http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: MOHD.  SUBRATI ALIAS MOHD.  KARIM

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT14/11/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  207            1973 SCR  (2) 990  1973 SCC  (3) 250  CITATOR INFO :  R          1973 SC2455  (8)  F          1974 SC 806  (20)  RF         1974 SC1336  (14)  R          1986 SC 610  (6)  RF         1986 SC2177  (29)  F          1989 SC1282  (9)

ACT: Maintenance of Internal Security Act (26 of 1971), s. 3  (1) and (2) Scope of. Duty of State to place before Court all matters relevant  to the detention and of officers  swearing to affidavits to  be careful.

HEADNOTE: The petitioner committed thefts of electric copper wire  and when  challenged by the inhabitants of the area, he and  his associates  hurled  bombs  at  them.   The  thefts   totally disrupted the electric supply for several hours in the areas concerned.   The  petitioner  was detained by  an  order  of preventive  detention under s. 3(1) and (2) of the  Mainten- ance  of internal Security Act, 1971.  In a  petition  under Art.  32 he contended that he ought to have  been  proceeded against  in  a  court of law a,-id  that  the  investigating agency  did  not  put him on a regular  trial  for  want  of evidence. HELD  : (1) (a) The Act was necessitated because in view  of the prevailing situation in the country and the developments across  the border the existing laws available to deal  with the  situation  were  found  to be  inadequate  and  it  was considered  necessary  for urgent and  effective  preventive action,  in  the  interest of  national  security,  to  have powers-  of  preventive detention to deal  effectively  with threats to the defence and the security of India.  Section 3 of  the Act carries out the statutory purpose of  preventive detention and has nothing to do with trial and punishment of person-, for commission of offences.  If, therefore, for any reason,  it is not possible to successfully try  and  secure the  conviction a,-Id imprisonment of the persons  concerned for  their past activities, which amount to an offence,  but which  are  also  relevant  for  the  satisfaction  of   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

