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PETITIONER: MANU BHUSAN ROY PRADHAN

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT31/10/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. SHELAT, J.M. CHANDRACHUD, Y.V.

CITATION:  1973 AIR  295            1973 SCR  (2) 842  1973 SCC  (3) 663  CITATOR INFO :  F          1973 SC 756  (1,2)  R          1973 SC 896  (7)  F          1975 SC1877  (3)  F          1990 SC1086  (19)

ACT: Maintenance  of Internal Security Act, 1971-S. 3(2) Public Order What it amounts to.

HEADNOTE: The petitioner was arrested and detained under s.9 read with section 3(2) of the Maintenance of Internal Security Act  of 1971  on the grounds :-(1) that on 16-4-71 at about  8  p.m. the petitioner, a member of the action squad of C.P.1, (ML), along with others, committed a murderous assault on one Shri Bulo Das Gupta, who later died in hospital.  As a result  of this crime, people of the locality became highly  terrorised and  the  public peace was greatly disturbed :  and  (2)  on 19-7-71  at  7.30  p.m. the petitioner,  along  with  others forcibly  entered  a  school  and set  fire  to  the  school buildings, causing irreparable loss to the institution  with the  object of causing dislocation in the present system  of education and compelling the school authorities to close  it down and as a result or the fire the teachers and the  local people  became  panicky  and the public  peace  was  greatly disturbed. In  this Court it was submitted by the counsel appearing  as amicus  curiae  that  the petitioner had  been  arrested  on August 5, 1971 in connection with six cases.  He was  bailed out on November 10, 1971 but was rearrested soon thereafter. It  was  further submitted that ground no. l stated  in  the order  of detention, was vague and had no relevance  to  the maintenance  of  public  order  with  the  result  that  the petitioner’s detention was illegal., Allowing the petition, HELD : (1) Ground no. 1 which does not mention the names  or details  of  the others along with whom the  petitioner  was alleged  to  have committed the assault only  refers  to  an assault  on an individual which prima facie appear to  raise only a law and order problem.  It merely mentions  murderous assault by the petitioner on Bulo Das Gupta without  showing

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either the nature of the weapon used or the nature or extent of  the injuries inflicted; it also does not disclose as  to how  long  after the assault the injured  person  died;  the motive  or the purpose of the assault is also  not  stated. The difference between maintenance of law and order and  its disturbance  and  maintenance of public order  lies  in  the degree  and  extent  of disturbance and its  effect  on  the current  life  of the community.  Public order is  the  even tempo  of the life of the community taking the country as  a whole  or even a specified locality.  Disturbance of  public order  is  to be distinguished from  acts  directed  against individuals  which do not disturb the society to the  extent of  causing  a general disturbance of  public  tranquillity. Public order indeed embraces more of the community than does law and order. [846 F] It is always a question of degree of the harm and its effect upon the community.  The question to ask is : "Does it  lead to disturbance of the current life of the community so as to amount  to  a disturbance of the public order, or  does  it effect merely an, individual leaving the tranquillity of the society  undisturbed ?" This question is to be  answered  in every  case on facts.  There is no rigid formula  by  which one case can be distinguished from another. [847 H] 843 Dr.   Ram Manohar Lohia v. State of Bihar, [1966]  1  S.C.R. 709  and Arun Shah v. State of West Bengal, [1970] 3  S.C.R. 288, referred to. (ii) In  the present case, the solitary incident of  assault on one individual which may well be equated with an ordinary murder  without  any further details about the  assault  can hardly be said to disturb public peace or place public order in  jeopardy so as to bring the case within the  purview  of the Act.  It can only raise a law and order problem and  no more. [848 C-D] (iii)     Ground  no.  2, however, is quite germane  to  the problem  of maintenance of public order; but in the  absence of  ground no. 1, it is difficult to comprehend whether  the detaining authority would have felt satisfied to make  the impugned  order.  It has been laid down by this  Court  that the requirement that the grounds must not be vague has to be satisfied with respect to each of the grounds.  Where  power is vested in a statutory authority to deprive the liberty of a  subject on its subjective satisfaction with reference  to specified  matters,  if that satisfaction is  stated  to  be based  on a number of grounds or for a variety  of  reasons, all taken together, and if some out of them are found to  be non-existent or irrelevant, the very exercise of that  power would be bad.  But in applying this principle the Court must be  satisfied that the vague or non-existent  or  irrelevant grounds   or  reasons  are  such  as,  if  excluded,   might reasonably have affected the subjective satisfaction of  the appropriate authority.  In the present case there were  only two grounds and ground no.  1 which is irrelevant is not  of an  unessential  nature.  Its exclusion  from  consideration might  reasonably have affected the subjective  satisfaction of  the .authority making the impugned order  of  detention. [848 E] Keshab Talpade v. The King Emperor, [1943] F.C.R. 88, Dwarka Das  Bhatia v. State of Jammu & Kashmir,  [1956]S.C.R.  948, Dr.   Ram  Krishan Bhardwaj v. The State  of  Delhi,  [1953] S.C.R.  708,  Motilal  Jain v.  State of  Bihar,  [1968]  2 S.C.R.  505, Arun Ghosli v. State of West ,Bengal, [1970]  3 S.C.R. 288, Dr. Ram Manohar Lohia v. State of Bihar,  [1966] I  S.C.R.  709, Pushkar Mukheriee & Ors. v.  State  of  West Bengal,  [1969]  2 S.C.R. 635, Shyamlal Chakraborty  v.  The

