Full Judgment Text
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PETITIONER:
MOHD. SUBRATI ALIAS MOHD. KARIM
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT14/11/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
ALAGIRISWAMI, A.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 207 1973 SCR (2) 990
1973 SCC (3) 250
CITATOR INFO :
R 1973 SC2455 (8)
F 1974 SC 806 (20)
RF 1974 SC1336 (14)
R 1986 SC 610 (6)
RF 1986 SC2177 (29)
F 1989 SC1282 (9)
ACT:
Maintenance of Internal Security Act (26 of 1971), s. 3 (1)
and (2) Scope of.
Duty of State to place before Court all matters relevant to
the detention and of officers swearing to affidavits to be
careful.
HEADNOTE:
The petitioner committed thefts of electric copper wire and
when challenged by the inhabitants of the area, he and his
associates hurled bombs at them. The thefts totally
disrupted the electric supply for several hours in the areas
concerned. The petitioner was detained by an order of
preventive detention under s. 3(1) and (2) of the Mainten-
ance of internal Security Act, 1971. In a petition under
Art. 32 he contended that he ought to have been proceeded
against in a court of law a,-id that the investigating
agency did not put him on a regular trial for want of
evidence.
HELD : (1) (a) The Act was necessitated because in view of
the prevailing situation in the country and the developments
across the border the existing laws available to deal with
the situation were found to be inadequate and it was
considered necessary for urgent and effective preventive
action, in the interest of national security, to have
powers- of preventive detention to deal effectively with
threats to the defence and the security of India. Section 3
of the Act carries out the statutory purpose of preventive
detention and has nothing to do with trial and punishment of
person-, for commission of offences. If, therefore, for any
reason, it is not possible to successfully try and secure
the conviction a,-Id imprisonment of the persons concerned
for their past activities, which amount to an offence, but
which are also relevant for the satisfaction of the
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detaining authority for considering it necessary that a
detention order under s. 3 be made for preventing such
persons from acting in a prejudicial manner as contemplated
by the section, then the Act would made. The detention
order in such a case cannot be challenged on the ground that th
e
detained person should have been tried for the offence
committed or that proceedings under Chan. VIII Cr. P. C.
could have been initiated against him. The Act creates in
the authorities concerned, a new jurisdiction to make orders
of preventive detention on their subjective satisfaction of
grounds of suspicion of commission in future of acts
prejudicial to the community. This jurisdiction is
different from that of judicial trial in courts and of
judicial orders for prevention of offences. Therefore, even
an unsuccessful judicial trial or proceeding would rot
operate as a bar to the detention order. or render it ala
fide. [993 B-H, 994 A-C]
Saheb Singh Dugal v. Union of India. [1966] 1 S.C.R. 313, S.
C. Bose & anr. v. C. C. Bose [1972] 2 S.C.R. 607 and
Borjahan Gorey v. State of West Bengal [1972] 2 S.C.R. 550
followed
(b) The right to personal liberty is protected by the
Constitution, but this liberty is not absolute and is not to
be understood to amount to license to indulge in activities
which wrongfully and unjustly deprive the community or
society of essential services and supplies. The
99 1
right of society as a whole is, from its very nature, of
much greater importance than that of an individual, and in
case of conflict between the two, the individual’s right is
subjected by the Constitution to reasonable restriction to
the larger interests of society. [996 D-F]
(c) In the present case, the grounds of detention are
clear, relevant and germane to the object and purpose for
which preventive detention is authorised by the Act, and the
detention order is not open to challenge. [996 B-D]
(2) This Court normally accepts without reservation the
sworn affidavits of responsible officers on the assumption
that the facts stated therein are absolutely true and that
there is no misstatement or concealment of relevant facts.
it is therefore obligatory on the part of the State to place
before the Court all the relevant facts relating to the
impugned detention truly, clearly and with utmost fairness,
and it is incumbent on the officer concerned, swearing the
counter affidavit, to take good care to satisfy himself that
what he states on oath is absolutely true according to the
record. [996 F; 997 A-D]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 307 of 1972.
Petition under Article 32 of the Constitution of India for a
writ in the nature of habeas corpus.
jagmohan Khanna for the petitioner.
