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PETITIONER: GORA

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT11/12/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. UNTWALIA, N.L.

CITATION:  1975 AIR  473            1975 SCR  (2) 996  1975 SCC  (2)  14  CITATOR INFO :  F          1975 SC 755  (1)  R          1979 SC 456  (8)  R          1984 SC 211  (2)  R          1988 SC1256  (12)  R          1990 SC 225  (7)

ACT: Maintenance  of Internal Security Act, 1971,  s.  3(3)-Delay between date of incident and date of order and delay between date of order and date of detention-Effect of-Public  order, scope of-Forthwith’, meaning of.

HEADNOTE: The  petitioner was directed to be detained by an  order  of the  Dist.   Magistrate under the  Maintenance  of  Internal Security  Act,  1971.  with a view to  preventing  him  from acting in a manner prejudicial to the maintenance of  public order.   The  order was made on December 29, 1973.  and  the fact  of  making  the  order  was  reported  to  the   State Government  on January 2, 1974.  He was arrested on Jan.  8. 1974.   The  grounds  of  detention  referred  to  only  one incident,  namely,  that  on the night  of  25/26-6-73,  the petitioner  along with his associates being armed with  fire arms,  raided  a house, looted cash and  ornaments  brutally assaulted some of the inmates and fired indiscriminately  a. result of which the house owner and his neighbour  sustained grievous injuries and subsequently died. The  petitioner  challenged the detention order  in  a  writ petition on the following grounds :-(1) There was a time lag of 6 months between the date of the incident and the date of order  and-  hence  the Dist.   Magistrate  could  not  have possibly  arrived  ’.It his Subjective satisfaction  on  the basis of that incident, (2) the incident merely affected law and order and not public order, (3) the District  Magistrate had  taken into account other material in the history  sheet which  was not disclosed to the petitioner. in  arriving  at his  subjective  satisfaction, (4) there was a delay  of  20 days  in arresting the petitioner pursuant to the  order  of detention, and (5) there was a delay of 5 days in  reporting the  fact  of  making the order of detention  to  the  State Government. Dismissing the writ, petition,

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HELD’.  (1) (a) There is no hard and fast rule  that  merely because  there is a time lag of about 6 months  between  the ’offending acts’ and the date of the order of detention  the causal link must be taken to be broken and the  satisfaction claimed  to  have been arrived at by the  Dist.   Magistrate must be   regarded  as sham or unreal.  Whether the acts  of the detenu forming the   basis     of     the     subjective satisfaction are too remote in time must depend on     the facts of each case.  The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the two dates.  The test is evolved by  the court for determining the main question whether  the past  activity of the detenu is such that from it a  reason- able  prognosis can be made as to the future conduct of  the detenu.  The prejudicial act of the detenu may be of such  a character  as to suggest that it is a part of  an  organised operation,  and in such a case, the detaining authority  may reasonably  feel  satisfied that the act which has  come  to light cannot be a solitary or isolated act but must be  part of  a  course  of conduct of  similar  activities  and  that therefore,  it  is necessary to detain him with  a  view  to preventing  him  from indulging in such  activities  in  the future. [999 C-G] In the present case, the act was a daring act of dacoity  in a  village  by  the petitioner’s gang,  and  judged  in  its correct  setting, it could not be a stray isolated  act  but must be the work of a habituated and hardened criminal given to  commit dacoities. and therefore, the  Dist.   Magistrate could reasonably arrive ,it a satisfaction that with a  view to  preventing him from carrying on such activities, it  was necessary to detain him. [999 G-H] (b)  Further, it was stated in the counter-affidavit that  a criminal  case  was  filed  in  the  Magistrates’  court  in connection with the identical incident on June 26, 1973  and the petitioner was arrested but it was found that  witnesses were  unwilling  to give evidence against  him.   The  Dist, Magistrate, 9 97 therefore. passed the order of detention in anticipation  of the  petitioner being released as a result of  dropping  the criminal  case against him.  The petitioner  was  discharged between January 3, 1974 and Jan. 18, 1974, and on the latter date  he  was once again arrested pursuant to the  order  of detention. [1000 A-D] Golam Hussain v. The Commissioner of Police, Calcutta & Ors. [1974]  4  S.C.C. 530 and Lakshman Khatik v. State  of  West Bengal. [1974] 4 S.C.C. I referred to. (2)The act alleged against the petitioner was calculated  to disturb the current of life of the community in the village. It  was  a  serious act of dacoity perpetrated  at  dead  of night.   It  created  panic in the  locality  and  seriously disturbed  the  even tempo of life of the community  in  the village.  It was clearly disturbance of public order and the act  of  the  petitioner  had  nexus  with  the  object   of maintenance of public order. [1001 E-G] Arun Ghosh v. State of Bengal [1970] 3 S.C.R. 288. followed. (3)  There was no factual basis for the contention that  the Dist.  Magistrate had taken into account any other  material not disclosed to the petitioner. [1002 A-B] (4)  (a) The delay of 20 days between the date of the  order of  detention and the date of arrest cannot be  regarded  as unreasonable. [1002 C-D] (b)  The  petitioner was in jail on Dec. 29, 1973  when  the order of detention was made and was once again arrested only after  he was released on some date between January 3,  1974

