Full Judgment Text
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PETITIONER:
PUSHKAR MUKHERJEE & ORS.
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT:
07/11/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.
CITATION:
1970 AIR 852 1969 SCR (2) 635
1969 SCC (1) 10
CITATOR INFO :
RF 1972 SC 665 (8)
R 1972 SC1256 (8)
R 1972 SC1647 (5)
RF 1972 SC1668 (6,7)
R 1972 SC1749 (7)
R 1972 SC2132 (4)
R 1973 SC 295 (7)
D 1973 SC 897 (12)
E 1973 SC1062 (4)
R 1974 SC 156 (4,6)
R 1974 SC 183 (18)
R 1974 SC 255 (11)
F 1975 SC 134 (6)
RF 1975 SC1215 (5)
R 1979 SC1925 (8,13)
R 1981 SC2166 (21)
RF 1985 SC 18 (15)
E 1987 SC 998 (2,6,9)
RF 1987 SC1748 (11)
RF 1988 SC 208 (7)
F 1989 SC 491 (17,19)
E 1990 SC 496 (6)
R 1990 SC1086 (18)
ACT:
Preventive Detention Act, s. 3(1)--"Public order", meaning
of--whether takes in assault on solitary individuals-One of
the grounds irrelevant or vague--If detention sustainable.
HEADNOTE:
In petitions for the writ of habeas corpus under Art. 32 of
the Constitution for release from detention under orders
passed under s. 3(2) of the Prevention of Detention Act,
HELD: The reasonableness of the satisfaction of the
detaining authority cannot be; questioned in a Court of law;
the adequacy of the material on which the said satisfaction
purports to rest also cannot be examined in a Court of law.
But if any of the grounds furnished to the detent are found
to be irrelevant while considering the application of cls.
(i) to (iii) of s. 3(1)(a) of the Act and in that sense are
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foreign to the Act, the satisfaction of the detaining
authority on which the order of detention is based is open
to challenge and the detention order liable to be quashed.
[640 H--641 C]
Even if any one of the grounds or reasons that led to the
satisfaction was irrelevant, the order of detention would be
invalid even if there were other relevant grounds, because
it could never be certain to what extent the bad reasons
operated on the mind of the authority concerned or
whether the detention order would have been made at
all if only one or two good reasons had been before them.
Similarly, if some of the ground supplied to the detent are
so vague that they would virtually deprive the detent
of his statutory right of making a representation, that
again may make the order of detention invalid. If,
however, the grounds on which the order of detention
proceeds are relevant and germane, to the matters which fall
to be considered under s. 3(1)(a) of the Act, it would not
be open to the detenu to challenge the order of detention by
arguing that the satisfaction of the detaining authority is
not reasonably based on any of the said grounds. Though the
satisfaction of the detaining authority contemplated by s.
3(1)(a) is the subjective satisfaction of the said
authority, cases may arise: where the detenu may challenge
the validity of his detention on the ground of mala fides.
[641 B--F, 644 C-D]
In the present case, (1) with respect to some of the
petitioners three of the grounds of detention related to
cases of assault on solitary individuals either by knife or
by using crackers. It could not be held that these grounds
had any relevance or proximate connection with the
maintenance of public order. Therefore the orders of
detention of these petitioners were illegal and ultra
virex.
The expression "public order" in s. 3 (1) of the Act does
not take in every kind of infraction of law. When two
people quarrel and fight ’and assault each other inside a
house or in a street, it may be said that there is disorder
but not public disorder. Such cases are dealt with under
the powers vested in the executive authorities under the
provisions of ordinary criminal law but the culprits cannot
be detained on the
636
ground that they were, disturbing public order. The
contravention of any law always affects order but before it
can be said to affect public order, it must affect the
community or the public at large. A line of demarcation
between serious and aggravated forms of disorder which
directly affect the community or injure the public
interest must be drawn and the, relatively minor breaches
of peace of a purely local significance which primarily
injure specific individuals and only in a secondary sense
public interest. A mere disturbance of law and order
leading to disorder is thus not necessarily sufficient for
action under the Preventive Detention Act but a disturbance
which will affect public order comes within the scope of
the Act. A District Magistrate is therefore entitled to
take action under s. 3( 1 ) of the Act to prevent subversion
of public order but not in aid of maintenance of law and
order under ordinary circumstances. The difference= between
the concepts of ’public order’ and ’law and order’ is
similar to the distinction between ’public’ and ’private’
crimes in the realm of jurisprudence. In considering the
material elements of crime, the historic Jests which each
community applies are intrinsic wrongfulness and social
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expediency which are the two most important factors which
have led to the designation of certain conduct as criminal.
