Full Judgment Text
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PETITIONER:
TULSHI RABIDAS
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT27/01/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
GOSWAMI, P.K.
SARKARIA, RANJIT SINGH
CITATION:
1975 AIR 638 1975 SCR (3) 401
1975 SCC (3) 845
ACT:
Maintenance of Internal Security Act, Sec. 3--Subjective
satisfaction, meaning of--Some evidence gathered during
investigation which in some manner roped in the detenu, if
sufficient.
HEADNOTE:
In pursuance of the order of detention made by the District
Magistrate, West Dinajpur, on March 19, 1973, the petitioner
was taken into custody. The order of detention was intended
to prevent the petitioner from acting in a manner
prejudicial to the maintenance of supplies essential to the
community. The first ground related to the arrest of the
petitioner and his associates while they were smuggling 65
KGs. of paddy from West Dinajpur District to Malda District.
On being challenged by the patrol party he could not produce
any valid document in support of his carrying paddy at West
Dinajpur-Malda districts border. The second ground related
to the smuggling of paddy on 11/12-3-73 mid-night in 6
bullock carts by the petitioner and his associates from West
Dinajpur District to Malda District. On being challenged by
the Resistance Group Members, the petitioner and his
associates threatened to kill them and therefore, being thus
terrorised, they dared not apprehend the petitioner and his
associates.
Dismissing the Writ Petition challenging the order of
detention,
HELD : (i) The counter affidavit disclosed that a criminal
case had been instituted against the petitioner and his
associates for offences of illegal transport of paddy, for
resistance to the police, officers taking them into custody
and for escape from lawful custody. It further stated that
’due to dangerous and desperate nature of the detenu and his
associates’ the witness declined to give evidence in open
court for fear of their lives and that the final report was
submitted in the said case. This means that the charge-
sheet disclosed sufficient evidence to go before the Court
and it was not a case of absence of reasonable grounds of
suspicion. [403H-404B]
(ii) So far as the second ground is concerned, the absence
of material to show that a case has been charge-sheeted, in
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court is not destructive of the detention order provided
there is some material for subjective satisfaction of the
authority concerned. Whether the investigation was
conducted properly or not, whether the District Magistrate
should have pinned his faith on the- result of investigation
and like questions are not for the court to consider. But
the minimum which must be placed before the court is that
there was some evidence gathered during investigation which,
in some manner, roped in the petitioner. In the present
case, there is some evidence for the District Magistrate to
act. [404E-H]
(iii) Rhetorical assertions that the Presidential
proclamation of emergency has outlived its- reality and must
be annulled. cannot be transformed into proof. The reasons
given by this Court in Bhuth Nath’s case A.I.R. 1974 S.C.
806, holds good here too. [405E-F]
Samsher Singh’s case, A.I.R. 1974 S.C. 2192, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 349 of 1974.
Petition under Art. 32 of the Constitution of India.
H. S. Marwah, for the petitioner.
Sukumar Ghosh and G. S. Chatterjee, for the respondent.
402
The Judgment of the Court was delivered by
KRISHNA IYFR, J.-The case of the petitioner, a detenu in
West Bengal, has been presented at persistent length by Sri
Marwah, appearing as amicus curiae, but some of the many
contentions pressed by ’him merit serious notice which alone
we propose to deal with.
Now, the facts to the extent relevant. The order for
detention was made by the, District Magistrate, West
Dinajpur, on March 19, 1973 pursuant to which he was taken
into custody nine- days later. The calendar of ’statutory’
events discloses no infirmity but the content of the grounds
given by the District Magistrate and the order of approval
made by the State Government have been the focal points of
attack. Straightaway we proceed to set out the two criminal
involvements of the petitioner which allegedly persuaded the
authority to direct detention with a view, hereafter, to
inhibit this activities prejudicial to supplies essential to
the community. They are :
"(1) That on 6-3-73 at about 01.30 hours you
along with your associate Mangal Soran of
Gopalpur, P. S. Bangshihari, Dist. West
Dinajpur were arrested with 65 kgs. of paddy
in gunny bags within 1 K.M. of West Dinajpur-
Malda Border at Kandarpur, P. S. Banshihari,
Dist. West Dinajpur, by the patrol party of
Bagduar A/S Camp, P. S. Bangshihari, Dist.
Dinajpur while you and your said associates
were smuggling the said quantity of paddy from
West Dinajpur district to Malda district.