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and Jan. 18, 1974. and hence the delay was explained.  [1002 D-E] (5)  Section  3(3) of the Act requires that the fact of  the making of the order of detention must be reported  forthwith to  the  State  Government.   An act which  is  to  be  done forthwith must be held to have been so done when it is  done with  all reasonable despatch and without  avoidable  delay. It  is a very important requirement intended to secure  that the   State  Government  shall  have  sufficient  time   for consideration  before it decides-and the decision has to  be made within 12 days of the making of the order of detention- whether  or not to approve the order and the  Court.  would, therefore.  insist  on  strict compliance with  it  and  not condone avoidable delay even if it be trivial.  When them is an  interval of time between the date of order and the  date of report what has to be considered is whether the delay  in sending  the  report could have been avoided, or to  put  it differently, whether, in the present case. in spite of  all diligence,  the Dist.  Magistrate was not in a  position  to send the report until Jan. 2, 1974. [1003 A-C] In  the  present  case.  the  facts  stated  by  the   Dist. Magistrate  in his affidavit show that be acted with  prompt despatch and was not guilty of any avoidable delay.  On Dec. 29, 1973 he had passed 9 orders of detention and the  typing of  the material in connection with the 9 cases  took  time. Dec.  30 was a Sunday and he could not send the  reports  on Dec.  31  as  he  was very  busy  in  connection  with  food procurement  work.  Jan. 1, 1974 was a public  holiday,  and hence, he could send the report only on Jan. 2. [1003 C-E]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 379 of 1974. Petition under article 32 of the Constitution of India. Govinda Mukhoty, for the petitioner. P. K. Chatterjee and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by- BHAGWATI,  J.-The  District Magistrate, 24-Parganas,  by  an order  dated 29th December, 1973 made under sub-section  (1) read with subsection (2) of section 3 of the Maintenance  of Internal Security Act, 1971 directed that the petitioner  be detained as be was satisfied that with a view to preventing the petitioner from acting in a manner pre- 998 judicial to the maintenance of public order it was necessary to  detain  him.   The fact of the making of  the  order  of detention  was  reported by the District Magistrate  to  the State  Government  on  2nd  January,  1974  and  the   State Government,  by an order dated 8th January,  1974,  approved the order of detention.  Pursuant to the order of detention, ,the  petitioner  was  arrested on 18th  January,  1974  and immediately ,on his arrest he was served with the grounds on which  the  order  of detention was made.   The  grounds  of detention referred only to the incident as forming the basis of arriving at the subjective satisfaction ,,as regards  the necessity for detention of the petitioner and that  incident was in the following terms :               "On the night of 25/26-6-73 at about 00.1 hrs.               you  along  with your associates  being  armed               with  lethal.  weapons  including  fire   Arms               raided  the house of Ananta Keyal  of  Naitala               under  Diamond  Harbour P.S. and  looted  away               cash, ornaments etc.  At the time of operation               you fixed from your fire arms indiscriminately

