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PETITIONER: ABDUL AZIZ

       Vs.

RESPONDENT: THE DISTT.  MAGISTRATE BURDWAN & ORS.

DATE OF JUDGMENT11/10/1972

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SHELAT, J.M. DUA, I.D.

CITATION:  1973 AIR  770            1973 SCR  (2) 646  1973 SCC  (1) 301  CITATOR INFO :  R          1974 SC2154  (34)  RF         1989 SC 371  (12)

ACT: Maintenance  of Internal Security Act, 26  of  1971--Murders alleged to be committed by petitioner whether have impact on ’public order as such--Validity of order of detention passed during pendency of prosecution for same incidents in respect of   which  detention  order  passed--Effect  of  delay   in consideration   of   representation  of  detenu   by   State Government--Parliament whether competent to confer power  on appropriate  Government  to  pass  order  of  detention  for maintenance of ’public order’.

HEADNOTE: The  petitioner  was  detained  under  the  Maintenance   of Internal  Seenrity  Act, 1971 by an order  of  the  District Magistrate  Burdwan, West ’Bengal.  He challenged the  order of  detention  in  a  writ petition under  Art.  32  of  the Constitution.   The  contentions  urged in  support  of  the petition  were  :  (i)  that the  two  incidents  of  murder mentioned  in the grounds of detention were germane  to  law and  order  but could have no impact on  ’public  order’  as such; (ii) that the order of detention was passed during the pendency  of a prosecution launched against  the  petitioner for the very same incidents in regard to which the order  of detention had been passed; (iii) that there was unreasonable delay in considering the petitioner’s representation by  the State  Government;  and  (iv) that it was not  open  to  the Parliament especially in view of the long title to the  Act, to confer power on the appropriate Government to pass orders of  detention  for  the  maintenance  of  public  order,  as "internal security" cannot comprehend public order. HELD : (i) The murders were stated to have been committed by the  petitioner and his associates with the definite  object of promoting the cause of the party to which they  belonged. These,  therefore, were not stray or simple cases of  murder Such incidents have serious repercussion’s not merely on law and order but on public order. [648A] (ii) It   has  been  held  by  this  Court  that  the   mere circumstance  that  a detention order is passed  during  the

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pendency  of a prosecution will not vitiate the  order.   In conceivable  cases it may become necessary to pass an  order of  detention  in anticipation of an order of  discharge  or acquittal. [648E] W.P. No. 112 of 1972, decided on 17th August 1972,  referred to. (iii)     The  petitioner’s representation was  received  by the Government on 13th January 1972 and was rejected on 22nd February  1972.   Apparently therefore there  was  delay  in considering the P.-presentation. The affidavit on behalf  of the State Government however showed that the  representation could  not  be considered earlier because although  the  war with  Pakistan  had  ended,  its  after-effects  were  still looming  large in West Bengal and the officers of the  State Government  had to take appropriate steps for the return  of the  refugees  who had taken shelter ’in West  Bengal.   The delay, thus, was satisfactorily explained. [648F] (iv) Under  Entry 3 of List III of the Seventh  Schedule  to the  Constitution, Parliament has the power to legislate  on "Preventive   detention  for  reasons  connected  with   the security of a State the maintenance of supplies and services essential to the community." Section 3(1)(a)(ii) of the Act 647 confers  power on the Central Government to pass  orders  of detention  with a view to preventing any person from  acting in  any manner prejudicial to the security of the  State  or the  maintenance  of  public order.  This  power  cannot  be controlled by anything stated in the long title of the  Act. Besides  the  long  title  describes  the  Act  as  one  for providing  for detention for the purpose of  maintenance  of internal  security  and "matters  connected  therewith...... "Internal Security" is an expression of width sufficient  to comprehend   the   concept  of   public   order.    Internal disturbances can threaten the security of the State and such disturbances  may  assume grave proportion so as to  have  a direct impact on public order. [649B]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 276 of 1972. Under Article 32 of the Constitution of India for issue of a writ in the nature of habeas corpus. R.   P. Kathuria, for the petitioner. G.   S. Chatterjee, for the respondents. The Judgment of the Court was delivered by CHANDRACHUD,  J.-This is a petition under Article 32 of  the Constitution  for the issue of a writ of habeas  corpus  for the release of the petitioner. On 16th November, 1971 the District Magistrate Burdwan, West Bengal,  passed an order under the Maintenance  of  Internal Security  Act, 26 of 1971, that the petitioner  be  detained "with  a  view to preventing him from acting in  any  manner prejudicial  to  the  maintenance  of  public  order".   The petitioner  was  arrested on 17th December 1971 and  on  the same  date the rounds of detention were served on him.   The petitioner’s  case was placed before the Advisory  Board  on 7th  January  1972, his representation was received  by  the Government  on  13th January 1972 and was rejected  on  22nd February, 1972. Two   grounds   were   furnished  to   the   petitioner   in justification  of  the order of detention.   It  was  stated firstly, that the petitioner and his associates were members of  an extremist party (CPI-ML), that on 16th  August  1971, they  armed  themselves with lethal weapons  like  firearms,

