S. K. SHARMA, J. - (1.) GRIEVANCE of the petitioner in this writ petition is that his detention under the National Security Act 1980 (for short NSA) was wrongful and the impugned orders of the District Magistrate Sikar and the State of Rajasthan deserve to be set aside.
(2.) CONTEXTUAL facts depict that on June 21, 2003 the District Magistrate Sikar passed an order under Section 3 of the NSA for detention of the petitioner on the ground that the petitioner was found involved in various criminal activities which were prejudicial to the security of the State and the Public. It was stated in the order that the petitioner was History Sheeter and involved in as many as 21 criminal cases. After examining the record the District Magistrate arrived at the subjective satisfaction that the activities of the petitioner were opposed to the public order and created panic and fear in the minds of general public. On June 28, 2003 the State of Rajasthan approved the order of detention of the petitioner. The Advisory Board confirmed the order of detention on July 21, 2003. The State of Rajasthan issued order of approval of detention on August 7, 2003 and directed to detain the petitioner for one year i. e. from June 19, 2003 to June 18, 2004. The petitioner has assailed his detention on the following grounds:- (i) Fundamental rights guaranteed under Article 22 of the Constitution has been grossly violated since the grounds of detention were never communicated to the petitioner and no earliest opportunity was afforded to him for making a representation. (ii) There was manifest non-compliance of Section 8 of the NSA. (iii) The State of Rajasthan had not given any finding or reasons of its satisfaction for detention of the petitioner. (iv) The order of detention of petitioner for one year from June 19, 2003 to June 18, 2004 was passed in violation of proviso to Section 3 (3) of the NSA. In the written statement the respondents supported the detention of the petitioner and contended that provisions contained in Sections 3 & 8 of NSA were rightly followed. The grounds of detention along with relevant documents were sent to the District Jail, Jhunjhunu on June 21, 2003 but since the petitioner had been transferred to Central Jail, Jaipur, the documents were received back and supplied to the petitioner without delay. The State of Rajasthan after through examination of the material approved the detention order and the petitioner was informed about his right of making representation. The Advisory Board on July 21, 2003 confirmed the detention order in the presence of the petitioner. On August 7, 2003 the detention order was confirmed after examining the relevant record. In order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, the petitioner was kept in detention under NSA and no fundamental right under Article 22 (5) of the constitution was infringed. Before adverting to the rival submissions we deem it appropriate to have a close look at the relevant statutory provisions of the NSA. Section 3 of the NSA provides as under:- " 3. Power to make orders detaining certain persons.- (1) The Central Government or the State Government may,- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India. It is necessary so to do, make an order directing that such person be detained. (2) 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 security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation.-For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplied and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2) exercise the powers conferred by the said sub- section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime it has been approved by the State Government: Provided that where under Section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted. (5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government have a bearing on the necessity for the order. " From the above provisions it appears that NSA confers extraordinary powers on the Executive to detain a person without recourse to the ordinary law of land and to trial by courts with a view to prevent such person from acting in any manner prejudicial to public order. If the authority is satisfied that in view of the past conduct of the person there is need for detention than it could not be said that the order of detention is not justified.
(3.) A look at Section 8 of the NSA demonstrates that when a person is detained in pursuance of a detention order the authority making the order shall as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Section 8 of NSA was taken into consideration by the Constitution Bench of Supreme Court in A. K. Roi vs. Union of India and Anr. (1), and it was indicated in para 76 thus:- " The normal rule is that the grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily, and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by Sec. 8 (1) to record its reasons in writing. " On a close scrutiny of the record placed for our perusal we find that immediately after passing the order under Section 3 (2) of NSA on June 21, 2003 the District Magistrate Sikar forwarded the relevant papers to S. P. Sikar for handing them over to the petitioner but since the petitioner was transferred from District Jail Jhunjhunu to Central Jail, Jaipur, the grounds of detention along with the relevant 21 documents could be supplied to the petitioner on June 24, 2003 at Central Jail Jaipur. It also appears that the District Magistrate Sikar vide letter dated June 24, 2003 informed the petitioner that he was entitled to submit representation against the detention order. It was also stated in the letter that since the petitioner was transferred from Jhunjhunu to Jaipur therefore the grounds of detention and documents were supplied to him after five days. District Magistrate vide letter dated June 26, 2003 informed to the Home Secretary about detention of the petitioner and the State of Rajasthan vide order dated June 28, 2003 approved the detention after being satisfied about the grounds of detention. It may also be noticed that the Advisory Board on July 21, 2003, in the presence of the petitioner, confirmed the detention order passed by the State Government. Thereafter vide order dated August 7, 2003 the State Government directed to detain the petitioner for one year from June 19, 2003 to June 18, 2004. ;