- (1.) G. P. Mathur, J. An order of deten tion under Section 3 (2) of National Security Act (hereinafter referred to as the Act) was passed against the petitioner on 20-3-1985 by the District Magistrate, Allahabad. Before the order could be executed the present writ petition was filed on 30-4-1985 praying that a writ in the nature of man damus be issued directing the respondents to refrain from taking any action against the petitioner on the basis of the aforesaid order and further to direct that the respondents should not proceed to arrest or detain him.
(2.) A copy of the detention order, dated 20-3-1985 and also the grounds of detention have been filed along with the supplemen tary counter-affidavit of Sri P. K. Pandey Addl. City Magistrate Allahabad which was filed in pursuance of the order dated 30-7-1991 passed by this Court. The order recites that the District Magistrate was satisfied that with a view to preventing the petitioner Ram Chandra Misra alias Lal Sahab from acting in any manner prejudicial to the maintenance of public order it was neces sary to make an order directing that he be detained under Section 3 (2) of the Act. The grounds of detention mention about three criminal cases in which the petitioner was involved. It is alleged that at about 7. 30 p. m. on 27-11-1984 the petitioner along with his companions came to Saidabad on a Jeep and resorted to firing in which Deomani was injured and Brijesh Kumar was killed and the body of the la tier was also taken away on the Jeep. A case was registered as crime No. 288 of 1984 under Sections 147, 148, 149, 302, 307 and 201, I. P. C. at P. S. Handia in which after investigation chargesheet has been submitted in court. The second ground is that on 5-3-1985 when the election for Legislative Assembly was going on the petitioner along with his companions fired upon a candidate Rakesh Dhar Tripathi at a polling station in which Ram Sajiwan was killed on the spot. The body of Ram Sajiwan was then placed inside a thatched hut which was set on fire. Due to the terror the polling parties ran away from the polling Station and the process of election was stopped. A case was registered as Crime No. 24-A of 1985 under Sections 147,148,149,302,201, 435,436, 307 and 404,i. P. C. at P. S. Utraon and after investigation chafgesheet has been submitted in court. The third ground is that on 6-3-1985 repelling had to be done in eightpolling stations in Handia constituen cy. The petitioner along with his com panions kept big and heavy logs of timber on the tri-junction of Sirsa-Saidabad road and G. T. Road, due to which the traffic on the road was completely stopped and the poll ing parties which had to reach the polling station could not do so. A case was then registered as crime No. 49 of 1985 under Sections 143,144,146, and 341,i. P. C. at P. S. Handia in which after investigation char gesheet has been submitted. The order passed by the District Magistrate was ap proved by the State Government under Sec tion 3 (4) of the Act on 28- 3-1985 (Annexure S. C. A. 3): It may be mentioned here that the writ petition was filed on 30-4-1985 even before the detention order had been ex ecuted or the grounds of detention were served upon the petitioner. Sri D. S. Misra, learned counsel for the petitioner has referred to three decisions of our court namely, Simmi v. State of U. P. , 1985 A. L. J. 598, Writ Petition No. 6672 of 1982 (Ram Kumar v. State of U. P) decided on 2-1-1986 and Writ Petition No. 1241 of 1987 (Mohd. Hashim v. State of U. P.) decided by a Full Bench on 20-7- 1990 wherein the extent and scope of power of interference while exer cising jurisdiction under Article 226 of the Constitution at pre-execution stage has been considered. In my opinion, it is not necessary to refer to the decisions of this court as the precise question has been con sidered thread bare by the Supreme Court in Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, 1991 (1) JT 549 and after dealing with the matter exhaustively, the court ruled as follows: ". . . . . . . . . The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz, where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary power of judicial review to interfere with the detention order prior to their execution on any other grounds does not amount to the abandon ment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. " The decision has been subsequently followed in N. K. Bapna v. Union of India, 1992 (4) J. T 49; State of Tamilnadu v. P. K. Shamsuddin, 1992 (4) JT 179 and Subhash Muljimal Gandhi v. L. Himingliana 1994 (6) SCC 14. Thus the power under Article 226 of the Constitution can be exercised at the pre-execution stage on very limited grounds enumerated by the Apex Court and not on all the grounds which are available after the detention order has been served and the person has been taken into custody. It is not the case of the petitioner that the detention order has not been passed under National Security Act or that the Dis trict Magistrate who passed the order of the State Government which approved it had no authority to do so or that the impugned order had not been passed against him and it is sought to be executed against a wrong person. It is also not the case of the petitioner that the impugned order is passed on vague, extraneous and irrelevant grounds. The only ground urged is that the detention order has been passed for a wrong purposes. It is urged that though the deten tion order was passed on 20-3-1985 but the arrest of the petitioner was stayed on 28-8-1985 and as the detention order had not been executed over five months it showed that the same was passed for a wrong pur pose.
(3.) THE main question which requires consideration is that if there is delay m ex ecuting the detention order, can it be held that the same had been passed for a wrong purpose. THE dictionary meaning of the word 'purpose' is a result which it is desired to obtain and is kept in mind in performing an action. Section 3 (2) of the Act provides that the Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. THE im pugned detention, order dated 20-3-1985 recites that the District Magistrate was satisfied that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order it was necessary to detain him under Section 3 (2) of the Act. THE grounds of detention show that the petitioner resorted to firing upon a candidate at a polling sta tion in which one person was killed and his body was set on fire due to which terror spread in the area and the polling parties ran away resulting in the election process being stopped. THE third ground shows that the petitioner blocked the main road due to which the government officials and other could not reach the polling station to per form their duty in connection with the repoll. THEse grounds show in unmistakable terms that the petitioner was acting in a manner prejudicial to the maintenance of public order. THE first ground which related to the firing done by the petitioner and his companions in which one person died and one was injured in Saidabad town and the body of the deceased was taken away could also lead to disturbance of public order. Thus there was sufficient material with the District Magistrate on which he could arrive at a satisfaction that with a view to prevent ing the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him, and he could very well pass a detention order under Section 3 (2) of the Act. THErefore it cannot be held that the order has been passed for a wrong purpose. The contention that if there is delay in execution of a detention order the same would be for a wrong purpose is, in my opinion, wholly fallacious. The effect of delay in executing a detention order was considered in Sheikh Serajul v. State of West Bengal, 1975 Vol. II SCC 78 and it was held as follows: There was delay, both at the stage of pass ing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuine ness of the subjective satisfaction of the detaining Magistrate recited in the order of detention. It would be reasonable to assume that if the detain ing Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. " In Sheikh Nizamuddin v. State of West Bengal AIR 1974 SC 2353 there was no satisfactory explanation for delay in arrest ing the detenu. The habeas corpus petition was allowed with the observation that it could not be held that the District Magistrate applied his mind and arrived at a real and genuine satisfaction that it was necessary to detain the petitioner. Thus where there is delay in executing the deten tion order it is the subjective satisfaction of the detaining authority which gets vitiated rendering the detention order invalid. The delay cannot lead to the inference that the detention order has been passed for a wrong purpose.;