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PETITIONER: DULAL ROY

       Vs.

RESPONDENT: THE DISTRICT MAGISTRATE, BURDWAN AND ORS.

DATE OF JUDGMENT15/01/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KRISHNAIYER, V.R.

CITATION:  1975 AIR 1508            1975 SCR  (3) 186  1975 SCC  (1) 837  CITATOR INFO :  RF         1976 SC1207  (560)  C          1976 SC1945  (6,8)  RF         1980 SC1983  (4)  RF         1986 SC2177  (42)  RF         1990 SC1196  (9)

ACT: Maintenance  of  Internal Security Act,  1971.   Section  3- Passing  of  order  of detention on  the  same  facts  while petitioner  was  in  custody  as  an  undertrial-Arrest  and detention  of  petitioner  as soon  as  he  was  discharged- Detention, if illegal.

HEADNOTE: In connection with two incidents of theft, two cases, one on 21-7-72 and the other on 1-8-72, under sec. 379, Penal Code, were  registered  with the police.  The petitioner  was  not named  in  the F.I.R. His complicity was  detected’  in  the course of investigation.  He was consequently arrested on 3- 8-72 and sent up before the Judicial Magistrate.  On 21-8-72 when  the  petitioner was in custody as an  undertrial,  and order of detention was made by the District Magistrate,  the respondent,  under  Sec. 3 of the  Maintenance  of  Internal Security  Act,  1971,  with a view to  preventing  him  from acting  in  any  manner prejudicial to  the  maintenance  of supplies  and  services essential to the  commodity.   After further  investigation, the police submitted a final  report and the petitioner was discharged in both the cases on  3-9- 72.  On the same day, he was taken into custody pursuant  to the  order  of  detention  which is  impugned  in  the  writ petition  instituted  by him on a letter  dated  August  24, 1974, from the jail. It  was contended that the order of detention has been  made to  subvert  the  process  of  ordinary  penal  law,  as   a colourable  exercise  of  jurisdiction  and  was,  therefore illegal. Accepting the contention and making the rule absolute, HELD:While it is true, as an abstract legal proposition that  an order of preventive detention under the Act may  be validly passed against a person in jail custody on the  same facts  on  which he is being prosecuted  for  a  substantive offence  in  a  court, such an order of  detention  is  more

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easily vulnerable-than the one against a person not in  such custody-to  the  charge that without there being  any  basis whatever for the satisfaction of the detaining    authority, which is a condition precedent for taking action under S.  3 the  power  has  been  misused as a  cloak  solely  for  the purpose of punishingthe  detenu  for  the   substantive offence for which he was being prosecutedby   subverting and circumventing the penal law and irksome court procedure. To  make the detention order immune against such an  attack, the  detaining  authority  in  its  counter-affidavit   must particularise all the material circumstances on the basis of which he was satisfied as to the necessity of the preventive action despite the detenu being already in jail custody  and having  no  freedom of action on the date of  the  detention order.   In  the present case this has not  been  done.   No counter-affidavit has been filed by the person who had  made the impugned order.  Even the Deputy Secretary who has filed the counter after gathering some information from the record does not disclose all the material facts from which it would be  rationally  possible  for  the  detaining  authority  to predicate  that if the impugned order was not  made  against the  petitioner,  though in judicial custody-, he  could  be able  to indulge in the prejudicial activities indicated  in the impugned order.  There is no averment whatever that  the charges  against the petitioner were true but  the  evidence collected  against  the Petitioner was  deficient,  or,  for reason   other  than  the  charge  being   groundless,   the prosecution  of the petitioner for substantive offences  was foredoomed  to  failure.   The circumstances  in  which  the petitioner  was discharged by the Judicial  Magistrate  have not  been set out.  A bare statement that a  "final  report" was submitted by the Police is neither here nor there.   The counter-affidavit  is  silent with regard to the  nature  of this police report and the situation in which the petitioner was  discharged.   It does not say whether this  report  had reference  to  deficiency  or ’sufficiency  of  evidence  or groundlessness of the charge against the petitioner.  [189E- H; 190R-B] 187 The  grounds of detention relate to two incidents  of  theft simpliciter in respect of which the petitioner could  easily be  prosecuted under the penal law.  In the absence  of  any explanation or apparent reason as to why his prosecution for the substantive offences resulted in his discharge and as to why the making of the preventive order was deemed  necessary even  while  he was in jail custody and bad  no  freedom  of action the conclusion is inescapable that the impugned order has been passed mechanically and as a colourable exercise of jurisdiction. [190H] Noor  Chand Sheikh v. State of West Bengal, AIR 1974.   S.C. 2120 relied on. Rameshwar  Shaw  v. District Magistrate  Burdwan,  [1964]  4 S.C.R.  921,  Sri Lal Shaw v. State of  West  Bengal.   Writ Petition  No.  453/74  decided  on  4-12-1974,  and  Kartick Chander Guha v. State of West Bengal, A.I.R. 1974 S.C. 2149, referred to. The   failure  to  furnish  the  counter-affidavit  of   the authority  who had passed the order of detention  where  the order  of  detention is attached on the ground  of  being  a colourable  exercise of jurisdiction, "may assume the  shape of  serious  infirmity  leading the  court  to  declare  the detention illegal."’ [189D] Shaik  Hanif v. State of West Bengal, A.I.R. 1974  S.C.  679 referred to.

