GORA versus THE STATE OF WEST BENGAL

GORA

THE STATE OF WEST BENGAL December 11, 1974

[P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]

Maintenance of lllfernal Secmity Act., 1971, s. 3 (3 )-Delay between date .of incident and date of order and delay between date of order and dare of detention-Effect of-Public order, scope of-'Fort/11\'ith', meaning cf.

The peti!loner was directed to be detained by an order of the Dist. Magistrate under the Maintenance of Internal Security Act, 1971. with view to preventing him from <icting in manner prejudicial t!) the maintenance of public order. The order was made on December 29, 1973 •. and the fa::t of making the <>rder was reported to the State Government on January 2, 1974. He was arre$ted on Jan. 8, 1974. The ground8 of detention referred to only one incident, namely, that on· the night of 25 /26-6·73, the petitioner along with his associates being armed .with fire arms, raided house, looted cash and ornaments, brutally ll'>saulted some of the inmates and fired indiscriminately as result of which the houseown~r and his neighbour sustained gric:vous injurie; and subsequently died, ·

. The petitioner challen~ed the detention order in JI writ petition on the following grounds :-(1) There Wills time la11 of 6 months 1'~twcen the date of the incid<mt and the date of order and hence the Dist. Ma.~istrate •:ould not have possibly aHived at his subjective satisfaction on the basis of that inCident. (2) the fa:ident merely affected law and order ~nd not public order, ( 3) the District Magistrate had taken into account other material in the history sheet which was not disclosed to the petitioner, in arriving at his subjc:ctive satisfaction, ( 4) there was delay of 20 days in arres!ing the petitioner pu.rsuant to the order of detention, and ( 5) there was delay of 5 day·; in .reporting the fact of making the order of detention to the State Government.

Ma.~istrate •:ould

Dismissin,g the writ ~titian,

HELD·. (I) (a) There is no hard and fast rule that merely hccause there is time lag of about 6 months between the 'offending acts' and the date of the order of detention the causal link must be taken to be broken and the ·satisfaction claimed to have been •arrived M by the Dist. Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis of the subjective satisfaction are too remote in time must d•:pend on the facts of each case. The test of· proximity is not rigid or mechnnic&l test to be blindly applied by merely counting the number of months be1:ween the two dates. The test is evolved by the c·ourt for determining the main question whether the past activity of the detenu is such that from it reason-able prognmns can be m11de as to· the foture ,:onduct of the· detenu. The prejudicial act :if the detenu may be of such character as to sugirast that it is part of an organised operation. and in such case, the detaininl! authority may reasonably feel satisfied lhat the act which has come to light cannot be solitary or· is<rlated act but must be part of course of conduct of similar activities and that therefore. it is necessary to detain him with view to preventing him from indulging in such activities in the future. [999 C-G]

In the present case, .. t)J<l act was daring act of dacoity in village by !he .Petitioner's gang, and judged in its correct setting, it could not be stray 1sclated act bu.t must be tbi:, work of habituated and hardened :riminal eh en to commit dacoities. and therefore, the Dist. Magistrate could reasonably :i\ive at satisfa<:tion that with view to p•eventinj! him from carryin~ on such activities, it was-necessary to detain him. [999 G-H]

reasonably :i\ive carryin~ on such that criminal case the identi:al inddent was found that The Dist. rv!agistrat·:!,

(b) Further. it was stated in the counter-affidavit that criminal case was filed in the Magi,trates' court in connection ·with the identi:al inddent on lllne 26, J 973 and the petitioner was arrested but it was found that witnesf.es wc~re unwilling to r,ive evidence against hin1. The Dist. rv!agistrat·:!,

therefore, passed the order of detention in anticipation of the petitioner being· released as result of dropping the crimin11<l case against him. The petitioner was discharged between January 3, 1974 and Jan, 18, 1974, and on the lntter date he was once again arrested pursuant to the order of detention. (1000 A·DJ.

