Holding

The preventive detention order under the National Security Act is set aside because its service on the detainee while he was already in custody was not based on a proper consideration of his imminent release.

Summary

Binod Singh, already in custody for several criminal cases, was issued a preventive detention order under Section 3(2) of the National Security Act, 1980 on 2 January 1986 and the order was served on 11 January while he remained in jail. He challenged the order, contending that preventive detention is justified only when the authority is satisfied that the detainee’s imminent release poses a threat, and that serving the order on a person already incarcerated was futile. The High Court dismissed his writ petition without a speaking order. The Supreme Court held that although the detention order itself was not invalid, the service of the order was not based on a proper consideration of the detainee’s likelihood of release, rendering the continued preventive detention unjustified. Consequently, the Court set aside the detention order but clarified that this does not affect Singh’s detention in the pending criminal cases, which may continue unless he is released on bail.

Issues considered

The validity of a preventive detention order under the National Security Act when served on a person already in custody.
Whether the detaining authority must consider the possibility of the detainee's imminent release before issuing and serving a preventive detention order.
Whether service of a preventive detention order on a detainee already in jail is futile and renders the order invalid.

Legislation cited

National Security Act, 1980s. 3(2)

Subjects

preventive detentionNational Security Actservice of detention orderimminent releaseconstitutional lawcriminal procedurebail

Judgment

-A

>- BINOD SINGH
v.
DISTRICT MAGISTRATE DHA_NBAD BIHAR & OTHERS
B
SEPTEMBER 26, 1986 .

[R.S. PATHAK AND SABYASACHI,MUKHARJI, JJ.]
·~

National Security Act, s. 3(2)-Detention Order passed-Detenu
already in custody in respect of criminal charge before actual service of
c
.~·r detention order-Detention Order held invalid.

I The respondent passed an order of detention in respect of the
appellant under s. 3(2) of the Natfonal Security Act 1980, on the ground
that the appellant's activities were prejudicial to the maintenance of
~
public order. Several criminal cases were pending against the appellant D
when the aforesaid order was passed. The appellant had already sur-
rendered in respect of a criminal charge against him before the order
was served. He filed a writ petition in the High Court challenging the
detention order, but it was dismissed without any speaking order.

Aggrieved by the order of the High Court, the appellant filed the .E
~ present criminal appeal by special leave as also a writ petition challeng-
ing the aforesaid order of detention on the ground that the order of

-
preventive detention could only be justified against a person in deten-
lion if the detaining authority was satisfied that his release from deten-
lion was imminent and the order of detention was necessary for putting
him back in jail. The service of order of detention on the appellant/ F
) petitioner while he was in jail was futile and useless since such an order
/
had no application under s. 3(2) of the Act.
-{ Allowing the writ petition and the appeal in part,
..
HELD: 1. The continued detention of the detenu under the Act is G
not jµstified. The order of detention therefore is set aside. However,
this will not affect detenu's detention under the criminal cases. If how-
ever, the detenu is released on bail in the criminal cases already pending
against him, the matter of service of the detention order under the Act
1f may be reconsidered by the appropriate authority in accordance with
law. [912E-F] H

905
906 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 2. In our constitntional framework, the power of directing pre- ...._,
ventive 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
B is in custody and there is no imminent possibility of his being released,
the power of preventive detention should not be exercised. [91 IF-GI ~-

In the instant case, when the actual order of detention was served
upon the detenu the detenu was in jail. There is no indication that this .
factor or the question that the said detenu might be released or that there ~-.

•
was such a possibility of his release was taken into consideration by the I
c detaining authority properly and seriously before the service of the
order. If there were cogent materials for thinking that the detenu might be
released, then these should have been made apparent. In the affidavits on .')--
behalf of the detaining authority though there are indications that trans-
fer of detenu from one prison to another was considered but the need to
D serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of relevant factors. If
that is the position then however disreputable the antecedents of a person
might have been, without consideration of all the aforesaid relevant
factors, the detenu could not have heeu put into preventive custody.
Therefore, though the order of preventive detention when it was passed )-·
E was not invalid, and on relevant considerations the service of the order
was not on proper consideration. The order ~f detention is, therefore set
aside. [911G-H; 912A-D]
Ramesh war Shaw v. District Magistrate, Burdwan & Anr., [1964] 4
SCR 921 and Ramesh Yadav v. District .Magistrate Etc. and Others, /

[1985] 4SCC 232, relied upon. 1.
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 317of1986 }-
From the Judgment and Order dated 27.2.1986 of the Patna High
Court in C.W.J.C. No. 33 of 1986.

