ABDUL AZIZ versus THE DISTT. MAGISTRATE BURDWAN & ANR.

ABDUL AZIZ

THE DISTI. MAGISTRATE BURDWAN & ORS. October 11, 1972

IJ, M. SllEL!•r, Y. V. CHANDRACHUD AND I. D. DUA, JJ.]

Maintenance of Internal Security Act, 26 of 1971-Murd,•r; alleged to he committed by petitioner whether have impact on 'public order' as such-Validity of order of detention passed during pendency of prosecu-tion for sanie incidents in respect of which detention order passed-Effect of delay ln consideration of representation of detenu by Stale Government-Par/i<:.ment whether competent to confer power ·an appropriate Governrnent to ;,ass ortier of 'd£'fention for maintenance of 'public order'.

The petitioner was <letain.cd under the Maintcnano-.:! of Internal Secu-rity Act, 1971 by an order of the District Magistrate Burdwan, West Bengal. He c.hallenged the order of detention 'in writ pditio,n under Art. 32 of the Constitution. The conrentions urged in support of the petition wero: (i) that the two incidents of murder mentioned in the grounds of .Ucte;ntion wcr··c germane to law and ordzr but could have no in1pact on 'public order' as such; (ii) that the order of detention was passed <luting the pendcncy of prosecution launched against the petitioner for the very same incidents tn regard to which the order of detention had been passed; (iii) that. there \Vas unreasonable delay in co.rrsider'ing the petitioner's J"e-presentation hy the State Government; and (iv) that it was 110t open to the Parliament especially in view of the long title to the Act, to confer power on the appropriate Government to pass orders of detentio,n for the maintenance of p~1bliC: order, as "internal secur'ity" cannot CJmpreliend public order.

HELD : ( i) The murders were stated to have been committod by the pctitiOncr and hh associates with the definite object of promoting the cause of the party to which they belonged. These, therefore, were :not stray or simple cases of murd[1]~r. Such incidents have serious rcpcrcu~.~ions ·not merely on lc..w and order bc1t on public order. [648A]

(ii) It has .been held by this Court that the mere circumstance that· detention order is passed d,uri:ig the pendency of prosecution will not vitiate the order. In conccivahlc case:, it may become necessary to pass ar. order of d~tcntion in ttnticipation of nn order of discharge {l:' acquit-tal. f648E]

W.P. No. 112 of J 972, decided on 17th August 1972, refcrr-<d to.

(iii) The petitioner's representation \.\'as l'~Ceived by the Government on 13th January 1972 a:n<l was rejected on 22nd February 1972. Appa-renlly therefore there was delay in considering the representation. The affidavit on behalf of the State Government however showed that the repre-sentation c:oul<l not he considered earlier because although the war with Pakistan had •onded, its after-effects were still looming large ~~ West Bengal and the officers of the State Government had to take appropriate steps for the return of the refuge.cs who had taken shelter 'in "·est Bengal .. The delay, thus, was satisfactorily explained. [648F]

(iv) Under Entry 3 of List JIJ of the Seventh Schedule to the Consti-tution, Parliament has t' !e power to legislate o.n "Preventive detention for reasons conn.cetcd with the security of State, the maintenance of supplies and services essential to the community." Section 3(\)(a)(ii) of the Act

confers pov•cr on the Central Government to ·.pass orders of det~ntion with view to preventing any person from acting in any manner prejudicial to the security of the State or the maintena11Cc of public order. This power ca.nnot be controlled by anything stated in tht: long title of th.e ~ct. Beside; the Jong title &'8eribes the Act as one for providing for detenuon for the purpose of maintenance of internal security and "matters connect-ed therewith." "I:rrternal Security" is an expression of width sufficient to comprehend the concept of public order. Internal disturbances can threat-en the security of the State and such disturbances ma~· assume grave pro· portion so "" to pave direct impact on public vrder. [649B]

ORIGINAL JURISDICTION : Writ Petition No. 276 of 1972.

Under Article 32 of the Constitution of India for hsuc of writ in the nature of habeas corpus. R. P. Kathuria, for the petitioner.

R. P. Kathuria, for the petitioner.

G. S. Cha::erjee, for the respondents.

The Judgment o.f the Court was delivered by

CHANDRACHUD, J.-This is petition under Article 32 of the Co.nstitution for the issue of writ - of habeas corpus for the release of the petitioner.

