THE STATE OF RAJASTHAN AND ANR.versusTALIB KHAN AND ORS. ETC.

A                 THE STATE OF RAJASTHAN AND ANR.
                                 v.
                      TALia KHAN AND ORS. ETC.

                              i OCTOBER 24, 1996

B            [K. RAMASWAMY, SUJATA V. MANOHAR AND
                       G.B. PATTANAIK, JJ.]

          National Secwity Act, 1980 :

C          Sections 3, 8--1.>etention-Non-supply .of exceptional circumstances
    and reasons recorded for non-supply of grounds of detention before the expiry
    of five days but within the outer limit of ten days-Whether vitiates the order
    of detention-Held: No-High Cowt not justified in law in holding that non-
    communication of the ground of exceptional circumstances as reasons
    recorded by the Magistrate, vitiated the order of detention-Constitution of
D   India-Art. 22(5).

          A.K Roy v. Unioa of India & Ors., (1982] 1 SCC 271 = (1983] 1 SCR
    540, followed.

          Ibrahim Ahmad Batti v. State of Gujarat & Ors., [1983] 1 SCR
E 540 =   [19821 3 sec 440, overruled.

          CRIMINAL APPELLATE JURISDICTION                      Criminal Appeal
    Nos. 419-31 of 1987 Etc.

         ·From the Judgment and Order dated 9.6.87 of the Rajasthan High
F   Court in D.B.C. Habeas Corpus P. Nos. 831, 909, 919, 920-25, 966, 1030,
    1037 and 1177 of 1987

          K.S. Bhati for the Appellants.

         Sushi! Kumar Jain, A.P. Dhamija, Surya Kant and M.K. Singh for the
G   Respondents.

          The following Order of the Court was delivered :

        Pursuant to the order of this Court dated August 21, 1987 doubting
  the correctness of Ibrahim Ahmad Batti v. State of Gujarat & Ors., [1983]
H 1 SCR 540 = [1982] 3 SCC 440, the case has been referred to this Bench.
                                      742
                               STATEv. TAUB KHAN                              743
            These appeals by special leave arise from the Division Bench judg- A
      ment of the High Court of Rajasthan at Jodhpur in Writ Petition Nos.

 --   831/87 and batch.

            The facts are that the respondents were detained under Section 3(1)
      of the National Security Act, 1980 (for short, the 'Act'), by proceedings of
                                                                                     B
      the District Magistrate, Jaisalmer dated January 7, 1987. The exceptional
      circumstances were recorded on January 11, 1987 for non-supply of the
      grounds and documents to the detenu. The grounds of detention with the
      material were supplied on January 16, 1987. the detenu made his repre-
      sentation on January 20, 1987 to the State Government which was rejected
      on February 2, 1987. He made a representation to the Advisory Board on         c
      February 9, 1987 and it was considered and rejected on February 19, 1987.
      The State Government confirmed the order of detention on March 13, 1987
      for a period of one year w.e.f. January 7, 1987. When the orders of
      detention were challenged, primarily on the ground that the exceptional
      circumstances and the reasons recorded by the District Magistrate were         D
      not communicated t0 the detenu, the order of detention was held violative
      of Article 22(5) and the High Court by the impugned order dated June 9,
      1987 enlarged the respondents from detention. It is not necessary to go into
      the other grounds since the reference is on the correctness of the view
      taken by a Bench of two Judges of this Court in Batti's case.
                                                                                     E
             It is contended by Shri K.S. Bhati, Advocate on behalf of the appel-
      !ant, that after thorough preparation and analysis of facts, the view taken
      by the High Court and this Court in Batti's casi; is not correct in law. The
      objects and reasons of the Act disclose the gravity under which detention
      could be resorted to. Section 3 and Section 8 of the Act are to be read F
      together. The detaining authority, 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 the maintenance of public order or of
      supplies and services essential to the community, it is necessary so to do,
      may pass an order directing that he be detained. In case the order is not
      not communicated to the detenu within five days as envisaged in Section G
      8(1), the detaining authority is required to record reasons for and the
-i
      exceptional circumstances under which order could not be communicated
      to the detenue, and to serve the grounds of detention within 10 days from
      the date of the order of detention. In this case reasons have been recorded.
      It is not a condition that exceptional circumstances or reasons need be H
    744                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A supplied to the detenu along with the grounds of detention. The view taken
  in Batti's case is not correct in law. It is contended by the learned counsel
  for the respondents, Shri Sushi! Kumar Jain, that the view of this Court in
  Batti's case followed by that of the High Court is correct. in law for the
  reasons that under Article 22(5) of the Constitution, the detenu is entitled
B to be supplied with, as soon as may be, the grounds of detention, with a
  view to make representation against his deprivation of liberty at the earliest
  opportunity. Unless the reasons and the exceptional circumstances for
  non-supply of the order of detention are communicated to the detenu along
  with the grounds of detentien; the detenu would be prevented to make
  effective representation either to the appropriate Government or to the
C Advisory Board or the court. Therefore, the communication of exceptional
  circumstances _or reasons recorded along with the grounds of detention, is
  a pre-condition. Non-compliance thereof tantamounts to violation of.Ar-
  ticle 22(5) of the Constitution. The view, therefore, is correct in law.

