a learned counsel of this Court who, it can be assumed, as well aware 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 incident of attack on public authorities.
56. The third submission of the learned counsel for the petitioner was that challenging the involvement of the petitioner in the incident dated 24-11-1997, writ petition No. 2807 of 1997 was filed in this Court wherein an interim order was passed on 25-12-1997 staying the arrest of the petitioner. The impugned order of detention was passed during the period the interim order was operating. However, copy of the writ petition and the order passed by this Court which contained the counter version of the petitioner and could affect the mind of the detaining authority in forming subjective satisfaction were not placed before the detaining authority. It is submitted that these documents should also have been placed before the State Government and the Central Government. Non-consideration of these documents vitiated the impugned order of detention and its subsequent confirmation by the appropriate Government. Learned counsel has also submitted that filing of the writ petition and passing of the interim order dated 25-12-1997, staying arrest of the petitioner was in the knowledge of the sponsoring authority and the fact was mentioned by him in his report. In the circumstances, the detaining authority was under legal obligation to consider these documents before passing the impugned order of detention.
57. For the aforesaid submissions, learned counsel has placed reliance on the following cases :
1. Daktar Mudi v. State of W.B., AIR 1974 SC 2086 : 1974 Cri LJ 1389.
2. Nanha Singh v. Superintendent, District Jail, Kanpur, 1984 All LJ 898.
3. Manni Lal v. Superintendent, Central Jail, Naini, 1985 All WC 641 (FB).
4. Union of India v. Manohar Lai, 1987 SCC (Cri) 311 : AIR 1987 SC 1472.
5. State of U.P. v. Kamal Kishore Saini, AIR 1988 SC 208 : 1988 Cri LJ 405.
6. M. Ahmad Kutti v. Union of India, 1990 SCO (Cri) 258.
7. Pawan Kumar Pandey v. Adhikshak, Janpad Karagar, Faizabad, 1993 UP Cri R 553 (DB).
58. Learned Addl. Government Advocate, on the other hand, submitted that in the writ petition there is no pleading on these facts. The plea was raised for the first time in the second rejoinder affidavit along with which copy of the order of this Court dated 25-12-1997 was filed. It has been submitted that for obtaining relief from this Court, it was necessary for the 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 activities again and it was necessary to prevent him by passing the order of detention. Learned counsel has placed reliance on the following cases :--
1. Yogendra Murari v. State of U.P., 1988 SCC (Cri) 992 : 1988 Cri LJ 1825.
2. Syed Farooq Mohd. v. Union of India, 1990 SCC (Cri) 500 : 1990 Cri LJ 1622.
3. M. Mohd. Sulthan v. Joint Secretary to Govt. of India, Finance Dept, AIR 1990 SC 2222.
4. District Magistrate v. G. Jothisankar, AIR 1993 SC 2633 : 1993 Cri LJ 3677.
5. State of Rajasthan v. Talib Khan, 1997 SCC (Cri) 29 : 1997 Cri LJ 408.
59. We have considered the submissions of the learned counsel for the parties. In order to satisfy ourselves about the correct position, we summoned the record of Writ Petition No. 2807 of 1997 and perused the same. From the record it appears that the writ petition was filed by Smt. Shobhawati Paswan, Kamlesh Kumar, Chandresh Paswan and Sunil Paswan. Respond ent impleaded were State of U.P., Station House Officer, Police Station Shahpur, district Gorakhpur, head constable No. 107, Shrinivas Rai, Police Lines, District Gorakhpur. The relief claimed in the writ petition was that First Information Report dated 25-11-1997 lodged against unknown persons as case Crime No. 1026 of 1997 be quashed. It was further prayed that a direction in the nature of mandamus be given to the respondents not to arrest the petitioners in the aforesaid case. It appears that the writ peti tion was filed before Hon'ble Chief Justice on 25-12-1997. Hon'ble the Chief Justice passed the following order:
Additional Registrar (Listing) This case may be placed before Hon. G.S.N. Tripathi, J. and Hon. Bhagwan Din, J. today after serving notice in writing on the counsel for the respondents.
60. On the record there is nothing to indicate that the notice or copy of the writ petition was served on the Government Advocate. The order dated 25-12-1997 passed by Hon. G.S. N. Tripathi, J. and Hon. Bhagwan Din, J. reads as under:
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61. On 19-1-1998 this writ petition was placed before the Bench of Hon. B.K. Roy, J. and Hon. P.K. Jain, J. and time for filing rejoinder affidavit was given. The Bench hearing the petition noticed that earlier two petitions bearing numbers 7989 of 1997 and 7994 of 1997 were filed which were dismissed by this Court by a detailed order dated 22-1-1998. The Bench noticed that the fact that Criminal Misc. Application Nos. 7989 of 1997 and 7994 of 1997 were dismissed was suppressed. The writ petition was accordingly dismissed so far as petitioners Nos. 2 to 4 (including the present petitioner) were concerned.