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JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 428 of 1974. Under Art. 32 of the Constitution of India. A.   K. Gupta, for the petitioner. G.   S. Chatterjee, for respondents. The Judgment of the Court was delivered by SARKARIA J.-Dulal Roy, the petitioner challenges the  order, dated August 21, 1972, of his detention made by the District Magistrate, Burdwan under s.3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act).  The  order states  that it is necessary to detain him, with a  view  to preventing him from acting in any manner prejudicial, to the maintenance of supplies and services essential to the community. The  grounds  of detention communicated to the  detenue  run under :               1.    On  21.7.72  at  1 a.m.  you  with  your               associates   Kartick  Karmaker   and   others’               committed  theft of Electric wire  from  Tower               Nos.  23  and  24  situated  near   Dhangachha               village and ’by such act you cause stoppage of               electric   supply  which  is   essential   for               maintenance  of supplies and services  to  the               community, in Memari area and its vicinity.               2.    On  29-7-72  at  2 a.m.  you  with  your               associates  committed theft of  Tower  Members               from Tower Nos. 246, 247, 248 situated on  the               field  near Dewandighi, P. S. Burdwan  and  by               commission  of  such  theft  the  towers  were               likely to fall resulting in stoppage of supply               electricity which is essential for maintenance               of supplies and services to the community,  in               Calcutta area and its suburbs." 188 In connection with the above thefts, two cases, one on 21-7- 72  ,-and  the other on 1-8-1972, under s. 379,  Penal  Code were  registered  with the police.  The petitioner  was  not named  in  the  F.I.R. His complicity was  detected  in  the course of investigation.  He was consequently arrested on 3- 8-72  and  sent up before the  Judicial  Magistrate.   After further  investigation, the police submitted a final  report and the petitioner was discharged in both the cases on  3-9- 72.  On the same day, he was taken into custody pursuant  to the impugned order of detention. Mr.  A.  K.  Gupta  appearing  as  amicus  curiae  for   the petitioner contends that the impugned order has been  passed to  subvert  the  process of the ordinary penal  law,  as  a colourable exercise of jurisdiction.  It is stressed that on 21-8-72 when the detention order was passed, the  petitioner was already in custody as an undertrial.  In the absence ,of anything  in the counter affidavit showing that his  custody was going to terminate soon, proceeds the argument,, it  was not  reasonably possible for the authority to  be  satisfied that the petitioner might indulge in prejudicial activities unless  he  was detained.  It is urged  that  the  detaining authority  never  applied its mind to  satisfy  itself  with regard   to  this  imperative  requirement  of  s.   3   and consequently  the,  order  of  detention  is  illegal.    To highlight  the  casualness of the authority in  taking  ,the impugned  action, Counsel has pointed out that the  counter- affidavit has not been filed by the District Magistrate  who had   made  the  impugned  order.   In  support   of   these contentions, learned Counsel has relied upon Rameshwar  Shaw

