Holding

A preventive detention order made without the detaining authority’s awareness of the detainee’s existing custody and/or with inordinate delay in statutory approval is vitiated and must be set aside.

Summary

Devi Lal Mahto was arrested on March 2, 1982 and remained in jail when the District Magistrate, Dhanbad, issued a preventive detention order under the National Security Act on April 20, 1982. The petitioner challenged the order on three grounds: (i) the order was invalid because he was already in custody and could not repeat the alleged activity; (ii) the detaining authority was unaware of his custody, indicating non‑application of mind; and (iii) there was an inordinate delay in the State Government’s consideration of his representation, exceeding the statutory period. The Supreme Court held that a detaining authority must expressly acknowledge the detainee’s existing custody in the order or affidavit, and failure to do so vitiates the order. The Court also found the 21‑day delay in examining the representation to be unlawful under the Act. Consequently, the detention order was quashed and the petition was allowed.

Issues considered

Can a preventive detention order under the National Security Act be validly made against a person already deprived of liberty in jail?
Does the detaining authority’s lack of knowledge of the detainee’s custody constitute non‑application of mind, rendering the order void?
Does a delay beyond the statutory period for State Government approval of a detention order vitiate the order?

Legislation cited

National Security Act, 1980s. s.3(2), s. s.3(3), s. s.3(4), s. s.8

Subjects

preventive detentionNational Security Actnon‑application of mindinordinate delayArticle 32habeas corpusdetention order validity

Judgment

/

A 630

DEVI LAL MAHTO
v.
STATE OF BIHAR AND ANR.
B
October 18, 1982

[D.A. DESAI AND R.B. MISRA, JJ.]

National Security Act, 1980-Sub·s. (2) read wi1h sub-s. (3) ofs. 3- '·
c Detention Order-Detenu already in jail-Detliining authority uf!.aware-lnordinate
delay in considering detenils rep;esentation-Validity.

The petitioner who had- been arrested on March 2, 1982 and whose
application for bail had been rejected on March 25, 1982 was in jail when the '
District Magistrate, Dhanbad made the impilgned order of detention against him
on APril 20, 19~2 under sub-s. (2) read with sub-s. (3) of s. 3 of the National
Security Act, 1980. Another application for bail moved by the petitioner was
0 rejected on April 23, 1982. The grounds of detention were served on April 23,
1982 and the representation submitted. to the State Government on May 13, 1982
was rejected on June 3, 1982 and the order of detention was confirmed on June
10, 1982.

lt was contended that the impugned order could not have been made
E against the petitioner as he was already in jail, that the order was vitiated by non·
application of mind as the detaining authority was not even aware of the
petitioner's custody in jail and as there was inordinate delay in considering the
repr~sentation against the order,.

Allowing the petition,

HELD : When a preventive detention order is made against a person
already deprived of hi~ personal liberty, the detaining authority .must show ~
•
awareness of the fact that the person against whom the detention order is~ - _.
proposed to be made is already in jail and is incapable of acting in a manner
prejudicial to the maintenance of public Order and yet, for reasons which may
appeal to thi: detaining authority on which its subjective satisfaction is grounded,
a preventive detention order is required to be made. This awareness must appear
G in the order or in the affidavit justifyiµg the order when challenged. [633 A-BJ

In the instant case neither in the order nor in the affidavit was there even
a whimper of this aspect being present to the mind of the deiaiaing authority
while making the order. The order having been mechanically made and suffering
from the vice of non-application of mind-was Vitiated. [633 C]
,
H
Rameshwar Shaw v. District Magistrate, Burdwan & Anr. (1964] 4 S.C.R.
9?1; Vijay Kumar v. Stal• of J&K and Ors. AIR 1982 SC. 1023; Biru Mahto v.
DEVI LAL v. BIHAR (Desai, J.) 631

District Magist~ate, Dhanbad, [1983] 1 S.C.R. 584 and M. Satyanarayana, etc. v. A
Star. of Andhra Pradesh & Ors. [1983] I S.C.R. 635 followed.

(b) When a detention order is made in exercise of the power conferred by
sub-s. (2) read with sub-s. (1) ofs. 3 of the Act, sub-s. (4) makes it obligatory
upon the State Government to examine the order and approve the same within a
period of 12 days from the date of making the order. [633 0-H] · ·
8
In the facts and circumstances of the instant case, a time of 21 days taken
by the State Government in examining the representation of the detenu Showed
inordinate delay which vitiate~ the order. [634 BJ

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 107S
c
·~ of 1982.

/ (Under article 32 of the Constitution of India)

V.J. Francis for the Petitioner.

S.N. Jha for the Respondent. D
\
The Judgment of the Court was delivered by

DESAI, J. On October 4, 1982, we quashed and set aside the
impugned detention order dated April 20, 1982, in respect of detenu
Devi Lal Mahto, reserving the giving of the reasons for our order to E
a later date. Here are the reasons.

This is a petition under Article 32 for.a writ of hebeas corpus
filed by detenu Devi Lal Mahto challenging the order of preventive
deteniion dated April 20, 1982, made ~Y the District Magistrate,
Dhanbad. F

--
• ·}
-...,_.
· '-, Detenu Devi Lal Mabto was arrested on March 2, 1982, and,
was produced before the Chief Magistrate, Dhanbad, who remanded
him to jail custody till March 17, 1982. On March 1982, detenu
moved an application for bail which was fixed .for hearing on March G
24, 1982. On March 25, 1982 the bail application was rejected. On
April 20, 1982, the District Magistrate, Dhanbad, made the impugn-
ed order of detention in exercise of the power conferred by sub's. (2)
read with sub-s. (3) of s. 3 of the National Security Act, 1980 ('Act'
> for short). The District Magistrate stated in his order that with a view H
to preventing the detenu from acting in a manner prejudicial -to the
maintenance of public order he be detained. Grounds of detenti?n
632 SUPREME COURT REPORTS [1983) 1 s.c.R.

