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Sunil Kumar Samaddar Vs. the Superintendent, Hooghly Jail and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case No. 55 of 1971
Judge
Reported inAIR1972Cal35,1972CriLJ244,75CWN751
ActsWest Bengal (Prevention of Violent Activities) Act, 1970 - Section 3 and 3(2)
AppellantSunil Kumar Samaddar
RespondentThe Superintendent, Hooghly Jail and ors.
Appellant AdvocateNaranarayan Gooptu, ;Indrajit Sen and ;B. Malkhandi, Advs.
Respondent AdvocatePriti Bhusan Burman and ;Bhaskar Sen, Advs. for State
Cases ReferredPuskar Mukherjee v. The State of West Bengal
Excerpt:
- n.c. talukdar, j. 1. this rule was issued on an application under section 491 of the code of criminal procedure praying for a writ and/or order and/or direction in the nature of habeas corpus on behalf of the detenue, sunil kumar samaddar, and is against the state of west bengal through the secretary, home department, superintendent hooghly jail, the assistant secretary, home (special) government of west bengal and the district magistrate, hooghly. 2. the applicant before us hasbeen detained under section 3, sub-section (1) read with sub-section (3) of the west bengal (prevention of violent activities) act, 1970 (president's act no. 19 of 1970) by an order, being order no.247/j. m./p. v. a. dated the 25th december, 1970 passed by the district magistrate, hooghly. by a further order.....
Judgment:

N.C. Talukdar, J.

1. This Rule was issued on an application under Section 491 of the Code of Criminal Procedure praying for a writ and/or order and/or direction in the nature of habeas corpus on behalf of the detenue, Sunil Kumar Samaddar, and is against the State of West Bengal through the Secretary, Home Department, Superintendent Hooghly Jail, the Assistant Secretary, Home (Special) Government of West Bengal and the District Magistrate, Hooghly.

2. The applicant before us hasbeen detained under Section 3, Sub-section (1) read with Sub-section (3) of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19 of 1970) by an order, being Order No.247/J. M./P. V. A. dated the 25th December, 1970 passed by the District Magistrate, Hooghly. By a further order No.248/J. M./P. V. A. dated 25-12-1970, theapplicant was directed by the said District Magistrate to be detained in theHooghly Jail. The petitioner is statedto have been arrested on the 24th December, 1970 and served with thegrounds of detention.

3. A copy of the order of the detention marked as annexure 'A' to the petition moved in this Court is as follows:

'No. 247/J. M./P. V. A. dated, Chinsurah, the 25-12-1970

Whereas I am satisfied with respect to the person known as Shri Sunil Samaddar S/o Lt. Rajendra Nath Samaddar of Bhunpur P.S. Pandua, Dist. Hooghly that with a view to preventing him from acting in any manner prejudicial to the maintenance of Public Order, it is necessary so to do. I, therefore, in exercise of the powers conferred by Sub-section (1) read with Sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970, (President's Act No. 19 of 1970) make this order directing that the said Shri Sunil Samaddar be detained.

Given under my hand and seal of office. District Magistrate, Hooghly.'

The grounds of detention as annexed are:

'(1) On 5-12-1969 at about 08.30 hrs. at Sargoria Mouza you along with your associates after forming unlawful assembly forcibly harvested the paddy crop from the lands of Shri Bejoy Keshob Kumar and Shri Charan Tulshi Bhattacharjee of Baidyapur, P.S. Kalna and took away same depriving them from their legal ownership of the crop. (2) On 7-6-1970 at about 07.00 hrs. at Bhunpur you along with your associates assaulted Shri Tarak Das Kumar and others of Bhunpur and wrongfully confined them till the arrival of police party while they were proceeding to Boinchee with a cart load of boiled paddy for husking purposes. (3) On 23-6-1970 morning you along with your associates went to the land of Shri Tara Pada Banerjee of Inchura, P.S. Pandua and did not allow his labour to cultivate land.

(4) On 23-6-1970 morning you along with your associates went to the land of Shri Tara Pada Banerjee of Inchura, P.S. Pandua and assaulted the labourers who were ploughing land and threatened to murder them.

(5) On 28-6-1970 at about 22 hrs. you along with your associates being armed with bomb formed an unlawful assembly in front of the Bhunpur Police Camp and exploded towards the police personnel with a view to injure them.

(6) On 19-12-1970 at about 14.30 hrs. you along with your associates formed an unlawful assembly and violated the order promulgated Under Section 144, Criminal Procedure Code and abducted one Jahangir Sattar S/o Lt. Abdus Sattar, Ex-Labour Minister, West Bengal and assaulted him with deadly weapon at Raijmna village, P.S. Pandua.

