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PETITIONER: GOPAL BAURI

       Vs.

RESPONDENT: THE DISTRICT MAGISTRATE BURDWAN AND OTHERS

DATE OF JUDGMENT17/01/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR  781            1975 SCR  (3) 197  1975 SCC  (1) 522  CITATOR INFO :  C          1982 SC1315  (26)

ACT: Maintenance of lnternal Security Act, (26 of 1971),  Section 3(2)  read  with  sub-section (1)--Recovery  of  the  stolen articles  from one of the detenu’s associates weighing  with District Magistrate in making the impugned order-Omission to disclose  the  name  of associate in  the  grounds,  whether amounts denial of opportunity to the petitioner to represent against the Order of detention.

HEADNOTE: The petitioner was arrested on March 26, 1973, in connection with  two incidents of theft said to have been committed  by him  on 20th and 21st March, 1973.  He was released  by  the Court on bail on the same day.  The police, however, in  due course  submitted  the  final report  and  the  accused  was discharged  on July 22, 1974.  But the respondent  made  the impugned  order  of detention on June 25,  1973  under  sub- section  (1) read with sub-section (2) of section 3  of  the Maintenance  of Internal Security Act, 1971.  The order  was made  in  order to prevent the petitioner from acting  in  a manner  prejudicial  to  the  maintenance  of  supplies  and services  essential  to the community.  The  petitioner  was detained  in pursuance of that order on July 13, 1973.   The grounds which have been furnished to the detenu describe the occurrence  of  two successive days, namely  20th  and  21st March,  1973.   In the counter-affidavit  submitted  by  the respondent  it  is stated that both the acts stated  in  the grounds of detention were committed by the detenu along with his  associates in quick succession in the course  of  these successive days. Allowing the petition under Article 32 challenging the order of detention, HELD   :  The  "three"  successive  incidents  may   include reference to the recovery of some stolen ball bearings  from the  possession  of "one of your associates  on  23-3-1973". Even  so, it was absolutely necessary to communicate to  the detenu  the  name  of the particular  associate  from  whose possession the recovery of the stolen articles, the  subject matter of the thefts disclosed in the two grounds was  made.

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Since the sin of the recovery from "one of your  associates" visits  the detenu against whom a prejudicial inference  has been  made by the detaining authority resulting in his  sub- jective satisfaction in making the impugned order,  omission to disclose the name of the associate in the grounds amounts to  denial of an effective opportunity to the petitioner  to represent against the order. [199B-E] In this case either the District Magistrate did not know the name  of the associate for which alone it was  not  possible for him to disclose it to the detenu or knowing the same he, has  refrained  from furnishing it to the  detenu.   In  the first case his subjective satisfaction was influenced by  an unreal and non-existent material circumstance, the  District Magistrate not having considered whether the associate could be in fact an associate of the detenu.  In the second case a reasonable  opportunity has not been given to the detenu  to know a very relevant and material particular in the  grounds to  afford  making an effective representation  against  the order.  In either case the order will be reckoned as invalid under the aw. [199H]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 406 of 1974. (Under Article 32 of the Constitution). M. Qamaruddin, A.C., for the Petitioner. Prodvot Kumar Chakravarti, and G. S. Chatterjee of Sukumar Basu & Co. for the respondents. 198 The Judgment of the Court was delivered by GOSWAMI,  J.-This  application for a writ of  habeas  corpus under Article 32 of the Constitution arises out of an  order of  detention  made  on  June  25,  1973,  by  the  District Magistrate Burdwan under subsection (1) read with subsection (2)  of  section 3 of the Maintenance of  Internal  Security Act,  1971.   The  order was made in order  to  prevent  the petitioner from acting in a manner prejudicial to the  main- tenance of supplies and services essential to the community. The grounds on which the said order is based are as follows               "(1) On 20-3-73 night at about 01.00 hrs.  you               with your other associates committed theft  of               ball   bearings  and  wheels  of  the   bucket               carriages of the rope-way lines near Harishpur               village   and  the  supply  of  sand  to   the               collieries  was  suspended.  By such  act  you               adversely  affected the raising of  supply  of               coal  from the collieries which  is  essential               for human consumption and for the  maintenance               of  supplies  and services  essential  to  the               community.               (2)   On 21-3-73 at about 03.00 hrs. you  with               your other associates committed theft of  ball               bearings  and wheels of the  bucket  carriages               from  the rope-way lines at Palashbon  village               causing  suspension of supply of sand  to  the               collieries.   Some stolen ball  bearings  were               recovered  from the possession of one of  your               associates  on 23-3-73.  The resultant  effect               was  that coal which is essential  commodities               cannot be processed out of the mines for human               and  other          consumption  and  for   the               maintenance of supplies and services essential               to the community." The petitioner was arrested by the police in connection with

