NIZAMUDDIN versus THE STATE OF WEST BENGAL

NIZAMUDDIN

THE STATE OF WEST BENGAL

November S, 1974

[Y. V. CHANDRACHUD AND P. N, BHAGWATI, JJ,]

Preventive Detenl/011-De/ay in arresting detenu pursuant to order of detention-Duty of' detaining authority to explain,

On 14th .April, 1973, the petitioner was ·alleged. to have committed theft of aluminium wire and criminal case was filed but it was ultmately dropped and the petitioner was discharged, because, 'the witnesses were not willing to give evidence for fear of danger to their life. On 10th September, 1973, the District Magistrate passed an order under s. 3(2)(·i) of the· Maintenanee of Internil Security Act, 1971, detainin$ the petitioner wtth view to prevent-ing him from acting in manner preiudiciil to the maintenance .of supplies and services essential to the community, on his subjective satisfaction, based upon the solitary incident of the theft of aluminium wire. The petitioner was ~tually detained on 23rd November, 1973. ·

Allowing the petition challengin11 the order of detention,

HELD : The condition precedent for the making of tho. order of deten-tion, namely the existence of real and aeauine subjective 1&tiafae&ion of tho l>istrict Maliatrate was not satisfied in the c:aae1 and conaequontly, the order pf detention must be quashed and set aside. [5:160-EJ

(a) It must be ll88Ullled that the petitioner was dilcharpd on or abouJ 10th September 1973, becalile, tho District Magistrate mus~ have made the order of detenilon in anticipation of the order of discharge. If that was so, though the petitioner waa available for detention, there was delay of about two and half months In detainin11 the petitioner punuant to the order of detention. This delay, unless satisfactorily explAined, would · throw consi-E derable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order ·of detention. If the I)iitrlct Magistrate waa really and genuinely satisfied he would· have llCted with greater promptitude. But he has not offered any explanation as to why the petitioner was no• detained until 23rd November, 1973, more than two months after he mado the order of detention. [59SD-HJ

(b) It is the obligation of the State or the detaining authority 'In making its return to the role nlsi, in cases· of habeas corpus, to place all the relevant facts before the court and if there is any delay in arresting the detenu pursuant to Ille order of detention, which is prlma faclt unreasonableil the State inust explain tho delay. The State cannot contend that tho po !loner has not raised the contention in his petition. [596B-C)

Sii. Sera,ul v. Stat§ o/ Wiit Btngal. W.P. 2000 of 1973, decided on September 9, 1974, fo lowed. .

OJUOINAL APPBI.LA.TB J\lluSJ>ICTION: Writ Petition Nq. 315> of 1974.

Petition under Article 32 of· the Conatltutlon.

A.nil KUllUl1' Gupta, for the 2,Clitlo!ier. ·

P. Chatter/et and G. S. Chatterjee, tor the respondents.

The Judgment of the Court was delivered by

BHAGwAn, J. The 'petitioner challel)ges his detention under an order dated 10th September, 1973 made by the District Magistrate,

Burd wan under section 3 (2) (i) of the Maintenance of Internal Se· curity Act, 1971. There were several grounds urged before us for challenging the validity of the order of detention but it is not neces-sary to refer to them since we find that there is one ground which is sufficient to dispose of the petition. To appreciate this ground it is necessary to notice few facts.

The order of detention was made on 10th September, 1973 and it was based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with view to prevent-ing him from acting in manner prejudicial to the maintenance of supplies and services essential to the community. This. subjective satisfaction according to the grounds of detention funushed to the petitioner' was founded on a: solitary incident of theft of alumunium wire alleged to have been committed by the petitioner on 14th April, 1973. It appears that in riespect of this incident criminal case was tiled inter alia against the petitioner in the Court of Sub-Divisional Judicial Magistrate, Asa.nsol, but, as the affidavit-in-reply filed by the District Magistrate shows, the witnesses were unwilling to depose against the petitioner in open Court on account of fear of danger to their life and the prosecution was, therefore, constrained to drop tho criminal case and the petitioner was discharged. However, the date when the petitioner was discharged was not set out in the affidavit-in-reply. The petitioner was thereafter detained on 23rd November, 1973 pursuant to the orde:r of detention. 'There was thus time lag of about two and half months between the date of the order of detention and the date when the petitioner was actually detained. The petitioner contended that since the District Magistrate did not state in his affidavit-in-reply as to when the petitioner was discharged, it must be presumed that the petitioner was discharged Qn or about 10th Sep-tember, 1973 and was available for being detained under the order of detention and vet he was not arrested for period of two and half months until 23rd November, 1973 and that sl;lows that there was no real necessity to detain the petitioner with view to preventing him. from acting in prejudicial manner and the subjective satisfaction of the District Magistrate founding the order of detention was not genuine. There is great force in this contention of the petitioner and it must result in invalidation of the order of detention.