(7) On 24-12-1970 at 12.30 hrs. you along with your associates gheraod the arresting police party after forming an unlawful assembly at Bhunpur P.S. Pandua during the time of arrest pelted brick, brickbats towards them causing damage to the vehicle and also assaulted some of the police personnel causing injuries on their persons.'

4. Mr. Naranarayan Gooptu, Counsel (with Messrs Indrajit Sen and B. Malkhandi, Advocates) appearing on behalf of the applicant has challenged the order of detention on a three-fold ground. Mr. Gooptu contended in the first instance that the grounds are vague and indefinite, preventing the applicant from making an effective representation to the authorities denying him thereby the right guaranteed under Article 22(5) of the Constitution of India. The next contention of Mr. Gooptu is that there is malice in law vitiating the order of detention inasmuch as amongst others, specific cases were pending over the same subject-matter, constituting also the grounds of detention. The third and last contention of Mr. Gooptu is that the grounds of detention are neither proximate nor relevant, there being no direct or causal connection or nexus with the purpose of detention under the West Bengal (Prevention of Violent Activities) Act, 1970. In support of his submissions Mr. Gooptu referred to several cases which will be considered in their proper context. Mr. Priti Bhusan Burman, advocate (With Mr. Bhaskar Sen, Counsel) appearing on behalf of the respondent joined issue. He contended that the objection on the ground of vagueness is quite unfounded as will be borne out by the grounds themselves and the de-tenue was not handicapped in any manner to make an effective representation to the authorities against the order. Mr. Burman next contended that there is no malice in law and that there is no bar to an order of detention merely because a criminal case is pending over the same subject-matter on which the order of detention is passed. Mr. Burman lastly contended that the grounds of detention are not in any manner irrelevant as alleged or at all and that there is a proximate connection or nexus with the purpose of detention under the Act. An Affidavit-in-opposition affirmed on 6-3-71 by the respondent No. 3, the District Magistrate, Hooghly was filed.

5. Before we proceed to consider the grounds of detention it will be pertinent to consider the provisions of the President's Act No. 19 of 1970. The West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19 of 1970) is a new enactment, highlighted by a notable departure from the earlier piece of legislation on the subject viz., the Preventive Detention Act IV of 1950 and for a proper appreciation, the said provisions should be considered in the light of the principles of Preventive Detention. The law of Preventive Detention is not an emergency law but an extraordinary enactment. Preventive Detention is a palpable exception to the basic canon of Western Jurisprudence that a man is innocent until proved guilty. In such Acts, as has been observed by David H. Bayley in his book on 'Preventive Detention in India', 'the requirements of stability warred with the benefits of permissiveness'. The concept of preventive detention though a chequered one is as old as the hills. Flickering glimpses thereof as found in the East India Company Act, 1780 were focussed more prominently in the East India Company Act, 1784; forged thereafter strongly in the Bengal Regulation of 1812; reinforced in the Bengal State Prisoners' Regulations, 1818 and the State Prisoners' Regulations of Madras and Bombay as also the State Prisoners' Act, 1850; given a clearer shape in the Defence of India Act, 1915; vested with a distinct form in the Defence of India Act, 1939; specifically incorported in Article 22(3) of the Constitution of India; culminating in the Preventive Detention Act, 1950 (Act IV of 1950); and ultimately resurrected in the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19 of 1970).

6. The object of the President's Act No. 19 of 1970 is a specific one viz., 'to provide for detention with a view to preventing violent activities and for matters connected therewith.' Section 3 (2) of the said Act is a significant addition, constituting a distinct departure from the Preventive Detention Act IV of 1950 and while attempting to define the expression 'acting in any manner prejudicial to the security of the State or the maintenance of public order' it gives only a qualified definition thereof, excepting in Section 3 (2) (a) (ii) and 3 (2) (c). The definition however has been made exhaustive by the use of the Word 'means'. The expression 'mean' has been defined in the Shorter Oxford English Dictionary, revised and edited by C. T. Onions, as 'to intend to have a particular reference' or 'to intend to indicate or to convey.' According to the Rules of Interpretation of Statute the word 'mean' has a specific connotation. A reference may be made to the observations of Lord Esher, Master of the Rolls, in the case of Gough v. Gough, (1891) 2 QB 665. When a statute incorporates the phrase 'mean' and not 'include', in relation to certain things or acts, 'the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put out in the definition.' Roland Burrows in his 'Words and Phrases Judicially defined' has referred to the definition of the word 'mean' by Mr. Justice Stringer; it is 'Explanatory and restrictive in contradistinction to the use of the word 'includes', which is extensive.' Accordingly, in the periphery of the President's Act No. 19 of 1970, the meaning of the expression 'acting in any manner prejudicial to the security of the State or the maintenance of public order' is not as wide as in the Preventive Detention Act, 1950, having been circumscribed within the ambit of Section 3 (2) (a) to (e). To put it in a short compass, the sine qua non of the provisions incorporated in Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 are '(a) acting in any manner prejudicial to the security of the state or the maintenance of public order; (b) such acts must be within the bounds of Section 3 (2) (a) to (e); (c) the same must take place against the backdrop of violent activities, to prevent which the Act came into force; and (d) the overriding consideration orthe State Government for such detention being preventive and not punitive. Anything short of this would be long off the mark.