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the  aforesaid  two  incidents on March  26,  1973  and  was released by the court on bail on the same day.  The  police, however,  in  due  course  submitted  the  final  report  on November 25. 1973 and the accused was discharged on July 22, 1974. As seen earlier the impugned order of detention was made  on June  25, 1973 and the petitioner was detained in  pursuance of  that  order on July 13, 1973.  It is  submitted  by  Mr. Quamruddin, learned counsel appearing as amicus curiae  that based on the grounds as given, there is an inordinate  delay in making the detention order.  Secondly he submits that the grounds  are  vague inasmuch as there is no mention  of  the number  of ball bearings nor of the number of associates  in the  grounds.  We are not impressed by these submissions  in this case We. however, find from paragraph 5 of the  counter-affidavit submitted  by  the Deputy Secretary, Ministry  of  Commerce, Government  of  India, who was the  District  Magistrate  of Burdwan at the relevant time- the following statement :-               "I  further  say  that having  regard  to  the               nature of the acts committed by the detenu (as               disclosed in the grounds far-                199               nished  to  the  detenu),  I  was  bona,   #de               satisfied  that the said acts were  sufficient               for making the detention order.  Both the acts               stated  in  the  grounds  of  detention   were               committed   by  the  detenu  along  with   his               associates  in quick succession in  course  of               three successive days. " The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely, 20th and 21st March,  1973 Even giving some allowance to the affidavit  of the   District  Magistrate  it  may  be  that  the   "three" successive  incidents may include reference to the  recovery of some stolen ball bearings from the possession of "one  of your associates on 23-3-73" mentioned in the second  ground. Even  so, it was absolutely necessary to communicate to  the detenu  the  name  of the particular  associate  from  whose possession the recovery of the stolen articles, the_ subject matter of the thefts disclosed in the two grounds, was made. Since  it is clear from the District Magistrate’s  affidavit that  the  recovery of the stolen articles from one  of  the detenu’s associates weighed with him in making the  impugned order,  the  petitioner should have be-en apprised  of  that material fact in a specific manner the least of which was to furnish the name of the associate.  It may be that  omission to give names of indeterminate associates who run away after committing  illegal  acts  at dead of night may  not  be  of consequence but here the name of the associate from whom the stolen  ball  bearings were recovered was  a  definite  fact known  to the authority in order to connect the detenu  with the  particular thefts.  Since the sin of the recovery  from "one  of your associates" visits the detenu against  whom  a prejudicial  inference  has  been  made  by  the   detaining authority resulting in his subjective satisfaction in making the  impugned  order, omission to disclose the name  of  the associate  in the grounds amounts to denial of an  effective opportunity O the petitioner to represent against the order. For this infirmity in ,’he grounds the petitioner is  denied the  constitutional  protection under article 22(5)  of  the Constitution. It  is  submitted on behalf of the respondents that  even  a disclosure  of the name of the associate would  have  evoked the same plea of denial by the detenu and, therefore,  would

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be  inconsequential.   We  are  unable  to  accept  such   a submission.   In  case of preventive detention the  duty  to furnish  the  relevant material particulars in  the  grounds which  reasonably influence the subjective  satisfaction  in making  the order of detention is not to be judged  by  what the answer the detenu will make but whether the detenu  will be  able  to make an effective  representation  against  the order.  The possibility or probability of detenu’s  ultimate denial of the allegations is not relevant in that context. In this case either the District Magistrate did not know the name  of the associate for which alone it was  not  possible for him to disclose it to the detenu or knowing the same  he has refrained from famishing it to the detenu.  In the first case his subjective satisfaction was influenced by an unreal and   non-existent  material  circumstances,  the   District Magistrate not having considered whether the associate could 200 be in-fact an associate of the detenu.  In the second case a reasonable  opportunity has not been given to the detenu  to know a very relevant and material particular in the  grounds to  afford  making an effective representation  against  the order.  In either case the order will be reckoned as invalid under the law. In the result the impugned order is invalid and the same  is quashed.  The rule nisi is made absolute and the  petitioner shall be released from detention forthwith. V.M.K. Petition allowed. 201