Full Judgment Text
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PETITIONER:
DULAL ROY
Vs.
RESPONDENT:
THE DISTRICT MAGISTRATE, BURDWAN AND ORS.
DATE OF JUDGMENT15/01/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
CITATION:
1975 AIR 1508 1975 SCR (3) 186
1975 SCC (1) 837
CITATOR INFO :
RF 1976 SC1207 (560)
C 1976 SC1945 (6,8)
RF 1980 SC1983 (4)
RF 1986 SC2177 (42)
RF 1990 SC1196 (9)
ACT:
Maintenance of Internal Security Act, 1971. Section 3-
Passing of order of detention on the same facts while
petitioner was in custody as an undertrial-Arrest and
detention of petitioner as soon as he was discharged-
Detention, if illegal.
HEADNOTE:
In connection with two incidents of theft, two cases, one on
21-7-72 and the other on 1-8-72, under sec. 379, Penal Code,
were registered with the police. The petitioner was not
named in the F.I.R. His complicity was detected’ in the
course of investigation. He was consequently arrested on 3-
8-72 and sent up before the Judicial Magistrate. On 21-8-72
when the petitioner was in custody as an undertrial, and
order of detention was made by the District Magistrate, the
respondent, under Sec. 3 of the Maintenance of Internal
Security Act, 1971, with a view to preventing him from
acting in any manner prejudicial to the maintenance of
supplies and services essential to the commodity. After
further investigation, the police submitted a final report
and the petitioner was discharged in both the cases on 3-9-
72. On the same day, he was taken into custody pursuant to
the order of detention which is impugned in the writ
petition instituted by him on a letter dated August 24,
1974, from the jail.
It was contended that the order of detention has been made
to subvert the process of ordinary penal law, as a
colourable exercise of jurisdiction and was, therefore
illegal.
Accepting the contention and making the rule absolute,
HELD:While it is true, as an abstract legal proposition
that an order of preventive detention under the Act may be
validly passed against a person in jail custody on the same
facts on which he is being prosecuted for a substantive
offence in a court, such an order of detention is more
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easily vulnerable-than the one against a person not in such
custody-to the charge that without there being any basis
whatever for the satisfaction of the detaining authority,
which is a condition precedent for taking action under S. 3
the power has been misused as a cloak solely for the
purpose of punishingthe detenu for the substantive
offence for which he was being prosecutedby subverting
and circumventing the penal law and irksome court procedure.
To make the detention order immune against such an attack,
the detaining authority in its counter-affidavit must
particularise all the material circumstances on the basis of
which he was satisfied as to the necessity of the preventive
action despite the detenu being already in jail custody and
having no freedom of action on the date of the detention
order. In the present case this has not been done. No
counter-affidavit has been filed by the person who had made
the impugned order. Even the Deputy Secretary who has filed
the counter after gathering some information from the record
does not disclose all the material facts from which it would
be rationally possible for the detaining authority to
predicate that if the impugned order was not made against
the petitioner, though in judicial custody-, he could be
able to indulge in the prejudicial activities indicated in
the impugned order. There is no averment whatever that the
charges against the petitioner were true but the evidence
collected against the Petitioner was deficient, or, for
reason other than the charge being groundless, the
prosecution of the petitioner for substantive offences was
foredoomed to failure. The circumstances in which the
petitioner was discharged by the Judicial Magistrate have
not been set out. A bare statement that a "final report"
was submitted by the Police is neither here nor there. The
counter-affidavit is silent with regard to the nature of
this police report and the situation in which the petitioner
was discharged. It does not say whether this report had
reference to deficiency or ’sufficiency of evidence or
groundlessness of the charge against the petitioner. [189E-
H; 190R-B]
187
The grounds of detention relate to two incidents of theft
simpliciter in respect of which the petitioner could easily
be prosecuted under the penal law. In the absence of any
explanation or apparent reason as to why his prosecution for
the substantive offences resulted in his discharge and as to
why the making of the preventive order was deemed necessary
even while he was in jail custody and bad no freedom of
action the conclusion is inescapable that the impugned order
has been passed mechanically and as a colourable exercise of
jurisdiction. [190H]
Noor Chand Sheikh v. State of West Bengal, AIR 1974. S.C.
2120 relied on.