A were served upon the detenu on April 23, 1982. Another application
for bail moved bi detenu was rejected on April 23, 1982. On May 13,
1982 the detenu submiUed his representation. to the State Government ... \._
which came to be rejected by the State Government on ·June 3, 1982.
The order of detention was confirmed by the State Government on
June 10, 1982.
B
Mr. V.J. Francis, learned counsel who appeared for the
petitioner canvassed three contentions before us. They are : (i) tbe
•.
detenu being already deprived of his personal liberty having been
confined in jail from March 2, 1982; and his bail application having '·
already been rejected on March 25, 1982, he was not even if so
c inclined, in a position to repeat his activity and therefore, the preven·
tive detention order could not be made against him with a view to
preventing him from indulging into · activity prejudicial to the
maintenance of public order ; (ii) the detaining authority was not
even aware that the detenu was already in jail when he made the
D impugned detention order and, therefore, the order suffers from the
· vice of non-application of mind which would vitia_te the order ; and
(iii) there was inordinate delay which has remained unexplained in
considering the representation of ·the detenu and, therefore, the
detention order is vitiated.

E Undoubtedly, for a period of one month and 18 days the detenu
. was in jail, his bail application having been rejected nearly 25 days
before the date of the impugned detention order. ·It is difficult to
appreciate how the District Magistrate was subjectively satisfied that
a·deiention order in respect of the detenu was necessary with a view
to preventing him from acting· in a manner prejudicial to the main-
F tenance of public order. This aspect we have most meiiculously
examined in four decisions of this Court, and therefore, we need not
examine the same again. As early as in Rameshwar Sha)V v. District
Magistrate, Burdwan & Anr.,(') and as late as Vijay Kumar v. State
·of J & Kand Ors.('), the two· recent most decisions in Biru Mahato
v. District Magistrate, Dhanbad('), and M. Satyanarayana, etc. v.
G State of Andhra Pradesh & Ors.,(') it ·has been held that one can
envisage a hypothetical case in which a preventive detention order

(I) .[19641 4 SCR 921.
H (2) A.J.R. 1982 S.C. 1023.
(J)°[l983] J ·s.C.R. 584
(4) [1983] 1 S.C.R. 635.
DEVI LAL v. BIHAR (Desai, J.) 633
A
may have to be made against a person a.lready deprived of his
personal liberty by being confined or detained in jail but in such a
,.--""' situation the detaining authority must show awareness of this fact
that the person against whom the detention order is proposed. to be
made is already in jail and is incapable of acting in a manner pre-
judicial to the maintenance of public order and yet for the reasons B
which may appeal to the District Magistrate on which bis subjective
satisfaction is grounded a preventive detention order is required to
be made. It is further held that this awareness must appear either
in the order or in the affidavit justifying the impugned detention
> order when challenged. Neither.in the order nor in the affidavit we
find even a whimper of this aspect being present to the mind of the . c
detaining authority while making the detention order. Therefore, it
clearly discloses non-application of mind and followlng the afore-
mentioned decisions it must be held that the order of preventive"
. detention having been mechanically· made and suffering from the vice
of non-application of mind is vitiated. D

' The last contention is that there was an inordinate delay in
· · considering the representation of the detenu and, therefore, the
detention order is vitiated. The detenu made a representation on
May 13, 1982. fr also transpires that the case of the detenu was E
referred to the Advisory Boar<;! on May 15, I 982. The affidavit in
reply. recites that the ·representation was rejected by the State
Government on June·3, 1982. How the representation was dealt at
various levels from May 13, to June 3, bas not been dealt with in the
affidavit on behalf of the respondents. It may be mentioned here
that the counter-affidavit on behalf of the respondents has been filed F
by one G.P.A. Kujur who bas described himself as Deputy Collector
of Dhanbad. Obviously he was not .the detaining authority. Tho
~taining authority though impleaded as a respondent has not filed
tile affidavit. Mr. Jha, learned counsel who appeared for the respon-
.) dents after referring to the file with him urged that the representation
G
was received on May J 4, 1982 and it. was on May 24, 1982, that its
examination commenced. There was no further detail available as
to bow it was dealt with. When. a detention order is made by tho ·
District Magistrate in exercise of the power conferred by sub-s. (2)
read with sub-s. (3) of s. 3 of the Act, sub-s. (4) makes it obligatory
) upon the State Government to examine the order and approve the H
same within a period of 12 days from ·the date of making of the
order. There is a proviso appended to the section which ·is not
relevant. There is nothing to ·show that the order was approved,
634 SUPREME COURT REPORTS (1983] 1 s.c.R.

A There is nothing to show why for a period of 10 days the represen-
tation was not examined by .the competent authority. There is
not.bing to show how the file moved after May 24, 1982, till the re-
presentation was rejected on June 3, 1982. In our opinion in the
facts and circumstances of this case a time of 21 days taken py tbe
State Government in examining tbe representation of the detcnu
B made under s. 8 of the Act shows inordinate delay in dealing with
the representation and that would vitiate the order.

For these reasons we had quashed and set aside the impugned
detention order.

H.L.C. Petition allowed.

T

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