http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22  

PETITIONER: KHUDIRAM DAS

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT26/11/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. REDDY, P. JAGANMOHAN GOSWAMI, P.K. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR  550            1975 SCR  (2) 832  1975 SCC  (2)  81  CITATOR INFO :  F          1975 SC1877  (6)  F          1976 SC 734  (6)  RF         1976 SC1207  (53,300,523,560,561,1566)  D          1978 SC 597  (55,195)  RF         1979 SC 420  (10)  RF         1979 SC 429  (24)  R          1979 SC 478  (100)  R          1979 SC1501  (3)  R          1980 SC1382  (83)  F          1980 SC1744  (16)  RF         1980 SC1983  (4,6)  R          1981 SC  28  (13,17,18,21)  RF         1981 SC 431  (8)  D          1981 SC1191  (5)  R          1981 SC2166  (13,20)  R          1982 SC 710  (71)  F          1982 SC1023  (13)  MV         1982 SC1325  (80)  R          1982 SC1500  (6)  RF         1983 SC 300  (4)  R          1984 SC 444  (13,14,24)  R          1985 SC1082  (6)  E&R        1985 SC1416  (103,104)  R          1986 SC 207  (3)  RF         1986 SC 555  (6)  RF         1986 SC1748  (14,22)  R          1987 SC1192  (12)  R          1988 SC1256  (7)  RF         1990 SC 231  (17)  D          1990 SC1446  (7)  RF         1991 SC 574  (17,18)

ACT: Constitution  of India, 1950, Art. 22(5)-Scope  of-Power  of detention if should satisfy Art. 19(1). Maintenance   of   internal  Security  Act,  1971,   s.   3- Satisfaction of detaining authority, if subjective-Power, if unreasonable-Right  of  Court to examine record  to  see  if detaining authority was influenced by material not disclosed to detenu-’Other particulate meaning of-Duty to disclose  to detenu.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22  

HEADNOTE: The  petitioner  was detained by an order  of  the  District Magistrate under s. 3)1)  and  (2)  of  the  Maintenance  of Internal Security Act, 1971.  The   grounds of    detention stated  that the petitioner was involved in 3  incidents  of removal of     transformers  and  theft  of  copper   wires. disrupting  the  supply of water and  electricity  and  thus acted in a manner prejudicial to the maintenance of supplies and  services  essential  to the  community.   The  District Magistrate  sent  a report to the State  Government  sending along with the report, the history-sheet of the  petitioner. The  State  Government  after receiving the  report  of  the Advisory Board confirmed the detention. In  a petition under Art. 32, the petitioner challenged  his detention on the following grounds (1)  The  3  incidents  of theft  mentioned  as  grounds  of detention  were not sufficient, objectively, to justify  the District Magistrate’s satisfaction that it was necessary  to detain the petitioner; (2)  If  the  power  to detain could  be  exercised  on  the subjective satisfaction of the detaining authority under the section,  then it imposed. unreasonable restrictions on  the fundamental right of the petitioner under Art. 19(1); (3)  The  history  sheet of the petitioner  was  before  the Dist.   Magistrate, who, though he stated that beyond the  3 incidents mentioned in the grounds he did not take any other material  into account in passing the detention order,  must have  been influenced by the other material in  the  history sheet;  and  since that material was not  disclosed  to  the petitioner,  there was a violation of Art. 22(5), and ss.  3 and 8 of the Act. and (4)  The history sheet of the petitioner was also before the State Government when it approved the order of detention and the State Government must also have taken the material  into account in confirming the detention order and this was also. contrary to the Constitutional mandate in Art. 22(5) and the legal  mandate  in ss. 3 and 8 of the Act, to  give  him  an opportunity to make an effective representation against  his detention. Dismissing the petition, HELD  : 1(a) The Constitutional imperatives enacted in  Art. 22(5)  are two fold : (i) the detaining authority  must,  as soon  as may be, that is, as soon as practicable  after  the detention,  communicate to the detenu the grounds  on  which the  order has been made; and (ii) the  detaining  authority must afford the detenu the earliest opportunity of making  a representation against the detention order.  In the context, ’grounds’ does not merely mean a recital or reproduction  of a ground of satisfaction of the authority in the language of s. 3: nor is its connotation restricted to a bare  statement of  conclusion  of fact.  Nothing less than  all  the  basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. [838F-840C] (b)  The  words used in s. 3(1) and (2) are ’if  satisfied’, and they clearly import subjective satisfaction on the  part of the detaining authority before an                             833 order of detention can be made.  The power of detention is a preventive measure.  Since every preventive measure is based on  the  principle that a person should  be  prevented  from doing  something  which, if left free and unfettered  it  is reasonably probable he would do, it must necessarily proceed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22  

in  all cases, to some extent, on suspicion or  anticipation as  distinct  from  proof.  This being  the  nature  of  the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment.  The matters which  have to be considered by the detaining authority  are whether  the  person concerned, having regard  to  his  past conduct judged in the light of the surrounding circumstances and  other  relevant material. would be likely to act  in  a prejudicial  manner as contemplated by the Act.   These  are not matters susceptible of objective determination and they could  not be intended to be judged by objective  standards. It  must therefore be held that the subjective  satisfaction of  the detaining authority constitutes the  foundation  for the exercise of the power of detention and the Court  cannot be  invited to consider the propriety or sufficiency of  the grounds on which the satisfaction is based. [842C-843A] Golam @ Golam Mallick v. The State of West Bengal, W.P.  No. 270  of 1974, dec. on 12th September, 1974, Dr. Ram  Krishan Bhardwaj   v. The State of Delhi & Ors., [1953] S.C.R.  708; Shamrao Vishnu Parulekar v. The District Magistrate.  Thana, [1956]  S.C.R. 644; State of Madras v. V. G.Row A.I.R.  1952 S.C. 597 followed. (c)  In  Bhut Nath Male v. State of West Bengal AIR 1974  SC 806,  this Court observed that the exercise of the power  of detention   ’implies  a  quasi-judicial   approach’.    This observation  was  not  meant to convey  that  the  power  of detention is quasi-judicial.  It only intended to  emphasise that  the  detaining authority must exercise  due  care  and caution and act fairly af detention’  and  not other particulars’.  Though it  is  not possible   to   categorise  precisely   what   those   other particulars’  can be. they may include particulars  relating to  the background of the circumstances in which  the  Dist. Magistrate reached his satisfaction, or particulars found to be administratively necessary for him to communicate to  the State  Government, so that its supervisory function  may  be effectively  discharged.  There is nothing in Art. 22(5)  of the  Constitution  or  in any provision  of  the  Act  which requires   that   these  ’other   particulars’   should   be communicated to the detenu. [851C-H] 835 (b)  In  Hardhan  Saha’s case this Court observed  that  the detenu  has a right to be apprised of all the  materials  on which an order of detention is passed or approved.’ What the court  had in mind was only materials which constituted  the grounds  of  detention  and  not  the  ’other   particulars, because,  (i)  this Court could not have  intended  that  in addition  to the grounds ’other particulars’ should also  be communicated  when  there is no requirement to  that  effect Art. 22(5), and (ii) no such question arose for decision  in that  case  and  the court was not  called  upon  to  decide whether  ’other  particulars,  communicated  to  the   State Government under s. 3(3) are required to be disclosed to the detenu. [852C-H] (c)  In  the  present case, the material  from  the  history sheet which was not disclosed to the petitioner did not form part  of  the  grounds of detention on which  the  order  of detention was made by the Dist.  Magistrate and approved  by the State Govt., but merely constituted ’other  particulars’ communicated   by  the  Dist.   Magistrate  to   the   State Government   under  s.  3(3).   There  was   therefore.   no obligation on the Dist.  Magistrate or the State  Government to,  discloso the material to the petitioner, and  the  non- disclosure  did  not invalidate the approval  by  the  State Government of the detention order. [852H-853B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22  