Rameshwar Shaw v. District Magistrate Burdwan, [1964] 4
S.C.R. 921, Sri Lal Shaw v. State of West Bengal. Writ
Petition No. 453/74 decided on 4-12-1974, and Kartick
Chander Guha v. State of West Bengal, A.I.R. 1974 S.C. 2149,
referred to.
The failure to furnish the counter-affidavit of the
authority who had passed the order of detention where the
order of detention is attached on the ground of being a
colourable exercise of jurisdiction, "may assume the shape
of serious infirmity leading the court to declare the
detention illegal."’ [189D]
Shaik Hanif v. State of West Bengal, A.I.R. 1974 S.C. 679
referred to.
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JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 428 of 1974.
Under Art. 32 of the Constitution of India.
A. K. Gupta, for the petitioner.
G. S. Chatterjee, for respondents.
The Judgment of the Court was delivered by
SARKARIA J.-Dulal Roy, the petitioner challenges the order,
dated August 21, 1972, of his detention made by the District
Magistrate, Burdwan under s.3 of the Maintenance of Internal
Security Act, 1971 (hereinafter called the Act). The order
states that it is necessary to detain him, with a view to
preventing him from acting in any manner prejudicial, to the
maintenance of supplies and services essential to the
community.
The grounds of detention communicated to the detenue run
under :
1. On 21.7.72 at 1 a.m. you with your
associates Kartick Karmaker and others’
committed theft of Electric wire from Tower
Nos. 23 and 24 situated near Dhangachha
village and ’by such act you cause stoppage of
electric supply which is essential for
maintenance of supplies and services to the
community, in Memari area and its vicinity.
2. On 29-7-72 at 2 a.m. you with your
associates committed theft of Tower Members
from Tower Nos. 246, 247, 248 situated on the
field near Dewandighi, P. S. Burdwan and by
commission of such theft the towers were
likely to fall resulting in stoppage of supply
electricity which is essential for maintenance
of supplies and services to the community, in
Calcutta area and its suburbs."
188
In connection with the above thefts, two cases, one on 21-7-
72 ,-and the other on 1-8-1972, under s. 379, Penal Code
were registered with the police. The petitioner was not
named in the F.I.R. His complicity was detected in the
course of investigation. He was consequently arrested on 3-
8-72 and sent up before the Judicial Magistrate. After
further investigation, the police submitted a final report
and the petitioner was discharged in both the cases on 3-9-
72. On the same day, he was taken into custody pursuant to
the impugned order of detention.
Mr. A. K. Gupta appearing as amicus curiae for the
petitioner contends that the impugned order has been passed
to subvert the process of the ordinary penal law, as a
colourable exercise of jurisdiction. It is stressed that on
21-8-72 when the detention order was passed, the petitioner
was already in custody as an undertrial. In the absence ,of
anything in the counter affidavit showing that his custody
was going to terminate soon, proceeds the argument,, it was
not reasonably possible for the authority to be satisfied
that the petitioner might indulge in prejudicial activities
unless he was detained. It is urged that the detaining
authority never applied its mind to satisfy itself with
regard to this imperative requirement of s. 3 and
consequently the, order of detention is illegal. To
highlight the casualness of the authority in taking ,the
impugned action, Counsel has pointed out that the counter-
affidavit has not been filed by the District Magistrate who
had made the impugned order. In support of these
contentions, learned Counsel has relied upon Rameshwar Shaw
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v. District Magistrate Burdwan(1) Noor Chand Sheikh v. State
of West Bengal(2) and the recent judgment of ’this Court in
Sri Lal Shaw v. State of West Bengal.(3)
Mr. Chatterjee, learned Counsel for the Respondent-State
submits that the mere fact that the petitioner was on the
date of the detention order in judicial custody did not
stand in the way of the detaining authority being satisfied
about his propensity to act prejudicially in future after
his release from judicial custody. It is emphasised that
the authority must have been aware that the petitioner was
likely to be released shortly as in fact he was released by
the Judicial Magistrate on 3-9-72, i.e. about 13 days after
the making of the detention order. Reference, in this
connection, has been made to Kartick Chander Guha v. State
of West Bengal. (4)
Section 3 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........ (iii) 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. It will be seen that the satisfaction of the
authority as to the inclination of such person to act in any
prejudicial manner indicated in sub-clauses (i) to (iii) of
s.3(1) (a) is the sine qua non for making an order of his
detention. The scheme of the section presupposes that on
the date of the order of detention or in
(1)[1964] 4, S.C.R. 921. (2) A.I.R. 1974 S.C. 2120.