Go/am Hussai11 v. The Commissioner of Police, Calcutta & Ors. (1974] 4 S.C.C. 530 and Lakshma11 Khatik v. State of West Bengal, [1974] 4 S.C.C. 1 referred to. (2) The a<:t alleged against the petitioner was calculated to disturb the current of life of the .wmmunity in the village_ It was serious act of dacoity perpetrated at dead of night. It created panic in tlie locality and seriously .disturbed the even tempo of life of the community in the village. It was clearly disturbirnce of public order and the act of the petitioner had nexus. with the object of maintenance of public order. [1001 E-G]

Aru11 Ghosh v. State of Bengal [1970] 3 S.C.R. 288, followed. ( 3) TI1ere was no factual basis ·fol the. contention that the Dist. Magistrate had taken into account any other material not disclosed to the petitioner. [1002 A-BJ

( 4) (a) The delay of 20 days bet~en the date of the order ot detention· and the date of .arrest cannot be regarded as unreasonable. [1002 C·D]

(b) The petitioner Wll5 in jail on Dec. 29, 1973 when the order of deten· tion was made and was once again arrested only after he was released on: some date between 'January 3, 1974 and Jan. 18, 1974 and hence the delay was explained. [1002 D·EJ '

(S) Section 3 (3) of the Act requires that the fact of the making of ihe-order of detention niust be reported forthwith to the State Government. An act which is to be done forthwith must be held to have been so done whern it is done with all reasonable despatch and without 'avoidable delay. It is very important requirement intended to . S\':cure that the State Government shall have sufficient time for consideration before it decides-and the decision has to be made within 12 days of the making of the order of detention-whether or not to approve the order and the Court. would, therefore, insist on strict' compliance with it and not condone avoidable delay even if it be triviaf. When there is an interval of time between the date of cirder and the date of report what has to be c.onsidered is whether the delay in sending the report rould have been avoided, or to put it differently, whether, in the present case. in 'spite of all diligence, the Dist. Magistrate was not in position to send the report until Jan. 2, 1974. (1003 A-CJ

In the prc;sent case the facts stated by the Dist. Magistrate in his affidavit show that lie acted wiih prompt despatch and was not guilty of any avoidable p delay. On Dec. 29, 1973 he had passed 9 orders of detention and the typing of the material in connection with the 9 cases took time. Dec. 30 was Sunday and he could not send the reports on Dec. 31 as he was very busy in connection with food procurement work. Jan. 1, 1974 was public: holiday, and hence, he could send the report only on Jan. 2. (1003 C·E]

ORIGINAL JURISDICTION: Writ.Petitiqn No. 379 of 1974.

Petition under article 32 of the Constitution of India. Govinda Mukhoty, for the petitioner.

P. K. Chatterjee and G. S. Chatterjee, for [be respondent.

The Judgment of the Court was delivered by-

BHAGWATI, J.-The District Magistrate, 24-Parganas, bv an order dated 29th December, 1973 made under sub-section (1) read with sub-H section (2) of section 3 of the Maintenance of Internal Security Act. 1971 directed that the petitioner be detained as he was satisfied that with view to preventing the petitioner from acting in manner pre-

judicial to the maintenan~e of public order it was ne~essary to detain ·nim. The fact of the making of the order of deten!Jon was reported by 1be District Magistrate to the State Government on 2nd January, 1974 and the State Government, by an order dated 8th January, 1974, app1loved the order of detention. Pursuant to the order of detention, the petitioner was arrested on 18th January, 1974 and immediately on his arrest he was served with the grounds on which the order of detention was made. The grounds of detention referred only to the incident as form'fog t.he basis of arriving at the subjective satisfaction .as regards the necessity for detention of the petitioner and that inci-,dcnt was in the following terms :

"On the night of 25/26-6-73 at about 00.Cl hrs. you along with your associates being armed with lethal weapons including fire .arms raided the house of Ananta Keya! of Nai-tala under Diamond Haroour P.S. and looted away cash, ornaments etc. At the time of operation you tixed from your fire arms indiscriminately disregarding human lives and their safety. As result, the house owner nan ta Kaya! and his close door neighbour Ajit Kaya! sustained grievous gun ·shot injuries 9n their 11ersons, Subsequently both of them .expired in Diamond Harbour Hospital. You also brutally .assulated some of the inmates of the hO'use of occurrence. Your action created such panic in the locality and the local people felt sense of insecurity. · Thus you acted in man-ner prejudicial to the maintenance of public order."