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v. District Magistrate Burdwan(1) Noor Chand Sheikh v. State of West Bengal(2) and the recent judgment of ’this Court  in Sri Lal Shaw v. State of West Bengal.(3) Mr.  Chatterjee,  learned Counsel for  the  Respondent-State submits  that the mere fact that the petitioner was  on  the date  of  the detention order in judicial  custody  did  not stand in the way of the detaining authority being  satisfied about  his propensity to act prejudicially in  future  after his  release from judicial custody.  It is  emphasised  that the  authority must have been aware that the petitioner  was likely to be released shortly as in fact he was released  by the Judicial Magistrate on 3-9-72, i.e. about 13 days  after the  making  of  the detention order.   Reference,  in  this connection,  has been made to Kartick Chander Guha v.  State of West Bengal. (4) Section 3 of the Act provides that the Central Government or the  State Government may if satisfied with respect  to  any person that with a view to preventing him from acting in any manner  prejudicial  to........  (iii)  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.  It will be seen that the satisfaction of  the authority as to the inclination of such person to act in any prejudicial manner indicated in sub-clauses (i) to (iii)  of s.3(1)  (a) is the sine qua non for making an order  of  his detention.   The scheme of the section presupposes  that  on the date of the order of detention or in (1)[1964] 4, S.C.R. 921.      (2) A.I.R. 1974 S.C. 2120. (3)  Writ Petition No. 453/74 decided on 4-12-1974. (4)  A.I.R. 1974 S.C. 2149.                             189 the  near  future, the person sought to be detained  has  or will  have  freedom  of action.  If a  person  therefore  is serving a long term of imprisonment or is in jail custody as an undertrial and there is no immediate or early prospect of his  being  released  on bail or  otherwise,  the  authority cannot  legitimately be satisfied on the basis of  his  past history  or  antecedents  that he is likely  to  indulge  in similar  prejudicial  activities after his  release  in  the distant  or  indefinite future.  There must be  a  proximate nexus between the preventive action and the past activity of the detenu on which it is founded. This  Court has time and again emphasised that where?  in  a habeas  corpus  petition  a  Rule  Nisi  is  issued,  it  is incumbent  upon  the  State to satisfy the  Court  that  the liberty  of  the  detenue has been taken  away  strictly  in accordance   with   law   and  due   compliance   with   the constitutional   requirements  of  Article  22(5)   of   the Constitution.  The best informed person, therefore, to  file the  counter-affidavit  in  response to Rule’  Nisi  is  the authority  who  made the detention order under s. 3  of  the Act.   In  Sheik Hanif v. State of West  Bengal,(1)  it  was pointed  out  that  the  failure  to  furnish  the  counter- affidavit  of  the  authority who had passed  the  order  of detention where mala fides or extraneous considerations  are attributed  to  it,  "may  assume  the  shape  of’   serious infirmity  leading  the  court  to  declare  the   detention illegal". This  observation  equally holds good in a  case  where  the detention,  order  is exposed to the risk of attack  on  the ground of being a colourable exercise of jurisdiction. While it is true, as an abstract legal proposition, that  an order of’ preventive detention under the Act may be  validly passed against a person in jail custody on the same facts on which he is being prosecuted for a substantive offence in  a

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court, such an order of detention is more easily vulnerable than  the  one against a person not in such custody  to  the charge  that without there being any basis whatever for  the satisfaction   of  the  detaining  authority,  which  is   a condition  precedent for taking action under s.3, the  power has  been  misused  as a, cloak solely for  the  purpose  of punishing  the detenu for the substantive offence for  which he was being prosecuted, by subverting 2nd circumventing the penal  law  and  irksome court procedure.   I  To  make  the detention   order  immune  against  such  an  attack-,   the detaining   authority   in   its   counter-affidavit   must, particularise  all the material circumstances’ on the  basis of  which  he  was  satisfied as to  the  necessity  of  the preventive  action despite the detenu being already in  jail custody and having no freedom of action on, the date of the detention  order.   In the present case this  has  not  been done.  No counter affidavit has been filed by the person who had made the impugned’ order.  Even the Deputy Secretary who has filed the counter after gathering some information  from the  record, does not disclose all the material  facts  from which  it  could be rationally possible  for  the  detaining authority  to predicate that if the impugned order  was  not made against the petitioner, though in judicial custody,  he could  be  able  to indulge in  the  prejudicial  activities indicated in the impugned order. (1)  A.I.R. 1974 S.C. 679; 190 There  is no averment whatever that the charges against  the petitioner were true but the evidence collected against  the petitioner  was  deficient, or, for reasons other  than  the charge  being groundless, the prosecution of the  petitioner for  substantive  offences was foredoomed to  failure.   The circumstances in which the petitioner was discharged by  the Judicial Magistrate have not been set out.  A bare statement that a "final report" was submitted by the Police is neither here  nor there.  Such a report could have been made by  the Police  in  any ,of the situations referred to  in  Sections 169,  170, and 173 of the Code of Criminal Procedure,  1898. Section  169 envisages two different situations in which  an accused  person can be released.  One is ,when there is  not sufficient  evidence  against  him.  The other  is  when  no reasonable   ground   or  suspicion  is  revealed   by   the investigation  in  regard  to his  being  concerned  in  the commission  of the offence.  Such a release can be  made  by the  investigating  officer  himself  without sending  the accused  before  a Magistrate.  Section 170  contemplates  a situation  where there is sufficient evidence or  reasonable ground  to  justify  the forwarding  of  the  accused  under custody  for  trial  to a ’Magistrate.   It  is  s.173  that provides  for  , final report, popularly  ’known  as  Police Challan   or  charge-sheet,  which  is  submitted   in   the presc ribed form after completion of the investigation.  The counter  affidavit  is silent with regard to the  nature  of this   police  report  and the  situation  in  which   the petitioner  was  discharged.  It does not say  whether  this report had reference to deficiency or sufficiency of eviden- ce or groundlessness of the charge against the petitioner. Mr.  Chatterjee submits that since the petitioner was  about 13 days after the impugned order, in fact, discharged by the Judicial   Magistrate,  it  should  be  presumed  that   his discharge was due to paucity of ,evidence and not on account of the charge being baseless. We  are  afraid  no such conjecture can be  drawn  when  the liberty  ,of a citizen is at stake.   The  counter-affidavit apart,  we  asked  Mr. Chatterjee if he could  show  us  any

