Holding

An unexplained, unreasonable delay in arresting a person after a detention order under the National Security Act demonstrates a lack of genuine satisfaction and invalidates the order.

Summary

The petitioner challenged his preventive detention under Section 3(2) of the National Security Act, 1980, arguing that the order dated 15 April 1988 was executed after an unreasonable delay (arrest on 2 October 1988) and that the grounds cited were not genuinely related to public order and were vague. The Supreme Court examined whether such delay vitiates the satisfaction required under the Act and held that unexplained, unjustified delay indicates a lack of genuine subjective satisfaction, rendering the detention order invalid. While the Court found the grounds of detention not vague and germane to public order, the undue delay was sufficient to quash the order. Consequently, the petition was allowed and the petitioner was ordered to be released. The judgment reaffirmed that preventive detention must be based on prompt, material satisfaction and is subject to strict judicial review.

Issues considered

Whether an inordinate, unexplained delay in executing a detention order under Section 3(2) of the National Security Act, 1980, vitiates the order.
Whether the grounds of detention cited are germane to the purpose of maintaining public order.
Whether the grounds of detention are vague or unintelligible.
Whether the failure to issue a Section 7 warrant affects the validity of the detention order.

Legislation cited

Code of Criminal Procedure, 1973s. 87, s. 88
National Security Act, 1980s. 3(2), s. 7

Subjects

preventive detentionNational Security Actdelay in executionArticle 32public orderjudicial reviewsubjective satisfactiongrounds of detention

Judgment

SHAFIQ AHMAD
A
v.
DISTRICT MAGISTRATE, MEERUT & ORS.

SEPTEMBER 6, 1989

B [SABYASACHI MUKHARJI AND B.C. RAY, JJ.]

National Security Act 1980-Section 3(2) Detention Order-
Validity of-Challenged. Delay occurred in executing the order of
detention-Whether vitiates the detention.

C In pursuance of an order of detention dated 15.4.1988, passed by
the District Magistrate, Meerut, the Petitioner, a bachelor and having
no property, was arrested on 2nd October 1988 and detained under
Section 3(2) of the National Security Act. The petitioner was supplied
with the grounds of detention enumerating therein the acts committed
by him on 2nd, 3rd and 4th April 1988 and on 9.4.88 and the provoca-
D live speeches made by him on the occasion of Shabberat a Muslim
festival to the effect that Hindus had deliberately ''sent their cow on the
road" and the "people are silent" alld about teaching ''them" a lessOn
and administration's failure to fix a long speaker in the mosque. These
acts and the speeches made by the petitioner, were, in the opinion of the
detaining authority, prejudidal to the maintenance of public order.
E The representation made by the petitioner ag~inst the order of deten-
tion was rejected and the order of his detention was confirmed.

. Thereupon, the petitioner has filed this Writ Petition under Arti-
cle 32 of the Constitution challenging his detention. The contentions of
the petitioner are that (i) that there was inordinate delay in arresting
F the petitioner which indicated that the order of detention was not based
on a bona fide and genuine belief that the action and conduct of the
petitioner were such that the same were prejudicial to the maintenance of
,public order and the so-called "grounds" were merely make-belief and
not genuine grounds; (ii) that the grounds were not germane to the
maintenance of "public order" and (iii) that the grounds were vague
G and unintelligible.