’Public’ and ’private’ crimes have been distinguished in the
sense that some Offences primarily injure specific persons
and only secondarily the public interest, while others
directly injure the public interest and affect individuals
only remotely. [641 H--642 D; 643 G, H]
The State of Bombay v. Atma Ram: Sridhar Vaidya, [1951]
S.C.R. 167; Dr. Ram Manohar Lohia v. State of Bihar, [1966]
1 S.C.R. 709; Shibban Lal Saksena v. The State of Uttar
Pradesh, [1954] S.C.R. 418, followed.
(2) One of the grounds of detention supplied to some of
the other petitioners, stated, that they had become a menace
to the society and there had been disturbances and confusion
in the lives of peaceful citizens of the locality and that
the inhabitants thereof were in constant dread of
disturbances of public order. The ground was extremely
vague and gave no particulars to enable the petitioners to
make an adequate representation against the order of
detention and this infringed the Constitutional safeguard
provided under Art. 22(5). Therefore, the orders of
detention of these petitioners were illegal and ultra vires.
The Constitutional requirement that the ground must not
be vague must be satisfied with regard to each of the
grounds communicated to the person detained subject to the
claim of privilege under el. (6) Art. 22 of the Constitution
and therefore even though one ground was vague and the other
grounds were not vague, the detention was not in accordance
with procedure established by law and was therefore illegal.
[648 B---C]
Dr. Ram Krishan Bhardwaj v. The State of Delhi, [1953]
S.C.R. 708, followed.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 179 of 1968.
Petition under Art. 32 of the Constitution of India for a
writ in the nature of Habeas corpus.
R.L. Kohli, for the petitioners.
Debabrata Mukherjee and P.K. Chakravarti, for the
respondent.
The Judgment of the Court was delivered by
Ramaswami, J. In this case the petitioners have.
obtained a rule calling upon the respondent, viz., The State
of West Bengal
637
to show cause why a writ of habeas corpus should not be
issued under Art. 32 of the Constitution directing their
release from detention under orders passed under s. 3(2)
of the Preventive Detention Act, 1950 (Act IV of 1950),
hereinafter called the ’Act’.
Cause has been shown by Mr. Debabrata Mukherjee and
other Counsel on behalf of the respondent to whom notice of
the rule was ordered to be given.
The case of the petitioners will be considered in the
following three groups: (1) Petitioners nos. 2, 4, 5, 6, 16,
17, 20 and 26, (2) Petitioners nos. 1, 3, 7, 10, 12, 13, 19
and 22, (3) Petitioners nos. 8, 9 and 21. By the order of
this Court dated October 18, 1968, the cases as regards
petitioners nos. 11, 14, 15, 18, 23, 24, 25, 27 to 30 were
dismissed as they were reported to have been released.
As regards petitioner no. 5, Subhas Chandra Bose alias
Kanta Bose, the order of detention was made on January 20,
1968 by the District Magistrate, Howrah and reads as
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follows:
"No. 202/C Dated, Howrah, the 20th January, 1968
WHEREAS I am satisfied with respect to the
person known as Shri Kanta Bose alias Subhas Chandra Bose
son of Shri Sishir Kumar Bose of 26, Nilmoni Mallick Lane,
P.S. and Distt Howrah, that with a view to preventing him
from acting in any manner prejudicial to the maintenance of
public order it is necessary so to do , therefore, in
exercise of the powers conferred by Section 3(2) of the
Preventive Detention Act, 1950 (Act IV of 1950), I make
this order directing that the said Shri Kanta Bose alias
Subhas Chandra Bose be detained.
Given under my hand and seal of office.
Sd/- D.C. Mookherjee
District Magistrate Howrah.
