JOHN MARTIN versus THE STATE OF WEST BENGAL

BHAGWATI, J.-The petitioner in this petition seeks a writ of habeas corpus challenging the validity of his detention under an order made by the District Magistrate, Burd wan under sub-section ( 1) read with sub-section (2) of section 3 of the Maintenance of ID.ternal Security Act, 1971. The order of dc:tention was made on 10th July, 1973 on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial t.o the maintenance of supplies and services essential to the community. Pursuant to the order of detention the petitioner was arrested on 24th August, 1973 and immediately on his arrest he was served with the grounds of detention. There were two incidents referred to in the grounds of detention as forming the basis for arriving at the subj1ective satisfaction on the part of the District Magistrate and they were as follows :

p. 212, margin D

"l. On 23.1.73 at about 03.00 hrs. you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S Hirapur, Distt. Burdwan, and others committed theft in respect of two spans of electric. line, 240 feet in length from pole No. 7 to 9 in Street No. 23 of Chittaranjan· township, P. S. Chittaranjan, Dist. Burdwan and thereby clamped down: darkness over the entire area causing inconvenience and hard-· ship to the people in general living in that area, which is prejudicial to the maintenance of supplies and services essential to the community.

p. 212, margin F

2. On 22-2-73 at about 04.00 hrs. you along with your associates (i) Michael Antony, of M. Danial @ Ram Murti of. Purnlatalao, P. S. Hiraour, Dist. Burdwan, (ii) Dhiran Antony, son of Michael Pitter of Purniatalao, P.S Hirapur, Distt. Burdwan and others committed.

p. 212, margin G

theft in respect of 2 electric conductors, 200 feet long from pole Nos. 1 and 2 at Cross Road No. 3, Sunset avenue, Chittaranjan township, P. S. Chittaranjan, Dist. Burdwan and thereby clamped down darkness in the entire area causing much inconvenience and hardship to the people in general living in that area, which is prejudicial to the maintenance of

p. 213, margin A

supplies and services essential to the community." Meanwhile the District Magistrate reported the fact of the making the order of detention to the State Government and the order of detention was then approved by the State Government by an order dated 21st July, 1973. The State Government also reported the fact approval of the order of detention to the Central Government within seven days from the date of the order of approval. The State Govern~ ment thereafter placed the case of the petitioner before the Advisory Board on 20th September, 1973. On 25th September, 1973 the n.:pre- ~cntation of the petitioner against the order of detention was received by the State ·Government and after due and proper consideration State Government rejected it by an order dated 29th September, 1973. The representation was then forwarded by the State Government the Advisory Board and the Advisory Board, after considering case of the petitioner and taking into account the. representation received from him, made a report to the State Government on 23rd October, 1973 statipg that in its opinion there was sufficient cause the detention of the petitioner. The State Government thereafter confirmed the order of detention by an urder dated 1st November, 1973.

p. 213, margin A

There were several contentions urged by Mr. R. K. Jain, learned Advocate appearing on behalf of the petitioner amicus curiaes against the validity of the order of detention and we shall deal with them the order in which they were urged. But l>efdre we do so, we may point out that there was one contention sought to. be raised by R. K. Jain on behalf of the petitioner which we did not allow to urged. That was that the power conferred by section 13 of the Act detain a person for a period of twelve months or until the cessation of the emergency whichever is longer was violative of article 19 of Constitution and, in any event, the continuance of the emergency mala fide and the period of twelve months having eiapsed from date of detention, the petitioner was entitled to be set free. We did permit Mr. R. K. Jain to raise this contention on hchalf of the petitioner inasmuch as it involved a question as to the validity of a provision of the Act and the legality of the continuance of the emergency and this question. could not be properly determined unless there an adequate plea to that effect and the Central Government had opportunity of meeting such ple_a by filing an affidavit and notice also given to the Attorney General to enable him to make his submission on this question. We would. therefore. confine ourselves only the other contentions raised by Mr. R. K. Jain on behalf of the petitioner.