On 16th November, 1971 the District Magistrate Burdwan,

West Bengal, passed an order under the Maintenance of Internal Security Act, 26 of 1971, that the petitioner be detained "with view to preventing him from acting in any manner prejudicial to the maintenance of public order". The petitioner was arrested on 17th December 1971 and on the same date the grounds of deten-tion were served on him. The petitioner's case was placed before the Advisory Board on 7th January 1972, his representation was re-ceived by the Government on 13~ January 1972 and was rejected on 22nd February, 1972.

Ywo grounds were furnished to the petitioner in Justification of the order of detention. It was stated firstly, that the petitioner and his associates were members of an extremist party (CPI-ML), that on 16th August 1971, they armed themselves \\ith lethal weapons like firearms, choppers and daggers with view ~o pro-moting the cause of their party, 'that they raided the house of one Durgapada Rudra and murdered him and that the aforesaid inci-G dents created general sense. of insecurity, as result of which the residents of the locality could not follow their normal avocations for considerable period. The second ground of detention is that on 22nd May, 1971 the petitioner and his "associates raided the house of Smt. Kshetromoni Choudhury "and murdered one Umapada Mallick who was staring in that house. This incident is also stated to have created general sense of insecurity amongst the residents of the locality.

Learned counsel appearing in suoport of the petition contends that these two incidents are but simple cases of murder, gennane

to law and order, but which could have no impact on "public order" as such. short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged. These, therefore, are not stray e>r simple cases of murder as contended by the learned counsel. Such incidents have serious re~cussions not merelly on law and order but on public order. We may mention that similar contention was rejected by this Court in Writ Petition No. 190 (If 1972 decided on 31st July 1972.It is then contended that the order of detention was passed during the pendency of prosecution launched against the peti-tioner for the very same incidents in regard to which the order of detention has been passed and thereby the order is vitiated. One of the two incidents is leged to have taken place on 16th August I 971 and immediately thereafter the petitioner was arrest-ed. He was produced before the Judicial Magistrate, Kaina on 10th September 1971 who enlarged him on bail on 6th October 1971. The petitioner was eventually discharged by the learned Magistrate on 16th December 1971, but in the meanwhile, the order of detention was passed on 16th November 1971 anc! the petitioner was arrested in pursuance of that order on 17th Decem-ber 1971. In regard to this contention it may be sufficient to draw attention to the decision of this Court in Wri~ Petition No. 112 of 1972 decided on 17th August 1972. It W?.S held therein that the mere circumstance that detention order is passed during th.: pendency of prosecution will not vitiate the order. In con-ceivable cases it may become necessary to pass an order of deten-tion in anticipation of an order of discharge or acquittal.

The next challenge to the or~er of detention is that the delay of .about 40 days caused in considering the representation made by the petitioner is fatal to the order. The petitioner's represen-tation was received by the Governreent on 13Th January 1972 and was rejected on 22nd February 1972. Apparently therefore there was delay in considering the representation but, the affidavit .of the Deputy Secretary Horne (Special) Department, Government of West Bengal, shows that the representation could not be consi-dered earlier because although the war with Pakistan had end~. its after-effects were still looming large in West Bengal and the officers of the State Government had to take appropriate steps for the retam of the refugees who had taken shelter in West Bengal. The delay, thus, is satisfactorily explained.

The last contention advanced on behalf of the petitioner is that the Mainten~nce of Internal Security Act, 197 i having been passed for the maintenance of internal security; it was not open to the Parliament to confer power on the appropriate Government

ABDUL AZIZ V. DIST. MAGISTRATE BURDWAN ( Chandrachud, J.)

to pass orders of detention for the maintanance of public order,. as "internal security" cannot comprehend "public order". Lean_ied. counsel draws support to his argument, partly from the long title· to the Act, which describes it as "an Act to provide for detc'!tion: in certain cases for the purpose of maintenance of internal security and matters connected therewith". We see no merit in this con-· tention. In the first place, under Entry 3 of Lis(Jil of the Seventh: Schedule to the Constitution, Parliament has the power to legislate on "Preventive detention for reasons connected with tbe security of .State, the maintenance of public order, or the maintenance of supplies and services essential to the community". Section 3 (1) (a) (ii) of the Act COl).fers power on the Centr~l Government and' the State Government to pass orders of detention with view to• preventing any person from acting in any manner prejudicial to the. security of the State or the maintenance of public order. This power cannot be controlled by anything stated in the long title of the Act. Besides, the long title describes the Act as one for providing for detention for the purpose of maintenance of inl.:rnal security and "matters connected therewith". _ "Internal' Security" is an expression of width sufficient to comprehend the· conoept of public order. Internal disturbances can tbreaten _the· seeurity of the State and such disturbances may assume grave pro--portions so as to have direct impact on public order.

In the result the petition fails and is dismissed.

Petition dismissed.