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PETITIONER: SASTI @ SATISH CHOWDHARY

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT02/05/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M.

CITATION:  1972 AIR 1668            1973 SCR  (1) 467  1972 SCC  (3) 826  CITATOR INFO :  RF         1973 SC 207  (7)  R          1974 SC1214  (6)  F          1975 SC 623  (3)

ACT: Maintenance  of      Internal Security  Act,  1971-Detention under s. 3--Alleged theft of copper wire by detenu mentioned as  ground of detention-Detention under Act  whither  valid when  prosecution  under Indian Penal Code can  be  launched against detenu.

HEADNOTE: The  petitioner was detained by an order under s. 3  of  the Maintenance  of  Internal Security Act 1971. In  a  petition under Art. 32 of  the Constitution it was urged on behalf of the petitioner that a prosecution for   theft   under    the Indian  Penal  Code could have been launched  on  the  facts alleged  against  him  in  the  grounds  of  detention   and therefore his- detention was illegate.      Rejecting the plea, HELD : It is always open to the detaining authority to  pass an  order  for the detention of a person if the  grounds  of detention  are germane to the object for which  a  detention order  can legally be made.The fact that the particular  act of  the detenue which provides the reason for the making  of the detention order constitutes ,in offence under the  Indian Penal  Code would not prevent the detaining  authority  from passing  the,  order  for detention  instead  of  proceeding against  him  in a court of law.  The  detaining authority might  well  feel  that though  there  was  not sufficient evidence  admissible  under  the  Indian  Evidence  Act  for securing a conviction, the activities of the person  ordered to be detained were of such a nature as to justify the order of detention.       Even in cases  where  a person has  been actually prosecuted in a court of law in respect  of      an incident and has been discharged by the trying magistrate, a valid  order of his detention can be passed against  him  in connection with that very incident. [46 H-470 C] Mohd.  Salim Khan v, Shri C. C. Bose & Anr.  (Writ  petition No. 435   of 1971 decided on April 25, 1972) relied on. Sahib  Singh Duggal v. Union of India, [1966] 1 S.C.R.   323 referred to.

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The particulars of the incident in the grounds of  detention in  the  present  case showed that the  petitioner  and  his associates  committed theft in respect of overhead  electric wires.  The  above act of the petitioner and  his  associate created  complete dislocation of electric supplies of    the area.   The  above ground of detention was  germane  to  the object for which a detention order can be made under section 3(1)(a)(iii)  of the Act.  According to that provision,  the detaining  authority may, if satisfied with respect  to  any person that with a view to preventing him from acting in any manner  prejudicial  to  the  maintenance  of  supplies  and services essential to the community, it is. necessary so  to do,  make an order directing that such person  be  detained. [470 E-F] Pushkar Mukherjee & Ors, v. The State of West Bengal, [1969] 2  S.C.R. 635, Arun Ghosh v. State of West Bengal  [1970]  3 S.C.R. 288 and Nagendra Nath Mondal v. State of West Bengal, [1972] 2 S.C.C. 498, referred to. 468

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 37 of 1972. (Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus. T.   S. Arora, for the petitioner. S.   C. Majumdar and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by- Khanna, J. This is a petition through jail under article  32 of  the  Constitution for the issuance of a writ  of  habeas corpus by Sasti alias Satish Chowdhary, who has been ordered by  the  District  Magistrate Howrah to  be  detained  under section 3 of the Maintenance of Internal Security Act,  1971 (hereinafter  referred  to as the Act).  The  order  recited that  it was made with a view to preventing  the  petitioner from acting in any manner prejudicial to the maintenance  of supplies and services essential to the community. The order of detention was passed by the District Magistrate on  September  8, 1971.  The petitioner, it is  stated,  was found to be absconding soon after the passing of the  order. He was arrested on November 23, 1971 and was served with the order  of  detention and the grounds of  detention  together with vernacular translation thereof on the same day. in  the meanwhile on September 8, 1971 the District Magistrate  sent report  to  the State Government about his having  made  the order  of detention along with the grounds of detention  and other necessary particulars.  The matter was then considered by the State Government.  It approved the detention order on September 10, 1971.  The same day the State Government  sent report  to  the  Central  Government  along  with  necessary particulars  regarding  the  necessity  a  the  order.    On December   10,   1971  the  State  Government   received   a representation of the petitioner.  The said  representation, after being considered, was rejected by the State Government on  December  21, 1971.  On December 22,  1971  the.   State Government  placed  the case of the  petitioner  before  the Advisory  Board.  The representation of the  petitioner  was also  sent  to the Advisory Board.  The  said  Board,  after considering  the  material placed before it,  including  the representation of the petitioner, and after hearing  him  in  person,  sent  its  report  to  the  state on January  28,  1972.  Opinion was expressed by  the  Advisory Board  that there was sufficient cause for the  petitioner’s

