KHUDIRAM DAS versus THE STATE OF WEST BENGAL & ORS.

KHUDIRAM DAS

THE STATE OF WEST BENGA.L & ORS. November 26, 1974

[P. JAGANMOHAN REDDY, P. N. BHAGWATI, P. K. GOSWAMI AND R. S. SARKARXA, JJ.)

Constitution of 1ndia, 1950, ·Art. 22(5)-Scope of-Power of detention if should satisfy Art. 19(1).

Maintenance of ln(ernal Security Act, 1971, s. 3-Satisfaction of detaining authority, if subjective-Powe.r, if unreasonable-Right of Court ro exami11e record to see if detaining authority was influenced by material not disclosed to detenu-'Other particulars' meaning of-Duty lo disclose to detenu.

The petitioner was detained by an order of the District Magistrate under s. 3(1) and (2) of the Maintenanee of Internal Security Act, 1971. The grounds of detention slate<) that the petitioner was involved in 3 incidents of removal of transformers and !heft of c.opper wires. disrupting the supply of water and electricity and thus acted in manner prejudicial to the maint~nance of suppli~s and services essential to the community. The District Magistrate sent report to the State Government sending along with the report, petitioner. The 1 State Government after receiving the report" the history-sheet of the Adviso1ry of t11e Board confirmed the detention.

In petition under Art. 32, the petitioner challenged .his detention on the following grounds :-

(1) The 3 inddents of theft mentioned as. i:rounds of detention were n,~t . sufficient, objectively, to justify the District Mag1Strate's satisfaction that it w:as necessary to detain the petitioner; ·

(2) If the power to detain could be exercised on ti)e subjective satisfactinn of the detaining authority under the section, then it impo&~d unreasonable restrictions on the fundamental right of the petitioner under Art, 19(1);

(3) The history sheet of the petitioner was before the Dist. Magistrate, who, though he' stated that beyond the 3 incidents mentioned in the grounds he did not take any other material into account in passing the detentfon orde:r. must have been inlluen:ed bir the other material in the history sheet; and since that material was not disclosed to the petitioner, there was '!olaticin of Art. 22(S), a,nd ss. 3 and 8 of the Act. "and

(4) The history sheet of the petitioner was also.before the State Government when it approved the order of detention and the State Government must al110 have taken the material into account in confirming the detention order &Ild this was also contrary to the Constitutional mandate in Art. 22( S) and tlie legal mandate ir! ss. 3 and 8 of the J\,ct, to give him an opportunity to make an effective representation against his detention.

Dismissing tlje petition,

HELD : l(a) The Constitutional imperatives enacted in Art. 22(5) aro two fold : (i) the detaining authority mu~t. a~ soon as may be, that is, as soc•n as practicable after the detention. communicate to the detenu the ·grounds on whic:h the order has be,en made; and (ii) the deiaining authority must afford the detenu the earliest oppo,rtunity of making representation against the detention order. In the context, 'grounds' doe"S not merely mean recital or reproduction of ground of satisfaction of the authority in the hmguage of s. 3; nor is .its connoil"° tion restricted to bare statement of conclusion of fact. Nothln~s1 than all the basic focts alld materials which influenced the detaining autho ' in making the order of detention must be communicale<l. to the detenu; [83$ : 840C]

. (b) Th~ \11'.0rds ~sed i!t s. 3(1) and (2) are ~f ~tisfi~, amLtliey clearly import subiec!lve' satisfaction on .the part o.f the deteinlng,authorii~ .before an

order of detention can be made. The power of detention is preventive measu.re. Since every preventive measure is based on the principle that person should be prevented from doing something which, if left free and unfattered it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. This being the nature of the pro:eeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are. whetller the person concerned, having regard to his past conduct judged in the light of the surrounding circum1tances and other relevant material. would be likely to act in prejudicial manner as contemplated by the A:t. These are not matters susceptible of objective deter-mina.tion and they could not be intended to be judged by objective standards. It must therefore be held that the subjective s11tisfac:tion of the detaining au.thority constitutes the foundation for the exercise of the power of detention . and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satis~action is based. [842C-843A]

Go/am @ Go/am MaUick v. The State of West Bengal, W.P. No. 270 of 1974, dee. on 12th September, 1974, Dr. Ram Krishan Bhardwaj v. The State of Delhi & Ors., [1953) S.C.R. 708; Shamrao Vishnu Parulekar v. The District Magistrate, Thana, [19561 S.C.R, 644; State of Madras v. V. G. Row A.I.R. 1952 S.C. 591 followed.

(c,) In Bliut Nath Mate v. State of West Bengal AIR 1974 SC 806, this Court observed that the exercise of the power of detention 'implies quasi-D jud1cial approach'. This observation was not meant to convey that the power of detention is quasi-ju.dicial. It only intended to emphasise that the detaining authority must exercise due care and caution and act fairly and justly in . exercising the power of detention. [843C-DJ

2(a) But that does not mean that the subjective satisfaction is wholly immune from judidal .reviewability. Courts have, by judicial decisions, cairved out an area, limited though it be, within which the· validity of the subjective satisfaction can yet be subjected to judicial scrutiny. There are several' criteria evolved for examining whether the requisite satisfaction is arrived at by the authority and for saying that no subjective satisfaction is ·arrived at by the authority as required .under the statute. One such criteria is whether the grounds on which the authority ha~ rea1:hed its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. This Court Will not go into the adequacy or sufficiency of the grounds on which the order was based. but will merely examine whether on the grounds given, any reasonable authority ' could possibly come to the conclusion to which the District Magistrate did. This ground in sense, tends to blur the dividing line between subjective satisfaction and objective determination but the dividing line is there however faint or delicate it may be, and courts have never failed to recognise it. There-fore, there is nothing like unfettered discretion immune from judicial rcview-ability. [843D-F; 845B-G}

Emperor v. Shibnath Bannerji A.I.R. 1943 F.C. 92 Commissioner of Police v. Gordhandas Bhanji [1952) S.C.R. 135; Simas Motor Units Ltd, v. Minister of Labour and National Service [19641 2 All E.R. 201; Machindar v. King A.I.R. [1950] F.C. 129; Pratap Singh v. State of Pun;ab A.T.R. 1964 S.C. 72: Sharp v. Wakefield [1891] A.C. 173 at 179; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; Smith v. East El/or Rural District Council [1956] A.C .. 136;.Fawceit Properties Ltd. v. Buckingham County Council [1%1] A.C. 636; Ross v. Papadopo/Ios ( 1958) 1 W.L.R. 546 and Debu Maltto v. State of West Bengal A.I.R. 1974 S.C. 816 referred to.