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official  record  to support his  contention.   Counsel  was unable   to  do  so.   He  however,  submitted  that  if   a sufficiently long adjournment was granted, he would be  able to  ’furnish  a better and comprehensive  affidavit  of  the officer  who had passed the impugned order,  clarifying  all these  obscurities.   The case was instituted on  a  letter dated August 24, 1974 from the detenu.  Rule Nisi was issued on  October 3, 1974 for November 25, 1974.  ’On  the  latter date no counter affidavit was produced, and on the  request, of  the State Counsel an adjournment was granted  to  enable the  Respondents  to file the return.  Inspite of  this  the counter filed is neither clear and complete nor by the best informed  person.  We are therefore, not disposed to  put  a further  premium on this casualness and laxity on the  part of the Respondent. The  grounds of detention relate to two incidents  of  theft simpliciter in respect of which the petitioner could easily be  prosecuted under the penal law.  In the absence of  any explanation of apparent reason as to why his prosecution for the substantive offences resulted in his discharge and as to why the making of the preventive order was deemed necessary even while he was in jail custody and had no 191 freedom of action, the conclusion is in escapable that  the impugned  order  has  been  passed  mechanically  and  as  a colourable exercise of jurisdiction. In the view that it is incumbent on the detaining  authority in  such  cases to disclose to the court  all  the  material circumstances on which its subjective satisfaction is based, we  are fortified by the observations of this Court in  Noor Chand Sheikh v. State of ’West Bengal, (supra) wherein A. C. Gupta J. speaking for that Bench said               "We do not think it can be said that the  fact               that  the petitioner was discharged  from  the               criminal  cases is entirely irrelevant and  of               no  significance; it is a  circumstance  which               the  detaining  authority  cannot   altogether               disregard.   In the case of Bhut Nath Mate  v.               State of West Bengal(1) this Court observed :               ". . . detention power cannot be quietly  used               to  subvert,  supplant or  to  substitute  the               punitive  law of the Penal Code.   The  immune               expedient  of throwing into a prison cell  one               whom  the  ordinary law would  take  care  of,               merely because it is irksome to undertake  the               inconvenience  of  proving guilt in  court  is               unfair abuse."               If,  as the petitioner has asserted,  lie  was               discharged  because  there  was  no   material               against  him  and not because  witnesses  were               afraid  to  give evidence against  him,  there               would be apparently no rational basis for  the               subjective   satisfaction  of  the   detaining               authority.  It is for the detaining  authority               to  say that in spite of the discharge he  was               satisfied,  on some valid material, about  the               petitioner’s  complicity in the criminal  acts               which  constitute the basis of  the  detention               order.   But, as stated already, the  District               Magistrate,  Malda,  who passed the  order  in               this case has not affirmed the affidavit  that               has been filed on behalf of the State.               Apart   from   the   question   whether    the               explanation is satisfactory, the fact  remains               that  in  this case there is nothing  to  show

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             that  there was any rational material for  the               subjective  satisfaction of the authority  who               passed the order of detention.  Therefore,  we               find it difficult in the circumstances of this               case  to reject the contention that the  order               of detention was passed mechanically and was a               colourable exercise of the power conferred  by               the Act." The  ratio  of Kartik Chandra Guha v. State of  West  Bengal (supra), cited by Mr. Chatterjee. does not advance his case. There, the District Magistrate who had passed the  detention order  had clearly explained and disclosed on affidavit  all the  material  circumstances on which his  satisfaction  was based, and further averred (1)  A.I.R. 1974 S.C. 806. 192               "Having regard to the activities of the detenu               as  disclosed in the grounds of detention  and               having  regard  to the  possibility  of  (his)               being  enlarged on bail, I was satisfied  that               the detenu should be detained under the Act." In  the  present  case, ’there is nothing  in  the  counter- affidavit  to  show  that  on 21-8-1972,  the  date  of  the detention order, the petitioner was about to be released  on bail or discharged for deficiency of evidence or  difficulty of its production in court.  Nor is there any averment  that the   District  Magistrate  was  otherwise  satisfied   from credible  information received that the charges against  the detenu were true. In the light of what has been said above, we would quash the impugned order, make the rule absolute and direct the  lease of the petitioner. V.M.K.                         Petition allowed. 193