Allowing the Writ Petition, this Court,

HELD: Sub-section (2) of section 3 of the Act authorises the
Central Govemment or the State Government, if satisfied with respect
H to any person that with a view to preventing him from acting in any
56
SHAFIQ AHMED v. DISTI. MAGISTRATE MEERUT 57

manner prejudicial to the security of the state, it is found necessary,
A
then the person can be detained. Hence there must be conduct relevant
to the formation of the satisfaction having reasonable nexus with the
actions of the petitioner which are prejudicial to the maintenance of
public order. Existence of material relevant to the formation of satisfac-
tion and having rational nexus to the formation of the satisfaction that
because of certain conduct ''it is necessary'' to .!Dake an order ''detain-
ing" such person, are subjectto judicial review. [60H; 61A-BJ,

Delay, unexplained and not justified, by the circumstances and
the exigencies of the situation, is indicative of the fact that the
authorities concerned were not and could not have been satisfied that
"preventive custody" of the concerned person was necessary to prevent
him from acting in any manner prejudicial to the maintenance of public c
order. Whether there has been unreasonable delay, depends upon the
facts and circumstances of a particular situation. !61c-i>i

Satisfaction of the authorities based on conduct must precede
action for prevention. Satisfaction entails belief. Satisfaction and belief D
are subjective. Actions based on subjective satisfaction are· objective
indication of the existence of the Si!bJective satisfaction. Action based on
satisfaction should be with speed commensurate with the situation. [61E-F)

If in a situation the person concerned is not available or cannot be
served then the mere fact that the action under section 7 of the Act has E
not been taken, would not be a ground to say that the detention order
was bad. Failure to take action, even if there was no scope for action
under section 7 of the Act would not be decisive or determinative of the
question whether there was undue delay in .serving the Order of
detention. [62A-B]
F
J The Petitioner has no property, so no property could be attached
and as the Government's case is that he was not available for arrest, no
order under sec. 7 could have been pQssibly made. This, however, does
not salvage the situation. The fact is that from 15th April 1988 to 12th
May 1988, no attempt had been made to contact the Petitioner.
No explanation has been given for this. There is also no G
explanation why from 29th September 1988 to 2nd October 1988, no
attempt had been made. It is however stated that from May to
September 1988 the "entire police force" was extremely busy in con-
trolling the situation. Hence, if the law and order was threatened and
_prejudiced, it was not the conduct of the peti~ioner but because of "the
tnlidequacy" or "inability" of the police force of Meerut City to control H
58 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

A the situation. Therefore the fact is that there was delay. The further
fact is that the delay is unexplained or not warranted by the facts/
situation. To shift the blame for public order situation and raise
the bogey of the conduct of the petitioner would not be proof of
genuine or real belief about the conduct of the petitioner but only
raising a red herring. [62B-E]
B
The Court quashed the order of detention and directed the
petitioner to be set at liberty forthwith. [65B] ·

Nizamuddin v. The State of West Bengal, [1975] 2 SCR 593; '.
Bhawarlal Ganeshmalji v. State of Tamil Nadu & Anr., [1979] 2 SCR
C 633 at p. 638; Indradeo Mahato v. State of West Bengal, [19731 4
SCC 4; State of Gujarat v. Adam Kasam Bhaya, [1982] I SCR 740;
Subhash Bhandari v. Distt. Magistrate, Lucknow & Ors., [1987] 4 SCC
685 and Kanu Biswas v." State of West Bengal, [1973] l SCR 546,
referred to.

D CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 200 of 1989.

(Under Article 32 of the Constitution)

C. P. Mittal for the Petitioner.
E
Anil Dev Singh, Yogeshwar Prasad, Ms. Kitty Kumar Manga-
lam, Ms. A Subhashini, Anil Malik and D. Bhandari for the Res-
pondents.

The Judgment of the Court was delivered by
F
SABYASACHI MUKHARJI, J. This petition under Article 32 of
the Constitution challenges the detention of the petitioner-a .detenu,
under s. 3(2) of the National Security Act, 1980 (hereinafter called 'the
Act'). The petitioner is a bachelor. He does not own any property. The
order for detention under s. 3(2) of the Act was passed on April 15,
G 1988 by the District Magistrate, Meerut. In the grounds of detention it
is stated that on the night of 2/3rd April, 1988 which was an occasion of
"Shabberat" festival, a muslim festival, the religious celebration was
going l:>n at Guciri Chaupala. At about 11 p.rit. in the night on that day,
a cow belonging to the muslims of Ismail Nagar came from Sabun
Garan towards Chaupal Gudri and was going towards Ismail Nagar
fl and, according to the order of detention, 'some undesirable elements'
SHAFIQ AHMED v. DISTT. MAGISTRATE MEERUT [MUKHARJI, J.] 59

