Holding

A preventive detention order under the National Security Act is invalid if the detaining authority is unaware that the person is already detained, as it amounts to non‑application of mind; the order must disclose such awareness and cannot rely on an affidavit of a subsequent magistrate.

Summary

Biru Mahato was arrested in January 1982 for offences under the IPC and was already in jail when the District Magistrate, Dhanbad, on 5 February 1982 issued a preventive detention order under Section 3(2) of the National Security Act, 1980, to prevent him from acting prejudicial to public order. The order was served while Mahato was in custody, and the detaining authority apparently was unaware of his existing detention. Mahato challenged the order through a writ of habeas corpus and a special leave petition before the Supreme Court. The Court held that a preventive detention order is invalid if the authority does not know the person is already detained, as this shows non‑application of mind; the order must expressly disclose such awareness, and an affidavit by a subsequent magistrate cannot substitute for the detaining authority’s satisfaction. Consequently, the Court quashed the detention order and allowed the appeal and petition.

Issues considered

Whether a preventive detention order under Section 3(2) of the National Security Act, 1980, can be validly made against a person already in custody.
Whether the detaining authority must have knowledge of the existing detention for the order to be valid.
Whether an affidavit filed by a subsequent District Magistrate can satisfy the requirement of subjective satisfaction of the detaining authority.

Legislation cited

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

Subjects

preventive detentionNational Security Actnon‑application of mindsubjective satisfactiondetention orderhabeas corpuspreventive detention while already in custody

Judgment

584
A
BIRU MAHATO
v.
f.
'""" .
DISTRICT MAGISTRATE, DHANBAD.
B
October 15, · 1982
[D.A. DESAI AND R: B. MISRA, JJ.)
NatioMI Security Act, 1980, Section 3(2) Scope of-Prevelltive detention of
the detenu whose liberty has otherwise already been prevented by keeping in ]ail is
impermissible under the N.S. Act-Non•awareness of the detaining. authority
C.. about the detenu's detention in jail would vitiate the order of detention on the
ground of non-application of mind-Affidavit should be that of'the detaining
authority who had the su~jective satisfaction of the detention.
'
Detenu Biru Mahato was arrested on January 13, 1982' on the allegation
that he was involved in two incidents which occurred, first at S p.m. and the
D second at 5:30p.m. on January 12, 1982. In the first occurrence detenu and
his associates were alleged to have committed offences under sections 341, 323
and 506 of Indian Penal Code, as per the F.LR. 25(1)/82 at Bagmara Police
Station. In the second case, F.I R. 24{1)/82 registered at the same police
station, they were said to have committed offences under sections 307 and 323
I.P.C. After his arrest the detenu was confined :. in prison. In respect
of the first occurrence . bail -application was accepted, but in respect
E of the second occurrence the bail application was rejected by the District &
Session Judge, Dhanbad on February S, 1982, on the ground that in exercise of
powers conferred by sub section (2) read with subsection (3) of Section 3 of the.
National Security Act, 1980, the detenu is detainec:l by the order of the District ~-

Magistrate so as to prevent him from acting in any _manner prejudical to the
maintenance of public order and the bail application bas become infructuous,
On February 1o, 1982, grounds of detention were served on the detenu in jail
where he was already detained. The grounds of detention referred to the two
incidents occurred on January 12, 1982. The detenu made a representation on
February IS, 1982 which was rejected by the State Government on Februa~y 16,
1982. The case of the detenu was referred to the Advisory Board and after
-receipt of its report the State Goverii!llent confirmed the·order of detention. .
-.....-/
Detenu preferred a petition for a writ of habeas corpus in the High Court
at Patna which was dismissed in limine by a Division Bench of the High Court.
G Hence the appeal by special ieave and lhe writ petition.