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detention.   On  February  11,  1972  the  State  Government confirmed   the  order  of  detention  of  the   petitioner. Communication  of the said confirmation was thereafter  sent to the petitioner.                             469 In opposition to the petition Shri Dipak Kumar Rudra, Dist-. rict Magistrate, who made the impugned order, has filed  his affidavit.   Mr. Arora has argued the case amicus curiae  on behalf  of’  the  petitioner,  while  the  State  has   been reprensented by Mr.Majumdar, Before dealing with the contention advanced by Mr. Arora, it would  be pertinent to reproduce the portion of the  grounds of,’ detention which contains the necessary particulars : "You are being detained in pursuance of detention order made in  exercise of the powers conferred by subsection (1)  read with  sub-section  (2) of section 3 of  the  Maintenance  of Internal  Security  Act, 1971 (Act No. 26 of 1971),  on  the grounds  that you  have beer acting in a manner  prejudicial               to  the maintenance of supplies  and  services               essential  to the community as  evi-denced  by               the particulars given below :- (1)  On 9.7.71 at about 23.30 hrs. you and your  associates Sk.  Nazam, Kesta Adhikary, Bablu Das, Kachi Chakravarty and 3/4 others were  found to committee in respect  of  overhead               electric  wires between two posts near  Zanana               Latrine of Lawrence & Co. at Chakkashi by  the               darwans  on duty.  You and your associate  Sk.               Nazam were seen on the top of the post cutting               one  end  of  the electric  wire,  while  your               associates  were  rolling the cut end  of  the               wire  from  other post.   The  darwans  raised               alarm  and  surrounded you with the  help,  of               local people.  Your associate Sk.  Nazam  with               other  escaped and you and two other  of  your               associates could be arrested at the spot  with               stolen  copper  wire.  This  created  complete               dislocation of electric supplies of the area." It is argued by Mr. Arora that as the act attributed to the- petitioner  in  the  grounds  of  detention  constituted  an offence  under the Indian Penal Code, the  petitioner  could only be tried in a court of law for the offence and no order for  his  detention  On  that score  could  be  made.   This contention,  in  our  opinion, is devoid of  force.   It  is always open to the detaining authority to pass an order  for the  detention of a person if the grounds of  detention  are germane  to  the  object for which  a  detention  order  can legally  be made.  The fact that the particular act  of  the detenu  which  provides  the reason for the  making  of  the detention  order  constitutes an offence  under  the  Indian Penal  Code would not prevent the detaining  authority  from passing  the  order  for  detention  instead  of  proceeding against  him  in a court of law.   The  detaining  authority might well feel that though there was 470 -not   sufficient  evidence  admissible  under  the   Indian Evidenre  Act for securing a conviction, the activities  of; the  person ordered to be detained were of such a nature  as to justify the order of detention.  There would. be no legal bar  to  the making of detention order in such a  case.   It would, however, be imperative that the incident which  gives rise  to  the  apprehension in the  mind  of  the  detaining authority  and induces that authority to pass the order  for detention should be relevant and germane to, the object  for which a detention   order can be, made under the Act.   Even in  cases where a person has been actually prosecuted  in  a