62. It does not appear that any notice was served on the learned Government Advocate or Additional Government Advocate at the time the writ petition was entertained. It appears that on the basis of the stay order obtained by the petitioner and others, they were not arrested which was mentioned by the sponsoring authority as a fact but they were not possessed of the documents. The submission of the learned counsel for the petitioner was that non-consideration of the copy of the writ petition and the interim order passed by this Court by the detaining authority vitfated the order. It is submitted that the writ petition contained the counter version of the petitioner. However, we are not impressed by this submission for the reason that the challenge of the petitioner against his involvement in the criminal case and orders passed by the criminal Courts were not relevant for passing an order of preventive detention under the Act. The aforesaid documents were not considered by the detaining authority for forming his subjective satisfaction. In case of Syed Farooq Mohd. 1990 Cri LJ 1622 (supra), Hon'ble Supreme Court considered this question and negatived the contention with the following observations in paras 11 and 12 of the judgment:--
11. It has been contended in this connection by referring to the order made by this Court on January 22, 1990 in the Special leave petition filed by the petitioner before this Court against the rejection of his application of anticipatory bail whereon this Court made 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 wherein the detenu was served with the order of detention under Section 3(2) of the National Security Act while he was in jail custody in connection with the criminal charge under Section 302, I.P.C. The question arose whether in such cases where the detention order which was passed before the detenu surrendered before the Court and was taken into custody in a criminal case, should be served on the detenu after he has surrendered in the criminal case and was in jail as an under-trial prisoner. It has been held by this Court that : SCC p. 420, para 7 at p. 2093 of AIR ...the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power preventive detention should not be exercised.
12. This ruling as well as the ruling in Suraj Pal Sahu v. Suite of Maharashtra AIR 1986 SC 2177 : 1986 Cri LJ 2047 relied upon by counsel for the petitioner, have no application to the instance case inasmuch as in the instant case the detenu was not arrested and imprisoned in jail till February 15, 1990 when the order of detention was served on him and he was arrested by the customs authorities. Considering all these, this ground of challenge is also wholly untenable.
63. In the present case also the petitioner was arrested only after service of the impugned order of detention. Thus, as observed by Hon'ble Supreme Court, the challenge cannot be accepted. There is no quarrel with the legal position that all the relevant facts and circumstances should be taken into account by the detaining authority which may have bearing informing the subjective satisfaction but in the peculiar facts and circumstances of the present case we are of the view that as the respondents were not possessed of the documents, there was no question for consideration by the detaining authority. On record there was Sufficient material for forming subjective satisfaction for passing an order of preventive detention against the petitioner and non-consideration of the writ petition could not vitiate the 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 likely to return before the formation of the new Government, the file was kept pending. The file was again put up before the Under Secretary on 25-3-1998 after the new Home Minister had assumed the office who considered the same, and put up the same before the Dy. Secretary on 25-3-1998. The Deputy Secretary received the file on 7-4-1998 and considered the same and with his comments put up the same before the Joint Secretary on 9-4-1998. The Joint Secretary considered the case and put up the file with his comments before the Home Minister on 13-4-1998. The Home Minister thereafter considered the case of the petitioner and rejected the representation on 24-4-1998. In this connection para 7 of the counter affidavit filed by Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India, may be reproduced which is as under:
7. That the required information was received by the Central Government in the Ministry of Home Affairs on 23-2-98 vide the State Government's wireless message dated 21-2-98. On receiving the said information on 23-2-98, the case of the detenu was put up before the Deputy Secretary, Ministry of Home Affairs on 6-3-98. However, as PS to MOS(H) informed that Minister of State for Home is not likely to return before the formation of new Government the file had to be kept pending till either the Minister returned or his successor assumed his charged. The file was subsequently put up to Under Secretary on 25-3-98 after the new Home Minister had assumed office, who considered the same and put up the case to Deputy Secretary on 25-3-1998. The Dy. Secretary received the file on 7-4-98 and considered the same and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 9-4-98. The Joint Secretary considered the case and with his comments put up the same before the Home Minister, Government of India on 13-4-98. The Home Minister himself duly considered the case of the detenu and rejected the representation of the detenu on 24-4-98.
65. A Full Bench of this Court in case of Raj Bahadur Yadav v. State of U.P., 1997 (35) All Cri C 33 : 1998 Cri LJ 103 after considering the judgments of the Apex Court and this Court, held in para 17 as under :
Coming to the question of delay in disposing of the detenu's representation, the position is clear that the Advisory Board, the appropriate Government and the Central Government are required to act with promptitude and reasonable despatch in dealing with the representation of the detenu and to consider whether his further detention is legal. Inordinate and unexplained delay on the part of any of the authorities in dealing with the matter will render further detention of the detenu illegal.
66. In the present case the representation dated 24-1-1998 of the petitioner was rejected by Home Minister on 24-4-1998. The necessary information was received by the Central Government on 23-2-1998. Even thereafter two months' time had been taken in deciding the representation. The explanation given is that Minister of State for Home was not available. In our opinion, this explanation cannot be accepted as the Centre there is always a government. If the Minister of State for Home was not available, the representation could be placed before the Minister of Home as it was done subsequently. Hon'ble Supreme Court and this Court have also held in number of cases that consideration of the representation could not be postponed on the basis of non-availability of the report of the advisory board. For both the aforesaid reasons, disposal of the representation could not be postponed. In our opinion, the long delay in deciding the representation could not be explained by the affidavit in Bina Prasad and the continued detention of the petitioner has been rendered illegal and he is entitled to be released.
67. For the reasons stated above, our opinion is that the order of release from preventive detention cannot be claimed on the basis of parity that the other detenu who was detained on the basis of similar grounds has been released under Section 12 or 14 of the Act. The contrary view taken by the Division Benches is not correct and is accordingly overruled. However, the continued detention of the petitioner is found illegal and he is entitled for release for which orders were already passed by us on 4-12-1998.
68. The writ petition is finally disposed of on the above terms.