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Adhir Chandra Dey Vs. Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1973CriLJ303
AppellantAdhir Chandra Dey
RespondentCommissioner of Police and ors.
Cases ReferredJagdev Singh v. State of
Excerpt:
- .....failed for non-confirmation within three months from the date of detention can be subjected to a fresh detention under the central act on the same ground, falls for determination.2. facts relevant to the issue are not in dispute. the detenu was first put to preventive detention on january 28, 1971 under section 3 of the state act and was lodged in the presidency jail. grounds of detention were served on him on february 1, 1971. the order of detention, however, was not confirmed within three months from the date of his detention and accordingly this court on september 10, 1971 held the continued detention of the detenu to be not in accordance with law. in the meantime, however, the central act came into force on july 2, 1971 and the commissioner of police. calcutta passed a fresh order.....
Judgment:

Anil Kumar Sen, J.

1. This Rule was issued on a father's application under Section 491 of the Code of Criminal Procedure disputing the validity of detention of the detenu Mahadev Chandra De. Such detention is at present under an order dated September 13, 1971 passed by the Commissioner of Police, Calcutta in exercise of his powers under Section 3(1) read with Section 3(2) of the Maintenance of Internal Security Act. 1971 (hereinafter referred to as the Central Act). An important question of law, as to whether a person in respect of whom an order of detention under Section 3 of the West Bengal Prevention of Violent Activities Act, 1970 (hereinafter referred to as the State Act) had failed for non-confirmation within three months from the date of detention can be subjected to a fresh detention under the Central Act on the same ground, falls for determination.

2. Facts relevant to the issue are not in dispute. The detenu was first put to preventive detention on January 28, 1971 under Section 3 of the State Act and was lodged in the Presidency Jail. Grounds of detention were served on him on February 1, 1971. The order of detention, however, was not confirmed within three months from the date of his detention and accordingly this Court on September 10, 1971 held the continued detention of the detenu to be not in accordance with law. In the meantime, however, the Central Act came into force on July 2, 1971 and the Commissioner of Police. Calcutta passed a fresh order of detention in respect of the detenu this time under the provisions of Section 3 of the Central Act, An identical set of grounds as in respect of detention under the State Act was served on the detenu. In the present application by the father It is the latter order under the Central Act and the consequent detention of the detenu which are being challenged, Mr. Acharya appearing in support of 'this Rule has raised only one point viz., the Commissioner of Police had no legal authority to pass a fresh order of detention in respect of the detenu under the Central Act on the failure of his earlier detention under the State Act, Reliance is placed on the provisions of Section 14(2) of the State Act. Section 14 is in following terms:

(1) Without prejudice to the provisions of Section 22 of the Bengal General Clauses Act, 1899, a detention order may at any time be revoked or modified by the State Government notwithstanding that the order has been made by an officer specified in Sub-section (3) of Section 3.

(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the State Government or an officer specified in Sub-section (3) of Section 3, as the case may be, is satisfied 'that such an order should be made.

Reliance is also placed on two unreported decisions of this Court in the cases of Rabindranath De v. The State Criminal Misc. case No. 1180 of 1971 disposed of on 15.2.1972 and Debabrata Das v. The Commissioner of Police, Calcutta Criminal Misc Case 565 of 1971 disposed of on 24.1.1972.

3. We have had the assistance of the learned Advocate General on the Point raised by Mr. Acharya. According to the learned Advocate-General there is no bar under the Constitution or otherwise except as in the statute to successive orders of detention on same grounds. Further according to him the bar imposed by Section 14(2) of the State Act does not extend to limit the exercise of powers of detention under any statute other than State Act itself and as such the detention in the present case under the provisions of the Central Act cannot be condemned as unauthorised.

4. On the undisputed facts of the present case it must now be held that failure on the part of the State Government to confirm the detention order within three months from the commencement of detention led to the expiry of the order of detention and the consequences provided for by Section 14(2) of the State Act must follow. Such consequence on the face of the statute is that there could be no fresh order of a detention under the Act except on fresh facts. This follows as a necessary implication from Section 14(2) as aforesaid. This position appears to us to be well settled by the decision of the Supreme Court in the case of Hadibandhu Das v. District Magistrate Cuttack : 1969CriLJ274 . The two decisions relied on by Mr. Acharya also support this conclusion. But the difficulty arises because of the fact that the power exercised for the subsequent detention in the present case though similar in nature is not under the State Act but a new Central Act which had come into force in the meantime. The question, therefore, has arisen for consideration as to whether Section 14(2) of the State Act debars exercise of powers by the Commissioner of Police under the Central Act or whether apart from Section 14(2) there is any legal bar on the Commissioner of Police from making a fresh order of detention under the new Central Act when an order of detention of similar nature under the State Act had failed in the circumstances as aforesaid.

