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PETITIONER: ANAL CHANDRA BANARJEE

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT02/02/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. KHANNA, HANS RAJ

CITATION:  1972 AIR 1495            1972 SCR  (3) 348  1972 SCC  (1) 636

ACT: Preventive detention-Vagueness of ground-Omission to mention locality  where incident occurred-Or-Specify the group  with which  the petitioner came into  clash-Petitioner  prevented from    effectively   making   representation-West    Bengal (Prevention of Violent Activities) Act, 1970.

HEADNOTE: The  petitioner was detained under s. 3(i) and (iii) of  the West  Bengal (Prevention of Violent Activities)  Act,  1970. The  first and the second ground of detention served on  him mentioned two incidents of theft and throwing of bombs  with intent  to kill said to have been committed in the  yard  of Naibati Railway Station.  The third and the last ground  was that  on  January  13, 1971 between 12 and  12.20  hrs.  the petitioner  along  with  his associates  "being  armed  with bombs, swords, lathis, etc. entered in a clash with  another group  with  a  view to kill them"  and  that  his  "violent activities  created a serious panic in the Station area  and disturbed  public  order." The petitioner  contended,  inter alia  that  ground  No. 3 was vague and  uncertain  and  was couched  in  such  indefinite  language  that  it  would  be impossible   for  the  petitioner  to  effectively  make   a representation and therefore his detention was invalid.   In his representation the petitioner had merely denied all  the three grounds and maintained that he had no concern with any of the three incidents alleged in the grounds of  detention. In  his  written  arguments  submitted  to  this  Court  the petitioner stated that the allegations in respect of all the grounds were made against him by the Naibati Railway  Police and  that  they were false.  In the reply affidavit  of  the state  the  averment for the first time made  was  that  the alleged  incident in ground No. 3 took place not in  Naibati Railway Station area but at another railway station. Allowing the petition, HELD  : (1) Ground No. 3 is vague by reason of its  omission to  mention the locality.  It is clear that  the  petitioner was under the impression, in the absence of the place or the locality  where  the incident was said to have  taken  place having  been  mentioned, that the said  incident  had  taken place  either in Naibati Railway Station or the  area  under the  jurisdiction of Naibati police.  Therefore, apart  from

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ground  No.  3  being vague by reason  of  its  omission  to mention the locality, there was in the context of the  other two  grounds  a likelihood of the petitioner being  under  a wrong  impression that according to the District  Magistrate the  incident there alleged had taken place in  the  Naibati Railway  Station  area.   That being  so,  the  omission  to mention   the   locality  prevented  the   petitioner   from effectively making a representation. [352 D] (2)The   omission  to  specify  the  group  with  whom   the petitioner  and his associates came into clash also  renders that  ground vague and indefinite, resulting once  again  in disabling   the   petitioner  from  effectively   making   a representation. [352 E]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 274 of 1971. 349 Under Article 32 of the Constitution of India for a writ  in the nature of habeas corpus. N.   N. Goswami, for the petitioner. D.   N. Mukherjee and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shelat,J.   The  order  of detention,dated  April  7,  1971, passed  against  the petitioner herein and in  pursuance  of which  the petitioner was arrested and detained in jail  the next day, recites that it was passed under sec. 3(1) and (3) of  the West Bengal (Prevention of Violent Activities)  Act, President’s  Act 19 of 1970, the ground for which  was  that the  District  Magistrate, 24 Parganas, who passed  it,  was satisfied  that  it was necessary to detain  the  petitioner with  a  view  to  prevent  him  from  acting  in  a  manner prejudicial to the maintenance of public order. The  grounds of detention served on him at the time  of  his arrest narrated three incidents in which he was said to have been  involved.  The first ground was that on  November  13, 1970  he,  together  with some others,  committed  theft  of copper  traction  wire from a wagon lying in  Naihati  South Yard,  and  that  when the railway police  and  the  railway protection force on duty rushed at the spot, the  petitioner and  his associates threw bombs at them with intent to  kill them.  The second ground was that on December 23, 1970,  the petitioner  and  his associates were removing 29  pieces  of rail from the same railway yard and when the members of  the railway  protection force attempted to stop them from  doing so,  the petitioner and his said associates threw  bombs  at them  with  intent  to kill them.  The third  and  the  last ground was as follows :               "That  on 13-1-71 in between 12.00 and  12.20,               hours,  you along with your  associates  being               armed with bombs, swords, lathis, etc. entered               in a clash with, another group with a view  to               kill them.  Your violent activities created  a               serious   panic  in  the  station   area   and               disturbed the public order." From  the  Dum Dum Central Jail where  the;  petitioner  was detained he made a representation, dated April 29, 1971,  to the State Government.  That representation together with the record of the case was placed before the Advisory Board, who it  appears,  also  heard the  petitioner  in  person.   The representation, dated April 29, 1971 was in general terms in which the petitioner denied the said grounds alleged against him,  and maintained that he was a law abiding  citizen  who never  indulged  in activities of the kind  alleged  against