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 324 of 1974. Petition under Article 32 of the Constitution of India. R.   K. Jain, for the petitioner. D.   N.  Mukherjee, Sukumar Basu and G. S.  Chatterjee,  for the respondents. The Judgment of the Court was delivered by BHAGWATI, J. This is a petition for a writ of habeas  corpus under  article  32  of  the  Constitution  challenging   the validity  of the detention of the petitioner under an  order of detention dated 3rd November, 1973 passed by the District Magistrate,  Malda  under  sub-section (1)  read  with  sub- section  (2)  of section 3 of the  Maintenance  of  Internal Security  Act, 1971.  The questions raised in this  petition are  of importance is they effect the fundamental  right  of personal  liberty  which  is  one  of  the  most   cherished fundamental  rights guaranteed by the Constitution.   It  is necessary to state the facts giving rise to this petition in so far as they are material to a proper understanding of the important issues involved in this petition. The District Magistrate, Malda passed an order of  detention dated   3rd November, 1973 under sub-section (1)  read  with sub-section  (2) of section 3 of the Act directing that  the petitioner  be detained on the ground that it was  necessary so  to do "with a view to preventing him from acting in  any manner  prejudicial  to  the  maintenance  of  supplies  and services essential to the community".  Within two days after the  making  of  the  order of detention,  that  is  on  5th November, 1973, the District Magistrate made a report to the State  Government  and forwarded to  the  State  Government, along with his report, copies of the order of detention, the history-sheet  of  the petitioner a document  to  which  we. shall have occasion to refer in some detail a little  later- and  the grounds on which the order of detention  was  made. The State Government,. presumably on a consideration of  the total   material  forwarded  by  the  District   Magistrate, approved the order of detention on 12th November, 1973 under sub-section  (3) of section 3 of the Act.  It  appears  that the petitioner could not be apprehended for some time and it was  only  on  25th December, 1973 that  he  was  ultimately arrested pursuant to, 836 the  order  of detention.  Immediately on  his  arrest,  the petitioner  was  served  with  a  copy  of  the  grounds  of detention  as required by section 8, sub-section (1) of  the Act.   The grounds of detention stated that  the  petitioner was being detained :               ".  .  .  on the grounds that  you  have  been               acting   in  a  manner  prejudicial   to   the               maintenance of supplies and service  essential               to   the  community  as  evidenced  from   the               particulars given below : -               1.    That on 22.4.73 at night at about  20.00               hrs. you along with your associates brake open               an electrical transformer of STC cluster No. 8               at  Uttar Laxmipur village, P.  S.  Kaliachak.               At the time of operation the guard detected it               and  challenged.   You  and  your   associates               chased  him  with  hasuas, iron  rod  etc.  to               assault, when the guard fled away to save  his               life.   You  and  your  associates  took  away               copper  wire  from transformer.  At  a  result

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22  

             tube wells of the cluster became  inoperative.               Thus  you  disrupted the supply  of  water  in               cultivation  of  paddy  resulting  failure  of               crops.               2.    That  on 1.5-73 at about 23.00 hrs.  you               along  with  your associates  broke  open  the               transformer  at village Dariapur  under  Mauza               Bedrabad,  P.S.  Kaliachak and took  away  the               valuable  portions and the copper wire of  the               transformer when the villagers protested,  you               and  your  associates  threatened  them   with               death.   As such the villagers left the  place               out of fear.  As a result of such theft supply               of electricity was disrupted in the area.               3.    That on 23-5-73 at 00.15 hrs. you  along               with  your associates Abdul Hamid son  of  Nur               Md.  of  Uttar  Laxmipur  Dafadortola,  Mehini               Ranjan  Das & Hittan s/o L. Arjeen  Mondal  of               Uttar  Laxmipur,  Nafar  Bhakattolal  and  two               others   removed  the  transformer  from   the               electrical part of village Natichapa  Nayagram               Deep  tube well for the purpose of  committing               theft  of  copper  wire.  When  the  same  was               brought down to the ground, O C. Kaliachak  P.               S. with other staff who were on ambush  patrol               caught held of you and two of your  associates               the  spot.  Thus you acted in a manner  preju-               dicial  to  the maintenance  of  supplies  and               services-essential to the community." The  petitioner did not make his representation against  the order of detention until the beginning of February 1974, but in the mean time, in obedience of section 10 of the Act, the case  of the petitioner was placed by the  State  Government before  the  Advisory Board on 22nd January,  1974  and  the ground  of  detention were also forwarded  to  the  Advisory Board  in  order  to enable it to  give  its  opinion.   The representation  of  the  petitioner  against  the  order  of detention  was  in  the  meanwhile  received  by  the  State Government  on  5th February, 1974.   The  State  Government considered the representation of the petitioner and rejected it  on  7th  February,  1974, but  since  the  case  of  the petitioner was pending consideration by the Advisory  Board, the State Government forwarded it to the Advisory Board  for its consideration.  The                             837 Advisory Board thereafter submitted its report to the  State Government  on 26th February, 1974 under section 11  of  the Act  stating that in its opinion there was sufficient  cause for the detention of the petitioner.  The State  Government, on  receipt of the report of the Advisory Board,  passed  an order dated 5th March, 1974, confirming the detention of the petitioner under section 12, sub-section (1) of the Act, and this  order  of confirmation was served  on  the  petitioner through  the Superintendent of Police, Murshidabad.   It  is this  detention,  originating  in the  order  of  detention, approved  by  the State Government and continued  under  the order of confirmation passed by the State Government that is being challenged in the present petition. The  petition was presented by the petitioner from jail  and since  he  was not represented by any  counsel,  this  Court appointed Mr. R. K. Jain, amicus curiae to present the  case on  behalf of the, petitioner.  Mr. R. K. Jain on behalf  of the  petitioner  urged  the following  grounds  against  the validity of the order of detention :-               (a)   It  is  apparent  from  the  grounds  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22  

             detention  furnished  to the  petitioner  that               there  were only three incidents of  theft  on               which  the District Magistrate relied for  the               purpose  of coming to a satisfaction  that  it               was necessary to detain the petitioner with  a               view  to  preventing him from  acting  in  any               manner  prejudicial  to  the  maintenance   of               supplies  and services essential to  the  com-               munity..    These   three    incidents    were               objectively  not  sufficient to  justify  such               satisfaction and the order of detention  based               on such satisfaction was, therefore, bad.               (b)   If  the view be taken that the power  to               detain  a  person could be  exercised  by  the               detaining  authority merely on its  subjective               satisfaction  which could not be  tested  with               reference to objective standards, section 3 of               the   Act,  which  empowered   the   detaining               authority  to exercise the power of  detention               on  the basis of its subjective  satisfaction,               imposed   unreasonable  restrictions  on   the               fundamental  rights  of the  petitioner  under               Art.  19)1)  and was, therefore,  ultra  vires               that article.               (c)   The history-sheet of the petitioner  was               before  the District Magistrate when  he  made               the order of detention and though the District               Magistrate  stated in his affidavit  in  reply               that  beyond the three incidents mentioned  in               the  grounds of detention he did not take  any               other  material  in  the  history-sheet   into               account in passing the order of detention,  it               was   impossible  to  say  that  he  was   not               influenced by such other material and since no               opportunity  was  given to the  petitioner  to               make an affective representation against  such               other material, the order of detention was  in               contravention    of   Art.   22(5)   of    the               Constitution and section 8, subsection (1)  of               the Act and was on that account invalid.               838               (d)   The  history-sheet  of  the   petitioner               which  contained  other relevant  material  in               regard  to the petitioner in addition  to  the               three incidents referred to in the grounds  of               detention was before the State Government when               it approved the order of detention and in  the               absence  of any statement to the  contrary  on               behalf   of  the  State  Government   in   the               affidavit  in reply, it must be inferred  that               the State Government took such other  material               into account in approving the order of  deten-               tion.  This was contrary to the constitutional               mandate in Art. 22(5) of the Constitution  and               the legal mandate in section 3 read with s.  8               of  the  Act  and it  vitiated  the  order  of               approval  made  by the  State  Government  and               rendered  the  detention  of  the   petitioner               illegal. These were the main grounds of challenge urged by Mr. R.  K. Jain  ,on  behalf of the petitioner.  We  shall  proceed  to examine them. We will first consider the constitutional background against which  the  Act  has  been enacted and  then  refer  to  the material provisions of the Act.  The relevant article of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22  