On the same date’ the following grounds of detention were
communicated to the detenu:
"You are being detained in pursuance of a detention
order made under sub section (2) of section 3 of the
Preventive Detention Act, 1950’ (Act IV of 1950) on the
following grounds:
Sup C1/69-8
638
2. You have been acting in a manner prejudicial to the
maintenance of public order by commission of offences
of riotous conduct, criminal intimidation and assault as
detailed below :--
(a) That on 3-11-65 at about 17/30 hrs. you assaulted
Shri Ashutosh Dutta son of Shri Pyari Mohan Dutta of 55,
M.C. Ghosh Lane, P.W. Howrah at the crossing of Panchanan
Tala Road and M.C. Ghosh Lane, with knife causing bleeding
injuries on his hand.
(b) That on 8-10-66 at about 16.00 hrs. while Shri
Mahesh Prosad Bhagal son of Balgobinda Bhagal of 16,
Belilious Road, P.S. Howrah was playing in an open field,
you along with your associates demanded money from him and
on his refusal you hurled cracker on him causing grievous
injury on his right leg-
(c) That on 8-6-67 at about 11.40 hrs. you accosted one
Sushanta Kumar Ghosh son of Manmatha Ghosh of 2/1/1,
Danesh Sk. Lane inside a saloon at 255, Panchanantala
Road on previous grudge and being intervened by Shri Shyamal
Biswas son of Sandhya Biswas of 255, panchanantala Road,
P.S. Howrah, you whipped out a dagger and assaulted Shri
Biswas with the dagger causing injury on his hand.
(d) That on 23-11-67 at about 22.45 hrs. you
hurled cracker on A.S.I.B. Kundu of Bantra P.S.
while he was coming to Howrah along panchanantala Road in
a wireless van and caused injury to the A.S.I. and damage
to the wireless van.
(e) That on 7-1-68 at about 18.30 hrs. you threatened
one Satya Narayan Prosad son of Late purusattam Prosad of
10, Debnath Banerjee Lane, P.S. Howtab with assault at the
crossing of M.C. Ghosh Lane and Bellilious Road.
3. You are hereby informed that you may make a
representation to the State Government within 30 days of
the receipt of the detention order and that such
representation should be addressed to the Assistant
Secretary to the Government of West Bengal, Home
Department, Special Section, Writers’ Buildings, Calcutta
and forwarded through the Superintendent of the Jail in
which you are detained.
4. You are also informed that under Section 10 of the
Preventive Detention Act, 1950 (Act IV of 1950) the Advisory
Board shall if you desire to be heard you in person and that
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if you desire to be so heard by the
639
Advisory Board you should intimate such desire in your
representation to the State Government.
Sd/-D.C. Mookerjee
District Magistrate Howrah."
On March 19, 1968 the Advisory Board made a report under
s. 10 of the Act stating that there was sufficient cause for
detention of Sri Kanta Bose alias Subhas Ch. Bose. On March
30, 1968 the Governor of West Bengal confirmed the detention
order under s. 11 (1) of the Act.
Section 3 of the Act provides:
"3. (1) The Central Government or the State
Government may--
(a) If satisfied with respect to any person that with
a view to preventing him from acting in any manner
prejudicial to--
(i) the defence of India, the relation of India with
foreign powers or the security of India, or
(ii) the security of the State or the maintenance of
public order, or
(iii) the maintenance or supplies and a services
essential to the community, or
(b) if satisfied with respect to any person who is a
foreigner within the meaning of the Foreigners Act 1946
(XXXI of 1946), that with a view to regulating his continued
presence-in India or with a view to making arrangements for
his expulsion from India, it is necessary so to do, make an
order directing that such persons be detained.
(2) Any of the following officers, namely,-(a) District
Magistrates,
(b) Additional District Magistrates specially empowered in
this behalf by the State Government,
(c) the Commissioner of Police for Bombay, Calcutta,
Madras or Hyderabad,
(d) Collector in the State of Hyderabad, may
satisfied as provided in sub-clauses (2) and (3) of
clause (a) of sub-section (1 ) exercise powers conferred by
the said sub-section.
