LexDEVI LAL MAHTO versus STATE OF BIHAR AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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DEVI LAL MAHTO
v.
STATE OF BIHAR AND ANR.
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-
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
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
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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
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already deprived of hi~ personal liberty, the detaining authority .must show
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awareness of the fact that the person against whom the detention order is~ -
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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
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]
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.
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] · ·
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
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ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 107S
of 1982.
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(Under article 32 of the Constitution of India)
V.J. Francis for the Petitioner.
S.N. Jha for the Respondent.
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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
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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.
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Detenu Devi Lal Mabto was arrested on March 2, 1982, and,
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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
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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'
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for short). The District Magistrate stated in his order that with a view
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to preventing the detenu from actExcerpt shown. Read the full judgment & AI analysis in Lexace.