present there did not allow the cow to go on the right way and . she
A
again came towards Chaupala Gudri, and was made to run avoiding
the crowd towards Nakaar Chian but near the shop of Haj Dhola,
'some undesirable elements' stopped the cow and poked a wood piece
on her back. Due to this the cow started pumping and himping and ran
inside the celebration. It is stated that at this the petitioner came to the
stage, got excited and spread the rumour that "the police had not B
niade any arrangements". It was stated that the cow belonged to the
Hindus and had been deliberately sent inside the festival and "other

- provoking" things. Due to the aforesaid, the people started running
and communal feelings got around. It is stated in the order of deten-
tion that in this way the petitioner had committed an act which was
prejudicial to the maintenance of public order. Again on 9th April,
1988 at about 9 p.m. near Transformer at Gudri ChauJJala P.S. Kot-
c
wali, the petitioner is alleged to have "provoked some persons" of the
muslim community by saying that "the administration even now has
not allowed to get a loud speaker fixed here and all of you are silent,
get a loud speaker on the Mosque and we will see. I am with you." It is
also stated that the petitioner had also said that on the occasion of D
Shabberat these Hindus had deliberately "sent their cow on the road··
for their festive celebrations and the "people are silent". He had also
said about teaching "them" a lesson.

It was stated that due to the "aforesaid bad act'·, communal
feelings got aroused in the Meerut City and fear and terror got spread, E
and in this way the petitioner had do~e an act which was ··prejudicial
to maintenance of public law and order". In the aforesaid. it wa'
stated that for the reasons mentioned herein before, there was possibi-
lity of the petitioner doing such an act, and therefore in order to
restrain the petitioner from doing so, it is necessary to detain him.
Accordingly, the order was passed with consequential directions and F
'
.' information .

As mentioned hereinbefore, the alleged incidents were on
2/3/4th April, 1988 as well as 9th April, 1988. The order of detention
(hereinafter referred to 'the order') was made on 15th April, 1988.
The petitioner was arrested pursuant to the said order on 2nd October, G
1988. There was representation but the same was rejected and the
order of detention was confirmecl.

In this petition various grounds have been taken before this
Court challenging the order under Article 32 of the Cons.titution.
_.....__, Mr. C.P. Mittal, learned counsel for the petitioner, however, urged H
60 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

before us three grounds upon which he contended that the said order
.A be quashed or set aside. It was submitted by Mr. Mittal that there was
inordinate delay in arresting the petitioner pursuant to the order,
which indicated that the order was not based on a bona fide. and
genuine belief that the action or conduct of. the petitioner were such
that the same were prejudicial to the maintenance of public order and
that preventive detention of the petitioner was necessary for prevent-
ing him from such conduct. He further submitted that delay in the
circumstances of this case in arresting the petitioner and or in acting

a
pursuant to the order indicated that the "so-called grounds" were
merely make-belief and not genuine grounds upon which the satisfac-
tion of the authority concerned was based.