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Commissioner  of Police, Calcutta and Anr., [1970] 1  S.C.R. 762 Ncegendra Nath Mondal v.  The  State  of  West   Bengal, A.I.R. 1972 S.C. 665, Sudhir Kumar Saha v.   Commissioner of Police,  Calcutta,  [1970] 3 S.C.R. 360, Sk.  Kader  v.  The State of West Bengal, A.I.R. 1972 S.C. 1647, Kanu Biswas  v. State  of West Bengal, A.I.R. 1972 S.C. 1656, Kishori  Mohan v.  State  of West Bengal, A.I.R, 1972 S.C. 1749  and  Amiya Kumar Karmakar v. State of West Bengal, W.P. No. 190 of 1972 decided on 31-7-1972, referred to. (iv) The  Act  encroaches on the highly cherished  right  of personal liberty    by    conferring   on   the    executive extraordinary power to detain persons,  without   trial   by coming to subjective decisions.  The detaining authority  in exercising   this  power  must  act  strictly   within   the limitations  this  Act  places  on its  power  so  that  the guarantee  of personal liberty is not imperiled beyond  what the Constitution and the law strictly provide.  The  limited right  of  redress  conferred on the detenu  under  the  law deserves   to  be  construed  with  permissible   liberality consistently  with  the  provisions  of  the  Act  and   the constitutional guarantee.  The impugned ,order in this  case seems  to  have  been made without paying due  heed  to  the provisions  of the Act and is clearly beyond  the  statutory scope. 1850 G] (v)  Further  the respondent did not reply to the  averments of the petitioner that he bad been arrested six times before and  that he was released on bail; moreover in  the  grounds supplied to the detenu were was no 844 reference  to  the petitioner being a staunch  supporter  of C.P.I. (ML) Party. The   impugned order must, therefore,  be struck down.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 252 of 1972. Under Article 32 of the Constitution of India for a writ  in the  nature of habeas corpus. S. K. Gambhir, for the petitioner (amicus curiae) Gobind Mukhoty and G. S. Chatterjee, for the, respondent. The Judgment of the Court was delivered by DUA,  J.  This petition for a writ in the nature  of  habeas corpus,  by  Manu Bhusan Roy Pradhan has been  forwarded  to this Court by the Superintendent, Dum Dum Central Jail, West Bengal. Pursuant  to the order of detention passed by  the  District Magistrate,  Jalpaiguri, on August 21, 1971 in  exercise  of the powers conferred on him by S. 9 read with sub-s. (2)  of S. 3 of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter  called the Act) with a view to preventing  the petitioner  from  acting in any nianner prejudicial  to  the maintenance of public order, he was arrested on November 11, 1971.  The grounds of detention served on the petitioner  at the time of his arrest read :               "On  16-4-71  at about 20.00 hours  you  along               with  others committed a murderous assault  on               Shri  Bulo Das Gupta on the road in  front  of               the office of Mahila Samity, Dhupguri,  Police               Station Dhupguri, District Jalpaiguri  causing               severe injuries on his person.  Shri Das Gupta               subsequently died in hospital.  As a result of               this  murder  committed by you people  of  the               locality  became  highly  terrorised  and  the               public peace was greatly disturbed.

