# DHANANJOY DAS v. DISTRICT MAGISTRATE & ANR

- **Citation:** [1983] 1 S.C.R. 122
- **Court:** Supreme Court of India
- **Decided:** 1982-08-16
- **Case number:** Criminal Appeal No. 199 of 1982
- **Bench:** V.D. Tulzapurkar, R.B. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhananjoy-das-v-district-magistrate-anr-8568
- **Pages:** 23

## Headnote

Constitution of India-Article 22(5)-Rights of detenu.
National Security ACt~ 1980-section 3(3)-Grounds of detention-Inclusion of paragraph in the nature of preamble or introduction-Validity •
National Security Act, 1980-Section 3(3)-0rder of detention-Proof of
satisfaction of detaining authority-Extraneous evidence not admissible.
National Security Act, 1980-section 3(3)-Grounds of detention-Vague-
~1s-Determination of.
The apPellant was detained by' an ofder made under section 3 (3) of ihe
Act.t The grounds of detention served on him consisted of 4 paragraphs. The
first part of paragraph 1 was admittedly introductory. The latter part of para.:·
graph 1 was in the followillg terms:
"Shri Das has been playing a leading part in -the current agitation on
foreigners issue in collaboration with other active agitators who ~re
leaders of AASU, Karmachari Parishad and Gana Sangrarn Parishad,
,. by organising bundhs,
non~cooperation ·programme, inciting people
to violate law from time to time. Such activities have ~isturbed peaceful, tolerant and harmonious life: Or society".
Paragraphs 2 and 3 gave details as to the part played by the appellant
in a programme relating to obstruction of road and rail traffic and "violation of
curfew by thousands of people. The first sentence of paragraph 4 stated: "Such
activities of Shri Dhananjoy Oas are prejudicial t""the interest of maintenance of
public order."
The appellant challenged the order by a petition under Article 226 which
was dismissed by the High Court.
,
In appeal, counsel for the appellant contended that paragraph 1 of the
grounds was so vague that the order of detention must be quashed on that
ground alone, that paragraphs 2 and 3 also sufferred from vag~eness for the
ffi\!9~ th~! !h•y did not meQtigq certain necessary facts and that the facta
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DHANANJOY V, DISTT. MAGISTRATE .
123
alteged in the grounds of detention only made out a case for maintenance of IaW
' and order and not of public order.
Counsel for the respondent submitted that paragraph 1 was only a prelude
or introductory and it did not deal with the grounds on which the District
Magistrate bad biS subjective satisfaction in passing the order.
Counsel for the app"ellant, on the other hand, relying on certain observations in Mohd. Yousuf Rather v. State of Jammu & Kashmir, conlended that
Arti(:te 22(5) provided for supplying of grounds and there could be no preamble
or introduction to the grounds of detention. It was submitted that the District
_ Magistrate h.imself had in his counter-affidavit treated paragraph 1 as constituting
one of the grounds of detention although ·be had subsequently changed his position by filing a supplementary affidavit on the basiS of a note ma<le bf him
earlier in his correspondence with the State Government. Counsel contended
that the order of detention was conclusive as to the state of mind of the person
who made it and no such extraneous evidence Was admissible.
Dismissing the appeal,
HELD : The law is by now well settled that a detenu has two ·rights
under Article 22(5) of the Constitution: (1) to be informed, as soon 2s may be,
of the grounds on which the order of detentioh 'is made, that is, the grounds
which led to the subjective satisfactioh of the detaining authority;. and (2) to be
afforded the earliest opportu~ity of making a representation against the order
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of detention, that is, to be furnished with sufficient particulars to enable him to
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make a representation which on being considered may obtain relief to him.
The inclusion of an irrelevant o.r non·existent ground, among other relevant
grounds, is an infriDgement of the first of the fights and the inclusion of an
obscure or vague ground a~ong other clear and definite gro.unds is an infrige·
meat of the second of the rights. It is by yirtue 'of the second right that the
detaining authority has to supply the. material facts on the basis of which sub·
jectjve satisfaction was derived for passing th"e orde1 .of

## Text

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122
DHANANJOY DAS
v.
DISTRICT MAGISTRATE & ANR.
August 16, 1982
[V.D. TULZAPURKAR AND R.B. MISRA, JJ.)
Constitution of India-Article 22(5)-Rights of detenu.
National Security ACt~ 1980-section 3(3)-Grounds of detention-Inclusion of paragraph in the nature of preamble or introduction-Validity •
National Security Act, 1980-Section 3(3)-0rder of detention-Proof of
satisfaction of detaining authority-Extraneous evidence not admissible.
National Security Act, 1980-section 3(3)-Grounds of detention-Vague-
~1s-Determination of.
The apPellant was detained by' an ofder made under section 3 (3) of ihe
Act.t The grounds of detention served on him consisted of 4 paragraphs. The
first part of paragraph 1 was admittedly introductory. The latter part of para.:·
graph 1 was in the followillg terms:
"Shri Das has been playing a leading part in -the current agitation on
foreigners issue in collaboration with other active agitators who ~re
leaders of AASU, Karmachari Parishad and Gana Sangrarn Parishad,
,. by organising bundhs,
non~cooperation ·programme, inciting people
to violate law from time to time. Such activities have ~isturbed peaceful, tolerant and harmonious life: Or society".
