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PETITIONER: NIZAMUDDIN

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT05/11/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V.

CITATION:  1974 AIR 2353            1975 SCR  (2) 593  1975 SCC  (3)  95  CITATOR INFO :  F          1975 SC 728  (3)  RF         1976 SC1207  (560)  R          1979 SC 447  (6)  RF         1980 SC1983  (4)  RF         1987 SC1472  (12)  F          1989 SC1282  (9)  R          1990 SC 220  (6)  F          1992 SC1900  (14)

ACT: Preventive  Detention-Delay in arresting detenu pursuant  to order of detention-Duty of detaining authority to explain.

HEADNOTE: On  14th  April, 1973, the petitioner was  alleged  to  have committed  theft of aluminium wire and a criminal  case  was filed  but it was ultimately dropped and the petitioner  was discharged, because, the witnesses were not willing to  give evidence  for  fear  of  danger  to  their  life.   On  10th September,  1973,  the District Magistrate passed  an  order under  s.  3(2)(i) of the Maintenance of  Internal  Security Act, 1971, detaining the petitioner with a view to  prevent- ing  him  from  acting  in  a  manner  prejudicial  to   the maintenance  of  supplies  and  services  essential  to  the community,  on his subjective satisfaction, based  upon  the solitary  incident  of  the theft  of  aluminum  wire.   The petitioner was actually detained on 23rd November, 1973. Allowing the petition challenging the order of detention, HELD  : The condition precedent for the making of the  order of  detention, namely the existence of a. real  and  genuine subjective. satisfaction of the District Magistrate was  not satisfied  in  the  case. and  consequently,  the  order  of detention must be quashed and set aside. [596D-E] (a)  It  must be assumed that the petitioner was  discharged on  or  about 10th September, 1973,  because,  the  District Magistrate  must  have  made  the  order  of  detention   in anticipation  of  the order of discharge.  If that  was  so, though the petitioner was available for detention, there was a  delay  of  about two and half  months  in  detaining  the petitioner pursuant to the order of detention.  This  delay, unless  satisfactorily explained, would  throw  considerable doubt  on the genuineness of the subjective satisfaction  of

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the  District Magistrate recited in the order of  detention. If   the  District  Magistrate  was  really  and   genuinely satisfied he would have acted with greater promptitude.  But he has not offered any explanation as to why the  petitioner was  not detained until 23rd November, 1973, more  than  two months after he made the order of detention. [595D-H] (b)  It  is  the obligation of the State  or  the  detaining authority in making its return to the rule nisi, in cases of habeas  corpus, to place all the relevant facts  before  the court  and  if there is any delay in  arresting  the  detenu pursuant  to  the order of detention, which is  prima  facie unreasonable,  the State must explain the delay.  The  State cannot  contend  that  the petitioner  has  not  raised  the contention in his petition. [596B-C] Sk.   Serajul  v. State of West Bengal W.P.  2000  of  1973, decided on September 9, 1974, followed.

JUDGMENT: ORIGINAL  APPELLATE JURISDICTION: Writ Petition No.  319  of 1974. Petition under Article 32 of the Constitution. Anil Kumar Gupta, for the petitioner. P. Chatteriee and G. S. Chatterjee, for the respondents. The Judgment of the Court was delivered by BHAGWATI,  J. The petitioner challenges his detention  under an  order  dated 10th September, 1973 made by  the  District Magistrate, 594 Burdwan under section 3(2)(i) of the Maintenance of Internal Security Act, 1971.  There were several grounds urged before us  for challenging the validity of the order  of  detention but it is not necessary to refer to them since we find  that there  is one ground which is sufficient to dispose  of  the petition.   To  appreciate this ground it  is  necessary  to notice a few facts. The order of detention was made on 10th September, 1973  and it was based on the subjective satisfaction of the  District Magistrate  that it was necessary to detain  the  petitioner with  a  view  to preventing him from  acting  in  a  manner prejudicial  to  the maintenance of  supplies  and  services essential  to the community.  This subjective  satisfaction, according  to  the  grounds of detention  furnished  to  the petitioner,  was founded on a solitary incident of theft  of aluminums  wire  alleged  to  have  been  committed  by  the petitioner on 14th April, 1973.  It appears that in  respect of  this  incident  a criminal case  was  filed  inter  alia against  the  petitioner  in  the  Court  of  Sub-Divisional Judicial Magistrate, Asansol, but, as the affidavit-in-reply filed  by the District Magistrate shows, the witnesses  were unwilling to depose against the petitioner in open Court  on account of fear of danger to their life and the  prosecution was-,  therefore, constrained to drop th criminal  case  and the  petitioner was discharged.  However, the date when  the petitioner was discharged was not set out in the  affidavit- in-reply.   The petitioner was thereafter detained  on  23rd November,  1973 pursuant to the order of  detention.   There was  thus a time lag of about two and a half months  between the  date of the order of detention and, the date  when  the petitioner was actually detained.  The petitioner  contended that  since,  the District Magistrate did not state  in  his affidavit-in-reply as to when the petitioner was discharged, it must be presumed that the petitioner was discharged on or about  10th  September,  1973 and was  available  for  being