(b) law of preventive detention which falls within Art. 22 must also meet the requirements of Arts. 14 and 19, but in Haradlw.n Salw. v. State of Wtst· Bengal [1975] 1 S.C.R, 778, this Court has held that the Act doos not violate any of the constitutional guarantees embodied in Art. 19 and is not invalid on that account. The petitioner cannot be permitted to reagitatc the same question

SVPREMB COURT REPORTS

merely on the s;round that some argument directed agajas its constitutional vlliC~ly under Art. 19 was not advanced or considered by the Court. [847B-DJ

A. K. Gopa/an v. State of Madras [1950} S.C.R. 530, Rustom Cavasjee Coof'lr v. Union of India [1970] 3 S.C.R. 530; andl Sam/Jhu Nath Sarkar v. State •I West Bengal [1973] 1 S.C.R. 856 followed.

3(a) It is the right and duty of the Court to examine what are the bask facts and materials whizb actually and in fact weighed with the detaining autho1ity in reaching the requisite satisfaction. The judicial S"11ltiny cannot be foreclosed by mere statement of the detaining authority that it has taken into acco1mt only certain basic facts and materials and '1,bougli other basic facts and material' were before it, it bas not allowed them to infiuen.::e its sa.:isfaction. The Court is entitled to examine the correctness of Olis state.men! and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably iofiuenced the decision of the detaining authority, and for that purpose, the court· can require the authority to produce the entire record of the case which was befo<e the authori:y. Tberefo1\!, in case where the material before the ,Dist. Magistrate, is of. character which could in all reasonable probability be likely to ioauenoe.lhc decisiao of reasonable person, the court will not accept the ipse: dixit of 1be Dist, Magistrate that be was not so influenced, and, fortiorarl. if such material was not disclosed to the detenu, his order of detention would• be vitiated both on the ground that all the basic facts and materials Which influenced '.jhe Dist. Magistrate w1rre not communicated to the deteuu as well 1:1 on the ground that the detenu vi·as denied an opportunity of making an effective representation. [848H-849:D: 150A·E]

Daktar Mudi v. State of West Bengal, AJ.R. 197.4 S.C. 2086 followed.

( b) In the pre-sent. case, the history sheet ·of the petitioner was before ~be Dist Magistrate and the material in the history sheet of the petitiol)er was not disclosed to him. But the material consisted of 2 circumstances; one, thai the petitioner had picked up the habit of committing thefts of copper wire and tile other, that there were thefts of transformers at varioUi places. The first was only geuerafoation based on the 3 incidents rtferred to in the g~ounds ,of detention and the second provid,ed the background of the social malady whic:h was excrdsing the mind of the authority charged with the administration ,of law and order. Therefore, there was no .material before the Dist. Magistrate, other than the '.l incidents set out in the grounds of detention which went into the formation of his subjective s~tisfaction. and wlii<:h ought therefore to have been communicatod to the petitioner. [8SOE-8S1CJ ·(4) (a) The requirement of ·approval of the State Government imposed by s. 3 ( 3) of the Act is intended tp act as dleck '9r the exercise of the pow1:r· of d~tention by the Dist. Magistrate. Therefore,· a11 the basic facts and materials; whizh weighed with the Dist. Magistrate m reaching his subjective satisfaction: must be placed before the State Governme111t, so that the State Government, can, as supervisory authority, decide whether the Dist. Magistrate has acted propei'ly. In addition to the basic facts and materials. which constitute <he grounds of detention, the Dist Magistrate i'S . also required to send ID the State Government under.s. 3(3) such other particulars as in bis opinion haVIng bearing on the matter. Obvious[1]y 'other particulars• c;ould be different from basic facts and materials and would not be material which has gon:e into the formation of the su.bjective· satisfaction, because, if they are of such nature as could reasonably be said to have influenced the Dist. Magistrate in arrivini at his satisfaction, they could be part of the 'llfOUllds of- detention• and not 'other particulars•. Though it is not possi'ble to categorise precisely what those 'other particulars' can be, they may inclnde particulan relating to the backgroun11 of the circumstances in which the Dist. Magistrate reached his satisfaction, or particulars found to be administrativelx. necessary· for· him to communicate tc> the State Govern.men!, so that its supervisDl'1/ fllnctioii may be efl'ectively dis·· charged. There is nothing in Art. 22(5) of tlJe"COnstlllllion or in any provision <>f the A::t which requires that these 'other partlCulars' eltould be communicabcl to the detenu. 1:851C·H]

(b)· Jn Hardhan Saha's case this Coun observed that the 'detenu has right te be apprised of all the materails on which an order of detention is passed or approved.' What the court had in mind was only materials which cvnstituted the grounds of detention and not the 'other particu·ars', because, (i) this Court · could not have intended that in addition to the grounds 'other pa:rticulars' should also be communicated when there is no requirement to that effect in Art. 22(5), and (ii) no such question arose for decision in that case and the court was not called upon to decide whether 'other particulars• communicated to the State Government under s. 3 ( 3) are required to be disclosed to the detenu. [8S2C-H]

( c) In the present case, the material from the history sheet which was not disclosed to the petitioner did not form part of the grounds of detention on which the order Df detention was made by the Dist. Magistrate and approved by the State Govt., but merely constitu.ted 'other partkulars' communicated by the Di~t. Magistrate to the State Government under s. 3 (3). There was therefore. no obligation on the Dist. Magistrate or the State Government to disclose the material to the petitioner, and the non-disclosure did not invalidate the approval by the Stale Government of the detention order. [8S2H-8S3B]

ORIGINAL JURISDICTION : Writ Petition No. 324 of 1974.

Petition under Article 12 of the Constitution of India.

R. K. Jain, for the petitioner.

D, N. Mukherjee, Sukurnar Basu and G. S. Chatterjee, for the res-D pondents.

The Judgment of the Court was delivered by

BHAGWATI, J. This is petition for writ of habeas corpus under article 32 of the Constitution challenging the validity of the detention of the petitioner under an. order of detention dated 3rd November, 1973 passed by the District ·Magistrate, Maida under sub-section ( 1) read with sub-section ( 2) of section 3 of the Maintenance of Internal Secu-rity Act, 1971. The questions raised in this petition. are of importance as they effect the fundamental right of personal .liberty which is one of the most cherished fundamental rights guaranteed by the Constitution. It is necessary to state the facts giving rise to this petition in so far as they are material to proper understanding of the important issues in· volved in this petition.