Paragraphs 2 and 3 gave details as to the part played by the appellant
in a programme relating to obstruction of road and rail traffic and "violation of
curfew by thousands of people. The first sentence of paragraph 4 stated: "Such
activities of Shri Dhananjoy Oas are prejudicial t""the interest of maintenance of
public order."
The appellant challenged the order by a petition under Article 226 which
was dismissed by the High Court.
,
In appeal, counsel for the appellant contended that paragraph 1 of the
grounds was so vague that the order of detention must be quashed on that
ground alone, that paragraphs 2 and 3 also sufferred from vag~eness for the
ffi\!9~ th~! !h•y did not meQtigq certain necessary facts and that the facta
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DHANANJOY V, DISTT. MAGISTRATE .
123
alteged in the grounds of detention only made out a case for maintenance of IaW
' and order and not of public order.
Counsel for the respondent submitted that paragraph 1 was only a prelude
or introductory and it did not deal with the grounds on which the District
Magistrate bad biS subjective satisfaction in passing the order.
Counsel for the app"ellant, on the other hand, relying on certain observations in Mohd. Yousuf Rather v. State of Jammu & Kashmir, conlended that
Arti(:te 22(5) provided for supplying of grounds and there could be no preamble
or introduction to the grounds of detention. It was submitted that the District
_ Magistrate h.imself had in his counter-affidavit treated paragraph 1 as constituting
one of the grounds of detention although ·be had subsequently changed his position by filing a supplementary affidavit on the basiS of a note ma<le bf him
earlier in his correspondence with the State Government. Counsel contended
that the order of detention was conclusive as to the state of mind of the person
who made it and no such extraneous evidence Was admissible.
Dismissing the appeal,
HELD : The law is by now well settled that a detenu has two ·rights
under Article 22(5) of the Constitution: (1) to be informed, as soon 2s may be,
of the grounds on which the order of detentioh 'is made, that is, the grounds
which led to the subjective satisfactioh of the detaining authority;. and (2) to be
afforded the earliest opportu~ity of making a representation against the order
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of detention, that is, to be furnished with sufficient particulars to enable him to
E
make a representation which on being considered may obtain relief to him.
The inclusion of an irrelevant o.r non·existent ground, among other relevant
grounds, is an infriDgement of the first of the fights and the inclusion of an
obscure or vague ground a~ong other clear and definite gro.unds is an infrige·
meat of the second of the rights. It is by yirtue 'of the second right that the
detaining authority has to supply the. material facts on the basis of which sub·
jectjve satisfaction was derived for passing th"e orde1 .of detention and this is
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how th~ facts from which the inference is drawn also become a part and parcel
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of the grounds. (134 D-G]
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(b) There is no bar, to have introductory paragraphs in the ground& of
detention. 'he observations .in Mohd. Yousuf Rather's case do opt indicate that
there can be no .preaffibJe or introductory paragraph; those observations onIY.
mean that all allegations of facts which have led to the Passing of the· order of
dete~tion will form part of the grounds of detcntio_n. [129 G]
. (c) Whether a particular paragraph in the grounds amouQts only to a
preamble or introduction or contains the grounds on the basis of which the
·detaining authority bad the subjective satisfaction for passing the· order is· to. be
determined on the facts and circumstances of C\\~ ~~~~ 1,1;~~
~t i§ open to the
court to come to its own conclusion. (130 A-BJ
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SUPREME COURT REPORTS
(1983] 1 S.C.R,
(d) the grounds of detention must be i~ existence on the date of the
order and the authority concerned has to be satisfied about them on the.date of
the order. The satisfaction of the detaining authority .must be clear on the face
of the order and no extraneous evidence is admissible ·to P,rove what actually
weighed with the authority while passing the order. It is not what a patty
chooses t~ put as a gloss on the grounds of detention but it is the document
itself w~ich will be taken to be, the. proof of what weighed with the detaining
authority while passing the order. [135.D-E-F]
Mohd. Yousuf Rather v. State
e~plalned.
'
of Jammu & Kashmir, (1979) 4 S.C.C. 370,
Naresh Chandra Ganguli v. State of West Bengal, [1960] l S.C.R. 411;
Dr. Ram Manohar Lohia v. State of Bihar, [1966] l S.C.R. 709 and State of
Bombay v. Atma Ram Sridhar Vaidya, [1951] S.C.R. 167, referred to.