7. It is against the background of the aforesaid provisions and in the light of the affidavits affirmed as also the submissions made by the learned counsel appearing on behalf of the respective parties that we will now proceed to consider the grounds of detention. The grounds of detention, which are seven in number, are spread over a period of one year and nineteen days. The first ground refers to some acts taking place on 5-12-1969 when the Preventive Detention Act, 1950 was in force and the next ground is separated therefrom by over six months. We will take up in the first instance ground No. 1 for consideration. The first ground set forth above relates to the forcible harvesting by the detenue and his associates of some paddy from the lands of Shri Beioy Keshab Kumar and Shri Charan Tulsi Bhattacharya of Baidyapur. P.S. Kalna depriving them thereby of their legal ownership of the crap. Mr. Gooptu appearing on behalf of the detenue has contended that the first ground is not tenable and does not justify the order of detention. The steps of his reasoning are that (a) it is vague (b) it does not affect the maintenance of public order (c) that there is malice in law because a criminal case is pending over the same subject-matter and (d) that it is neither proximate nor relevant, there being no direct or causal connection with the purpose of detention under the West Bengal (Prevention of Violent Activities) Act, 1970 and being outside the bounds of Section 3 (2) (d) or even (e) thereof, as urged on behalf of the respondent, it is de hors the statute and constitutes no nexus. Mr. Bur-man joined issue on each of these steps of reasoning.

8. As regards the first prong of attack on ground No. 1 on account of vagueness, a reference to ground No. 1 would make it abundantly clear that it is not so. It has been stated that on the date and time mentioned the detenue along with his associates formed an unlawful assembly and forcibly harvested the paddy crops from the lands of two specific persons of a particular village as named therein. It is difficult to find any vagueness therein and apprehend that it would stand in the way of making an effective representation on the part of the detenue. In paragraph 3 of the petition it has been stated that the said allegations are false to the knowledge of the detaining authority and that the detenue being a school teacher, he had nothing to do with the harvesting of paddy. It was further stated that in any event it is in the nature of a private dispute outside the ambit of the Act. The District Magistrate, Hooghly in his affidavit-in-opposition affirmed on the 6th March, 1971, in reply thereto, has denied in paragraph 6 the allegations in general and in particular that the grounds of detention are neither false nor untrue nor mala fide as alleged or at all. He further stated that in making the order of detention in question he satisfied himself that the grounds of detention were in existence and that those were individually and collectively connected with the purpose for which detention order was made. He also specifically denied the allegation of vagueness and averred that the activities mentioned therein related to the maintenance of public order. As to the cases on the point of vagueness we need not multiply the number. The test is now well-settled. In the case of Dr. Ram Krishna Bharadwaj v. State of Delhi, : 1953CriLJ1241 , the test is laid down as 'whether the ground mentioned is so vague as to render it difficult, if not impossible, for the petitioner to make an adequate representation to the appropriate authorities.' In the case of Rameswar Shaw v. District Magistrate Burdwan, : 1964CriLJ257 it has again been observed that 'if some of the grounds supplied to the detenue are so vague that they would virtually deprive the detenue of a statutory right of making a representation, that again may introduce a serious infirmity in the order of his detention.' In a Calcutta case viz., the case of Kamakshya Mukherjee v. The State of West Bengal, : AIR1968Cal596 it has been held by the Division Bench (R. N. Dutt and N. C. Talukdar JJ.) that 'the proper yard-stick according to us to find out vagueness is whether the said grounds as served on the detenue enable him to make an effective representation to the authority concerned. Anything short of that will be long off the mark and prejudice the detenue.' The Supreme Court also observed in the case of Moti Lal Jain v. State of Bihar. : 1969CriLJ33 that 'the grounds must not be vague or indefinite and must afford real opportunity to make a representation against the detention.' We respectfully agree with the said observations and applying the said test to ground No. 1 we find no vagueness. The contention of Mr. Burman in this context that the ground is not vague in any manner, as alleged or at all, accordingly succeeds and the submissions made by Mr. Gooptu in this behalf fail.

