Sasti@ Satish Chowdhary v. State Of WEST Bengal

Judgment

ORIGINAL JURISDICTION : Writ Petition No. 37 of 1972.

(Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus.

T. S. Arora, for the petitioner. S. C. Ma;umdar and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by-

Khanna, J. This is a petition through jail under article 32 of the Constitution for the ismance of a writ ::>f habeas corpus by Sasti alias Salish Chowdharv, who has been ordered by the District Magistrate Howrah to be detained under section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the Act). The crder recited that it was made with a view to preventing the petitioner frcm acting in any manner prejudicial to the maintenance of supplies and services es,,ential to the community. The order or detention was passed by the District Magistrate on Septeml:ler 8, 1971. The petitioner, it is stated, was found to be absconding soon after the passing of the order. He was arrested on November 23, 1971 and was served with the order of detention and the grounds of detention together With vernacular translation thereof on the same day~ In the meanwhile on September 8, 1971 the District Magistrate sent report to the State Government about his having made the order of detention along with the grounds of detention and other necessary particulars. The matter was then considered by the State Government. It approved the detention order on September 10, 1971. The same day the State Government sent report to the Central Government along with necessary particulars regarding the necessit:Y of the order. On December 10, 1971 the State Government received a representation of the petitioner. The said representation, after being considered, was rejected by the State Government on December ·21, 1971. On December 22, 1971 the. State Government placed the case of the petitioner before the Advisory Board. The representation of the petitioner was also sent to the Advisory Board. The said Board, after considering the material placed before it, including the representation of the petitioner, and after hearing him· in person, sent its report to the state Government on Januaiy 28, 1972. Opinion was expressed by the Advisory Board that there was sufficient cause for the petitioner's detention. On February 11, 1972 the State Government confirmed ~he order of detention of the petitioner. Communication of the said confirmation wall thereafter sent to the petitioner.

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SASTI v. WEST BENGAL (Khanna, J.)

In opposition to the petition Shri J)ipak Kumar Rudra, Dist-· rict Magistrate, who made the impugned order, has filed his affidavit.· Mr. Arora has argued the case amicus curiae on behalf of the petitioner, while the State has been reprensented by Mr. Majumdar.

Before dealing ·with the contention advanced by Mr. Arora, it would be pertinent to reproduce the portion of the grounds of detention whfoh contains the necessary particulars : "You are being detainell in pursuance of detention order made in exercise of the powers conferred by sul>section (1) read with sub-section ( 2) of section 3 of the Maintenance of Internal Security Act, 1971 (Act No. 26 of 1971), on the grounds that you have been acting in a manner prejudicial to the maintenance of supplies and services essential to the community as evidenced by the particulars given below : (1) On 9.7.71 at ·about 23.30 hrs. you and your associates Sk. Nazam, Kesta Adhikary, Bablu Das, Kachi Chakravarty and 3/4 others were fou.nd to commit theft ii1 respect of overhead electric wires between two posts near Zanana Latrine of Lawrence & Co. at Chakkashi by the darwans on duty. You and your associate Sk. Nazam. were seen on the top of the post cutting one end of the electric wire, while your associates were roll'· ing the cut end of the wire from other post. The ch:rwans raised alarm and surrounded you with the help of local people. Your associate Sk. Nazam with other escaped and you and two other of your associates could be arrested at the spot with stolen copper wire. This created complete dislocation cf electric supplies of the· area."

It is afgued by Mr. Arora that as the act attributed to th€i petitioner in the grounds of detention constituted an offence under the Indian Penal Code, the petitioner could only be tried in a court of law for the offence and no order for his detention on that score could be made. This contention, in our opinion, is devoid of force. It is always open to the detaining authority to pass an order for the detention of a person if the grounds· of detention are germane to the object for which a detentioff order can 1.egally be made. The fact that the particular act of the detenu which provides the reaoon for the making of the detention order constitutes an offence under the Indian Penal Code would not prevent the detaining authority from passing the order for detention instead of proceeding against him in a court of law. The d~taining authority might weill feel· that though there was

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SUI'.REME COURT REPORTS

[1973] I S.C.R.

not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of sUG:h a nature as to justify the order of detention. There would be llO legal ba,r to .lhe making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention shoold be relevant and germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a court of law in respect of an incident and has been discharged by the trying magistrate, a valid order of his detention can b" passed against him in connection with that very incident. It was recently observed by this c Court in the case of Mohd. Salim Khan v. Shri C. C. Bose & Anr. (Writ petition No. 435 of 1971 decided on April 25, 1972) that from the mere fact that a detenu was discharged in a criminal case relating to an incident by .!I magistrate, it could not be said that the detention order on the basis of that incident was incompetent, nor could it be -inferred that it was without basis or mala D fide. Reliance in this connection was placed upon the case of Sahib Singh Duggal v. Union India('). The particulars of the incident in the grounds of uetention show that the petitioner and his associates committed theft in respect of overhead electric wires between two pq~ts near Zanana Latrine of Lawrence & Co. at Chakkashi: The above act of the petitioner and his associates created complete dislocation of electric supplies of the area. The above ground of detention, in our opinion, was germane t-0 the object for which a detention order can be made under section 3(1)(a) (iii) of the Act. According to that provision, the detaining authority may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary so to do make an order directing that such person be det11ined. Mr. Arora has referred to the case of Pushkar Mukherjee & Ors. v. .The State of West Bengal(') wherein this Court dealt with the difference between the concept of public order and law and order and observed that the said difference was similar to the distinction between public and private crimes in the realm of jurisprudence. It wa.q observed that a line. of demarcation must be drawn between seri<;ms and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals arid only in a secondary sense public interest. (1) [196G] 1 S.C.R. 313

(2) [1969] 2 S.C.R. 635.

SASTI v. WEST BENGAL (Khanna, J.)

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Pushkar Mukherjee's case(1) was referred to in a later decision of this Court in the case of Arun Ghosh· v. State of West Bengal(') and it was pointed out that the true distinction between the areas of "law and order" and ''public order" was one of degree and extent of the reach of the acU in question upon society. Acts similar in nature,, but committed in different contexts and circumstances might cause different reactions; in one case it might affect the problem of the breach of law and order, and in another the breach of public order. It was observeq .that the analogy resorted to in the Pushkar Mukherjee's case (supra) of crimes against individuals and crimes against the public though useful to a limited extent would not alweys be apt. An assault by one· individual upon another would affect law and order only and cause its breach. A similar assault by a member of one community upon a leading individual of another community, though similar in quality, would differ in potentiality in the sense that it might cause reverberations which might affect the even tempo of the life of the community. The Court pointed out that "the a(;~ by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it mav be very different." (see· also Nagendra Nath Monda/ v. State of West Bengal(').

The distinction between public order and the mailltenance of' law and. orc!er has, IJowever, not much material bearing on the present case because, as .stated above, the petitioner has been de· t11ined not witb a view to preventing him from aoting in any .man·· ner p1ejudicial to the maintenance .of pilblic order, but with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services eS5ent1al to the community.

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'No other infirmity .i11. the detention or~ itnd the consequent dete.ntion of ·.the. petitioner ]j~s be.:n brought to. oqr notice. The petition. consequently fails and 'is dimilssed ..

G.C.

(l) [19691 2 S.C.R. 635.

Petition dismissed.

(3) [1~72) 2 s.c.c. 4~8.

(2) [1970) 3 S.C.R. 288.