In answer to this contention, on behalf of the Dist!. Magistrate,
-
Meerut, by an affidavit affirmed on 28th August, 1989 and filed in
these proceedings, stated that raids on the petitioner's premises for the
service of the order dated 15.4, 1988 were conducted. It was further
stated that the respondent authorities had made all efforts to serve the
D order on the petitioner and for this purpose the house of the petitioner
was raided ·On several occasions and a reference was made to the
general diary report, details whereof were extracted in the affidavit.
The details indicate that in respect of the order dated 15.4.1988 the
first raid was made in the house of the petitioner on 12th May, 1988,
followed by eight other attempts up to the end of May, 1988 to arrest
FJ the petitioner but ··he was not available. There was, however, no
attempt in the months of June, July, August' 88 but on 23, 25 & 29th
September,· 1988 three attempts were made and as such, it was stated
on behalf of the respondents, the order could not be served before 2nd
October, 1988. According to the District Magistrate, the respondent
authorities did not leave any stone unturned to arrest the petitioner. It
F was, however, stated that from May, 1988 to September, 1988 the
entire police force of Meerut City was extremely busy iri:maintaining
law and order, but the petitioner was all along absconding in order to
avoid the service :of the order. The District Magistr!lte has further
stated that during the period from May to September, 1988 great com-
munal tensi.011 was prr.vailing in the Meerut City and a large number of
people were arrested on account thereof. The question that requires
consideration is, whether tliere was inordinary delay. The detention
under the Act is for the purpose of preventing person~ from acting in
any manner prejudicial to the maintenance of public· order. Sub-
section (2) of section 3 of the Act authorises the Central Govt. or the
State Govt., if satisfied with respect to any person that,with a view to
J-1 preventing him from acting in any mann.er prejudicial to the security of
SHAFIQ AHMED v. DJSTI. MAGISTRATE MEERUT [MUKHARJJ, J.] 61

the State, it is found necessary then the perspn can be detained.
A
Hence, there must be conduct relevant to the formation of the satis-
faction having _reasonable nexus with the action of the petitioner which
are prejudicial to the maintenance of public order. Existence of mate-
rials relevant to the formation of the satisfaction and having rational
nexus to the formation of the satisfaction that because of certain con-
duct "it is necessary" to make an order "detaining" such person, are B
subject to judicial review. Counsel for the petitioner conte!lds that in
the aforesaid facts and the circumstances if the conduct of the
petitioner was such that it required preventive detention, not any puni-
tive action, for the purpose of "preventing" the person concerned
from doing things or indulging in activities which will jeopardise,
· hamper or affect maintenance of public order then there must be
!lCtion in pursuance of the :>rder of detention with promptitude. Delay,
c
unexplained and not justified, by the circumstances and the exigencies
of the situation, is indicative of the fact that the authorities _concerned
were·not or could not have been satisfied that "preventive custody" of
the person concerned was necassary to prevent him from acting in any
manner prejudicial to the maintenance of public order. Whether there D
has been unreasonable delay, depends upon the facts and the circums-
tances of a Particular situation. Preventive detention is a sefious
inroad into the freedom of individuals. Reasons, purposes and .the
manner of such. detention must, therefore, be subject to closest
scrutiny and examination by the courts. In the interest of public order,
for the greater good of the community, it becomes imperative for the E
society to detain a person in order to prevent him and not merely to
punish ,him from the threatened or contemplated or .anticipated course
of .action. Satisfaction of the authorities based on conduct must pre-
cede action for prevention. Satisfaction entails belief. Satisfaction and
belief are subjective. Actions based on subjective satis!action are
objective indication of the existence of the subjective satisfaction. F
Action based on satisfaction should be with speed commensurate with
. " the situation. Counsel for the petitioner submitted that in this case
there was no material adduced on behalf of the Govt. indicating that
the petitfoner was "absconding". It was urged that there are no mate-
rial at all to indicate that the petitioner was evading arrest or was
absconding. It was submitted that s. 7 of the Act gave power to the G
authorities to take action in case the persons were absconding and in
case the order of detention cannot be executed. It is stated that in this
case no warrant under s. 7 of the Act has been issued in respect of his
properiy or person. Hence, it was contended that the.respondent was
not justified in raising the plea that the petitioner was absconding. We
?.re, however'· unable to accept this contention. If in a situation the H
62 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