9. The second prong of attack of Mr. Gooptu on ground No. 1 that it does not constitute any activity wherefrom it can be deduced that the detenue wasacting in any manner prejudicial to the maintenance of public order, as alleged or at all, is also not tenable on ultimate analysis. The best as to what constitutes a disturbance of public order is now settled and without multiplying the number of cases, we would refer to the observations of Chief Justice Hidayatullah made in the case of Arun Ghosh v. State of West Bengal, : 1970CriLJ1136 that 'public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality ..... It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.' Turning now to ground No. 1 we agree with Mr. Burman that the same may 'Constitute an act which is prejudicial to the maintenance of public order. The detenue and his associates formed an unlawful assembly on the date in question and harvested paddy from the lands of the two persons mentioned therein applying force and the avowed intention on their part was to deprive the owners of their legal ownership. As the Chief Justice of India observed in the above mentioned case 'An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different.' We respectfully agree with the said observations and applying the said yard-stick to the acts stated in ground No. 1 we hold that same does affect prejudicially the maintenance of public order. The order of detention accordingly is not bad on this count, if not otherwise so, and the contentions of Mr. Burman on the point succeed.

10. The third branch of attack on ground No. 1 is that it is vitiated by malice in law because of the pendency of a criminal case on the self-same ground. In paragraph 3 of the petition, whereupon the Rule was issued, it has been stated that the said allegations form the subject-matter of a criminal prosecution, being case No. G. R. 490 of1970 under Sections 147/379 Indian Penal Code pending before the Sub-divisional Judicial Magistrate, 1st Class, Chinsurah. It has further been stated that the said allegations are false and the detention of the applicant on the basis of the said allegations is mala fide, illegal and wrong. The District Magistrate in paragraph 6 of the Affidavit-in-opposition affirmed on the 6th March,1971 denied the allegations that the grounds of detention are false, untrue or mala fide and further stated that he was satisfied that the activities mentioned in the said ground and also in the other grounds related to the maintenance of public order upon a personal consideration of the materials. The law on the point is also well-settled and it is not necessary to cite all the cases excepting a few bearing on the point. In the case of M.B. Malyali v. Commr. of Police, : AIR1950Bom202 Chief Justice Chagla delivering the judgment of the Court observed that 'the powers of detaining authority are very wide under the law as it exists today. The Government may detain a person even though the grounds clearly disclose that he could have been prosecuted under the ordinary criminal law with regard to those very grounds. The detaining authority may, as I pointed out eariler, detain a person although a criminal court has acquitted him in respect of the same charge for which he is being detained under the Security Act.' A reference may also be made to the case of Ramanlal Rathi v. Commr. of Police Calcutta, : AIR1952Cal26 wherein Mr. Justice P. B. Mukharji (As His Lordship then was) delivering the judgment of the Court observed that 'the satisfaction is of the appropriate government and not of the Courts. Such satisfaction as laid down in Section 3 of the Preventive Detention Act is not limited to be based on the existing laws of the land. Fundamentally therefore operation of the existing laws of the land or the determination of the offences by courts under such laws and the result arising therefrom whether of acquittal or discharge or even of conviction cannot be allowed to operate as a restriction on the powers of the government to detain under Section 3 of the Preventive Detention Act.' Mr. Justice Guha Roy and Mr. Justice Sen held in the case of Shanichari Debi v. State of West Bengal, (1955) 59 Cal WN 545 that 'there is nothing to prevent the authorities from proceeding under the Preventive Detention Act even when there are specific proceedings under the ordinary criminal law against a particular person.' The same view was taken again in the case of Priyatosh Mazumdar v. The State of West Bengal, : AIR1963Cal589 wherein Mr. Justice Debabrata Mukherjee and Mr. Justice D. N. Dasgupta held that 'the fact that there are parallel proceedings in existence one in court and the other by way of detention, does not by itself vitiate the order of detention.' Tn a more recent decision of the Calcutta High Court viz., in the case of Sk. Sanwar Ali v. The State of West Bengal, (1968) 72 Cal WN 627 the Division Bench (R. N. Dutt and N. C. Talukdar JJ.) held that 'a consideration of the court and the consideration of the Government are in these contexts different and do not belong to the same realm of scrutiny.' Mr. Gooptu also referred to the case of Sudhir Kumar Saha v. Commr. of Police Calcutta, : 1970CriLJ843 . But the facts there are distinguishable and do not establish the extreme proposition put forward by Mr. Gooptu. Mr. Gooptu ultimately relied on two un-reported decisions of the Supreme Court in support of his contention viz., the case of Ram Singh v. Commr. of Police, Calcutta, Writ Petition No. 398 of 1969 D/-18-12-1969 (SC) and the case of Deep Chand Sharma v. State of West Bengal. Writ Petitions Nos. 403 and 470 of 1969 D/- 18-12-1969 (SC) wherein Mr. Justice Hegde delivered the judgments of the Court in both the cases. The facts are again quite distinguishable and ultimately the said cases do not warrant the contention of Mr. Gooptu. In the case of Ram Singh Their Lordships proceeded on the footing that 'quite clearly the authorities have not borne in mind the distinction between maintenance of 'law and order' and maintenace of 'public, order' '. In the case of Deep Chand Sharma again Their Lordships found that two of the criminal cases were withdrawn and the other two cases were likely to be withdrawn and that it was submitted that those cases were being withdrawn for want of evidence. Their Lordships considered the explanation offered on behalf of the respondents to be wholly unacceptable because in any event the officer who conducted the searches and the witnesses who were present at the time should have been available in support of the prosecution case. It is on this ground substantially that Their Lordships proceeded and held that the impugned order was made for collateral ground. The facts in the present case are, however, quite different and applying the principles referred to above we uphold the submissions made by Mr. Burman that ground No. 1 does not disclose any malice in law and the contentions of Mr. Gooptu in this behalf accordingly fail.