(3) Writ Petition No. 453/74 decided on 4-12-1974.
(4) A.I.R. 1974 S.C. 2149.
189
the near future, the person sought to be detained has or
will have freedom of action. If a person therefore is
serving a long term of imprisonment or is in jail custody as
an undertrial and there is no immediate or early prospect of
his being released on bail or otherwise, the authority
cannot legitimately be satisfied on the basis of his past
history or antecedents that he is likely to indulge in
similar prejudicial activities after his release in the
distant or indefinite future. There must be a proximate
nexus between the preventive action and the past activity of
the detenu on which it is founded.
This Court has time and again emphasised that where? in a
habeas corpus petition a Rule Nisi is issued, it is
incumbent upon the State to satisfy the Court that the
liberty of the detenue has been taken away strictly in
accordance with law and due compliance with the
constitutional requirements of Article 22(5) of the
Constitution. The best informed person, therefore, to file
the counter-affidavit in response to Rule’ Nisi is the
authority who made the detention order under s. 3 of the
Act. In Sheik Hanif v. State of West Bengal,(1) it was
pointed out that the failure to furnish the counter-
affidavit of the authority who had passed the order of
detention where mala fides or extraneous considerations are
attributed to it, "may assume the shape of’ serious
infirmity leading the court to declare the detention
illegal".
This observation equally holds good in a case where the
detention, order is exposed to the risk of attack on the
ground of being a colourable exercise of jurisdiction.
While it is true, as an abstract legal proposition, that an
order of’ preventive detention under the Act may be validly
passed against a person in jail custody on the same facts on
which he is being prosecuted for a substantive offence in a
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court, such an order of detention is more easily vulnerable
than the one against a person not in such custody to the
charge that without there being any basis whatever for the
satisfaction of the detaining authority, which is a
condition precedent for taking action under s.3, the power
has been misused as a, cloak solely for the purpose of
punishing the detenu for the substantive offence for which
he was being prosecuted, by subverting 2nd circumventing the
penal law and irksome court procedure. I To make the
detention order immune against such an attack-, the
detaining authority in its counter-affidavit must,
particularise all the material circumstances’ on the basis
of which he was satisfied as to the necessity of the
preventive action despite the detenu being already in jail
custody and having no freedom of action on, the date of the
detention order. In the present case this has not been
done. No counter affidavit has been filed by the person who
had made the impugned’ order. Even the Deputy Secretary who
has filed the counter after gathering some information from
the record, does not disclose all the material facts from
which it could be rationally possible for the detaining
authority to predicate that if the impugned order was not
made against the petitioner, though in judicial custody, he
could be able to indulge in the prejudicial activities
indicated in the impugned order.
(1) A.I.R. 1974 S.C. 679;
190
There is no averment whatever that the charges against the
petitioner were true but the evidence collected against the
petitioner was deficient, or, for reasons other than the
charge being groundless, the prosecution of the petitioner
for substantive offences was foredoomed to failure. The
circumstances in which the petitioner was discharged by the
Judicial Magistrate have not been set out. A bare statement
that a "final report" was submitted by the Police is neither
here nor there. Such a report could have been made by the
Police in any ,of the situations referred to in Sections
169, 170, and 173 of the Code of Criminal Procedure, 1898.
Section 169 envisages two different situations in which an
accused person can be released. One is ,when there is not
sufficient evidence against him. The other is when no
reasonable ground or suspicion is revealed by the
investigation in regard to his being concerned in the
commission of the offence. Such a release can be made by
the investigating officer himself without sending the
accused before a Magistrate. Section 170 contemplates a
situation where there is sufficient evidence or reasonable
ground to justify the forwarding of the accused under
custody for trial to a ’Magistrate. It is s.173 that
provides for , final report, popularly ’known as Police
Challan or charge-sheet, which is submitted in the presc
ribed form after completion of the investigation. The
counter affidavit is silent with regard to the nature of
this police report and the situation in which the
petitioner was discharged. It does not say whether this
report had reference to deficiency or sufficiency of eviden-
ce or groundlessness of the charge against the petitioner.
