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PETITIONER: SHYAMAL CHAKRABORTY

       Vs.

RESPONDENT: COMMISSIONER OF POLICE, CALCUTTA & ANR.

DATE OF JUDGMENT: 04/08/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. MITTER, G.K. HEGDE, K.S.

CITATION:  1970 AIR  269            1970 SCR  (1) 762  1969 SCC  (2) 426  CITATOR INFO :  R          1970 SC 675  (14,15)  RF         1972 SC2420  (6)  R          1972 SC2481  (11)  R          1973 SC 295  (7)  RF         1975 SC 953  (4)  R          1990 SC1086  (18)  RF         1991 SC 574  (11)  RF         1991 SC1090  (5)

ACT:     Preventive  Detention  Act, 1950, ss. 3  and  7--’Public order’  in s. 3--Acts which are offences under Indian  Penal Code    whether    come    under    purview    of    ’public order’--Representation  to Government by detenu  after  case dealt   with  by  Advisory  Board--Duty  of  Government   to consider representation under s. 7.

HEADNOTE:     The petitioner was arrested and detained by an order  of the  Commissioner of Police, Calcutta under s. 3(2)  of  the Preventive Detention Act, 1950.  According to the grounds of detention supplied to him his activities were prejudicial to the maintenance of ’public order’. The petitioners’ case was placed  before  the  Advisory Board  and  on  obtaining  its opinion  the Governor confirmed the order of detention.   It was  after this that the petitioner made representations  to the  State Government.  Then he filed the  present  petition under  Art.  32 of the Constitution based on  the  following grounds:  (i)  that there was a breach of s. 7  of  the  Act inasmuch as his representation’s were not considered by  the Government; (ii) that the grounds furnished to him mentioned offences under the Indian Penal Code and these could not  be used  for  the purpose of detention except  in  emergencies: (iii) that the grounds did not have any relation to ’public     HELD:  (i)  It is obligatory on the Government  to  deal with  the  representations made by the detenu,  but  in  the present case the detenu made his representations only  after the  Advisory  Board had dealt with the matter.   The  State Government   was  in  the  process  of  dealing   with   his representation.   In the circumstances it could not be  said

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that there had been a breach of s. 7 of the Act. [765 E-G]     (ii)  The contravention of any law always affects  order but  before  it can be said to affect public order  it  must affect the community or the public at large. [766 A]     Pushkar  Mukherjee & Ors. v. The State of  West  Bengal, [1969] 2 S.C.R. 635, applied.      The grounds of detention supplied to the detenu in  the present  case  showed that on one occasion he took  part  in rioting  along with associates armed with lathis, iron  rods and  acid  bulbs.  On  another  occasion  he  took  part  in assaulting a constable on duty.  On a third occasion he  and his  associates  were armed with deadly weapons  which  were actually used in indiscriminately endangering human lives in the locality. [766 C-D]     From, these activities the object of the detenu seems to have  been  to terrorise the locality and  bring  the  whole machinery of law and order to a halt.  The conclusion of the detaining  authority that the detenu was likely to act in  a manner prejudicial to the maintenance of public order in the future  and it was necessary to prevent him from  doing  so, was justified. [766 E-F] 763     The fact that public sector was affected by an act which was  also  an  offence  under the  Indian  Penal  Code  .was irrelevant. [766 F]