11. The fourth and last prong of Mr. Gooptu's attack on ground No. 1 is the absence of proximity or nexus. In this context, Mr. Gooptu's contentions are two-fold viz., (a) that the acts complained of having taken place on 5-12-1969 when the Preventive Detention Act, 1950 was in force but was not taken into consideration for an order of detention under the said Act, cannot constitute a relevant ground for detention under the West Bengal (Prevention of Violent Activities) Act, 1970 on 25-12-1970 and (b) that in any event the said acts are outside the ambit of Section 3 (2) (a) to (e) of the President's Act No. 19 of 1970. Mr. Priti Bhusan Burman, on behalf of the respondents contended that both these branches of submissions made by Mr. Gooptu are unwarranted and untenable inasmuch as in the first instance there is no bar in law to such a consideration by the detaining authorities merely because the impugned acts had taken place under the earlier Act but were not taken into consideration under the said Act; and secondly that the said Acts dovetail indeed into the definitions given in Section 3 (2) (d) and (e) of the President's Act No. 19 of 1970. A reference to the said ground would make it clear that the Act referred to had taken place on the 5th December, 1969 and on that date the Preventive Detention Act, 1950 was in force. The point at issue therefore is whether by itself it will establish the absence of any proximate connection with the purpose of detention and render the said ground to be irrelevant. The act complained of apparently was not taken into consideration for the purpose of detention under Act IV of 1950 while it was in force. It does not also appear in the first blush to have any direct or causal connection with the purpose of detention of the person concerned under the President's Act No, 19 of 1970. The gap of a little over one year between the first ground and the order of detention would not ipso facto make the ground irrelevant but we cannot overlook the material fact that the act complained of had taken place while the earlier Act was in force but was not taken into consideration for the purpose of an order of detention passed under the said Act. It is further to be considered that no less than six other grounds referring to acts taking place after the expiry of Act IV of 1950, have been catalogued in the grounds of detention under the President's Act No. 19 of 1970. We accordingly uphold the contentions of Mr. Gooptu that the said ground No. 1, referring to acts taking place on 5-12-1969 when Act IV of 1950 was in force, has no direct or causal connection with the object of detention under the President Act on 25-12-1970. The second branch of Mr. Gooptu's submission in this context has also much force behind the same viz., that the act complained of in ground No. 1 does not come within the ambit of either Section 3 (2) (d) or (e) of the President's Act No. 19 of 1970, and is accordingly de hors the statute and irrelevant. Mr. Burman's contentions in this context are not sustainable. The acts complained of in ground No. 1 do not come within the bounds of Clause (d) to Section 3 (2) of the said Act inasmuch as the same does not make out an offence punishable with imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, likely to disturb public order. The said acts again do not come within the ambit of Clause (e) to Section 3 (2) of the said Act, because the same does not relate to a person referred to in Clauses (a) to (f) to Section 110 of the Code of Criminal Procedure committing any offence punishable with imprisonment where the commission of such offence disturbs or is likely to disturb public order. It is therefore abundantly clear that the acts referred to in ground No. 1 dated 5-12-1969 do not come within the bounds of either Clause (d) or (e) to Section 3 (2) of the President's Act, No. 19 of 1970 and are as such de hors the statute and irrelevant. The second branch of Mr. Gooptu's submissions relating to the fourth prong of his attack on ground No. 1 accordingly succeeds.

