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PETITIONER: ARUN KUMAR ROY alias KATU

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT03/05/1972

BENCH: MITTER, G.K. BENCH: MITTER, G.K. REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 1858            1973 SCR  (1) 552  1972 SCC  (3) 893  CITATOR INFO :  E          1972 SC2215  (4)  RF         1972 SC2420  (5)  RF         1973 SC 207  (7)

ACT: Maintenance  of internal Security Act 26  of  1971-Detention ,under-Whether  justified when grounds disclosed only  facts amounting  to  theft  which could be  proceeded  with  under ordinary    law-Delay   in   consideration   of,    detenu’s representation by State Government whether renders detention illegal.

HEADNOTE: The  petitioner was detained in pursuance of an order  under the  .Maintenance of Internal Security Act 26 of 1971.   The order of detention was passed by the District Magistrate  on August  24,  1971.   The order was  approved  by  the  State Government  under s. 3(3) of the Act on September  4,  1971. The  petitioner who was absconding after the making  of  the detention  order  was arrested on September 9,  1971.   Soon after  he was served with grounds of detention.  On  October 7, 1971 a representation made by the petitioner was received in the offices of the State Government.  The  representation was  rejected by the State Government on November 17,  1971. On  the  same  date  the Advisory  Board  before  which  the representation had been placed by the Stale Government under s.  10 of the Act reported that there was sufficient  ,cause for  the petitioner’s detention.  On November_ 26, 1971  the State  Government  confirmed  the  order  of  detention   in exercise  of  its powers under s. 12(1) of the  Act.   In  a petition  under Art. 32 of the Constitution  the  petitioner urged  that  (i) the theft of overhead  copper-wire  by  him mentioned  in the grounds of detention was an offence  under the Indian  Penal  Code which could  be  tried  under  the ordinary   law;   (ii)  there  was  undue   delay   in   the consideration of his representation by the State  Government which  rejected it only on November 17, 1971  ;after  having received it on October 7, 1971. Dismissing the petition, HELD : (i) Undoubtedly the State Government could if it  had chosen,  have proceeded to put the ordinary criminal law  in

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motion.  But conditions in West Bengal were far from  normal when  the  act, imputed to the  petitioner  were  committed. Wagon breaking and removal of overhead traction wire posed a major  problem to the maintenance of supplies  and  services essential  to the community.  If therefore  the  authorities concerned  felt  that  the trial of  such  cases  under  the ordinary law of the land would not meet the requirements  of the situation and particularly, in the case of activities of the  kind mentioned in the  grounds which were committed  in the  middle  of  the  night when there  could  be  ’few  eye witnesses and even those who viewed such incidents would  be apprehensive of their own safety if they were asked to  give evidence against such dangerous persons who went about  arm- ing themselves with swords and daggers not only to  prevent their  apprehension but also to terrorise persons who  might feel inclined to put up any obstruction, the State would not be  unjustified in proceeding in the way it did. [555  G-556 B] No  doubt the removal of overhead traction wire would  be  a case of theft but that is not to say that such removal would not also be 553 prejudicial  to  the maintenance of  supplies  and  services essential to the community, specially when indulged in on  a large scale. [556 C] (ii)The   alleged  delay  in  the  consideration   of   the Petitioner’s representation by the State Government did  not render the detention illegal under the provisions of the Act or of the Constitution.  The Act does not make it obligatory on   the   State   Government   itself   to   consider   the representation of the detenu but makes it obligatory on  the part of the State Government to place the case I before  the Advisory Board along with the representation if any made  by the person affected by the order.  Although s. 15 of the Act gives  the appropriate government power to release a  detenu for  a temporary period with or without conditions, the  Act does not empower the Government to release ,a detenu finally except after the report of the Advisory Board. [560 H-561 D] Further,  the detenu made no grievance in his writ  petition about the delay in the consideration of his  representation. if any such plea had been taken the Court would have had  to consider whether Government had any explanation to offer for the delay.  In this case the Government had approved of  the order  of  detention  as  early as  September  4,  1971  and submitted  the report to the Central Government.  There  was nothing  in  the  representation  of  the  petitioner  apart front the bare  denial  of  his commission  of  any  offence which necessitated the   immediate   consideration  of   his representation.  As  the  Act         did  not  empower  the Government  to  release the detenu on the  strength  of  the representation  without sending the matter to  the  Advisory Board,the Government’s consideration of the  representation, after  its prior approval of the detention order would  have little significance or import. [561 E-F] K. I. Singh v. State of Manipur, A.I.R.       1972 S.C. 438, distinguished.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 52 of 1972. Under Article 32 of the Constitution of India for a writ  in the nature of habeas corpus. Shiva Pujan Singh, for the petitioner.