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             disregarding human lives and their safety.  As               a result, the house owner Ananta Kayal and his               close  door  neighbour  Ajit  Kayal  sustained               grievous gun shot injuries on their  persons,               Subsequently both of them ,expired in  Diamond               Harbour Hospital.  You also brutally assulated               some   of   the  inmates  of  the   house   of               occurrence.  Your action created such panic in               the locality and the local people felt a sense               of  insecurity.   Thus you acted in  a  manner               prejudicial  to  the  maintenance  of   public               order." The  petitioner made a representation against the  order  of detention  on 29th January, 1974 but it was  considered  and rejected by the State Government on 31st January, 1974.  The State  Government  thereafter  submitted  the  case  of  the petitioner   to   the  Advisory  Board   along   ,with   his representation  and  the Advisory Board, after  bearing  the ,petitioner and taking into account the representation  made by him, ,made a report to the State Government on 6th March, 1974 stating that in its opinion there was sufficient cause for  the detention of the petitioner.  The State  Government accordingly   passed  an  order  dated  14th   March,   1974 confirming the detention of the petitioner.  This  detention is  challenged  by the petitioner in  the  present  petition which ’has been submitted from jail. The  first  contention urged Mr.  Mukhoty,  learned  counsel appearing  amicus  curiae on behalf of the  petitioner,  was that  the  solitary  incident  set out  in  the  grounds  of detention  was  so  remote from the date  of  the  order  of detention-in fact there was a time lag about six months that the  District Magistrate could not possibly have arrived  at his  subjective satisfaction on the basis of that  incident. The  requirement  of proximity, said Mr.  Mukhoty,  was  not satisfied and the subjective satisfaction said to have  been reached by the District Magistrate could not be regarded  as real  or  genuine.  Now it is true, as pointed out  by  this Court  in  Golam  Hussain v.  The  Commissioner  of  Police, Calcutta & Oi-.v.(1) that "there must be a live link between the  grounds of criminal activity alleged by  the  detaining authority and the purpose of (1)  [1974] 4 S.C C. 530. 99 9 detention, namely, inhibition of prejudicial activity of the species  specified in the statute.  This credible chain  is, snapped  if  there is too long and unexplained  an  interval between the offending acts and the order of detention.  Such is the ratio of proximity in Lakshman Khatik v.State of West Bengal(1).    No  authority,  acting  rationally,   can   be satisfied,  subjectively  or otherwise, of  future  mischief merely because long ago the detenu had done something  evil. To rule otherwise is to sanction a simulacrum of a statutory requirement.  But no mechanical test by counting the  months of  the interval is sound.  It all depends on the nature  of the  acts  relied on, grave and determined or  less  serious land corrigible, on the length of the gap, short or long, on the  reason for the delay in taking preventive action,  like information  of  participation being available only  in  the course of an investigation.  We have to investigate  whether the  casual connection has been broken in the  circumstances of  each case".  There is, therefore, no hard and fast  rule that merely because there is a time lag of about six  months between  the ’offending acts’ and the date of the  order  of detention,  the causal link must be taken to be  broken  and the  satisfaction  claimed to have been arrived  at  by  the