p. 213, margin C

The first contention urged by Mr. R. K. Jain on behalf of the petic ticner was that the representation of the petitioner ought to 11ave been considered by impartial tribunal constituted by the State Government and it was not sufficient compliance with the requirement art. 22, clause ( 5) that it should have been c<,msidered Goverhment. This contention was sought to be rence to certain observations of Faz! Ali, J., and Mahajan, Gopalan v. State of Madras.( Now it is true that observed in this case that "the right to make a representation been granted under the Constitution must carry with representation being properly considered by an impartial persons-the constitution of an Advisory Board reporting whether a person should be detained for months or not is a very different thing from constituting the purpose of reporting whether a man s~ould single day", and Mahajan, J., also ~aid : "the right to enable a detained person to prove his innocence justice, and no justice. can be said to be secured unless tirm is considered by some impartial person-it follows ca!l be held secured to him unless an unbiased person merits of his representation and gives his opinion innocence of the person detained. In my opinion defeated or made elusive by presuming that the itself will consider the representation 'Yith an unbiased render justice. That would in a way make the prooccutor the case and such a procedur~ is repugnant to all But we do not think that thes·~ observations made learned Judges can be regarded as laying down the Since A. K. Gopalan's case(I) there has been a long of t,his Court where th~ view has consistently been presentation of the detenu must be considered by ment. Article22, clause (5) provides inter alia that ing the ord·::r of detention shall afford the detenu the nity of making a representation against the order of not say as to which is the authority to which the b~ µmde or which authority shall consider it. But section (1) of the Act lays down in the clearest terms which doubt that the opportunity which is to be afforded mnke a representation against the cirder of detention Government. Therefore, it is indisputable on a plain 8, sub·section ( l) that the representation that may pctenu is to the appropriate Government and it is Governm~nt which has to consider the representation. speaking through Ray, J., (as he then was), affirmed Jayanarayan Sukul v. State of West Benga/( and pointed out alia that "the appropriate Government is to exercise judgment on the representation before sending the the d_etenu's representation to the Advisory Board". Haradhan Saha v. State of West Benga/( this through Ray, CJ., observed that "there is an obligation to consider the representation-section 8 of the Act obligation on the State to consider the representation (I) (3) W.P. 1973. dee. 1974.

pp. 213–214, margin H

v. detenu all the rights which are guaranteed Government considers the representation · whether the order is in conformity with the order of the Government rejecting must be after proper consideration". the decisions in Jayanarayan Sukul's (supra) were decisions rendered by a therefore, hold that under section 8 ( private Government that is required

p. 215

detenu. This, however, does not ernment can reject the representation mechanical manner. The appropriate on the consideration of the representation should be, as pointed out by this Court "a real and proper consider:ition" of priate Government. We cannot over-emphasis·e sest and most zealous scrutiny of the deciding whether the det·ention of the

p. 215, margin B

It was the~ ~ontendcd on behalf passed by the State Government rejecting detenu should be a reasoner! order and order of the State Government did not ing the representation of the petitioner, .was invalid. The argument of the petitioner were given bv the State Government. there .was real and proper consideration detenu. This contention, attractive though opinion, not welJ founded. It stands Haradhan Saha's case (supra) to which pointed out in that case by Ray, CJ., "There need not be a spe,aking order. bv the order not being a speaking order. should be a real and proper consideration observations must give a quietus to the State Government must be a reasoned Nath Mate v. State of West Be11C!al(1) on behalf of a Division Bench of this be self-evident from the order that the essential answers in the representation sidered". but if we r·ead the judgment doubt that these observations were .not requirement that the order of the State ing order but they were intended to Governm~nt that it would be eminentlv that "the substance of the charec and representation" had been impartially in fact started the discussion of this ·persuaded that a speaking order should or by the Advisory Board while aoproving detention". In any event, the decision ---------~ --- ~06. being a decision rendered by a Bench of five Judges must prevail with us. We, therefore, reject the present contention of the petitioner.

pp. 215–216, margin C

The next contention urged on behalf of the petitioner was that it was obvious from the order of detention that the District Magistrate had made the order of detention in a mechanical fashion without applying his mind to the facts of the case relating to the petitioner. We do not think there is any substance in this contention. The order of detiention is in proper form and it does not betray any lack of application of mind on the part of the District Magistrate.

p. 216, margin A

Then Mr. R. K. Jain on behalf of the petitioner contended that the power of preventive detention conferred on the District Magistrate uuder section 3 of the Act was violative of Art. 19 of the Constitution inasmuch as the District Magistrate was hardly an officer of such high and respon;ible status as could be entrusted with the exercise of such drastic power subversive of personal liberty. This contention is also futile and must be rejected. It is not possible to say that the District Magistrate is not an officer of sufficiently high status or responsibility to be untrusted with the exercise of the power of preventive detention. The District Magistrate is .the head of the administration of the District and is in charge of maintenance not only of law and order but also of public or~er as also s.!Tlooth flow of supplies and services essential to th1~ com· munity within his district and no fault can, therefore, be found with the legislature for entrusting the exercise of the power of preventive detention to him in cases where it is necessary to exercise such power for the purpose of maintenance of the security of the State or public order or supplies and servic> essential to the community. · Moreover, the exercise of such power by the District Magistrate is made subj<:ct to the supervisory control and check of the State Government by the provision that the order of detention must be approved l~y the: State Government within a period of twelve days from the making of the: order of detention. The conferment of such power on the District Magistrate cannot in the circumstances be regarded as an unreasonable restriction on the right of personal liberty of a critizen under Art. 19.