Allowing the appeal and the petition, the Court

H
HELD : 1.1 A preventive action postulates that if preventive step is not
taken the pCTSOn sought tO be prevented may indulge into an activity prejudicial
..
to the maintenance of public order. In other words, unlesa the activity is
interdicted by a preventive detention order the activity which is being indulged
lliRU MAHATO V. DJSn. MAGISTRATE S85
into' is likely to be repeated, This is the postulate of- _section 3 of the National A
Security Act. _ And this indubitably transpires from the language employed in
. .) t sub section (2) which says that the detention order can be made with a view to
preventing the person [sought to be detained from acting in any manner pre~
judicial to the maintenance of public order. If, it is shown that the man sought
to be prevented by a preventive order is already effectiveiy prevented, the power
under sub section (2) of Section 3, if exercised, would imply that one who is
already prevented is sought to be further prev_ented, whicp is not the mandate 8
· of tbe section~ and would appear tautologous. t5B8 C-E]
., ...
.1.2. The detaining authority before exerctsmg the power of preventive
detention would take into consideration the~st conduct ot: antecedent history
)
of the person and·as a matter offact it is largely from the prior events showing
the tendencies or inclinations of a man that an inference could be drawn .whether
he is likely even in the future to act in a manner prejudicial to ·the maintenance c
of public order. If the subjective satisfaction of th;e detaining authority leads
. to tliis conclusion it can put an end to the activity by makitlg a preventive
detention order. If the man is already detained a detaining a~thority cannot
be said to have subjectively satisfied himself that a ,preventive detention order
need be made. [588 E·H]

Ujagar Singh v. Slalt of Punjab: Jagir Singh v. Stale ·of Punjab, [1952]
D
SCR 756; Rameslewar Shaw v. District Magistrate, Burdwan and ·another, [1964]
4 SCR 921; referred to.

1.3; The subj~tive satisfaction of the detaining authority must t:amprehend
the very fact that the person sought to be detained is io~ail or under detention
and y~t a preventive detention order is a compelling necessity. If the subjective E
satisfaction is reached without awareness of this very relevant fact, the detention
order is likely to be vitiated. But, it will depend on the facts and circumstances
of each case. [590 B·C]

Vtjay Kumar v. State of J & - K and others; AIR 1982 SC 1023
-
applied. F
~- 2.1. Conceding that in a given case a preventive detention order is
·required to be made even against a person who is already in jail or under deten-
tion and that the detaining authority "shows its awareness of the fact situation
and yet pasl!CS the detention order, the detention order must show on the face
of it that the detaining authority was aware of the situation. Otherwise the
detention order would suffer from vice of non-application of mind. G
[590 H, S91 A-Bl

2.2. The awareqess must be of the ract that the person against whom tho
detention order is being made is already under detention or in jail in respect of
some offence. This would show that such a person is not a free person to H
indulge into a preju~ic ial activity which is required to be prevented by a deten-
586 ·. SUPlEMB COURT REPORTS [1983) 1 s.c.R.
A tion order, And this awareness must find its place either in the detention otder
or in the affidavit justifying the detention order when challenged. In the absence
of it. it would appear that the detaining authority was not even aware of this
vital fact and mechanically proceeded to pass the order which would unmistak- ~
ably indicate that there was no application of mind to the relevant facts and
any order of such serious consequence when mechanically passed without appli-
cation of mind is liable to be set aside as·invalid. [S9I B-D]
B
2.3. A person may be holder of office of District Magistrate. But when
the subjective satisfation of holder of office who actually passed the detention
order is put i.n issue. ·the mere occupant of office cannot arrogate to substitute.
the subjective satisfaction of the holder of the. post who actually passed the
detention order. The subsequent occupant can speak from the record. But the
.subsequent holder of office bas made an. affidavit as if be was subsequently
c satisfied a fact in connection
I
with record. Here,. the affielavit of Mr. Brara the
subsequent holder 'of office of Distt. Magistrate has to be ignored and one must
reach the conchi'sion that the averments made by the detenu·have remai~ed
un-controverted. [592 B-D]

ORIGINAL JURISDICTION : Writ Petition (Criminal) No, 1125 of
D 1982.

(Under article 32 of the Constitution·of India)

WITH

E Criminal Appeal No. 488 of 1982.

(Appeal by special leave from the judgment and order dated
7-4-1982 of the Patna High Court (Ranchi Bench) in Writ Jurisdic-
tio~·Case No. 40
of i982_ (R).

U.P. Singh for the Petitioner/ Appellant.
F
D. Goburdhan for the Respondent.
./
The Judgment of the Court was delivered by
' . ')- .
DESAI, J. By our order dated October 8, 1982, the order of
G detention dated February 5, 1982, made by the District Magistrate,
Dbanbad, against detenu Biru Mahato was quashed and set aside by
us further stating that the reasons would follow. Here are the
reasons.-.