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             On  19-7-1971 at about 19.30 hours  you  along               with  others  forcibly entered  into  Dhupguri               High School, Police Station Dhupguri, District               Jalpaiguri   and  set  fire  to   the   school               buildings  causing  irreparable  loss  to  the               institution  in particular and the  people  in               general.  you set fire to the school with  the               ulterior object of causing dislocation in  the               present system of education and to compel  the               school authorities to close down the same.  As               a result of the fire set by you, the  teachers               and the local people became panic-stricken and               the public peace was greatly disturbed." The  fact of making the detention order was reported to  the State Government on August 23, 1971.  It was approved by the said  Government on August 31, 1971; the same day this  fact was 845 reported to the Central Government.  On December 9, 1971 the case  was placed before the, Advisory Board which  gave  its opinion as per its report dated January 18, 1972 that  there was  sufficient cause for the petitioner’s  detention.   The State  Government confirmed this order on February  1,  1972 and  this  fact was reported to the  Central  Government  on February 3, 1972. The  petitioner’s representation was received by  the  State Government  on December 11, 1971.  But it was considered  on January  14, 1972.  In the counter-affidavit this delay  has been explained’ in these words :               "........ due to influx of refugees as well as               the Pakistan aggression at that time, most  of               the  officers  of the Home Department  of  the               State  Government were very busy with  serious               problems   which  threatened  and  faced   the               country  at  that time, and as such  the  said               representation   could   not   be   considered               earlier.  Moreover I further state that  delay               was  also  caused due to  abrupt  increase  in               number of the detention cases during that time               as  there was spate of anti-social  activities               by  Naxalities and other political  extremists               in the State." Before us Shri S. K. Gambhir, the learned counsel  appearing as amicus curiae submitted that the petitioner, who is  only 17  years old and is studying in the Xth class  in  Dhupguri High  School, was arrested on August 5, 1971  in  connection with six cases.  He was bailed out on November 10, 1971  but was  re-arrested soon thereafter.  It was further  submitted that  ground  no.  I stated in, the order  of  detention  is vague and has also no relevance to the maintenance of public order  with the result that the petitioner’s detention  must be  held to be bad in law for it is not possible to say  how far  this  ground influenced the decision of  the  authority concerned in making the impugned order of detention. On behalf of the State it was contended that the  petitioner was found to be absconding when the detention order was made and:  that lie was arrested on November 11, 1971.   Reliance for this submission was placed on the counter-affidavit.  It is  note-worthy  that in that counter-affidavit,  which  was affirmed  on August 24, 1972 by the Deputy  Secretary,  Home (Special)  Department ofGovernment of West Bengal,  nothing, has  been  stated  in reply to the  averments  made  in  the petitioner’s   representation  dated  December   4/6,   1971 addressed   from  Jail  to  the  Assistant  Secretary   Home (Special)  Department, Government of West  Bengal  regarding