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S. N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Mitter,  J. The petitioner who was detained in pursuance  of an  order  under the Maintenance of Internal  Security  Act, 1971 (26 of 1971 ) hereinafter referred to as the ’Act’) has presented  this petition under Art. 32 of the  Constitution. He states therein that the detention order originating  from the District Magistrate of Howrah is baseless, mala fide and motivated, that he was never involved in any kind of violent or anti-social activities, that he is a first fireman of the South  Eastern  Railway  and by  his  detention  irreparable prejudice  will  be  caused to himself and  members  of  his family.  He states further that he had gone to the  Advisory Board  on  November  17, 1971 and  that  his  detention  was confirmed and communicated to him on December 8, 1971.   His grievance is 554 that  no  first information was lodged against  him  as  was necessary in the circumstances of the case and his detention is not warranted by law. From  the affidavit affirmed by the District  Magistrate  of Howrah  in  opposition to the petition the  following  facts emerge :- (1)  The  order  was  made against the  petitioner  on  24th August 197 1 in exercise of the Magistrate’s power conferred by sub-s. (1 ) read with sub-s. (2) of s. 3 of the Act  with a view to preventing the petitioner from acting in a  manner prejudicial  to  the maintenance of  supplies  and  services essential to the community. (2)  The grounds for the order of detention bearing the same date  show  that  on 23rd May 1971 at about  2.15  a.m.  the petitioner  along  with some associates armed  with  swords, daggers  etc.  had  cut down and stolen away  40  meters  of copper  contact wire from the over head traction wires  from K. M. Post No. 9;/ 3 1 x to 10/1 x in the Up line in between Hourigram and Andual railway stations causing disruption  in train  services on the Howrah Khargapur section and that  he had  acted  in  a  similar  manner  in  company  with   some associates  being similarly armed on the night of  7th  June 1971  at about 2 a.m. and had cut down copper  contact  wire from K.M. Post Nos. 9/25 and 9/27 on the Up Line in  between Santragachi  and  Mourigram railway stations on  the  Howrah Khargapur  section and his acts were considered  prejudicial to the maintenance of supplies and services essential to the community. (3)  On August 24, 1971 the District Magistrate had reported to  the State Government about the passing of the  detention order  together with the grounds of detention and all  other particulars  bearing  on  the same.   The  said  report  and particulars  were considered by the State Government and  on September  4, 1971 the detention order was approved  by  the State Government under sub-s. (3) of s. 3 of the Act. (4)  Soon  after the passing of the order of  detention  the petitioner was found to be absconding and could be. arrested only on 9th September 1971 when he was served With the order of  detention  and  the  grounds  thereof.   He  was,   also informed  that he could make a representation to  the  State Government  against  his detention order and that  his  case would  be placed before the’ Advisory Board within  30  days from the date of the detention order. (5)  On  September 4, 1971 the State Government submitted  a report to the Central Government in accordance with the pro- visions  contained  in sub-section (4) of s. 3  of  the  Act together   with   the  grounds  of   detention   and   other particulars.

