JOHN MARTIN versus THE STATE OF WEST BENGAL

JOHN MARTIN

THE STATE OF WEST BENGAL

Ja11.uary 21, 1975

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

Mailltcnance of Internal Security Act, 1971-S.8(1)-Scope of-Whether reasoned order should be passed by Government-Whether power of dete111io11 conje.rred on District Magistrate is violative of Art. 19-Detention after drop-pin11 earlier criminal ca~·es-Whelhl?r ma/a fide.

Pursuant to an order of detention the petitioner .was arrested under sec-tion 3(1) & (2) of the M:dntenance of Internal Security Act, 1971, In petition under artkle 32 of the Constitution it was contended ( 1) that considera-tion of the petitioner's ·representation by the State Government instead of by an impartial tribunal was not sufficient compliance with the requirement of · art. 22(5) of the Constitution; (2) that the. order passed by the State Govern-ment should have been reasoned one; (3) that the power of preventive deten-tion conferred on the District Magistrate under s. 3 of the Act was violative of art. r. 19 of the Constitution and (4) that the order of detention was made in colourable exercise of power by the District Magistrate since no charge sheets were filed against him in respect ·or the two incidents set out in the detention order and in fact the cases were dropped.

Dismissing the petition,

HELl) : ( 1) It is indisputable on plain reading of s. 8 (1) that the representation that . may be maae by the detenu is to the appropriate Government and it is the appropriate Government which has to consider the representation. This, however, does not mean that the a9pro-priate Government can reject the reP.resentation of the detenu in casual and mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiased mind. Art. 22, clause ( 5) provides inter alia that the authority making the order of detention shall afford the detenu the earliest opportunity of making representation against the order of detention. It does .n.ot say as to which is the authority to which the representation shall be made or which authority shaT! consider it. But s.8(1) lays down in the clearest terms that the opportu.nity which is to be afforded to the detenu is to make representation against the order of detention to the appropriate Government. [214F; 215B; 2141;.-FJ

Jayanaraya11 Sukul v. State of West Bengal, [19701 3 S.C.R. 225 and Harad/ian Saha v. State of West-Bengal, W.P. 1999 of 1973, decided on August 21, 1974, followed.

(2) In Haradhan Saha's case it was held that there need not be speaking order. There is also no failure of justice by the order not being speaking order. All that is necessary is that there should be real and proper consi-deration by the Goverqment. [21SF]

Haradhan Saha v. State of West Bengal, August 21, 1974, followed.

W.P. 1999 of 1973, decided on

Bhut Nath Mate, v. State of West Bengal, A.I.R. 1974 SC. 806, referred to and explained.

(3) ,It is not possible to say that the District Magistrate is not an officer <if sufficiently high status or responsibility to be entrusted with the exercise of the power of preventive detention. The District Magistrate is the head of the administration of the district a-nd is incharge of maintenance not only of law and order but also of public order as also smooth flow of supplies and services essential to the community within his district and no fault can, therefore, be found with the legislature in entrusting the exercise cl. the power al preven-tive detention to him in cases where it is ncces.sary to exercise such power toethe purpose of mnintenance of security of the State or publi~ order O! uupplies and services essential to the community, Moreover, exercise of such power by the Dlstrkt Magistrate is made subject to the ~upervisory contl'ol andl check of the Stnte Government by the provision that the order of detention must be ap!)rovecl by the State Government within period of · t2 days frc1m the makinll of the· order of detention. The conferment of such ~owcr on the District Magistrate cannot be regal'ded as an unreasonable restriction on the right of personal liberty of citizen under Art. 19. [2160·0]

( 4) The order of detention made by the District Magistrate does not suffer from the vice of ma/a fides or colourable exeri:ise of power. It is now wall settled by several decisions of this Court that the mere fact that a· c:rimlnal case had to be dropped agai.nst ~c detenu becai.:se the investigatin~ agency could not procure evidence to sustain his conviction would not be sufficient to hold that tbe detention order mnde against him was main fide. [218F·IJJ

B. C. Blswqs v. State of West Bengal, [1!172) S.C.C. 666, followed.

ORIGINAL JURISDICTION : Writ Petition No. 467 of 1974.