640
(3) When any order is made under this
section by an officer mentioned in sub-section
(2) he shall forthwith report the fact to the
State Government to which he is subordinate
together with grounds on which the order has
been made and such other particulars as in his
opinion have a bearing on the matter, and no
such order made ’after the commencement of the
Preventive Detention (Second Amendment) Act,
1952, shall remain in force for more than
twelve days after the making thereof unless in
the meantime it has ’been approved by State
Government.
(4) When any order is made or approved
by the State Government under this section,
the State Government shall, as soon as may be,
report the fact to the Central Government
together with the grounds on which the order
has been made and such other particulars as in
the opinion of the State Government have
bearing on the necessity for the order."
Section 7 is to the following effect:
"7. ’(1) When a person is detained in
pursuance of a detention order, the authority
making the order shall, as soon as may be, but
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not later than five days from the date of
detention, communicate to him the grounds on
which order has been made, and shall afford
him the earliest opportunity if making a
representation against the order to the
appropriate Government.
(2) Nothing in sub-section (1) shall
require the authority to disclose facts which
it considers to be against the public interest
to disclose."
It will be noticed that before an order of detention can
be validly made by the detaining authorities specified by s.
3(2) of the Act, the authority must be satisfied that the
detention of the person is necessary in order to prevent
him from acting in any prejudicial manner as indicated in
cls. (i) to (iii) of s. 3(1) (a). It is well-settled that
the satisfaction of the detaining authority to which s. 3(1
)(a) refers is a subjective satisfaction, and so is not
justifiable. Therefore it would not be open to the detenu
to ask the Court to consider the question as to whether the
said satisfaction of the detaining authority can be
justified by the application of objective tests. It would
not be open, for instance, to the detenu to contend that the
grounds supplied to him do not necessarily or reasonably
lead to the conclusion that if he is not detained, he would
indulge in prejudicial activities. The reasonableness of the
satisfaction of the detaining authority cannot be questioned
in a Court of law; the adequacy of the material on
641
which the said satisfaction purports to rest also cannot be
examined in a Court of law. That is the effect of the true
legal position in regard to the satisfaction contemplated
by s. 3(1)(a) of the Act--(See the decision of this Court
in The State of Bombay v. Atma Ram Sridhar Vaidya(1).
But there is no doubt that if any of the grounds
furnished to the detenu are found to be irrelevant while
considering the application of cls. (i) to (iii) of s.
3(1)(a) and in that sense arc foreign to the Act, the
satisfaction of the detaining authority on which the order
of detention is based is open to challenge ’and the
detention order liable to be quashed. Similarly, if some of
the grounds supplied to the detenu are so vague that they
would virtually deprive the detenu of his statutory right of
making a representation, that again may make the order of
detention invalid. If, however, the grounds on which the
order of detention proceeds are relevant and germane to the
matters which fall to be considered under s. 3 ( 1 ) ( a )
of the Act, it would not be open to the detenu to challenge
the order of detention by arguing that the satisfaction of
the detaining authority is not reasonably based on any of
the said grounds.
It is also necessary to emphasise in this connection
that though the satisfaction of the detaining authority
contemplated by s. 3 (1) (a) is the subjective
satisfaction of the said’ authority, cases may ’arise where
the detenu may challenge the validity of his detention on
the ground of mala fides. The detenu may say that the
passing of the order of detention was an abuse of the
statutory power and was for a collateral purpose. In
support of the plea of mala fides the detenu may urge that
along with other facts which show mala fides, the grounds
served on him cannot rationally support the conclusion drawn
against him by the detaining authority. It is only in this
incidental manner that this question can become justifiable;
otherwise the reasonableness or propriety of the said
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satisfaction contemplated by s. 3(1)(a) cannot be questioned
before the Courts.
The question to be considered in the present case is
whether grounds (a), (b) and (e) served on Subhas Chandra
Bose are grounds which are relevant to "the maintenance of
public order". All these grounds relate to cases of assault
on solitary individuals either by knife or by using crackers
and it is difficult to accept the contention of the
respondent that these grounds have any relevance or
proximate connection with the maintenance of public order.
In the present case we are concerned with detention under s.