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District  Magistrate  must be regarded as  sham  or  unreal. Whether  the  acts  of  the detenu  forming  the  basis  for arriving  at  a subjective satisfaction are  too  remote  in point of time to induce any reasonable person to reach  such subjective  satisfaction  must  depend  on  the  facts   and circumstances of each case.  ’The test of proximity is no* a rigid  or  mechanical test to be blindly applied  by  merely counting  the number of months between the ’offending  acts’ and the order of detention.  It is a subsidiary test evolved by  the  court  for  the purpose  of  determining  the  main question  whether the past activities of the detenu is  such tat  from  it a reasonable prognosis can be made as  to  the future  conduct  of the detenu and its  utility,  therefore, lies  only  in so far as it subserves that  purpose  and  it cannot be allowed to dominate or drown it. ’The  prejudicial act of the detenu may in a given case of such a character as to suggest that it is a part of an organised operation of  a complex  of  agencies  collaborating  to  clandestinely  and secretly  carry  on such activities and in such a  case  the detaining  authority may reasonably feel satisfied that  the prejudicial act of the detenu which has come to light cannot be a solitary ’or isolated act, but must be part of a course of  conduct of such or similar activities  clandestinely  or secretly  carried  on by the detenu and  it  is,  therefore, necessary  to detain him with a view to preventing him  from indulging  in  such activities in the future.  Here  in  the present case, the, act alleged against the petitioner was  a daring  act of dacoity in a village by a gang consisting  of the petitioner and his associates and if this act is  judged in   its  correct  setting,  grave  proportions  and   clear implications,  it would be clear that it cannot be  a  stray isolated  act  but  must be the work  of  a  habituated  and hardened criminal given to commit dacoities and the District Magistrate   could,  therefore,  reasonably  arrive   at   a satisfaction  that with a view to preventing the  petitioner from carrying on such activities it was necessary to  detain him.   Moreover, the affidavit in reply filed on  behalf  of the  State Government by the Secretary in the Department  of Public Relations and Youth (1)  [1974] 4 S.C.C. 1. 1000 Services,  points out that in connection with  the  incident set  out  in the grounds of detention a  criminal  case  was filed  in  the  court  of  the  Sub-,  Divisional   Judicial Magistrate,  Diamond Harbour on 26th June, 1973 and  he  was arrested  in  connection  with that case,  but  it  appeared during  investigation that witnesses were unwilling to  give evidence  in  open  court against  the  petitioner  and  his associates and it was, therefore, felt that it was futile to proceed with the criminal case and it was decided to drop it against  the  petitioner.  Now, if the  criminal  case  were dropped,  the  petitioner would have to be released  and  in that  event  he  would be free to  carry  on  his  nefarious activities.  The District Magistrate, therefore, passed  the order  of  detention on 29th December, 1973.  The  order  of detention  was  in  fact  passed  in  anticipation  of   the petitioner  being  released as a result of dropping  of  the criminal case against him.  The record of the case which was produced  before  us  by the learned  counsel  appearing  on behalf  of  the  State showed that  the  criminal  case  was actually  pending  against the petitioner on.  3rd  January, 1974.   That  means that the criminal case  must  have  been dropped  and  the  petitioner  must  have  been   discharged sometime  between 3rd January, 1974 and 18th January,  1974, the  latter being the date when he was once  again  arrested

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pursuant  to the order of detention.  It is, therefore,  not possible to say that the District Magistrate could not  have arrived  at a subjective satisfaction or) the basis of  the- incident  set out in the grounds of detention, or  that  the subjective satisfaction reached by him was sham or unreal. Mr. Mukhoty on behalf of the petitioner then urged that even if  the  incident set out in the grounds of  detention  were true,  it merely affected maintenance of law and  order  and did not have any impact on public order and hence there  was no nexus between the act alleged against the petitioner  and the  subjective,  satisfaction  reached by   the  District Magistrate. Now, there can be no doubt that the acts of the detenu on which a subjective satisfaction is claimed to have been reached by the detaining authority must have  relevance to  the formation of such subjective satisfaction.   If  the acts of the detenu relied. on by the detaining authority are irrelevant, no reasonable person could possibly arrive at  a subjective satisfaction on the basis of such irrelevant acts and the subjective satisfaction said to have been reached by the  detaining authority would be a mere pretence.   It  is, therefore  necessary  to consider whether  the  act  alleged against the petitioner in the grounds of detention could  be said  to  be  relevant  to the  formation  of  a  subjective satisfaction that it was necessary to detain the  petitioner with  a  view  to preventing him from  acting  in  a  manner prejudicial  to the maintenance of public Order.   What  was the  potency  or radiation of the act  alleged  against  the petitioner: did it affect maintenance of public order or was its prejudicial effect confined merely to maintenance of law and  order?  The distinction between law and order,  on  the one  hand, and public order, on the other, has been  brought out admirably by Hidayatulla, C.J., in a recent decision  in Arun  Ghosh  v. State of West Bengal.(1) The  learned  Chief Justice  pointed  out in that case  the  difference  between maintenance  of  law and order and its disturbance  and  the maintenance  of  public  order and its  disturbance  in  the following words  (1)-[1970]3 S. C. R. 288 1001               "Public order was said to embrace more of  the               community than law and order.  Public order is               the  even tempo of the life of  the  community               taking  the  country  as a  whole  or  even  a               specified  locality.  Disturbance  of  public,               order   is  to  be  distinguished  from   acts               directed  against  individuals  which  do  not               disturb the society to the extent of causing a               general  disturbance of  public  tranquillity.               It is the degree of disturbance and its effect               upon  the life of the community in a  locality               which   determines  whether  the   disturbance               amounts  only  to a breach of law  and  order.               Take  for  instance,  a  man  stabs   another.               People may be shocked and even disturbed,  but               the  life of the community keeps moving at  an               even  tempo, however much one may dislike  the               act.  Take another case of a town where  there               is communal tension.  A man stabs a  different               sort.   Its  implications are  deeper  and  it               affects  the even tempo life and public  order               is  jeopardized because the  repercussions  of               the   act  embrace  large  sections   of   the               community  and  incite them  to  make  further               breaches  of the law and order and to  subvert               the public order.. . . It means therefore that