Petition under Art. 32 of the Constitution of India.

R. K. Jain, for the petitioner.

G. S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

BHAGWATI, J.-The petitioner in this petition seeks writ of habeas corpus challenging the validity of his detention under an order made by the District Magistrate, Burd wan under sub-section ( 1) read with sub-section (2) of section 3 of the Maintenance of ID.ternal Security Act, 1971. The order of dc:tention was made on 10th July, 1973 on the ground that it was necessary to detain the petitioner with view to preventing him from acting in manner prejudicial t.o the maintenance of supplies and services essential to the community. Pur-suant to the order of detention the petitioner was arrested on 24th August, 1973 and immediately on his arrest he was served with the grounds of detention. There were two incidents referred to in the grounds of detention as forming the basis for arriving at the subj1ective satisfaction on the part of the District Magistrate and they were as follows :

"l. On 23.1.73 at about 03.00 hrs. you along with your

associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S .. Hirapur, Distt. Burdwan, and others committed theft in respect of two spans of electric. line, 240 feet in length from pole No. 7 to 9 in Street No. 23 of Chittaranjan· township, P. S. Chittaranjan, Dist. Burdwan and thereby clamped down: darkness over the entire area causing inconvenience and hard-· ship to the people in general living in that area, which is prejudicial to the maintenance of supplies and services essential to the community.

2. On 22-2-73 at about 04.00 hrs. you along with your associates (i) Michael Antony, SC!ll of M. Danial @ Ram Murti of. Purnlatalao, P. S. Hiraour, Dist. Burdwan, (ii) Dhiran Antony, son of Michael Pitter of Purniatalao, P.S .. Hirapur, Distt. Burdwan and others committed.

theft in respect of 2 electric conductors, 200 feet long from pole Nos. 1 and 2 at Cross Road No. 3, Sunset avenue, Chittaranjan township, P. S. Chittaranjan, Dist. Burdwan and thereby clamped down darkness in the entire area causing much inconvenience and hardship to the people in general living in that area, which is prejudicial to the maintenance of supplies and services essential to the community."

Meanwhile the District Magistrate reported the fact of the making of the order of detention to the State Government and the order of deten-tion was then approved by the State Government by an order dated 21st July, 1973. The State Government also reported the fact of approval of the order of detention to the Central Government within seven days from the date of the order of approval. The State Govern~ ment thereafter placed the case of the petitioner before the Advisory Board on 20th September, 1973. On 25th September, 1973 the n.:pre-~cntation of the petitioner against the order of detention was received by the State ·Government and after due and proper consideration the State Government rejected it by an order dated 29th September, 1973. The representation was then forwarded by the State Government to the Advisory Board and the Advisory Board, after considering the case of the petitioner and taking into account the. representation received from him, made report to the State Government on 23rd October, 1973 statipg that in its opinion there was sufficient cause for the detention of the petitioner. The State Government thereafter con-firmed the order of detention by an urder dated 1st November, 1973.

There were several contentions urged by Mr. R. K. Jain, learned Advocate appearing on behalf of the petitioner amicus curiaes against the validity of the order of detention and we shall deal with them in the order in which they were urged. But l>efdre we do so, we may point out that there was one contention sought to. be raised by Mr. R. K. Jain on behalf of the petitioner which we did not allow to be urged. That was that the power conferred by section 13 of the Act to detain person for period of twelve months or until the cessation of the emergency whichever is longer was violative of article 19 of the Constitution and, in any event, the continuance of the emergency was mala fide and the period of twelve months having eiapsed from the date of detention, the petitioner was entitled to be set free. We did not permit Mr. R. K. Jain to raise this contention on hchalf of the peti-tioner inasmuch as it involved question as to the validity of pro-vision of the Act and the legality of the continuance of the emergency and this question. could not be properly determined unless there was an adequate plea to that effect and the Central Government had an opportunity of meeting such ple_a by filing an affidavit and notice was also given to the Attorney General to enable him to make his submis-sion on this question. We would. therefore. confine ourselves only to the other contentions raised by Mr. R. K. Jain on behalf of the peti-tioner.