In the instant case the tenor of ihe document only indicates that the three
organisations named therein have been taking part in the current agitation on
foreigners issue in the manner stipulated in paragraph 1, in which the appellant
has also been playing a leading part. Paragraphs 2 il.nd 3 deal with the specific
part attributed to the appellant on specific days and at specific places. That is
why the first sentence o~ Paragraph 4 stipulates that such activities of the appellant are prejudicial to the interests of maintenance of public order and be was
called upon to make a representation against the allegations made in paragraphs
2 and 3 of the groundS. Significance must be attached to the difference in
language 'used ill the last sentence of paragraph l and the first sentence o'f paragraph 4. Paragraph 1 only contemplates that the variOus organisations have
been t~king part in the current agitation on foreigQefs issue in the various modes
enumerated therein. The document read as a who!~ indicates that paragraph 1.
of the grounds of detention is only by way of in!roduction or preamble. The
vagueness in paragraph 1 cannot be made a ground of attack on the impugned
order. [131 C-F; 131 A; 133 C-D].
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2. The question whether a particular groun(I is vag.ue will de~end on 'the ../
facts and. circumstances of each case because vagueness is a rela1ive term. What
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may be vague in one case inay not be so in similar circurustiii:tces of another
case. If the basic facts have been given in a particular case constituting the
grounds of detention whi.::h •enable the dctenu to make an effective repr.esentation,
merely because meticulous details of far;ts are abt given will not vitiate the order
of detention. [142 E-G]
Chaju Ram v. State of Jammu & Kt;ishmir, (1970) 1 S.C.C. 536; Gopal
Bauriv. District Magistrate, Burdwan & Ors., [1975] l S.C.C. 522; Dr. Ram
i
.j/
Krishan Bhardwajv. State of Delhi &-Ors., [1953] S.C.R. 708; Bhupen Deka v.
State of Assam, (1981) Cri. L:J. 1743; Kam/a Kanya/al Khusalani v. State of
Maharashtra & Anr., (!981) 1 S.C.C. 748; Naresh Chandra Ganguli v. State of
.West Bengal, [1960] 1 S.C.R. 411; Ma~ood A/Qm etc.~· Union of India & Ofs,
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J.
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OHANANJOY v. i>ISt'r. MAGISTRATE (Misra, J.)
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12S
. [1973] 3 S.C.R. 268; Bidya Deb Barma v. District Magistratt, Tripura Agartala,
[1969] I S C.R. 562; and Vakil Singh v. State of Jammu & Kashmi,, A.LR. 1974"
S.C. 2337, referred to.
A
In the instant case basic facts have been given in paragraphs 2 and 3 of
the grounds of detention to enable the a~pellant to make an effective representation. [142 G]
B
· 3.
The situation in Assam is a grave one and the agitation On the issue /
of foreigners has been going on for years and it has taken an ugl~ and serious
turn, and the statement of facts made in paragraphs 2 and 3 of the< grounds of
detention, in the pr~yalent circumstances in Assam~ relate tv the maintenan~, of
pub1ic order in view of the law laid down in Ashok Kumar v. Delhi Administration
& Or;. [143 H; 144 A]
.
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Dr. 11am Manohar Lohia v. State of Bihar (1966] l S.C.R. 709 ·and Ashok
Kumtir. v. D'e/hi Administration & Ors., A.LR. 1982 S.C. 1143, rCferred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 199
of 1982.
•
From the Judgmel)t dated the 23rd February, 1982 of the
High Court of Gauhati in Civil Rule No. 6 (HC) of 1982.
0
S; Rangarajan, Prabir Chowdliury, B.P. Maheshwari, Suresh
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Sethi and Miss "Asha Rani Jain, for the Appellant.
A.M. Mazumdar, Advocate General of Assam and S.K. Nandy
for the Respondents.
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The Judgment of the Court was delivered by
MISRA, ]. Th,e present appeal by certificate is directed against
the judgment of the High Court of Gauhati dated 23rd of February,
1982 dismissing the petition under Art. 226 of the Constitution
challenging the order of detention of the appellant.
The District Magistrate, Darrang passed an order of detention
on 3rd ofJanuary, 1982 against the ·appellant under s.-3 (3) of the
National Security Act, 1980. The order of detention al11.ng with
· the grounds was supplied to the' appellant on the same day, that
is, on 3rd of January, 1982. ··The appellant was also arrested on the
same day. He made a representation on the 9th of January, 1982
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SlJPRilMB COUltT RBPOilTS.
{ l 9S3] t • s.C.R.
·through the Superintendent of Special Jail who forwarded the.same
-to the Government on 10th of January,_1982. The State Government received the same on !Ith of January, 1982 and it was rejected
on 13t.h of January, 1982.
The order of detention was challenged by the. appellant on
two grounds : (1) that the grounds of' detention were vague, and
(2) that the facts narrated in the grounds related to law and order
situation and not to public order. The High Court repelled both
the grounds and dismissed the writ petition by its order dated 23rd
_qf February, 1982. The High Court, however, granted a certificate
for leave to appeal to this Court. ·
Before dealing with the contentions in •this case oJi behalf
of the parties it will be· appropriate at this ·stage to refer to the .
grounds of detention which were served on the appellant :
'.'!. Sri Dhananjay Das, aged about 50 is the President of
Purbancbalia Lok Parishad, Tezpur ·Unit. He is a
contractor by profession. Sri Das has been playing
a leading part in the current agitation on foreigners
·issue in collaboration with other active agitators who .
are leaders of AASU, Karmachari Parishad and Gana
Sangram Parishad, by organising bundhs, non-cooperation programme, inciting people to violate law from:
time to time. Such activities have· disturbed peaceful,
tolerant and harmonious life of society.