Being challenged by the patrol party you could
not produce any valid document in support of
your carrying paddy at West Dinajpur-Malda
districts border. This activity of yours
created scarcity of paddy within the juris-
diction of Bangshihari P. S.. Elaka of West
Dinajpur district and the price index of paddy
soared high and high beyond the purchasing
capacity of the common people of that area.
Thus you acted in a manner prejudicial to the
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maintenance of supplies essential to the
community. -
(2) That on 11/12/3-73 mid-night you along
with your associates were found smuggling
paddy in 6 bullock carts from Rakhalpukur,
P.S. Banshihari, Dist. West Dinajpur to Malda
district by some members of the local
Resistance group, namely Kamal Chandra Roy of
Deogaon, Narayan Chandra Sarkar of Mirshati,
both of P.S. Banshihari, Dist. West Dinajpur
and others. Being challenged by the Said
Resistance Group Members, you and your
associates threatened to kill them and being
thus terrorised the Resistance Group Members
dared not apprehend you and your associates
These activities of yours are mainly
responsible for the rise in price of paddy and
rice within Banshihari P.S. jurisdiction of
West Dinajpur district. By such illegal act
of smuggling of paddy you and your associates
created scarcity of paddy and rice in
Banshihari P.S. jurisdiction, Dist. West
Dinajpur and thereby acted in a manner
prejudicial to the maintenance of supplies
essential to the community.
4 03
From the above facts it is clear that you and
your associates are acting in a manner
prejudicial to the maintenance of supplies and
services essential to the community-
The past is the precursor and predictor of the future and
this commonsense canon is usually-and in this case-applied
by the authority to foretell the danger to the services and
supplies essential to the community by repetitive criminal
activity of the prospective detenu. Once the officer
entrusted with the power reads the omens with due care, the
court cannot reread for its own satisfaction. But if the
authority puts forward grounds so grotesque that he goofs
the law, as it were, the Court will invalidate, the order
for the well-worn reason that no rational being would have
formed the satisfaction which is a sine qua non for the
detention. Supra-rational hunch or infra-rational instinct
are not legal processes in this humdrum world and we have,
as sentinels, the duty to scan the basis of the subjective
satisfaction of the authority to check upon his minimal
aspect of, rational belief.
The grounds, as already set out, have to be considered to
appraise the claim of rational belief as against the charge
of a ’cyclostyled’ satisfaction. The crime of March 6,
1973, committed past mid-night by the petitioner and his
associates, is tell-tale in ’certain aspects. It relates to
removal of paddy in gunny bags. The smugglers were arrested
by the patrol party of Bagduar anti-,smuggling camp. The
culprits could not produce any permit in support of their
transport of the paddy. We have no doubt that smugglers
_disrupt supplies and services essential to the community
and a smuggler of today who gets away with it is likely to
be a smuggler of tomorrow, the habit of getting rich quick
dying hard. In this context, we have the counter-affidavit
which runs thus:
"It appears from the report submitted by I.O.
of the case that the petitioner was intimately
connected with the incidents mentioned in the
grounds of detention. I deny that the grounds
of detention are false and detention of the
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petitioner is illegal. It further appears
from the report of the said I.O. that with
reference to the first incident a Cr. Case
being Banshihari P. case No. 6 dated 6.3.73
was instituted against the petitioner and his
associates under Section 7 (1) of the
Essential Commodities Act and Section 224/225
of I.P.C. but as due to dangerous and
desperate nature of the detenu and his
associates the witnesses declined to give evi-
dence against-them in open court for fear of
their lives and final report was submitted in
the said case."
The inevitable inference from this statement, understood in
the background of the ’grounds,’ is that a criminal case had
been instituted against the petitioner and his associates
for offences of illegal transport of paddy, for resistance
to the police officers taking them into custody and for
escape from lawful custody. Sections 224 and 225 I.P.C.
clearly indicate this development. What follows is signi-
ficant. The Deputy Secretary in the Home Department (who
has sworn to the counter-affidavit), by a perusal of the
papers, states on
404
oath that ’due to dangerous and desperate nature of the
detenu and his associates’ the witnesses declined to give
evidence in open court for fear of their lives and the final
report was submitted in the said case.
The price that subjective satisfaction, as validating an
order and excluding judicial scrutiny, has to pay in a
court, is that if one of many grounds relied on by the
authority goes, undeniably the whole order falls, even
though if it were a case of objective satisfaction the court
might have attempted to sustain the order on the surviving
grounds. It is argued that for this reason, the detention
order in the present case must fail.
We have to be very careful where economic offenders injure
the soft underside of the community’s distribution and
consumption system in respect of essential commodities.