The first contention urged by Mr. R. K. Jain on behalf of the petic ticner was that the representation of the petitioner ought to 11ave been considered by a11 impartial tribunal constituted by the State Govern-ment and it was not sufficient compliance with the requirement of

art. 22, clause ( 5) that it should have been c<,msidered only by the State Goverhment. This contention was sought to be SUjJported by refe-rence to certain observations of Faz! Ali, J., and Mahajan, J., in A. K. Gopalan v. State of Madras.([1]) Now it is true that Fazal Ali, J. observed in this case that "the right to make representation which has been granted under the Constitution must carry with it the right to the representation being properly considered by an impartial person or persons-the constitution of an Advisory Board for the purpose of reporting whether person should be detained for 1more than three months or not is very different thing from constituting board for the purpose of reporting whether man s~ould be' detained for single day", and Mahajan, J., also ~aid : "the right has been conferred to enable detained person to prove his innocence and to ·secure justice, and no justice. can be said to be secured unless th·e representa-tirm is considered by some impartial person-it follows that no justice ca!l be held secured to him unless an unbiased person considers the merits of his representation and gives his opinion on the guilt or innocence of the person detained. In my opinion the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation 'Yith an unbiased mind and will render justice. That would in way make the prooccutor judge in the case and such procedur~ is repugnant to all notions of justice". But we do not think that thes·~ observations made by two out of six learned Judges can be regarded as laying down the law on thi! point. Since A. K. Gopalan's case(I) there has been long cotena of deci~ions of t,his Court where th~ view has consistently been taken that the re-presentation of the detenu must be considered by the State Govern-ment. Article22, clause (5) provides inter alia that the authority mak-ing the ord·::r of detention shall afford the detenu the earliest opportu· nity of making representation against the order of detention. It does not say as to which is the authority to which the representaticin shall b~ µmde or which authority shall consider it. But section 8, sub .. section (1) of the Act lays down in the clearest terms which admit of no doubt that the opportunity which is to be afforded to the detenu is to mnke representation against the cirder of detention to the app1·opriate Government. Therefore, it is indisputable on plain reading of section 8, sub·section ( l) that the representation that may be n:::dc by the pctenu is to the appropriate Government and it is the apprnpriate Governm~nt which has to consider the representation. This Court, speaking through Ray, J., (as he then was), affirmed this position in Jayanarayan Sukul v. State of West Benga/([2 ]) and pointed out inter alia that "the appropriate Government is to exercise its opinion imd judgment on the representation before sending the case alcnp ~ith the d_etenu's representation to the Advisory Board". So al~o in Haradhan Saha v. State of West Benga/([3 ]) this Court, speakino-through Ray, CJ., observed that "there is an obligation on the Stat~ to consider the representation-section 8 of the Act which casts an obligation on the State to consider the representation affords the

(I) [1950] S.C.R. 88.

(2) fl970) 3 S.C.R. 225.

(3) W.P. 1999 of 1973. dee. on Aug. 21, 1974.

detenu all the rights which are guaranteed by Article 22(5). · The Government considers the representation · to ascertain essentially whether the order is in conformity with the power under the law-the order of the Government rejecting the representation of the detenu must be after proper consideration". It may be pointed ot1. that botlt the decisions in Jayanarayan Sukul's case and Haradhan Saha's case (supra) were decisions rendered by Bench of five Judges. We must, therefore, hold that under section 8 ( 1) of the Act, it is the appro-private Government that is required to consider the representation of tJi.-.: detenu. This, however, does not mean that the appropriate Gov-ernment can reject the representation of the detenu in a· casual or mechanical manner. The appropriate Government must pring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha's case, (supra) "a real and proper consider:ition" of the representation by the appro-priate Government. We cannot over-emphasis·e the need for the clo-sest and most zealous scrutiny of the representation for the purpose of deciding whether the det·ention of the petitioner is jus.tified.