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the  petitioner’s  arrest  in six cases  of  which  specific numbers were stated; nor is there any positive reply to  the averment that he had been bailed out on November 10, 1971. 846 Surprisingly  enough no explanation was suggested  for  this omission  even at the Bar during the course of arguments  in this Court. The  respondents’  learned counsel relied on  the  averments made  in  para  7 of the counter-affidavit. It  is  stated therein :               "The detenu-petitioner is a staunch  supporter               of  C.P.I. (ML) party and is active member  of               the  Actionsquad  of that party.   It  appears               that the petitioner along with his  associates               on  16-4-71  at about  20.00  hours  committed               murderous  assault on Shri Bulo Das  Gupta  on               the  road  in  front of Mahila  Samity  P.  S.               Dhupguri  in consequence whereof he died.   It               further  appears  that  the  detenu-petitioner               along  with others forcibly  entered  Dhupguri               High  School  on 19-7-71 and set fire  to  the               school  buildings causing substantial  damages               with ulterior object of causing dislocation in               the   present   system  of   education.    The               aforesaid activities of the petitioner  causes               panic  commotion  amongst the members  of  the               general public as well as the teachers of  the               said institutes and disturbed public order and               so the petitioner was detained under the  said               Act." It was contended that this averment brings the  petitioner’s case  within the purview of S. 3(1) and (2) of the Act  even though  in the grounds supplied to the detenu there  was  no reference  to his being a staunch supporter of  C.P.I.  (ML) party and to his being an active member of the  Action-squad of that party. In our view, ground no.  1 which does not mention the  names details  of  the others along with whom  the  petitioner  is alleged  to  have committed the assault, only refers  to  an assault  on an individual named Bulo Das Gupta on April  16, 1971 which prima facie appears to raise only a law and order problem.  in Arun Ghosh v. State of West  Bengal(1)  several instances  of  assaults  were  stated  in  the  grounds   of detention.    Hidayatullah  C.J.  speaking  for  the   Court observed in that case               "The  submission of the counsel is that  these               are  stray acts directed  against  individuals               and  are  not subversive of public  order  and               therefore  the  detention  on  the  ostensible               ground  of  preventing him from  acting  in  a               manner  prejudicial  to public order  was  not               justified.   In  support  of  this  submission               reference  is  made to three  cases,  of               this Court : Dr. Ram Manohar Lohia v. State of               Bihar(2) Pushkar Mukherjee & Ors. v. State  of               West Bengal 3 ) and Shyamal Chakraborty v. The               Commissioner  of Police Calcutta & Anr. (4)  .               In Dr. Ram               (1)   [1970] 3 S.C.R. 288.               (2)   [1966] 1 S.C.R. 709.               (3)   [1969] 2 S.C.R. 635.               (4)   [1970] 1 S.C.R. 762.               847               Manohar  Lohia’s case this Court  pointed  out               the difference between maintenance of law  and

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             order and its disturbance and the  maintenance               of  public order and its disturbance.   Public               order   was  said  to  embrace  more  of   the               community than law and order.  Public order is               the  even tempo of the life of  the  community               taking  the  country  as a  whole  or  even  a               specified  locality.   Disturbance  of  public               order   is  to  be  distinguished  from   acts               directed  against-individuals  which  do   not               disturb the society to the extent of causing a               general  disturbance of  public  tranquillity.               It is the degree of disturbance and its effect               upon  the life of the community  in  alocality               which   determines  whether  the   disturbance               amounts  only  to a breach of law  and  order.               Take  for  instance,  a  man  stabs   another.               People may be shocked and even disturbed, but,               the  life of the community keeps moving at  an               even  tempo, however much one may dislike  the               act.  Take another case of a town where  there               is communal tension.  A man stabs a member  of               the other community.  This is an act of a very               different  sort.  Its implications are  deeper               and  it  affects the even tempo  of  life  and               public order is jeopardized because the reper-               cussions of the act embrace large sections  of               the community and incite them to make  further               breaches  if the law and order and to  subvert               the  public  order.  An act by itself  is  not               determinant  of  its,  own  gravity.   In  its               quality it may not differ from another but  in               its potentiality it may be very different." The learned Chief Justice, after referring to the, lines  of demarcation  drawn  by  Ramaswami J., in W.P.  179  of  1968 between  serious and aggravated forms of breaches of  public order  which  affect the community or  endanger  the  public interest  at large and minor breaches of peace which do  not affect  the  public at large, and after noting  the  analogy drawn  by Ramaswami J., between public and  private  crimes, cautioned  against  that  analogy  being  pushed  too   far, observing,  that  a large number of  acts  directed  against persons or individuals may total up into a breach of  public order.   After  referring to Dr. Ram  Manohar  Lohia’s  case (supra) the learned Chief Justice observed :               "It is always a question of degree of the harm               and  its  effect  upon  the  community.    The               question   to  ask  is  :  Does  it  lead   to               disturbance  of  the current of  life  of  the               community so as to amount to a disturbance  of               the  public order or does it affect merely  an               individual  leaving  the tranquillity  of  the               society undisturbed ? This question has to  be               faced in every case on facts.  There               848               is  no  formula  by  which  one  case  can  be               distinguished from another." This  view  was reaffirmed in Nagendra Nath  Mondal  v.  The State ,of West Bengal(1), Sudhir Kumar Saha v.  Commissioner of  Police  Calcutta(2),  Sk.  Kader v. The  State  of  West Bengal(3),  Kanu Biswas v. State of West Bengal(4),  Kishori Mohan  v. State ,of West Bengal(5) and Amiya Kumar  Karmakar v. State of West Bengal(6). Ground  no.   1 in the case before us merely  mentions  mur- derous  assault  by the petitioner on Bulo  Das  Gupta.   It shows  neither the nature of the weapon used nor the  nature