Constitution  having a bearing on this question  is  article 22.   This article has been analysed in more cases than  one by  this Court and it is clear from the decided  cases  that this  article  provides  various  safeguards  calculated  to protect personal liberty against arbitrary restraint without trial.  These safeguards cannot be regarded as  substantial. They  are  essential  procedural  in  character  and   their efficacy  depends on the care and caution and the  sense  of responsibility with which they are regarded by the detaining authority.   Two  of these safeguards, which relate  to  the observance  of the principle of natural justice and which  a fortiorari  are  intended  to act as a  check  on  arbitrary exercise of power, are to be found in Art. 22(5) of the Con- stitution.   This provision of the  Constitution  introduces two  procedural  requirements  embodying the  rule  of  audi alteram  paritem to a limited but a crucial  and  compulsive extent  by providing 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, as soon as may be, 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  constitutional imperatives  enacted  in  this article are two-fold : (1) the detaining authority must,  as soon  as may be, that is, as soon as practicable  after  the detention,  communicate to the detenu the grounds  on  which the order of detention has been made, and (2) the  detaining authority must afford the detenu the earliest opportunity of making  a  representation against the  order  of  detention. These  are  the  barest minimum  safeguards  which  must  be observed  before an executive authority can be permitted  to preventively detain a person and thereby drown his right  of personal  liberty  in  the name of public  good  and  social security.   But, what is the content of these  safeguards  ? What  does the word ’grounds’ mean ?  Does it mean only  the final conclusion reached by the detaining authority on which alone the order of detention can be made, or does it include the  basic  facts and materials from which  the  conclusions justify-                             839 ing  the  order  of detention are  drawn  by  the  detaining authority   ?  What  is  the  inter-relation   between   the requirements of the first and the second safeguards ? Is the efficacy  of the second safeguard violated by  nonobservance of  the  requirement  of the first safeguard ?  If  all  the ’grounds’ which weighed with the detaining authority are not communicated  to  the detenu, does it  constitute  merely  a breach  of the first safeguard or does it also  involve  the violation of the second ? The  answer to these questions does not present any  serious difficulty  if only we consider the reason why  the  grounds are  required to be communicated to the detenu ’as  soon  as may  be’ after the detention.  Obviously the reason is  two- fold.  In the first place, the requirement of  communication of  grounds of detention acts as a check  against  arbitrary and  capricious exercise of power.  The detaining  authority cannot  whisk away a person and put him behind bars  at  its own sweet win.  It must have grounds for doing so and  those grounds  must  be communicated to the detenu, so  that,  not only  the detenu may know what are the facts  and  materials before  the detaining authority on the basis of which he  is being  deprived  of his personal liberty, but  he  can  also invoke  the power of judicial review, howsoever limited  and peripheral  it  may  be.  Secondly, the  detenu  has  to  be afforded  an opportunity of making a representation  against

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22  

the order of detention.  But if the grounds of detention are not  communicated  to  him  how can  he  make  an  effective representation ? The opportunity of making a  representation would  be  rendered  illusory.   The  communication  of  the grounds  of  detention  is,  therefore,  also  intended   to subserve  the  purpose  of enabling the detenu  to  make  an effective  representation.  If this be the true  reason  for providing  that the grounds on which the order of  detention is made should be communicated to the detenu, it is  obvious that  the ’grounds’ mean all the basic facts  and  materials which   have  been  taken  into  account  by-the   detaining authority  in  making the order of detention and  on  which, therefore,  the order of detention is based.  To  quote  the words  of one of us (Sarkaria, J.) in Golam @ Golam  Mallick v.  The  State  of  West Bengal(4)". .  .  in  the  context, ’grounds’ does not merely mean a recital or reproduction  of a ground of satisfaction of the authority in the language of section 3 of the Act; nor is its connotation restricted to a bare  statement of conclusions of fact.  It means  something more.   That ’something’ is the factual constituent  of  the ’grounds’  on  which  the  subjective  satisfaction  of  the authority   is   based.   The  basic  facts   and   material particulars,  therefore,  which are the  foundation  of  the order of detention, will also be covered by ’grounds’ within the  contemplation of article 22(5) and section 8,  and  are required  to  be  communicated to the  detenu  unless  their disclosure is considered by the authority to be against  the public interest." This has always been the view consistently taken  by  this Court in a series of decisions.  It  is  not necessary to burden this judgment with citation of all these decisions.  It would be sufficient if we quote the following observations  of Patanjali Sastri, C.J., in Dr. Ram  Krishan Bhardwaj  v.  The  State  of Delhi & OrS. (2)  ".  .  .  the petitioner has (1)  W. P. No. 270 of 1974. decided on 12th September, 1974. (2)  [1953] S.C.R. 708. 840 the right under article 22(5), as interpreted by this  Court by  a  majority,  to be furnished with  particulars  of  the grounds of his detention ,sufficient to enable him to make a representation which on being considered may give relief  to him’.    We   are  of  opinion  that   this   constitutional requirements  must be satisfied with respect to each of  the grounds  communicated to the person  detained."  Venkatarama Ayyar,  J., also pointed out in Shamrao Vishnu Parulekar  v. The District Magistrate, Thana(.1) that construing the words ’grounds on which the order has been made’ in their  natural and  ordinary sense, "they would include any information  or material  on which the order was based.  The Oxford  Concise Dictionary gives the following meanings to the word ’ground’ :  ’Base,  foundation,  motive,  valid  reason’.   On   this definition,  the materials on which the District  Magistrate considered  that an order of detention should be made  could properly  be  described  as  grounds  therefor".   (emphasis supplied).   It is, therefore clear that nothing, less  than all  the  basic  facts and materials  which  influenced  the detaining authority in making the order of detention must be communicated  to the detenu.  That is the plain  requirement of  the  first  safeguard in article  22(5).   The  second safeguard in article 22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against  the  order of detention.  No  avoidable  delay,  no shortfall  in the materials communicated shall stand in  the way of the detenu in making an early, yet comprehensive  and effective,  representation in regard to all basic facts  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22  