12. Mr. Burman thereafter made a further submission that in any event, in order to detain the person concerned, there need not be any such past activity as stated in the definition given in any one of the clauses (a) to (e) to Section 3 (2) of the West Bengal (Prevention of Violent Activities) Act, 1970 but that the detaining authorities may proceed even on an apprehension that the detenu may commit such acts, affecting thereby the security of the State or public order and accordingly to prevent him from committing the same, he may be detained. Mr. Burman has tried to interpret the provisions of Section 3 (2) (a) to (e) in general and of Section 3 (2) (d) and (e) in particular, in a manner not intended by the lawmaking authority. The ratio of his arguments are not sustainable and are far-fetched viz., that the acts catalogued in the aforesaid provisions need not be actually committed but merely on an apprehension that those are likely to be committed, the person concerned can be detained to prevent the likelihood of such a commission in future. Such an interpretation only gives an unduly extended connotation to the said provisions, encroaching upon the liberty of the subject. There cannot be an order of detention merely on the apprehended ground that detenu is likely to commit such acts like those stated in the aforesaid provisions unless and until in the past the said detenu has committed any such acts giving rise to such an apprehension. Bereft of such previous activity, the apprehension would be merely anticipatory and not preventive. It is pertinent in this context to understand what is meant by the expression 'Preventive,' As was observed by Mr. Justice B.K. Mukherjee (as His Lordship then was) in the case of Gopalan v. State of Madras, : 1950CriLJ1383 that 'there is no authoritative definition of the term 'preventive detention' in the Indian Law. The expression has its origin in the language used by judges or the Law Lords in England while explaining the nature of detention under Regulation 14 (b) Defence of Realm Consolidated Act, 1914 passed at the outbreak of the first world war, and the same language was repeated in connection with the emergency regulations made during the last world war. The word 'preventive' is used in contradistinction to the word 'punitive'. Mr. Justice Mukherjee proceeded to quote the words of Lord Finlay in the case of Rex v. Halliday, 1917 AC 260 at p. 269 that 'It is not the punitive but the precautionary measure' and laid down that 'the object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.' It means that restraint whose object is to prevent probable or possible activity which is apprehended from a would be detenu on grounds of his past activities. It is pertinent also to refer to the observations of Lord Macmillan in the case of Liversidge v. Anderson, 1942 AC 206 at page 254 that 'the question is one of preventive detention justified by reasonable probability, not of criminal conviction which can only be justified by legal evidence'. The interpretation of the word 'Preventive' as given above viz; to prevent probable or possible activity which is apprehended from a would-be detenu on grounds of his past activities does not justify this further submission of Mr. Burman seeking to give an extended definition to the said word.

13. This branch of Mr. Burman's contention would be a dangerous proposition encroaching on the liberty of the subject. For example, a citizen merely shining a knife, in the instance given by Mr. Burman, cannot ipso facto be deemed to be acting in any manner prejudicial to the security of the State or the maintenance of public order within the bounds of Section 3 (2) (d) and (e) of the Act as it would be only farfetched to assume that with the said knife, he may or is likely to commit any such acts as described in the said clauses. A citizen, against whom there is no previous allegation, shining his knife may not do so for the proverbial pound of flesh but for the less dramatic purpose of peeling some vegetables. The physical appearance again of a person or any defect in his character may not be appealing- but that does not constitute a ground for an apprehension on the part of the detaining authority that he is likely to commit any of the acts catalogued within the bounds of Section 3 (2) (a) to (e) of the President's Act No. 19 of 1970 and as such should be prevented from committing the same by being detained. This will be an extreme proposition unsustainable on merits and encroaching dangerously on the liberty of the subject. A lean or hungry looking Cassius may be dangerous in the estimate of Julius Caesar --'Yond Cassius has a lean and hungry look: he thinks too much. Such men are dangerous'. Again a man who has no music in him may not be considered to be persona grata in the Merchant of Venice -- 'A man that hath no music in himself, nor is not moved with concord of sweet sounds, is fit for treasons, stratagems and spoils'. But what is good enough for a Shakespearean character is not sufficient for the requirements of the President's Act No. 19 of 1970. To give effect to Mr. Burman's submissions would be to legislate and as Francis Beacon observed, in his 'Essay on Counsels, Civil and Moral: of Judicature,' 'Judges ought to remember that their office is Judiciary, and not us dare; to interpret law and not to make law or give law'. It would be inexpedient to read more into the Act than the law-making authority did ever intend and he thinks that have been left open for the protection of the liberty of the citizen, should not be allowed to be walled upon such circumscribed interpretation of law, not even intended by the law-making authority.