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             the question whether a man has only  committed               a  breach of law and order or has acted  in  a               manner  likely to cause a disturbance  of  the               public  order is a question of degree and  the               extent  of  the  reach of  the  Act  upon  the               society. . . . The question to ask is: Does it               lead to disturbance of the current of life  of               the community so as to amount to a disturbance               of  the public order or does it affect  merely               an individual leaving the tranquillity of  the               society undisturbed?" If  we  ask this question in relation to the  facts  of  the present  cases, it is obvious that the act  alleged  against the  petitioner  was calculated to disturb "the  current  of life of the community" in the village.  It was a serious act of  dacoity which was alleged against the petitioner and  it was perpetrated at dead of night and the petitioner and  his associates  who participated were armed with lethal  weapons including guns and they used these lethal weapons recklessly and  indiscriminately in utter disregard of human  life  and actually  caused grievous injuries to at least  two  persons and  beat up several others.  This act of dacoity created  a panic in the locality and seriously disturbed the even tempo of life of the community in the village.  There was  clearly disturbance of public order and the act alleged against  the petitioner  had  nexus  with the object  of  maintenance  of public  order.  The subjective satisfaction reached  by  the District  Magistrate  could not, therefore, he  said  to  be based on an irrelevant ground. Then  it was contended on behalf of the petitioner that  the District  Magistrate had taken into account  other  material contained in the history sheet of the petitioner in arriving at  his subjective satisfaction and since this material  was not  disclosed to the petitioner, he had no  opportunity  of making  an  effective representation and that the  order  of detention was, therefore, invalid.  Now, the proposition can no  longer  be disputed that if any material which  has  not been disclosed to the 17-L346SupCI75 10 0 2 Petitioner  has  gone into the formation of  the  subjective satisfaction  of  the detaining authority it would  have  an invalidating consequence on the order of detention.  But  in the pesent case it is not possible to say that any  material other than that that set out in the grounds of detention was taken  into account by the District Magistrate  in  reaching his subjective satisfaction- We have looked at the  history- sheet of the petitioner which was produced before us by  the learned counsel appearing on behalf of the State  Government and  we  do  not  find  any  material  prejudicial  to   the petitioner  other  than  that  set out  in  the  grounds  of detention.   There is, therefore, no factual basis for  this contention and it must be rejected. Mr.  Mukhoty  on  behalf of the  petitioner  also  tried  to persuade  us  to strike down the order of detention  on  the ground  that though the order of detention was made on  29th December,  1973, the petitioner was not arrested until  18th January,  1974 and there was thus a delay of twenty days  in arresting the petitioner pursuant to the order of detention- But  this  is equally unsustainable and for  two  very  good reasons.   In  the first., place. the delay of  twenty  days between  the date of the order of detention and the date  of arrest cannot be regarded as unreasonable.  Secondly,  there is sufficient explanation for the delay.  The petitioner was actually  in jail on 29th December, 1973 when the  order  of