The District Magistrate, Maida passed an order of detention dated 3rd November, 1973 under sub-section ( 1) read with sub-section (2) of section 3 of the Act directing that the petitioner be detained on the ground that it was necessary so to do "with view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community". Within two days after the. making of tqe order of detention, that is on 5th November1 1973, the District Magistrate made report to the State Government and forward-ed to the State Govermpent1 along with his report, copies of the order of detention, the history-sheet of the petitioner document to whi<;h we shall have occasion to refer in some detail little later-and the grounds on which the order of detention was made. The State Government, presumably on consideration of the total material forwarded by the· District Magistrate, approved the order of detention on 12th Novem-ber, 1973 under sub-seqion (3) of section 3 of the Act. It appears that the petitioner could not be apprehended for some time and it was only on 25th December, 1973 that he was ultimately arrested pursuant to

the order of detention. Immediately on )lis arrest, the petitioner was served with copy of the grounds of detention as required by section. 8, sub-section ( 1) of the Act. The grounds of detentioa stated that the petitioner was being detained :

" ... on the grounds that you have been acting in manner prejudicial to the maintenance of supplies and services-es-sential to the community as evidenced , from the particulars given below:-

1. That on 22.4.73 at night at about 20.00 hrs. you along with your associates brake open an electrical tiansformer of STC clm1ter No. 8 at Uttar Laxmipur village, P. S. Kaliachak. At the time of oper,ation the guard detected it am;l challenged. You and your associates chased him with hasµas, iron rod etc. to assault, when the guard fled away to save his life. You and your aS1>ociates took away copper wire from transformer. At result tube wells of the cluster became inoperative. Thus you disrupted the supply of water in cultivation of paddy resulting, failure of crops.

2. That on 1.5.73 at ;ibout 23.00 hrs. you along with yoilr associates broke open the transfortner at village. Dariapur under Mauza Bedrabad, P.S. Kaliachak and took away the valuable portions and the copper wire of the transformer when the villagers protested, you and your associates threatened them with death. As such the villagers left the place out of fear. As result of such theft supply of ·!!lectricity was dis-rupted in the area.

3. That on 23-5-73 at 00.15 hrs. you along with your as-sociates Abdul Hamid son of Nur Md. of Uttar Laxmipur Dafadortola, Mehini Ranjan Das & Hittan s/o L. Arjeen Monda! of Uttar Laxmipur, Nafar Bhakattolal and two others removed the transformer from the electrical. part of village Natichapa Nayagram Deep tube well for the ·purpose of com-mitting theft of copper wire. When the same_ was brought down to the ground, 0. <!:. Kaliachak P. S, with other staff who were on ambush patrol caught held of you and two of your associates the spot. Thus yoi11 acted in manner preju-dicial to the maintenance of supplies and services-essential to the cdmmU:nity." ·The petitioner did not make his representation against the order of de-tention until the beginning of February 1974, but iq the mean time, in obedience .of section 10 of the Act, the case of the petitioner was plac-ed· by the State Government before the Advisory Board on 22nd Jan·11-;<Uy, 1974 and the grtiund of detention were also forwarded to the A11 ... visory Board iii order to enable it to· give its opinion. The representa- . tion of the petitfoner against the order of detention was in the meai11-while received by the State Government on Sth February, 1974. TI1e State Government considered the representation of the. petitioner and .rejected i~ on 7th. Feb";WY, 1974, but since the case of the petitioni~r was pendmg consideration by the Advisory Board, .the State GoWl'I!~ .ment forwardep it to the Advisory. Board for its consideration. Tbe

Advisory Board thereafter submitted its report to the State Government on 26th February, 1974 under section 11 of the Act stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government, on receipt of the report of the Advisory Board, pas-sed an order dated 5th March, 1974 confirming the detention of the petitioner under section 12, sub-section ( 1) of the Act, and this order of confirmation was served on the petitioner through the Superintendent , of Police, Murshidabad. It is this detention, originating in _the order of detention, approved by the State Government and continued under the order of confirmation passed by the State Government that is being chal- · lenged in the present petition.

The petition was presented by the petitioner from jail and since he was not represented by any counsel, this Court appointed Mr. R. K. Jain, amicus curiae to present the case on behalf of the petitioner. Mr. R. K. Jain on behalf of the petitioner urged the following grounds against the validity of the order of detention :-

(a) It is apparent from the grounds of detention furnished to the petitioner that there were only three incidents of theft on which the Disti:ict Magistrate relied for the purpose of coming to satisfaction that it was neces-sary to detain the petitioner with view to preventing him from acting in any manner prejudicial to the main-tenance of supplies and services essential to the com-munity. These three incidents were objectively not sufficient to justify such satisfaction and the order of detention based on such satisfaction was,· therefore, bad ..

(b) If the view be taken that the power to detain person could be exercised by the detaining authority merely on its subjective satisfaction which could not be tested · with reference to objective standards, section 3 of the Act, which empowered the detaining authority to exer-cise the power of detention on the b11.Sis of its subjec-F tive satisfaction, imposed unreasonable restrictions on the fundamentsl rights" of the petitioner under Art. 19 ( 1) and was, therefore, ultra vires that article.' ( c) The history-sheet of the petitioner was before the Dis-trict Magistrate when he made the order of detention and though the District Magistrate stated in his affi.-G davit in reply that beyond the three incidents mention-ed in the grounds of detention he did not take any other material in the history-sheet into account in pas-sing the order of detention, it was impossible to say that he was not influenced by spch other material and since no opportunity- was given to the petitioner to make an affective representation against such other material, the order of detention was in· contravention of Art. 22(5) of the Constitution and section 8, sub-section ( 1) of the Act and was on that account in-valid.

(d) The history-sheet of the petitioner which contained other relevant material in regar~ to the petitioner in addition to the three incidents referred to in the grounds of detention was before the State Government when it approved the order of detention and in the ab-sence of any ~,tatement to the contrary on behalf of the State Government in the affidavit in reply, it must be inferred that the State Government took such other material into account in approving the order of deten-tion. This was contrary to the constitutional man-date in Art. 22 ( 5) of the Constitution and the legal mandate in section 3 read with s. 8 of the Act and it vitiated the order of approval made by the State Gov-':rnment and n:ndered the detention of the petitioner illegal.

These were the main grounds of challenge urged by Mr. R. K. Jain on behalf of the petitioner. We shall proceed to examine them.

We will first consider the constitutional background against which 1the Act has been enacted and then refer to the material provisions of 1he Act. The relevant l!rticle of the Constitution having bearing on tbis ;question is article 22. This article has. been analysed in more cases than one by this Court and it is clear from the decided cases that this article providc:s various safeguards calculated to protect personal liberty .against arbitr11ry restraint without trial. These safeguards cannot be regarded as substantial. They are essential procedural in character a:11d their efficacy depends on the care and caution and the sense of respon-·sibility with whi~h they are regarded by the detaining authority. Two .of these safeguards, which relate to the observance of the principle of natural justice and which fortiorari are intended to act_ as check c>n ;arbitrary exercise of power, are to be found in Art. 22(5) of the Con-stitution. This provision of the Constitution introduces two procedural requirements embodying the rule of audi alteram paritem to limit<)(! but crucial and compulsive extent by providing that : "When any person is detained in pursuance of an order made under any law provid-F ing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the c>rder". The constitutional im-peratives enacted in this article are two-fold : ( 1) the detaining autho-rity must, as soon as may be, thar is, as soon as practicable after tbe ·detention, communicate to the detenu thf: grounds on which the order <lf detention bas been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be pennitteci to preventively detain person and thereby dro~n his right of personal liberty. in the name of public good and social security. But, what is the content of these safeguards ? What does the word 'grounds' mean ? Does it mean only the final conclusion reached by the detaining autho· rity on which 2~one the order of detention can be made, or does it include the basic facts and materials from which the conclusions justify ..

ing the order of detention are drawn by the detaining authority? What ·is the inter-relation between the requirements of the first and the second safeguards ? Is the efficac1 of the second safeguard violated by non-observance of the requirement of the first safeguard? If all the 'gruunds' which weighed with the detaining authority are not communicated to the detenu, does it constitute merely breach o'f the first safeguard or does it also involve the vk>lation of ·the second ?