person concerned is not available or cannot be served then the mere
A fact that the action under s. 7 of the Act has not been taken, would not
be a ground to say that the detention order was bad. Failure to take
action, even if there was no scope for action under s. 7 of the Act,
would not be decisive or determinative of the question whether there
was undue delay in serving the order of detention. Furthermore, in the
B facts of this case, as has been contended by the Government, the
petitioner has no property, no property could be attached and as the
Govt. 's case is that he was not available for arrest, no order under s. 7
could have been possibly made. This, however, does not salvage the
situation. The fact is that from 15th April, 1988 to 12th May, 1988 no
attempt had been made to contact or arrest the petitioner. No explana-
C tion has been given for this. There is also no explanation why from
29th September, 1988 to 2nd October, 1988 no attempt had been
made. It is, however, stated that from May to September, 1988 the
'entire police force' was extremely busy in controlling the situation.
Hence, if the law and order was threatened and prejudiced, it was not
the conduct of tne petitioner but because of 'the inadequacy' or 'inabi-
D lily of the police force of Meerut City to control the situation. There-
fore, the fact is that there was delay. The further fact is that the delay
is unexplained or not warranted by the facts situation. ·

To shift the blame for public order situation and raise the bogey
of the conduct of the petitioner would not be proof of genuine or real
E belief about the conduct of the petitioner but only raising a red her-
ring. This question was examined by this Court in Nizamuddin v. The
State of West Bengal, [1975] 2 SCR 593. The question involved therein
was under s. 3(2) of the Internal Security Act, 1971. There was delay
of about two and a half months in detaining the petitioner pursuant to
the order of detention and the Court considered that unless the delay
F was satisfactorily explained, it would throw considerable doubt on rtie
genuineness of the subjective satisfaction of the Dist!. Magistrate
recited in the order of detention. Mr. Justice Bhagwati, as the learned
Chief Justice then was, speaking for the Court observed at page 595 of
the report that it will be reasonable to assume that if the Dist!. Magis-
trate was really and genuinely satisfied after proper application of
G mind to the materials before him that it was necessary to detain the·
petitioner with a view to preventing him from acting ,in a prejudicial
manner, he would have acted with greater promptitude in securing the
arrest of the petitioner immediately after invoking of the order of
detention, and the petitioner would not have been allowed to remain
at large for such a long period of time to carry on his nefarious.
H activities. It is, however, not the law that whenever there is some delay
SHAFIQ AHMED v. DJSTI. MAGISTRATE MEERUT IMUKHARJJ, J.] 63

in arresting the subjective satisfaction of the detaining authority must
be held to be not genuine or colourable. Each case must depend on its A
own peculiar facts and circumstances. In this case, from the facts and
the circumstances set out hereinbefore we find no reasonable or
acceptable explanation for the delay. In a situation of communal ten-
sion prompt action is imperative. It is, therefore, not possible for this
Court to be satisfied that the District Magistrate had applied his mind B
and arrived at "real" and •:genuine" subjective satisfaction that it was
necessary to detain the petitioner to "prevent" him from wrong doing. ·
The condition precedent, therefore, was not present. But as Justice
Chinnappa Reddy explained in Bhawarlal Ganeshmalji v. State of
Tamil Nadu & Anr., [1979] 2 SCR 633 at page 638 that there must be
'live and proximate link' between the grounds of detention alleged by
the detaining authority and the avowed purpose of detention, and in C
appropriate cases it is possible to assume that the link is 'snapped' if
there is a long and unexplained delay between the date of the order of
detention and the arrest of the detenu. Mr Yogeshwar Prasad, learned
counsel for the State of U .P. drew our attention to the decision of this
Court in Indradeo Mahato v. State of West Bengal, [1973] 4 SCC 4. D
That was also a case of arrest under the Maintenance of Internal Secur-
.. ity Act, 1971. It was urged in that case that there was no real or
genuine apprehension that the petitioner there was likely to act in a
manner prejudicial to the maintenance.of public order. This. Court in
the facts of that case, was unable to accept the said contention. The
Court held that mere failure to take recourse to ss. 87 & 88 of the E
Criminal Procedure Code would be a warrant to believe that the delay
was unreasonable. Whether the delay was unreasonable depends on
the facts and the circumstances of each case. We are satisfied, in view
of the facts and circumstances of the case mentioned before, that by
the conduct of the respondent authorities, there. was undue delay,
delay not commensurate with the facts situation in this case. the con- F
-· duct as aforesaid betrayed that there was no real and genuine
apprehension that the petitioner was likely to act in any manner pre-
judicial to public order. The order, therefore, is bad and must go.

