# A >- BINOD SINGH v. DISTRICT MAGISTRATE DHA_NBAD BIHAR & OTHERS

- **Citation:** [1986] 3 S.C.R. 905
- **Court:** Supreme Court of India
- **Decided:** 1986-09-26
- **Case number:** Criminal Appeal No. 317of1986
- **Bench:** R.S. Pathak, Sabyasachi, Mukharji
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-binod-singh-v-district-magistrate-dha-nbad-bihar-others-9305
- **Pages:** 8

## Headnote

National Security Act, s. 3(2)-Detention Order passed-Detenu
.~·r
already in custody in respect of criminal charge before actual service of
c
detention order-Detention Order held invalid.
I
The respondent passed an order of detention in respect of the
appellant under s. 3(2) of the Natfonal Security Act 1980, on the ground
~ that the appellant's activities were prejudicial to the maintenance of
public order. Several criminal cases were pending against the appellant
D
when the aforesaid order was passed. The appellant had already surrendered in respect of a criminal charge against him before the order
was served. He filed a writ petition in the High Court challenging the
detention order, but it was dismissed without any speaking order.
Aggrieved by the order of the High Court, the appellant filed the . E
~
present criminal appeal by special leave as also a writ petition challenging the aforesaid order of detention on the ground that the order of
preventive detention could only be justified against a person in detenlion if the detaining authority was satisfied that his release from deten-
-
lion was imminent and the order of detention was necessary for putting
)
him back in jail. The service of order of detention on the appellant/
F
petitioner while he was in jail was futile and useless since such an order
/
had no application under s. 3(2) of the Act.
-{
Allowing the writ petition and the appeal in part,
..
HELD: 1. The continued detention of the detenu under the Act is
G
not jμstified. The order of detention therefore is set aside. However,
this will not affect detenu's detention under the criminal cases. If however, the detenu is released on bail in the criminal cases already pending
against him, the matter of service of the detention order under the Act
1f
may be reconsidered by the appropriate authority in accordance with
law. [912E-F]
H
905
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E
F
G
906
SUPREME COURT REPORTS
[1986] 3 S.C.R.
2. In our constitntional framework, the power of directing pre-
...._,
ventive detention given to the appropriate authorities must be exercised
in exceptional cases as contemplated by the various provisions of the
different statutes dealing with preventive detention and should be used
with great deal of circumspection. There must be awareness of the facts
necessitating preventive custody of a person for social defence. If a man
is in custody and there is no imminent possibility of his being released,
the power of preventive detention should not be exercised. [91 IF-GI
In the instant case, when the actual order of detention was served
upon the detenu the detenu was in jail. There is no indication that this
factor or the question that the said detenu might be released or that there
was such a possibility of his release was taken into consideration by the
detaining authority properly and seriously before the service of the
order. If there were cogent materials for thinking that the detenu might be
released, then these should have been made apparent. In the affidavits on
behalf of the detaining authority though there are indications that transfer of detenu from one prison to another was considered but the need to
serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of relevant factors. If
that is the position then however disreputable the antecedents of a person
might have been, without consideration of all the aforesaid relevant
factors, the detenu could not have heeu put into preventive custody.
.
~-
~-.
I
.')--
Therefore, though the order of preventive detention when it was passed
)-·
was not invalid, and on relevant considerations the service of the order
was not on proper consideration. The order ~f detention is, therefore set
aside. [911G-H; 912A-D]
Ramesh war Shaw v. District Magistrate, Burdwan & Anr., [ 1964] 4
SCR 921 and Ramesh Yadav v. District .Magistrate Etc. and Others,
[1985] 4SCC 232, relied upon.
/
1.

## Text

-A
>-
BINOD SINGH
v.
DISTRICT MAGISTRATE DHA_NBAD BIHAR & OTHERS
B
SEPTEMBER 26, 1986 .
·~
[R.S. PATHAK AND SABYASACHI,MUKHARJI, JJ.]
National Security Act, s. 3(2)-Detention Order passed-Detenu
.~·r
already in custody in respect of criminal charge before actual service of
c
detention order-Detention Order held invalid.
I
The respondent passed an order of detention in respect of the
appellant under s. 3(2) of the Natfonal Security Act 1980, on the ground
~ that the appellant's activities were prejudicial to the maintenance of
public order. Several criminal cases were pending against the appellant
D
when the aforesaid order was passed. The appellant had already surrendered in respect of a criminal charge against him before the order
was served. He filed a writ petition in the High Court challenging the
detention order, but it was dismissed without any speaking order.