'The petitioner made representation against the order of detention on 29th January, 197 4 but it was considered and rejected by the State GoYernment on 31st January, 1974. The State Government there-after submitted the case of the petitioner to the Advisory Board along with hi.s representation and the Advisory Board, after hearing the petitioner .aild taking into account the repres-!ntation made by him, made report to the State Government on 6th March, 1974 stating that in its opinion there was sufficient cause for the detention of the petitio11er. The State Government accordingly passed an order dated 14th March, 197 4 confirming the detention , 11 the petitioner. This detention is challenged by the petitioner in th~ present petition which has been submitted from jail. ·

The first contention urged Mr. Mukhoty, learned counsel appearing amicus curiae on behalf .of the petitioner, was that the solitary incident set out in the grounds of detention was so remote from the dat1~ of the. order. of detention-in fact there was time l~c; ab9ut six months-that the District Magistrate could not possibly have arrived. at his sub-jective satisfaction on the basis of that incident. The requirement of proximity, said Mr. Mukhoty, was not satisfied and the subjective >.atis-faction said to have been reached by the District Magistrate could not be regarded as real or genuine. Now it is true, as pointed out by this Court in Go/am Hussain v. The Commissioner of Police, Calcutta & Ors. ( ') that "there must be live link between the ~rounds of crimi-nal activity alleged by the detaining authority and the purpos.~ of

(1) (1974) 4 s.c c. 530.

detention, namely, inhibition of prejudicial activi~y of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. Such is _th·e ratio of proximity in Lakshman Khatik v.State of West Bengal('). No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to · sanction simulacrum of statutory requirement. But no mechanical test by counting the months of the interval is sound. It a!l depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of partici-pation being available only in the course of an investigation. We have: to investigate whether the casual connection has been broken in the circumstances of each case". There is, therefore, no· hard and fast rule that merely because there is time lag of about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the .detenu forming the basis for arriving at ~ subjective satisfaction are too remote in point of time to induce any reasonable P«rson to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not rigid or mechanical test to be blindly applied by merely counting the number of :rrionths between the 'offending acts' 'and the order of detention. It is subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The pr!'.judicial act of the detenu may in given case ~ of such character as to suggest that it is part of an organised operation ot comolex of agencies collaborating to clandestinely and secretly carry on such activities and in such case the detaining authority may reasonably feel satisfied that :the prejudicial act of the detenu which has come to light cannot be solitary or isolated act, but must be part of course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to de'ain him with view to preventing him from indulging in such activities in the future. Here in the present case, the act alleged against the petitioner was daring act of dacoity in village by )?an~ consisting of the petitioner apd his associates and if this act is judged io its correct settin!?, 11rave proportions and clear implications, it would be clear tha't it ·cannot be strav isolated act but inust be tlie work of habituate<! and hardened criminal given to commit dacoities and the District Ma~strate could, therefore, reasonably arrive at satisfaction that with view to preventing the petitioner from carrying on such activities it was necessary to detain him. More-H over. the affidavit in reply filed on behalf of the State Govcrnm()nt bv the Secretary in the Department of Public Relations and Youth

(1) [1974) 4 s.c.c. 1.

Services, points out that in connection with the incident set out in the grounds of detentiOn criminal case was filed in the court of the Sub· Divisional Judicial Magistrate, Diamond Harbour on 26th Juee, J 973 and he was arrested in connection with that ease, but it appeared durhig investigation tbat witnesses were unwilling to give evidence in open court against the petitioner iind his associates and it was, therefori~, felt that it was futile to proceed with the criminal case and it was decidi?d to drop it against the petitioner. . Now, if the criminal case were dropped, the petitioner w-0uld have to be released and in that ·event he would be free to carry on his nefarious activities. The District Magistrate, th¢refore, passed the order of detention on 29th December, 1973. The order of detention was in fact passed in anticipation of the petitioner being released as result of . clropping of the criminal case against jli,m. The record of the case which was produced before us by the learned counsel appearing on behalf of the State showed that the criminal case was actually pending against the petitioner on 3rd January, 1974. That means that the criminal case must have been dropped and the petitioner must have been diseharged sometime bet-ween 3rd January, 1974 and 18th January, 1974, the latter being the date when he was once again arres~ed pursuant t9 the order of deten-tion. It is, therefore, not possible to say that the District Magistrate could not have arrived at sµbjective satisfaction op the basis of the Jncldent set out in the grounds of detention, or that the subjective sati!:-faction reached by him was sham or unreal.