detaining  authority  for considering it  necessary  that  a detention  order  under  s. 3 be made  for  preventing  such persons from acting in a prejudicial manner as  contemplated by the section, then the Act would made.  The     detention order in such a case cannot be challenged on the ground that    th e detained  person  should  have been tried  for  the  offence committed  or that proceedings under Chan.  VIII Cr.  P.  C. could  have been initiated against him.  The Act creates  in the authorities concerned, a new jurisdiction to make orders of preventive detention on their subjective satisfaction  of grounds  of  suspicion  of  commission  in  future  of  acts prejudicial   to  the  community.   This   jurisdiction   is different  from  that  of judicial trial in  courts  and  of judicial orders for prevention of offences.  Therefore, even an  unsuccessful  judicial  trial or  proceeding  would  rot operate  as a bar to the detention order. or render  it  ala fide. [993 B-H, 994 A-C] Saheb Singh Dugal v. Union of India. [1966] 1 S.C.R. 313, S. C.  Bose  &  anr.  v. C. C. Bose [1972]  2  S.C.R.  607  and Borjahan  Gorey v. State of West Bengal [1972] 2 S.C.R.  550 followed (b)  The  right  to  personal liberty is  protected  by  the Constitution, but this liberty is not absolute and is not to be understood to amount to license to indulge in  activities which  wrongfully  and  unjustly deprive  the  community  or society of essential services and supplies.  The 99 1 right  of  society as a whole is, from its very  nature,  of much  greater importance than that of an individual, and  in case of conflict between the two, the individual’s right  is subjected  by the Constitution to reasonable restriction  to the larger interests of society. [996 D-F] (c)  In  the  present  case, the grounds  of  detention  are clear,  relevant and germane to the object and  purpose  for which preventive detention is authorised by the Act, and the detention order is not open to challenge. [996 B-D] (2)  This  Court  normally accepts without  reservation  the sworn  affidavits of responsible officers on the  assumption that  the facts stated therein are absolutely true and  that there  is no misstatement or concealment of relevant  facts. it is therefore obligatory on the part of the State to place before  the  Court all the relevant facts  relating  to  the impugned detention truly, clearly and with utmost  fairness, and  it is incumbent on the officer concerned, swearing  the counter affidavit, to take good care to satisfy himself that what  he states on oath is absolutely true according to  the record. [996 F; 997 A-D]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 307 of 1972. Petition under Article 32 of the Constitution of India for a writ in the nature of habeas corpus. jagmohan Khanna for the petitioner. G. S. Chatterjee for the respondent. The Judgment of the Court was delivered by DUA,  J.-The petitioner in these proceedings for a  writ  in the   nature  of  habeas  corpus  under  Art.  32   of   the Constitution  is  one  Mohd.   Subrati  alias  Mohd.   Karim detained in the Burdwan Jail pursuant to the impugned  order of  detention  dated February 9, 1972 made by  the  District Magistrate,  Burdwan in exercise of the powers conferred  on him  by  sub-s.  (1) read with sub-s. (2) of  s.  3  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Maintenance  of  Internal  Security  Act  No.  26  of   1971 (hereinafter called the Act).  The said District Magistrate, as  is clear from impugned order, was satisfied that with  a view to preventing the petitioner from acting in any  manner prejudicial  to  the maintenance of  supplies  and  services essential  to  the community it was necessary  to  make  the order  directing  that  he  be  detained.   The  ground   of detention were duly served on him at the time of his  arrest on February 11, 1972.  Those grounds are               "1.  That  on 6-1-72 at about 03.30  has.  you               along with your associates including (1)  teka               Bahadur  son  of  Shri Harak  Bir  Bahadur  of               Hutton Road, P.S. Asansol, Dist.  Burdwan, (2)               Shri Ganesh Das, son of Shri Chote Das of Gour               Mondal  Road,  P.S.  Asansol,  Dist.   Burdwan               committed theft in respect of electric  copper               wire  (about 1500 ft. in length)  at  Hatgarui               near  Sen-Releigh  Water Pump,  P.S.  Asansol,               Dist.   Burdwan.  As a result of  this  theft,               water supply as               9 92               well as electric supply in Sen-Releigh Housing               Colony,  P.S.  Asansol,  Dist.   Burdwan   was               totally  disrupted  for about 8 hours  to  the               sufferings of the people of the locality.               2.    That on 12-1-72 at about 04.00 hrs.  you               along with your associates including (1)  Teka               Bahadur  son  of  Shri Harak  Bir  Bahadur  of               Hutton  Road, P.S. Asansol Dist.  Burdwan  (2)               Ganesh  Das,  son of Shri Chote  Das  of  Gour               Mondal  Road,  P.S.  Asansol,  Dist.   Burdwan               committed theft in respect of electric  copper               wire  (about  3000  ft. in  length)  from  the               electric  poles  at  ’C’  Block,  Son  Releigh               Housing  Colony, P.S. Asansol Dist.   Burdwan.               When  challenged  by the  inhabitants  of  the               area. you and your associates hurled bombs to-               wards them.  By your act, electric supply  was               totally  disrupted  in  ’C’  Block  area,  Sen               Releigh Housing Estate and its adjoining areas               for   more   than  12   hours   causing   much               inconvenience  to  the  people  of  the  loca-               lity," The fact of making the order of detention was duly  reported to the State Government on February 9, 1972, the date of the order.  The State Government approved that order on February 21,  1972 and the necessary report submitted to the  Central Government  the same day.  The petitioner, as stated by  him in  the petition for habeas corpus, was produced before  and heard  in person, by the Advisory Board on April  10,  1972. The  Board, according to the respondent, gave  its  decision the same day.  The representation made by the petitioner was received  by  the  State Government on March  16,  1972  and considered  by the said Government on March 22, 1972.   The, State  Government confined the order of detention on May  5, 1972 and communicated its order to the detenu the same day. The  only submission pressed by Shri Jagmohan,  the  learned counsel appearing as amicus curiae in support of the  writ petition,  in  assailing  the order of  detention  is  that, according  to  the  return itself, two cases  for  theft  of copper  wires under s. 379, I.P.C. were  registered  against the  petitioner  and others at the  Asansol  Police  Station (Case  no. 16 dated 6th January, 1972 and case no. 20  dated 12th January, 1972), but as the witnesses examined under  s. 161, Cr.P.C. were reluctant to depose against petitioner and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