. The answer to these questions does not present any serious diffi-culty if only we consider the reason why the grounds are required to be communicated to the detenu 'as soon as may be' after. the detention. Obviously the reason is two-fold. In the first place, the requirement of communication of grounds of detention acts as check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away person and put him behind bars al' its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only the detenu .may know what are the facts and materials before the detaining authority on the basis of which• he is being deprived of his personal liberty, but he can also invoke the power of judicial review, howsoever limited and _peri-pheral it may be. Secondly, the'detenu has to be afforded an oppor-D tunity of making representation against the order of detention. But if the grounds of detention are not communicated to him how can he make an effective representation ? The opportunity of making re-presentation would be rendered illusory. The communication of the grounds of detention is, therefore, also intended to subserve the purpose of. enabling the detenu to make an effective representation. If this be the true reason for providing that the grounds on which the order of detention is moade should be communicated to the detenu, it is obv\pus that the 'grounds' mean all the basic facts and materials which have been taken into. account by the detaining authority in makintj the order of detention and on which, therefore, the order of detention is based. To quote the words of one of us (Sarkaria, J.) in Golam @ Golam Mallii:k v. The State of We.11t Bengal('[1])" ••• • in the context. 'grounds' does not merely mean recital or reproduction of ground of satisfaction. of the authority . in the language of section 3 of the Act; nor is its connotation restricted to bare statement of conclu-sions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authorit)r is based. The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grqunds' within the contemplation of article 22(5) and section 8, and are required to be communicated to the .detenu unless their disclosure is considered by the authority to be against the public · interest." This has. always been the view consistently taken by this Court in series of decisions. It is not necessary to burden this judgment with citation of all these decisions. It would be sufficient if we quote the following observations of P'atanjali Sastri, C.J ., in Dr. Ram Krishan Bhardwaj v. The State of Delhi & Ors.(2) " .... the petitioner ha.s

(I) W. P. No. 270 of 1974. uecided on 12th September, 1974. (2) [1953) S.C.R. 708,

the right under article 22(5), as inte1preted by this .Court by major-ity, to be furnished with particulars of the grounds of his detention 'sufficient to' enable him to make representation which on being c:on-sidered may give relief to him'. We are of opinion that this constitu~ tional requirements must be satisfied with respect to each of the grounds communicated to the person detained." Venkatarama Ayyar, J., also pointed out in Shamrao Vishnu Parulekar v. The District Magistrate, Thana([1]) that consttuing the words 'grounds on which the order has been made' in their natural and ordiiµ1ry sense, "they would include any information or material on which the order was based. The Ox-ford Concise Dictionary gives the following meanings to the word 'ground' : 'Base, foundation, motive, valid reason'. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grou.nds therefor". (emphasis supplied). It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of det,entii>n must be communicated to the detenu. That is the plain requirement of the first safeguard! in article 22(5). The second safeguard in article 22.(5) 'requires 1that the detenu shall be afforded the earliest opportunity of making re-presentation against the order of detention. No avoidable delay, no shortfall in the materials communicated shall stand in the way of the detenu in making an early, yet comprehensive and effective, represen-tation in regard to all basic facts and material which may have influf:nc-ed the detaining authority in making the order of detention depriving him of . his freedom. These ar!! the legal bulwarks enacted by the constitution-makers against arbitrary or improper exercise of the vast powers of preventive detention which may be. vested in the executive. by law of preventive detention such as the .Maintenance of Internal Security Act, 1971.

We may now refer to the provisi011s of the Maintenance of Internal Securitiy Act, 197 l. Section 3, sub-st:ction ( 1) confers powers of pre-ventive detention on the Central and State Goverrun'ents in the follow-ing terms:

"The Central Government or the State Government may.~

(a) if satisfied with respect to any person (including foreign-er) that with view to preventing him from acting in any manner prejudicial to-

( i) the defence of India, the relation of India with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of"public order, or

(iii) the maintenance of supplies and services essential to the community, or (b)

it is necessary so to do, make order directing that such person be detained."

person be --------

(!) [1956] ~.C.R. 644.

Sub-section ( 2) of section 3 vests this power of preventive detention also· in District Magistrate by enacting that District Magistrate "may, if satisfied as provided in sub-clauses (ii) and (iii) of clause (a) of sub-'section (1), exercise the power conferred by the &aid sub-section". But when an order of detention is made by District .Magistrate, sub-section (.3) of section 3 requires that :

" .... he shall forthwith report the fact to the Statt; Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have 'a bearing on the matter, and no such order. shall remain in force for more than twelve days from the making thereof unless in the meantime it has been approved by the State Government."

' Section 4, 5, 6 and 7 are not material for the purpose of the present petition and we need not refer to them. Section 8 is important and it may be reproduced as follows-:

"(1) When person_.is detained in pursuance of

. detention order' the authority making the order shall, as soon as may be, but ordinarily not later than five days .and in exceptional circumstances and for reasons to be recorded in writing, not later ·than fifteen days, from the date of de-tention, communicate to him the grounds· on which the order )las been made and shall afford him the earliest opportunity of making representation agains_!: the order to the appro- · . priate Goveri1ment. _

, (.2) ~othing in sub-section (1) shall require th-e autho-rity to disclose facts which it considers to be· against the public interest to disClose." . ·

Section 9 provides for ·the constitution oi an Advisory Board and ·section 10 lays on obligation on the appropriate Government, in every case where an. order bf detention has been made, to place before the Advisory Board, within thirty days from the date ol' detention under the order, "the grounds on which the order_ has been made and. the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report by such officer under. sub-section ( 3) of section 3 ". The · Advisory Board is required by section 11, sub-section (1) to submit its report to the appropriate Government within ten week's from the date of detention after consiclering the materials· placed before it and after calling for such further information as it may deem necessary, and if, in any _particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in per-son. Where the Advisory Board reports that there is in its opimor no sufficient cause for the detentio"1 of the person concerned, the appropriate Government is obliged under section 12, sub-section (2) to r·:voke the order .of detention. If, on the other hand, the opinion of the Advisory B.oard is that there is sufficient cause for the deten. tfon, the appropriate Government may unde_r' section 12, sub-section (1) confirm the order of detention and continue the. detention or 7-1146 !'l1mCI/75 .

revoke the order of detention as it thinks fit on consideration of all the facts and circumstances which. are before it. These are the material provisions of the Ac·t which have bearing on the determi-nation of the question arising in thin petition.

