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PETITIONER: KRISHNA LAL DUTTA

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT21/02/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  955            1974 SCR  (3) 449  1974 SCC  (3) 783

ACT: Preventive   detention--Matters  taken  into   account   for ordering detention--Duty to communicate to detenu to  enable him to explain.

HEADNOTE: The order detaining the petitioner under the Maintenance  of Internal Security Act, 1971, mentioned the sole ground  that on  the  night of October 11, 1972, the petitioner  and  his associates committed theft of some tea chests from a running goods  train  and that they fled, when  challenged,  leaving behind  three chests of a tea at the P. O. In  his  petition issue  of a writ of habeas corpus the  petitioner  contended that it was impossible to commit theft from a running  train as described.  In the counter affidavit, it was stated  that what  was meant by running train was a train which had  come to  a  stop due to some traffic restriction.   It  was  also stated  that  the petitioner Was a notorious  wagon  breaker operating near the Railway Station, but this allegation  was never  communicated  to  the petitioner.   Even  the  record relating  to  the  detention  nowhere  referred  1  to   the petitioner as a ’notorious wagon breaker’. In the record the incident of 11th October was mentioned, a description of the modus  operandi of a gang of thieves operating on  passenger trains  was  given,  and  it was  also  mentioned  that  the activities of that gang commenced after the incident of 11th October.   There  was however no indication as  to  how  any information whatsoever came to the District Magistrate,  who passed  the order of detention, from any  source  whatsoever that the Petitioner was a member of that gang. Allowing the petition, HELD  :  The  Court is not concerned with  the  adequacy  or sufficiency of a ground of detention.  In the present  case, there  is clear nexus between the sole ground for  detention given  and  the maintenance of the  essential  supplies  and services.  but  the ground is vague in so far as it  is  not apparent  what is meant by the words "the P.O." The  grounds given  could  not  enable  the  petitioner  to   effectively exercise his constitutional right of making a representation against  his detention. )Further. matters which  were  never communicated to the petitioner have been taken into  account while  ordering the detention.  Presuming that whatever  was

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in the record operated against the petitioner he should have been  given  fuller information of the  allegations  against him.   No explanation has been given as to why that was  not done. [452 D-G] [Those  exercising  drastic powers of  preventive  detention should  at least take care to ascertain whether a  detention is being ordered In a manner and on materials which disclose that  it is really necessary to order a detention with  view to  preventing  the person to be detained from acting  in  a manner  prejudicial  to  the objects  for  which  preventive detention may be lawfully ordered. [452 C-D] Prabhu  Dayal Deorah v. District Magistrate, Kamrup &  Ors., A.T.R. 1974 S.C. 183, followed.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition NO. 845 of 1973. Under Art 32 of the Constitution for the issue of a writ  in the nature of habeas corpus. S.   N. Jain, for the petitioner. P. K. Chakravartyand G. S. Chatterjee, for the respondent.. 450 The Judgment of the Court was delivered by BEG,  J. The petitioner, a citizen of India,  has      filed this      habeas corpus  petition  challenging     order  of his   detention,   dated 24-11-1172 passed under  Section  5 clause  (a) of Maintenance of Internal Security.  Act,  1971 (hereinafter referred to is ’the Act’) It  appear  that  the petitioner was  actually  arrested  on 20-11-1972 and that the  detention    order    was    passed subsequently  on  24-11-1972, and, on that  very  date,  the petitioner  was  served with the  document  containing  sole ground of detention given is follows                "1. That on 11-10-72 at about 01.55 hrs., you               along  with your associates, being armed  with               bombs and other weapons, victimised wagon  No.               NR  17393  Ex Bro to KPD attached  to  running               goods train in EC 249 DN near the Booster Sub-               station of Dum Dum Jn.  R/S when  the  train               slowed   down  for  traffic  restriction   and               committed  theft  in respect  of  tea  chests.               Train guard RPF party challenged you and  your               associates  when you hurled bombs towards  the               RPF party.  RPF RK Sitaram Rai fired one round               in  self defence when you and your  associates               fled  away leaving behind three chests of  tea               at the P.O.               Your action caused disruption of train service               for a considerable time and affected  supplies               and services,               You have thus acted in a manner prejudicial to               the  maintenance  of  supplies  and   services               essential to the community".               After giving what is marked as ground number 1               only, implying thereby that there was no other               ground of detention, the document proceeds:               "You  are hereby informed that you may make  a               representation to the State Government against               the    detention   order   and    that    such               representation  shall  be  addressed  to   the               Assistant Secretary Home (Special) Department,               Government   of  West  Bengal  and   forwarded               through  the  Superintendent of  the  Jail  in               which  you  have  been detained  as  early  as

