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Niren Basu and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case Nos. 186 to 191, 193, 195, 196, 206 and 207 of 1955
Judge
Reported inAIR1957Cal74,1957CriLJ172,60CWN464
ActsPreventive Detention Act, 1950 - Section 3 and 3(2); ;Preventive Detention (Amendment) Act, 1954; ;Constitution of India - Article 22 and 22(5)
AppellantNiren Basu and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateS.K. Basu, ;Jagannath Gangopadhaya and ;Bijoy Kumar Chattopadhaya, Advs.
Respondent AdvocateS.M. Bose, Adv. General (in No. 186) and ;N.K. Sen, Adv. (in Nos. 187 to 191, 193, 195, 196, 200 and 207)
Cases ReferredRamanlal Kathi v. Commr. of Police
Excerpt:
- .....terms:'3. power to make orders detaining certain persons: (1) the central government or the state government may-- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-- (i) the defence of india, the relations of india with foreign powers, or the security of india, or (ii) the security of the state or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the foreigners act, 1946 (31 of 1946), that with a view to regulating his continued presence in india or with a view to making arrangements for his expulsion from india, it is necessary so to do, make an order directing.....
Judgment:

Mitter, J.

1. These are petitions for the issue of writs in the nature of Habeas Corpus in respect of the detention of the petitioners under the Preventive Detention Act (4 of 1950) as amendmed by the Preventive Detention (Amendment) Act (Act 2 of 1954).

2. The petitioners are all associated with what is known as the Dock Mazdoor Union, Port Commissioner, Calcutta. In view of the arguments addressed to us in respect of each one of the several cases before us, it will be necessary hereafter to deal with the case of each individual petitioner. There was, however, a point of law raised by learned counsel appearing on behalf of the petitioners which affects all these cases. We must, therefore, first deal with, the point which concerns all these applications.

3. Mr. S. K. Basu appearing on behalf of the petitioners impugned all the orders of detention as being illegal and without jurisdiction on the ground that the orders concerned on the face of them indicated that the satisfaction required under the statute on the part of the functionary mentioned in Sub-section (2) of Section 3 concerned only one of the two matters set out under Items (ii) and (iii) of Clause (a) of Section 3 of the Act. To make the point intelligible, we would state that the initial order of detention was in each case passed by the Commissioner of Police, Calcutta, and in each order it was alleged that the detention concerned was on the ground that the person involved was acting in a manner prejudicial to the maintenance of public order. Section 3, Preventive Detention Act is in the following terms:

'3. Power to make orders detaining certain persons: (1) The Central Government or the State Government may-- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-- (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (31 of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained, (2) Any of the following officers, namely; (a) district Magistrates, (b) Additional District Magistrates specially empowered in this behalf by the State Government, (c) The Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad, (d) Collectors in the State of Hyderabad, if satisfied as provided in Sub-clauses (ii) and (iii) of Clause (a) or Sub-section (1) exercise the power conferred by the said Sub-section. (3) When any order is made under this section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. (4) When any order is made or approved by the State Government under this section, the State Government shall as soon as may be report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order.'

4. It will be seen that under Clause (a) the Central Government or the State Government is empowered to make an order of detention on any one of the three grounds mentioned in Clause (a) of Sub-section (1) of Section 3. Under Sub-section (2) thereof District Magistrates Additional District Magistrates specially empowered in that behalf by the State Government, the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad and Collectors in the State of Hyderabad are empowered to exercise the power conferred by Sub-section (1) if they are satisfied 'as provided in Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1).' Mr. Basu argued that the language of Sub-section (2), namely 'if satisfied as provided in Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1)' showed that the satisfaction of the officers concerned had to be in respect of the security of the State or the maintenance of public order, the maintenance of supplies and services essential to the community. In other words, according to Mr. Basu, the Commissioner of Police here could under Sub-section (2) make an order of detention only if he was satisfied that the action complained of was prejudicial not merely to the maintenance of public order, but also to the maintenance of supplies and services essential to the community. Mr. Basu then argued that if the initial order of detention passed by the Commissioner of Police, Calcutta, was illegal and without jurisdiction, the order of the State Government approving the said order of detention would also be illegal.

5. This construction put forward by Mr. Basu does not appear to us to be sound. The expression 'as provided in Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1)' appearing in Sub-section (2) of Section 3 appears to us to attract Items (ii) and (iii) of Clause (a) of Sub-section (1) of Section 3. If that be so, as we think it is, then anyone of the functionaries mentioned in Sub-section (2) would have power to act if satisfied that any person was acting prejudicial to the security of the State or the maintenance of public order or to the maintenance of supplies and services essential to the community. The use of the word 'and' between items (ii) and (iii) in Sub-section (2) cannot possibly have the effect suggested by Mr. Basu. In our view, it is quite clear, not only from the language used, but also from the scheme of Section 3, that anyone of the officers mentioned in Sub-section (2) is empowered to act if the satisfaction relates to one or other of the matters mentioned in items (ii) and (iii) above. That being so, the first contention of Mr. Basu as affecting the detention of the several petitioners before us fails.