Now it is clear on plain reading of the language of sub-sections ( 1) and (2) of section 3 that the exercise of the power of detention is made d.eJ>endent on the subjective satisfactiol} of the detaining authority that with view to preventing person from acting in prejudicial manner, as set out in sub-clauses (i), (ii) and (iii) of clause (a) of _sub-section (1), it is necessary to detain such person. The words .used in sub-sections ( 1) and (2) of section 3 are "if satisfied" and they clearly import subjective satisfaction on the part of the detaining authority before an order of detention can be ma.de. And it is so provided for valid reason w!llch becomes apparent if we consider the nature of the power of detention and ·the conditions on which it can be exercised. The power of detention is clearly preventive rrieasure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mis-chief to the community; Since every preventive measure is based on the principle that .person should be prevented 'from doing some-D thing which, if left free and unfettered, it is reasonably probable he would do, it niust necessarily procec~d in all cases, to some extent, on suspicion or ·anticipation as distinct from proof. It.itanjali. Sas.tri, C.J., poip.ted out in Sto.r~· of ~rµiras v. V. G. Row(') that preventive detention is "largely precautionary and based on suspicion" and to these ob,~rvations !llay be ad~~d the following worqs uttered by the ~earned Oiief Justice in ~t case with reference to the observatim1s oi Loid Finlay in Rex v. HQl/iday,([2]) nam.ely, that "the court was the least appropri~te tribunal to investigate into' circumstances of suspicion. on which such anncipiqory action must be largely based". This being the nature of t~ proceeding, it is. impossible to oonce1ve how it can possibly be regarded as capable. of objective assessment. The matters which have to ~ co~idered by the de~nii;ig authority are whether the person conc.erned, having regard to his past conduct judged in the light of the SIUTl>Ullding circumstances and othei: r~le­vant material,, would be li.kely to act in prejudicial, manner as cc:>n-templated in any of sub-clauses (i), (ii) and (iii)" of clalll!e ( !l) of sub-section ( 1) of section 3, ~ ~ so, whether it is necessary to detain him with view to preventing him from so acting. The&e are not matters i1usceptible of objective deterinination and· they c,ould not be intended to be judged by objective standards. They are eSS(~n­G tially matters which have to be administratively determined for llhe purpose of· taking administrative action. Their &termination ·is, therefore, deliberately and advisedly foft by the legislature to the sub-jective satisfaction of the detiiining · authority which by reason of itS special . position, experience and expertise would .be besi fitted ro decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as re~ds time matters cowiti-tutes the fmindation for' the exercise of the power of detentic:i Md (I) A.I.R. 1952 S.C. 597. (2)'[~917] J\C. tro

(2)'[~917] J\C. tro

the Court .cannot be invited to consider the propriety or sufficiency ~f .the. grounds on which the satisfaction of the detaining authority !S based. '.f!1e Court cannot, on review of the grounds, substitute Its own opm1on for t~at of the authority, for what is made condition preced~nt ~o the exemse of-the power of detention is not an objective deternunali<?P. ~f the. ~ecessity pf d~te.ntion. for specified purpose ?ut . the su?i~cliv~ opm1on of the detammg authority, and if . sub-1ect1ve. op1ruon is. formed by the detaining authority as regards tit.: necessity o~ detention for specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not quasi-judii/al p~wer. It was~ howpver, .sought to. be contended on behalf of the petitioner, r~lymg on the observation of this Court in Bhut Nath Mata v. The 5tate of West Bengal('.!) that the exercise of the power of detention "implies .~ 9ua:r~-judici<;il apprQach", that the power must be regarded as q~asi-1ud1cial. po~er. But we do not think it _would be right to read .this observalion In the manner contended on behalf of the peti-tioner. This observation .was not meant to convey that the power of detention ls- quasi-judicial power. The only thing which it in-tended to emphasise was that the detaining authority must exercise due cw:.e and <.;aution and act fairly and justly in exercising the power of detention.

B.ut that dQes not mean that the subjective" satisfaction of the

detaining authority is wholly immurie from judicial reviewability. The Courts have by judicial decisions carved out an area, li~ted though it be, within which the validity of the subjective satisfaction can yet be s~bjected to judicial scrutiny. The basic postulate on which the courts have proceeded is tliat the subjective satisfaction being con- · dition precendent fur the· exercise of the power conferred on the exe-cutive, the. court can always examine whether the requisite' satisfaction · is arrived at by the authority: if it is not, the condition precedent to · the exercise of the power would not be fulfilled and the exeicise of the power would .be bad. There are several grounds evolved by.judi-F cialdecisions for saying :that no subjective satisfaction is arrived at by the authoiicy as . required under the·' statute.. The simplest case is whether the authority has not applied its ·mind"at all; .in such case the authority could nof possibly be satisfied as regards'; the fact in respect of which it. is required to be satisfied. Emperor v. Shib· nath Bannerii(2) is case in point. Then there .. may be· case where the power is exereised dishonestly or for .an improper purpose : . : such case would also negative the existence of satisfaction on tpe 1 part of the authority. The existence of 'improper purpose', that is, purpose not cOlitemplated by the statute, has been recognised as an independent ground of control i°; sev~ral decided case~·: !he satis-faction,. moreover,. must be satisfaction of the authonty itself, and therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Com.missioner of Police did in .H Commissioner of Police -v. Gordhandas ·Bhanji(B) ·and ' the Officer (1) A.LR. 1974 S.C.-806. (2) A.J.R. 1943. F..C. 92 '(3) 11952] S.C.R. 135'. · •

of the Ministry of Labour and National Service did in Simas Motor Units Ltd. v. Minister of Labour and National Service(!) t!ie exer-cise of the power would be bad and so also would the exerciS<~ of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is basec1 on the application ()f wrong test or the misconstruction of statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfi.ed. Then again the satisfaction must be grounded 'on materials which are cf rationally probative value'. Machindar v. King. ([2]) The grounds on which the satisfaction is based must be such as rational hwnaa being can ~onsider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and purpose of the statute. · If the authority has taken into account, it may even be with the best of intention, as relevant factor something which it could not properly take into account in deciding whether or not to exerci~e the pow~r or the manner or extent to which it should be exercised, the exercise of the power would be bad. Pratap Singh v. State of Punjab([3]). If there are to be found in the statute ex-pressly or by implication matters which the authority ought to have regard to, then, in exercising tlli; power, the authority must have· re-gard to those matters. The authority must· call its attention to the matters which it is bound to consider.

There is also one other ground on which the subjective satisfac-tion reached by an authority can successfully be challenged and it is of late becoming increasingly important.-, The genesis of this ground is to be found in the famous words of ford Halsbury in Sharp v. Wakefield([4 ])

" . ; . . . when it i§ said that something is to be done within the discretion of the authorities-that something is to be done according to the rules of reason and justice, not . according to private opinion-:-according to law and not humour, It is to be, not arbitrary, vague, fanciful, but -legal and regular."