14. The method of construction, in such cases, encroaching on the liberty of the subject, must be a strict one and cannot be so expansive as Mr. Burman submitted. It would otherwise result in girdling the earth. In the case of Barnard v. Gorman, 1941 AC 378 Lord Wright cited with approval at page 393 the wellknown dictum of Pollock, C. B. in Bowditch v. Balchin, (1850) 5 Ex. 378 that 'In a case in which liberty of the subject is concerned, we cannot go beyond the natural construction of the statute'. Lord Atkin also elaborated the same in the well-known case of 1942 AC 206 at page 244 that 'Amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace'. Lord Atkin further referred to Alice in Wonderland and underlined the observations of Humpty Dumpty that 'when I use a word, it means just what I choose it to mean neither more nor less'. It is also pertinent to refer to his further observations 'that the words have only one meaning' and that 'I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister,' A reference in this context may also be made to the case of : 1970CriLJ843 Mr. Justice Hegde observed at page 815 that 'the freedom of the individual is of utmost importance in any civilized society. It is a human right. In our Constitution it is a guaranteed right'. The said observations are material and it is held that this being the cornerstone of our liberty, such freedom can only be deprived of by due process of law and it is further held that in the instant case there has been an encroachment on the said freedom and as such the order of detention should be set aside. Justice is in accordance with law and the law, in this case, is as incorporated in the President's Act No. 19 of 1970. Grounds which are de hors the said Act are irrelevant and repugnant and entitle the detenue to be set at liberty. Lord Wright aptly observed in connection with the duty of the Home Secretary in the case of 1942 AC 206 referred to above that 'It is the duty which he must discharge on his own responsibility to the utmost of his ability, weighing on the one hand the suspects right to personal liberty and on the other hand the safety of the state'. The courts have their duty no less than the same and the suspects' rights to personal liberty and the security of the state or the interest of public order should equally be weighed to the utmost ability. This delicate equipoise should aways be borne in mind and if the same is tilted it would result in the tilting of the apple-cart. 'Fiat Justitia Ruat coelum -- let justice be done though heavens may fall'. The second branch of Mr. Burman's submission on the fourth prong of Mr. Gooptu's attack on ground No. 1 accordingly fails and Mr. Gooptu's contentions in this behalf accordingly succeed.