3( 1 ) of the Preventive Detention Act which permits
apprehension and detention of a person likely to act in a
manner prejudicial to the maintenance of public order. Does
the expression "public(1) [1951] S.C.R. 167.
642
order" take in every kind of infraction of order or only
some categories thereof. It is manifest that every act of
assault or injury to specific persons does not lead to
public disorder. When two people quarrel and fight and
assault each other inside a house or in a street, it may be
said that there is disorder but not public disorder. Such
cases are dealt with under the powers vested in the
executive authorities under the provisions of ordinary
criminal law but the culprits cannot be detained on the
ground that they were disturbing public order. The
contravention of any law always affects order but before
it can be said to affect public order, it must affect the
community or the public at large. In this connection we
must draw a line of demarcation between serious and
aggravated forms of disorder which directly affect the
community or injure the public interest and the relatively
minor breaches of peace of a purely local significance which
primarily injure specific individuals and only in a
secondary sense public interest. A mere disturbance of
law and order leading to disorder is thus not necessarily
sufficient for action under the Preventive Detention Act but
a disturbance which will affect public order comes within
the scope of the Act. A District Magistrate is therefore
entitled to take action under s. 3 (1 ) of the Act to
prevent subversion of public order but not in aid of
maintenance of law and order under ordinary circumstances.
In Dr. Ram Manohar Lohia v. State of Bihar(1), it was held
by the majority decision of this Court that the expression
"public order" was different and does not mean the same
thing as "law and order". The question at issue in that
case was whether the order of the District Magistrate, Patna
under Rule 30(1)(b) of the Defence of India Rules, 1962
against the petitioner was valid. Rule 30( 1 )(b) provided
that a State Government might, if it was satisfied with
respect to a person that with a view to preventing him from
acting in a manner prejudicial to ’public safety and
maintenance of public order’ it is necessary to do so, order
him to be detained. The order of the District Magistrate
stated that he was satisfied that with a view to prevent the
petitioner from acting in any manner prejudicial to the
’public safety and the maintenance of law and order,’ it was
necessary to detain him. Prior to the making of the order
the District Magistrate had, however, recorded a note
stating that having read the report of the Police
Superintendent that the petitioner’s being at large was
prejudicial to ’public safety’ and ’maintenance of public
order’, he was satisfied that the petitioner should be
detained under the rule. The petitioner moved this Court
under Art. 32 of the Constitution for a writ of habeas
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corpus directing his release from detention, contending that
though an order of detention to prevent acts prejudicial to
public order may be justifiable ,an order to prevent acts
prejudicial to law and order would not be justified by the
rule. It was held by the majority judgment that what was
(1) [1966] 1 S.C.R. 709,
643
meant by maintenance of public order was the prevention of
disorder of a grave nature, whereas, the expression
’maintenance of law and order’ meant prevention of disorder
of comparatively lesser gravity and of local significance.
At page 746 of the Report, Hidayatullah, J. as he then
was, observed as follows in the course of his judgment:
"It will thus appear that just as
’public order’ in the rulings of this Court
(earlier cited) was said to comprehend
disorders of less gravity than those affecting
’security of State’, ’law and order’ also
comprehends disorders of less gravity than
those affecting ’public order’. One has to
imagine three concentric circles. Law and
order represents the largest circle within
which is the next circle representing public
order and the smallest circle represents
security of State. It is then easy to see
that an act may affect law and order but not
public order just as an ’act may affect
public order but not security of the State.
By using the expression ’maintenance of law
and order’ the District Magistrate was
widening his own field of action and was
adding a clause to the Defence of India
Rules."
The order no doubt mentioned another ground of detention,
namely, the prevention of acts prejudicial to public safety,
and in so far as ’it did so, it was clearly within the rule.
But the order of detention must be held to be illegal,
though it mentioned a ground on which a legal order of
detention could have been based, because it could not be
said in what manner and to what extent the valid and invalid
grounds operated on the mind of the authority concerned
and contributed to the creation of his subjective
satisfaction. It was accordingly held that the order
of detention made by the District Magistrate was
invalid and the petitioner should be set at liberty. In our
opinion, the principle laid down in this case governs the
decision in the present case also and the order of the
District Magistrate, Howrah dated January 20, 1968 must be
held to be ultra vires and illegal.