p. 216, margin B

The next contention urged on behalf of the petitioner was that the order of det1~ntion was invalid since the District Magistrate had not stated in the 01tler that the petitioner would be likely to indulge in preiudicial acts in future and hence it was necessary to detain him. A mere reading of the order of iietention is sufficient to repel this contention. The order of detention starts with the rectal that the Dis· tric~ Magistrate was satisfied with respect to the petitioner that "with a v.1ew to prnventing ~im from acting in any manner prejudicial to the mamtenance of suoohes and services essential to the commun'itv" it w~s nece~sarv to detain. him. This recital clearly shows that th~ Dis- ~nct M ag1strate was satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services esse~tial to the con:munitv and that was the reason why the Distric;t Magistr.ate t~ought 1t necessary to detain the petitioner with a view to preventmg him from acting in such manner. The satisfaction of the A District Magistrate as regards the necessity for detention of the petitioner was grounded on a reasonable prognosis. 9f the future behaviour of tne petitioner based on his past conduct, namely, participation in the two incidents set out in the grounds of detention, judged in the light of the surrounding circumstances. The District Magistrate in fact stated in paragraph 4 of the affidavit in reply filed by him that he w~s satisfied

pp. 216–217, margin E

that "if. the detenu-petitioner was not detained under the said Act he was likely to act further .in a manner prejudicial to the maintenance of supplies and services essential to the community. The acts committed by detenu showed a course ot conduct which satisfied me that it was necessary to make the said order of detention".. This contention must also, therefore, fail.

p. 217

Mr. R. K. Jain ori behalf of the petitioner then urged that there was nothing to show that the Central Government had applied its mind to the case of the petitioner on receipt of the papers from the State: Government. But this contention is also futile. It is clear from the affidavit in reply filed by tb,ll District Magistrate that the fact of the approval of the order of detention by the State Government was communicated to the Central Government along with the grounds of detention and such other p!J,rticulars as in the opinion of the State Governmem had a bearing on the necessity or an order of detention., Plainly, this was in compliance with the requirement of section 3, sub-section ( 4). Section 14, sub-section ( 1) undoubtedly conferred power on the Central Government to revoke or modify an order of detention but merely because the Central Government did not do so,

p. 217, margin B

it does not mean that the Central Government did not apply its mind to the case of the petitioner forwarded to it by .the State Government There is riothing to show that the_ Central Government did not consider the case of the petitioner or apply its mind to the grounds of detention and other particulars received by it from the State Government. The Central Government not being a party to the petition, it could not have an opportunity of stating whether it appl;ed its mind to the case of the

p. 217, margin C

petitioner for the Purpose uf .<lecidinl); whether or not to intervene by revoking or modifying the order of detention.

p. 217, margin E

It was also urged by Mr. R. K. Jain ori behalf of the petitioner that there was some other material before the District Magistrate besides the two incitients referred to in the grounds of detention and since this material was not disclosed to the petitioner, he was deprived of an opportunity of making effective representation and that vitiated the order of detention. Now. Mr. G. S. Chatterjee, lerrrned counsel appearing on behalf of the State, produced before us the history sheet of the petitioner which was placed before the District Magistrate and which, we can legimately assume, must have weighed with the District Magistrate in inducing the requisite subiective satisfaction. This historY-sheet showeld that besides the two incidents set out in the

p. 217, margin F

grounds of detention, there was no other material which could have possibly weighed with the District Magistrate in . reaching his subjeC·· tive satisfaction. Of course there was material of a general nature about the antecedents of the petitioner but that could not possibly have had anv impact in the process of reaching subJective satisfaction and we would therefore, be justified in accepting the statement of the District Magistrate in his affidavit in reply that the two incidents set out in the grounds of detention were the only material on which he based his subjective satisfaction for the J:>urpose of making the order of detention. We accordingly reject this contention.