So far as this ground is concerned, the ·courts in the United States have gone much further than courts in England or in this coun1ry. The United States courts are prepared to review administrative fii1d-ings which ate not supported by substantial evidence, that is by "such reI.evant findings as reasonable man may, accept adequate to sup-port conclusion".~ But in England and in India, the courts stop. short at merely inqu'fring whether ·the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. "Ir', to use the words of Lo:rd Gree1;1e, M. R., in Associated Provincial Picture

"Ir', to use the Picture R

(l) [1964] All. E.R. 201.

(2) A.T.R. 1950 F.C. 1~1 .. (4) [1891] A.C. 173, at 1'9.

(3) A.T.R. 1964 S.C. 72.

/louses Ltd. v. Wednesbury Corporation(1)-,..-Words which have found approval of the House of Lords in Smith v. East Eilor Rural District Counci/(2) and Fswcoit Properties Ltd. v. Buckingham <- ounty Council([3])-the authority has "come to oonclusion pa-so ~nreasonable that no rel}Sonable- authority could ever have come !o 1t, then the c?urts can interfere"·~ In such case, legitimate mference may fairly be drawn either that the authority "did not h~nestl~ for.m that view or that in forming it, he could not have ap-plied his mmd to the relevant facts". Ross v. Papodopo/1:;,;_(4) The power of the court to interfere in such case is not as an appellate authority to override decision taken by ihe statutory authority, bu! as judicial authority which is concern~d, and concerned only to see whether the statutory authority has contravened. the law by acting in excess of the power which the legislature has confided in it. It i; on this ground that the order of preventive detention made by the District Magistrate in Dehu Mahto v. State of West Benga/(5) was struck down by this Court. There, in that case, one single solitary act of wagon breaking was relied upon by the District Magistrate for reaching the satisfaction that with view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services to the 0 community, it was necessary to detain him. This Court pointed out subject to certain reservations that it was difficult to see how "one soli-tary isolated act of wagon breaking committed by the petitioner could possibly persuade any reasonable person to reach the satisfru;tion that unless the ·petitioner was detained he would in all probabilitY indulge in further acts of w.ag6n breaking". This Court did not go into . the adequacy of or sufficiency of the grounds on which the · order of detention was based, but merely examined wliether on . the growlds given to the detenu, any reasonable authority could possibly come to the eonclusion to which the DiStrict Magistrate did. It is true that this groond in sense tends · to blur the dividing line between subjective '.satisfaction and o))jeetive determination but the dividing line is very much there howsoeyer faint or delicate it inay be, and courts have never :failed to recognise it.

This discussion is sufficient to show that there is . nothing like un-·fettered discretion immune from judicial review-ability. The truth is that in Obvemment under law, there can be no such thing as un-reviewable discretion. "Law bas J:"eached its finest moments", said. Justice Douglas, "when. it has freed inan,from the unlimited discretion oLsome ruler, some official; some bureaucrat-Absolute discretion ;s ruthless master. It is more destructive of freedom than any of man's other inventions". Uriited States v. Wunderlick.(O) And . this is much more so in case where personal liberty is involved. That is why the Courts have devised various methods of judicial control ~o that power in the hands of an individual officer or authority is not misused or abused or exercised arbitran1y or without any _iusti{iablc grounds. ·

(1) (1948) 1 K. B. 223. (n 1056 A.C. 736, (3) [1961) A.C. 636. (4) (l958) 1 W.L.R. 546, (5) A.I.R. 1974 S.C. 816. (6) 341 U S_ 9S.

The next question which then arises for consideration is whether section 3 of the Act in so far as it empowers the detaining authetrity to exercise the power of detention on the basis of its subjective sa tis-faction imposes unreasonable restrictions on the fundamental rights of the petitioner under clauses (a) to (d) and (g) of article 19, and is, therefore, ultra vires and void. The view taken by the majority in A. K. Go pa/an v. State of Madras (<1.) was that article 22 is self-contained <;ode, and therefore, ia law of preventive detention does not have to sati!;fy_ the requirements of articles 14, 19 and 2i. This view came to be considered by this Court in three subsequent decisions to all of which one of us (P. Jaganmohan Reddy, J.) was party. In Rustom Cavasjee Cooper v. Union of Jndia,([2 ]) it was held ·by majo-rity of judges, only Ray, J., as he then was, dissenting, that though law of pri:ventive detention may pass the test of article 22, it has yet to satisfy the requirements of other fundamental rights such as article 19. The ratio of the majority judgment in R. C. Cooper's case([2 ]) was explained in clear and categ'Ofical terms by Shelat, J., speaking on behalf of seven judges in S--ambhu Nath Sarkar v. State of West Bengal ( [3]) The learned Judge said :

"In Gopalan's case (supra) the majority court had held that Article 22 was self-contained Code and therefore law of preventive detention did not have to satisfy the requirement of Articles 19, 14 and 21. The . view of Fazl Ali, J., on the other hand, was that preventive detention was direct breach of the right under Article 19(a) (d) and that law providing for preventive detention had to be subject to such. judicial review as is obtainable under clause ( 5) of that Articl.e. I!J R. C. Cooper v. Union of India (supra) the aforesaid premise of the majority iQ. Gopalan's case (supra) was disapproved and therefore it no longer holds the field. Tjiough Cooper's case (supra) dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the diffe-rent provisions of the Constitution adopted in this case held the major premise of the majority in Gopa/an's case (supra) to be iqcorrect."

Subsequently.in Haradhan Saha v. State of West Bengal & Ors.,(4) Bench of five· judges, after referring to the decisions in A. K. Gopalan's case (supra) .and- R. C. Cooper's case (supra and pointing out the context in which R. C. Cooper's case (supra) held that the acquisitio_n of property directly impinged the right of the bank to, carry on business, other. tha!l banking, guaranteed under article l 9 and'. article 31 (2) was not pfotaction against the infringement of that guaranteeu right, proceeded on the assumption that the Act which is; f~r preventive detenti.on has to be tested. in ~egard to its reasonableness. with reference to article 19, That decision accepted and applied the

(2) [1970] 3 S.C.R. 531).