6. We must now turn to an examination of the individual cases and in that connection consider the arguments put forward by Mr. Basu.

7. To take the case of Niren Basu, the petitioner in the first case. His detention was based upon three grounds. The order of detention itself was made on 20-8-1955. The grounds of his detention were furnished to him by an order of 23-9-1955. The detention was approved of by Government by an order of 30-8-1955. By the first of the three grounds furnished to the petitioner Niren Basu it was alleged that as a militant member of the B. P. I. namely the Bolshevik Party of India, which controlled the Dock Mazdoor Union, he was selected under the direct command of Provat Sen as an instrument to bring about deadlock and dislocation in the Port of Calcutta and that with this end in view he along with Provat Sen as well as others took an active part in assaulting a police picket posted near the Union Office behind the Babu Bazar Call Stand. This happened, as mentioned in the Ground itself at 6-15 p.m. on 25-3-1955. The police picket, as disclosed in the ground itself, had been posted to stop the violent activities of the Dock Mazdoor Union. Mr. Basu argued that the use of the word 'militant' as an epithet was vague and that it was incapable of being dealt with in any representation which the petitioner bad a right to make under the Act. We do not find that in the context the use of the word 'militant' was inappropriate. In any event, the substance of the allegation against the petitioner was set out with sufficient particularity and the petitioner, in our view, could not possibly have any difficulty in making an effective representation to the Board in relation to this ground. It is not necessary to set out the other two grounds. It is sufficient to say that they also contain sufficient particulars (with reference to time and place) enabling the petitioner to make an effective representation to the Advisory Board. It appears that in the body of the petition the petitioner has dealt with the allegations. In any representation that he may be minded to make to the Advisory Board he can usefully repeat what has been said in the petition. The grounds, so far as this petitioner is concerned, are such that any reference to the case reported in Safatullah Khan v. The Chief Secretary to the Government of West Bengal', : AIR1951Cal194 (A) would be inappropriate. In the facts of that case the only, answer which the detenu concerned could have given was a denial of the allegation. In this case, as we have said before, the grounds condescend to sufficient particulars and are capable of effective treatment with reference to date, time and place. An argument addressed to us by Mr. Basu was that some of the grounds disclosed specific offences which could be dealt with by the ordinary criminal law of the land and that, therefore, it would be wrong, if not illegal, to detain a person upon the selfsame grounds under the Preventive Detention Act. If a ground is too vague, it can be challenged on the ground of vagueness. If a ground is definite and sets out particulars exposing the commission of an offence, it is attacked on the ground that it is too specific to be used for the purpose of preventive detention and that it can only be dealt with under the ordinary law of the land. This is Mr. Basu's argument. In this connection Mr. Advocate General appearing on behalf of the State referred to the case of Thakur Prasad Bania v. The State of Bihar, ((S) : 1955CriLJ1408 ) (B). Although in the present case no prosecution for any of the specific charges has been launched, this decision of the Supreme Court clearly indicates that even where a prosecution is pending in respect of any matter and that an order of detention under the Preventive Detention Act upon the selfsame ground has been made, the detention itself cannot be regarded as prima facie mala fide. In any event, there is no law which precludes the State from invoking the provisions of the Preventive Detention Act in respect of a matter as to which a criminal prosecution has been launched or can be launched. The detention however must not be mala fide.

8. In our view, the grounds upon which petitioner Niren Basu was detained and which were furnished to him do not suffer from any of the defects which would render the detention illegal. That being the position, this application fails and is dismissed.

9. The Rule is accordingly discharged.

10. Turning now to the case of Brindaban Nayak (Case No. 187 of 1955), his detention was founded upon two grounds. The first ground concerns the petitioner's action in forcibly bringing out one to pay subscription to the Dock Mazdoor Union. It is to be observed that this gentleman, Hare Krishna Jana, was a member of the I.N.T.U.C. The other ground details the petitioner's activities on certain dates between 23-7-1955 and 8-8-1955. The allegations concerned have been made with sufficient particularity giving the date and the place of whatever was done by the petitioner. Neither of these two grounds appears to us to suffer from vagueness. It should be observed at this stage that both these grounds mentioned in this case as well as the three grounds referred to in the preceding case all bear upon the topic of the maintenance of public order. This application of Brindaban Nayak must accordingly fail and is dismissed. The relative Rule is discharged.