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                           555 (6)  On  7th October 1971 a representation from  the  detenu petitioner  was  received in the  Home  Department  (Special Section)   of   the  State  Government  forwarded   by   the Superintendent of the Dum Dum Central Jail. (7)  On  8th October 1971 the case of the detenu  petitioner was placed before the Advisory Board. (8)  On  November 17, 1971 the representation of  the  peti- tioner  was considered by the State Government.   The  State Government rejected it by an order of the same date. (9)  On  November  17, 1971 the Advisory  Board  after  con- sideration  of the materials placed before it and  the  said representation  and after giving a personal hearing  to  the detenu   petitioner  submitted  its  report  to  the   State Government to the effect that there was sufficient cause for the detention. (10) By  an  order dated November 26, 1971  the  State  Gov- ernment in exercise of its powers under sub-s. (1) of s.  12 of the Act confirmed the order of detention. (11) The  confirmation of the order was communicated by  the State  Government to the detenu petitioner by  letter  dated December 7, 1971. A  copy  of  ’the representation of the  petitioner  to  the Advisory  Board  is  one of the  annexures  to  the  counter affidavit.   The  case  made by him  therein  was  that  the allegations  about  the removal of over head  traction  wire were  not  true,  that  in any  event  they  also  disclosed commission  of  the offences of theft which  are  cognizable offences and any such incident, if true in fact, should have been reported to the police under the provisions of the Code of  Criminal Procedure and in the circumstances of the  case the grounds of detention notified in the order made  against him were not tenable under the law. Counsel  for the petitioner put forward a two-fold  argument before us.  Ms first submission was that even if the grounds of  detention  supplied  to  the  petitioner  were  true  in substance,  they constituted cases of theft for which  ample provision  was  made  in the ordinary criminal  law  of  the country and there was no necessity to resort to the Act  for detaining the petitioner.  Undoubtedly the State could if it had chosen, have proceeded to put the ordinary criminal  law in  motion.   But as is well known the  conditions  in  some parts  of West Bengal were far from normal at the time  when the  acts imputed to the petitioner were committed.   Wagon- breaking and removal of overhead traction wire posed a major problem  to the maintenance of supplies and services  essen- tial  to  the  community.   If  therefore  the   authorities concerned  felt  that  the trial of  such  cases  under  the ordinary law of the land 556 would  not  meet  the  requirements  of  the  situation  and particularly  in  the  case of activities  of  the  kind  in mentioned in the grounds which were committed in the  middle of the night when there could be few eye witnesses and  even those  who  viewed such incidents would be  apprehensive  of their own safety if they were asked to give evidence against such dangerous persons who went about arming themselves with swords  and daggers not only to prevent  their  apprehension but also to terrorise persons who might feel inclined to put up  any obstruction, the State would not be  unjustified  in proceeding in the way it did. No  doubt the removal of overhead traction wire would  be  a case of theft but that is not to say that such removal would not  also be prejudicial to the maintenance of supplies  and services essential to the community, specially when indulged

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in  on  a large scale.  We have therefore no  hesitation  in rejecting  the  first contention advanced on behalf  of  the petitioner. The  second contention urged was that there  was  inordinate delay    in   the   consideration   of   the    petitioner’s representation   and   as  such,  apart   from   any   other consideration,  the petitioner was entitled to an  order  of release.  Reliance was placed on the decision of this  Court in K. 1. Singh v. State of Manipur(1).  In that case  orders had  been  passed against the petitioners  by  the  District Magistrate Manipur under sub-s. (2) of s. 3 read with  subs. (1) of the Orissa Preventive Detention Act, 1976 as extended to  Manipur.   The  orders had been passed with  a  view  to preventing them from acting in any manner prejudicial to the maintenance of public order.  The grounds of detention  were furnished  to the detenues on the day they were  taken  into custody.   The District Magistrate had inade  the  necessary report  to the Administrator of Manipur under sub-s. (3)  of s.  3 on February 10, 1971.  The Administrator approved  the orders  of  detention of the District Magistrate  passed  on January  31,  1971  and the orders  of  approval  were  also communicated  to  the detenu.  The petitioners  had  made  a joint representation on 1st March 1971 which was received by the  Government  on  3rd  March,  1971.   The  Administrator considered  the  representations and rejected  the  same  on March  20, 1971.  The petitioners were informed  about  such rejection  by  communication  dated  March  22,  1971.   The Advisory Board considered the matter and sent its report  on April 12, 1971 expressing its opinion that the detention  of the  Petitioners  was justified.  The  ground  advanced on behalf  of  the petitioners in that case with which  we  are concerned was that there was an inordinate delay of 17  days in the Administrator disposing of the representation made by the petitioners and is (1)A.  I.R. 1072 557 such  there was a violation of the provisions of Art.  22(5) of the Constitution.  This ground was specifically taken  in the writ petition in which it was expressly pleaded : "........  even  assuming  that any information  had  to  be collected by the Government the period of 17 days as  stated by  the  Government  was  not  at  all  necessary  and   any information  could  have been got easily  from  the  Jailor, Manipur  Central Jail, Imphal, within a few minutes  as  the jail  was  located  within a very short  distance  from  the Secretariat." The  explanation  offered in the counter  affidavit  of  the State  in that case was not accepted as in the view of  this Court the respondent did not state what steps, if any,  had been  taken in between March 3, 1971 and March 20, 1971  and there  was only "a very bald statement that  enquiries  were sought  from jail authorities through Sub-Deputy  Collector, Headquarters  and the Jail authority sent a letter on  March 18, 1971." The Court referred to the fact that there was  no averment in the counter affidavit that the enquries referred to  therein had been made orally and in the absence of  such averment  the  court  was  of  opinion  that  it  would   be reasonable lo presume that there would be official  communi- cation  in writing on the subject.  In the result the  Court held  that there was an unexplained delay of 17 days in  the Government disposing of the representation of The detenues. The four principles which this Court formulated in that case to be followed in regard to representation of detenues were "First,  the  appropriate  authority is  bound  to  give  an opportunity  to the detenu to make a representation  and  to