H Detenu Biru Mahato was arrested on' January--13, 1982, ori'the
ailegation that he was involved in two incidents which occurred, first
I

DIRU MAHATO v. DISTI, MAGISTRATE (Desai, J.}·· 587
A
at 5 p.m. and the second at 5.30 p.m. on January-12, 1982. In the
first occ~rrence detenu and his associat~s ·appear to have committed
offences.under ss. 341, 323 and 506 read with s. 34 of the Indian
Penal Code. - F .I.R. led to registration · of the offences at Bagmara
Police Station numbered as 25(1)/82. F.I.R. No. 24(1)/82 has been
registered at Bagmara Police ·Station for offences under ss. 307 and
B
323, I.P~C. After his arrest the detenu was confinea in prison. In
respect of the first occurrence bail application of the de'tenu was
accepted but in respect of the second occurrence the bail application
wasrejected by the ~earned District & Sessions Judge, Dhanbad on
)
February 12, 1982. In the mean time the District Magistrate, Dhan-
bad, made an order on February 5, 1982, in exercise of powers con-
- ferred by sub-section (2) rea~ with sub-section (3) of sectiQn 3 of the
c
National Security Act, 1980 ('Act' -for short)~ directing that the
detenu be detained so as to prevent him from acting in any manner
prejudicial · to the maintenance of public order. On February 10,
1982, grounds of detention were served on the detenu in jail where
~·- he was already detained. The grounds of detention referred to the
two incidents which occurred on January, '12, 1982." The detenu
made a representat~on on February lS, 1982, which was rejected by
the State Government on Febuary 16, 1982. Case of the detenu
was referred to the- Advisory Board and after. receipt of its report
the State Government confirmed the order of detention.
I , E
"
Detenu perferred a petition for a 'writ of habeas corpus in the
High Court at Patna which was dismissed in limine ·by a Division
Bench of the High Court. Detenu ha_s filed this writ petition.under
Article 32 as also appeal by special leave under Art. 136. .Both the •
appeal and writ petition are }:)eing disposed of by this common F
j~d.Jment. ,

"'Two contentions were canvassed on ' behalf of the detenu :
(1) the date on which the detention order came to be made the
detenu was already deprived of his liberty as. he'was arrested and ·G
was confined in jail and, therefore, he was already pevented from
pursuing any activity .which inay prove prejudicial to the maintena-
nce of public order, hence n.o order of detention could be made
against him; (ii) the detaining authority was not even aware that the
detenu was already in jail and the order suffers from the vice of non· ·H
applicatio? of mind. !n our opinion both the grounds are weighty
588 sUPIUlM.B COUR.t lUlPOliTS [1983] 1 s.c.a..

A and go to the root of the matter and would vitiate. the detention
order.

Sub-section (2) of s. 3 of the Act confers power on the· Central
Government or the State Government to make an order of detention
with a view to preventing any person from acting in any manner
B prejudicial to the security of the State from acting in any manner
prejudicial to the maintenanCe of public order, etc. In this case the
detaining authority bas made the order on being satisfied that it is
:necessary to detain the detenu with a view to preventing .him from
acting in any manner prejudicial to the maintenance of Public order.
A preventive action postulates that if preventive step is not taken
c the person sought to be prev~nted may · indulge into an activity
prejudicial to the maintenance of public order. In other words,
unless the activity is interdicted by a preventive detention order 'the
activity which is being indulged into is likely to be repeated. This is
the postulate of the section. And this indubitably transpires from
the language employed in sub-s. (2) which says that the detention
D order can be made with a view to preventing the person sought to
be detained from acting in any manner prejudicial to the maintena·
nce of public order. Now, if it is shown that the man sought to be
prevented by a preventive order is aleady effectively prevented, the
power under sub·s. (2) of s. 3, if exercised, would imply that one
E who is already prevented is sought to be further prevented which is
not the mandate of the section, and would a.ppear tautologo~s. An ·
order for preventive detention is made,on the subjective satisfaction·
of the detaining authority. The detaining authority before exerci-
sing the power of preventive detention would take into consideration
the past conduct or antecedent history of the person and as a matter
F of fact it is largely from the prior events showing the tendencies or
inclinations o.f a man that an inference could be drawn whether he
is likely even' in the future to act in a manner prejudical to the
maintenance of public order. If the subjective satisfaction of the
detaining authority leads to this conclusion . it can put an end to the
activity by making, a preventive detention order. (see Ujagar Singh
G v. State of ~unjab, and Jagir Singh v. State of Punjgb).(l) Now, if
the man is already. detained can a detaining authority be said to
have been subjectively satisfied that a preventive detention order be
made?· In Rameshwar Shaw v. District Magistrate, Burdwan &