G. S. Chatterjee for the respondent.
The Judgment of the Court was delivered by
DUA, J.-The petitioner in these proceedings for a writ in
the nature of habeas corpus under Art. 32 of the
Constitution is one Mohd. Subrati alias Mohd. Karim
detained in the Burdwan Jail pursuant to the impugned order
of detention dated February 9, 1972 made by the District
Magistrate, Burdwan in exercise of the powers conferred on
him by sub-s. (1) read with sub-s. (2) of s. 3 of the
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Maintenance of Internal Security Act No. 26 of 1971
(hereinafter called the Act). The said District Magistrate,
as is clear from impugned order, was satisfied that with a
view to preventing the petitioner from acting in any manner
prejudicial to the maintenance of supplies and services
essential to the community it was necessary to make the
order directing that he be detained. The ground of
detention were duly served on him at the time of his arrest
on February 11, 1972. Those grounds are
"1. That on 6-1-72 at about 03.30 has. you
along with your associates including (1) teka
Bahadur son of Shri Harak Bir Bahadur of
Hutton Road, P.S. Asansol, Dist. Burdwan, (2)
Shri Ganesh Das, son of Shri Chote Das of Gour
Mondal Road, P.S. Asansol, Dist. Burdwan
committed theft in respect of electric copper
wire (about 1500 ft. in length) at Hatgarui
near Sen-Releigh Water Pump, P.S. Asansol,
Dist. Burdwan. As a result of this theft,
water supply as
9 92
well as electric supply in Sen-Releigh Housing
Colony, P.S. Asansol, Dist. Burdwan was
totally disrupted for about 8 hours to the
sufferings of the people of the locality.
2. That on 12-1-72 at about 04.00 hrs. you
along with your associates including (1) Teka
Bahadur son of Shri Harak Bir Bahadur of
Hutton Road, P.S. Asansol Dist. Burdwan (2)
Ganesh Das, son of Shri Chote Das of Gour
Mondal Road, P.S. Asansol, Dist. Burdwan
committed theft in respect of electric copper
wire (about 3000 ft. in length) from the
electric poles at ’C’ Block, Son Releigh
Housing Colony, P.S. Asansol Dist. Burdwan.
When challenged by the inhabitants of the
area. you and your associates hurled bombs to-
wards them. By your act, electric supply was
totally disrupted in ’C’ Block area, Sen
Releigh Housing Estate and its adjoining areas
for more than 12 hours causing much
inconvenience to the people of the loca-
lity,"
The fact of making the order of detention was duly reported
to the State Government on February 9, 1972, the date of the
order. The State Government approved that order on February
21, 1972 and the necessary report submitted to the Central
Government the same day. The petitioner, as stated by him
in the petition for habeas corpus, was produced before and
heard in person, by the Advisory Board on April 10, 1972.
The Board, according to the respondent, gave its decision
the same day. The representation made by the petitioner was
received by the State Government on March 16, 1972 and
considered by the said Government on March 22, 1972. The,
State Government confined the order of detention on May 5,
1972 and communicated its order to the detenu the same day.
The only submission pressed by Shri Jagmohan, the learned
counsel appearing as amicus curiae in support of the writ
petition, in assailing the order of detention is that,
according to the return itself, two cases for theft of
copper wires under s. 379, I.P.C. were registered against
the petitioner and others at the Asansol Police Station
(Case no. 16 dated 6th January, 1972 and case no. 20 dated
12th January, 1972), but as the witnesses examined under s.
161, Cr.P.C. were reluctant to depose against petitioner and
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his associates for fear of danger to their lives, the
Investigating Officer submitted as true, his final report
suspecting the petitioner and his associates. The order of
detention was for this reason described by Shri Khanna as
mala fide and, therefore, liable to be quashed. According
to the learned counsel in such cases criminal trial is the
only course open to the State and no order of detention is
legally competent. The counsel added that
993
if the criminal trial fails or the case is not launched
because it is liable to fail, the State has to remain
content with the result. It cannot deprive the suspected
person of his liberty under the Act. We art-- unable to
accept this contention.
The Act was brought on the statute book in 1971 in order to
provide for detention in certain cases for the purpose of
maintenance of internal security and matters connected
therewith. Its enactment was necessitated because in view
of the prevailing situation in the country and the
developments across the border it was considered necessary
for urgent and effective preventive action in the interest
of national security, to have powers of preventive detention
to deal effectively with threats to the defence and the
security of India because the existing laws available to
deal with the situation were not found to be adequate. The
emergent requirement for such a law would be obvious from
the fact that before its enactment it had been considered
necessary to promulgate the Maintenance of Internal Security
Ordinance, 1971 which was replaced by the present Act.