2.
In connection with the programme of Rasla Roko
CoJllmencing from 0/50 hrs. of 31.1,2.81 to 1700 hrs.
of 1.1.82 Sri Das in collaboration with others like
Nabab Shahjamal,
Biren
Baishya etc.
mobilised
thousands of people from Parbatia, and other neighbouring areas of the town· to give obstructions to
motor vehicles on 31.12.81 and railway traffic on
1.1.82. At the instigation of Sri Das the people came
· in large numbers violating prohibitory orders. On
l. I.82 the crowd was instigated by him and aforesaid
associates to pelt stones, brickbats etc. on police
personnel on duty. This led to greater violence in
which railway slippers were burnt, and driver of fire-
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bllANANJOY v. nistT. MAGiSTRATE (Misra, i.)
127
brigade was shot at. Ultimately firing was resorted to
and three persons died.of bullet injury.
3.
On 2.1.~2, when the. whole Tezpur Town was under
curfew, Sri Das along with his other associates mobilised people of Parbatia etc. and led a procession of
thousands of people · through curfew-bound
areas
raising slogans instigating people to violate curfew.
This crowd had to be dispersed by use of force.
4.
Such activities of Sri Dhananjoy Das are prejudicial
to the interest of maintenance of public order. It
is essential therefore that . in order . to prevent him
from induJging in such like. prejudi~i~l acts, Sri Das
is detained under National Se'curity Act."
· Shri Rangarajan, counsel for th,e appellant, seriously contended that the first paragraph of the grounds is so vague that 'the
order of detention must
be quashed
on this ground alone.
Shri A.M. Majumdar, Advocate General of Assam, on. the other
hand has contended that the I st paragraph of the grounds was on1y
a _prelude or introductory and does not deal with the gro/mds on which
.the District Magistrate had his subjective _satisfaction for passing
the order of detention·.
There is no doubt th at If the first paragraph of the grounds ·
constitute the grounds of detention,. it is vague and the order of
detention must be quashed on the ground of vagueness with regard
to the statements contained therein.
Th~refore,.the main question
for consideration in this case is whether the first paragraph of the
grounds is merely introductory or a preamble or a prelude. Shri
Rangarajan contends that there could be no ·prelude or preamble. to
the grounds. Article 22 (5) of the Constitution provides for •
supplying the grounds of detention. In support of his contention
he placed reHance on Mohd. Yousuf Rather v. State of Jammu. &
Kashmir & Ors.(l) · In .that case Dr. Singh vi for
the
State
strenuously submitted that the first paragraph of the grounds
supplied to 'the petitioner was of an introductory nature, that
paragraphs 2; 3, 4 and 5 referred to the events which furnished the
en [19791 4 sec no.'
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SiJPREME COURT REPORtS
[1983] I s.c:R.
background and that the penultimate paragraph alone contained
the grounds of uetention as such. He· submitted that it was permissible to separate the introduction and the recital of events
constituting the background from the grounds of detention and. if
that was done it would be apparent that the order of detention
suffered from no infirmity. He sought to draw support for his
submission from the decision in Naresh'Chandra Ganguli v. State
of West Bengal.(1)
In that case sections 3 and 7 of the Preventive
Detention Act 1950 were the subject matter of consideration and
this Court held that the two sections read together contemplate that
the copy of the order passed by the detaining authority under s. 3 '
(2) of the Act to be served on. the detenu should contain, (I) a
preamble reciting in terms one or more of the sub-clauses of els. (a)
and (b) of s. 3 (1) .as its object or objects, (2) the grounds contemplated bys. 7, namely, the c6nclusions of fact, which. led to the
passing of the order of detention, informing the detenu as to why
he was &tained, and (3) particulars, if and where necessary, but not
those referred to in sub-ss. 3 and (4) of s. 3 of the Act. This case thus
contemplated of a preamble ·or introductory part in the grounds of
detention.
··
Shri Raugarajan for the. appellant, however, contended that,
the view taken in N.C. Ganguli's case (supra) does not hold ·the field
and he referred to the following observations made . by Chinnappa
Reddy J. in Mohd. Yousuf Rather's case (supra) :
"It is
impossible to agree with
the submission
of Dr. Singhvi. The annexure
to the order · of
detention
detailing · the
grounds
of
detention
has been fully extracted by my learned brother
Shinghal J. We are unable to see how factual allegations such as those contained in the paragraphs I to
s· of the ·grounds of detention can be said to be
merely introductory. or as constituting the background. ll,n · Naresh Chandra Ganguli v. State of W.B.
what was read by the Supreme Court as the 'preamble' ·was the recital in terms of section 3 (1) clause (a)
and (b) of the Preventive Detention Act, namely : that
the detenu was being detained in pursuance of a dcten-
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.(1) [1%0] I SC.R. 411.
