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PETITIONER: MOHD.  DHANA ALI KHAN

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT11/04/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA UNTWALIA, N.L.

CITATION:  1976 AIR  734            1976 SCR  124  1975 SCC  (2) 586  CITATOR INFO :  R          1989 SC 371  (14)

ACT: Maintenance of Internal Security Act, 1971-Whether a  single incident of theft in a running train at night had nexus with disturbance   of  public  order--S.  14-Whether  confers   a discretionary  power on the Central Government to revoke  or modify  an  order-Detaining  authority  had  other  material before him at the time of passing the order-Whether vitiates the order of detention.

HEADNOTE: The  petitioner  was detained under the  provisions  of  the Maintenance  of Internal Security Act, 1971.  In a  petition under  Art. 32 of the Constitution the petitioner  contended that a single incident of theft committed in a train had  no nexus  with the disturbance of public order, (2) that  under S.  14 of the Act it was open to the Central  Government  to revoke  or  modify the order of  detention  and,  therefore, there  must be some material to show that the Government  of India applied- its mind under S. 14 of the Act and (3)  that the  District  Magistrate  was not only  influenced  by  the grounds served on the petitioner but also by other materials on  the  record  and  as such the  order  of  detention  was vitiated. Allowing the petition, HELD.:(1) The ground mentioned in the order of detention did  have a nexus with the disturbance of public order.   It is true that the ground contained a single incident of theft of  valuable property from some passengers travelling  in  a running  train and may amount to robbery.  But that did  not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act.  The allegation was that the petitioner had snatched away a wrist watch  and a gold chain after putting the passengers of the compartment to  fear of death.  Secondly, the theft had taken  place  at night in a running train in a third class compartment.   The effect  of  it  would be to  deter  peaceful  citizens  from travelling  in  trains  at night.   This  would  undoubtedly disturb  the even tempo of the life of the community.  [126D to F] (2)There is no material on record to show that the Central

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Government did not apply its mind at all under S. 14 of  the Act.  Section 14 merely confers a discretion on the  Central Government to revoke or modify an order of detention made by the  State  Government.   It does not confer  any  right  or privilege  on the detenu.  It is for the Central  Government to  revoke or modify after the report was submitted  to  it. The mere fact that the Central Government did not choose  to revoke  or  modify the order of detention  without  anything more  cannot necessarily lead to the irresistible  inference that  the Central Government failed to apply its  mind.   It cannot,  therefore, be said that as the  Central  Government did  not apply its mind tinder S. 14 of the Act, this  would invalidate the order of detention. [126G-H & 127A] (3)The  order  of detention suffers from  a  very  serious infirmity  which  goes  to  the root  of  the  matter.   The District  Magistrate was influenced not only by  the  ground which  was  served  on  the petitioner  but  also  by  other materials  on the record.  The history sheet of  the  detenu which  was  placed before the District Magistrate  had  been produced  and it could be seen from it that there were  four incidents,  many  of  which related  to  thefts  in  running trains.   It is true that in another place in his  affidavit the  District  Magistrate had stated that he  was  satisfied only  on the basis of the incident mentioned in  the  ground served  on  the petitioner.  But this was  contradictory  to what he had stated in the opening paragraph of the  counter- affidavit.   The  District Magistrate,  before  passing  the order of detention, had other materials also before him.  It cannot, therefore, be                             125 said  to what extent the District Magistrate was  influenced by  the  other materials and not by the  material  which  is mentioned in the ground of detention. [127E-G] Khudiram Das v. State of West Bengal, A.I.R. 1975 S. C. 550, referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 17 of 1975. Petition Under Article 32 of the Constitution of India. R. K. Jain-for the petitioner. Sukumar- Ghosh and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by- FAZAL ALI, J.-The petitioner assails the order of  detention passed  against  him  on August 23,  1973  by  the  District Magistrate, 24 Parganas.  A report was sent by the  District Magistrate  to  the Government on August 27,  1973  and  the detention  was  approved by the Government on  30th  August, 1973.    On   September   10,  1973  the   detenu   made   a representation  to  the  Government which  was  rejected  on September  12, 1973.  Thereafter the matter was referred  to the’  Advisory  Board and after obtaining  its  opinion  the order  of  detention  was confirmed  by  the  Government  on November 14, 1973.  We might also state that a report to the Central Government was also made immediately after the order of detention was passed. Mr. R. K. Jain appearing for the petitioner as amicus curiae has  been  of much assistance to us and  has  advanced  five contentions before us. In the first place he submitted  that there  was  sufficient  delay on the part  of  the  District Magistrate  in submitting his report to the  Government  and the  explanation  given by him is not  convincing.   In  the counter  affidavit,  however, the  District  Magistrate  has explained  that  he  had  to pass  almost  eight  orders  of