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or extent of the injuries inflicted, nor does it disclose as to how  long after the assault the injured  person  died. The motive or the purpose of the assault is also not stated. This kind of a solitary assault on one individual, which may well  be  equated with an ordinary murder which  is  not  an uncommon  occurrence, can hardly be said to  disturb  public peace or place public order in jeopardy, so as to bring  the case  within the purview of, the Act.  It can only  raise  a law and order problem and no more; its impact on the society as  a  whole  cannot  be  considered  to  be  so  extensive, widespread and forceful as to disturb the normal life of the community thereby rudely shaking. the balanced tempo of  the orderly  life  of  the ,general  public.   This  ground  is, therefore,  not at an relevant for sustaining the  order  of detention  for  preventing the petitioner from acting  in  a manner  prejudicial  to, the maintenance  of  public  order. Ground  no. 2, however, is quite germane to the  problem  of maintenance  of  public  order.   But  the  question  arises whether in theabsence of ground no. 1 which, in our view, Ts wholly  irrelevant, the detaining authority would have  felt satisfied on the basis of the solitary ground no. 2 alone to make  the impugned order.  Can it be said that ground no.  1 is  of a comparatively unessential nature so as not to  have meaningfully  influenced  the  decision  of  the   detaining authority.   Similar  problem  has faced this Court  on  a number  of occasions and the decision has generally gone  in favour  of  the  detenu.   This Court  in  Dr.  Ram  Krishan Bhardwaj v.    The  State  of Delhi(7) laid  down  that  the requirement  that  the  grounds must not be  vague  must  be satisfied with respect   to each of the grounds.  In  Dwarka Das Bhatia v. The State of Jammu & Kashmir(8) the  principle deduced  from the earlier decisions of this Court  and  also from the decision of the Federal Court in    Keshav  Talpade v. The King Emperor(9) was stated thus: (1) A.T.R. 1972 S.C. 665.(2) [1970] 3 S.C.R. 360. (3) A.I.R. [1972] S.C. 1647.(4) A.T.R. [1972] S.C. 1656. (5)A.T.R. (1972) S.C. 1749.(6) W.P.190/1972 dated/31-7-1972. (7) [1953] S.C.R. 708.   (8) [1956] S.C.R. 948. (9)  [1968] 2 S.C.R. 505. 849 .lm15 "Where  power is vested in a statutory authority to  deprive the liberty of a subject on its subjective satisfaction with reference  to  specified matters, if  that  satisfaction  is stated  to be based on a number of grounds or for a  variety of reasons, all taken together, and if some out of them  are found to be non-existent or irrelevant the very exercise  of that power is bad.  That is so because the matter being  one for  subjective satisfaction, it must be properly  based  on all  the reasons on which it purports to be based.  If  some out  of them are found to be nonexistent or irrelevant,  the Court  cannot predicate what the subjective satisfaction  of the said authority would have been on the exclusion of those grounds or reasons.  To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the  Court for the subjective satisfaction of the statutory  authority. In  applying  these  principles however the  Court  must  be satisfied that the vague or irrelevant grounds are such  as, if  excluded, might reasonably have affected the  subjective satisfaction of the appropriate authority.  It is not merely because some ground or reason of a comparatively unessential nature  is defective that such an order based on  subjective satisfaction  can be held to be invalid.  The  Court  while’ anxious to safeguard the personal liberty of the  individual