It was the~ ~ontendcd on behalf of the petitioner that the order passed by the State Government rejecting the representation of the detenu should be reasoner! order and since in the present case the order of the State Government did not disclose any reasons for reject-ing the representation of the petitioner, the detention of the petitioner .was invalid. The argument of the petitioner was that unless reasons were given bv the State Government. how could it be ensured that there .was real and proper consideration of the representation of the detenu. This contention, attractive though it may seem, is, in our opinion, not welJ founded. It stands concluded by the decision in Haradhan Saha's case (supra) to which we have just referred. It was pointed out in that case by Ray, CJ., speaking on behalf of the Court : "There need not be spe,aking order. There is also no failure of _justice bv the order not being speaking order. All that is necessary is that there should be real and proper consideration by the Government". These . observations must give quietus to the contention that the order of the State Government must be reasoned order. It is true that in Bhut Nath Mate v. State of West Be11C!al(1) Krishna Iver, J., soeaking on behalf of Division Bench of this Court observed that : "It mu:·t be self-evident from the order that the substance of the charge 1lnd the essential answers in the representation have been impartially con-sidered". but if we r·ead the judgment as whole there can be no doubt that these observations were .not meant to lay down Jegal requirement that the order of the State Government must he f,f:·~ak­ing order but they were intended to convey an admonition to the State Governm~nt that it would be eminentlv desirable if the order disclN.ed that "the substance of the charec and the essential answers in the representation" had been impartially considered. The learned Judge in fact started the discussion of this ooiRt bv stating : "We are not ·persuaded that speaking order should be passed bv rhe Governmrnt or by the Advisory Board while aoproving or advising continuance of detention". ---------~ In ---any event, the decision in Haradhan Saha's case (supra)

(1) A.LR. 1974 S.C. ~06.

being decision rendered by Bench of five Judges must prevail with us. We, therefore, reject the present contention of the petitioner.

The next contention urged on behalf of the petitioner was that it was obvious from the order of detention that the District Magistrate had made the order of detention in mechanical fashion without apply-ing his mind to the facts of the case relating to the petitioner. We do not think there is any substance in this contention. The order of detien-tion is in proper form and it does not betray any lack of application of mind on the part of the District Magistrate.

Then Mr. R. K. Jain on behalf of the petitioner contended that the power of preventive detention conferred on the District Magistrate uuder section 3 of the Act was violative of Art. 19 of the Constitution inas-much as the District Magistrate was hardly an officer of such high and respon;ible status as could be entrusted with the exercise of such drastic power subversive of personal liberty. This contention is also futile and must be rejected. It is not possible to say that the District Magis-trate is not an officer of sufficiently high status or responsibility to be untrusted with the exercise of the power of preventive detention. The District Magistrate is .the head of the administration of the District and is in charge of maintenance not only of law and order but also of public or~er as also s.!Tlooth flow of supplies and services essential to th1~ com· munity within his district and no fault can, therefore, be found with the legislature for entrusting the exercise of the power of preventive detention to him in cases where it is necessary to exercise such power for the purpose of maintenance of the security of the State or public order or supplies and servic> essential to the community. · Moreover, the exercise of such power by the District Magistrate is made subj<:ct to the supervisory control and check of the State Government by the provision that the order of detention must be approved l~y the: State Government within period of twelve days from the making of the: order of detention. The conferment of such power on the District Magistrate cannot in the circumstances be regarded as an unreasonable restriction on the right of personal liberty of critizen under Art. 19.

The next contention urged on behalf of the petitioner was that the order of det1~ntion was invalid since the District Magistrate had not stated in the 01tler that the petitioner would be likely to indulge in preiudicial acts in future and hence it was necessary to detain him. mere reading of the order of iietention is sufficient to repel this con-tention. The order of detention starts with the rectal that the Dis· tric~ Magistrate was satisfied with respect to the petitioner that "with v.1ew to prnventing ~im from acting in any manner prejudicial to the mamtenance of suoohes and services essential to the commun'itv" it w~s nece~sarv to detain. him. This recital clearly shows that th~ Dis-~nct M ag1strate was satisfied that the petitioner would be likely to act in manner prejudicial to the maintenance of supplies and services esse~tial to the con:munitv and that was the reason why the Distric;t Magistr.ate t~ought 1t necessary to detain the petitioner with view to preventmg him from acting in such manner. The satisfaction of the