material  which may have influenced the detaining  authority in  making  the  order of detention  depriving  him  of  his freedom.   These  are  the legal  bulwarks  enacted  by  the constitution-makers  against arbitrary or improper  exercise of  the  vast powers of preventive, detention which  may  be vested  in  the executive by a law of  preventive  detention such as the Maintenance of Internal Security Act, 1971. We  may  now refer to the provisions of the  Maintenance  of Internal  Security Act, 197 1. Section 3, sub-section  (  1) confers  powers of preventive detention on the  Central  and State Governments in the following terms : "The Central Government or the State Government may,-               (a)   if satisfied with respect to any  person               (including  a foreigner) that with a  view  to               preventing  him  from  acting  in  any  manner               prejudicial to-               (i)   the  defence of India, the  relation  of               India with foreign powers, or the security  of               India, or               (ii)  the   security  of  the  State  or   the               maintenance of public order, or               (iii) the maintenance of supplies and services               essential to the community, or               (b)............................               it is necessary so to do, make order directing               that such person be detained."               (1)   [1956] S.C.R. 644. 841 Sub-section (2) of section 3 vests this power of  preventive detention  also in a District Magistrate by enacting that  a District Magistrate " may, if satisfied as provided in  sub- clauses (ii) and (iii) of clause (a)    of sub-section  (1), exercise the power conferred by the said sub- section".  But when an order of detention is made by a District Magistrate, sub-section (3) of section 3 requires that :               ". . . he shall forthwith report the fact  to               the   State   Government  to   which   he   is               subordinate together with the grounds on which               the  order  has  been  made  and  such   other               particulars as in his opinion have a  bearing               on the matter, and no such order shall  remain               in  force for more than twelve days  from  the               making  thereof unless in the meantime it  has               been approved by the State Government." Section  4, 5, 6 and 7 are not material for the  purpose  of the present petition and we need not refer to them.  Section 8 is important and it may be reproduced as follows :               "(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.               (2)   Nothing in sub-section (1) shall require               the authority to     disclose  facts which  it               considers to be against the public interest to               disclose." Section 9 provides for the constitution of an Advisory Board and  section  10  lays  on  obligation  on  the  appropriate Government,  in every case where an order of  detention  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22  

been made, to place before the Advisory Board, within thirty days  from  the  date of detention  under  the  order,  "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 by such officer under  sub-section (3)  of  section  3".  The Advisory  Board  is  required  by section  11,  sub-section (1) to submit its  report  to  the appropriate  Government  within ten weeks from the  date  of detention  after considering the materials placed before  it and  after  calling for such further information as  it  may deem necessary, and if, in any particular case, it considers it  essential so, to do or if the person concerned  desires to  be  heard,  after  hearing him  in  person.   Where  the Advisory  Board  reports  that there is in  its  opinior  no sufficient cause for the detention of the person  concerned, the apropriate Government is obliged under section 12,  sub- section  (2) to revoke the order of detention.  If,  on  the other hand, the opinion of the Advisory Board is that  there is  sufficient  cause  for the  detention,  the  appropriate Government may under section 12, sub-section (1)  confirm the order of detention and continue the detention or 7-L346 Sup CI/75 842 revoke  the  order  of  detention as  it  thinks  fit  on  a consideration  of all the facts and circumstances which  are before  it.   These are the material provisions of  the  Act which  have a bearing on the determination of  the  question arising in this petition. Now  it is clear on a plain reading of the language of  sub- sections  (1) and (2) of section 3 that the exercise of  the power  of  detention  is made dependent  on  the  subjective satisfaction  of the detaining   authority that with a  view to preventing a person from acting in a prejudicial  manner; as set out in sub-clauses (i), (ii) and (iii) of clause  (a) of  sub-section (1), it is necessary to detain such  person. The words used in sub-sections (1) and (2) of section 3  are "if   satisfied"   and  they   clearly   import   subjective satisfaction  on the part of the detaining authority  before an  order of detention can be made.  And it is  so  provided for a valid reason which becomes apparent if we consider the nature of the power of detention and the conditions on which it  can be exercised.  The power of detention is  clearly  a preventive  measure.  It does not partake in any  manner  of the nature of punishment.  It is taken by way of  precaution to   prevent  mischief  to  the  community.    Since   every preventive  measure is based on the principle that a  person should be prevented from doing something which, if left free and  unfettered, it is reasonably probable he would  do,  it must  necessarily proceed in all cases, to some extent,  on suspicion or anticipation as distinct from proof.  Patanjali Sastri, C.J., pointed out in State of Madras v. V. G. Row(1) that  preventive  detention is  "largely  precautionary  and based  on suspicion" and to these observations may be  added the following words uttered by the learned Chief Justice  in that case with reference to the observations of Lord Finlay in Rex v. Halliday,(2) namely, that "the court was the least appropriate  tribunal to investigate into  circumstances  of suspicion on which such anticipatory action must be  largely based".   This  being the nature of the  proceeding,  it  is impossible  to conceive how it can possibly be  regarded  as capable of objective assessment.  The matters which have  to be  considered  by the detaining authority are  whether  the person  concerned, having regard to his past conduct  judged in  the  light of the surrounding  circumstances  and  other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22  

relevant material, would be, likely to act in a  prejudicial manner  as contemplated in any of sub-clauses (i), (ii)  and (iii) of clause (1) of sub-section (1) of section 3, and  it so,  whether  it is necessary to detain him with a  view  to preventing  him  from  so acting.   These  are  not  matters susceptible of objective determination and they could not be intended  to  be judged by objective  standards.   They  are essentially  matters  which  have  to  be   administratively determined for the purpose of taking administrative  action. Their   determination   is,  therefore,   deliberately   and advisedly   left  by  the  legislature  to  the   subjective satisfaction  of the detaining authority which by reason  of its  special  position, experience and expertise  would,  be best fitted to decide them.  It must in the circumstances be held  that  the  subjective satisfaction  of  the  detaining authority   as   regards  these  matters   constitutes   the foundation for the exercise of the power of detention and (1) A.I.R. 1952 S.C. 597. (2)[1917] A.C. 260 843 the  Court cannot be invited to consider the  propriety  or sufficiency of the grounds on which the satisfaction of  the detaining authority is based.  The Court cannot, on a review of  the grounds, substitute its own opinion for that of  the authority,  for  what  is made condition  precedent  to  the exercise  of  the  power of detention is  not  an  objective determination of the necessity of detention for a  specified purpose   but  the  subjective  opinion  of  the   detaining authority,  and  if a subjective opinion is  formed  by  the detaining  authority as regards the necessity  of  detention for  a specified purpose, the condition of exercise  of  the power  of detention would be fulfilled.  This would  clearly show  that  the power of detention is not  a  quasi-judicial power.  It was, however, sought to be contended on behalf of the petitioner,     relying on the observation of this Court inBhut Nath Mata v. The    State  of West Bengal(1)  that the exercise ofthe power of detention   "implies      a quasi-judicial approach", that the power mustbe regarded as a quasi-judicial power.  But we do not think  it would  be  right  to read this  observation  in  the  manner contended on behalf of the petitioner.  This observation was not meant to convey that the power of detention is a  quasi- judicial  power.   The  only  thing  which  it  intended  to emphasise was that the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention. But  that does not mean that the subjective satisfaction  of the  detaining  authority  is wholly  immune  from  judicial reviewability.  The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of  the  subjective  satisfaction can yet  be  subjected  to judicial scrutiny.  The basic postulate on which the  courts have  proceeded is that the subjective satisfaction being  a condition precedent for the exercise of the power  conferred on  the executive, the court can always examine whether  the requisite satisfaction is arrived at by the authority: if it is not, the condition precedent to the exercise of the power would  not be fulfilled and the exercise of the power  would be  bad.   There  are several grounds  evolved  by  judicial decisions  for  saying that no  subjective  satisfaction  is arrived  at by the authority as required under the  statute. The  simplest case is whether the authority has not  applied its  mind  at all; in such a case the  authority  could  not possibly  be  satisfied as regards the fact  in  respect  of which  it is required to be satisfied.  Emperor v.  Shibnath

