http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14 PETITIONER: ABDUL RAZAK ABDUL WAHAB SHEIKH Vs. RESPONDENT: S.N. SINHA, COMMISSIONER OF POLICE, AHMEDABADAND ANOTHER DATE OF JUDGMENT03/03/1989 BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PANDIAN, S.R. (J) CITATION: 1989 AIR 2265 1989 SCR (1) 890 1989 SCC (2) 222 JT 1989 (1) 478 1989 SCALE (1)542 CITATOR INFO : R 1989 SC2274 (11) RF 1990 SC1202 (4) RF 1991 SC1640 (12) D 1991 SC2261 (5) ACT: Gujarat Prevention of Anti-Social Activities Act, 1985--Section 3(2)--Detention order--Whether legal and in accordance with law--Necessity for the detaining authority to consider all relevant material. National Security Act 1980--Section 3--Detention or- der--Subjective satisfaction of detaining authority based on application of mind--Necessity for making an order of deten- tion--Past history and antecedents of detenu----When rele- vant. HEADNOTE: The Commissioner of Police, Ahmedabad, Respondent No. 1 therein passed an order of detention dated 23.5.1988 against Abdul Latif Abdul Wahab, petitioner's brother under section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 and served the same on the detenu, while he was in jail, in pursuance of an order of remand made by the Desig- nated Court, Ahmedabad in CR No. 40 of 1987. The petitioner, detenu's brother challenged the validity of this order on the ground, amongst others, that there has been absolute non-application of mind on the part of the detaining author- ity in making the order of detention. The grounds of detention furnished to the detenu, makes mention of three criminal cases viz. Case no. 372/85, Case no. 456/87 and Case no. 2/88 pending against the detenu at P.S. Kalupur, out of which case no. 372/85 is stated to be pending in Court and the other two pending for examination. The detaining authority acting on the basis of the said complaints apprehended that detenu's criminal activities will adversely affect the public order because the activi- ties, the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat. The detaining authority further felt that the detenu though in jail, there are full possibilities that he may be released on bail in that offence. It may be pointed out that in case http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14 no. 2/88, the name of the detenu does not find place in the FIR. Likewise in case no. 372/85 aforesaid, detenu's name is not there. 891 In case no. 456/87, registered on 16.10.87 the detenu was arrested the same day. The case related to the seizure of a revolver from the person of detenu. The detaining authority while issuing the order of detention against the detenu, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dt. May 13, 1988. The detaining authority also was not aware that no application for bail by detenu was filed between May 13 to May 23, 1988 i.e. when the detention order was made. The Court in order to decide the various contentions advanced by the parties felt it necessary to consider the background as well as the various detention orders passed against the detenu. The first in the series is an order dt. 11th September, 1984 when the Respondent No. 1 issued to the detenu a notice to show cause why he should not be externed from the boundaries of Ahmedabad and the surroundings rural areas. In 1985 the detenu was arrested u/s 307, 143, 147, 148 & 324, I.P.C. CR case no. 37/85 wherein he was granted bail by the Sessions Judge on February 14, 1985. On 24th March 1985, Commr. of Police passed an order of detenu's detention. On 6th July 1985 charge-sheet in CR Case No. 37 of 1985 was submitted. On 27th September, 1985 inquiry into the externment proceedings was completed. On Dec. 12, 1985 the detenu surrendered and was taken into custody. On May 26, 1986, the detenu was acquitted in that case. The detenu was released from the jail on June 23, 1986 and as soon as he came out of the jail, an order of detention under Preven- tion of Anti Social Activities Act was served on the detenu there and then and he was once again taken into custody. It may be mentioned in this connection that on Jan. 18, 1986, the order of externment of the detenu from Ahmedabad city and rural areas of Gandhi Nagar etc. was made when the detenu was in jail. The State Govt. on appeal by the detenu confirmed the order of externment. However on August 7, 1986, the Govt. revoked the order of detention, as Advisory Board could not be constituted. On the same day the State Govt. passed the second order of detention under PASA and the same was served on the detenu the same day. The detenu challenged the validity of both the externment order as also the detention order in the High Court. The High Court re- jected the petition challenging the order of detention and he filed petition for special leave in this Court. This Court released the detenu on parole on 23.1.87 as he was to participate in municipal elections which were to take place on 25th Jan. 1987. The detenu was released on parole on 24th Jan. 1987. He won the election from all the wards wherefrom he had contested. This Court on February 9, 1987 quashed the detention order and 892 directed the respondents to set the detenu at liberty. On February 14, 1987 when the detenu went to the police station with his advocate to mark his presence as required by the earlier bail order, he was again taken into custody for breach of order of externment of 18.1.1986. He was granted bail. On February 15, 1987 an order of detention under section 8(a) of the National Security Act was passed against the detenu. The detenu challenged the same but in the meantime Advisory Board released him. On October 16, 1987, the detenu was again arrested for http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14 an incident of Feb. 14, 1986. He applied for bail before the Designated Court which was refused. Against that order he preferred an appeal to this Court under section 16 of the Terrorists and Disruptive Activities (Prevention) Act 1985. This Court set aside the order of the Designated Court and remitted the matter back to the said Court with a direction to decide the matter afresh and enlarge the detenu on bail pending the disposal of the application for bail. Another order of detention was passed against the detenu on Jan. 25, 1988 which was later withdrawn as the Advisory Board declined to confirm the same. The detenu was released on March 14, 1988. At the hearing of the appeal by this Court on 7.4.88 an application was made that the detenu has absconded whereupon this Court ordered that the detenu should surrender within a week's time. He accordingly surrendered on April 13, 1988. On May 23, 1988 the order of detention in question was made which is hereby challenged. The contention raised on behalf of the petitioner is that in the grounds of detention furnished in support of the order of detention, no prejudicial act on the part of the detenu is alleged between March 14, 1988 and April 13, 1988 during which small period he was a free man; as he was in jail for nearly three years prior to March 14, 1988 except for short periods when he was on parole, and after April 13, 1988 again he was under custody. It is urged that no preju- dicial activity has been shown, when the detenu was on parole. As such the action of the respondent is wholly vindictive and in total defiance of law. According to him there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court's order did not grant interim bail to the detenu by its order dt. 13.5.88. There was no possibility therefore of the detenu being released on bail. It was thus impossi- 893 ble to prove the statement made in the grounds of detention that there were full possibilities that the detenu may be released on bail in this case. Allowing the petition, this Court, HELD: The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the detention must be carefully and solemnly considered. [901G] The past conduct or antecedent history of a person can be taken into account in making a detention order but the past conduct or antecedent history of the person, on which the authority purports to act, should ordinarily be proxi- mate in point of time and would have a rational connection with the conclusion drawn by the authority that the deten- tion of the person after his release is necessary. [901F-G] There must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him, and cogent rele- vant materials and fresh facts have been disclosed which necessitate the making of an order of detention.