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him.  The Board, after considering the 350 said  representation, the said record of the case and  after hearing  him, as aforesaid, reported that there was, in  its opinion, sufficient cause for his detention.  It seems  that thereupon the Government confirmed the said detention  order and  directed continuation of his detention thereunder.   So far  there does not appear to be any difficulty as  all  the steps following the petitioner’s arrest appear to have  been taken  by  the detaining authority in  compliance  with  the provisions of the Act. But  two questions have been raised before us on  behalf  of the  petitioner.   The first was raised  by  the  petitioner himself  in the written arguments submitted by him  to  this Court  from  jail and the second was raised by  his  counsel during  the  course of ,the hearing of  the  petition.   The point raised by the petitioner was in regard to ground No. 2 in the grounds of detention in which it was alleged that the petitioner  participated in the incident said to have  taken place on December 23, 1970.  The petitioner’s allegation was that  on January 1, 1971 the Naihati G.R.P. police  appeared before, the Magistrate, Sealdah, stating that the petitioner was arrested in a police case referred to as Naihati  G.R.P. Case  No. 11, dated November 23, 1970 under sees.  148,  379 and  307  of the Penal Code and sec. 6(3) of  the  Explosive Substances  Act, but that the Magistrate, after  considering the  facts  and circumstances of the case, released  him  on bail.   That  case, according to the  petitioner  was  still pending.   The contention was that the  authorities,  having elected to institute proceedings against him under the  Code of  Criminal Procedure, could not, while  those  proceedings were still pending, also take parallel proceedings under the present Act thereby placing, firstly, the petitioner under a double  jeopardy, and secondly, conducting investigation  in that case without that investigation being under the  courts supervision  and  control.   The argument was  that  if  the petitioner were to be kept under preventive detention  under the  present  Act  it would not be necessary  as,  it  would otherwise  be, for the police to ask for remand  orders  and produce  the petitioner before the Magistrate whenever  such orders  were  prayed  for.   The  detention  order  and  the detention  thereunder, it was argued, were on the  aforesaid two grounds invalid. The  second  contention concerned the third  ground  of  the grounds  of detention and related to the  alleged  incident, dated  January  13,  1971,  when  the  petitioner  and   his associates  who were armed with bombs, swords,  lathis  etc. were  said  to  have clashed with  another  group.   In  the written arguments submitted by the petitioner from jail, the petitioner  made a general denial stating that, if  such  an incident  had  occurred and he had been involved in  it  the police  were  bound to file a case against him but  that  no such case was’ filed which indicated that he had nothing  to do with the alleged incident, and had been falsely involved 351 in it.  Counsel appearing for him raised another point,  and that  was that ground No. 3 was vague and uncertain and  was couched  in  such  indefinite  language  that  it  would  be impossible   for  the  petitioner  to  effectively  make   a representation. We proceed to consider this contention first because in  the view we take concerning it  would not be necessary for us to go into the contention regarding ground No. 2 of the grounds of detention. Ground No. 3, no doubt, specifies the date and the time when

