JOYDEB GORAI versus STATE OF WEST BENGAL

JOYDEB GOKAI

STATE OF WEST BENGAL

July 24, 1972

(J. M, SHELAT, I. D. DUA AND H. R. KHANNA, JJ.]

West Bengal (Prev.enti'.on of Violent Activities) Act (19 of 1970), s.3(1) (2) (d) mtd (3)-Threct lo kill person and disturbing public order-if valid ground of detention-Period h~ithin which c·onfinnation of order of detention by State Govemmcnt should be passed.

Section 3(2) (d) of the West Bengal (Prevention of Violent Activities) Act, 1970, amongst other things, provides that the committing of any ot1ence punishable with imprisonment for term extending lo 7 years or more, where the commission of such offence disturbs or is likely to disturb public order would be within the definition of the expmsion "acting in any manner prejudicial to the maintenancb of public l'lrder".

In pursuance of un order under s. 3 (I) and ( 3) of the Act, the petitioner '"as arreste<,I on August 6, 1971, wi:h view to preventin1. him tr.1m acting in any manner prejudicial to the maintenance of public ordrr. One of the grounds furnished to him was that he threatened to kill person on account of his refusal to rub out the anti-naxalite slogan.• ~·r.i.tten on the wall of his house, that the threat terrorised the oommon public and as such they could not pur" ue their normal avocations, and thal he disturbed public order. The State Government donfirmed tee order on October 28, 1971, after receipt pf the opinion of the Advisory lloard. (Dismissing the petition under Art. 32 Challenging the order o( tWention.

HELD : (1) Under s. 506 I.P.C., threat to commit an offence !)unish-ablc with death or imprisonment for life shall be punishable witt unprison-1nent of either description for term which may extend to 7 years. Hence the ground furnished was not extraneous or irrelevant since the petitioner had committed an offence enumerated in s. 3(2) (d) and there was di'-turbance of public order. [716A-Cl

(2) There was no delay in pas<ing the order of confirm1tion, aince it wao passed before the expiry of three months from .he date of <.ktention. [716H]

Deb Sadhan Ro,v v. West Bmgcl, [1972] l S.C.C. 308 and Ujjal Mandal v. West Bengal, [1972] I S.C.C. 456. followed,

ORIGINAL JURISDICTION : Writ Petition No. 39 of 1972.

Petition under Article 32 of the Constitution of India fo~ the enforcement of fundamental rights.

S. Lakshminarasu, for the petitioner.

G. L. !t{ukhoty and Sukumar Basu, for the respondent.

The Judgment of the Court was delivered by

Shelat, J. The District Magistrate, Burdwan, passed the order impugned in this petiti6n on July 14, 1971 directing the

petitioner's detention under sub-sec. ( 1) read witli sub-sec. (3) of sec. 3 of the West Bengal (Prevention of Violent Activities') Act, being President's Act XIX of 1970, on the ground that such detention was necessary "with view to preventing him from acting in any manner prejudicial to the maintenance of public order". In pursuance of the order the petitioner was arrested on August 6, 1971 when he was furnished, as required by the Act, the grounds of detention.

'There is no disput that >.onsequent upon the passing of th~ said order the Government of W.est Bengal and the other relevant authorities under the Act duly took all consequential steps, such a,, the reporting to and obtaining the Government's order of approval, reporting to the Central Govrrunent, disposal of the petitioner's representation, referring the. petitioner's case to the Advisory 1loard and obtaining its opinion etc., within the rea-pcctive times prescribed by the Act.·

Two grounds questioning the validity of the said order and the detention thereunder were, however, urged by Mr. Lakshmi-narasu, appearing for the petitioner amicus curiae. The first wa.• that the first ground in the grounds of detention was irrelevant and therefore vitiated the entire order. The second was that there was undue delay in the confirmation by the State Govern-ment of the detention ordoc and the continuance of detention thereunder after the expiry of three months of detention.