H
(1) [1952] s.c.R. 1@ s.
BIRU M~RATO l'. DISTT. MAGISTRATE (Desai,/.) 589

~ Anr.(l) this Court held that as an abstract proposition of law the
A
'
, detention order can be made in respect of a person who js already
.)1
detained. But having said this, the Court proceeded to observe as
under:
-
"As an abstract proposition of laW, there may not be .
8
any doubt that s. 3 (l) (a) does not preclude the authority
from passing an order ofdetention against a person whilst
he is in detention or in jail, but the relevant facts in connec.
\
tion with the making of the order may differ and that may
make a difference in the application of the principle that a c
detent.ion order can b~ passed against .a person in jail.
Take for instance, a case where a person ,bas been senten-
ced to rigorous imprisonment for ten years. It cannot be
seriously suggested that soon after the sentence of imprison-
ment is pronounced on the person, the detaining. authority
can make an order directing the detention of the said person
after he is released from jail at the end of the period of the D
sentence imposed on him. In dealing with this_ question,
again the consideration of proximity of time will not be
irrelevant. On the other h.and, if a person who is under-
going imprisonment, for a very short period, say for a
month or . two or so, and it is known that he would soon
be released frqm jail, it' may be possible for !he authority E
to consider the · antecedent history of the said person , and
decide whether the detention of the said per~on would be
necessary after he is released from jail and if the authority · .
is bona fide satisfied that such detention is necessary, he
can make a valid order of detention a few days before the
person is likely to be released. The antecedent history and F
the past conduct on which the order of 4etention would be
based would, in such a case, be proximate in point of time
and would have a rational connection with the conclusion
drawn by the authority that the detention of the person
after his release is necessary. It may not be easy to discover G
such rational connection between the antecedent history
·of the person who has been sentenced to tep years rigorous
imprisonment and the view that his detention should be ·
ordered after he is released after running tbe, whole of his
~
I sentence. Therefore, we are satisfied th_at the question as H
'
(1) [1964] 4 S.C.R. 921.
590 SUPRBME COUllT RBPOllTS (1983] 1 ~.C.B.
A 'to whether an order of detention can be passed against a
person who is in detention or in jail, win always have to be
determined in the circumstances of each case".

One can envisage a hypothetical case where a preventive order ·
may have to be made against a . person a"Iready confined to jail or
8
detained. But in such a situation a~ held by this Court it must be
present to the mind or' the detaining authority that keeping in view
the fact that the person is already _detained a preventiv~ detention
order is still necessary. The subjective satisfaction of the detaining
authority must comprehend the very fact that the person ~ought to
C·
be detained is already in jail or under detention and yet a preventive
dete~tion order is a. compelling necessity: If the subjective s~tisfac-- .
tion is reached without the awareness of this very relevant fact the
~etention order is likely to be vitiated. But as stated ~Y this Court
it wi11 depend on the facts and circumstances of each case. '-...
o. Tile view herein finds further support from ~he decision of this .
Court in Vi[ay Kumar v. State of1 & K and Ors.,(l) wherein this
Court recently held as under :

"Preventive detention is resorted to. to thwart future
action. If the detenu is already in jail charged with a
serious offence. he is thereby preven~ed from acting in a
E manner prejudicial to the ·security of the State. Maybe, in
a given case there yet may be the need to order -preventive
detentio~ of a person already in jail. But in such a situa-
tion the detaining authority must disclose awareness of th~
fact that the person against whom an order 'o f preventive
F detention is being made is to the knowledge of the
authority already ~n jail and _yet for compelling reasons a
preventive detention order needs to be made. There · /
is.nothing to indicate the awareness of the detaining autho-
rity ~hat detenu was already i~ jail and yet the .impugned
order is required to be made. This, in our opinion, clt-arJy
G exhibits non-application-· of mind and would result in
invalidation of the order."

