- (1.) This order will decide 13 Habeas Corpus Petitions Numbers 831, 909, 919, 920, 921, 922, 923, 924, 925, 966, 1030, 1037 and 1177 of 1987 filed respectively by Talib Khan, Gazi Khan, Gulsher, Meette Khan, Haleem Khan, Sawan Khan, Kande Khan, Achar Khan, Allahrakhia, Jumme Khan, Rahim, Lakhe Khan and Govind Lal in this Court against their detention under 13 separate detention orders, all passed by the District Magistrate, Jaisalmer, on Jan. 7,1987 under S. 3(2) of the National Security Act, 1980 (for short, hereinafter, 'the Act'), in the Central Jail, Jodhpur, as common questions of law and facts are involved in them.
(2.) In all these 13 Habeas Corpus petitions, the arguments advanced by the learned counsel for the respective petitioners revolved around following points :- (i) In all these cases, all the 13 detenus were served detention orders Annexure 1 on the same day i.e. Jan. 7, 1987 and they were detained on that very day. The order of detention Annexure 1 in all these cases, mentions that the District Magistrate was satisfied with respect to the petitioner in each case that with a view to prevent him from acting in any manner prejudicial to the security of the State, it was necessary to detain him and, accordingly, the District Magistrate directed that each of these 13 petitioners be detained under sub-sec.(2) of S.3 of the Act. Although all these detenus were detained under sub-sec.(2) of S.3 of the Act on Jan. 7, 1987, but they were not served with the grounds of detention within five days as provided for in sub-s. (1) of S. 8 of the Act and, thus the grounds of detention were not communicating to them within the statutory period and the earliest opportunity of making a representation against the orders of detention and their continued detention was not afforded to them. No exceptional circumstances existed and no reasons were recorded and communicated to the petitioners for non-communication to them of the grounds on which the orders for their detention had been made before Jan. 16, 1987. Thus, the petitioners were deprived of the earliest opportunity of making a representation against their detention orders to the State Govt. It was on 10th day of the date of detention that the petitioners were communicated by the respondent 2 of the grounds on which the orders for their detention had been made but without there being exceptional circumstances and without recording and communicating the reasons for delay in not communicating the grounds of detention to the detenu within 5 days for their detention; (ii) The District Magistrate Jaisalmer by virtue of the direction given or delegation made to him under sub-sec.(3) of S.3 by the State Govt. was only empowered to pass, orders of detention for the limited purpose for preventing any person from acting in any manner prejudicial to the maintenance of public order and not for any other purpose. The reason argued was that while making the direction or delegation, the State Govt. recorded its satisfaction that with a view to prevent any person from acting in any manner prejudicial to the maintenance of public order that it was necessary to direct that during the period from Dec. 3, 1986 to Feb. 28, 1987, all the District Magistrates of 27 Districts in Rajasthan, if satisfied as provided in sub-sec. (2) of S. 3, exercise the powers conferred by the said sub-section. Respondent No. 2 could not, therefore, detain any person except on his satisfaction that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him. However, in all these 12 cases, the detention order Annexure 1 specifies that the respondent No, 2 had made orders directing detention of the detenus after being satisfied that with a view to preventing them from acting in any manner prejudicial to the security of the State that it was necessary to detain them; (iii) The grounds and the basic facts and materials which influenced the respondent 2 in making the orders of detention, were non-existent, too remote, stale and without basis. There was no proper application of mind and the detention orders were passed mechanically. In most of the grounds communicated by the respondent 2 to the detenus, either the police itself had given the final reports or the detenus had been acquitted after trial by the criminal courts. Even alleged incidents, which are 15 years old, have been included in the grounds. The ground of espionage was very vague and lacked essential particulars and was non-existent; (iv) The detenus did not know Hindi or English language and the grounds of detention have not been supplied to them in local or Rajasthani language and they have been deprived opportunity of making effective representation; and (v) The orders of detention have been passed by the respondent 2 mala fide because he had given a press statement that he wanted to give a New Year's gift to the State by way of detention of 35 persons on one single day under the National Security Act, 1980. The satisfaction recorded was only to achieve praise from the State Govt. and despite the fact that satisfaction was based on remote, non-existent, stale and vague grounds.
(3.) In all these cases, respondent No. 2 has filed his counter-affidavits in reply to the petitions. Respondent 2 in his counter-affidavit, has admitted that the detenus were detained on January, 7,1987 and the grounds of detention were not served on them within 5 days of making the order but were served on 10th day i.e. Jan. 16, 1987. He has sworn that there was heavy volume of work as papers concerning 35 detenus were to be photostated. The photostat machine at Jaisalmer was hand operated and the dealer was not in a position to give the photostat copies in time. Consequently, the papers were taken to Jodhpur for getting the photostat copies. At Jodhpur also, owing to power failure and heavy volume of work, it took a lot of time to get the papers photostated. He has denied that the grounds, communicated to the detenus for their detention were vague, non-existent, irrelevant or remote. It is stated that grounds of detention and copies of the documents served on the detenus go to show that respondent No. 2 passed the order of detention on the (basis of adequate material available before him after due application of mind. The confidential reports submitted by various intelligence agencies were withheld under sub-sec. (2) of S. 8 of the Act. According to respondent 2, the detenus cannot question his right to claim privilege under sub-sec. (2) of S. 8 of the Act and the sufficiency of the grounds on which the privilege has been claimed. He passed the detention orders after considering the documents placed before him and drew reasonable inferences that the activities of the detenus were, prejudicial to the interest of the security of the State and public order. According to respondent 2, the detenus knew Hindi. They never made a request to him that they neither knew Hindi nor English and as such, there was no question of supplying the grounds of detention to the detenus in local or Rajasthan language.;