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court  of  law  in  respect of  an  incident  and  has  been discharged  by the trying magistrate, a valid order  of  his detention can be passed against him in connection with  that very  incident.  It was recently observed by this  Court  in the  case  of Mohd.  Salim Khan v. Shri C. C.  Bose  &  Anr. (Writ  petition No. 435 of 1971 decided on April  25,  1972) that  from the mere fact that a detenu was discharged  in  a criminal  case relating to an incident by A  magistrate,  it could  not be said that the detention order on the basis  of that incident was incompetent, nor could it be inferred that it  was  without  basis  or mala  fide.   Reliance  in  this connection was placed upon the case of Sahib Singh Duggal v. Union India(1). The particulars of the incident in the grounds of  detention show that the petitioner and his associates committed  theft in respect of overhead electric wires between two posts near Zanana Latrine of Lawrence & Co. at Chakkashi. the above act of  the  petitioner  and  his  associates  created  complete dislocation  of  electric supplies of the area.   The  above ground  of  detention, in our opinion, was  germane  to  the object  for  which  a detention order  ,can  be  made  under section  3(1)(a)  (iii)  of  the  Act.   According  to  that provision,  the detaining authority may, if  satisfied  with respect  to  any person that with a view to  preventing  him from acting in any manner prejudicial to the maintenance  of supplies  and  services essential to the  community,  it  is necessary so to do make an order directing that such  person be detained. Mr.  Arora has referred to the case of Pushkar  Mukherjee  & Ors. v. The State of West Bengal(2) wherein this Court dealt with the difference between the concept of public order  and law  and  order and observed that the  said  difference  was similar to the distinction between public and private crimes in the realm of jurisprudence.  It was observed that a  line of demarcation must be drawn between serious and  aggravated forms  of disorder which directly affect the  community  any injure the public interest and the relatively minor breaches of  peace  of a purely local  significance  which  primarily injure specific individuals and only in a secondary sense public interest. (1) [1966] 1 S.C.R. 313. (2) [1969] 2 S.C.R. 635.                             471 Pushkar Mukherjee’s case(1) was referred to in a later deci- sion  of this Court in the case of Arjun Ghosh v.  State  of West  Bengal(2)  and  it  was  pointed  out  that  the  true distinction between the areas of "law and order" and "public order" was one of degree and extent of the reach of the  act in  question  upon  society.  Acts similar  in  nature,  but committed  in  different contexts and  cir-cumstances  might cause  different reactions; in one case it might affect  the problem  of the breach of law and order, and in another  the breach  of public order.  It was observed that  the  analogy resorted  to  in  the Pushkar Mukherjee’s  case  (supra)  of crimes  against  individuals and crimes against  the  public though  useful to a limited extent would not always be  apt. An  assault by one individual upon another would affect  law and order only and cause its breach.  A similar assault by a member of one community upon a leading individual of another community,  though  similar  in  quality,  would  differ  in potentiality in the sense that it might cause reverberations which  might  affect  the  even tempo of  the  life  of  the community.   The Court pointed out that "the act  by  itself is, not determinant of its own gravity.. , In its quality it may  not  differ  but in its potentiality  it  may  be  very

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different."  (see  ,also Nagendra Nath, Mondal v.  State  of West Bengal (3). The distinction between public order and the maintenance  of law  and order has, however  not much material  bearing  ’on the  present case because, as stated above,  the  petitioner has  been  detained not with a view to preventing  him  from acting  in  any  manner prejudicial to  the  maintenance  of public  order but with a view to preventing him from  acting in any maner prejudicial to the maintenance of supplies  and services essential to the community. No other infirmity in the detention order and the consequent detention of the petitioner has been brought to our  notice. The, petition consequently fails and is dismissed. G.C. Petition dismissed. (1)  [1969] 2 S.C.R. 635.                     (2)  [1970]  3 S.C.R. 288. (3)  [1972] 2 S.C.C. 498. 472