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             possible.  Under Section 10 of the Maintenance               of  Internal  Security Act, 1971  (Act  26  of               1971.)  your  case  shall  be  placed   before               Advisory  Board  within thirty days  from  the               date of your detention under the order.               You are also informed that under Section 11 of               the Maintenance of Internal Security Act, 1971               (Act 26 of 1971)     the Advisory Board. shall               if you desire to be so heard,  hear   you   in               person, and, ’if you desire to be so heard  by               the   Advisory Board, you shall intimate  such               desire  in  your representation to  the  State               Government".  An  annexure to the affidavit filed by a Special  Secretary in  the, Home Department of the Government of  West  Bengal, who was 451 the   District  Magistrate  concerned  when   the   impugned detention’ order: was made against the petitioner,is a  copy of the    petitioner’s   representation  addressed  to   the Government In the representation as Well ’as in the petition before:  us,  the petitioner asserts  that  the  allegations against  him  ’are absolutely untrue In his  application  to this  Court  he  states  that  it  is  "palpably  false  and impracticable"  to  allege  that the  petitioner  with  some associate committed theft of some tea chests from a running, wagon and that he fled When challenged, leaving behind three chests  of  tea  "at the P.O.". Be that as  it  may,  it  is difficult  to understand what is meant by "the P.O." In  his representation   to  the  Government,  the  petitioner   had submitted that there was no evidence that he was  identified by anybody as a participator in the incident.               In   the  affidavit  in  opposition   to   the               petition,  the  official  concerned,  who  had               passed the detention order, stated :               "The  running  goods train as  stated  therein               actually means a goods train which bad come to               ’a  stop  due to traffic restriction  and  not               actually  a  running  one  as  sought  to   be               suggested by the petitioner".               The affidavit also contained the statement               "It   appears  from  the  records   that   the               petitioner   is  a  notorious  wagon   breaker               operating   near  Dum  Dum  Junction   Railway               Station". Learned  Counsel appearing for the State of West Bengal  was asked  to explain how the petitioner could possibly make  an effective  representation  against his  detention  when  the District Magistrate had a stationary train in mind which  he actually described as "a running goods train" in the grounds of  detention, when it was not indicated what was  meant  by "the P.O.", and when the allegation that the petitioner  was a  "notorious wagon breaker operating near Dum Dum  Junction Railway Station" was never communicated to him although  it, apparently, formed one of the grounds on which the detention was  ordered.   In reply, learned Counsel for the  State  of West  Bengal stated that he had the whole record before  him on which the detention was ordered and be placed that record before us. We were unable to find any mention in this record that the petitioner was "a notorious wagon breaker".  On the other  ’hand,  we found  a description there of  the   modus operandi of a gang of thieves operating on passenger  trains which  used  to deprive the passengers of their  trunks  and other  goods while one, of the members of the gang sat  near the  passengers with a newspaper spread out in front of  him

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which would, read out loudly to distract their attention and used  also  to obstruct their view.  It is  mentioned  there that  the  activities  of  this  gang  commenced  after  the incident  of 11-10-1972. it is also mentioned there  that  a number of incriminating articles were recovered from members of  this gang of thieves including the petitioner  and  that prosecutions were pending against them. 452 It  is true that the incident which occured at about 2  a.m. co  11-10-1972,  forming the ground of  detention,  is  also mentioned  in the record but, there is no indication  as  to how   any  information  whatsoever  came  to  the   District Magistrate  from any source whatsoever that the  petitioner- was  a member of the gang which was concerned with  such  an incident,Presumably,  this was the whole record  as  learned Counsel  for  the  State  informed  us.  ;  This  makes  the petitioner’s  assertion, that be, was not only, arrested  on 20-10-1972  for  reasons  not disclosed to  him,  but,  when sufficient   evidence could not be found against him by  the local  officials,  a, detention order was made on  a  ground covered by the Act. which  could be conveniently trotted out at-the  time  seem plausible.  Deprivation  of  a  citizen’s personal  liberty  is  a  serious  matter  Those  exercising drastic powers of preventive detention, which are  entrusted to them for protecting valuable social and public interests, should  at least take care to ascertain whether a  detention is  being  ordered  in  a manner  and  on  materials  ’Which disclose that it is really " necessary" to order a detention with  a  view to preventing the person to be  detained  from acting  in any manner prejudicial to the objects  for  which preventive  detention  may  be lawfully  ordered.   If  they misuse  these powers, by acting unreasonably,  capriciously, arbitrarily,  or in a malafide manner, public confidence  in them  is shaken.  We are unable to say whether the  District Magistrate acted unreasonably in making the detention order. But, presuming that, whatever was in the record operated, as learned   Counsel  for  the  State  asserted,  against   the petitioner, he should have been given fuller information  of allegations  against him.  It is not explained why this  was not done.  We are not concerned here with the adequacy or  sufficiency of a ground of detention.  There, is clearly a nexus between tile sole ground for detention given and the maintenance  of essential supplies ;and services.  But, as indicated  above, we have found that matters which were never communicated  to the  petitioner also appear to have been taken into  account while  ordering  the detention of the  petitioner.   Further more the sole ground of detention is vague in ,so far as  it is  not  apparent  what is meant by the  words  ’-the  P.O." Recently,  it was held by this Court.in Probhu Dayal  Deorah Vs. District Magistrate, Kamrup & Ors.,(1) that vagueness of a single  ground  could  vitiate  a  detention  order.   The groundsgiven  could  not,  in  our.  opinion  enable  the petitioner to effectively exercise his constitutional  right of making a representation against his detention. The  result is that we allow this petition and declare:  the detention  of petitioner, to be illegal. We order  that  the petitioner be released forthwith. V.P.S. Petition allowed. (1) A.T.R. 1974 S.C. 183. 453