15. Mr. Burman thereafter made an ancillary submission that the absence of nexus or relevancy of one ground only, out of the several ones mentioned, would not be sufficient to render the order of detention invalid. He contended that the proper test in such matters is to take the total effect of all the grounds together for deciding whether a particular ground is relevant or vague and that in any event the ground purported to be irrelevant or vague must be a vital one. Mr. Gooptu joined issue and both the learned counsel cited several cases in support of their respective submissions. We will now, proceed to consider the said cases. Mr. Burman referred in the first instance to the case of Dwarka Das Bhatia v. The State of Jammu and Kashmir, : 1957CriLJ316 wherein Mr. Justice Jagannadhadas delivering the judgment of the court observed at page 168 that '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'. Mr. Burman overlooked the further observations made in this context by the Supreme Court viz., that '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-existant or irrelevant the very exercise of that power is bad'. Their Lordships further observed that 'That is so be cause the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based'. The next case cited by Mr. Burman is the case of Saberuddin Shaikh v. State of West Bengal, : AIR1964Cal231 wherein Mr. Justice Debabrata Mookerjee delivering the judgment of the court observed at page 233 that 'We think that the detention order was made on the totality of the facts contained in the particulars attached to the ground and it would not be right to take a particular and study it in isolation from the rest'. Apart from the facts of the said case being distinguishable from those in the present one, the extreme view taken therein has not been supported by several Supreme Court decisions which will be referred to and considered presently. The next case cited by Mr. Burman is another Calcutta case viz., the case Md. Pearoo v. The State, : AIR1969Cal157 wherein Mr. Justice R.N. Dutt delivering the judgment of the court observed at page 158 that 'But when we take into consideration the other grounds it appears that the detenu was said to have been indulging in similar activities till 1967 and that gives ground No. (1) proximate connection with the detention order or, in other words, with the purpose for which the detenu is being detained, namely, maintenance of public order. Ground No. 1 in the said case recited an incident taking place on August 31, 1966 and it was submitted on behalf of the detenue that the same had no proximate connection with the order of detention made on February 5, 1968. Their Lordships ultimately held that this gap of time by itself would not be sufficient and the facturn of the detenue indulging in similar activities will invest ground No. 1 with proximity. Ground No. 1 in the present case is not being impugned only on the ground of gap of time but also on the further ground of apparent irrelevancy because of the provisions of the new Act where-under the detenue has been detained. The Supreme Court also considered these principles in a different manner and the same would be referred to presently. Mr. Burman ultimately referred to the case of Kalyanmal Agarwalla v. District Magistrate, Midnapore, : AIR1970Cal12 wherein Mr. Justice R.N. Dutt and Mr. Justice T.P. Mukerji considered ground No. (a) in that case in the context of grounds (b) and (c) therein and held that ground (a) should be held to have proximate connection with the purpose for which the detenue was being detained viz., maintenance of supplies essential to the community. In the facts of the said case Their Lordships observed that the allegations in ground (a) related to similar acts prejudicial to the maintenance of supplies essential to the community. In any event we will have to consider the principles laid down in this context by the Supreme Court inasmuch as the law declared by the Supreme Court shall be binding on all the courts under Article 141 of the Constitution of India. Mr. Gooptu cited several cases and we will proceed to consider those as bearing on the point at issue. He referred to the case of : 1953CriLJ1241 wherein Chief Justice Patanjali Sastri delivering the judgment of the court observed at page 320 that 'We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under Clause (6) of Article 22. That not having been done in regard to the ground mentioned in sub-paragraph (e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21'. The next case cited in this context is the case of Shibban Lal Saksena v. State of Uttar Pradesh, : [1954]1SCR418 wherein Mr. Justice B.K. Mukherjea (As His Lordship then was) delivering the judgment of the court observed at page 181 that 'In such cases, we think, 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'. The next case on the point cited by Mr. Gooptu is the case of : 1964CriLJ257 wherein Mr. Justice P.B. Gajendragadkar (as his Lordship then was) delivering the judgment of the court observed at page 337 that 'There is also no doubt that if any of the grounds furnished to the detenue are found to be irrelevant while considering the application of Clauses (i) to (iii) of Section 3 (1) (a) and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed'. The next case is the well-known case of Ram Manohar Lohia v. The State of Bihar, : 1966CriLJ608 wherein Mr. Justice A.K. Sarkar (as his Lordship then was) delivering the judgment of the court containing of the majority view observed at page 747 and 748 that 'The result then is that the detention order mentions two grounds one of which is in terms of the rule while the other is not. What then is the effect of that? ..... This question is clearly settled by authorities. In : [1954]1SCR418 , it was held that such an order would be a bad order, the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order. Mr. Gooptu finally cited a more recent decision of the Supreme Court viz., the case of Puskar Mukherjee v. The State of West Bengal, : 1970CriLJ852 . Mr. Justice Ramaswami delivering the judgment of the Court observed at page 859 that 'But it is well established that the constitutional requirement that the grounds must not be vague must be satisfied with regard to each of the grounds communicated to the person detained subject to the claim of privilege under Clause (6) of Article 22 of the Constitution and therefore even though one ground is vague and the other grounds are not vague, the detention is not in accordance with procedure established by law and is therefore illegal. We respectfully agree with the said observations of the Supreme Court and held that the irrelevancy of one or some grounds would be sufficient for rendering the order of detention as a whole to be invalid. As regards the other branch of Mr. Burman's contention that ground No. 1 being not a vital or essential one should be left out of consideration; it may be pointed out that this purported insignificant ground dating back to the 5th December, 1969 was taken into consideration for the purpose of detention on 25-12-1970. In paragraph 3 (ii) of the affidavit-in-opposition by the respondent No. 3 the District Magistrate. Hooghly, it has been averred that 'I satisfied myself that the grounds and each of them were in existence and I concluded ' that the grounds for detention collectively and each of them separately were with the purpose for which the detention order in question was made'. In paragraph 6 again it was stated that with regard to the first ground along with the others that 'In making the order of detention in question, I satisfied myself that the grounds of detention were in existence and that these were individually and collectively connected with the purpose for which detention order was made'. In view of the said statements, the wind is taken out of the sails of Mr. Burman's argument, that the said ground is not a relevant one for constituting the satisfaction of the detaining authority. The contention of Mr. Gooptu is accordingly upheld, viz. that the ground No. 1 in the order of detention is neither proximate nor relevant, there being no direct or causal connection or nexus with the purpose of detention under the West Bengal (Prevention of Violent Activities) Act, 1970 and accordingly the order of detention as a whole is not in accordance with law.

In view of the finding above that the order of detention as a whole is bad inasmuch as the acts referred to therein are neither proximate nor relevant, being without any direct or causal connection or nexus with the purpose of detention under the West Bengal (Prevention of Violent Activities) Act, 1970, it is not necessary to enter into the merits of the other grounds of detention. We would only place on record our appreciation of the able assistance rendered to this court by the learned counsel appearing on behalf of the respective parties.

In the result, the Rule is made absolute; We hold that the impugned order of detention is illegal and invalid; and we direct that the detenu may be released forthwith.

Let the order go down at once.

Ajay K. Basu, J.

16. Iagree with the order that the detenue should be released forthwith.


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