1. This is an application under Article 226 of the Constitution of India for the issue of a writ of habeas corpus after setting aside the order of detention dated 4-5-1974 passed by the District Magistrate, Kamrup, Gauhati (Annexure 'A') under Section 3 (2) (a) of the Maintenance of Internal Security Act, 1971. hereinafter referred to as 'the Act'.
2. The impugned order of detention (Annexure 'A') reads as under:
Whereas I am satisfied with respect to the person known as Shri Biswa Goswami S/o late Jamini Kanta Goswami of Silpukhari, P. S. Gauhati, District Kamrup, that with a view to preventing him from acting in a manner prejudicial to the maintenance of services essential to the community, it is necessary to make the following orders:
Now. therefore, in exercise of the powers conferred on me under Section 3 (2) (a) of the Maintenance of Internal Security Act, 1971, I Shri B. P. Singh. I. A. S., District Magistrate, Kamrup, Gauhati do hereby direct that the said Shri Biswa Goswami be detained with immediate effect and until further orders at Gauhati Jail.
3. The grounds of detention which were furnished to the detenu, as required under Article 22(5) of the Constitution of India and Section 8 (1) of the Act, read as under:
That, you. being a leader of the Assam Unit of the Socialist Party and Vice-President of the N. F. Railway Mazdoor Union, addressed meetings of Railway employees on 16-3-1974. 20-3-1974 and 22-3-1974 at Maligaon and incited the Railway employees to resort to indefinite strike demanding fulfilment of their demands and in pursuance of such incitement the Railway employees whose unions or associations are constituent members of the National Co-ordination Committee for Railwaymen's Struggle have decided to launch an indefinite strike with effect from 8-5-1974 in N. F. Rly. Zone and as a result the movement of essential commodities in Kamrup District going to be completely immobilised.
You are, thus, acting in a manner prejudicial to the maintenance of supplies essential to the community in this district and your being at large has jeopardised the maintenance of supplies.
Sd/- B. P. Singh,
District Magistrate, Kamrup, Gauhati.
4. The petitioner has urged inter alia that the grounds of detention (Annxeure 'B') are vague as well as irrelevant and non-existent and that, accordingly, the detenu is entitled to the issue of a writ of habeas corpus, as prayed for by him.
4-A. It has been settled by a long series of decisions by the Supreme Court that a person detained under this Act or provisions similar to this Act. must be served with an order containing firstly recitals in terms of one or more of the sub-clauses (i), (ii) or (iii) of Clause (a) or of Clause (b) of Sub-section (1) of Section 3 of the Act, which may be called the preamble and secondly with the grounds contemplated by Section 8 of the Act and required to be furnished under Article 22(5) of the Constitution, namely the conclusions of fact which have led to the passing of the order of detention, informing the detenu as to why he is being detained. As has been held in State of Bombay v. Atma Ram Shridhar : 1951CriLJ373 , Clause (5) of Article 22 of the Constitution of India confers two distinct though inter-related rights on the petitioner, namely (1) the right to be informed of the grounds on which the order of detention has been made, and (2) the right to be enabled, at the earliest opportunity, to make a representation against the order. It was made clear in that case that the grounds which have a rational connection with the objects mentioned in Section 3 of the Preventive Detention Act, (analogous to Section 3 of the M. I. S. Act), have first to be supplied. As soon as that is done, the first condition of a valid detention is complied with. The second condition of such a detention is fulfilled only after the detenu has been supplied with such information as will enable him to make a representation. This aspect of the matter was again clearly enunciated in Naresh Chandra v. State of West Bengal : 1959CriLJ1501 , where their Lordships stated:
The statement of facts contemplated by Section 7 (Preventive Detention Act) would, thus, constitute the grounds and not the, matters in one or more of the clauses and sub-clauses under Section 3 (1) (a) .and (b) of the Act. Thus on a consideration of the provisions of Sections 3 and 7 of the Act it may be observed that the detenu has to be served with a copy of the order passed by the authority contemplated by Sub-section (2) of Section 3, containing, firstly, recitals in terms of one or more of the sub-clauses of clauses (a) and (b) of Section 3 (1), which we may call the 'preamble', and secondly, the grounds contemplated by Section 7, namely, the conclusions of fact which have led to the passing of the order of detention, informing the detenu as to why he was being detained. If the grounds do not contain all the particulars necessary for enabling the detenu to make his representation against the order of his detention, he may ask for further particulars of the facts, and the authority which passed the order of detention is expected to furnish all that information, subject, of course, to the provisions of Sub-section (2) of Section 7 Thus, the order of detention to be served upon the person detained would usually consist of the first two parts, namely, the preamble and the grounds, but it may also consist of the third part, namely, the particulars, if and when they are required or found to be necessary.