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consider  the  representatiOn  of the  detenu  as  early  as possible.  Secondly, the consideration of the representation of  the  detenu  by the appropriate  authority  is  entirely independent  of any action by the Advisory  Board  including the consideration of the representation of the detenu by the Advisory  Board.  Thirdly, there should not be any delay  in the  matter of consideration.  It is true that no  hard  and fast  rule can be laid down as to the measure of time  taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in  the Governance  of  the citizens.  A citizen’s  right  raises  a correlative  duty of the State.  Fourthly,  the  appropriate Government  is to exercise its opinion and judgment  on  the representation  before  sending  the  case  along  with  the detenu’s  representation  to  the Advisory  Board.   If  the appropriate Government will release, the detenu the 5 58 Government  will not send the matter to the Advisory  Board. If  however the Government will not release the  detenu  the Government  will  send  the case  along  with  the  detenu’s representation  to  the Advisory Board.  If  thereafter  the Advisory  Board  will express an opinion in  favour  of  the release  of  the  detenu the  Government  will  release  the detenu." On  the  facts of that case as the Court was  not  satisfied with  the explanation of the delay in the counter  affidavit it directed the release of the petitioners holding that the unexplained  delay  by itself was a  sufficient  ground  for treating the orders of detention as illegal. We must consider the provisions of the Act in the background of the constitutional provisions.  Under Art. 22(4): "No  law providing for preventive detention shall  authorise the  detention  of a person for a longer period  than  three months unless- (a)   an  Advisory  Board......  has  reported  before   the expiration of the said period of three months that there  is in its opinion sufficient cause for such detention." This  is  subject to the proviso that nothing in  this  sub- clause  shall authorise the detention of any  person  beyond the maximum period prescribed by any law made- by Parliament under subclause (b) of cl. (7).  Cl. (5) of Art. 22 provides that  when any person is detained in pursuance of an  order made  under any law providing for preventive detention,  the authority making the order shall communicate to such  person the  grounds  on  which the order has been  made  and  shall afford   him   the   earliest  opportunity   of   making   a representation against the order. The Act in this case is a Parliamentary Act under which the- Central  Government or the State Government may in terms  of s.  3 (1 ), if satisfied with respect to any person  with  a view to preventing him from acting in any manner prejudicial to  .... the maintenance of supplies and services  essential to  the  community, .... it is necessary so to do,  make  an order directing that such person be detained.  Under sub-s. (2)  of the section any of the officers mentioned  including the  District  Magistrate may, if satisfied as  provided  in sub-cls.  (ii) and (iii) of cl. (a) of sub-s. ( 1)  exercise the  power conferred by the said sub-section.   S.3(3)  pro- vides as follows:- "When  any  order is made under this section by  an  officer mentioned in sub-section (2), he shall forthwith report  the fact to the state Government to which he is                             559 subordinate together with the grounds on which the order has been made and such other particulars as in his opinion  have