his  associates  for  fear of danger  to  their  lives,  the Investigating  Officer submitted as true, his  final  report suspecting the petitioner and his associates.  The order  of detention  was for this reason described by Shri  Khanna  as mala  fide and, therefore, liable to be quashed.   According to  the learned counsel in such cases criminal trial is  the only  course open to the State and no order of detention  is legally competent.  The counsel added that 993 if  the  criminal trial fails or the case  is  not  launched because  it  is  liable to fail, the  State  has  to  remain content  with the result.  It cannot deprive  the  suspected person  of  his liberty under the Act.  We art--  unable  to accept this contention. The Act was brought on the statute book in 1971 in order  to provide  for detention in certain cases for the  purpose  of maintenance  of  internal  security  and  matters  connected therewith.   Its enactment was necessitated because in  view of   the  prevailing  situation  in  the  country  and   the developments  across the border it was considered  necessary for  urgent and effective preventive action in the  interest of national security, to have powers of preventive detention to  deal  effectively with threats to the  defence  and  the security  of  India because the existing laws  available  to deal with the situation were not found to be adequate.   The emergent  requirement for such a law would be  obvious  from the  fact that before its enactment it had  been  considered necessary to promulgate the Maintenance of Internal Security Ordinance,  1971  which  was replaced by  the  present  Act. Under  s.  3(1) of the Act, the Central  Government  or  the State  Government  may,  if satisfied with  respect  to  any person,  that with a view to preventing him from acting  in any  manner prejudicial to, inter alia, the security of  the State or the maintenance of supplies and services  essential to  the community, it is necessary to, do so, make an  order directing that such person be detained.  Sub-section (2)  of this  section  authorises District Magistrates  and  certain other officers, if satisfied as above to exercise the  power conferred by sub-s. (1). it is quite clear that this section carries  out the statutory purpose of  preventive  detention and  it  has  nothing to do with  trial  and  punishment  of persons for commission of offences.  Indeed. it is precisely because  the existing law providing, for the  punishment  of persons   accused  of  commission  of  offences  and,.   for prevention  of offences, is not found adequate  for  dealing with  the  situation  for  effectively  preventing,  in  the interest  of  national  security  etc.,  the  commission  of prejudicial acts in future, that the provisions of this  Act were   enacted  and  are  intended  to  be  utilised.    If, therefore, for any reason it is not possible to successfully try  and  secure  the conviction  and  imprisonment  of  the persons concerned for their past activities, which amount to an offence, but which are also relevant for the satisfaction of the detaining authority for considering it necessary that a  detention  order under s. 3 be made for  preventing  such persons from acting in a prejudicial manner as  contemplated by  that  section,  then,  the  Act  would  indisputably  be attracted  and a detention order can appropriately be  made. The  detention order in such a case cannot be challenged  on the ground that the person ordered to be detained was liable to  be tried for the commission of the offence  or  offences founded on his conduct, on the basis of which, the detention order has been 994 made  or that proceedings under Chapter Vill, Cr.P.C.  could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