. Mr. Mukhoty on behalf of the petitioner then urged that even ·if the incident set out in the grounds of det,ention were true, it merely affected maintenance of law and order and did not have any impact on public order and hence there was no nexus between the act alleged ·against the petitioner and the subjective satisfaction reached by. the District Magistrate. Now, there caµ be no doubt that the acts of the detenu on which subiectiv\l satisfaction is claimed to have been rea-ched by the detaining authodty must have relevahi:e to the formation of such subjective satisfaction. If the acts of the detenu relied on by the detaining authority Are ifrelevant, no reasonable person could possibly arrive at subjective' satisfaction on tl1e basis of such irre·· levant acts and the subjective satisfaction said to have been reached by ·the detaining authority would be mere pretence. It is, therefore: necessary to consider whether the act alleged ·against the petitioner in the grounds of detentiCll,l could be said to be relevant to the formation of subjective satisfaction that it was necessary to detain the petitioner with view to preventing him from acting in manner prejudicial to the maintenance of public order .. What was the potency or radiation cf the act alleged against the petitioner: did 'it affect maintenance of pub· lie order or was its prejudicial effect confined merely to maiiltenanc': of law and order? The distinction between law and order, on the om: hand, and public. order, on the other; has been brought out admirably by Hidayatulla. CJ., in recent decision in Arw1 Ghosh v. SflJ/e n1' W~st Bengal.([1]) The learned Chief Justice pointed out in that case: the difference between maintenance of law and order and its disr.ir-· bance and the maintenance of public order and its disturbance in the fo\Io"".i~.IL"'.~~~-: _·

(1) [1970] 3 S. C. R. 288·

"Public order was said to embrace more of the commu-nity than law and order: Public order is the even tempo of the life of the community taking the country as whole or even specified locality. Disturbance of public order is to be distinguished from 1~cts directed against individuals which do not disturb the society to the extent of causing general disturbance of public tranquillity. It is the degree of distur-B bance and its effect upon ~ life of the community in locality which determines whether the disturbance amounts only to breach of law and order. Take for instance, man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of town where there is communal tension. man stabs member of the other community. This is an act of very different sort. Its implications are deeper and it affects. the even tempo life and public order is jeopardized because the repercussions of the act embrace large sections of the com-· munity and incite them to make further breaches of the law and order and to subvert the public order. .... It means therefore that the question whether man has only committed breach of law and order or has acted jn manner likely to cause disturbance of the public order is question of degree and the extent of the reach of the Act upon the society .... The question to ask is: Does it lead to disturbance of the · current of life of the community so as to amount to distur-bance of the public order or does it affect mere!)" an indi-vidual leaving the tranquillity of the society undisturbed?" r: If we ask this question in relation to the facts of the present cases, it is obvious that the act alleged against the petitioner was calculated to disturb "the current of life of the community" in the village. It was serious act of dacoity which was alleged against the petitioner and it was perpetrated at dead of night <tnd the petitioner and his associ-ates who participated were armed with lethal weapons including guns and they used these lethal weapons recklessly and indiscriminately in utter disregard of human life and actually caused grievous injuries to at least two persons and beat up several others. This act of dacoity cre~ted panic in the locality and seriously disturbed the even tempo of life of the community in the village. There was clearly disturbance of public order and the act alleged against the petitioner had nexus with the object of maintenance of public order. The subjective satis-G faction reached by the District Magistrate could not, therefore, he said to be based on an irrelevant ground.

Then it' was contended on behalf of the petitioner that the District Ma2istrate had taken into account other matenal contained in the historv sheet of the petitioner in arriving at his subjective satisfaction and since this material was not disclosed to the petitioner, he had no opportunity of making an effective representation and that the order of d~tention was, therefore, invalid. Now, the proposition can no longer be disputed that if any material which has not been disclosed to the 17-L346SupCl75

p.:lil:\mcr il<is gone into tbe formation of tbe sublcctive satisfaction of the detaining authority it would have an invalidating consequence on the order of detention. But in the rpesent case it is not possible to say that any material other than that that set out in the grounds of deten-tion was taken into account by the District Magistrate in reaching his subi~ctivc satisfaction. We have looked at the history-sheet of the petitioner which was Produced before us by the learned counsel appearing on behalf of the State Government and we ct'o not find anv · material prejudicial to the petitioner other than that set out in the 11rounds of detention. There .is. therefore. no factual basis for this contention and it must be rejected.Mr. Mukhoty on behalf of the petitioner also tried to persuade us to strike down the order of detention on the ground that though the order of detention was made on 29th December, 1973, the petitioner was not anestcd until 18th January, 1974 and there was thus ,feJav of twentv davs in arrestinJ? the petitioner pursuant ·to the order ·of detention. But this is eaual!y unsustainable and fer two very good reasons. In the first place. the delay of twenty da:ys between the date-of the order of detention and the date of arrest canrw~ be regarded as unreasonable. Secondly, there is sufficient expianation for the delay. The petitioner was actually in jail on 29th Decemhcr, 1973 when the :irder of detention was made and it was onlv on some date betwe1:n 3rcl Januarv. 1974 and 18th Januarv. 1974 1h~t he was relem;cd and ti:>en once agam arrested on 18th January, 1974.