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DHANANJOY v. DISTT. MAGISTRATE (Misra, J.)
129
lion order made in exercise ofthe power conferred by
section 3 of the Preventive Detention Act ·on . the
gr.,und that the detenu was acting in a .manner prejudicial to the maintenance of public order as evidenced by the
particulars. given :!hereafter. The
particulars given in the subsequent paragraphs, the
Court said, constituted the grounds. We do .not.
understand "flfaresh Chandra Ganguli v. $tale of W.B.
as laying down that it is permissible to dissect or
trisect the grounds of detention into introduction,
. b~ckground and ·'grounds' as such. There is · no
warra~t. for any such division.
The distinction made in Nai·esh Chandra Ganguli case ·
between the 'preamble', meaning thereby the recital in
terms of the statutory provision and the 'grounds' meaning thereby the conclusions of fact which led to the'
passing of the order of detention does not justify any
disiinction being made between introductory facts,
background facts, and 'grounds' as such.
All allegations of fact which have ,led . to the passing of the
-Order of detention are 'grounds' of detention. If such
allegations are irrelevant or vague .the detenu is entitled
to be releaSed.''
Shinghal J., with· whom Sarkiiria J. concurred,' however, did not
go to the extent. of saying that there cannot he a preamble or
introduction to the grounds.
According to the counsel for the
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appellant _the observatfons made by Chinnappa Reddy J. would
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be taken to be the observations made by the Full Court inasmuch
as he agreed with the vie\v expressed by Sarkaria and Shinghal
JJ.'
Be !hat as it m_ay, the observations ~eferred to above do not
indicate that there can be no preamble or introductory para in the
G
grounds of detention. . There is no bar to have introductory paragraphs in the grounds, The observations only mean all allegations
of facts which have led to the pass.ing of the order of detention )Viii
form part of the grounds of detention. · It is, therefore, difficult to
accept the contention that there co_uld be no introductory para in.
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. tlie grounds.
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SuPRJ!ME COURT REPORTS
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Wh.ether a particular paragraph in the grounds amounts only
io a preamble or introduction is to be determined on the facts ana
circumstances of each case and it is open to the Court to come to
its own conclusion whether that paragraph is only .an introductory
para or contains the grounds on· the basis of which tlie detaining
authority had the subjective satisfaction for passing the order of
detention.
'Preamble' has been defined in the Oxford English Dictionary
to mean a preliminary statement in speech or writing; an introductory paragraph, s~ction, or clause; a preface, prologue, introduction.
It has further been defined there as "an introductory paragraph"
or part in a statute, deed, or other document setting forth the
ground and intention of it." The preamble thus betokens that which
follows.
The first part of paragraph 1 of the order of detention in the
instan4 case is admittedly introductory where it says :
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'.'Sri Dhaoanjoy Das, aged about 50 years ia the President of Purbanchalia Lok Paiishad, Tezpur Unit.
He is a
contractor by professii>n."
The dispute is about the nature of the latter part of paragraph.
I. It says :
•
"Sri bas has been playing a leading part in the current
agitation on foreigners issue iri collaboration with other
active agitators who are leaders of AASU, Karmachari
Parishad and Gana Sangram Parishad, by organising
bundhs, non-cooperation programme, inciting ·people to
violate law from time to time. Such activities have disturbed peaceful, tolerant and harmonious life of society."
Paragraphs 2 and 3 of the grounds of detention deal with specific
instances of the activities of the appellant.
The penultimate
paragraph 4 of the grounds says :
"Such activities of Sri Dhananjoy Das are prejudicial
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to the lnteres( of maintenance of public order."
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biiANANJOY v. i>1sri. MAGISTRATE (Misia, i.)
i:H
Significance must be attached to the language used in the last
sentence of the !st paragraph and the !st sentence of the last
paragraph, the former says :
"Such activities have disturbed peaceful, tolerant and
harmonious life of society."
While the latter i.e., the !st sentence .of the last paragraph 4 states
that:
"Such activities of Sri Dhananjoy Das are prejudicial ·to
A
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the interest of maintenance of public order."
C
The tenor of the document indicate that the appellant has been
playing a leading part in the current agit~ti<in on foreigners issue in
collaboration with other active agitators wbo are leaders of· AASU,
Karmachari Parishad and Gana Sangram Parishad by organising
bundhs, non-cooperation programm~. inciting. people to violaJe
law from time to time. It only indicates that the three organisations
have been taking part in the current agitation on foreigners issue in
the manner stipulated in the first paragraph, in which the appellant
· has also been playing a leading part. Paragraphs · 2 and 3 of the
grounds deal with specific part attributed to the appellant ·on specific
days and at specific places. That is why . the first sentence of the
last paragraph 4 stipulates such acti•ities of Sri Dhananjoy Das are
prejudicial to the interests of maintenance of public order and the
appellant was called upon to make a representation against the
allegations made against him in paragraphs 2 and 3 of the grounds.
The first paragraph only contemplates that the various organisations
have been taking part in the current agitation against the foreigners issue in the various modes enumerated therein.