be  initiated against him.  The object, scheme and  language of  the Act is clearly against the petitioner’s  submission. The   Act  creates  in  the  authorities  concerned  a   new jurisdiction  to  make orders for  preventive  detention  on their  subjective  satisfaction of grounds of  suspicion  of commission in future of acts prejudicial to the community in general.   This  jurisdiction  is  different  from  that  of judicial trial in courts for offences and of judicial orders for  prevention  of offences.   Even  unsuccessful  judicial trial  or proceeding would, therefore, not operate as a  bar to a detention order or render it mala fide.  The matter  is also not res integra. Indeed, while dealing with the Defence of India Rules  which also  empowered  the Government of India to make  orders  of prevenitive  detention  this Court in Sahib Singh  Dugal  v. Union  of  India(1)  repelled a similar  contention  in  the following words               "The   next  contention  on  behalf   of   the               petitioners  is that the order is  mala  fide.               The reason for this contention is that it  was               originally    intended   to   prosecute    the               petitioners under S. 3 of the Official Secrets               Act  and When the authorities were  unable  to               get sufficient evidence to obtain a conviction               they decided to drop the criminal  proceedings               and to order the detention of the petitioners.               This  by itself is not sufficient to  lead  to               the inference that the action of the detaining               authority was mala fide.  It may very well  be               that  the executive authorities felt  that  it               was not possible to obtain a conviction for  a               particular offence under the Official  Secrets               Act,  at the same time they  might  reasonably               come to the conclusion that the activities  of               the  petitioners  which had been  watched  for               over  two years before the order of  detention               was passed were of such a nature as to justify               the  order  of detention.   We cannot  infer               merely  from  the fact  that  the  authorities               decided  to drop the case under  the  Official               Secrets  Act  and  thereafter  to  order   the               detention  of the petitioners under the  Rules               that the order of detention was mala fide.  As               we  have already said, it may not be  possible               to  obtain  a  conviction  for  a   particular               offence;  but  the authorities  may  still  be               justified in ordering detention of a person in               view of his past activities which will be of a               wider   range  than  the  mere  proof   of   a               particular offence in a court of law.  We are               not therefore prepared to hold that the orders               of detention in these cases were mala fide". (1)  [1966] 1 S.C.R. 313. 9 95 Thu decision was followed by this Court in Mohd.  Salim Khan v. C. C. Bose & anr. (1).  A similar view was also taken  by this  Court  in Borjahan Gorey v. State  of  West  Bengal(2) where it was observed               "The preventive detention provided by the  Act               is  apparently designed to deal  urgently  and               effectively  with the more serious  situation,               inter  alia, affecting the security  of  India               and   the  maintenance  of  public  order   as               contemplated  by  section 3 of the  Act.   The               liability  of the detenu also to be tried  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

             commission of an offence do not in any way  as               a  matter  of law affect or impinge  upon  the               full  operation  of the Act.   The  reason  is               obvious.   Judicial  trial for  punishing  the               accused for the commission of an offence is  a               jurisdiction distinct from that of  detention-               under  the Act, which has in view, the  object               of  preventing the detenu from acting  in  any               manner prejudicial inter alia to the  security               of  the State or maintenance of public  order.               The fields of these two jurisdictions are  not               coextensive  nor  are they  alternative.   The               jurisdiction  under  the Act may  be  invoked,               when  the available evidence does not come  up               to  the  standard  of judicial  proof  but  is               otherwise  cogent  enough  to  give  rise   to               suspicion   in  the  mind  of  the   authority               concerned   that   there   is   a   reasonable               likelihood of repetition of past conduct which               would   be  prejudicial  inter  alia  to   the               security  of the State or the  maintenance  of               public order or even when the witnesses may be               frightened or scared of coming to a court  and               deposing about past acts on which the  opinion               of  the  authority concerned is  based.   This               jurisdiction    is   sometimes   called    the               jurisdiction  of  suspicion  founded  on  past               incidents and depending on relate to the  past               acts on which the opinion as to the likelihood               of  the repetition of such or similar acts  is               based and those grounds are furnished. to  the               detenu  to  inform him as to how and  why  the               subjective satisfaction has been arrived at so               as  to enable him to represent  against  them.               The fact, therefore, that a prosecution  under               the Code could also have been launched is  not               a  valid ground for saving ,that it  precludes               the authority from acting under the Act." The  grievance  that  the  petitioner  Ought  to  have  been proceeded   against  in  a  court  of  law  and   that   the investigating agency did not put him on a regular trial  for want of evidence can thus be (1)  [1972] 2 S.C.C. 607. (2) [1972] 2 S.C.C. 550. 12-L521Sup.C.I./73 996 no bar to his detention if the detaining authority under the Act  is satisfied that it is necessary to make the order  of preventive detention on the grounds contemplated by the Act. The  grounds on the basis of which the petitioner  has  been detained  are clear, relevant and germane to the object  and purpose for which preventive detention is authorised by  the Act.   The petitioner is stated to have committed  theft  of electric  copper wires on January 6 and 12, 1972.   When  he was  challenged  by the inhabitants of the area he  and  his associates hurled bombs towards them.  The theft of electric wire  totally disrupted electric supplies for several  hours in  the areas concerned.  This conduct is very relevant  for satisfying the authority concerned that it is prejudicial to the  maintenance of supplies and services essential  to  the community  and if such authority considers it  necessary  on this ground to detain him with a view to preventing him from repeating  such  acts, then, the order  of  detention  would indubitably and legitimately fall within the purview of s. 3 of the Act.  The detention order is not open to challenge in