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will  not lightly interfere with such orders.  It is in  the light of these principles that the validity of the  impugned order has to be judged." In Rameshwar Lal v. State of Bihar(1) it was observed:  "Since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory  Board the grounds must not be vague or indefinite and must  afford a  real  opportunity to make a  representation  against  the detention.  Similarly, if a vital ground is shown to be non- existing  so that it could not have and ought not  to  have, played  a part in the material for consideration, the  court may attach some importance to this fact." In Motilal Jain v. State of Bihar(2), a decision by a  Bench of  six Judges, after reviewing the earlier decisions,  this Court expressed its view thus : (1)  [1943] F.C.R. 88. (2) [1968] 3 S.C.R. 587. 850               "The  defects  noticed  in  the  two   grounds               mentioned above are sufficient to vitiate  the               order   of   detention   impugned   in   these               proceedings  as it not possible to- hold  that               those  grounds could not have  influenced  the               decision    of   the   detaining    authority.               Individual  liberty is a cherished right,  one               of   the  most  valuable  fundamental   rights               guaranteed by our Constitution to the citizens               of  this country.  If that right  is  invaded,               excepting strictly in accordance with law, the               aggrieved  party is entitled to appeal to  the               judicial  power of the State for  relief.   We               are not unaware of the fact that the  interest               of the society is no less important than  that               of the individual.  Our Constitution has  made               provision  for safeguarding the  interests  of               the  society.   Its provisions  harmonise  the               liberty   of   the  individual   with   social               interest.  The authorities have to act  solely               on the basis of those provisions.  They cannot               deal  with the liberty of the individual in  a               casual manner, as has been done in this  case.               Such  an  approach does not advance  the  true               social  interest.  Continued  indifference  to               individual  liberty  is  bound  to  erode  the               structure of our democratic society." In  the case before us there are only two grounds  on  which the detention order is based.  One of them which relates  to an occurrence of April, 1971 has no relevance or relation to the  disturbance of public order.  The other ground  relates to  an  occurrence of July, 1971.  This ground is  no  doubt germane to the object of maintenance of public order; but we are satisfied that the first ground is not of an unessential nature  and  in our view its  exclusion  from  consideration might  reasonably have affected the subjective  satisfaction of  the  authority making the impugned order  of  detention. This  was  the test laid down in Bhatia’s case  (supra)  and approved  in  Motilal Jain (supra).  As has often  been  em- phasised  by  this Court the Act encroaches  on  the  highly cherished  right  of personal liberty by conferring  on  the executive  extraordinary  power to  detain  persons  without trial  by  coming to subjective  decisions.   The  detaining authority in exercising this power must act strictly  within the  limitations  this Act places on its power so  that  the guarantee  of personal liberty is not imperiled beyond  what

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the Constitution and the law strictly provide.  The limited 851 fight  of  redress  conferred on the detenu  under  the  law deserves  to  be  construed’  with  permissible   liberality consistently  with  the  provisions  of  the  Act  and   the constitutional  guarantee.  We find that the impugned  order in  this case has been made without paying due heed  to  the provisions  of the Act and the order is clearly  beyond  the statutory  scope.   The impugned order must,  therefore,  be struck down as outside the Act. The petitioner was released by us by means of a short  order on  October  4,  1972.  We have now stated  our  reasons  in support of that order. S.C.                             Petition allowed. 852