District Magistrate as regards the necessity for detention of the peti-tioner was grounded on reasonable prognosis. 9f the future behaviour of tne petitioner based on his past conduct, namely, participation in the two incidents set out in the grounds of detention, judged in the light of the surrounding circumstances. The District Magistrate in fact stated in paragraph 4 of the affidavit in reply filed by him that he w~s satisfied that "if. the detenu-petitioner was not detained under the said Act he was likely to act further .in manner prejudicial to the maintenance of supplies and services essential to the community. The acts committed by detenu showed course ot conduct which satisfied me that it was necessary to make the said order of detention".. This contention must also, therefore, fail. Mr. R. K. Jain ori behalf of the petitioner then urged that there was nothing to show that the Central Government had applied its

Mr. R. K. Jain ori behalf of the petitioner then urged that there was nothing to show that the Central Government had applied its mind to the case of the petitioner on receipt of the papers from the State: Government. But this contention is also futile. It is clear from the affidavit in reply filed by tb,ll District Magistrate that the fact of the approval of the order of detention by the State Government was communicated to the Central Government along with the grounds of detention and such other p!J,rticulars as in the opinion of the State Gov-D ernmem had bearing on the necessity or an order of detention., Plainly, this was in compliance with the requirement of section 3, sub-section ( 4). Section 14, sub-section ( 1) undoubtedly conferred power on the Central Government to revoke or modify an order of detention but merely because the Central Government did not do so, it does not mean that the Central Government did not apply its mind to the case of the petitioner forwarded to it by .the State Government There is riothing to show that the_ Central Government did not consider the case of the petitioner or apply its mind to the grounds of detention and other particulars received by it from the State Government. The Central Government not being party to the petition, it could not have an opportunity of stating whether it appl;ed its mind to the case of the petitioner for the Purpose uf .<lecidinl); whether or not to intervene by revoking or modifying the order of detention.

It was also urged by Mr. R. K. Jain ori behalf of the petitioner that there was some other material before the District Magistrate besides the two incitients referred to in the grounds of detention and since this material was not disclosed to the petitioner, he was deprived of an opportunity of making effective representation and that vitiated the order of detention. Now. Mr. G. S. Chatterjee, lerrrned counsel ap-pearing on behalf of the State, produced before us the history sheet of the petitioner which was placed before the District Magistrate and which, we can legimately assume, must have weighed with the Dis-trict Magistrate in inducing the requisite subiective satisfaction. This historY-sheet showeld that besides the two incidents set out in the grounds of detention, there was no other material which could have possibly weighed with the District Magistrate in . reaching his subjeC·· tive satisfaction. Of course there was material of general nature about the antecedents of the petitioner but that could not possibly have had anv impact in the process of reaching subJective satisfaction

and we would therefore, be justified in accepting the statement of the District Magistrate in his affidavit in reply that the two incidents set out in the grounds of detention were the only material on which he based his subjective satisfaction for the J:>urpose of making the order of deten-tion. We accordingly reject this contention.