Aggrieved by the order of the High Court, the appellant filed the . E
~
present criminal appeal by special leave as also a writ petition challenging the aforesaid order of detention on the ground that the order of
preventive detention could only be justified against a person in detenlion if the detaining authority was satisfied that his release from deten-
-
lion was imminent and the order of detention was necessary for putting
)
him back in jail. The service of order of detention on the appellant/
F
petitioner while he was in jail was futile and useless since such an order
/
had no application under s. 3(2) of the Act.
-{
Allowing the writ petition and the appeal in part,
..
HELD: 1. The continued detention of the detenu under the Act is
G
not jμstified. The order of detention therefore is set aside. However,
this will not affect detenu's detention under the criminal cases. If however, the detenu is released on bail in the criminal cases already pending
against him, the matter of service of the detention order under the Act
1f
may be reconsidered by the appropriate authority in accordance with
law. [912E-F]
H
905
A
B
c
D
E
F
G
906
SUPREME COURT REPORTS
[1986] 3 S.C.R.
2. In our constitntional framework, the power of directing pre-
...._,
ventive detention given to the appropriate authorities must be exercised
in exceptional cases as contemplated by the various provisions of the
different statutes dealing with preventive detention and should be used
with great deal of circumspection. There must be awareness of the facts
necessitating preventive custody of a person for social defence. If a man
is in custody and there is no imminent possibility of his being released,
the power of preventive detention should not be exercised. [91 IF-GI
In the instant case, when the actual order of detention was served
upon the detenu the detenu was in jail. There is no indication that this
factor or the question that the said detenu might be released or that there
was such a possibility of his release was taken into consideration by the
detaining authority properly and seriously before the service of the
order. If there were cogent materials for thinking that the detenu might be
released, then these should have been made apparent. In the affidavits on
behalf of the detaining authority though there are indications that transfer of detenu from one prison to another was considered but the need to
serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of relevant factors. If
that is the position then however disreputable the antecedents of a person
might have been, without consideration of all the aforesaid relevant
factors, the detenu could not have heeu put into preventive custody.
.
~-
~-.
I
.')--
Therefore, though the order of preventive detention when it was passed
)-·
was not invalid, and on relevant considerations the service of the order
was not on proper consideration. The order ~f detention is, therefore set
aside. [911G-H; 912A-D]
Ramesh war Shaw v. District Magistrate, Burdwan & Anr., [ 1964] 4
SCR 921 and Ramesh Yadav v. District .Magistrate Etc. and Others,
[1985] 4SCC 232, relied upon.
/
1.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 317of1986
}-
From the Judgment and Order dated 27.2.1986 of the Patna High
Court in C.W.J.C. No. 33 of 1986.
With
W.P. (Criminal) No. 316of 1986.
R.K. Garg and Miss Rani Jethmalani for the Appellant/Peli-
~
· tioner.
H
D. Goburdhan for the Respondents.
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BINOD SINGH v. DISTT. MAGISTRATE [MUKHARJI, J.l
907
The Judgmeut of the Court was delivered by
SABYASACHI MUKHARJI, J. Criminal Appeal No. 317 of
1986 arises out of the judgment and order of the High Court of Patna
and the Writ Petition No. 316 is in respect of the same detenu. Both
these challenge the order of detention dated 2nd January, 1986 passed
by the respondent no. I. The District Magistrate Dhanbad in respect
of the petitioner under section 3(2) of the National Security Act,
1980, hereinafter called the 'Act' on the ground that the petitioner's
activities were prejudicial to the maintenance of public order. Several
criminal cases had been filed against the petitioner between 3rd
January, 1983 to 18th February, 1985. On or about 2nd January, 1985
the order of detention was passed on an incident relating to}he exchange of fire between two rival groups. The order states the grounds as
follows:
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I. On 24.12.1985, between 10 and 10.30. A.M. the subject
alongwith Ramashish Bangali, Gulam, Rambriksha armed
with Rifle, gun etc. came in Car No. BHG-9372 on Katras
D
Coal Dump and started indiscriminate firing to kill
Birendra Pratap Singh a rival of his calendestine business
of coal to establish his criminal superiority in full#iew of
the shopkeepers customers and passers by of the area.
Birendra Pratap Singh and his associates \\>ho were there
also returned the firing in same manner. As a result of this
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firing one innocent namely Brahamdeo Mishra was killed.
The exchange of indiscriminate firing in the main market
area ·of Katras created great panic and alarm iri the area.
The normal tempo of life was completely disturbed. The
people started running helter and skelter for their lives.
Shopkeepers put down their shutters. Doors and windows
F
were closed. The vehicular traffic came to halt. This refers to
Katras P.S. Case No. 331/85 dated 24.12.85 u/s 149/307/326
JPC/27 Arms Act.
Besides the aforesaid ground the following cases are
also referred hereunder as background to show the crimiG
nality of the subject.
!. KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s 147,
341/353/307 LP .C.