The next ground urged in support of this application was that the
grounds mentioned were not germane to maintenance of 'public G
order'. It was submitted that the petitioner has only alleged ineffi-
ciency or incompetency of the police either in providing a loud speaker
or in ensuring that the cows do not enter into or within the arena of
muslim festivals. It was submitted that the criticism of the administra-
tion is not endangering public order. Mr. Mittal submitted that it was
not a question of law and order but public order that is important in H
64 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

this case. What the petitioner has alleged to have done may have some
A
relevancy to the purpose of securing law and order but there cannot be
any rational nexus with the satisfaction regarding the maintenancy of
public order. By the conduct alleged or the saying attributed as
mentioned above, public order was not prejudiced. Criticism of Police
does not prejudice public order, it is said. The Court has to ensure that
B the order of detention is based on materials before it. If it is found that
the order passed by the detaining authority was on materials on
record, the Court can examine the record only for the purpose of
seeing whether the order of detention was based on no material or
whether the materials have rational nexus with satisfaction that public
order was prejudiced. Beyond this, the Court is not c_oncerned. See the
observations of The State of Gujarat v. Adam Kasam Bhaya, [1982] 1
c SCR 740. The difference between public order and law and order is a
matter of degree. If the morale of the police force or of the people is
shaken by making them lose their faith in the law enforcing machinery
of the State then prejudice is occasioned to maintenance of public
order. Such attempts or actions which undermine the public faith in
D the police administration at a time when tensions are high, affects
maintenance of public order and as such such conduct is prejudicial.
See in this connection Indradeo Mahato's case (supra), Subhash
Bhandari v. Distt. Magistrate, Lucknow & Ors., [1987] 4 SCC 685 and
Kanu Bi;swas v. State of West Bengal, [1973] I SCR 546. Therefore, we
are unable to accept the contention that the grounds were not relevant
E for the order of detention under the Act. This contention of Mr. Mittal
must, therefore, fail.

The last contention was that the grounds mentioned were vague
and unintelligible. It was not stated, it was urged, that as to what the
petitioner said, to whom the rumour was spread as mentio_ned in
F ground No. 1 and what "other provoking things" the petitioner is
alleged to have said as alleged in the grounds mentioned before. It was ·-
urged; it is further not clear as to whom the petitioner wanted to teach
a lesson. It has to be borne in mind that if more than one grounds are
stated in the grounds then the fact that one of the grounds is bad,
would not alter order of detention after the amendment of the Act in
G 1984 provided the other grounds were valid. But quite apart from the
same, it appears to us that none of the grounds were vague. The
grounds must be understood in the light of the background and the
context of the facts. It was quite clear what the detaining authorities
were trying to convey was that the petitioner stated things of the
nature and it was to teach Hindus a lesson. Hence, it was meant to -~
H create communal tension. We find no irrelevancy or vagueness in the
SHAFIQ AHMED v. DISTI. MAGISTRATE MEERUT [MUKHARJI, JJ 65
-·
grounds. On this ground the challenge cannot be sustained. A

However, in the view taken by us on the first ground the order of
detention must be quashed and set aside. We order accordingly. Let
the_ petitioner be set at liberty forthwith unless he is required for any
other offence under any other Act. The application is disposed of
accordingly. · B

Y.Lal Petition allowed .

..

_,