D        In view of the diverse contentions, the question that arises for con-
  sideration is : whether the view expressed by this Court in Batti's case is
  correct in law? The Act was enacted for various reasons, viz., the prevailing
  situation of communal disharmony, social tensions, extremist activities,
  industrial unrest and increasing tendency on the part of various interested
  parties to engineer ag~tation on different issues; it was considered neces-
E sary that the law and order situation in the country needed to be tackled
  in a most determined and effective way. The anti-social and anti-national
  elements including secessionists, communal and pro-caste elements and
  also other elements who adversely influence and affect the services essen-
  tial to the community, pose a grave challenge to the lawful authority and
F sometimes even hold the society to ransom. Therefore, in view of the
  complexity and nature of the problems, it was felt that the defence, security,
  public order and maintenance of essential supplies or services to the
  community require to be maintained, with a view to streamline the ad-
  ministration in a determined way and to provide the teeth to effectively
  handle the nagging aforesaid situation and to deal with such situations, the
G Act was enacted. Section 3 is pivotal provision under which the.authority
  has been given to the State to exercise such a power. If the Central or State
  Government is 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 or the security of India,
H or if it is satisfied with respect to any person that with a view to preventing
                         STA1Ev. TALIB KHAN                             745
h:m from acting in any manner prejudicial to the security of the State or A
from acting in any manner prejudicial to the maintenance of public order
or from acting in any manner prejudicial to maintenance of supplies and
services essential to the community, it is necessary so to do, it may make
an order directing that such person be detained. In certain circumstances,
the liberty of the person gets restrained subject to the protection given to
                                                                             B
him under the Act. The grounds of detention and the material in support
thereof, unless the later touches the sensitive and confidential
evidence/material, must be supplied to him, as early as possible, ordinarily
within 5 days from the date of detention so as to enable him to make a
representation to the appropriate Government etc. What is mandated by
Article 22(5) is that the detenu must be supplied with the grounds of C
detention and material without undue delay. Power has been given to the
State to delegate such a power to the District Magistrate or the Commis-
sioner of Police under sub-Section (3) thereof. In this case, the District
Magistrate, Jaisalmer had delegated that power under sub-section (3) of
Section 3 of the Act and exercised his subjective satisfaction and passed D
the detention orders under Section 3(2). After the detention order has
been made, it is mandatory under Section 8(1) of the Act to supply the
grounds of detention to the person affected by the order. Sub-section (1)
reads as under :

        "(1) when a person is detained in pursuance of a detention order,      E
        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 recorded 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        F
        opportunity of making a representation against the order to the
        appropriate Government."

       A reading thereof would, therefore, manifest that when a person is
detained in pursuance of his detention order, the authority making the G
order shall, as soon as may be, but ordinarily not later than five days, and
in exceptional circumstances and for reasons to be recorded in writing, not
later than ten days from the date of the 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 ap-
propriate Government. Section 8(1) circumscribes the range and amplitude H
    746                   SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.
A of the phrase "earliest opportunity to supply the grounds of detention" and
    sweep of the phrase "as soon as possible", i.e., ordinarily within five days
    and in exceptional circumstances wit.bin 10 days. It would thus be seen that
    the detenu is entitled to be supplied with the grounds on which the order
    of detention has been made and shall, with a view to afford him an earliest
    opportunity of making a representation against the order to the ap-
B
    propriate Government, the grounds of detention be supplied ordinarily
    within that prescribed period. The period during which the grounds of
    detention are to be supplied has also been indicated. The grounds shall be
    communicated, as soon as may be, i.e., ordinarily not later than five days.
    In other words, the five days limit has been prescribed by the statute to
C   supply the grounds of detention to the detenu. If due to administrative
    exigencies of exceptional circumstances, the detaining authority could not
    communicate the grounds, it should record reasons for non-supply of the
    grounds within five days as envisaged in the first part. As to what are the
    exceptional circumstances due to which the grounds of detention could not
D   be supplied within five days but was done within 10 days from the date of
    detention is always a question of fact. In A.K Roy v. Union of India & Ors.,
    [1982) 1 SCC 271 = (1983) 1 SCR 540, the Co?stitution Bench of this Court
    was required to consider the constitutionality of Section 8(1). In that
    behalf, this Court had held that :

E             "The objection of the petitioners against the provisions contained
              in Section 8(1) is that it unreasonably allows the detaining authority
              to furnish the grounds of detention to the detenu as late as five
              days and in exceptional cases ten days after the date of detention.
              This argument overlocks that the primary requirement of Section
F             8( 1) is that the authority making he order of detention shall
              communicate the grounds of detention to the detenu "as soon as
              may be"'. The normal rule, therefore, is that the grounds of deten-
              tion must be communicated to the detenue without avoidable