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

these  proceedings  on  the  grounds  averred  in  the  writ petition  and urged by the learned counsel at the  bar.   In this  connection, Shri Chatterji also drew our attention  to Arun Kumar v. State of West Bengal(1) and Sasti Chowdhary v. State of West Bengal (2). NO doubt, the right to Personal liberty of an individual  is jealously protected by our Constitution but this liberty  is not  absolute  and  is not to be  understood  to  amount  to licence  to  indulge  in  activities  which  wrongfully  and unjustly  deprive the community of the society of  essential services and supplies.  The right of the society as a  whole is,  from its very nature, of such greater  importance  than that of an individual.  In case of conflict between the  two rights,   the   individuals  right  is  subjected   by   our Constitution  to  reasonable  restrictions  in  the   larger interests of the society. Before  concluding, however, we consider it proper to  refer to  one  other  matter which appears to  be  of  importance. According  to the counter-affidavit the order  of  detention has been approved by the State Government under s. 3 (3)  of the  Act on February 18, 1972.  This is  clearly  incorrect. We find from the original order of approval from the  record (which  was produced by the counsel for the State under  our directions)  that  it was draft on February  19,  1972  but actually  signed  by the Deputy Secretary on behalf  of  the Government  on  February 21, 1972.  The  order  of  approval must, therefore, be considered to have been made only on the day  when  it was signed, i.e., February 21, 1972.   We  are unable to find any cogent reason for the sworn assertion  in the (1) A.I.R. 1972 S.C. 1858. (2) A.I.R. 1972 S.C. 1668. 997 counter-affidavit  that  this  order had  been  approved  on February  18,  1972.   We feel  that  the  counter-affidavit produced  in  this Court in answer to the challenge  to  the preventive  detention of the detenu should contain  all  the facts correctly and full disclosure must be made without any reservation.   It  must  be  remembered  that  the  personal liberty of an individual has been given an honoured place in the fundamental rights which our Constitution has  jealously protected  against  illegal and arbitrary  deprivation,  and that this Court has been entrusted with a duty and  invested with  a  power to enforce that fundamental  right.   It  is, therefore,  obligatory  on the part of the  State  to  place before  this  Court all the relevant facts relating  to  the impugned  detention  truly,  clearly  and  with  the  utmost fairness.   This Court normally accepts without  reservation the   sworn  affidavits  by  responsible  officers  on   the assumption that the facts stated therein are absolutely true and that there is no misstatement or concealment of relevant facts.  It is, therefore, incumbent on the officer concerned swearing the counter-affidavit to take good care to  satisfy himself  that  what  he states on oath  is  absolutely  true according to the record. This petition fails and is dismissed. V.P.S.                     Petition dismissed. 998