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a  bearing on the matter, and no such order shall remain  in force  for  more than twelve days after the  making  thereof unless  in  the meantime it has been approved by  the  State Government : Provided that where under section 8 the grounds of detention are communicated by the the authority making the order after five  days but not later than fifteen days from the date  of detention,  this  sub-section  shall apply  subject  to  the modification  that  for the words "twelve  days"  the  words "twenty-two days" shall be substituted." Under s. 8 (  1) "When  a  person  is detained in pursuance  of  a  detention order, the authority making the order shall, as soon as  may be,  but  ordinarily  not  later  than  five  days  and   in exceptional circumstances and for reasons to be recorded  in writing,  not  later  than fifteen days, from  the  date  of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest  opportunity of  making  a  representation  against  the  order  to   the appropriate Government." Under s. 9(1)_ the Central Government and each State Govern- ment  has to constitute one or more Advisory Boards for  the purpose of the Act.  Sub-s. (2) deals with the  constitution of Advisory Boards.  Under s. 10 "Save  as otherwise expressly provided in this Act, in every               case  where  a detention order has  been  made               under  this Act, the  appropriate  Government               shall,  within  thirty days from the  date  of               detention  under the order, place  before  the               Advisory Board constituted by it under section               9  the  grounds on which the order  has  been               made  and the representation, if any, made  by               the person affected by the order, and in  case               where  the order has been made by an  officer,               also   the  report  of  such   officer   under               subsection (3) of section 3." Under s.      1 1 (1) : "The  Advisory Board shall, after considering the  materials placed  before  it  and  after  calling  for  such   further information  as it may deem necessary from  the  appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so  to do or if the person con- 5 60 cerned  desires  to be heard, after hearing him  in  person, submit  its report to the appropriate Government within  ten weeks from the date of detention." Under  subs-.  (2)  the report of the  Advisory  Board  must contain in a separate part thereof the opinion as to whether or  not there is sufficient cause for the detention  of  the person concerned.  Under S. 12 "(1) In any case where the Advisory Board has reported  that there  is in its opinion sufficient cause for the  detention of  a  person  the appropriate Government  may  confirm  the detention  order  or continue the detention  of  the  person concerned for such period as it thinks fit. (2)  In any case where the Advisory Board has reported  that there  is  in  its  opinion  no  sufficient  cause  for  the detention   of   the  person  concerned,   the   appropriate Government  shall revoke the detention order and  cause  the person to be released forthwith." Under  s. 13 the maximum period for which any person is  de- tained  in pursuance of any detention order which  has  been confirmed  under s. 12 shall be twelve months from the  date

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of detention. The  Act  shows  that if a detention order  is  made  by  an officer such as the District Magistrate it cannot remain  in force for more than 12 days after the making thereof  unless in  the meantime it is approved of by the State  Government. The State Government is also under a duty to communicate the order  made and its approval of the order within 7  days  to the  Central  Government.   Under  s.  10  the   appropriate Government must place the case within 30 days from the  date of  detention  before the Advisory Board.  As the  case  was placed  before the Advisory Board on 8th October, 1971,  all the  provisions  of  the  Act from sections  3  to  10  were undoubtedly given effect to within time.  The only complaint which is now raised though not made in the petition is  that the representation was considered by the Government as  also by  the Advisory Board only on 17th November 1971, i.e.  one month  and  ten days after the date of the  receipt  of  the representation.   As the Advisory Board has to consider  the case  within ten weeks from the date of detention  which  in this  case  was  9th  September, 1971,  there  has  been  no violation  of the Provisions of section.  The  question  is, can  the order of detention be upheld on the facts  of  this case in the background of the constitutional provisions. It will be noticed that the Act does not make it obligatory on   the   State   Government   itself   to   consider   the representation of 561 the detenu but makes it obligatory on th4 part of the  State Government to place the case before the Advisory Board along with the representation if any, made by the person  affected by the order and where the order has been made by an officer also  the report of such officer under sub-s. (3) of  S.  3. The Advisory Board must consider the materials placed before it  and  may  call for further information as  it  may  deem necessary from the appropriate Government or from the person concerned   and  submit  its  report  to   the   appropriate Government after hearing the detenu in person if he  desires to  be  heard or in any case where the  Board  considers  it essential  to give him a hearing.  The Board must  make  its report  to the appropriate Government within ten weeks  from the date of detention.  Although s. 15 of the Act gives  the appropriate  Government  power  to release a  detenu  for  a temporary  period with or without conditions, the  Act  does not  empower  the  Government to release  a  detenu  finally except  after  the report of the Advisory Board.   When  the Advisory Board reports that there is no sufficient cause for the  detention of the person concerned. the Government  must give effect to it and revoke the detention order. The main hurdle against the petitioner in this case is  that he made no grievance in his writ petition about the delay in the  consideration of his representation.  If any such  plea had  been  taken.  we would have  had  to  consider  whether Government  had any explanation to offer for the delay.   In this case, as already noted, the Government had approved  of the  order  of detention as early as September 4,  1971  and submitted its report to the, Central Government.  There  was nothing in the representation of the petitioner, apart  from a  bare  denial  of  his commission  of  any  offence  which necessitated    the   immediate   consideration    of    the representation.   As the Act did not empower the  Government to release the detenu on the strength of the  representation without sending the matter to the Advisory Board, it appears to us that Government’s consideration of the representation, after  its prior approval of the detention order would  have little significance or import.

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Whether or not Government took any steps to enlighten itself more  about the representation of the petitioner, we do  not know  and on the facts of this case, We are not called  upon to consider. In  the  result, we are not satisfied that this  is  a  case where  the detention order should be quashed.  The  petition is accordingly dismissed. G.  C.                                              Petition dismissed.  562