Tlte lust contention urged by Mr. Mukhoty on behalf of the peti-tioner \HS that though the order of detention was made by the Dis-trict Magistrate on 29th December, 1973, he did not report the fact of the making of the order of detention to lhe ST.ate Gc•\icrnment until 2nd January, 19741 and there was thus delay of about five days which constitu!c'd violation of'the statutory reauirement of section 3, sub-section ( 3 ) that the fact of the making of the '.lrdcr of d~tention mnst be reported forthwith to the State Government. This contention raises the auestion as to what is the true meaning and connotation of the word 'forthwith· as used in section 3 sub-section ( 3). The ques-F lion is fortunately not res inteRra. It is concluded by decision of this Court in Keshav Nilkanth Joglekar v. The Commissioner of Police, Greater Bombay.(!) The statutory provision which came up for con-sideration in that case was section 3, sub-section (3) of the Preventive Detention Act, 1950 which contained an identical provision as section 3. sub-section (3) of the present Act and the auestion which arose was as to whether Commissioner who made the order of detention on 13th January, 1956 could be said to have reported that fact 'forthwith' to the State Government under section 3. sub-section ( 3) when be did so as late as 21st January, 1956. The Court was, therefor::. called uoon t~ construe the wor.d 'forthwith' in section 3, sub-~ection (3) and after discussing various authorities, English as well as Indian, bearing on the interpretation of this word. the Court, speaking through VenkRtarama Ayyar. J. nointed out that : "On these authorities. it may be taken. an act which is to be done forthwith must be held to have so. done, when it is done with all reasonable despatch and with-out avoidable delay", and proceeded to add : "under section 3 (3) it is whether the report has been sent at the earliest point of time possi-ble, and when tnere is an interval of time between the date of the order and the date of :the report, what has to be considered is whether the delay in sending the report could have been avoided-the result then is that the report sent by the Commissioner to the State on 21-1-1956 cou1d be held to have been sent 'forthwith' as required by section 3(3), only if the authority could satisfy us that, in spite of all diligence, it was not in position to send the report during the period from 13th to 21st January, 1956". The same test must be applied in the present case and we must inquire whether the District Magis-trate sent the report to the State Government "with all reasonable des-patch and without avoidable delay", or, to put it differently, whether · in spite of all diligence· the District Magistrate was not in position to send the report until 2nd January, 1974. Now, the District Magistrate has made an affidavit explaining the reason for the delay in sending the report to the State Government. He has pointed out that 29th December, 1973, which was the date when the order of detention was made, was Saturday and on that day he had passed eight other orders of detention and the materials in connection with all these nine cases had to be typed out by the typist whiCh could not possibly be completed in one sinlde day. 30th December, 1973 was Sunday and, therefore, the earliest when the report could be submitted to the State Government was 31st December, 1973. But the District Magis-trate could not send the report on that day as he was very busy in connection with food procurement work in the district and the next day, namely, 1st January, 1974 being public holiday, he could send the report only on 2nd January, 1974. This explanation,given by the District Magistrate is. in our opinion. sufficient to show that he sent ·the report to the State Government .with all reasonable despatch and there was no avoidable delay on his 'part. Whilst taking this view on facts, we do not wish to underscore the need for strict compliance with this requirement of section 3, sub-section (3). It is very im-F portant requirement intended to secure that the State Government shall have sufficient time for consideration before it decides-and this decision has to be made within twelve days of the making of the order of detention-whether or not to approve the order of detention. and the Court. would, therefore, insist on strict compliance with it and · not condone avoidable delay, even if it be t:ivial But in the present case the facts stated by the District Magistrate in his affidavit show that he acted with prompt despatch and was not guilty of any avoid-able delay. The District Magistrate must, therefore, be held to have sent the report 'forthwith' as requirexl by section 3, sub-section (3).

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