5. In the instant case, the petitioner has contended that the grounds furnished to him vide Annx. 'B' are vague and that the information supplied in the said grounds does not enable him to make a proper and effective representation in that the same does not contain sufficient particulars. Mr. B. C. Barua. the learned Counsel appearing for the petitioner has submitted that the particulars supplied do not disclose at what place or places in Maligaon the alleged meetings were held and who were the railway employees who were present in such meetings. In our opinion, if the detenu was not really in a position to make an effective representation on basis of the information supplied to him in Annexure 'B', he was certainly entitled to ask for further necessary particulars, which he however did not do in the instant case. We, therefore, cannot hold that the grounds contemplated under Section 8 of the Act, that is to say, the conclusions of fact which have led to the passing of the order of detention and informing the detenu as to why he was being detained, are so vague as to amount to an infringement of the detenu's right, particularly when it has not been shown that the detenu has asked for further particulars and been denied the same.
6. The petitioner's next contention is that the chain of facts and circumstances said to have been the basis of the order of detention, that is to say, the materials on basis of which the order of detention was passed had such palpably weak links that it would affect the legality of the whole order. This argument postulates that there are grounds which are irrelevant or non-existent. Mr. Barua places particular reliance as regards this aspect of the matter on the observations in Dwarka Das v. State of Jammu and Kashmir : 1957CriLJ316 to the effect that where some of the reasons on which the order of detention has been passed are found to be nonexistent or irrelevant, the court ought to quash the order, because it is not in a position to know which of the reasons or grounds had operated on the minds of the authorities concerned when they decided to pass the impugned order.
7. In the Instant case, the grounds, that is to say, the chain of the facts and circumstances forming the basis of the order of detention were, firstly, that the detenu being a leader of the Assam Unit of the Soclialist Party and Vice-President of the N. F. Railway Mazdoor Union addressed meetings of Railway Employees on 16-3-1974, 20-3-1974 and 22-3-1974 at Maligaon; secondly, that he incited in those meetings the Railway employees to resort to indefinite strike demanding fulfilment of their demands; thirdly, that in pursuance of such incitement the Railway employees whose unions or associations are constituent members of the National Co-ordination Committee for Railway-men's struggle decided to launch an indefinite strike with effect from 8-5-1974 in JST. F. Rly. Zone; and fourthly, that as a result, the movement of essential commodities in Kamrup District was going to be completely immobilised.
8. Mr. Barua drew our attention to the affidavit filed by the Additional District Magistrate, Gauhati on behalf of the District Magistrate, Kamrup. where it has been stated:
The deponent further begs to submit that for the purpose of detaining a person under the provisions of the Maintenance of Internal Security Act, it is not necessary, in fact, that there should have been a strike or whether the negotiation committee or any other body in fact should decide to launch the strike. The deponent humbly submits that the question of final decision to launch an indefinite strike was irrelevant.
On these premises, Mr. Barua submits that one very essential link in the chain of the facts and circumstances set out in the grounds pf detention (Annexure 'B'), namely that in pursuance of the detenu's incitement the Railway employees had decided to launch an indefinite strike, was admitted to be irrelevant by the detaining officer. If the launching of the strike in pursuance of the detenu's incitement was not considered to be a fact or circumstance relevant to the passing of the order of detention, the entire chain would be broken, since disruption of supply of essential commodities was stated, in the grounds, to be a result of such launching of the strike. It may be noted here that, in the instant case, such disruption alone could be the ground having a rational connection with one of the sub-clauses in Section 3 (1) (a) of the Act, namely Sub-clause (iii), and that if this disruption resulted from an act which was considered irrelevant by the detaining authority, there would cease to be any justification for the detention order, as the chain of facts and circumstances set forth in the grounds would not only have a weak link, but a missing link. Detention cannot be justified where any of the grounds communicated to the detenu under Section 8 of the Act are found to be not existing, or given up or cancelled, provided, of course, such ground is not of an unessential nature. As their Lordships observed in Rameshwar Lai v. State of Bihar : 2SCR505 :
We are not concerned with the sufficiency or the reasonableness of the grounds. In this case at least two grounds are vague, one ground is found to be false and of the remaining in one there is no explanation and in the other there is a lame excuse that the driver of the truck did not furnish the full information. The case is thus covered by our rulings that where some grounds are found to be non-existing or are cancelled or given up the detention cannot be justified. It is further covered by our decisions that if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the detention can be questioned. This case displays both these defects and it is a matter of great regret that powers of detention without a trial, which should be exercised with the greatest care and attention have been exercised in this case with such disregard to truth and accuracy.
9. Our attention has also been Invited to a decision of the Supreme Court in Shibban Lai v. State of U.P. : 1SCR418 , where their Lordships have held.
Where however the Government itself while confirming the detention in exercise of its powers under Section 11 (Preventive Detention Act) admits that one of the two grounds mentioned in the original order is unsubstantial or nonexistent, to say that the other ground, which still remains, is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.