Under s. 3(1) of the Act, 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, inter alia, the security of the
State or the maintenance of supplies and services essential
to the community, it is necessary to, do so, make an order
directing that such person be detained. Sub-section (2) of
this section authorises District Magistrates and certain
other officers, if satisfied as above to exercise the power
conferred by sub-s. (1). it is quite clear that this section
carries out the statutory purpose of preventive detention
and it has nothing to do with trial and punishment of
persons for commission of offences. Indeed. it is precisely
because the existing law providing, for the punishment of
persons accused of commission of offences and,. for
prevention of offences, is not found adequate for dealing
with the situation for effectively preventing, in the
interest of national security etc., the commission of
prejudicial acts in future, that the provisions of this Act
were enacted and are intended to be utilised. If,
therefore, for any reason it is not possible to successfully
try and secure the conviction and imprisonment of the
persons concerned for their past activities, which amount to
an offence, but which are also relevant for the satisfaction
of the detaining authority for considering it necessary that
a detention order under s. 3 be made for preventing such
persons from acting in a prejudicial manner as contemplated
by that section, then, the Act would indisputably be
attracted and a detention order can appropriately be made.
The detention order in such a case cannot be challenged on
the ground that the person ordered to be detained was liable
to be tried for the commission of the offence or offences
founded on his conduct, on the basis of which, the detention
order has been
994
made or that proceedings under Chapter Vill, Cr.P.C. could
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be initiated against him. The object, scheme and language
of the Act is clearly against the petitioner’s submission.
The Act creates in the authorities concerned a new
jurisdiction to make orders for preventive detention on
their subjective satisfaction of grounds of suspicion of
commission in future of acts prejudicial to the community in
general. This jurisdiction is different from that of
judicial trial in courts for offences and of judicial orders
for prevention of offences. Even unsuccessful judicial
trial or proceeding would, therefore, not operate as a bar
to a detention order or render it mala fide. The matter is
also not res integra.
Indeed, while dealing with the Defence of India Rules which
also empowered the Government of India to make orders of
prevenitive detention this Court in Sahib Singh Dugal v.
Union of India(1) repelled a similar contention in the
following words
"The next contention on behalf of the
petitioners is that the order is mala fide.
The reason for this contention is that it was
originally intended to prosecute the
petitioners under S. 3 of the Official Secrets
Act and When the authorities were unable to
get sufficient evidence to obtain a conviction
they decided to drop the criminal proceedings
and to order the detention of the petitioners.
This by itself is not sufficient to lead to
the inference that the action of the detaining
authority was mala fide. It may very well be
that the executive authorities felt that it
was not possible to obtain a conviction for a
particular offence under the Official Secrets
Act, at the same time they might reasonably
come to the conclusion that the activities of
the petitioners which had been watched for
over two years before the order of detention
was passed were of such a nature as to justify
the order of detention. We cannot infer
merely from the fact that the authorities
decided to drop the case under the Official
Secrets Act and thereafter to order the
detention of the petitioners under the Rules
that the order of detention was mala fide. As
we have already said, it may not be possible
to obtain a conviction for a particular
offence; but the authorities may still be
justified in ordering detention of a person in
view of his past activities which will be of a
wider range than the mere proof of a
particular offence in a court of law. We are
not therefore prepared to hold that the orders
of detention in these cases were mala fide".
(1) [1966] 1 S.C.R. 313.
9 95
Thu decision was followed by this Court in Mohd. Salim Khan
v. C. C. Bose & anr. (1). A similar view was also taken by
this Court in Borjahan Gorey v. State of West Bengal(2)
where it was observed
"The preventive detention provided by the Act
is apparently designed to deal urgently and
effectively with the more serious situation,
inter alia, affecting the security of India
and the maintenance of public order as
contemplated by section 3 of the Act. The
liability of the detenu also to be tried for
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commission of an offence do not in any way as
a matter of law affect or impinge upon the
full operation of the Act. The reason is
obvious. Judicial trial for punishing the
accused for the commission of an offence is a
jurisdiction distinct from that of detention-
under the Act, which has in view, the object
of preventing the detenu from acting in any
manner prejudicial inter alia to the security
of the State or maintenance of public order.