G With
W.P. (Criminal) No. 316of 1986.
R.K. Garg and Miss Rani Jethmalani for the Appellant/Peli- ~
· tioner.

H D. Goburdhan for the Respondents.
BINOD SINGH v. DISTT. MAGISTRATE [MUKHARJI, J.l 907

The Judgmeut of the Court was delivered by A

SABYASACHI MUKHARJI, J. Criminal Appeal No. 317 of
1986 arises out of the judgment and order of the High Court of Patna
and the Writ Petition No. 316 is in respect of the same detenu. Both
these challenge the order of detention dated 2nd January, 1986 passed
by the respondent no. I. The District Magistrate Dhanbad in respect B
of the petitioner under section 3(2) of the National Security Act,
1980, hereinafter called the 'Act' on the ground that the petitioner's
activities were prejudicial to the maintenance of public order. Several
.•. ...,~
'.
criminal cases had been filed against the petitioner between 3rd
January, 1983 to 18th February, 1985. On or about 2nd January, 1985
the order of detention was passed on an incident relating to}he exch- c
ange of fire between two rival groups. The order states the grounds as
follows:

I. On 24.12.1985, between 10 and 10.30. A.M. the subject
alongwith Ramashish Bangali, Gulam, Rambriksha armed
with Rifle, gun etc. came in Car No. BHG-9372 on Katras D
Coal Dump and started indiscriminate firing to kill
Birendra Pratap Singh a rival of his calendestine business
of coal to establish his criminal superiority in full#iew of
the shopkeepers customers and passers by of the area.
Birendra Pratap Singh and his associates \\>ho were there
also returned the firing in same manner. As a result of this E
firing one innocent namely Brahamdeo Mishra was killed.
The exchange of indiscriminate firing in the main market
area ·of Katras created great panic and alarm iri the area.
·y The normal tempo of life was completely disturbed. The
t people started running helter and skelter for their lives.
Shopkeepers put down their shutters. Doors and windows F
were closed. The vehicular traffic came to halt. This refers to
Katras P.S. Case No. 331/85 dated 24.12.85 u/s 149/307/326
JPC/27 Arms Act.

Besides the aforesaid ground the following cases are
also referred hereunder as background to show the crimi- G
nality of the subject.

!. KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s 147,
341/353/307 LP .C.

In this case subject and his associates tried to set free H
908 SUPREME COURT REPORTS [1986) 3 S.C.R.

A .--(
the trucks and driver from the police custody by force and
when he failed in his attempt he threatened the police of-
ficer and CISF Personnel to do away with their lives, C.S.
No. 5/83 has already been submitted in this case.

2. Ka!ras P.S. Case No. 303/83 u/s 147 /148/452/323 IPC.
B
........
In this case subject and his associates went to the
tailoring shop of Saukat Ansari and asked him to keep his -~t'
•
cloths ready by 9.10.83 and on his refusal, he assaulted him .\ ~'
c in presence of customers and others C.S. No. 196/83 has
already been submitted in this case.
")'
3. Jogta P.S. Case No. 22/84 dated 11.3.84 u/s 147/148,
307/326/353/333/324/325 LP.C,/27 Arms Act.
D
.......
In this case subject and his associates opened fire on
police party who went to apprehend Raghunath Singh
absconder under NSA. As a result of this indiscriminate 'r
firing by him and his associates one Police Officer namely
E Shtj R.K. Verma, received serious head injury and is still

F
incapable to work. Charge sheet No. 25/84 has already
been submitted in this case.