The difference between the concepts of ’public order’
and law and order’ is similar to the distinction between
’public’ and ’private’ crimes in the realm of
jurisprudence. In considering the material elements of
crime, the historic tests which each community applies are
intrinsic wrongfulness and social expediency which are the
two most important factors which have led to the designation
of certain conduct as criminal. Dr. Allen has distinguished
’public’ and ’private’ crimes in the sense that some
offences primarily injure specific persons and only
secondarily the public interest, while others directly
injure the public interest ’and affect indivi-
644
duals only remotely. (see Dr. Allen’s Legal Duties, p.
249). There is a broad distinction along these lines, but
differences naturally arise in the application of any such
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test. The learned author has pointed out that out of 331
indictable English offences 203 are public wrongs and 128
private wrongs.
The argument was, however, stressed by Mr. Mukherjee on
behalf of the respondent that the other grounds, viz., (c)
and (d) mentioned in the order of the District Magistrate
dated January 20, 1968 are more serious in character and
may be held prejudicial to public order. We shall assume in
favour of the respondent that grounds (c) and (d) are
matters prejudicial to: public order. But even upon that
assumption the order of detention must be held to be
illegal. It is now well-established that even if any one of
the grounds or reasons that led to the satisfaction is
irrelevant, the order of detention would be invalid even if
there were other relevant grounds, because it can never be
certain to what extent the bad reasons operated on the
mind of the authority concerned or whether the detention
order would have been made at all if only one or two good
reasons had been before them.--(See the decisions of this
Court in Shibban Lal Saksena v. The State of Uttar
Pradesh(1) and Dr. Ram Manohar Lohia v. State of Bihar(2).
For these reasons we hold that the order of detention
made by the District Magistrate, Howrah under s. 3(2) of the
Act dated January 20, 1968 against petitioner Subhas Chandra
Bose alias Kanta Bose and the consequent order made by the
Governor dated March 30, 1968 confirming the order of
detention under s. 11 (1 ) of the Act must be declared to be
illegal and accordingly the petitioner. Subhas Chandra Bose
alias Kanta Bose is entitled to be released from custody
forthwith.
In the case of petitioner 2, Sukumar Chaudhury, no. 4,
Tarapada Bhowmick, no. 6, Golam Rasul Molliek, no. 16, Sk.
Sharafat, no. 17, Hanif Mirza, no. 20, Sk. Mann, and no. 26,
Chittaranjan Majhi, the orders of detention suffer from the
same defect as that in the case of petitioner no. 5, Subhas
Chandra Bose alias Kanta Bose. For the reasons already
given we hold that the orders of detention made under s.
3(2) of the Act and the orders of confirmation by the State
Government under s. 11 (1 ) of the Act in the case of all
these petitioners are illegal and ultra vires and these
petitioners are also entitled to be set at liberty
forthwith.
We pass on to consider the case of the petitioner
mentioned in Group 2. As regards Pushkar Mukherjee,
petitioner no.
(1) [1954] S.C.R. 418.
(2) [1965] 1 S.C.R. 709;-
645
the order of detention was made by the District Magistrate,
24--Parganas on September 19, 1967 and reads as follows:
"Whereas I am satisfied with respect to
the person known as Shri Pushkar Mukherjee,
son of Late Jaladhar Mukherjee, Madhyamgram
(Bireshpally), P.S. Baraset, Dist. 24-Parganas
that with a view to preventing him from acting
in a manner prejudicial to the maintenance of
Public order, it is necessary so to do.
And, therefore, in exercise of the
power conferred by Section 3(2) of the
Preventive Detention Act, 1950 (Act IV of
1950) I make this oder directing that
the said
Shri Pushkar Mukherjee, son of Late Jaladhar
Mukherjee be detained.
Sd. B. Majumdar,
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District Magistrate,
24-Parganas."
The grounds of detention were served upon the detenu on the
same date and are to the following effect:
"Grounds for detention under sub-section 2 of section 3
of the Preventive Detention Act 1950 (Act IV of 1950).--
To
Shri Pushkar Mukherjee,
s/o Late Jaladhar Mukherjee,
of Madhyamgram (Bireshpally), P.S.--Baraset,
District--24-Parganas.