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detention on the 23rd August and all of them had to be typed out and as 26th August which was a Sunday had intervened, it was  not  possible  for  him  to  send  the  report  to  the Government earlier.  In the circumstances, we are  satisfied that the explanation given by the District Magistrate in his affidavit is convincing and satisfactory.  In Writ  Petition No. 23 of 1975 (Gopal Mandal v. State of West Bengal decided on  9th April, 1975) an identical explanation was  given  by the District Magistrate which was upheld by this Court.  For this  reason, the first contention raised by teamed  counsel is overruled. It  was  next  argued  that  the  order  of  the  Government rejecting  the  representation of the petitioner  is  not  a speaking order and therefore the detention is illegal.- This matter  appears to be concluded by a decision of this  Court in  John Martin v. State of West Bengal(1) following  Hardan Shah’s  case where a a similar argument put forward by  this Court was rejected outright.  This contention of the learned counsel does not therefore survive. It  was next contended that the ground of detention  served, on  him  amounted to a single incident ,And  had  no  causal connection with the (1)  Judgement in W.P. No. 467/74 dt. 21-1-1975 126 disturbance  of the public order.  The ground served on  the petition was as follows               "That on 3-8-1973 between 21-10 and 21-20 hrs.               you  and your associates  being  armed  with               daggers boarded a 3rd class compartment of  5L               257  Up train of E. Rly.  Sealdah Division  at               Gocharan  R. S. and putting the passengers  of               the compartment to fear of death snatched away               a  wrist  watch and a gold necklace  from  one               Nirmal  Chatterjee  and his  wife  in  between               Gocharan and Surajpur R. Ss. you then decamped               with booty from the running train at  Suryapur               R.’ S.               Your   action  caused  confusion,  panic   and               disturbed public order there then.               You have thus acted in a manner prejudicial to               the maintenance of public order." From  a  perusal  of  this  we  are  unable  to  accept  the contention  of the petitioner that this ground has no  nexus with  the disturbance of public order.  It is true that  the ground  contains  a  single incident of  theft  of  valuable property from some passengers travelling in a running  train and may amount to robbery.  But that does not by itself take the  case  out  of  the purview of  the  provisions  of  the Maintenance  of  Internal  Security  Act.   There  are   two pertinent facts which emerge from the grounds which must  be noted.   In  the  first place the  allegation  is  that  the petitioner had snatched away a wrist watch and a gold  chain after  putting the passengers of the compartment to fear  of jeath.   Secondly, the theft had taken place at night  in  a running train in a third class compartment and the effect of it  would be to deter peaceful citizens from  travelling  in trains at night and this would undoubtedly disturb the  even tempo  of the life of the community.  For these  reasons  we are  satisfied  that the ground mentioned in the  order  did have a nexus with the disturbance  of public order. The fourth contention put forward was that under s.14 of the Maintenance  of  Internal Security Act it was  open  to  the Central  Government  to  revoke  or  modify  the  order   of detention after receiving a report from the State Government and  therefore there must be some material to show that  the