The first ground in the grounds of detention runs as follows :

"That on 7-2-71 at 13-30 hours you and your associates had been to the house of Shri Bibhuti Bhusan Ghosh of Ranchi Dhowrah, Police Station Kulti, and asked him to rub [out) the anti-naxalite slogans written on the wall of his house. Being refused you threatened to k'.11 him. Your such act terrorised the common pub-lic and as such they could not pursue the normal avoca-tions of life. Moreover, it disturbed public order."

The question is whether threat to kill the said Bibhuti BhWll.ll Ghosh amounted to '·acting in any manner prejudicial to-the maintenance of public order" as defined in sec. 3(2)(d) of the Act. Cl. ( d) amongst other thin~ provides that committing any offence punishable with death or imprisonment for life or imprisonment for term extending to seven years or more, where the commission of such offence disturbs or is likely to disturb public order, would fall within the said definition of the expres-~ion "acting in any manner prejudicial to the maintenance of public order". Sec. 506 of the Penal Code providi:s that threat to

cause death or grievous hurt or to cause an offence . punishable with death or imprisonment for life shall be punishable with im-prisonment of either description ·for term which may extend to seven years or with fin" or both. That being so, the offence said to have been committed by the petitioner clearly was one of the offences enumerated in cl. (d) of sec. 3(2) of the Act. Ground No. (1 ) further alleges that the threat to kill the said Ghosh administered to him on account of his refusal to rub out the anti-na.xalite slogans written on the wall of his hoµse "terror-ised the common p~ blic and as such they could not pursue the normal avocations of )ife" and furthennore, disturbed public order. This assertion, coupled with the satisfaction of the other requirement of cl. (d) of sec. 3(2), namely, 'the committal of the offence of threatening to kill, would bring the act 'in question within the expression "acting in any manner prejudicial to the maintenance of public· order" as defined in sec. 3 (2). It cannot, therefore, be argued that ground No. ( 1) was extraneous or irrelevant to the objects set out in sec. 3 of the Act ·and in res-pect of which valid order -,f detention could be made under the Act.The second· contention also is not such as can be sustained. There is no dispute that the petitioner was arrested on August 6, 1971 and the order of confirmation and the impugned detention thereunder beyond the period of three months was passed by the State Government on October 28, 1971, that is within three months from the date of his arrest. Counsel, however. argued that though the decision of this Court have laid doWll that such an order of confirmation has to be passed within three months from the date of arrest, the appropriate Government has to pass such an order as soon as possible and cannot delay in doing so until the expiry of three months. In Deb Sadhan Roy v. West Bengal (1), case under the President's Act XIX of 1970, this Court laid down that it was essential that the appropriate Govern-ment should take positive action on the report of !he Advisory Board, which action alone would determine whether the deten· tion was to be terminated or continued, that it would, therefore, prima facie, appear that that action should be taken ;immediately after the receipt of the opinion of the Board, or at any rate, within three months from the date person was detained, and that failure to confirm or extend the period within three months would result in the detention becoming illegal, the moment the three months period elapsed without any such confirmation This decision, thus, makes it clear that the legality of deten-tion _order or the detention thereunder would not be affected ii an order of confirmation is passed before the expiry of three

months from the date of detootion. Similarly, in Ujjal Mandal v. West Bengal('), Mathew, J., speaking for the Court, observed at page 459 of the report as follows :

"To put the matter in nut-shell : the State Gov-. emment has poweir under the Act to detain person without trial beyond period of three months, but limited' to period of on year. That power the State Government may exercise on receij>t of the opinion of the Board that there is sufficient cause for the detention. When the State Government receives that opinion, it has stil: the option to exercise the power and to con· tinue the detention beyond the period of three months or not. Confirmation is the exercise of the power to continue the detention after the expiry of three months. Unless that power is exercised within the period of three months from the date of detention, the detention after the expiry of that period would be without the authority of the law."

Therefore, if the order of confirmation has been passed, as it has been done in the present case, within three months' time from the date of arrest, neither the legality of the detention order nor the continued detention thereunder is affected.

Both the contentions raised by counsel thus having failed. the petition also must fail and is consequently dismissed.

Petition dismissed.