Shri Rangarajan sought to derive support for his contention
from averments made in paragraph 5 of the counter affidavit .filed
by the District Magistrate on 24th of January, 1982.wherein it has
been stated that ground No' I is Clear, specific' and eloquent which
provided all the opportunities to the detenu to submit his representation. This averment was in reply to the allegation made in the
writ petition that paragraph I of the grounds was vague and
indefinite. ' Therefore, on the own showing of. the :Qistrict Magistrate, he treated paragraph I a_s _constituting one 'of the grounds of
detention. Later on he sought permission of the Court to file a·
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SUPREME COURT RE!>ORTS
(1983] I s.c.R.
supplementary affidavit, which was allowed.
In the supplementary
affidavit he averred that paragraph I of the grounds constitute only
a preamble or introd'uctory para and the grounds on which be had
subjective satisfaction for passing 'the order of detention ·against the
appellant were contained in paragraphs 2 and 3 of the grounds· of
detention. In support of the application for permission to file a
supplem.entary affidavit by way of clarifica;ion he relied on. the
parawise comments made by him which he had sent to the Government under his memo. • No. DCM.
49/8·!/29 dat!d , I 5th. of
January 1982 with a· copy to the Senior Government Advocate~
While dealing with paragraphs 9 and IO of the petition the
District Magistrate had commented • tbat pa~a 1 of the grounds of
. detention 'is of the nature of introduction and para 4 is of the
nature of conclusion. It was also submitted for the appellant
that the
District
Magistrate having
once
admitted in the
counter affidavit that para l of the grounds of detention constitufe
grounds of detention he could not subsequently turn turtle and , say
that i( was only by way of introduction or preamble and he could
not have been allowed to change his position by filing a supple1;rientary affidavit. The order of detention, said the counsel, is
conclusive as to the state of mind of !he person who made it and
that no extraneous eyidence ·can be takenr into consideration to
prove that state of mind and hence any additional evidence such as
the note made by the District Magistrate was not admissible to·
prove that the rule has been complied with. Such evidence could
· not have been given by the District Magistrate in view of the earlier
affidavit dated 24th of January, 1982. expressly saying that paragraph I is th; ground which is clear, specific ~nd eloquent. In .
support of his contention he placed reliance on Dr. Ram Manohar
Lohia v. State of Bihar.(1)
The Advocate General of Assam, on the other hand, has
contended that the counter affidavit filed earlier by the District
Magistrate was just in reply to the averments made in the .writ petition and therein it was stated that ground No. l of the grounds of
detention was vague and indefinite and' in reply the.reto the District
Magistrate denied the vagueness of ·that ground. The District
Magistrate, however, has clarifie.d the position in his para-wise·
comments which he had sent to the Government by memo.
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(I) [1966] 1 S.C.R. 709.
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. DHANANJOY V. DISTT. MAGISTRATB .(Mimi, J.) .
133
No. DCM. 49/81/29 dated 15th of January, 1982. He clarified the
position fhat paragraph 1 of the grounds of detention was only· a
preamble or introduction. This was done by him long before the
filing of the writ petition itself and, therefore, the supplementary
. affidavit filed by him clarifying the posi,tion cannot be said to be an
after-thought and the High co·urt accepted the position that the ,
District Magistrate did not take into consideration the statement of
facts made in paragraph I of the grounds of detention.
The grounds of.detention read as a w"hole leave no room tor
doubt that paragraph I of the grounds of detention was only by
way of introduction or as a p~eamble. In substance, it only indicates
the modus operandi adopted by the various organisations to the
current agitation on foreigners issue in Assam. The 2nd and 3rd
paragraphs of the grounds of d.etention allege a specific part played
by the appellant in that agitation;
On a perusal of. grounds of
detention as a whole we are satisfied that the view
~aken by the
High Cqurt that the !st paragraph of the grounds 'of detention was
only a preamble, pre)ude, or introductory para is correct. If this.
be the position then the vagueness in the I st paragraph cannot be
ma.de a ground of al)ack on the impugned order.
The Advocate General feebly sought to contend that assuming
that !st paragraph. of the grounds also constituted the. grounds· for
detention there was no vagueness in as much as the material facts
. d.etailed in paragraphs 2 and 3 were sufficient to enable the appellant
to make an effective representation. For example, bundh referred : to'
in paragraph 1 has been detailed in the 2nd paragraph, non.cooperation referred to in paragraph 1 has also been clarified by necessary
implication in para 2 in as much as Rasta Roko programme or
creating obstacles in .the roads necessarily helped the non'cooperation by preventing people from attending their offices or performing
theirstatutory duties.
•
In the view that we have taken that the Is( paragraph of the
grounds is only introductory it is not necessary ·.to deal with this
aspect of the m;tter at length .
This takes us to the vaiueness in
parag~aphs 2 and 3 of
the ground~ of detention which specifically refer to the part played
by the appellant in the agitation 9n specific dates.