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition No. 102 of 1969.     Petition under Art. 32 of the Constitution of India  for a writ in the nature of habeas corpus.     Vinoo Bhagat, for the petitioner.     S.P.  Mitra, G.S. Chatterjee for Sukumar Basu,  for  the respondents.     The Judgment of the Court was delivered by     Sikri,  J.  This is a petition under Article 32  of  the Constitution  by Shyamal Chakraborty who has  been  detained under  the  Preventive  Detention  Act,  1950   (hereinafter referred  to as the Act).  Three grounds have been urged  by the  learned counsel why we should issue a writ  of   habeas corpus   directing   his  release:  (1)  that  the  detenu’s representation  was  not considered by the  Government,  (2) that the grounds furnished to the detenu mentioned  offences under  the  Indian  Penal Code and cannot be  used  for  the purpose  of detaining the detenu except in  emergencies  and (3)  that  the  grounds  do not have  any  relation  to  the maintenance  of  public order.  Following are the  facts  as they emerge from the affidavits on record:     The  detenu was detained by an order No.  3846-D.D.  (S) dated  13th November, 1968 passed by  the  Commissioner   of Police,  Calcutta in exercise of powers conferred on him  by section  3(2)  of  the  Act.  The  detenu  was  arrested  on November  13,  1968  and  was served  with  the  grounds  of detention both in English and in vernacular on the same day. On 15th November. 1968, the Commissioner of Police  reported the  fact of such detention of the petitioner together  with the  grounds  and other particulars having  bearing  on  the necessity  of the order to. the State Government.   On  19th November,  1968, the  Governor  was pleased to  approve  the said order of detention under section 3(3) of the Act and on the  same  day  the Governor submitted  the  report  to  the Central  Government under section 3(4) of the  Act  together with  grounds  and other particulars having bearing  on  the necessity of the order.  On 7th December, 1968, his case was

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placed before the Advisory Board under section 9 of the Act. On 6th January, 1969, the Advisory Board after consideration of  the materials placed before it was of the  opinion  that there was sufficient cause for detention of the  petitioner. The  petitioner had not submitted any representation to  the State  Government  till  then.  By  an  order   dated    8th January,   1969  the  Governor  was pleased to  confirm  the order  of detention.  It appears that on the  13th  January, 1969 and 16th January, 1969 the detenu made 764 representations.  After the receipt of these representations the   same  were  sent  by  the  Home  Department   to   the Commissioner  of Police for his report.  On 1st April,  1969 the Commissioner of Police informed the Home Department that he did not recommend the release of the petitioner.  But the representations  of  the petitioner were not  received  back from  the Commissioner of Police with his letter of the  1st April, 1969.  Later on the Commissioner of Police sent  back the  representation  dated 13th January, 1969  to  the  Home Department.  This Court on 28th March, 1969 issued a  notice under Article 32 of the Constitution to the Commissioner  of Police and to the State Government  to  show cause why  rule nisi should not be issued made returnable three weeks hence. On  receipt  of this notice the State  Government  refrained from  passing  any order on the  representation  dated  13th January, 1969.  The representation dated 16th January,  1969 is  untraceable,  but  effort is being  made  to  trace  it. According  to the Commissioner of Police it was on the  same lines as the representation dated 13th January, 1969.      It is necessary to. reproduce the grounds of  detention served on the detenu and they are in the following terms :-                    "You are being detained in pursuance of a               detention order made under sub-section (2)  of               section  3  of the Preventive  Detention  Act,               1950  (Act  IV  of  1950)  on  the   following               grounds:                     You   have  been  acting  in  a   manner               prejudicial to the maintenance of public order               by  the  commission of  offences  of  rioting,               assault etc. as detailed below:                    (1) That on 28-6-68 at about 6 p..m.  you               along  with your associates being  armed  with               lathis, iron rods, acid bulbs etc. committed a               riot  in Kumartuli Park in          course  of               which  you   severely  assaulted   Shri   Amal               Krishna  Roy  of 20A, Abhoy Mitra  Street  and               iron    rods,    acid    bulbs    etc.    were               indiscriminately used endangering human lives.                    (2)  That on 23-7-68 at about  6.10  p.m.               you  along  with your associates  being  armed               with  lathis,  iron rod,  hockey  sticks  etc.               attacked   constables  Sankar  Lal  Bose   and               Jagdish  Singh  both  of  Shyampukur  P.S.  on               Kaliprosad   Chakraborty   Street   near   the               Gaudiya   Math  who went there  to.  discharge               their  lawful  duties, as a  result  of  which               constable Sankar Lal  Bose  sustained bleeding               injuries on his person.                    (3) That in the night of 3-10-68  between               11.50  p.m. and 1.30 a.m. you along with  your               associates being 765               armed   with  deadly  weapons took part  in  a               riot at Rabindra Sarani from Bug Bazar  Street               crossing   to  Kumartuli  Street  crossing  in