(I) (1950) S.C.R. 88. . (3) [1973Jt ·s.c.c. 856. (4) (19751 I S.C.R. 778.

ratio in Shambhu Nath Sarkar's case (supra) as well as R. C. c;oaper's case (supra) to both of which Ray, C.J., was parfy. This question, thus, stands concluded and final s.eal is put on this controversy and in view of these dec1~ions, it is not open to. any one now to contend that law of preventive detention·, which fiills ·within article 22, does not have to meet the requirement of article 14 or article 19. Indeed, in Haradhon Saha's case (supra), this Court proceeded. to consider the c:iallenge of article 19 to the validity of the Act and held that the Act did not violate any of the constitutional guarantees embodied in article ~ ~ and was yalid. Since this Court negatived the challenge to the vahd1ty of the Act on the ground of infraction of article 19 and upheld it as valid piece of legislation in Haradhan Saha's case (_supra), the petitioner cannot be permitted to reagitate.the same ques-c bon !11c~ely on t.h~ ground that some argument directe~ against the constitutional vahd1ty of the ,.Act under article 19 was no.t advanced or considered by the Court in that case. The decision in Haradhan Saha's case (supra) must be regarded as having finally laid at rest . any question as to the. constitutional validity of the Act on the ground of challenge under article 19. That dispq_ses of grounds (a) and (b) and we must now proceed to consider ground '(c). Now before we C!>nsider ground (c), we must deal with an objection raised by counsel on behalf of the State, which, if well founded, would cut short an inquiry into this ground. Counsel on behalf . of the State submitted that though the District Magistrate in his affidavit In reply admitted that besides th,~ three inci-dents referred to_in the grounds of detention, other material was also nlaced before him, he stated on oath that he did not take such other illaterial .into account in making the order of detention and this state-m~nt 011. oath made ·by him must be accepted· as correct and that should be an end to all further inquiry by the Court. He · strenuosly protested against the Court requiring the State to produce the history-sheet of the petitioner containing other material which was before the District Magistrate. His argument was that it was not· competep.t to the Court to probe further into the. matter for the purpose of examining what was the nature of the other material before the District Magis-trate and whether he was influenc~d by such other :material in making the order of detention. This claim made by counsel. on behalf of the State is indeed told claim calculated to shut out judicial in'!>trusion mer,ely on' the strength of ipse dixit of the detaining authority. We can-not countenance such diiiin. Indeed, iQ. Daktar Muai v. State of · West Bengal(1) similar claim was made oti behalf of the State o'f West Bengal and it was negatived by this very Bench speakinir through one of us (P. Jaganmohan Reddy, J.) in the following .words :

"It was contended by Mr. Mukerjee on bel:!alf of the State Government thl).t this .Court ought not look into the record for satisfying. itself as to whether the District Magis-trate could have arrived at the conclusion when he says he had arrived at \hat satisfa~tion only on the grounds men-tioned in the detention order. We do not think that this (l) A.T.R. 1974 S.C. 2086.

would be correct approach. Where the liberty of sub.ject is involved and he .has been detained without trial, and law mad~ pursuant to Art. 22 which provide~ certain safeguards. it is the duty of this Court as the custodian and sentinel on the ewr vigilant guard of the freedom of an individual to scrutinize with due care am;! anxiety that this precious right which he has under the Constitution is not in any way taken awav capriciously, arbitrarily or without any legal justifica-tion.

This Court has held that where grounds are furmshed to the detenu those grounds must not be vague and must be such as to enable him to make proper and effective representation against liis detention. This Court has turther held that where th·ere are scverul grounds, even if_one ground is vague, then it is difficult to say whether the ground which is vague and in respect of which the detenu could not make ai1 effective representation did not inftu-en~e the mind of the detaining authority in arriving at his sub.iective satisfaction that the detenu would in future be likely to act m maimer prejudicial to the maintenance of supplies and services essential to the community. If the detention order is held invalid on this account, it would be equally so in case where theri: are other materials 011 which the detaining autho· rity could have been influenced ln arriving at his subjective satisfaction but which be has not mentioned in the grounds of detention, nor communicated t!ie111 to the detenu. In such circumstances whether the other materials on record had any effect on the mind of the detaining authority cannot be accepted solely on his statement, because to admit that he alone has sucli_ right· would be to accept that the mere ipse dixit of the ·cfotaining authority would be sufficient and cannot be .looked into. There is possibility that certain materials on record would disclose that the activities of the detenu are of serious natur~ having nexus with the object of the Act, namely, the prevention of prejudicial acts affect-ing the maintenance of supplies and services essential to the community, and having. proximity with the time when the subjective satisfaction forming the basis of the detention order bad been arrived at. If these elements exist, then the Ccurt would be justified in taking the view that these must have influenced the subjective satisfaction of the detaining au'.hority and the omission to indicate those materials t0 the detenu would prejudice him in making an elTt:ctive representation. If so, the detention order on that account would be illegal."

Where the liberty of the subject is involved it is the bounden duty it is the bounden duty is the bounden duty the bounden duty bounden duty duty of the Court to sati$fy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law, Section

involved it is the bounden duty it is the bounden duty is the bounden duty the bounden duty bounden duty duty of safeguards provided by the law

8 ( 1) of the Act, which merely re-enacts the constitutional require-ments of article 22 ( 5), insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfac-tion l~ading to the making of the order of detention must be com-municated to the detenu, so that the detenu may have an opportunity of making an ~ffective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though oli1er basic facts and materials were before it, it has not allowed them to influence its ·satisfaction. The Court is entitled to examine the · correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining iiutho-rity to produce and make available to the Court the entire record of the case which was before i't That is the least the Court can do to ensure observance ·of the requirements of law by the detaining autho· rity.

Now, here, it was common ground that the hisiory-sh1:et of the petitioner was placed by the police authorities before the Di~trict Magistrate and it was read by .. him. The history-sheet · recited the following facts and particulars : .E

"This does not help him in maintaining· the family and as such he became associated .with the criminals viz. Kanani Monda) of Krishnapur, Kuren Monde! of Krishna-pur. He piCked µp the habit of committing theft 'of .copper wire and as such he mixed up ~1th Mohini Ranjan Das @ Nillan of Uttar Lakhipur, P. S. Koliachak and committed theft of copper wires and there were several theft of trans-formers from villages like Betrabad, Uttar Lakhipur, Suitan-ganj, Nandalalpur all under Kuliachak P.S.".

and then proceeded to narrate the three incidents set out in the grounds of detention as "some of his misdeeds''. The material which was · before the District Magistrate, thus, consisted of the facts and particulars extracted above from the history-sheet in . addition to the three incidents set out in the grounds_ of detention. This material was not disclosed to the petitioner as, according to the statement of the District Magistrate in his affidavit-in-reply, he had not taken it into account in reaching his subjective satisfaction. The question is whether this statement made by the District Magistrate in his affidavit-in-reply should be accepted as correct. Is there anything in this material which should persuade us to say that the District Magistrate must have been influenced by it and we should not, therefore, accept his assertion at its face value ?

sso

Now, the proposition can hardly be disputed that if there is before the District Magistrate material against the detenu which is of highly damaging character and having nexus and relevancy with the object of det<~ntion, and proximity with the time when the subjective sadsfaction forming the basis of the detention order was arrived at, it would be legitimate for the Court to infer th~t such material · must have influenced the District Magistraf.e in arriving at his subjective satisfaction and in such case the Court would refuse to accept the bald statement of the District Magistrate that he did not take such material into account and excluded it from consideratio'1. It is ele-mentary that the human_ mind does not ~nction in compartments. When it receives impressions from different sources, it is the totaliity of the impressions which g(l(s into the making of t.he decision and it is not possible to analyse and dissect the impressions and predicate which impressions went into the making of the decision and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances sp as to exclude the influence of such imp-ression in the decision making process. Therefore, in case where the material before the District Magistrate is of character which would in all reasonable, probability be likely to influence the decision of any reasonable human being, the Court wollld be most reluctant to accept the ipse dixit :of the District Magistrate that he was not so influenc1ed and fortiorari, if such material is not disclosed to the detenu, the .order of detention would be vitiated, both on the ground that all the basic facts and materials whic;, influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detemi was denied an opportunity of making an effective representation against the order of detention.