pp. 217–218, margin F

The last contention urged by Mr. R K. Jain on behalf of the: petitioner was that the order of detention was made by the District Magistrate in colourable exercise of power, since no charge-sheets were filed against the petitioner in the court of the magistrate in resp1~ct of the two incidents set out in the grounds ot detention and the crimin.al cases registered with Chitaranjan Police Station were dropped by filing final Report as true, briefly described as F.R.T. To understand this contention it is necessary to state a few facts which may be gathered from the affidavit in reply filed by the District Magistrate. The first iucident took place on 23rd January, 1973 and in respect of it, a criminal c case was registered with Chittaranjan Police Station on 12th February, 1973. Similarly, in respect of the second incident, which took place on 22nd February, 1973, a criminal case was registered with Chittaranjan Police Station on 2nd March, 1973. Both these criminal cases were tiled in the court of Sub-Divisional Juliicial Magistrate, Asansole. The name of the petitioner was not mentioned in the First Information Report in either of thesio two cases but his participation in the two incidents was revealed in the course of investigation. The petitioner was arrested on 1st March, 1973 in connection with some other case and he was shown as arrested in connection with these two cases since they were pending against him. The petitioner was thereafter released on bail though we do not know the precise date on which such release was effected. It appears that no charge-sheet was filed in both these cases and these cases were droppetl by filing F.R.T. The affidavit in reply does not state as to what was the reason for which F.R.T. was filed and these cases were dropped but taking the case of the State at its worst. we may presume that this was_ done as the police c:ould not procure evidence to sustain the conviction of the petitione1:. The petitioner was discharged from these cases on 6th June. 1973 an-\ from, the other case nlso he was discharged on 14th June, 1973. The

p. 218

of drt~ntion wa~ thereafter made on 10th July. 1973 but the petitioner was abscondinJt and he could not, therefore, be arriested until 2·1th Au1zust, 1973. On these facts it is difficult to see how it can be contended that the order of detention was passed by the Dis~ trict Magistrate: mala fide or in colourable exercise of his power. It is now well settkd by several decisions of ·-this Court that the mere fact that a criminal case had to be dropoeld against a detenu because: the G investigatfon could not procure evidence to smtain his convktiorr would not be sufficient to hold that the detention order made against him is mala fide. We mav refer onlv to one of these decisions. narnelv, B. C. Biswas v. State of West Ben!!C'/.(I) There, the grounds on which the order of detention was ba~ed rl'ferred to two inci<ll'nts in which the detenu and his ass<'ciates were-alleged to have participated. Reports were lodged with the police against the detenu in resoect of the two incidents mentioned in th~ grounds of detention. The investigating s. c. c. officer after investigating the cases relating to those incidents submitc ted a ~·eport that "nothmg could be had against the peuuoner". The. detenu was, therefore, discharged in those cases. he argument urged on behalf of the detenu was that in the circumstances the order of detention should be held to ·be. mala fide. This argument was rejected by a Division Bench in !he fo1lo~ing words :

pp. 218–219

.. In our opinion, even if it may be assumed that cases were registered against the petitioner by the police in respect of the two incidents mentioned in the grounds of detention aml the police as a res\tlt of the investigation could not procure evidence to sustain the, conviction of the petitioner, that fact would not be sufficient to hold that the detention order m~de against the petitioner was mala fide. The matter is indeed concluded bv a decision of this Court in the case. of Sahib Singh DugaJ, v. Union of India.P) The petitioner in that case was arreste(l on December 6, 1964, for offence under the Official Secrets Act. On March 11, 1965, the Investigating Officer made a report to the Court to the effect that the petitioner and others involved- in that criminal case might be discharged as sufficient evidence for their conviction. could not be discovered during the investigation. The Magistrate consequently discharged the petitioner and others. Immediately after the petitioner came out of the Jail, he was servet:l with an order for his ·detention under Rule

p. 219, margin A

1) (b) of the Defence of India Rules. One of the con- . tentions which was advanced on behalf of the petitioner In petition under Article 3 2 of the Constitution was that the detention order was mala fide .inasmuch as it had been made after the authorities had decided to drop criminal proceedings because of inability to get sufficient evidence to secure conviction. This contention was repelted by this Court and it was held that th!;' above circumstance was not sufficient t~ lead to th~ inference that. the action of the detaining authont.y was mala fide. This Court observed :

p. 219, margin D

"We cani10t infer merely from the f'act thnt the authorities decilded to drop the case under the Official Secrets Act and thereaf.ter to order the detention of the petitioners under the Rules that the order of detention was niala ftde."

p. 219, margin F

Jn view of the above, we hold that the order for the detention of the petitioner h~s not been shown to be mala fide."

p. 219, margin F

We must for the same reason's hold that the order of detentk made by the District Magistrate in the present case does not guff from the vice of .mala fidp or colourable exercise of power.

p. 219, margin G

These were the only contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and the rule·

p. 219, margin G

discharge(}. P.B.R. Petition dismissed; ------ ---

p. 219, margin H