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22  

Bannerji  (2) is a case in point.  Then there may be a  case where the power is exercised dishonestly or for an  improper purpose  : such a case would also negative the existence  of satisfaction on the part of the authority.  The existence of ’improper  purpose’, that is, a purpose not contemplated  by the statute, has been recognised as an independent ground of control   in  several  decided  cases.   The   satisfaction, moreover,  must be a satisfaction of the  authority  itself, and  therefore, if, in exercising the power,  the  authority has  acted  under the dictation of  another  body  as  the Commissioner  of  Police did in Commissioner  of  Police  v. Gordhandas Bhanji(3) and the Officer (1)  A.I.R. 1974 S.C. 806. (2) A.I.R. 1943 F.C. 92. (3) [1952] S.C.R. 135. 844 of the Ministry of Labour and National Service did in  Simas Motor  Units  Ltd.  v.  Minister  of  Labour  and   National Service(1)  the  exercise of the power would be bad  and  so also  would the exercise of the power be vitiated where  the authority has disabled itself from applying its mind to  the facts  of  each  individual case by  self-created  rules  of policy  or  in any other manner.  The satisfaction  said  to have  been  arrived at by the authority would  also  be  bad where it is based on the application of a wrong test or  the misconstruction  of  a  statute.  Where  this  happens,  the satisfaction of the authority would not be in respect of the thing  in  regard to which it is required to  be  satisfied. Then  again the satisfaction must be grounded  on  materials which  are  of rationally probative value’.   Alachindar  v. King. (2 The grounds on which the satisfaction is based must be,  such as a rational human being can  consider  connected with the fact in respect of which the satisfaction is to  be reached.  They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and  purpose of the statute.  If the authority has taken into account, it may  even  be with the best of intention,  as  a  relevant factor  something  which  it could not  properly  take  into account in deciding whether or not to exercise the power  or the  manner or extent to which it should be  exercised,  the exercise  of the power would be bad.  Pratap Singh v.  State of Punjab (3 ). If there are to be found in the statute  ex- pressly or by implication matters which the authority  ought to  have  regard  to, then, in  exercising  the  power,  the authority must have regard to those matters.  The  authority must call its attention to the matters which it is bound  to consider. There  is  also  one other ground on  which  the  subjective satisfaction  reached  by an authority can  successfully  be challenged   and  it  is  of  late   becoming   increasingly important.  The genesis of this ground is to be found in the famous words of lord Halsbury in Sharp v. Wakefield(4               ".....   when it is said that something is  to               be   done   within  the  discretion   of   the               authorities-that  something  is  to  be   done               according to the rules of reason and  justice,               not according to private, opinion-according to               law  and  not  humour.   It  is  to  be,   not               arbitrary,  vague,  fanciful,  but  legal  and               regular." So  far  as  this ground is concerned’, the  courts  in  the United States have gone much further than courts in  England or  in this country.  The United States courts are  prepared to review administrative findings which are not supported by substantial evidence, that is by "such relevant findings  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22  

a   reasonable  man  may  accept  adequate  to   support   a conclusion".  But in England and in India, the courts  stop- short  at merely inquiring whether the grounds on which  the authority  has reached its subjective satisfaction are  such that  any  reasonable person could possibly arrive  at  such satisfaction.  "If", to use the words of Lord Greene, M. R., in Associated Provincial Picture (1)  [1964] All.  E.R. 201. (2)  A.I.R. 1950 F.C. 129.. (3)  A.I.R. 1964 S.C. 72. (4) [1891] A.C. 173, at 179. 845 Houses  Ltd. v. Wednesbury Corporation(1)-words  which  have found approval of the House of Lords in Smith v. East  Eilor Rural  District Council(2 ) and Fswcoit Properties  Ltd.  v. Buckingham  County Council(3)-the authority has "come. to  a conclusion  on so unreasonable that no reasonable  authority could ever have come to it, then the courts can  interfere". In  such a case, a legitimate inference may fairly be  drawn either  that the authority "did not honestly form that  view or that in forming it, he could not have applied his mind to the  relevant facts".  Ross v. Papadopollos. (4 ) The  power of  the  court  to interfere in such a case  is  not  as  an appellate  authority  to override a decision  taken  by  the statutory  authority, but as a judicial authority. which  is concerned, and concerned only to see. whether the  statutory authority has contravened the law by acting in excess of the power  which the legislature has confided in it.  It  is  on this  ground that the order of preventive detention made  by the  District  Magistrate  in Debu Mahto v.  State  of  West Bengal(5)  was  struck down by this Court.  There,  in  that case,  one single solitary act of wagon breaking was  relied upon   by   the  District  Magistrate   for   reaching   the satisfaction that with a view to preventing the detenu  from acting  in  any  manner prejudicial to  the  maintenance  of supplies and services to the community, it was necessary  to detain  him.   This  Court pointed out  subject  to  certain reservations that it was difficult to see how "one  solitary isolated  act of wagon breaking committed by the  petitioner could  possibly persuade any reasonable person to reach  the satisfaction  that  unless the petitioner  was  detained  he would  in all probability indulge in further acts  of  wagon breaking".   This Court did not go into the adequacy  of  or sufficiency  of the grounds on which the order of  detention was based, but merely examined whether on the grounds  given to the. detenu, any reasonable authority could possibly come to the conclusion to which the District Magistrate did.   It is  true  that  this ground in a sense  tends  to  blur  the dividing line between subjective satisfaction and  objective determination  but  the  dividing line is  very  much  there howsoever faint or delicate it may be, and courts have never failed to recognise it. This discussion is sufficient to show that there is  nothing like  unfettered  discretion immune  from  judicial  review- ability.  The truth is that in a Government under law, there can  be no such thing as unreviewable discretion.  "Law  has reached its finest moments", said Justice Douglas, "when  it has  freed man from the unlimited discretion of some  ruler, some  official,  some bureaucrat-Absolute  discretion  is  a ruthless master.  It is more destructive of freedom than any of man’s other inventions".  United States v. Wunderlick.(6) And this is much more so in a case Where personal liberty is involved.   That  is  why the Courts  have  devised  various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22  

exercised arbitrarily or without any justifiable grounds. (1) (1948) 1 K. B. 223.  (2) 1956 A.C. 736. (3) [1961] A.C. 636.     (4) (1958) 1 W.L.R. 546. (5) A.T.R. 1974 S.C. 816.     (6) 342 U. S. 98. 846 The  next  question which then arises for  consideration  is whether  section 3 of the Act in so far as it  empowers  the detaining  authority to exercise, the power of detention  on the   basis   of   its   subjective   satisfaction   imposes unreasonable  restrictions on the fundamental rights of  the petitioner  under clauses (a) to (d) and (g) of article  19, and is, therefore, ultra vires and void.  The view taken  by the  majority  in A. K. Gopalan v. State of Madras  (1)  was that  article 22 is a selfcontained Code, and  therefore,  a law  of preventive detention does not have to  satisfy-  the requirements  of articles 14, 19 and 21.  This view came  to be considered by this Court in three subsequent decisions to all  of  which one of us (P.  Jaganmohan Reddy,  J.)  was  a party.   In Rustom Cavasjee Cooper v. Union of India,(2  )it was  held by a majority of judges, only Ray, J., as he  then was, dissenting, that though a. law of preventive  detention may pass the test of article 22, it has yet. to satisfy  the requirements of other fundamental rights such as article 19. The ratio of the majority judgment in R. C. Cooper’s case(2) was, explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges in Sambhu Nath Sarkar  v. State of West Bengal(3) The learned Judge said :               "In Gopalan’s case (supra) the majority  court               had held that Article 22 was a  self-contained               Code   and  therefore  a  law  of   preventive               detention   did  not  have  to  satisfy-   the               requirement  of Articles 19, 14 and  21.   The               view  of Fazl Ali, J., on the other hand,  was               that preventive detention was a direct  breach               of the right under Article 19 (a) (d) and that               a  law providing for preventive detention  had               to  be subject to such judicial review  as  is               obtainable  under clause (5) of that  Article.               In R. C. Cooper v. Union of India (supra)  the               aforesaid premise of the majority in Gapalan’s               case (supra) was disapproved and therefore  it               no  longer holds the field.   Though  Cooper’s               case (supra) dealt with the  interrelationship               of  Article  19  and  Article  31,  the  basic               approach to construing the fundamental  rights               guaranteed in the different provisions of  the               Constitution  adopted  in this case  held  the               major  premise  of the majority  in  Gopalan’s               case (supra) to be incorrect." Subsequently  in  Haradhan Saha v. State of  West  Bengal  & Ors.(4)  a  Bench  of five judges, after  referring  to  the decisions in A. K. Gopalan’s case (supra) and R. C. Cooper’s ease  (supra  and pointing out the context in  which  R.  C. Cooper’s  case supra) held that the acquisition of  property directly  impinged  the  right  of  the  bank  to  carry  on business,  other than banking, guaranteed under  article  19 and   article  31(2)  was  not  a  protection  against   the infringement  of  that guaranteed right,  proceeded  on  the assumption  that the Act which is for  preventive  detention has  to  be  tested in regard  to  its  reasonableness  with reference to article 19.  That decision accepted and applied the (1)  [1950] S.C.R. 88. (2) [1970] 3 S.C.R. 530., (3)  [1973] 1 S.C.C. 856.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22  