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detained  under  the order of detention and yet he  was  not arrested  for a period of two and a half months  until  23rd November,  1973  and  that  shows that  there  was  no  real necessity to detain the petitioner with a view to preventing him  from acting in a prejudicial manner and the  subjective satisfaction  of the District Magistrate founding the  order of  detention  was not genuine.  There is- great  force,  in this  contention  of the petitioner and it  must  result  in invalidation of the order of detention. It  is obvious from the facts set out in  the  affidavit-in- reply  that the, petitioner-was arrested in connection  with the  criminal  case arising out of the incident  dated  14th April,  1973  set  out in the  grounds  of  detention.   The criminal  case was ultimately dropped as the witnesses  were not  willing  to come forward to give evidence for  fear  of danger to their life and the petitioner was discharged.  The date of discharge of the petitioner was, however not set out in  the  affidavit in-reply.  We asked the  learned  counsel appearing  on behalf of the respondent as  to  whether.there was  any record with him from whick he could tell us as  to’ What was the date on which the petitioner was discharged but he stated that the only record which he had was that 595 relating  to the order of detention and the record  relating to the criminal case had not been sent to him.  We were told that  even  the history-sheet of the petitioner,  which  was before  the  District Magistrate when he made the  order  of detention,   did  not  give  the  date  when  the   criminal prosecution was dropped that the petitioner was  discharged. It  did  not even make any reference to the  criminal  case. This is rather unfortunate.  He should have thought that the fact that a criminal case is pending against the person  who is  sought  to  be proceeded against by  way  of  preventive detention is a very material circumstance which ought to  be placed  before the District Magistrate.   That  circumstance might quite possibly have an impact on his decision  whether or not to make an order of detention.  It is not  altogether unlikely  that the District Magistrate may in a  given  case take the view that since a criminal case is pending  against the  person  sought to be detained, no  order  of  detention should be made for the present, but the criminal case should be  allowed to run its full course and only if it  fails  to result  in  conviction then preventive detention  should  be resorted  to.  It would be most unfair to the person  sought to  be detained not to disclose the pendency of  a  criminal case against him to the District Magistrate.  But that is  a different  question  altogether and it need not  detain  us. The  fact remains that there was no record with the  learned counsel appearing on behalf of the respondent from which  he could  give us the date when the petitioner was  discharged. In  view  of this failure on the part of the  respondent  to supply  information to the Court as to then  the  petitioner was  discharged, we must proceed on the assumption  that  he must have been discharged on or about 10th September,  1973. The  order of detention must have been made by the  District Magistrate   in  anticipation  of  the  discharge   of   the petitioner   and  the  discharge  of  the  petitioner   can, therefore,  be presumed to have taken place at or about  the time  when  the order of detention was made, that  is,  10th September,  1973.   But  if that be so,  the  conclusion  is inescap-able  that though the petitioner was  available  for detention  since  about  10th September, 1973,  he  was  not detained  for a period of about two and a half  months  upto 23rd  November,  1973.  There was delay of about two  and  a half  months  in detaining the petitioner  pursuant  to  the

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order of detention and this delay, unless satisfactorily ex- plained,  would throw considerable doubt on the  genuineness of  the subjective satisfaction of the  District  Magistrate recited  in the order of detention.  It would be  reasonable to  assume  that if the District Magistrate was  really  and genuinely satisfied after proper application of mind to  the materials  before  him that it was necessary to  detain  the petitioner  with a view to preventing him from acting  in  a prejudicial  manner,  he  would  have  acted  with   greater promptitude  in  securing  the  arrest  of  the   petitioner immediately  after the invoking of the order  of  detention, and the petitioner would not have been allowed to remain  at large  for  such  a  long period of time  to  carry  on  his nefarious  activities.  of course when we say this  we  must not  be understood to mean that whenever there is  delay  in arresting  the  subjective  satisfaction  of  the  detaining authority  must  be held to be not  genuine  or  colourable. Each  case  must  depend  on  its  own  peculiar  acts   and circumstances.   The detaining authority may have a  reason- able explanation for the delay and that might be  sufficient to dispel 596 the  inference that its satisfaction was not  genuine.   But here we find that though an affidavit-in-reply was filed  by the   District  Magistrate  himself,  no   explanation   was forthcoming  in this affidavit as to why the petitioner  was not arrested until 23rd November, 1973, though the order  of detention was made as far back as 10th September, 1973.  The learned  counsel  appearing  on  behalf  of  the  respondent contended  that  the State was not expected  to  render  any explanation  in  regard  to  the  delay  in  arresting   the petitioner pursuant to the order   of  detention because  no such complaint was made in the petition.     But   this   is hardly  an  argument which can avail the State  when  it  is called upon to answer a rule issued on a petition for a writ of habeas corpus.  It is the obligation of the State or  the detaining,  authority  in making its return to the  rule  in such a case to place all the relevant facts before the Court and  if there is any delay in arresting the detenu  pursuant to the order of detention which is prima facie unreasonable, the  State must give reasons explaining the delay. Vide  Sk. Serajul  v.  State of West Bengal.(1) Since in  the  present case  no  explanation for the delay has been  given  in  the affidavit-in reply filed by the District Magistrate, we  are not  at all satisfied that the District  Magistrate  applied his  mind  and  arrived at a  real  and  genuine  subjective satisfaction that it was necessary to detain the  petitioner with  a view to preventing him from acting in a  prejudicial manner.  The condition precedent for the making of the order of detention was, therefore, not satisfied and  consequently the order of detention must be quashed and set aside. We  accordingly quash and set aside the order  of  detention and direct that the petitioner be set at liberty forthwith. V.P.S. Petitioned allowed. (1) W.P. 2000 of 1973, decided on September 9, 1974 597