Har Swarup vs The Commissioner Of Police And ...
1987 Latest Caselaw 37 Del

ORDER

1. In pursuance of an order dt. 13th June, 1986 passed under sub-section (2) of S. 3 of the National Security Act, 1980 by the commissioner of Police, Delhi, Mr. V. P. Marwah, the petitioner was detained on 17th June, 1986. The detention order was passed with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.

2. Before I take up for consideration the contentions raised in the petition, it is necessary to give some relevant details in respect of the incident, which in fact are reproduced in the grounds of detention.

3. On 12th June, 1986, one Som Nath, son of Gurdial Singh, resident of CP-72, Pritampura, Delhi, made a report to police station, Saraswati Vihar that on the night between 9-10th June, 1986 he landed at Palam Airport on his arrival from Ahmedabad. From Palam Airport he got a bus and went to Connaught Place where he hired a three-wheeler scooter in order to go to his residence. When the scooter reached near Kanhya Nagar he was stopped by two police personnel (with detenu and his co-detent) on a motor cycle. The detenu and his co-detent are alleged to have searched his brief-case in which he was carrying a sum of Rs. 70,000/- and they asked the complainant to accompany them to police station. After this the detenu sat in the three-wheeler scooter with the complainant and his co-detent, Jai Narain constable who was driving the motor cycle followed them. When the scooter reached Wazirpur Depot on Road No. 41, the detenu and his co-detent got the scooter stopped and reached the scooter driver after making the complainant to pay Rs. 40/- to the scooter driver. Thereafter, they took the complainant to the District Park where they robbed him of Rs. 70,000/-.

4. Keeping in view this incident the detaining authority was of the view that this act of the detenu and his co-detent does create a sense of general insecurity in the minds of the people at large and is prejudicial to the public order. In doing so, the Commissioner of police has also taken into consideration the fact that the detenu is a police officer and he has acted contrary to the requirement of his office. As already stated, the detention order was passed on 13th June, 1986 and was served on the detenu in jail on 17th June, 1986. On 13th June, 1986 itself the detenu was placed under suspension. It is not denied that after serving the detention order the grounds and documents relied upon by the detaining authority were served upon the detenu within the statutory period.

5. Mr. H. R. Khan has invited my attention to the fact that in the grounds of detention apparently the detaining authority had been influenced by the fact that prior to the registration of the case, general complaints of extortion by police men in uniform were received. The contention is that this observation has been made by the detaining authority without any material and if there was any material before him it has not been supplied to him. Mr. H. R. Khan, therefore, urges that failure to supply this material on the part of the detaining authority has prejudiced the petitioner as in the absence of such material he was deprived of making an effective and purposeful representation. Mr. Khan further states that obviously the detaining authority's mind in arriving at a subjective satisfaction has been affected these facts and the non-supply of this material to the detenu does vitiate the detention order and the subjective satisfaction.

6. Mr. R. M. Bagai has submitted that this is only by way of preamble and does not constitute a material of the ground on which the detention order is based. Reliance by Mr. Bagai is placed on Vakil Singh v. State of Jammu and Kashmir, . Their Lordships of the Supreme Court in the said case (supra) have observed that the 'grounds' within the contemplation S. 8(1) means "materials" on which the order of detention is primarily base. Apart from conclusions of facts "grounds" have a factual constituent also. They must contain pith and substance facts or evidential details.

7. It would appear from the grounds of detention in the present case that after the first 10 lines which really are in the nature of preamble, the detaining authority has reproduced the facts of one single incident and while dealing with the grounds of detentions in para 2 he has in particular referred to the criminal activity of the petitioner which is in respect of this particular incident. There is, therefore no justification for the belief that the detaining authority has been influenced by any other consideration or that subjective satisfaction was arrived at by the detaining authority on facts other than the facts constituting this particular incident. I, therefore, find no force in the contention of Mr. Khan as detailed above.

8. The next contention of Mr. Khan is that all the materials were not placed before the detaining authority. For instance he says, that the fact that recovery of money made at the instance of the petitioner and his co-detent was not placed before the detaining authority. The contention is a little surprising because on 13th June, 1986 no recovery has been made. What was placed before the detaining Authority was FIR, the statement of the complainant and the statement of the scooter driver Raghuvir Singh. This material has admittedly been delivered to the petitioner along with the grounds of detention.

9. The primary contention of Mr. Khan in this petition is that even though the detention order was passed on 13th June, 1986 it was actually served on 17th June, 1986 when detenu was actually under detention in the criminal case registered against him in respect of this incident. Mr. Khan states that the requirement of law is that the detaining authority must show his awareness about the detenu being in jail and must also state in clear terms that despite that he finds it necessary to detain, Relying on Vinod Singh v. District Magistrate, Dhanbad, Bihar 1986 SCC (Cri.) 490 : (1986 Cri LJ 1959) Mr. Khan contends that the requirement of law is that at the time of service of the order there should be proper consideration of the fact that the detenu was in custody or that there was any danger on his release. According to him if that is not done, the detention order stands vitiated and the continuing detention of the detenu has to be quashed. I am unable to agree with the contention of Mr. Khan. In that case the order of detention was made in respect of one incident relating to exchange of fire between two rival groups. A criminal case had been registered in relation to the said incident pursuant to which the petitioner in that case was already in custody. It was under these circumstances that the Supreme Court observed that it must also appear on the date of service that the detaining authority was aware of this fact but still finds it necessary to order detention. In that case the detention order was passed on 2nd January, 1986 and it was served upon the detenu on 11th January, 1986. It was in the light of those peculiar facts that this observation was made by the Supreme Court. The present case is distinguishable. There is nothing before me to indicate that at the time when detention order was passed the petitioner had already been taken into custody. There is no specific averment as to the time at which he was taken into custody on 13th June, 1986 to enable the other side to file reply as to the time when the detention order was made. In fact there is no specific averment in the writ petition or grounds in respect of this contention though general pleas has been raised that the detention order has been made without due application of mind. In any case, in the case 1986 Cri LJ 1959 (supra) referred to by Mr. Khan, the detention order was made at a time when the detenu was already in jail and this fact has not been taken into consideration by the detaining authority resulting also in the conclusion that even in the date of service this fact was not considered. In the present case there was no question taking into consideration the fact by the detaining authority which was not in existence when the detention order was passed.

10. In so far as the justification in passing the detention order is concerned, the detaining authority has arrived at a subjective satisfaction which cannot be substituted by the satisfaction of this court, particularly, when the Advisory Board has also found sufficient cause for the detention of the petitioner. It can never be argued in a case such as this that the material which has been made a basis for detention is not relevant. With these remarks I find no merit in the petition. Dismissed.

11. Petition dismissed.