In this case subject and his associates tried to set free
H
908
SUPREME COURT REPORTS
[1986) 3 S.C.R.
A
the trucks and driver from the police custody by force and
.--(
when he failed in his attempt he threatened the police officer and CISF Personnel to do away with their lives, C.S.
No. 5/83 has already been submitted in this case.
B
2. Ka!ras P.S. Case No. 303/83 u/s 147 /148/452/323 IPC.
........
In this case subject and his associates went to the
-~t'
tailoring shop of Saukat Ansari and asked him to keep his
•
cloths ready by 9.10.83 and on his refusal, he assaulted him
. \
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in presence of customers and others C.S. No. 196/83 has
already been submitted in this case.
3. Jogta P.S. Case No. 22/84 dated 11.3.84 u/s 147/148,
")'
307/326/353/333/324/325 LP.C,/27 Arms Act.
D
.......
In this case subject and his associates opened fire on
police party who went to apprehend Raghunath Singh
absconder under NSA. As a result of this indiscriminate
'r
E
firing by him and his associates one Police Officer namely
Shtj R.K. Verma, received serious head injury and is still
incapable to work. Charge sheet No. 25/84 has already
been submitted in this case.
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4. Jogta P.S. Case No. 9/85 dated 18.2.85 u/s 369, 307/323/ r
F
324/176/341 P.C./27 Arms Act.
.......
~
In this case Sisir _Rajan Das, who was coming in a
religious procession on the eve of Shivratri and was dancinf(
G
in the role of Shiva was compelled by his associates to dance
before the marriage party of subject's sister. Sri Sisir Rajan
Das, however, 'acceded to their request and started dancing. Wben he was dancing some of the members opened fire
on him as a result of which he fell down. The subject and his
~
associates however put his body in his car and fled away.
H
Neither Shri Das nor his body could be traced out till date.
BINODSINGH v. DISTT. MAGISTRATE {MUKHARJI, J.]
909
Charge s.heet No. 20/85 has already been submitted in this
A
case. (Emphasis supplied)
-
5. Jogta P .S,. Case No. 68/85 dated 1.12.85 u/s341/341PC.
In this case subject threatened Sri Krishana Ballav
B
Sahay, General Secretary, Colliery Shramik Sangh,. Sijua,
to do away with his life if he takes out any procession or
oppose him.
It is the case of the detenu that the order of detention was made
on one incident relating to exchange of fire between.two rival groups.
A criminal case had been registered in relation to the said incident
pursuant to which the petitioner was already in ~ustody. The order of
detention thougli dated 2nd January, 1986 was served on or about 11th
January, 1986. It is the case of the appellant/petitioner that the detenu
was not served with all the documents referred to and/or relied on.
The detenu was served with order of approval of the said order of
detention by the Government of Bihar. The petitioner/appellant made
representation on 22nd January, 1986 and the petitioner/appellant was
informed that the said representation was rejected. Thereafter the
petitioner's appellant's matter was referred to the Advisory Board.
The petitioner/appellant states that he desired that he should be heard
in person by the Advisory Board. The petitioner/appellant submits
that he was produced before the Advisory Board but he was not given
any hearing. By letter dated 22nd February, 1986 the petitioner/appellant was infonned that the Advisory Bo.ard had confirmed the order of
detention. The petitioner/appellant thereafter filed a writ petition in
the High Court of Patna which .was dismissed without any speaking
order.
The grounds of challenge are all stated in the writ petition as well
as special leave petition. The petitioner/appellant was in detention
when the petitioner/appellant was served with the. order of detention.
There were criminal cases against the petitioner. There was a murder
case in respect of Crime No. 331of1985. in the said case investigation
was in progress and the defence of the petitioner in the murder case was
that he was falsely implicated and was not at all concerned with the
murder. When the order was passed, the petitioner had not surrendered but when the order was served, the petitioner had already
surrendered in respect of the criminal charge against him, At the relevant time the petitioner was undertrial in the said criminal case.
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910
SUPREME COURT REPORTS
[1986) 3 S.C.R.
It is the contention of the petitioner/appellant that the order of
preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting
him back in jail. The service of order of detention on the petitioner
while he was in jail was futile and useless since such an order had no
application under section 3(2) of the Act.
ln the affidavit of the District Magistrate, the detaining authority, it has been stated that the activities of the petitioner's brother
and the petitioner have disturbed the normal tempo of life in Katras
and Jogta Police Stations in Dhanbad area. The series of offences
against the detenu and the manner of their perpetuation, which have
been noted before, indicate a calculated move to create panic and fear
in the mind of the people. It further ·appears from the affidavit cf the
District Magistrate filed before the High Court of Patna that the
petitioner was absconding from the very day of the issuance of the
detention order. There is a statement in the order as follows-
"Subject is already in jail. He is likely to be enlarged cin bail. Hence
detention order served in jail."