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             course  of  which bombs,  brickbats  and  soda               water  bottles  were  indiscriminately  hurled               endangering human lives.                     You  are  hereby informed that  you  may               make a representation to the State  Government               against  the  detention order and  that   such               representation   should  be addressed  to  the               Assistant  Secretary  to  the   Government  of               West   Bengal,   Home   Department,    Special               Section,  Writers’  Buildings,  Calcutta   and                             forwarded  through  the Superintendent   of  the               Jail  in  which you are detained as  early  as               possible.                      You   are  also  informed  that   under               section  10 of the Preventive  Detention  Act,               1950  (Act  IV of 1950)  the  Advisory  Board,               shall, if you desire to be heard, hear you  in               person  and that if you desire to be so  heard               by the Advisory Board you should intimate such               desire  in  your representation to  the  State               Government".     Coming  now  to the first point raised  by  the  learned counsel it seems to us that there has been no breach of  the provisions  of  the  Act.  This Court has held  that  it  is obligatory   on   the   Government   to   deal   with    the representations  made by the detenu, but the  facts  recited above  show  that  the  detenu did  not  choose  to  make  a representation  before  the Advisory Board  dealt  with  the matter, and further the State Government was in the  process of  dealing with the representation when this  Court  issued the  notice.  Moreover,  in the  representation  dated  13th January,  1969,  the detenu barely stated that  the  grounds were false and that the detenu was a poor man and the family conditions  were miserable and he was living peacefully,  in the  town  and  had  never  committed  any  act  which   was manifestly prejudicial to the maintenance of public order or communal harmony. He prayed that "under the circumstances, I am to request you to kindly produce. me before the  Advisory Board  and release me."  At that stage it was impossible  to produce  him before the Advisory Board.  The Advisory  Board had   already   dealt   with  the   matter.    Under   these circumstances  we  are unable to say that there has  been  a breach  of  section 7.  We trust that the  State  Government will  now  immediately  deal  with   the  representation  or representations and pass a suitable order.     It  will be convenient to deal with the points 2  and  3 mentioned  above  together.   It is true, as  urged  by  the learned  counsel  for the petitioner, that  this  Court  has consistently  held  that  the grounds must have relevance to the  maintenance of public order, and that they  should  not relate merely to the  maintenance  of 766 order.   It  is true, as laid down by this Court,  that  the contravention of any law always affects order but before  it can  be  said  to affect public order  it  must  affect  the community or the public at large.  As Ramaswami, J., put  it in Pushkar Mukherjee & Ors. v. The State of West  Bengal(1), "in  this  connection  we must draw a  line  of  demarcation between  serious  and  aggravated forms  of  disorder  which directly  affect  the  community  or  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."   The  question  which  arises  is  this:  do  the   grounds

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reproduced above relate merely to maintenance of order or do they relate to the maintenance of public order ?  It will be noticed  that  the detenu in each of these cases acted along with associates who were armed with lathis, iron rods,  acid bulbs  etc.   It  is clearly said in ground No.  1  that  he committed a riot and indiscriminately used acid bulbs,  iron rods,  lathis  etc. endangering human  lives.   This  ground cannot  be said to have reference merely to  maintenance  of order  because  it affects the locality  and  everybody  who lives  in   the locality.  Similarly, in the second  ground, he alongwith his associates prevented the police  constables from  discharging  their  lawful duties  and  thus  affected everybody living in the locality. In  ground No. 3, again the whole locality was in danger  as the detenu and his associates were armed with deadly weapons and these were in fact used for indiscriminately endangering human lives in the locality.  The object of the detenu seems to  have been to terrorise the locality and bring the  whole machinery of law and order to a halt.  We are unable to  say that  the Commissioner of Police could not in view of  these grounds  come to the conclusion that the detenu  was  likely to.  act  in  a manner prejudicial to   the  maintenance  of public  order in the future and it was necessary to  prevent him  from doing so.  The fact that public order is  affected by  an act which was also an offence under the Indian  Penal Code seems to us to be irrelevant. In the result the petition fails and is dismissed. G.C.                           Petition dismissed. (1) [1969] 2 S.C.R. 635. 767