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PETITIONER: JOYDEB GORAI

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT24/07/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2173            1973 SCR  (1) 714  1972 SCC  (2) 417  CITATOR INFO :  E          1972 SC2686  (3)

ACT: West  Bengal (Prevention of Violent Activities) Act  (19  of 1970)  s.3(1)  (2) (d) and (3)-Threat to kill a  person  and disturbing public order-If valid ground of  detention-Period within  which  confirmation of order of detention  by  State Government should be passed.

HEADNOTE: Section  3(2) (d) of the West Bengal (Prevention of  Violent Activities,’ Act, 1970, amongst other things, provides  that the  committing of any offence punishable with  imprisonment for  a  term  extending  to  7  years  of  more,  where  the commission of such offence disturbs or is likely to  disturb public   order  would  be  within  the  definition  of   the expression   "acting  in  any  manner  prejudicial  to   the maintenance of public order". In  pursuance of an order under a. 3(1) and (3) of the  Act, the  petitioner was arrested on August 6, 1971, with a  view to  preventing him from acting in any manner prejudicial  to the maintenance of public order One of the grounds furnished to him was that he threatened to kill a person on account of his refusal to rub out the anti-naxalite slogan, written  on the wall of his house, that the threat terrorised the common public  and  as  such they could  not  pursue  their  normal avocations,  and that he disturbed public order.  The  State Government  confirmed the order on October 28,  1971,  after receipt of the opinion of the Advisory Board (Dismissing the petition under Art. 32 Challenging the order of detention. HELD  :  (1)  Under s. 506 I.P.C., a  threat  to  commit  an offence  punish  able with death or  imprisonment  for  life shall be punish-able with imprisonment of either description for  a term which may extend to 7 years.  Hence  the  ground furnished  was  not  extraneous  or  irrelevant  since   the petitioner.  had committed an offence enumerated in s.  3(2) (d) and there was disturbance of public order. [716A-C] (2)  There   was   no  delay  in  passing   the   order   of confirmation, since it was passed before the expiry of three months from the date of detention. [716H]

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Deb Sadhan Rov v. West Bengal, [1972] 1 S.C.C. 308 and Ujjal Manda v.  West Bengal, [1972] 1 S.C.C. 456. followed.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 39 of 1972. Petition  under Article 32 of the Constitution of India  for the enforcement of fundamental rights. S.   Lakshminarasu, for the petitioner. G.   L. Mukhoty and Sukumar Basu, for the respondent. The Judgment of the Court was delivered by Shelat,  J.  The District Magistrate,  Burdwan,  passed  the order  impugned in this petition on July 14, 1971  directing the 715 petitioner’s detention under sub-sec. (1) read with sub-sec. (3)  of  sec. 3 of the West Bengal  (Prevention  of  Violent Activities)  Act, being President’s Act XIX of 1970, on  the ground  that  such detention was necessary "with a  view  to preventing him from acting in any manner prejudicial to  the maintenance of public order".  In pursuance of the order the petitioner  was  arrested  on August 6,  1971  when  he  was furnished, as required by the Act. the grounds of detention. There is no dispute that consequent upon the passing of  the said  order  the  Government of West Bengal  and  the  other relevant   authorities   under  the  Act   duly   took   all consequential steps, such as the reporting to and  obtaining the Government’s order of approval, reporting to the Central Government,  disposal  of the  petitioner’s  representation, referring  the petitioner’s case to the Advisory  Board  and obtaining  its  opinion etc., within  the  respective  times prescribed by the Act. Two grounds questioning the, validity of the said order  and the  detention  thereunder  were,  however,  urged  by   Mr. Lakshminarasu,  appearing for the petitioner amicus  curiae. The  first  was  that the first ground  in  the  grounds  of detention  was irrelevant and therefore vitiated the  entire order.   The  second was that there was undue delay  in  the confirmation by the State Government of the detention  order and the continuance of detention thereunder after the expiry of three months of detention.               The  first ground in the grounds of  detention               runs as follows               "That  on 7-2-71 at 13-30 hours you  and  your               associates  had  been  to the  house  of  Shri               Bibhuti Bhusan Ghosh of Ranchi Dhowrah, Police               Station Kulti, and asked him to rub [out]  the               anti-naxalite  slogans written on the wall  of               his  house.  Being refused you  threatened  to               kill him.  Your such act terrorised the common               public  and as such they could not pursue  the               normal  avocations  of  life.   Moreover,   it               disturbed public order." The  question  is whether threat to kill  the  said  Bibhuti Bhusan Ghosh amounted to " acting in any manner  prejudicial to-the  maintenance of public order" as, defined in  sec.  3 (2) (d) of the Act.  Cl. (d), amongst other things  provides that  committing  any  offence  punishable  with  death   or imprisonment  for life or imprisonment for a term  extending to  seven  years  or more, where  the  commission  of  such, offence disturbs or is likely to disturb public order, would fall  within tile said definition of the expression  "acting in  any  manner  prejudicial to the  maintenance  of  public order".  Sec. 506 of the Penal Code provides that threat to