According to the District Magistrate when police pressure to
apprehend him became heavy, the detenu opted to surrender before the
Sub-Divisional Judicial Magistrate on 10th January, 1986 in substantive case to frustrate the service of the detention order. It has been
further stated that the service of the detention order had been properly
made. Grounds were all indicated. All the documents which formed
the basis of detention were supplied to the detenu. His representation
was duly considered and rejected. The grounds stated that there was
indiscriminate firing on 24th December, 1985 on Katras Coal Dump
and the petitioner started indiscriminate firing to kill Birendra Pratap
Singh a rival of his calendestine business of coal to establish the criminal superiority in full view of the shopkeepers, customers and pas>ers by
of the area. The acts alleged created a terror and not only law and
order problem but problem of public order. In those circumstances it
appears that the grounds for forming the satisfaction for the need for
the detention were there, and there was rational nexus between the
object of the order as contemplated by the Act and the materials on
record. The principles applicable in these types of preventive detention cases have been discussed in the decisions of Suraj Pal Sahu v.
State of Maharasthra & Ors., W .P. (crl) No. 2 96/86 with SLP (er!) No.
1265/86 dt. 25.9.86 and Raj Kumar Singh v. The State of Bihar & Ors.
Crl A. 353/86 with W.P. (er!) 27/86 dt. 26.9.86. Judged on the basis of
'
1
y
'
BINOD SINGH v. DISTT. MAGISTRATE IMUKHARJI, J.]
911
the said principles there is no ground for interference with the order of
detention as passed. It, however, appears that after the order of detention was passed and before the actual service of the order of detention,
the petitioner was taken into custody. From the affidavit of the District
Magistrate it does not appear that either the prospect of immediate
release· of the detenu or other factors which can justify the detention of
a person in detention were properly considered in the light of the
principles noted in the aforesaid decision and especially in the decisions, in Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,
[1964] 4 SCR 921 and Ramesh Yadav v. District Magistrate Etah and
others, [1985] 4 sec 232 though there was a statement to the effect that .
the petitioner was in jail and was likely to be enlarged on bail. But on
what consideration that opinion was expressed is not indicated especailly in view of the fact that the detenu was detained in a murder charge
• in the background of the facts mentioned before. His application for bail
could have been opposed on cogent materials before the Court of
Justice.
In. this case there were grounds for the passing of the detention
order but after that the detenu has surrendered for whatever reasons,
therefore the order of detention though justified when it was passed
but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody of that there was any .
real danger of his release. Nor does it appear that before the service
there was consideration. of this aspect properly. In the facts and
circumstances of this case, therefore, the continued detention of the
detenu under the Act is not justified.
It is well settled in our Constitutional framework that the power
of directing preventive detention given to the appropriate authorities
must be exercised in exceptional cases as contemplated by the various
provisions of the different statutes dealing with preventive detention
and should be used with great deal of circumspection. There must. be
awareness of the facts r.ecessitating preventive custody of a person for
social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not
be exercised. In the· instant case when the actual order of detention
was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be
released or that there was such a possibiliiy of his release, was taken
into consideration by the detaining authority properly and seriously
before the service of the order. A bald statement is merely an ipso dixit
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912
SUPREME COURT REPORTS
[1986) 3 S.C.R.
of the officer. If there were cogent materials for thinking that the.
detenu miglit be released then these should have been made apparent.
Eternal vigilance on the part of the authority charged with both law
and order and public order is the price which the democracy in this
country extracts from the public officials in order to protect the funda- ·
mental freedoms of our citizens. In the affidavits on behalf of the
detaining authority though there are indications that transfer of the
detenu from one prison to another was considered but the need to
serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of the relevant
factors. At least the records of the case do not indicate that. If that is
the position, then however disreputable the antecedents of a person
might have been wifoout consideration of all the aforesaid relevant
factors, the detenu could not have been put into preventive custody.
Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the
order was not on proper consideration.
It may be mentioned that in the petition it is nowhere stated that
the detenu has since been released or that the prospect of his imminent
release was properly and with seriousness considered by the detaining
authority.
The order of detention, therefore, is set aside. The writ petition
and the appeal are allowed to the extent indicated above. This, however, will not affect detenu's detention under the criminal cases. If,
however, the detenu is released on bail in the aforesaid criminal cases,
the matter of service of the detention order under the Act on the
aforesaid materials may be reconsidered by the appropriate authority
in accordance with ihe law. There is no siatement in the petition that
the detenu is on bail. There will, therefore, be no orders for release of
the detenu.
M.L.A.
Petition and Appeal allowed.