The last contention urged by Mr. R .. K. Jain on behalf of the: peti-tioner was that the order of detention was made by the District Magis-trate in colourable exercise of power, since no charge-sheets were filed against the petitioner in the court of the magistrate in resp1~ct of the two incidents set out in the grounds ot detention and the crimin.al cases registered with Chitaranjan Police Station were dropped by filing final Report as true, briefly described as F.R.T. To understand this con-tention it is necessary to state few facts which may be gathered from the affidavit in reply filed by the District Magistrate. The first iuci-dent took place on 23rd January, 1973 and in respect of it, criminal case was registered with Chittaranjan Police Station on 12th February, 1973. Similarly, in respect of the second incident, which took place on 22nd February, 1973, criminal case was registered with Chitta-ranjan Police Station on 2nd March, 1973. Both these criminal cases were tiled in the court of Sub-Divisional Juliicial Magistrate, Asansole. The name of the petitioner was not mentioned in the First Information Report in either of thesio two cases but his participation in the two incidents was revealed in the course of investigation. The petitioner was arrested on 1st March, 1973 in connection with some other case and he was shown as arrested in connection with these two cases since they were pending against him. The petitioner was thereafter releas-ed on bail though we do not know the precise date on which such re-lease was effected. It appears that no charge-sheet was filed in both these cases and these cases were droppetl by filing F.R.T. The affidavit in reply does not state as to what was the reason for which F.R.T. was filed and these cases were dropped but taking the case of the State at its worst. we may presume that this was_ done as the police c:ould not procure evidence to sustain the conviction of the petitione1:. The petitioner was discharged from these cases on 6th June. 1973 an-\ from, the other case nlso he was discharged on 14th June, 1973. The 01-lder of drt~ntion wa~ thereafter made on 10th July. 1973 but the petitioner was abscondinJt and he could not, therefore, be arriested until 2·1th Au1zust, 1973. On these facts it is difficult to see how it can be contended that the order of detention was passed by the Dis~ trict Magistrate: mala fide or in colourable exercise of his power. It is now well settkd by several decisions of ·-this Court that the mere fact that criminal case had to be dropoeld against detenu because: the investigatfon could not procure evidence to smtain his convktiorr would not be sufficient to hold that the detention order made against him is mala fide. We mav refer onlv to one of these decisions. narnelv, B. C. Biswas v. State of West Ben!!C'/.(I) There, the grounds on which the order of detention was ba~ed rl'ferred to two inci<ll'nts in which the detenu and his ass<'ciates were-alleged to have participated. Reports were lodged with the police against the detenu in resoect of the two incidents mentioned in th~ grounds of detention. The investigating (!) [1972] s. c. c. 66f.

officer after investigating the cases relating to those incidents submitc ted ~·eport that "nothmg could be had against the peuuoner". The. detenu was, therefore, discharged in those cases. l he argument urged on behalf of the detenu was that in the circumstances the order of detention should be held to ·be. mala fide. This argument was rejected by Division Bench in !he fo1lo~ing words :

.. In our opinion, even if it may be assumed that cases were registered against the petitioner by the police in respect of the two incidents mentioned in the grounds of detention aml the police as res\tlt of the investigation could not procure evidence to sustain the, conviction of the petitioner, that fact would not be sufficient to hold that the detention order m~de against the petitioner was mala fide. The matter is indeed concluded bv decision of this Court in the case. of Sahib Singh DugaJ, v. Union of India.P) The petitioner in that case was arreste(l on December 6, 1964, for offence under the Official Secrets Act. On March 11, 1965, the Investigating Officer made report to the Court to the effect that the petitioner and others involved- in that criminal case might be discharged as sufficient evidence for their conviction. could not be discovered during the investigation. The Magis-trate consequently discharged the petitioner and others. Immediately after the petitioner came out of the Jail, he was servet:l with an order for his ·detention under Rule 3()( 1) (b) of the Defence of India Rules. One of the con-. tentions which was advanced on behalf of the petitioner In petition under Article 3 2 of the Constitution was that the detention order was mala fide .inasmuch as it had been made after the authorities had decided to drop criminal proceed-ings because of inability to get sufficient evidence to secure conviction. This contention was repelted by this Court and it was held that th!;' above circumstance was not sufficient t~ lead to th~ inference that. the action of the detaining autho-nt.y was mala fide. This Court observed :

"We cani10t infer merely from the f'act thnt the autho-rities decilded to drop the case under the Official Secrets Act and thereaf.ter to order the detention of the petitioners under the Rules that the order of detention was niala ftde." Jn view of the above, we hold that the order for the de-tention of the petitioner h~s not been shown to be mala fide."

We must for the same reason's hold that the order of detentk made by the District Magistrate in the present case does not guff from the vice of .mala fidp or colourable exercise of power.

· These were the only contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and the rule· is discharge(}.

Petition dismissed;

-------- - --- --

(1) [1966] 1 S. C. R. 313.