It is obvious from the facts set out in the affidavit-in-reply that the petitioner was arrested in connection with the criminal case aris-ing out of the incident dated. 14th April, 1973 set out in the grounds of detention. The criminal case was ultimately dropped as the wit· nesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. The date of discharge of the .petitioner was, however, not set out in the affidavit-in-reply. We asked the learned counsel appearing on behalf of the respondent as to whether there was any record with him from . which he coi~d tell us as to what was the date on which the petitioner was discharged but he stated that the only record which he had was that

relating to the order of detention and the record relating to the crimi-.. Ral case had not been sent to him. We were told that even the history-sheet of the petitioner, which was before the District Magis-trate when he made the order of detention, did not give the date when the criminal prosecution was dropped that the petitioner was dis-charged. It did not even ffi'ake any reference to the. criminal case. This is rather unfortunate. He should have thought that the fact that criminal case is' pending against the person who is sought to be proceeded against by way of preventive detention is very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether un-likely that the District Magistrate may in given case take the view that since criminal case is pending against the person sought to be detained, no or\ier of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of criminal case against hirn to the District Magistrate. But that is different question altogether and it need not detain us. The fact ren1ains that there was no recorli with the learned couns~I appear-ing on behalf of the respondent from which he could give us the date when the petitioner was discharged. In view of this failure on the part of the respondent fo supply information· to the Court as to then the petitioner was discharged, we must proceed on the assumption that he must have been discharged on or ,about 10th September, 1973. The order of detention must have been made by the District Magistrate in anticipation of the discharge of the petitioner and the discharge of the petitioner can, therefore, be presumed to have taken place at or about the time when the order of detention was made, that is, 10th September, 1973. But if that be so, the conclusion is inescap-'a. ble that though the petitioner was available for detention since about 10th September, 1973, he was not detained for period of about two and half months upto 23rd November, 1973. There was delay of about two . and half months in detaining the petitioner pursuant to the order of detention and this delay, unless satisfactorily ex· plained, would 'throw considerable .doubt on the genuineness of the subjective satisfaction of the Distrfot Magistrate 'recited in the order of detention. It would be reasonable to assume that if the District Magistrate was really and genuinely siatisfied after -proper ·application of mind to the materials before him that it was necessary to detain the petitioner with view to preventing him from acting in pre-' judicial manner, he would have acted with gre'atet promptitude in securing the arrest of the petitioner immediately after the invoking of the order of detention, and the petitioner would not have been allowed to remain at large for such long period of time to carry on his nefarious activities. Of course when we say. this we must not be understood to mean that whenever there is delay in arresting the sub-H jective satisfar•;on of the detaining authority must be held to be not 2enuine or colourab!e. Each case must . depend on. its own peculiar facts and circumstances. The detaining authority may have reason-~ able e11;planation for the delay and that t,:iight be sufficient to dispel ·'I

the inference that its satisfaction was not genuine. But here we find that thouith an affidavit-in-reply was filed by the District Magistrate himself1 no explanation. was fotthcoming in this affidavit as to why the petitioner was not arrested until 23td November, 1973, though the order of detention was made as far back as 10th September, 1973. The learned counsel appearing on behalf of the respondP.nt contended that the State was not expected to render any expla· nation in regard to the delay in arresting the petitioner pursuant to the order of detention because no such complaint was made in the petition. But this is hardly an argument which can avail the State when it is called upon to answer rule issued on petition for writ of habeas corpus. It is the obligation of the State or the detaining· authority in making its .return to the rule in such case to place all the re;levant facts before the Court and if there is any delay in arrest· ing the detenu pursuant to the order of detention. which is prima facie unreasonable, the State must give reasons explaining the delay. Vide Sk. Serajul v. State of West Bengal.(1·) Since in the present c.ase no explanation for the delav has been given in the affidavit-in· . . reply filed by the District Magistrate, we are not at all satisfied that the District Magistrate applied his mind and arrived at oa real and . genuine subjective satisfaction that it was necessary to detain the · petitioner with view to preventing him from acting in prejudicial manner. The condition orec~ent for the maki~ of the order of detention was, therefore, not satisfied and consequently the order of detention must be quashed and set aside. .

We accordingly quash and set aside the order of detention and direct that the petitioner be set at liberty forthwith.

Petitiaw allowretl.