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Government  of India applied its mind under section 14.   In the  first  place s.14 merely confers a  discretion  on  the Central Government to revoke or modify an order of detention made by the State Government.  It does not confer any  right or  privilege  on  the  detenu.   It  is  for  the   Central Government to revoke or modify after the report is submitted to  it.  The mere fact that the Central Government does  not choose  to revoke or modify the order of  detention  without anything  more cannot necessarily lead to  the  irresistible inference  that the Central Government failed to, apply  its mind.  So far as the State Government is concerned, its duty comes  to  an end after it has sent a report  regarding  the detention  order  to  the  Central  Government.   In   these circumstance it cannot be said by any stretch of imagination that  as  Central Government did not apply  its  mind  under section  14 of the Act, this would invalidate the  order  of detention.  There is no                             127 material  before us to show that the Central Government  did not apply its mind at all under section 14 of the Act.   The argument on this score is, therefore, rejected. Lastly,  it  was  contended that it would  appear  from  the affidavit  filed  by  the  District  Magistrate  that  while detaining  the  petitioner the District Magistrate  was  not only  influenced by the ground served on the petitioner  but also  by other materials on the record.  In paragraph  5  of the  counter  affidavit the District  Magistrate  stated  as follows:-               I  say that I made the detention  order  after               being bonafide satisfied from the materials on               record  (relating  to  the  detention  of  the               detenu)  that  with a view to  preventing  the               detenu  from acting in any manner  prejudicial               to  the  maintenance  of public  order  it  is               necessary to detain him under the provisions               of  the Maintenance of Internal Security  Act,               1971. 1 further say that the ground  furnished               to  the detenu is the only ground on  which  I               based my satisfaction for making the detention               order." It would thus appear that the District Magistrate has  taken a  contradictory  stand.  A close perusal  of  his  counter- affidavit would disclose that he was influenced not only  by the  ground which was served on the petitioner but  also  by other  materials  on the record.  The history sheet  of  the detenu  which was placed before the District Magistrate  has been produced before us and we find that there were as  many as four incidents many of which relate to thefts in  running trains.  It is true that in another place in his  affidavit, the  District  Magistrate has stated that he  was  satisfied only  on the basis of the incident mentioned in  the  ground served on the petitioner.  But this is contradictory to what he  has  stated in the opening paragraph 5  of  the  counter affidavit.   In  these  circumstances,  therefore,  we   are satisfied  that the District Magistrate before  passing  the order  of detention had other material also before him.   It cannot  be said to what extent the District  Magistrate  was influenced  by the other materials and not by  the  material which  is  mentioned in the ground of detention.   Thus  the order  of  detention suffers from a very  serious  infirmity which  goes to the root of the matter.  The liberty  of  the subject  being  an  extremely  precious  right,  where   any infraction of such a right is involved the court must act as a watch-dog and a sentinel on the qui vive to see that every benefit of the lacunae goes to the detenu.  We are fortified

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in our view by reason of thedecision  of  this  Court   in Khudiram Das v. State of West Bengal(1)where          their Lordships observed as follows:-               "It   is, therefore, not only the right of the               court,  but also its duty as well  to  examine               what  are the basic facts and materials  which               actually   and  in  fact  weighed   with   the               detaining authority in reaching the  requisite               satisfaction.  The judicial scrutiny cannot be               foreclosed   by  a  mere  statement   of   the               detaining  authority  that it has  taken  into               account only certain basic facts and materials               and though other               (1)   A.I.R. 1975 S.C. 550               128               basic  facts and materials were before it,  it               has   not  allowed  them  to   influence   its               satisfaction.    The  Court  is  entitled   to               examine the correctness of this statement  and               determine  for itself whether there  were  any               other  basic  facts of  materials  apart  from               those  admitted  by  it,  which  could,   have               reasonably  influenced  the  decision  of  the               detaining authority and for that purpose,  the                             Court  can  certainly  require  the detaining               authority to produce and make available to the               Court the entire record of the case which  was               before it.  That is the least the Court can do               to  ensure observance of the  requirements  of               law by the detaining authority." Learned counsel appearing for the State justified the  order of  detention  on  the  ground  that  there  is  an  express statement  made  by  the District  Magistrate  that  he  was satisfied  only on the incident mentioned in the  ground  of detention.  This argument however is not tenable because  it is not supported by a perusal of the Affidavit filed by  the District  Magistrate  as a whole.  We are therefore  of  the opinion  that the order of detention must be set  aside  and the petitioner be set at liberty forthwith.  The application is accordingly allowed and the rule is made absolute. Appeal allowed. P.B.R. 129