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choppers  and daggers with a view to promoting the cause  of their  party,  that they raided the house of  one  Durgapada Rudra  and  murdered him and that  the  aforesaid  incidents created a general sense of insecurity, as a result of  which the residents of the locality could not follow their  normal avocations for a considerable period.  The second ground  of detention  is that on 22nd May, 1971 the petitioner and  his associates  raided the house of Smt.  Kshetromoni  Choudhury and  murdered  one Umapada Mallick who was staring  in  that house.   This  incident  is also stated to  have  created  a general  sense of insecurity amongst the residents  of  the, locality. Learned  counsel  appearing  in  support  of  the   petition contends  that these two incidents are but simple  cases  of murder, germane 648 to law and order, but which could have no impact on  "public order"  as such.  A short answer to this contention is  that the,  murders  are  stated to have  been  committed  by  the petitioner  and his associates with the definite  object  of promoting  the  cause of the party to which  they  belonged. These, therefore, are not stray or simple cases of murder as contended  by  the  learned counsel.   Such  incidents  have serious  repercussions not merelly on law and order  but  on public order.  We may mention that a similar contention  was rejected  by  this Court in Writ Petition No.  190  of  1972 decided on 31st July 1972. It is then contended that the order of detention was  passed during  the pendency of a prosecution launched  against  the petitioner  for the very same incidents in regard  to  which the order of detention has been passed and thereby the order is  vitiated.  One of the two incidents is a legend to  have taken  place on 16th August 1971 and immediately  thereafter the  petitioner  was arrested. He was  produced  before  the Judicial  Magistrate,  Kalna  on  10th  September  1971  who enlarged  him on bail on 6th October 1971.   The  petitioner was eventually discharged by the learned Magistrate on  16th December 1971, but in the meanwhile, the order of  detention was  passed  on 16th November 1971 and  the  petitioner  was arrested  in pursuance of that order on 17th December  1971. In  regard to this contention it may be sufficient  to  draw attention to the decision of this Court in Writ Petition No. 112  of  1972  decided on 17th August  1972.   It  was  held therein that the mere circumstance that a detention order is passed during the pendency of a prosecution will not vitiate the order.  In conceivable cases it may become necessary  to pass  an order of detention in anticipation of an  order  of discharge or acquittal. The  next  challenge to the order of detention is  that  the delay   of   about  40  days  caused  in   considering   the representation made by the petitioner is fatal to the order. The   petitioner’s  representation  was  received   by   the Government  on  13th January 1972 and was rejected  on  22nd February  1972.   Apparently therefore there  was  delay  in considering  the  representation but, the affidavit  of  the Deputy  Secretary Home (Special) Department,  Government  of West  Bengal,  shows that the representation  could  not  be considered  earlier because although the war  with  Pakistan had  ended,  its after-effects were still looming  large  in West Bengal and the officers of the State Government had  to take  appropriate steps for the return of the  refugees  who had  taken  shelter  in West Bengal.  The  delay,  thus,  is satisfactorily explained. The last contention advanced on behalf of the petitioner  is that  the Maintenance of Internal Security Act, 1971  having

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been passed for the maintenance of internal security- it was not   open  to  the  Parliament  to  confer  power  on   the appropriate Government 649 to  pass orders of detention for the maintenance  of  public order,.  as  "internal security" cannot  comprehend  "public order".   Learned  counsel draws support  to  his  argument, partly from the long title to the Act, which describes it as "an  Act to provide for detention in certain cases  for  the purpose  of  maintenance of internal  security  and  matters connected  therewith".  We see no merit in this  contention. In the first place, under Entry 3 of List II of the  Seventh Schedule  to the Constitution, Parliament has the  power  to legislate  on  "Preventive detention for  reasons  connected with  the  security of a State. the  maintenance  of  public order, or the maintenance of supplies and services essential to the community".  Section 3(1) (a) (ii) of the Act confers power on the Central Government and’ the State Government to pass  orders  of detention with a view  to,  preventing  any person from acting in any manner prejudicial to the security of the State or the maintenance of public order.  This power cannot be controlled by anything stated in the long title of the Act.  Besides, the long title describes the Act as-  one for  providing for detention for the purpose of  maintenance of’  internal  security and "matters  connected  therewith". "Internal’ Security" is an expression of width sufficient to comprehend   the   concept  of   public   order.    Internal disturbances can threaten the security of the State and such disturbances  may assume grave pro-portions so as to have  a direct  impact on public order. In the result the  petition, fails and is dismissed. G.C.                             Petition dismissed 650