(4)  [1975] 1 S.C.R. 778, 847 ratio in Shambhu Nath Sarkar’s case (supra) as well as R. C. Cooper’s  case  (supra) to both of which Ray,  C.J.,  was  a party.   This  question, thus, stands concluded and a  final seal  is  put  on this controversy and  in’  view  of  these decisions,  it is not open to any one now to contend that  a law of preventive detention, which falls within article  22, does  not  have  to meet the requirement of  article  14  or article  19.  Indeed, in Haradhan Saha’s case (supra),  this Court  proceeded to consider the challenge of article 19  to the  validity  of  the Act and held that  the  Act  did  not violate  any  of the constitutional guarantees  embodied  in article  19 and was valid.  Since this Court  negatived  the challenge  to  the  validity of the Act  on  the  ground  of infraction  of article 19 and upheld it as a valid piece  of legislation in Haradhan Saha’s case (supra), the  petitioner cannot be permitted to reagitate the same question merely on the   ground  that  some  argument  directed   against   the constitutional validity of the Act under article 19 "Was not advanced  or  considered  by the Court in  that  case.   The decision in Haradhan Saha’s case (supra) must be regarded as having  finally  laid  at  rest  any  question  as  to   the constitutional  validity  of  the  Act  on  the  ground   of challenge under article 19. That disposes of grounds (a) and (b) and we must now proceed to consider ground (c).  Now before we consider ground  (c), we  must deal with an objection raised by counsel on  behalf of  the  State, which, if well founded, would cut  short  an inquiry  into this ground.  Counsel on behalf of  the  State submitted  that  though  the  District  Magistrate  in   his affidavit in reply admitted that besides the three incidents referred to-in the grounds of detention, other material  was also  placed before him, he stated on oath that he  did  not take such other material into account in making the order of detention  and  this statement on oath made by him  must  be accepted  as  correct  and that should, be  an  end  to  all further  inquiry  by  the Court.   He  strenuosly  protested against  the  Court  requiring  the  State  to  produce  the historysheet  of  the petitioner containing  other  material which was before the District Magistrate.  His argument  was that it was not competent to the Court to probe further into the matter for the purpose of examining what was the  nature of  the  other material before the District  Magistrate  and whether  he was influenced by such other material in  making the  order  of  detention.  This claim made  by  counsel  on behalf  of  the State is indeed a hold claim  calculated  to shut out judicial instruction merely on the strength of ipse dixit  of  the detaining authority.  We  cannot  countenance such  a  claim.   Indeed, in Daktar Mudi v.  State  of  West Bengal(1) a similar claim was made on behalf of the State of West Bengal and it was negatived by this very Bench speaking through one    of  us  (P.   Jaganmohan Reddy,  J.)  in  the following words               "It  was contended. by Mr. Mukerjee on  behalf               of the State Government that this Court  ought               not look into the record for satisfying itself               as  to whether the District  Magistrate  could               have arrived at the conclusion when he says he               had  arrived at that satisfaction only on  the               grounds mentioned in the detention order.   We               do not think that this               (1)   A.I.R. 1974 S.C. 2086.               848               would  be  a  correct  approach.   Where   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22  

             liberty  of a subject is involved and  he  has               been  detained without trial, and a  law  made               pursuant  to  Art. 22 which  provides  certain               safeguards.  it is the duty of this  Court  as               the   custodian  and  sentinel  on  the   ever               vigilant guard of the freedom of an individual               to  scrutinize with due care and anxiety  that               this  precious  right which he has  under  the               Constitution  is  not in any  way  taken  away               capriciously, arbitrarily or without any legal               justification.               This  Court  has held that where  grounds  are               furnished to the detenu those grounds must not               be vague and must be such as to enable him  to               make  a  proper and  effective  representation               against his detention.  This Court has further               held  that  where there are  several  grounds,               even  if  one  ground is  vague,  then  it  is               difficult  to say whether the ground which  is               vague and in respect of which the detenu could               not  make an effective representation did  not               influence the mind of the detaining  authority               in  arriving  at his  subjective  satisfaction               that  the detenu would in future be likely  to               act in a manner prejudicial to the maintenance               of  supplies  and services  essential  to  the               community.   If  the detention order  is  held               invalid  on this account, it would be  equally               so  in a case where there are other  materials               on  which the detaining authority  could  have               been influenced in arriving at his  subjective               Satisfaction but which he has not mentioned in               the  grounds  of detention,  nor  communicated               them  to  the detenu.  In  such  circumstances               whether the other materials on record had  any               effect on the mind of the detaining  authority               cannot  be accepted solely on  his  statement,               because  to  admit that he alone  has  such  a               right-would  be to accept that the  mere  ipse               dixit  of  the detaining  authority  would  be               sufficient  and cannot be looked into.   There               is  a possibility, that certain  materials  on               record  would disclose that the activities  of               the  detenu are of a serious nature, having  a               nexus with the object of the Act, namely,  the               prevention  of prejudicial acts affecting  the               maintenance    of   supplies   and    services               essential.  to  the  community,  and   having,               proximity  with the time when  the  subjective               satisfaction   forming   the  basis   of   the               detention order had been arrived at.  If               these elements exist, then the Court would  be               justified in taking the view- that these  must               have influenced the subjective satisfaction of               the  detaining authority and the  omission  to               indicate  those materials to the detenu  would               prejudicestrict Magistrate must  have  been  influenced  by  it  and  we  should   not, therefore, accept his assertion at its face value ? 850 Now, the proposition can hardly be disputed that if there is before, the District Magistrate material against the  detenu which is of a highly damaging character and having nexus and relevancy with the, object of detention, and proximity  with the time when the subjective satisfaction forming the  basis