G
              delay. It is only in order to meet •the practical exigencies of
              administrative affairs that the detaining authority is permitted to
              communicate the grounds of detention not later than five days
                                                                                       -
              ordinarily, and not later than ten days if there are exceptional
              circumstances. If there are any such circumstances, the detaining
               authority is required by Section 8(1) to record its reasons in
            · writing. We do not think that this provision is open to any objec-
H             tion."
                           STATE v. TALIB KHAN                               747
      It would thus be seen that the requirement of the supply of the                A
grounds, as soon as may be, indicates that normally the detenu is entitled
to be communicated with the grounds of detention within five days. With
a view tide over unavoidable circumstances due to which the detaining
authority could not have the grounds of detention supplied, the statute
engrafted a leverage and directed him to record reasons therefor in writing          B
and the administration should supply the grounds of detention, before the
expiry of ten days. So, the delay should be exceptional and those excep-
tional circumstances are required tci be recorded in writing. What are
exceptional circumstances is always a question of fact in each case. What
is mandatory is the supply of the grounds of detention before expiry of ten
days but after the expiry of five days. It is well settled legal position that the   C
phrase "as soon as may be" means within a reasonable dispatch when there
is no avoidable delay. What is avoidable delay is always a question of fact.

       The question is: whether the non-supply of the exceptional cir-
cumstances and the reasons recorded for non-supply of the ·grounds of D
detention before the expiry of five days but within the outer limit of ten
days, along with the grounds of detention, vitiates the order of detention?
The Division Bench has taken the view that detenu has a valuable right of
representation against the order of detention to the appropriate Govern-
ment or to the Advisory Board. Unless the exceptional circumstances and
the reasons for non-supply of the grounds of detention and the documents E
in support thereof are communicated to the detenu, by necessary implica-
tion, the valuable right of representation at the earliest opportunity, as
envisaged under Article 22(5), is breached. Thereby, the detenu becomes
entitled to be released from detention. It could be seen that what is
material and mandatory is the communication of the grounds of detention F
to the detenu together with documents in support of subjective satisfaction
reached by the detaining authority. When the representation has been
made by the detenu to the appropriate Government or to the Advisory
Board, it may be one of the grounds for him to impugn the order of
detention that he was not supplied with the grounds within the time
prescribed and thereby he was unjustifiably detained, without any G
reasonable justification. When such a ground has been raised and pressed
for consideration, it would be for the detaining authority to satisfy the
appropriate Government or Advisory Board or in an appropriate case in
the proceedings under Article 226 of the Constitution. The exceptional
circumstances are those due under which the grounds and the documents H
    748                   SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.

A   could not be supplied to the detenu and that the same were recorded in
    writing in the record of the detaining authority. If the appropriate Govern-
    ment or the Advisory Board or the Court are not satisfied with the
    recorded exceptional circumstances due to which the grounds of detention
    could not be supplied, after five days but before the expiry of 10 days, that
B   may be one of the circumstances which the appropriate Government or
    Advisory Board or the Court may consider whether the detention order is
    vitiated or is an infraction of Article 22(5) of the Constitution. But since
    the Act does not envisage communication of the exceptional circumstances
    and the reasons recorded for non-supply of the grounds that ground of
    non-communication or their non-supply by itself is not sufficient to hold
C   that the order of detention is in violation of Article 22(5) of the Constitu-
    tion. The Division Bench, therefore, was not right in concluding that the
    detenu has been deprived of his making a representation at the earliest
    opportunity for non-supply of the grounds oi exceptional circumstances
    and the reasons recorded for non-supply of the grounds of detention. Thus,
D   we hold that the view taken in Batti's case is not correct in law. The District
    Magistrate in his proceedings dated January 11, 1987 has recorded as
    under:

             "Officer-in-charge Gudicial) has informed that in the cases so far
             2/3rd Photostat copies have been prepared and in the absence of
E            copies, it is not possible to furnish the grounds of detention to the
             detenu before the expiry of prescribed minimum period of five
             days. Since in all 35 cases, about 16,000 Photostat copies are to be
             prepared and the sets are also to be prepared. But due to frequent
             power failure, fluctuation; machine being the private, its owner
             cannot be compelled to sit and work for extra-time, difficulty is
F
             being faced in completing the work. Therefore using the maximum
             period of 10 days for furnishing the grounds of detention to the
             detenu, as provided under Section 8(1) of the National Security
             Act, 1980, the State Government was informed of this decision."

G          In view of the grounds mentioned therein, we are of the view that
     the District Magistrate was prevented duli to those exceptional circumstan-
     ces as recorded in the proceedings that the grounds of detention and the
     documents in support thereof could not be supplied to the detenu within
     five days but the same came to be supplied within ten days, as envisaged
H    in Section 8(1) of the Act. Therefore, the High Court was not justified in
                         STATE v. TAUB KHAN                             749

law to hold that non-communication of the ground of exceptional cir-           A
cumstances a~ reasons recorded by the District Magistrate, vitiate the order
of detention. Since the time for detention of one year has expired by efflux
of time, we do not propose to interfere with the order.

       The appeals are accordingly allowed.
                                                                               B
G.N.                                                      Appeals allowed.