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the  incident alleged therein was said to have taken  place. It also alleges that the petitioner and his associates  were armed  during  the  alleged incident with  weapons  such  as bombs, swords, lathis etc., and that they had a clash  "with another  group", and that incident "created a serious  panic in  the station area".  The ground does not state  what  the authority  meant  by "another group", nor does it  state  in which  "station area" the said alleged incident was said  to have taken place resulting in panic. It  will  be  seen that the first  and  the  second  grounds mentioned two incidents of theft said to have been committed in  the yard of the Naibati railway station.   The  question is, in the absence of any particulars as to the place where the  incident alleged in  the third ground took place,  what would the expression "station area" mean to the  petitioner, and whether the petitioner would not get the impression that the  District  Magistrate  meant  thereby  Naihati   railway station   or   Naihati   police  station   area.    In   his representation,  the petitioner merely denied all the  three grounds  and maintained that he had no concern with  any  of the three incidents alleged in the grounds of detention.  In his  written arguments submitted to this Court he,  firstly, denied  having anything to do with the incident  of  January 13,  1971  And  then  proceeded  to  state  that  all  those allegations  were  made falsely against him by  the  Naihati railway  _police,  and that they were false because  if  the said alleged incidents had in fact occurred the police  were bound     to  launch  proceedings against him.   He  further asserted that  at  any rate, the local police, that is,  the Naihati police, were     bound  to make some record of  them in the general diary maintained by the said police  station. It  is,  thus,  clear  that the  petitioner  was  under  the impression,  in  the absence, of the place or  the  locality where  the  said  incident was said  to  have  taken  place, according  to  the District Magistrate,  either  in  Naihati railway  Station  or  the area  under  the  jurisdiction  of Naihati police station. Such an impression, it appears, was likely because when read in’  the  context of the first and the second  grounds,  the reader of the third ground in the absence of any particulars as regards the -L887 Sup Cl/72 352 locality  where the said alleged incident took place,  might well  infer  the   locality there alleged  must  be  Naihati railway  station area.  That such was the impression of  the petitioner appears from the assertion made by him in Para  6 of his written arguments that the allegations in respect  of all  the  grounds were made against him by  Naihati  Railway police,  and that those were false because neither they  nor the Naihati Police made any reference to them in the general diaries maintained by them, nor lodged any complaint against him.  In Para 7 of the affidavit in reply of the State,  the averment  for  the  first time made  was  that  the  alleged incident  of  January  13, 1971 took place  not  in  Naihati Railway  Station  area but at Palta  Railway  Station  which resulted  in "panic in the said station area  and  disturbed public peace and tranquility". Apart,  thus, from ground No. 3 in the grounds of  detention being  vague  by  reason  of its  omission  to  mention  the locality, there was in the context of the other two  grounds a  likelihood  of  the  petitioner,  being  under  a   wrong impression  that  according to .he District  Magistrate  the incident  there alleged had taken place in  Naihati  Railway Station  area.   That  being so, it  is  obvious  that  ’the petitioner  could  not make a correct and  proper  represen-

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tation  which  must mean that the omission  to  mention  the locality   prevented   him   from   effectively   making   a representation. The  omission to specify the group with whom the  petitioner and his associates came into clash also renders that  ground vague and indefinite, resulting once again in disabling the petitioner   from  effectively  making   a   representation. Suppose  that  the  petitioner wanted to  maintain  that  on January  13,  1971  he was never at or  near  Palta  Railway Station  or  that the group with whom he was  said  to  have clashed  was  his own group or was friendly  with  him,  and therefore,  there was no possibility of any such clash.   He could  not obviously have been able to do so in the  absence of   particulars  about  the  locality  and  the   name   or description of the said group. The   result  of  those  omissions  being  to  prevent   the petitioner  from  effectively  making  representation,   his detention under the said order must be found to be  invalid. The  petition,  for the reasons aforesaid. succeeds  and  is allowed.   Accordingly  we  direct that  the  petitioner  be released from jail and set at liberty forthwith. K.B.N.                          Petition allowed. 353