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22  

of  the  detention  order  was  arrived  at,  it  would   be legitimate  for the Court to infer that such  material  must have  influenced the District Magistrate in arriving at  his subjective  satisfaction and in such a case the Court  would refuse  to  accept  the  bald  statement  of  the   District Magistrate  that he did not take such material into  account and  excluded it from consideration.  It is elementary  that the  human mind does not function in compartments.  When  it receives  impressions  from different- sources,  it  is  the totality.  of the impressions which goes into the making  of the  decision and it is not possible to analyse and  dissect the  impressions and predicate which impressions  went  into the making of the decision and which did not.  Nor is it  an easy exercise to erase the impression created by  particular circumstances  so as to exclude the influence of  such  imp- ression  in  the decision making process.  Therefore,  in  a case where the material before the District Magistrate is of a  character  which would in all  reasonable-probability  be likely  to  influence the decision of any  reasonable  human being, the Court would be most reluctant to accept the  ipse dixit  of  the  District  Magistrate  that  he  was  not  so influenced  and  a  fortiorari,  if  such  material  is  not disclosed  to  the detenu, the order of detention  would  be vitiated,  both on the ground that all the basic  facts  and materials  which influenced the subjective  satisfaction  of the District Magistrate were not communicated to the  detenu as  also  on  the  ground that  the  detenu  was  denied  an opportunity  of making an effective  representation  against the order of detention. But  in  the present case we do not find that there  is  any such infirmity vitiating the order of detention against  the petitioner.   The  material  in  the  history-sheet  of  the petitioner  which was not disclosed to him referred  to  two circumstances.   One was that the petitioner had  picked  up the  habit  of  committing thefts of  copper  wires  and  he committed  thefts  of copper wires and the  other  was  that there were several thefts of transformers from villages like Betrabad,  Uttar Lakshipur, Sultanganj and  Nandlalpur.   So far as the first circumstance is concerned, it was merely  a generalisation  based on the three incidents referred to  in the  grounds of detention and it did not refer to any  other incidents of theft of copper wires besides the three  enume- rated  in the grounds of detention.  It did not,  therefore. constitute  any  additional  material  prejudicial  to   the petitioner  which  could  be  said to  have  gone  into  the formation  of  the subjective satisfaction of  the  District Magistrate  and the non-disclosure of it to  the  petitioner did  not  have  the  effect of  invalidating  the  order  of detention.  The second circumstance was not directed against any  activity of the petitioner at all.  It merely  provided the  background  of the social malady which must  have  been exercising  the  mind  of the  authority  charged  with  the administration of law and order when it said that there were several   thefts  of  transformers  from   Betrabad,   Uttar Lakshipur, Sultanganj and Nandlalpur villages and it was  in the context of this back-round that                             851 the three incidents referred to in the grounds of  detention were  considered  by  the District  Magistrate.   What  were alleged against the petitioner were only the three incidents set  out  in  the  grounds  of  detention.   The  thefts  of transformers referred to in the second circumstance were not attributed  to  the petitioner.  They  merely  provided  the backdrop of the prevailing situation in the area and did not constitute  material  prejudicial to  the  petitioner  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22  

ought to have been disclosed to him.  There was,  therefore, no  material before the District Magistrate, other than  the three  incidents set out in the grounds of detention,  which went  into the formation of the subjective  satisfaction  of the District Magistrate and which ought, therefore, to  have been  communicated  to  the  petitioner. Ground  (c)  must accordingly be rejected. That  takes  us  to ground (d) which impugns  the  order  of approval  passed  by the State Government under  section  3, subsection. (3) of the Act.  This requirement of approval of the  State Government imposed by section 3, sub-section  (3) is  intended to act as a check on the exercise of the  power of  detention  by the District Magistrate under  section  3, sub-section (2) of the Act.  Therefore, a fortiorari all the basic  facts and materials which weighed with  the  District Magistrate  in reaching his subjective satisfaction must  be placed  before  the  State Government, so.  that  the  State Government can, as a, supervisory authority, decide  whether the  power  of  detention has been  properly  or  improperly exercised  by the District Magistrate.  But in, addition  to such  basic  facts  and  materials,  which  constitute  the’ grounds  of  detention,  the  District  Magistrate  is  also required  to send to the State Government under  section  3, sub-section  (3) "such other particulars as in  his  opinion have  a  bearing on the, matter".  Obviously,  these  "other particulars"  would  be different from the basic  facts  and materials  which  constitute the grounds  of  detention  and would  not be material which has gone into the formation  of the subjective satisfaction of the District Magistrate.   If these are any materials of such a nature as could reasonably be  said  to  have influenced  the  District  Magistrate  in arriving at-his subjective satisfaction, they would be  part of the grounds of detention and not "other particulars".  It is  not possible to categorise precisely what  these  "Other particulars"  can  be,,  but they  may  include  particulars relating to the background of the circumstances in which the District  Magistrate  reached  his  subjective  satisfaction leading  to the making of the order of detention  or  parti- culars  found  to be administratively necessary for  him  to communicate  to  the  State Government, so  that  the  State           him   in   making   an   effective               representation.  If so, the detention order on               that account would be illegal." Where  the  liberty  of the subject is involved  it  is  the bounden  duty  of the Court to satisfy itself that  all  the safeguards  provided  by  the  law  have  been  scrupulously observed  and  the subject is not deprived of  his  personal liberty otherwise than in accordance with law.  Section 849 8(1)  of the Act, which merely re-enacts the  constitutional requirements of article 22(5), insists that all basic  facts and particulars which influenced the detaining authority  in arriving at the requisite satisfaction leading to the making of  the  order  of detention must  be  communicated  to  the detenu, so that the detenu may have an opportunity of making an effective representation against the order of  detention. It is, therefore , not only the right of the Court, but also its  duty as well, to examine what are the basic  facts  and materials  which  actually  and in  fact  weighed  with  the detaining authority in reaching the requisite  satisfaction. The  judicial  scrutiny  cannot  be  foreclosed  by  a  mere statement of the detaining authority that it has taken  into account  only certain basic facts and materials  and  though other  basic facts and materials were before it, it has  not allowed  them to influence its satisfaction.  The  Court  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22  

entitled  to examine the correctness of this  statement  and determine  for  itself whether there were  any  other  basic facts  or materials, apart from those admitted by it,  which could  have  reasonably  influenced  the  decision  of   the detaining  authority  and for that purpose,  the  Court  can certainly  require  the detaining authority to  produce  and make  available to the Court the entire record of  the  case which was before it.  That is the least the Court can do  to ensure  observance  of  the  requirements  of  law  by   the detaining authority. Now,  here, it was common ground that the  history-sheet  of the  petitioner was placed by the police authorities  before the  District  Magistrate  and  it was  read  by  him.   The history-sheet recited the following facts and particulars :               "This  does  not help him in  maintaining  the               family  and as such he became associated  with               the   criminals   viz.    Kanani   Mondal   of               Krishnapur,  Kuren Mondel of  Krishnapur.   He               picked  up  the habit of committing  theft  of               copper  wire  and  as such he  mixed  up  with               Mohini  Ranjan Das  Nillan of Uttar  Lakhipur,               P.- S. Koliachak and committed theft of copper               wires  and there were several theft of  trans-               formers  from  villages like  Betrabad,  Uttar               Lakhipur,  Suitanganj, Nandalalpur  all  under               Kuliachak P.S.". and then proceeded to narrate the three incidents set out in the  ,,rounds of detention as "some of his  misdeeds".   The material  which  was before the District  Magistrate,  thus, consisted of the facts and particulars extracted above  from the history-sheet in addition to the three incidents set out in  the  grounds  of  detention.   This  material  was   not disclosed  to the Petitioner as, according to the  statement of the District Magistrate in his affidavit-in-reply, he had not  taken  it  into  account  in  reaching  his  subjective satisfaction.   The question is whether this statement  made by the District Magistrate in his affidavit in-reply  should be accepted as correct.  Is there anything in this  material which should persuade us to say that the District Magistrate must  have  been  influenced  by  it  and  we  should   not, therefore, accept his assertion at its face value ? 850 Now, the proposition can hardly be disputed that if there is before, the District Magistrate material against the  detenu which is of a highly damaging character and having nexus and relevancy with the, object of detention, and proximity  with the time when the subjective satisfaction forming the  basis of  the  detention  order  was  arrived  at,  it  would   be legitimate  for the Court to infer that such  material  must have  influenced the District Magistrate in arriving at  his subjective  satisfaction and in such a case the Court  would refuse  to  accept  the  bald  statement  of  the   District Magistrate  that he did not take such material into  account and  excluded it from consideration.  It is elementary  that the  human mind does not function in compartments.  When  it receives  impressions  from different- sources,  it  is  the totality.  of the impressions which goes into the making  of the  decision and it is not possible to analyse and  dissect the  impressions and predicate which impressions  went  into the making of the decision and which did not.  Nor is it  an easy exercise to erase the impression created by  particular circumstances  so as to exclude the influence of  such  imp- ression  in  the decision making process.  Therefore,  in  a case where the material before the District Magistrate is of a  character  which would in all  reasonable-probability  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22  