10. As regards the purpose and object of an affidavit in a habeas corpus application, we may refer to Bhut Nath v State of West Bengal (1974) 1 SCC 645 : (1974 Cri LJ 690 = AIR 1974 SC 806), where their Lordships have observed:
Why is an affidavit then needed at all The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre-emptive casting into prison is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis iii the form of an affidavit. The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainee later for misuse.
An affidavit, therefore, Is intended to satisfy the court that the fact of subjective satisfaction was solemnly reached and that the deponent of the affidavit, who undertakes responsibility for the action, shows therein what facts he had considered relevant and what he had excluded as being irrelevant facts and what was the degree of danger warranting the preemptive detention. No doubt, a mere omission to file an affidavit by the detaining authority would not necessarily vitiate a detention order. But, where such an affidavit discloses the facts which the detaining authority had taken into consideration and it appears that these facts were either extraneous or not the ones that were stated in the detention order, surely that would cast a serious infirmity on such detention order. This extraneous or irrelevant or abandoned ground must, however, be not of an unessential nature. It was held in Manu Bhusan Roy Prodhan v. State of West Bengal : 1974CriLJ401 that where one of the two grounds on which detention order is based has no relevance or relation to the disturbance of public order but that ground is of an unessential nature, the detention order need not be set aside merely because of that.
11. We may also refer to the following observations in Keshav Talpade v. The King Emperor, 1943 FCR 88 : (44 Cri LJ 719 = AIR 1943 FC 72):
Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some, out of them are found to be non-existent or irrelevant, the very exercise of that power is bad. That is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based. If some out of them are found to be nonexistent or irrelevant, the Court cannot predicate what the subjective, satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles however the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority, It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged.
12. In the instant case, it is quite clear from the affidavit that whether or not the Railway employees did launch the strike in pursuance of the detenu's Incitement was considered to be irrelevant. In the grounds furnished to the detenu at Annexure 'B' it was, however, stated that it was in pursuance of the detenu's incitement that the employees launched the strike and that as a result of such strike there was disruption in the movement of essential commodities. If the affidavit is to be believed, as it must be. the launching of the strike was considered to be an irrelevant fact, being of no importance, We must therefore take it that this particular reason could not have been the basis of the order of detention and, surely this ground or reason could not be held to be of an unessential nature, since the next reason operating on the mind of the detaining authority was that it was as a result of the strike that the supply of essential commodities was disrupted. We are, therefore, of the opinion that a very essential link in the chain of facts and circumstances, set forth in the grounds of detention, has been completely abandoned and that therefore the conclusion that the detenu was responsible for disruption of the movement of essential commodities was clearly unwarranted and mala fide.
13. We may also refer to Shaik Hanif v. State of West Bengal : 1974CriLJ606 where it has been observed that since the court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it if all the more desirable that in response to the rule nisi, the counter-affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under Section 3 was passed, to show that no extraneous or irrelevant grounds had been taken into consideration and should also state what were the grounds that had been taken into consideration. In the instant case, it is quite clear from the affidavit that whether there was a strike or no strike, the petii tioner would have been detained. This shows that the grounds furnished to the detenu vide Annexure 'B' were a complete camouflage, being a fraud legis, and did not repre sent the true grounds on which the order of detention was based. It appears from the affidavit that the detaining authority was determined to pass the order of detention, irrespective of any decision of indulging in a strike, as a result of the incitement by the detenu, though the grounds state otherwise. To that extent, the grounds must be held to be mala fide.
14. Mr. Barua also Invited our attention to the conclusion in Annexure 'B' which reads as under:
Your are, thus, acting in a manner prejudicial to the maintenance of supplies essential to the community in this district and your being at large has jeopardised the maintenance of such supplies.
The above may be taken to be a reiteration of the grounds which are supposed to be in the preamble or recital, and which must therefore be relatable to Sub-clause (i), (ii) or (iii) of Clause (a) of Section 3 (1) of the Act. It may be noted from the above that the detaining authority has come to the conclusion that the detenu's being at large has jeopardised the maintenance of such supplies. The object of an order of detention under the Act is not a punitive one. but a preventive one. It is not however stated in the grounds that his being at large will or is likely to jeopardise the maintenance of supplies; on the contrary, what is stated is that his being at large has already jeopardised the maintenance of such supplies. In other words, there is no apprehension in the mind of the detaining authority that the detenu's being at large is any threat to the maintenance of supplies of the essential commodities calling for any preventive action. On the other hand, the detention order is being passed, because the incitement by the detenu has already jeopardised the maintenance of supplies. The object of such detention is thus clearly a punitive one and not a preventive one, and therefore beyond the scope of the Act.
15. We are. for reasons stated above, of the opinion that the order of detention must be held to be bad in law. We, accordingly, set aside the said order and direct that the petitioner be released forthwith from detention. This order of the Court was already passed on 24-5-1974, but today we give our detailed reasons for the same.
D. Pathak, J.
16. I agree.