4. Jogta P.S. Case No. 9/85 dated 18.2.85 u/s 369, 307/323/
324/176/341 P.C./27 Arms Act.
r -
....... ~

In this case Sisir _Rajan Das, who was coming in a
religious procession on the eve of Shivratri and was dancinf(
in the role of Shiva was compelled by his associates to dance
G before the marriage party of subject's sister. Sri Sisir Rajan
Das, however, 'acceded to their request and started danc-
ing. Wben he was dancing some of the members opened fire ~
on him as a result of which he fell down. The subject and his
associates however put his body in his car and fled away.
Neither Shri Das nor his body could be traced out till date.
H
BINODSINGH v. DISTT. MAGISTRATE {MUKHARJI, J.] 909

Charge s.heet No. 20/85 has already been submitted in this A
case. (Emphasis supplied) -

5. Jogta P .S,. Case No. 68/85 dated 1.12.85 u/s341/341PC.

In this case subject threatened Sri Krishana Ballav B
Sahay, General Secretary, Colliery Shramik Sangh,. Sijua,
to do away with his life if he takes out any procession or
oppose him.

It is the case of the detenu that the order of detention was made
on one incident relating to exchange of fire between.two rival groups.
A criminal case had been registered in relation to the said incident c
pursuant to which the petitioner was already in ~ustody. The order of
detention thougli dated 2nd January, 1986 was served on or about 11th
January, 1986. It is the case of the appellant/petitioner that the detenu
was not served with all the documents referred to and/or relied on.
The detenu was served with order of approval of the said order of D
detention by the Government of Bihar. The petitioner/appellant made
representation on 22nd January, 1986 and the petitioner/appellant was
informed that the said representation was rejected. Thereafter the
petitioner's appellant's matter was referred to the Advisory Board.
The petitioner/appellant states that he desired that he should be heard
in person by the Advisory Board. The petitioner/appellant submits E
that he was produced before the Advisory Board but he was not given
any hearing. By letter dated 22nd February, 1986 the petitioner/appel-
lant was infonned that the Advisory Bo.ard had confirmed the order of
detention. The petitioner/appellant thereafter filed a writ petition in
the High Court of Patna which .was dismissed without any speaking
order. F
The grounds of challenge are all stated in the writ petition as well
as special leave petition. The petitioner/appellant was in detention
when the petitioner/appellant was served with the. order of detention.
There were criminal cases against the petitioner. There was a murder
case in respect of Crime No. 331of1985. in the said case investigation G
was in progress and the defence of the petitioner in the murder case was
that he was falsely implicated and was not at all concerned with the
murder. When the order was passed, the petitioner had not sur-
rendered but when the order was served, the petitioner had already
surrendered in respect of the criminal charge against him, At the rele-
vant time the petitioner was undertrial in the said criminal case. H
910 SUPREME COURT REPORTS [1986) 3 S.C.R.

A It is the contention of the petitioner/appellant that the order of
preventive detention could only be justified against a person in deten-
tion if the detaining authority was satisfied that his release from deten-
tion was imminent and the order of detention was necessary for putting
him back in jail. The service of order of detention on the petitioner
while he was in jail was futile and useless since such an order had no
B application under section 3(2) of the Act.

ln the affidavit of the District Magistrate, the detaining autho-
rity, it has been stated that the activities of the petitioner's brother
and the petitioner have disturbed the normal tempo of life in Katras
and Jogta Police Stations in Dhanbad area. The series of offences
c against the detenu and the manner of their perpetuation, which have
been noted before, indicate a calculated move to create panic and fear
in the mind of the people. It further ·appears from the affidavit cf the
District Magistrate filed before the High Court of Patna that the
petitioner was absconding from the very day of the issuance of the
detention order. There is a statement in the order as follows-
D "Subject is already in jail. He is likely to be enlarged cin bail. Hence
detention order served in jail."