In pursuance of the provision of Section 7 of the
Preventive Detention Act, 1950 (Act IV of 1950) as amended
by the Preventive Detention (Amendment) Act, 1952 and 1954,
you Shri Pushkar Mukherjee, s/o Late Jaladhar Mukherjee of
Madhyamgram (Bireshpally), P.S. Baraset, 24-Parganas are
hereby informed that you are being detained under section
3(1)(a)(ii) of the Preventive Detention Act, 1950 on the
following grounds :--
1. That you have been acting in a manner prejudicial to
the maintenance of public order by the commission of
offences of riotous conduct, criminal intimidation and
assault as detailed below :--
(i) That on 26-3-1967 at about 11.00 hrs. you along with
your associates Harisikesh Samadder ’and others being armed
with dagger, spear and iron rods demanded money for drinks
from Shri Joy Nath Roy in his Khatal at Katakhal Ganga
Nagar, P.S. Baraset and on his refusal to pay the money you
along with your associates dragged him out of his room and
assaulted’ him and his friend Sudhir Ghose causing injuries
on their persons.
646
(ii) That on 19-6-1967 evening you along with your
associates threatened Sushil Kumar Chakravorty of
Madhyamgram with assault when he was returning home from New
Barrackpore Rly Station apprehending that he might inform
the police for your arrest in connection with Baraset P.S.
Case no. 56 dated 24-3-1967 u/s 302/394 I.P.C. which was
pending investigation.
(iii) That on 8-7-1967 at about 22.00 hrs. you along with
your associates Kalyan Chakraborty and others again
threatened Shri Sushil Kumar Chakraborty of Madhyamgram with
assault out of previous grudge when he was returning to his
house from New Barrackpore Rly Stn.
(iv) That you were detained for your rowdy activities
u/s 30(1) of the D.I. Rules 1962 from 22-4-1964 under Govt.
Order no. 1233 H.S. dated 15-4-1964 and was released from
detention on 4-10-1965.
(v) That for your rowdy activities you were detained
on 19-9-1966 under P.D. Order no. 163/66 which was
confirmed under Govt. Order no. 8999 H.S. dated 26-11-1966
and you were released from such detention on 13-3-1967 under
Order no. 1095 H.S. dated 13-3-1967 during General release.
II. Thus from your activities subsequent to your release
from detention under the P.D. Act on 13-3-1967 it appears
that the detention did not produce the sobering effect on
you. You have become a menace to the society and there have
been disturbances and confusion in the lives o,f peaceful
citizens of Baraset and Khardah P.S. areas under 24-Parganas
District and the inhabitants thereof are in constant dread
of disturbances of public order.
III. For the above reasons, I am satisfied that you are
likely to act in a manner prejudicial to the maintenance of
public peace and order, and therefore, I have passed an
order for your detention to ensure the maintenance of Public
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Order.
IV. You are further informed that you have right to make
a representation in writing against this order under which
you are detained. If you wish to make such a
representation, you should address it to the Assistant
Secretary, Govt. of West Bengal (Home Special) Department,
Writers’ Buildings, Calcutta through the Superintendent of
your Jail as soon as possible. Your case will be submitted
to the Advisory Board within 30 days of your detention and
your representation if received later, may not be considered
by the Board.
V. You are also informed that under Section 10 of the
Preventive Detention Act, 1950 (Act IV of 1950), the
Advisory Board, shall, if you desire to be heard, hear you
in person and that if you desire to be so heard by the
Advisory Board you should
647
A intimate such desire in your representation to the State
Government.
Sd. B. MAJUMDAR.
District Magistrate, 9-9-67.
24 -Pargan as."
On May 23, 1968, the Advisory Board reported that there was
sufficient cause for detention of the detenu. On June 12,
1968 the Government of West Bengal confirmed the order of
detention under s. 11 ( 1 ) of the Act.
It appears to us that ground no. 2 is extremely vague.