Viewed with meticulous care, we see from the affidavit filed
on behalf of the State that a criminal case had been
actually instituted against the petitioner under s.7(1) of
the Essential Commodities Act. This means that the charge-
sheet disclosed sufficient evidence to go before a court and
it was lot a case of absence of reasonable grounds of
suspicion. The possible argument that the affidavit had
left vague the likelihood of a report under S. 169 Cr.P.C.
based on no evidence is thus repelled. The order is not
vulnerable on this score.
So far as the second episode is concerned, the attack made
by counsel is that the counter-affidavit omits to mention
anything about the criminal case that must have followed.
True, there should have been a better affidavit, but the
absence of material to show that a case has been charge-
sheeted in court is not destructive of the detention order
provided there is some material for the subjective
satisfaction of the authority concerned. In the present
case, on the police report regarding the second incident,
which is a serious one, the authority might well have come
to an inference of prejudicial activity. We must express
our surprise at the silence in the counter-affidavit about
the action taken in court having regard to the fact that the
offence itself is one of transport by a ’caravan’ of bullock
carts. Even so, we are unable- to void the order on this
score, especially because the District Magistrate may well
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have acted on the police, report. Whether the investigation
was conducted properly or not, whether the District
Magistrate should have pinned his faith on the result of the
investigation and like questions, are not for the Court to
consider. But the minimum which must be placed before the
Court is that there was some evidence gathered during
investigation which, in some manner, roped in the
petitioner. We are prepared to hold that there is some
evidence for the District Magistrate to act and there we
pause.
We must frankly admit that the nature of the economic
offence has had some impact on our mind in examining the
order and the source material sedulously. The facts are
peculiar and other facts might have led to an opposite
inference. The caution that absentminded orders of
detention unwittingly suffer electrocution in court
405
should however not be forgotten, notwithstanding the
survival of the order in this case.
The country which faces food scarcity has resorted to arming
the government and its officers with special powers under
the MISA. They are intended to be exercised whenever
occasion arises, but exercised with care. In the present
case we have had to make up for deficiencies in the counter-
affidavit by a closer examination of materials, for reasons
already set out.
We should impress upon government and its- lesser officials,
armed with extraordinary powers, to use them for the
salutary purpose of the protection of the community in its
sensitive area of food and like essential articles. If
there is failure in this area, the officers must be taken to
task, for the victim is the country and the community. The
release of a detenu because the order has been passed
recklessly, is a matter which should be of concern to the
State. If the detenu is a dangerous criminal who disrupts
supplies and services essential to the life of the
community, release of the man caused by absence of nexus for
which the real though invisible responsibility falls on the
officer, must be looked into at higher levels, so that the
purposes of the MISA are not defeated by the neglect of
legality or indifference in operation from within. Official
vigilance is the price of social security and MISA is no
talisman. In the present case, for the special reasons set
out above, the order survives judicial scrutiny.
Shri Marwah opened vigorously with the submission that the
Presidential proclamation of emergency has outlived its
reality and must be annulled by this Court. He marshalled
what he variously called ’ notorious and ’historical’ facts
to establish that normalcy has prevailed in the land for
some time and the impenetrable secrecy of subjective
satisfaction’ no longer remained a sustainable proposition
after Samsher Singh’s Case(1). If the Emergency was
extinguished judicially and retroactively, the Defence of
India Act would have expired and the maximum period of
detention itself would have ended, resulting in a release of
the petitioner. For lovers of civil liberties a penumbra of
Emergency is anathema but the preliminary question in a
Court is whether the basic facts and necessary parties are
on record at all. Rhetorical assertions cannot be
transformed into proof and absent affected parties, the
Court’s jurisdiction cannot be activated. Further,
adjournment for this purpose at this late stage being
impermissible, we have to negative the plea. Moreover, the
reasons given by this Court in Bhut Nath’s Case (2) hold
good here too. We reject the belated
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(1) AIR 1974 SC 2192; (2) A.I.R. 1974 S.C. 806.
406
plea, hopeful that in the event of a future ruling of this
Court pronouncing the, state of emergency long ago legally
dead the petitioner will have the benefit of it at the hands
of the State. Observing silence for the nonce on the merits
of Shri Marwah’s undocumented contention, we reach the
conclusion that the petition is liable to be dismissed. We
however record appreciation of the painstaking services of
Mr. Marwah with a sense of involvement in the case, though
appearing as amicus curiae.
The petition is and the rule discharged.
V.M.K. Petition dismissed.
407