11. In the next case, namely, that concerning Naresh Prosad Tewari (Case No. 188 of 1955), only one ground was put forward as the basis of his detention. This ground sets out with sufficient particulars the acts alleged against him. The only criticism to which this ground was subjected was that it was vague. We do not agree. In our view, this ground was sufficient to enable the petitioner to make an effective representation to the Advisory Board. This application fails and is dismissed. The relative Rule is discharged.

12. Petitioner Provat Sen Gupta's detention was founded upon as many as six grounds. Mr. Basu made a point which appears to us to be sound and in accordance with the authority of the Supreme Court that where one or more of a number of grounds are found to be vague, the provisions of Clause (5) of Article 22 of the Constitution of India cannot be said to have been complied with. Although on the facts we are against Mr. Basu, this proposition of law has been laid down by the Supreme Court and must necessarily be followed. An earlier decision of this Court was cited by Mr. N. K. Sen, namely, the case of Ramanlal Kathi v. Commr. of Police, Calcutta, : AIR1952Cal26 (C). In that case P. B. Mukherjee J. delivering the judgment of the Court stated:

'An order of detention is the result of the cumulative effect of different grounds stated and vagueness of one ground does not vitiate the order of detention.'

This decision was of July, 1951. In 1953 the Supreme Court laid down that the constitutional requirement had to be satisfied with respect to each of the grounds communicated to the person detained. In the case concerned, one of the grounds was held to have been too vague to enable the detenu to make an effective representation to the Advisory Board. It was argued on behalf of the State that all the grounds read together would have enabled the detenu to make such a representation. Their Lordships of the Supreme Court, however, held that the constitutional requirement under Clause (5) of Article 22 had to be satisfied with respect to each of the grounds communicated to the person detained. However, as on the facts we hold that all the six grounds put forward in the case of Provat Sen Gupta were free from any vagueness of any kind, his petition must also fail. The relative rule is therefore discharged,

13. In the next case (No. 191 of 1955) there were two grounds put forward for the detention concerned. These two grounds appear to us to have been sufficient for the purpose of making an effective representation to the Advisory Board. That being so, tin's application also fails and is dismissed. The relative Rule is discharged.

14. In the case of Jaffar Imam (No. 193 of 1955), the grounds were three in number. These not only bear on the topic of public order, but are sufficient, in our view, to enable the detenu to make an effective representation to the Advisory Board. The application must accordingly fail and is dismissed. The relative Rule is discharged.

15. In the case of Jambu Patra (No. 195 of 1955), there are three grounds of detention. We have been unable to see in what way any of the grounds offends against any of the safeguards. These grounds, in our view, are sufficient for the purpose of making an effective representation to the Board. Jambu Patra's application fails and is dismissed. The relative Rule is discharged.

16. In the case of Md. Moin (No. 196 of 1955) although at first sight ground No. 5 would appear not to have direct bearing upon the maintenance of public order, that ground in the context of the rest of the grounds would appear to us not only to be sufficient for the purpose of making an effective representation to the Advisory Board, but a proper ground bearing upon the topic of the maintenance of public order. That being 50, Md. Moin's application must also fail and is dismissed. The relative Rule is discharged.

17. In the case of Bhutnath Dey (Case No. 206 of 1955) there are four grounds. All of them appear to us to be sufficient for the purpose of making an effective representation to the Board. That being so, this application too must fail and is accordingly dismissed. The relative Rule is discharged.

18. It may be mentioned at this stage that the grounds taken by the several petitioners impugning the relative orders of detention are common. As to the grounds furnished to the petitioners and the facts mentioned in the grounds themselves, the petitioners were at pains to controvert them. A perusal of the grounds taken by the petitioners here would show whether or not it was possible for the petitioners to effectively answer the grounds of their detention. On the merits, they stated that the facts in the grounds furnished to them by the Commissioner of Police were untrue. In certain cases the petitioners were able to say that no particular meeting had been held on the day in question or that no such meeting had been held at the place mentioned in the grounds. Another ground taken, also a common ground, was that under Sub-section (2) of Section 3 of the Act the Commissioner of Police was not competent to make any order unless he was satisfied with regard to all the matters mentioned in items (ii) and (iii) of Sub-section (2) of Section 3. This point has already been dealt with. It was also a ground that the detention of the petitioners having been based upon allegations of specified offences committed on special occasions, the Preventive Detention Act had no application to the facts and circumstances of these cases. This point, we have already dealt with. It is, therefore, to be observed that generally speaking the grounds furnished to the detenus for their detention were not attacked on the grounds of vagueness except in one or two cases which we have dealt with specifically earlier in this judgment.

19. In the case of Sheikh Mazid (No. 207 of 1955) there were three grounds for his detention. These grounds, in our view, were sufficient to enable the detenu to make an effective representation to the Advisory Board. They do not appear to us to suffer from any defect. Accordingly, this petition must fail and is dismissed. The relative Rule is, therefore, discharged.

Sen, J.

20. I agree.


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