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716 cause  death  or  grievous  hurt  or  to  cause  an  offence punishable  with  death or imprisonment for  life  shall  be punishable  with  imprisonment of either description  for  a term  which may extend to seven years or with fine or  both. That  being so, the offence said to have been  committed  by the petitioner clearly was one of the offences enumerated in cl.  (d) of sec. 3 (2) of the Act.  Ground No.  (1)  further alleges that the threat to kill the said Ghosh  administered to  him  on  account of his refusal to  rub  out  the  anti- naxalite  slogans written on the wall of his house  "terror- ised the common public and as such they could not pursue the normal avocations of life" and furthermore, disturbed public order.  This assertion, coupled with the satisfaction of the other  requirement  of cl. (d) of sec. 3  (2),  namely,  the committal of the offence of threatening to kill, would bring the  act  in question within the expression "acting  in  any manner  prejudicial to the maintenance of public  order"  as defined in sec. 3 (2).  It cannot, therefore, be argued that ground  No. (1) was extraneous or irrelevant to the  objects set out in sec. 3 of the Act and in respect of which a valid order of detention could be made under the Act. The second contention also is not such as ran be  sustained. There  is  no dispute that the petitioner  was  arrested  on August  6,  1971  and  the order  of  confirmation  and  the impugned  detention  thereunder beyond the period  of  three months  was  passed by the State Government on  October  28, 1971,  that  is  within three months from the  date  of  his arrest.   Counsel, however, argued that though the  decision of  this  Court  have  laid  down  that  such  an  order  of confirmation  has to be passed within three months from  the date of arrest, the appropriate Government has to pass  such an  order as soon as possible and cannot delay in  doing  so until the expiry of three months.  In Deb Sadhan Roy v. West Bengal(1),  a  case under the President’s Act XIX  of  1970, this  Court  laid  down  that  it  was  essential  that  the appropriate  Government should take positive action  on  the report  of  the  Advisory Board, which  action  alone  would determine  whether  the detention was to  be  terminated  or continued,  that  it would, therefore, prima  facie,  appear that action should be taken immediately after the receipt of the  opinion  of  the Board, or at any  rate,  within  three months from the date a person was detained, and that failure to  confirm or extend the period within three  months  would result  in  the detention becoming illegal, the  moment  the three  months period elapsed without any  such  confirmation This  decision, thus, makes it clear that the legality of  a detention  order  or the detention thereunder would  not  be affected  it an order of confirmation is passed  before  the expiry of three (1)[1972] 1 S.C.C. 308. 717 months  from  the date of detention.   Similarly,  in  Ujjal Mandal v. West  Bengal(1),  Mathew,  J.,  speaking  for  the Court, observed at  page 459 of the report as follows:               "To put the matter in a nut-shell : the  State               Government has power under the Act to detain a               person without trial beyond a period of  three               months-,  but limited to a period of on  year.               That  power the State Government may  exercise               on  receipt of the opinion of the  Board  that               there  is sufficient cause for the  detention.               When   the  State  Government  receives   that               opinion,  it has still the option to  exercise               the power and to continue the detention beyond

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             the   period   of   three   months   or   not.               Confirmation  is the exercise of the power  to               continue  the  detention after the  expiry  of               three months.  Unless that power is  exercised               within  the  period of three months  from  the               date  of  detention, the detention  after  the               expiry  of  that period would be  without  the               authority of the law." Therefore, if the order of confirmation has been passed,  as it  has been done in the present case, within three  months’ time  from the date of arrest, neither the legality  of  the detention  order nor the continued detention  thereunder  is affected. Both the  contentions raised by counsel thus having failed, the petition   also must fail and is consequently dismissed. V.P.S.                     Petition dismissed. (1) [1972] IS.C.C.456. 718