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detention was made and it was only on some date between  3rd January,  1974 and 18th January, 1974 that lie was  released and then once again arrested on 18th January, 1974. The  last contention urged by Mr. Mukhoty on behalf  of  the petitioner  was that though the order of detention was  made by  the District Magistrate an 29th December, 1973,  he  did not report the fact of the making of the order of  detention to  the State Government until 2nd January, 1974  and  there was  thus  a delay of about five days  which  constituted  a violation  of the statutory requirement of section  3,  sub- section  (3  ) that the fact of the making of the  order  of detention   must   be  reported  forthwith  to   the   State Government.  This contention raises the question as to  what is the true meaning and connotation of the word  ’forthwith’ as  used  in section 3 sub-section (3).   The,  question  is fortunately not res integra.  It is concluded by a  decision of   this   Court  in  Keshav  Nilkanth  Joglekar   v.   The Commissioner  of  Police, Greater Bombay.(1)  The  statutory provision  which came up for consideration in that case  was section 3, sub-section (3) of the Preventive Detention  Act, 1950  which contained an identical provision as  section  3. subsection  (3)  of the present Act and the  question  which arose  was as to whether Commissioner who made the order  of detention  on  13th  January, 1956 could  be  said  to  have reported that fact ’forthwith’ to the State Government under section  3, sub-section (3) when he did so as late  as  21st January,  1956.  The Court was, therefor-., called  upon  to construe the word ’forthwith’ in section 3, sub-section  (3) and after discussing various authorities, English as well as Indian,  bearing  on the interpretation of  this  word,  the Court,  speaking through Venkatarama Ayyar, J.  pointed  out that : "On these authorities, it may be taken. an act which is to be done forthwith must be held to (1)   [1956] S. C. R. 653. 1003 have  so done, when it is done with all reasonable  despatch and without avoidable delay", and proceeded to add :  "under section  3(3) it is whether the report has been sent at  the earliest  point  of  time possible, and when  there,  is  an interval of time between the date of the order and the  date of  the  report, what has to be considered  is  whether  the delay  in  sending the report could  have  been  avoided-the result  then is that the report sent by the Commissioner  to the  State  on  21-1-1956 could be held to  have  been  sent ’forthwith’  as  required  by  section  3(3),  only  if  the authority could satisfy us that, in spite of all  diligence, it  was  not  in a position to send the  report  during  the period.  from  13th to 21st January, 1956".  The  same  test must  be  applied in the present case and  we  must  inquire whether the District Magistrate sent the report to the State Government   "with  all  reasonable  despatch  and   without avoidable  delay",  or, to put it  differently,  whether  in spite of all diligence the District Magistrate was not in  a position  to send the report until 2nd January, 1974.   Now, the District Magistrate has made an affidavit explaining the reason  for  the delay in sending the report  to  the  State Government.   He has pointed out that 29th  December,  1973, which was the date when the order of detention was made, was a Saturday and on that day he had passed eight other  orders of detention and the materials in connection with all  these nine cases had to be typed out by the typist which could not possibly be completed in one single day. 30th December, 1973 was  a Sunday and, therefore, the earliest when  the  report could  be  submitted  to  the  State  Government  was   31st December, 1973.  But the District Magistrate could not  send

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the  report  on that day as he was very busy  in  connection with food procurement work in the district and the next day, namely,  1st  January,  1974  being  a  public  holiday,  he could  send  the  report only on 2nd  January,  1974.   This explanation  given  by the District Magistrate  it,  in  our opinion,  sufficient to show that he sent the report to  the State Government with all reasonable despatch and there  was no avoidable delay on his part.  Whilst taking this view  on facts,  we  do not wish to underscore the  need  for  strict compliance  with this requirement of section 3,  sub-section (3).  It is a very important requirement intended to  secure that  the  State Government shall have sufficient  time  for consideration before it decides-and this decision has to  be made  within  twelve  days of the making  of  the  order  of detention-whether  or not to approve the order of  detention and the Court would, therefore, insist on strict  compliance with  it  and  not condone avoidable delay, even  if  it  be trivial  But  in the present case the facts  stated  by  the District Magistrate in his affidavit show that be acted with prompt  despatch and was not guilty of any avoidable  delay. The  District  Magistrate must, therefore, be held  to  have sent  the report ’forthwith’ as required by section 3,  sub- section (3). These  were  the  only contentions urged on  behalf  of  the petitioner in support of the petition and since there is  no substance  in  them,  the petition fails  and  the  rule  is discharged. V.P.S. Petition dismissed. 10 04