According to the District Magistrate when police pressure to
apprehend him became heavy, the detenu opted to surrender before the
Sub-Divisional Judicial Magistrate on 10th January, 1986 in substan-
E tive case to frustrate the service of the detention order. It has been '
further stated that the service of the detention order had been properly
made. Grounds were all indicated. All the documents which formed
the basis of detention were supplied to the detenu. His representation
1
was duly considered and rejected. The grounds stated that there was
indiscriminate firing on 24th December, 1985 on Katras Coal Dump
F and the petitioner started indiscriminate firing to kill Birendra Pratap
Singh a rival of his calendestine business of coal to establish the crimi-
nal superiority in full view of the shopkeepers, customers and pas>ers by
of the area. The acts alleged created a terror and not only law and
order problem but problem of public order. In those circumstances it
appears that the grounds for forming the satisfaction for the need for
G the detention were there, and there was rational nexus between the
object of the order as contemplated by the Act and the materials on
record. The principles applicable in these types of preventive deten-
tion cases have been discussed in the decisions of Suraj Pal Sahu v.
State of Maharasthra & Ors., W .P. (crl) No. 2 96/86 with SLP (er!) No.
1265/86 dt. 25.9.86 and Raj Kumar Singh v. The State of Bihar & Ors.
H Crl A. 353/86 with W.P. (er!) 27/86 dt. 26.9.86. Judged on the basis of
BINOD SINGH v. DISTT. MAGISTRATE IMUKHARJI, J.] 911

the said principles there is no ground for interference with the order of A
detention as passed. It, however, appears that after the order of deten-
tion was passed and before the actual service of the order of detention,
the petitioner was taken into custody. From the affidavit of the District
Magistrate it does not appear that either the prospect of immediate
release· of the detenu or other factors which can justify the detention of
B
a person in detention were properly considered in the light of the
principles noted in the aforesaid decision and especially in the deci-
sions, in Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,
[1964] 4 SCR 921 and Ramesh Yadav v. District Magistrate Etah and

y others, [1985] 4 sec 232 though there was a statement to the effect that .
the petitioner was in jail and was likely to be enlarged on bail. But on
' what consideration that opinion was expressed is not indicated espe- c
cailly in view of the fact that the detenu was detained in a murder charge
• in the background of the facts mentioned before. His application for bail
could have been opposed on cogent materials before the Court of
Justice.

In. this case there were grounds for the passing of the detention D
order but after that the detenu has surrendered for whatever reasons,
therefore the order of detention though justified when it was passed
but at the time of the service of the order there was no proper consi-
deration of the fact that the detenu was in custody of that there was any .
real danger of his release. Nor does it appear that before the service
there was consideration. of this aspect properly. In the facts and E
circumstances of this case, therefore, the continued detention of the
detenu under the Act is not justified.

It is well settled in our Constitutional framework that the power
of directing preventive detention given to the appropriate authorities
must be exercised in exceptional cases as contemplated by the various F
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 r.ecessitating preventive custody of a person for
social defence. If a man is in custody and there is no imminent possibi-
lity of his being released, the power of preventive detention should not
be exercised. In the· instant case when the actual order of detention
was served upon the detenu, the detenu was in jail. There is no indica-
tion that this factor or the question that the said detenu might be
released or that there was such a possibiliiy of his release, was taken
into consideration by the detaining authority properly and seriously
before the service of the order. A bald statement is merely an ipso dixit
H
912 SUPREME COURT REPORTS [1986) 3 S.C.R.

A of the officer. If there were cogent materials for thinking that the.
detenu miglit be released then these should have been made apparent.
Eternal vigilance on the part of the authority charged with both law
and order and public order is the price which the democracy in this
country extracts from the public officials in order to protect the funda- ·
mental freedoms of our citizens. In the affidavits on behalf of the
B detaining authority though there are indications that transfer of the
detenu from one prison to another was considered but the need to
serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of the relevant
factors. At least the records of the case do not indicate that. If that is
the position, then however disreputable the antecedents of a person
c might have been wifoout consideration of all the aforesaid relevant
factors, the detenu could not have been put into preventive custody.
Therefore, though the order of preventive detention when it was pas-
sed was not invalid and on relevant considerations, the service of the
order was not on proper consideration.

D It may be mentioned that in the petition it is nowhere stated that
the detenu has since been released or that the prospect of his imminent
release was properly and with seriousness considered by the detaining
authority.

The order of detention, therefore, is set aside. The writ petition
E and the appeal are allowed to the extent indicated above. This, how-
ever, will not affect detenu's detention under the criminal cases. If,
however, the detenu is released on bail in the aforesaid criminal cases,
the matter of service of the detention order under the Act on the
aforesaid materials may be reconsidered by the appropriate authority
in accordance with ihe law. There is no siatement in the petition that
F the detenu is on bail. There will, therefore, be no orders for release of
the detenu.

M.L.A. Petition and Appeal allowed.