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SUPREME COURT REPORTS
[1983) l S,C.R
In ·ground No. 2 it· has not been mentioned that 'Nabab
Shahjamal and Biren Baishya etc. were leaders or even connected
with any of·the organisations mentioned in ground No. I. It was
not even stated that all the instances referred to took place in
Tezpur town. It has also not been stated what were exactly the acts
of instigation by the detenu: The place and the manner of inciting
people who came in large numbers to violate prohibitory orders or
to pelt stones has n_ot been mentioned·.
In ground No. 3 no particulars were given about when the
order of curfew was promulgated and by whom. It is only baldly
'
stated that the detenu "with his other associates mobilised people
of parbatia etc." The people assembled had come from other places.
These places were not mentioned. None of the details of the slogans ·
by way of instigating people to violate the curfew had been mentioned and thus grounds Nos. 2 and 3 also suffer from vagueness
and this was quite sufficient to vitiate the proceedings.
The law is by now well settled that a detenu has two rights ·
under Art. 22 (5) ofthe Constitution : (I) to be informed, as soon .
as may be, of the grounds on which the order of detention is made,
that is, the grounds which led to the subjective satisfaction of the
detaining authority, and (2) to be afforded the earliest opportunity
of making a representation against the order of detention, that is,
to be furnished with sufficient particulars to enable him to make a
representation which on being considered ma)l obtain· relief to him.
The inclusion of an irrelevant or non-existent ground, among other
relevant grounds is an infringement 'or the first of the rights and the
inclusion of an obscure or vague· ground among other clear and
definite grounds is an infringement of the second of the rights.
Therefore in this view of the legal position if the grounds are vague
and indefinite that would amount to an infringement of the second ·
right of the appellant. It is by virtue of the second right that the
detaining authority has to supply the material facts on the basis of
which subjective satisfaction was derived for passing the order of
detention and this is how tile facts from which the inference is 'drawn
also become a part and par.eel of the · grounds. · Therefore, the
important question is whether grounds Nos. 2 and :i are ~o vague ·as
to infringe the second right of the appellant conferred by t\rt. 22 (5)
of the Constitution,
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DHANANJOY v. DISTT. MAGISTRATE (Misra, J.)
135
Shri Rangarajan referred to Dr. Ram Manohar Lohia v. Str;te
of Bihar and Ors.(') wherein the Constitution Bench held :
"If oil its face an order of detention is in terms of the
rule, ordinarily, a court is bound to . stay its hands and
uphold the order. When an order is on the face of it not
in terms of the rule, a court cannot enter into an investigation whether the order of detention was in fact in terms of
the rule. So the St~te cannot be heard/ to say or prove
that an order1was in fact made to prevent acts prejudicial
to public order though the orqer ·does not say so ... The
'
order is conclusive as to the state of the mind of the person.
wh~ made it and no evidence is admissible to prove that
state of ·mind. Extraneous evidence sucli as the note
made by the District Magistrate was not admissibl.e to
prove that the rule has been complied. with.'! ·
There is no .denying the fact that the ground of detention
must be in existence on the date when the order was passed and
the authority concerned has to be satisfied about the grounds of
detention on the date of the order and the satisfaction of the
detaining authority must be clear on the face of it from· the grounds
of detention and no extraneous evidence. is admissible to prove what
actually weighed with the detaining authority while passing the
order of detention.
It must, however, be kept in mind that it is not ·what a party
choose to put a gloss on the grounds of detention but" it· is th.e
document itself which will be taken to be the proof of what weighed
with the detaining authority while passing the order of detention
and it is for the Court to decide whether certain paragraphs of the
·grounds of detention were only by way of introduction or. preamble
or constitute the grounds of detention itself. As observed earlier,
we have meticulously perused the grounds of detention and the
tenor of the document read as a whole indicates that the !st paragraph of the grounds of detention is only by way of introduction or .
preamble.
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Before dealing with this question of vagueness about paragraph
(I) [1966) l S.C,R:7Q9,
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SUPREME COURT REPORTS
(1983J I S.C.R.
, No. 2 ~nil 3 of the grounds we would like to deal with certain
autborfries which have been cited on behalf of the appellant to
indicate what constitutes the grounds of detention. In the State o/
Bombay v. Atma Ram Sridhar Vaidya(') this Court held :
"Clause (5)
of Art. 22 confers· two. rights on the
detenu,
namely, first, a right to be informed of the
grounds on which the ord<!r of detention bas bei;n made, ·
and secondly, to be afforded the earliest opportunity to·
make a representation against the order; and though these
rights are linked together, they are two distinct rights. If
grounds which have a rational connection with the objects
mentioned in s. 3 are supplied, the first condition is complied with .. But the right to make a representation implie~ .
that ihe detemj should have information so as to enable
him to make a representation, an,d if the grounds supplied
are not sufficient to enable the detenu to make a repre-
.
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• sental!on, he can rely on the second right.
He may if he
likes ask for further particulars which will· enablo him to
make a,representatio·n. On an infringement· of either of
'·
these two rights the detained person has a right to approach
the oourt, and even if an infringement of the second right
under Art. 22 (S) is alone established be is entitled to be
, released.''
As observed earlier it is ,on account of the second right that it
becomes necessary to give facts on which the conclusion is based.