This leads us to "the second limb of the submission. Con-
a
cedii)g that in a given case preventive detention order is required
H
(1) .AIR 1982 (SC) 1023. -
'BIRU MAHATO 17, DISTf, MAGISTRATE (Desai, i:) 591

to be made ,even against a person who is' already in jail or . under A
detention and that the detaining. authority- shows its awareness
· - of the fact situation and yet passes the detention ·order, the detention
order must show on the face of it that the detaining . authority . was
aware of !he situation. Otherwise, the detention order would suffer
from vice of non·application of the mind. The awareness must
be of the fact that ~be person against whom the ·detention order is
· ~ing made is already under detention or in jail in respect of. some
offence. This would show that such a person is not ·a free person .to .
indulge into a prejudicial activity which is -required to be prevented
by a detention order. And this awareness must find its place either
in the detention order qr in the .affidavit justifying the detention .
order when challenged. · In the absence of it. it would appear. that the
c
detaining· authority was not even aware of th-is vi~al fact and ..
- mechanically proceeded to pass the order which would unmistakably
.r indicate that there was non-application of mind to the relevant facts
.(, and any. order of ·. ~uch serious consequence when mechanically
-passed without applic~tion of mind is
liable to be set aside as D
-invalid. · · · . .
. . ' . . .. . .
Turning to the facts of this· case the detention- order refers to
'Biru Mahato son of Mohan Mahato -of
Village Jamdiha,- P.S~
Bagmiua; DistLDhanbad. There is not ·even a whimper of the·
- detenu bei_ng in jail for nearly three weeks prior. to the date on E
which the detention order was made. ,-

The detenu is referred to as on~ who -is staying at a certain
place and is a free person •. Assuming that this inference from t~e
mere description of the detenu in the detention order is impermissible ·
~) tlle affidavit is conspicuously silent on this point.· Not a word is said / F
'· --~that
. . the. . detaining
.
authority
.
was
. aware of the·. fact.·' that the
detenu ·was already in jail and yet it became a compelling necessity
"
to pass -the detention order. Therefore. the subjective satisfaction'
- arrived at clearly discloses anon-application of.inind to the" relevant
. facts and the order is vitiated. (' /. · · G
. .
Mr. U.P. Singh, learned counsel for the detenu urged that this
Court should not take into . consideration the· affidavit filed by .. ·
- · · ~Dr.J.S. Brara·on behalf of the respondent. Dr. J."S. Barara, des.
cribing himself as District- Magistrate, Dhanbad,-- has made the
affidavit as if he was the detaining authority. When this statement .. H ·
.
was
-.
chall~nged
. .
on . behalf
. .
of the detenu, .Mr.. Goburdhan,
.
learned

·.
. i
'-

S~2 SUPllEMB COURT JUlPORTS (1983) 1 S.C.R.

A._ :·...:. counsel for the ~spo.ndent went to the extrem~ 'tenth of asserting
that Mr. Brara was the detaining.authority. At that stage Mr. U. P.
Singh. learned counsel for the detenu produced ihe original order of
detention signed by one Shri D. Nand Kumar as District Magistrate.
This was sbown_to Mr. Goburdban and be ·was unable to sustain --
- . his submission that Mr. Brara who bas filed the affidavit -was the
B ··.detaining authority. In fact, at one stage we were inclined to take a
- very serious view of the conduct . of Mr. Brara iii· making - the •"·
, affidavit as if be is the detaining authoritY. In para 1 he has describl:d
himself as District Magistrate being the detaining authority of the .
petitioner whichI statement is not borne out by the record. He-may
-- - '
• - - .

be the holder_- of office of District· Magistrate. But when the .
' c _. subjective satisfaction of holder of office is put in issue the mere .
occupant of· office carin-ot arrogate to substitute his subjective
_ satisfaction: . He may speak from the record but· that is not __ the
~case here. Therefore. the affidavit of Mr. Brara has -to be' ignored
and one must reach the conclusio!,l that the averment. made by the ·· ·~

D _. _ detenu h~ve remained unconiroverted. ··

For these reaso_ns we have quashed and set aside the order·or:
- detention. ...
r --
S.R,• '- Appeal and fetition alf.owed.
/

' '

- - .· (
~

'-·

•
-,_

-, ..

.,

/ .··-
'-