15 Sep 2010

Discernable reasons mandatory for valid detention order: High Court

Holding that it was not only mandatory to provide reasons in the order but was also essential that the reasons must reflect application of mind and not just a casual reference to statutory provisions, the Bombay High Court in a recent decision [Naresh Kumar Sachadeva v. State of Maharashtra] has declared that a detention order which does not comply with these mandatory requirements is liable to be quashed. Declaring that the order passed by the Government of Maharashtra detaining the petitioner for alleged violation of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was couched in a casual language and thus deserved that fate, the High Court following the law declared by the Supreme Court set aside the order. 

The High Court inter alia observed as under;
5. Having considered the rival submissions, we would think it appropriate to advert to the decision of the Apex Court in the case of Jagannath Mishra (supra). In that case the detention order was passed against the Petitioner under Rule 30(1)(b) of the Defence of India Rules. While considering the challenge of the petitioner to the detention order, suffering from non-application of mind, the Apex Court in Paragraph-7 of the said decision has expounded as follows:- 
“7. There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive “and” and the use of the disjunctive “or” in such a case makes no sense. In the present order however we find that the disjunctive “or” has been used, showing that the order is more or less a copy of S. 3(2)(15) without any application of the mind of the authority concerned to the grounds which apply in the present case ..................” 
6. It may be useful to advert to the dictum in Paragraph 8 of the same decision which reads thus:-
“8. ..............It is the duty of the authority to see that the order of detention is in accordance with what the authority was satisfied about. If it is not so, the inference of casualness is strengthened and the Court would be justified in coming to the conclusion that the order was passed without the application of the mind of the authority concerned”.
7. In the case of Kishori Bera (supra) the detention order was passed in exercise of powers under Maintenance of Internal Security Act, 1971. While considering the similar argument in Paragraph 8 of the said decision, the Court observed thus:-
"8. In the instant case, however, that is not so, because the impugned order states that the detaining authority was satisfied that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to "the maintenance of public order or the security of the State." The satisfaction of the District Magistrate was on the disjunctive and not conjunctive grounds, which means that he was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the ground of danger to the public order or danger to the security of the State. If he felt the necessity to detain the petitioner from the activities described by him in the ground of detention on the ground that those activities affected or were likely to affect both the public order and the security of the State he would, no doubt, have used the conjunctive 'and' and not the disjunctive 'or' in his order. But, as the order stands, it would appear that he was either not certain whether the alleged activities of the petitioner endangered public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely said alleged activities fell under one head or the other and merely reproduced mechanically the language of S. 3(1)(a)(ii). When such equivocal language is used in an order and the detenue is not told whether his alleged activities set out in the grounds of detention fell under one head or the other, or both, it is not difficult to appreciate that a detenue might find it hard to make an adequate representation to Government and the Advisory Board." 
We may now usefully refer to the opinion recorded in Paragraph 10 of the same Judgment.
“10. It is, therefore, clear that before the authority invokes its power under alleged activities of the person concerned were such that they endangered of were likely to endanger either the security of the State or public order or both. If the activities are of such potentially or impact so as to affect both of them, the conjunctive 'and' and not the disjunctive 'or' would be the appropriate word. There is therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made.”
8. On the basis of principle expounded in the above said Judgments, this Court in the case of Charandeep Kaur Indrajeet (supra) accepted the challenge to the detention order in similar situation. The argument of the Learned APP, however, is that in the said case the Court noted that the grounds of detention also contained similar error of recording disjunctive word ‘or’. According to Learned APP, in the present case the grounds do not contain disjunctive word ‘or’ as in the said unreported case. 
9. The argument, however, fails to notice the legal position stated by the Apex Court in the case of Kishori Bera. The Court has observed that if the activities of detenue have such potentiality or impact so as to affect more than one activity, the conjunctive word ‘and’ and not disjunctive word ‘or’ would be the appropriate word. In absence of using the conjunctive word ‘and’ it would clearly demonstrate the element of casualness with which the order was made. These observations apply on all fours to the case on hand. The order of detention, as aforesaid, uses the disjunctive word ‘or’. If the Detaining Authority intended to invoke detention remedy against the petitioner for different activities including for transporting, concealing, keeping smuggled goods and dealing with any smuggled goods, it ought to have used the conjunctive expression ‘and’ or could have used punctuation “comma” to mean that the proposed action against the Petitioner was for all the activities in respect of which material was made available before it. We may place on record that the original file was produced before us. The note of the Detaining Authority dated 8th June, 2010 as can be discerned from the said file merely states that he has considered the proposal of sponsoring Authority and the documents submitted and was convinced and satisfied that detention order needs to be issued. The fact remains that the detention order as has been issued and initialed by the Detaining Authority uses the disjunctive word ‘or’. 
10. Borrowing the words of the Apex Court in the case of Kishori Bera, we have no hesitation in taking the view that the detention order as served on the Petitioner, which is impugned in this Petition, is couched in such a manner that it demonstrates an element of casualness with which it was made. We are in agreement with the argument of the Petitioner that the fact that the activities referred to in the detention order against the petitioner are serious and social evil but at the same time when it comes to fundamental rights under the Constitution, the Court irrespective of enormity and gravity of allegations made against the detenue has to intervene as is held by the Apex Court in the case of Mahesh Kumar Chauhan alias Basanti reported in (1990) 3 SCC 148
11. Accordingly, this Petition succeeds. The impugned detention order dated 11th June, 2010 is quashed and set aside and the Respondents are directed to set the Petitioner at liberty forthwith unless required in any other criminal cases.

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