By now it is well settled that the grounds of detention co.nstitute the
facts also on which the conclusion has been drawn .. ·
The learned counsel for the appellant cited . various cases by
way of example in which in somewhat similar situation the grounds
of detention were branded as vague.
In Chaju Ram v. State of ' '
Jammu and Kashmir(') the gronnds charged the detenu with having
conspired with some leaders of Democratic ,Conference and having
incited landless people of R.S. .Pura Tehsil to forcibly occupy the
land comprised in Nandpur Mechanised Farm and to have persuaded t,hem to resist violently any attempt . to evict them.
_No details
(1) [1951) SCR 167,
(2) [197011 sec 536.
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DHANANJOY v. DISTT. MAGISTRATE (Misra, J.)
137 '
of the leaders of the conference or of the persons incited or the dates
on which he conspired or incited the squatters or the time when
such conference took place, were mentioned. In the facts . and
circumstanc~s of the case it was held by this Court : ,
"It would be impossible for anybody to make a
representation against such grounds. · These grounds, on
the authorities of this 'Court, too numerous to be cited ·
here, must be held to be vague."
The next case cited was that of Gopa/ Bauri v. Distrlcr Magistrate Burdwan & Ors.(') The grounds which bad been furnished to
the detenu in that case described the occurrences of two successive
days, namely, March 20 and 21, 1973. Ground No. 1 charged the
detenu with regard to the incid_ence of March 20, 1973 that he with
other associates committed theft of ball bearings and wheels of the
bucket carriages of the rope-way lines near Harisbpur village and
the supply of sand to the collieries was suspended. Likewise, about
the incidence of March 21, 1973 the second ground charged the
detenu that he with ~ther associates committed theft of ball bearings
and wheels of the bucket. carriages from the rope-way lines at
Palashbon village causing suspension of supply of sand to the
collieries.
The detenu was not communicated- the names of the
· particular associates from whose possession recovery of the stoleri
articles, the subject matter - of 'thefts disclosed in the two grounds,
was made and on the facts and circumstances of that case it was
found that the grounds of detention were vague.
In J)r. Ram Krishan Bhardwaj v. Sla/e of Delhi & Ors.(') one of
the grounds df detention mentioned was. that :
"You have been
organi~ing the movement (Praja
Parishad Movement) by enrolling volunteers among the
refugees in your capacity as President of the Refugee
Association of Bara Hindu Rao."
'.['his ground was held to be vague and efen though thej other
grounds , were not vague, the detention was held to
b~ not in
(tJ [19751 1 sec 522.
(2) [1953]'.SCR 708.
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138
SUPREME COURT REPORTS
(1983) 1 S.C.R.
accordance with the procedure established by law and was therefore
illegal.
In Bhupen Deka v. State of Assam(') only ground No. I was
germane to the supplies and services essential to the community.
The other. grounds did not pertain to mainten.ance of supplies and
services essential to the community. The Court on the facts held
that
" ... there is nothing in the ground to show disclosure
of any material fact as to when, where, how and in what
manner the bundhs, picketings, satyagraha had taken place
and how and in what manner they affected tbe supplies and
services essential to the community. There is not a single
specific date or time of the bundhs, picketings, satyagraha
nor is there any indication as to bow the "supplies and
services" essential to the community were affected."
fa the circumstances the ordeP of detention was declared invalid
and void on the ground of vagueness.
Shri Rangarajan also referred to Kam/a Kanya/a/ Khushalani
v. State of Maharashtra & Anr.(') io contend that this case has
added new dimension to various features of and concept of liberty
enshrined in Art. 21.
In the ab.ave case this Court observed :
"This Court in Maneka Gandhi v. Union of !Mia(') has
widened the hqrizon of Article 21 and added new dimensions to various features of and concept of liberty enshrined in Article 21. In view of the decision in the aforesaid
case, Article 22(5) of the oonstitution assumes a new complexion and has to be construed liberally and meaningfully
so as to permit the legislature to impose the mini~um
possible curbs on the precious tights of'a_ citizen, by virtue
of preventive detenti6n. If a procedure under Article 21
has (o be reasonable, fair and just, then the words 'effec- ·
live representation' appearing in Article 22(5) must be
(I) [198!] Cri. t.J. 1743.
12) (1981] 1 s.c.c. 748.
(3) [1978) 2 S.C.R. 621.
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DHANANJoY v. biS1T. MAGISTRATE (Mista, i.)
139
construed so as to provide a real and meaningful opportunity to the detenu to explain his case i.o the detaining
authority in his representation. If the words 'effective
representation' are interpreted in an artificial or fanciful
manner, then it would defeat the very object not only of
Article 22 (5) but also of Article 21 of the Constitu-
. tion.''
The Advocate General of Assam, however, on the other band
cited cases in which in, simHar situations the grounds were not
branded as vague.
He referred to Naresf! Ci.andra Ganguli v. State
of Wes't Bengal (supra). In that case the argument was that the
grounds contained in paragraph 4 were vague and indefinite and
not enabling the. person. detained . to make his representation.