Mr. Chatterjee submits that since the petitioner was about
13 days after the impugned order, in fact, discharged by the
Judicial Magistrate, it should be presumed that his
discharge was due to paucity of ,evidence and not on account
of the charge being baseless.
We are afraid no such conjecture can be drawn when the
liberty ,of a citizen is at stake. The counter-affidavit
apart, we asked Mr. Chatterjee if he could show us any
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official record to support his contention. Counsel was
unable to do so. He however, submitted that if a
sufficiently long adjournment was granted, he would be able
to ’furnish a better and comprehensive affidavit of the
officer who had passed the impugned order, clarifying all
these obscurities. The case was instituted on a letter
dated August 24, 1974 from the detenu. Rule Nisi was issued
on October 3, 1974 for November 25, 1974. ’On the latter
date no counter affidavit was produced, and on the request,
of the State Counsel an adjournment was granted to enable
the Respondents to file the return. Inspite of this the
counter filed is neither clear and complete nor by the best
informed person. We are therefore, not disposed to put a
further premium on this casualness and laxity on the part
of the Respondent.
The grounds of detention relate to two incidents of theft
simpliciter in respect of which the petitioner could easily
be prosecuted under the penal law. In the absence of any
explanation of apparent reason as to why his prosecution for
the substantive offences resulted in his discharge and as to
why the making of the preventive order was deemed necessary
even while he was in jail custody and had no
191
freedom of action, the conclusion is in escapable that the
impugned order has been passed mechanically and as a
colourable exercise of jurisdiction.
In the view that it is incumbent on the detaining authority
in such cases to disclose to the court all the material
circumstances on which its subjective satisfaction is based,
we are fortified by the observations of this Court in Noor
Chand Sheikh v. State of ’West Bengal, (supra) wherein A. C.
Gupta J. speaking for that Bench said
"We do not think it can be said that the fact
that the petitioner was discharged from the
criminal cases is entirely irrelevant and of
no significance; it is a circumstance which
the detaining authority cannot altogether
disregard. In the case of Bhut Nath Mate v.
State of West Bengal(1) this Court observed :
". . . detention power cannot be quietly used
to subvert, supplant or to substitute the
punitive law of the Penal Code. The immune
expedient of throwing into a prison cell one
whom the ordinary law would take care of,
merely because it is irksome to undertake the
inconvenience of proving guilt in court is
unfair abuse."
If, as the petitioner has asserted, lie was
discharged because there was no material
against him and not because witnesses were
afraid to give evidence against him, there
would be apparently no rational basis for the
subjective satisfaction of the detaining
authority. It is for the detaining authority
to say that in spite of the discharge he was
satisfied, on some valid material, about the
petitioner’s complicity in the criminal acts
which constitute the basis of the detention
order. But, as stated already, the District
Magistrate, Malda, who passed the order in
this case has not affirmed the affidavit that
has been filed on behalf of the State.
Apart from the question whether the
explanation is satisfactory, the fact remains
that in this case there is nothing to show
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that there was any rational material for the
subjective satisfaction of the authority who
passed the order of detention. Therefore, we
find it difficult in the circumstances of this
case to reject the contention that the order
of detention was passed mechanically and was a
colourable exercise of the power conferred by
the Act."
The ratio of Kartik Chandra Guha v. State of West Bengal
(supra), cited by Mr. Chatterjee. does not advance his case.
There, the District Magistrate who had passed the detention
order had clearly explained and disclosed on affidavit all
the material circumstances on which his satisfaction was
based, and further averred
(1) A.I.R. 1974 S.C. 806.
192
"Having regard to the activities of the detenu
as disclosed in the grounds of detention and
having regard to the possibility of (his)
being enlarged on bail, I was satisfied that
the detenu should be detained under the Act."
In the present case, ’there is nothing in the counter-
affidavit to show that on 21-8-1972, the date of the
detention order, the petitioner was about to be released on
bail or discharged for deficiency of evidence or difficulty
of its production in court. Nor is there any averment that
the District Magistrate was otherwise satisfied from
credible information received that the charges against the
detenu were true.
In the light of what has been said above, we would quash the
impugned order, make the rule absolute and direct the lease
of the petitioner.
V.M.K. Petition allowed.
193