likely  to  influence the decision of any  reasonable  human being, the Court would be most reluctant to accept the  ipse dixit  of  the  District  Magistrate  that  he  was  not  so influenced  and  a  fortiorari,  if  such  material  is  not disclosed  to  the detenu, the order of detention  would  be vitiated,  both on the ground that all the basic  facts  and materials  which influenced the subjective  satisfaction  of the District Magistrate were not communicated to the  detenu as  also  on  the  ground that  the  detenu  was  denied  an opportunity  of making an effective  representation  against the order of detention. But  in  the present case we do not find that there  is  any such infirmity vitiating the order of detention against  the petitioner.   The  material  in  the  history-sheet  of  the petitioner  which was not disclosed to him referred  to  two circumstances.   One was that the petitioner had  picked  up the  habit  of  committing thefts of  copper  wires  and  he committed  thefts  of copper wires and the  other  was  that there were several thefts of transformers from villages like Betrabad,  Uttar Lakshipur, Sultanganj and  Nandlalpur.   So far as the first circumstance is concerned, it was merely  a generalisation  based on the three incidents referred to  in the  grounds of detention and it did not refer to any  other incidents of theft of copper wires besides the three  enume- rated  in the grounds of detention.  It did not,  therefore. constitute  any  additional  material  prejudicial  to   the petitioner  which  could  be  said to  have  gone  into  the formation  of  the subjective satisfaction of  the  District Magistrate  and the non-disclosure of it to  the  petitioner did  not  have  the  effect of  invalidating  the  order  of detention.  The second circumstance was not directed against any  activity of the petitioner at all.  It merely  provided the  background  of the social malady which must  have  been exercising  the  mind  of the  authority  charged  with  the administration of law and order when it said that there were several   thefts  of  transformers  from   Betrabad,   Uttar Lakshipur, Sultanganj and Nandlalpur villages and it was  in the context of this back-round that                             851 the three incidents referred to in the grounds of  detention were  considered  by  the District  Magistrate.   What  were alleged against the petitioner were only the three incidents set  out  in  the  grounds  of  detention.   The  thefts  of transformers referred to in the second circumstance were not attributed  to  the petitioner.  They  merely  provided  the backdrop of the prevailing situation in the area and did not constitute  material  prejudicial to  the  petitioner  which ought to have been disclosed to him.  There was,  therefore, no  material before the District Magistrate, other than  the three  incidents set out in the grounds of detention,  which went  into the formation of the subjective  satisfaction  of the District Magistrate and which ought, therefore, to  have been  communicated  to  the  petitioner. Ground  (c)  must accordingly be rejected. That  takes  us  to ground (d) which impugns  the  order  of approval  passed  by the State Government under  section  3, subsection. (3) of the Act.  This requirement of approval of the  State Government imposed by section 3, sub-section  (3) is  intended to act as a check on the exercise of the  power of  detention  by the District Magistrate under  section  3, sub-section (2) of the Act.  Therefore, a fortiorari all the basic  facts and materials which weighed with  the  District Magistrate  in reaching his subjective satisfaction must  be placed  before  the  State Government, so.  that  the  State Government can, as a, supervisory authority, decide  whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22  

the  power  of  detention has been  properly  or  improperly exercised  by the District Magistrate.  But in, addition  to such  basic  facts  and  materials,  which  constitute  the’ grounds  of  detention,  the  District  Magistrate  is  also required  to send to the State Government under  section  3, sub-section  (3) "such other particulars as in  his  opinion have  a  bearing on the, matter".  Obviously,  these  "other particulars"  would  be different from the basic  facts  and materials  which  constitute the grounds  of  detention  and would  not be material which has gone into the formation  of the subjective satisfaction of the District Magistrate.   If these are any materials of such a nature as could reasonably be  said  to  have influenced  the  District  Magistrate  in arriving at-his subjective satisfaction, they would be  part of the grounds of detention and not "other particulars".  It is  not possible to categorise precisely what  these  "Other particulars"  can  be,,  but they  may  include  particulars relating to the background of the circumstances in which the District  Magistrate  reached  his  subjective  satisfaction leading  to the making of the order of detention  or  parti- culars  found  to be administratively necessary for  him  to communicate  to  the  State Government, so  that  the  State Government may be able to effectively discharge its function as  an  overseeing  superior  authority  while   determining whether  or not to grant approval to the order of  detention made  by  the  District Magistrate.   There  is  nothing  in Article 22(5) of the Constitution or in any provision of the Act which requires that these "other particulars" should  be communicated  to  the  detenu.   The  only  requirement   of communication is in regard’ to the basic facts and materials which  constitute the grounds of detention and if there  are "other particulars’ besides the, grounds of detention  which are communicated to the State Government, they need not:  be disclosed  to the detenu.  We cannot import any  requirement of dis- 852 closure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when  there is nothing in the State which evinces any ’such intention. The  petitioner,  however,  relied  very  strongly  on   the following observations of this Court in Hardhan Saha’s  case (supra) :               "The  Preventive  Detention  Act,  1950,   was               considered   by  this  Court  and  it  is   an               established  rule of this Court that a  detenu               has  a  right  to  be  apprised  of  all   the               materials  on which an order of  detention  is               passed or approved.", and contended that the detenu was, therefore, entitled to  a disclosure not only of the grounds of detention but also  of "other particulars" communicated by the District  Magistrate to  the State Government under section _3, sub-section  (3). We  do  not  think  the  observations  relied  upon  by  the petitioner  support his contention.  There can be  no  doubt that when the Court made these observations, what it had  in mind  was  the materials which constituted  the  grounds  of detention and not "other particulars", for the making of the order  of detention would be based on the former and not  on the latter and so also its approval by the State Government. What the Court meant to say in making these observations was that  all the materials on which the order of  detention  is made  or approved, that is, the materials  constituting  the grounds of detention, must be communicated to the detenu and not  that   " other particulars" communicated  to  the State Government  under  section 3, sub-section (3) which  do  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22  

form  the basis of the making of the order, of detention  or its  approval should be disclosed to the detenu.  The  Court could  not   have intended to say that in  addition  to  the grounds  of detention "other particulars" mentioned in  sec- tion  3, sub-section (3) should also be communicated to  the detenu when there is no requirement to that effect either in Article 22(5) of the Constitution or in any provision of the Act.   We may point out that in fact no such question  arose for decision in that case and the Court was not called  upon to  decide whether "other particulars" communicated  to  the State  Govemment  under  section  3,  sub-section  (3)   are required  to be disclosed to the detenu.  The  Court  merely reiterated  the well-settled proposition that the  materials constituting the grounds of detention on which the order  of detention is made by the District Magistrate and approved by the  State  Government must be communicated to  the  detenu. The  observations made by the Court did not go further  than this and cannot be read in the manner contended on behalf of the petitioner. Now  in the present case, as already pointed out above,  the material from the history-sbeet, which was not disclosed  to the  petitioner,  did  not  form  part  of  the  grounds  of detention on which the order of 853 detention  was made by the District Magistrate and  approved by  the  State  Government, but  merely  constituted  "other particulars" communicated by the District Magistrate to  the State  Government under section 3, sub-section  (3).   There was, therefore, no obligation on the District Magistrate  or the  State  Government  to disclose  this  material  to  the petitioner and the nondisclosure of which to the  petitioner did not have the effect of invalidating the approval of  the State Government to the order of detention.  Ground (d) must also, therefore, fail and be rejected. We accordingly dismiss the petition and discharge the rule. V.P.S. Petition dismissed. 854