Ground no. 2 states "You have become a menace to the society
and there have been disturbances and confusion in the lives
of peaceful citizens of Baraset and Khardah P.S. areas
under 24-Parganas District and the inhabitants thereof are
in constant dread of disturbances of public order." It is
manifest that this ground is extremely vague and gives no
particulars to enable the petitioner to make an adequate
representation against the order of detention and thus
infringes the constitutional safeguard provided under Art
22 ( 5 ) Reference may be made in this connection to the
decision of this court in the state of Bombay v. Alma Ram
ion of this Court in The State Sridhar Vaidva(1) in which
Kania of Bombay v. Atma Ram C.J. observed as follows:
"What is meant by vague ? Vague can be
considered as the antonym of ’definite’. If
the ground which is supplied is incapable of
being understood or defined with
sufficient certainty it can be called vague.
It is not possible to state affirmatively
more on the question of what is vague. It
must vary according to the circumstances of
each case. It is however improper to contend
that a ground is necessarily vague if the only
answer of the detained person can be to
deny it. That is a matter of detail
which has to be examined in the light of the
circumstances of each case. If on reading the
ground furnished it is capable of being
intelligently understood and is
sufficiently definite to furnish materials to
enable the detained person to make a
representation against the order of
detention it cannot be called vague. The
only argument which could be urged is that the
language used in specifying the ground is so
general that it does not permit the
detained’ person to legitimately meet the
charge against him because the only answer
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which he can make is to say that he did not
act as generally suggested. In certain cases
that argument may support the contention
that having regard to the general language
used in the ground he has not been given the
earliest opportunity to make a
representation against the order of
detention. It’ cannot be disputed that the
represen-
(1) [1951] S.C.R. 167.
648
tation mentioned in the second part of
article 22(5). must be one which on being
considered may give relief’ to the detained
person."
It was, however, argued by Mr. Debabrata Mukherjee on behalf
of the respondent that even though ground no. 2 may be
vague, the other grounds supplied to the detenu are not
vague and full and adequate particulars have been furnished.
But it is well-established that the constitutional
requirement that the grounds must not be vague must be
satisfied with regard to each of the grounds communicated to
the person detained subject to the claim of privilege under
cl. (6) of Art. 22 of the ConstitUtion ’and therefore even
though one ground is vague and the other grounds are not
vague, the detention is not in accordance with procedure
established by law and is therefore illegal.--(See the
decision of this Court in Dr. Ram Krishan Bhardwaj v. The
State of Delhi(1). For these reasons we hold that the order
of detention made against the petitioner, Pushkar Mukherjee
by the District Magistrate, 24-Parganas on September 19,
1967 and ’the consequent order of the Governor of West
Bengal dated June 12, 1968 confirming the order of detention
were illegal and ultra vires and the petitioner is entitled
to be set at liberty forthwith.
In the case of petitioners no. 3, Barun Kumar Hore, no.
7 Karfick Dey, no. 10, Ajit Basak, no. 12, Sk. Idris, no.
13, Shamsuddin Khan, no. 19, Khokan Mitra and no. 22, Ranjit
Kumar Ghosal, the orders of detention suffer from the same
legal defect as the order of detention in the case of
petitioner no. 1, Pushkar Mukherjee. For the reasons
already stated, we hold that the orders of detention and
the orders of confirmation made by the State Government
under s. 11 (1 ) of the Act in the case of these seven
petitioners also are illegal and ultra vires and these
petitioners are also entitled to be set at liberty
forthwith.
As regards the cases of the remaining petitioners, nos.,
8, 9 and 21, Chandan P. Sharma, Sk. Sahajahan and Bind
Parmeshwar Prasad, alias Bindeshwari Prosad respectively, we
have persued the orders of detention and the grounds
supplied to these petitioners. It is not shown by learned
Counsel on their behalf that there is any illegality in the
orders of detention or in the subsequent procedure followed
for confirming these orders. In our opinion, no ground is
made out for grant of a writ of habeas corpus so far as
these petitioners are concerned. Their applications for
grant of a writ of habeas corpus are accordingly rejected.
We desire to say that we requested’ Mr. Kohli to assist
us on behalf of the petitioners and we are indebted to him
for his assistance.
Y.P.
Petitions dismissed.
(1) [1953] S.C R. 708.
649
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