The fields of these two jurisdictions are not
coextensive nor are they alternative. The
jurisdiction under the Act may be invoked,
when the available evidence does not come up
to the standard of judicial proof but is
otherwise cogent enough to give rise to
suspicion in the mind of the authority
concerned that there is a reasonable
likelihood of repetition of past conduct which
would be prejudicial inter alia to the
security of the State or the maintenance of
public order or even when the witnesses may be
frightened or scared of coming to a court and
deposing about past acts on which the opinion
of the authority concerned is based. This
jurisdiction is sometimes called the
jurisdiction of suspicion founded on past
incidents and depending on relate to the past
acts on which the opinion as to the likelihood
of the repetition of such or similar acts is
based and those grounds are furnished. to the
detenu to inform him as to how and why the
subjective satisfaction has been arrived at so
as to enable him to represent against them.
The fact, therefore, that a prosecution under
the Code could also have been launched is not
a valid ground for saving ,that it precludes
the authority from acting under the Act."
The grievance that the petitioner Ought to have been
proceeded against in a court of law and that the
investigating agency did not put him on a regular trial for
want of evidence can thus be
(1) [1972] 2 S.C.C. 607.
(2) [1972] 2 S.C.C. 550.
12-L521Sup.C.I./73
996
no bar to his detention if the detaining authority under the
Act is satisfied that it is necessary to make the order of
preventive detention on the grounds contemplated by the Act.
The grounds on the basis of which the petitioner has been
detained are clear, relevant and germane to the object and
purpose for which preventive detention is authorised by the
Act. The petitioner is stated to have committed theft of
electric copper wires on January 6 and 12, 1972. When he
was challenged by the inhabitants of the area he and his
associates hurled bombs towards them. The theft of electric
wire totally disrupted electric supplies for several hours
in the areas concerned. This conduct is very relevant for
satisfying the authority concerned that it is prejudicial to
the maintenance of supplies and services essential to the
community and if such authority considers it necessary on
this ground to detain him with a view to preventing him from
repeating such acts, then, the order of detention would
indubitably and legitimately fall within the purview of s. 3
of the Act. The detention order is not open to challenge in
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these proceedings on the grounds averred in the writ
petition and urged by the learned counsel at the bar. In
this connection, Shri Chatterji also drew our attention to
Arun Kumar v. State of West Bengal(1) and Sasti Chowdhary v.
State of West Bengal (2).
NO doubt, the right to Personal liberty of an individual is
jealously protected by our Constitution but this liberty is
not absolute and is not to be understood to amount to
licence to indulge in activities which wrongfully and
unjustly deprive the community of the society of essential
services and supplies. The right of the society as a whole
is, from its very nature, of such greater importance than
that of an individual. In case of conflict between the two
rights, the individuals right is subjected by our
Constitution to reasonable restrictions in the larger
interests of the society.
Before concluding, however, we consider it proper to refer
to one other matter which appears to be of importance.
According to the counter-affidavit the order of detention
has been approved by the State Government under s. 3 (3) of
the Act on February 18, 1972. This is clearly incorrect.
We find from the original order of approval from the record
(which was produced by the counsel for the State under our
directions) that it was draft on February 19, 1972 but
actually signed by the Deputy Secretary on behalf of the
Government on February 21, 1972. The order of approval
must, therefore, be considered to have been made only on the
day when it was signed, i.e., February 21, 1972. We are
unable to find any cogent reason for the sworn assertion in
the
(1) A.I.R. 1972 S.C. 1858.
(2) A.I.R. 1972 S.C. 1668.
997
counter-affidavit that this order had been approved on
February 18, 1972. We feel that the counter-affidavit
produced in this Court in answer to the challenge to the
preventive detention of the detenu should contain all the
facts correctly and full disclosure must be made without any
reservation. It must be remembered that the personal
liberty of an individual has been given an honoured place in
the fundamental rights which our Constitution has jealously
protected against illegal and arbitrary deprivation, and
that this Court has been entrusted with a duty and invested
with a power to enforce that fundamental right. It is,
therefore, obligatory on the part of the State to place
before this Court all the relevant facts relating to the
impugned detention truly, clearly and with the utmost
fairness. This Court normally accepts without reservation
the sworn affidavits by responsible officers on the
assumption that the facts stated therein are absolutely true
and that there is no misstatement or concealment of relevant
facts. It is, therefore, incumbent on the officer concerned
swearing the counter-affidavit to take good care to satisfy
himself that what he states on oath is absolutely true
according to the record.
This petition fails and is dismissed.
V.P.S. Petition dismissed.
998