But in .the present case we do not find that there is any sui:h infirmity vitiating the order of detention against the petitioner. The material in the history-sheet of the petitioner which was not disclos·ed to him referred to two circumstances. One was that the uetitioner had picked up tht~ habit of committlng thefts of copper wifes and . he committed thefts of ccipper wires and the other was that there were several thefts of transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur. So far as the first circumstance is concerned, it was merely generalisation based on the three ind-dents referredf to in the grounds of detention and it did not refer to m1y other incidents of theft of copper wires besides th~ three enume-rn red in the grounds of detention. It did not, therefore. oonstitute anv additional material prejudicial to -the petitioner which could be said to bave gone into the formation of the subjective satisfaction of t'he District Magistrate and. the non-disclosure of it to the petitioner did not bave the effecf of invalidating the order of detention. The second circumstance was not directed against anv activitv of the petitioner at all. It merely . provided the back~ound of the social malady whkh tl'ust have betm exercisin~ the mind of the authority charged with the administration of law and order when it said that there were several thefts of transformers from Betrabad, Uttar LakshiPlll'. S·ultangani a1~d N Dndlalpur ·villages and it was in the context of this background that

the three incidents referred to in the· _grounds of detention were con-sidered by the Dis.trict Magistrate. What were alleged against the petitioner . were orily the three incidents set out in the grounds of detention. The thefts of transformers referred to in the second circum-stance were not attributed to the petitioner. They. merely provided the backdrop of ~e prevailing situation in the area and did not constitute material prejudicial . to the petitioner which ought to have been dis-B closed to him. There was, therefore, no material before the District Magistrate, other than the three incidents set out in the grounds ot detention, which went into the formation of the subjective satisfaction of the District Magistrate and which ought, therefore, to have been communicated to the petitioner. Ground (c) must accordingly be rejected. That takes us to ground ( d) which impugns the order of ~pproval passed by the State G.overnment under section 3, sub-section (3) of the Act. This requirement of approval of the_ State Government imposed by section 3, sub-section (3) is intended to act as check on the exercise of the power of detention by the District Magistrate under section 3, sub-section (2) of the Act. Therefore, fortivrari all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed be-fore the State Government, so that the State Government can, as supervisory authority, decide whether the power of detention has been properly or improperly exercised by the District Magistrate. But in addition. to such basic facts .!;!nd materials, which - constitute .the grounds of detention, the District Magistrate is also required to send to the State Gov.ernment under section 3, sub-section (3) "such other particulars, as in his opinion have bearing on the matter". Obviously, these "other particulars" would be different from the basic facts and materials which constitute the grounds of. detention and would not be material which has gone into the formation of the subjective satisfac-tion of the District Magistrate. If these are any materials of such nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not "other particulars". It is not possible .to categorise precisely what these "other· particulars'' can be, but they may include particulars relating fo the background of the circumstances in which the District Magistrate reached his subjective . satisfact;ion le1ding to the making of the order of detention or parti-culars lf,bund to be administrativelf necessary for him to i;:ommunicate to the ~late Government, so that the State Government may be able to effe'ctively discharge its function as an overseeing superior autho-rity while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is 1iothing in-Article 22 ( 5) of the Constitution -or in any pro\irsiotr <if toe Act which requires that these "other particulars" should be. communicated' . to the detenu. The only requirement of commwtication is in regard to the basic facts and materials .whicli constitute the grounds of deten-tion and if there ar~ "other particulars" besides the grounds of deten-tion which are communicated to the State Government, t1ley need not be disclosed to the detenu. We cannot import any requirement of dis·

closure in regard to these "other particulars" merely on the basis of supposed intention of the legislature when there is nothing in the State which evinces any such intention.

The petitioner, however, relied very strongly on the ot5ervatiol)s of this Court in Hardhan Saha's case (supra) :

following

"The Preventive Detention Act, 195-0, was considered by this Court and it is an established rule of this Court that detenu has right to be appris1:d of all the materials on which an order of detention rs passed or approved.",

;md contended that the detenu was, therefore, entitled to disclosure not only of the grounds of detention but also of "other particulars" communicated by the Distdct Magistrate to the Stat~ Government under section _3, sul>-section (3). We do not think the observations relied upon by the petitioner support his contention. There can be nt' doubt that when th.e Court made these observations, what it had in mind was the materials which constituted the grounds of dckntion and not "other particulars", for the making of the order of detention would be based on the former and not on the latti;r and so also its approval by the State Government. What the Court meant to say in ' making these observations was that all the materials on which the order of detention is made or approved; that, is, the materials constituting the grounds of det.ention, must be communicated . to . the detem,1 and not .that ,;~ther particulars" communicated to' · the State Government under section 3, sub-section (3) which do not form the basis of the making of the order of detention or its approval should be disclosed :to the detenu. The Court could not have intended to say that in addl-tion to the grounds of detention "other particulars" mentioned in se<:-tion 3, sub-section (3) should also be communicated to the detenu when there is no requirement to that effect either in Article 22 ( 5) of the Constitution or in any iprovision of the Act. We may point out that in fact no such question arose for decision in that case and the Court was not called upon to deciffe whether "other particulars" communicated to the State Government under sectio~ 3, sub-section (3) are required to be disclosed fo the detenu. The Court merely reiterated the well~settled proposition that the materials constituting the grounds pf detention on which ·the order of detention is made by the District Magistrate and approved by the State Government must be communicated to tbe detenu. The ~bservations ma_de by the Court did not go further than this and cannot be read in the manner coni-tended on behalf of the petitioner.

Now in the present case, as alreadr pointed out above, the mate:-rial from the history-sheet, which was not disclosed to the petitioner, did not form 1>art of the grounds of di:teittion on which the order of

detention was made by the District Magistrate <1nd approved by the State Government, but merely constituted "other particulars" commu-nicated by the District Magistrate to the State Government under section 3, sub-section (3). There was, therefore, no obligation on. the District Magistrate or the State Government to disclose this ma~erial to the petitioner and the nondisclosure of which to the peti-tioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected. We accordingly dismiss the petition and discharge the rule.

Petition dismissed.