5. It should be noted that neither the Advisory Board nor this Court had gone into the merits of the grounds or the detention under the earlier order. The Advisory Board had not held the grounds to be insufficient for the necessary satisfaction nor did this Court hold the grounds to be irrelevant to the object of detention. Detention failed because of a procedural lapse on the part of the State Government in not taking appropriate steps for confirmation within time. Normally in the absence of any specific statutory bar failure of detention in such circumstance would not debar the appropriate authority from exercising his powers once more. This was so held by the Supreme Court in a number of cases under the Preventive Detention Act, 1950 prior to the 1952 amendment whereby a provision similar to Section 14(2) of the State Act was incorporated as Section 13(2) of the Preventive Detention Act 1950. In the case of Naranjan Singh v. State of Punjab : 1952CriLJ656 Supreme Court approved the earlier decision of the Federal Court in the case of Basanta Chandra v. Emperor 1945 F.C.R. 81 : (1945) 46 Cri.L.J. 559 and held 'where an earlier order of detention is defective merely on formal grounds, there is nothing to preclude a proper order being based on the pre-existing grounds themselves, specially in cases in which the sufficiency of the grounds is not examinable by the Courts.' Similarly in the case of Ujagar Singh v. State of Punjab : [1952]1SCR756 the Supreme Court was considering a case where a detenu was released from his detention under the East Punjab Public Saftey Act after nearly six months and was served with afresh order of detention under the Preventive Detention Act, 1950 on same grounds. In upholding such detention the Supreme Court observed, 'there is nothing strange or surprising in the fact that the same grounds have been repeated after lapse of several months in both the cases, when it is remembered that the petitioners were under detention in jail during the whole of the intervening period and no fresh activities could be attributed to them. There could only be a repetition of the original ground or grounds whether good or bad. It does not follow from this that the satisfaction of the detaining authority was purely mechanical and that the mind did not go with the pen...if the authority satisfied himself that the original ground was still available and that there was need for detention on its basis no mala fides can be attributed to the authority from this fact alone.' Therefore, we must hold that unless Section 14(2) of the State Act creates any bar, there was no bar to the Commissioner of Police making the fresh order of detention as made in the present case.

6. On the provisions of Section 14(2) of the State Act the basic difficulty for Mr. Acharya is on the terms of the section itself. The provision is explicit enough when it refers to making of a fresh detention order under Section 3. 'Detention Order' under the statutory definition means an order under Section 3 of the Act itself and that apart the section expressly authorises a fresh order under Section 3 of the Act but on fresh facts. Therefore the implied bar to fresh detention on same facts necessarily be referable 'to detention under an order under Section 3 of that Act but not otherwise. In our opinion there is substance in the contention of the learned Advocate-General that if we extend the bar under Section 14(2) of the State Act to making of an order of detention under Section 3 of the Central Act we would only be extending the provision beyond its terms by our decision; it would amount to legislating and not interpreting the same, Learned Advocate-General is right in his contention that the implied bar under Section 14(2) of the State Act is only to an order of detention under the State Act and not to any order of preventive detention. It is no doubt true that the provisions of the two statutes are somewhat overlapping and there is also no dispute that in the present case orders of detention under either of the two Acts have been passed in exercise of similar powers and with the same object. It is also true that both the statutes incorporate a bar similar to Section 14(2) of the State Act. But even then on the language of either of the two statutes there is no specific bar to exercise of same powers alternatively under the two statutes so long such power is exercised in a bona fide manner. Mr. Acharya has contended that such a result could not have been intended by either of the two legislatures and the object of Section 14(2) of the State Act would wholly be frustrated if such a limited construction is put to Section 14(2). We are conscious of the position that the statute under consideration is one authorising preventive detention and a construction beneficial to the person detained without trial should always be preferred where two views are possible on the language of the statute. But we are of the opinion that on the language of Sec-Section 14(2) of the State Act no two views are possible unless by construction this Court chooses to alter the contents thereof. So far as Mr. Acharya's apprehension to the effect that such construction would entitle the detaining authority to extend the detention beyond the statutory period by taking alternate recourse to the provisions of the two Acts is concerned we are of the opinion that such a procedure when adopted would be clearly abuse of the powers and not use there of. In such cases detention would fail on ground of lack of bona fides. We are also unable to accept the contention of Mr. Acharya that Section 14(2) of the State Act confers a statutory immunity from fresh detention and such immunity cannot be taken away by the provisions of the Central Act. In our view on the provisions of Section 14(2) the immunity is limited in character. It provides by implication that on the expiry of an order under Section 3 of the Act, no fresh order under Section 3 can be passed except on fresh facts. In our view the decision of the Supreme Court in the case of Godavari v. State of Maharashtra : 1964CriLJ222 supports the view we have taken on the effect of Section 14(2) of the State Act. In the said case the detenu was first detained on November 7, 1962 by an order made by the Commissioner of Police, Bombay under the Preventive Detention Act 1950. (Such detention being long after the 1952 amendment and incorporation of Section 13(2)). The matter was reported to the State Government for approval but in the meantime the Defence of India Ordiance, 1962 came into force along with the rules framed thereunder. The State Government instead of approving the order of detention revoked the order on November 10, 1962 and on the same day passed a fresh order of detention under Rule 30 of the Defence of India Rules. Validity of such detention was the subject-matter of chellenge in the case before the Supreme Court and the Supreme Court upheld the order. In upholding the order the Supreme Court observed, 'where the detention is not of two kinds considered in the cases of Rameswar Shaw and Makhan Singh Tarsikka and is either under the Preventive Detention Act or under the Rules (Defence of India Rules) and its duration dependent upon a will of the State Government we cannot see any reason for holding that if the State Government decides to remove an earlier order of detention it cannot pass a fresh order of detention the same day....'

The learned Advocate-General rightly relies on the decision of the Supreme Court in the case of Jagdev Singh v. State of J and K : 1968CriLJ387 . In this case the point that was agitated before the Supreme Court is as to whether the appropriate authority could make a fresh order of detention under Rule 30 of the Defence of India Rules where earlier detention under the same rule had failed for improper compliance with provisions of Rule 30A The following observation of the Supreme Court is quite instructive,

now there is no doubt that if the Government resorts to the devise of a series of fresh orders after every six months and thus continues the detention of a detenu circumventing the provisions of Rule 30A for review which as interpreted by this Court in Lakshan Pal's Writ Petition (A.I.R. 1967 S.C. 1507) gives some protection to the citizens of this country it would certainly be acting mala fide. Such a fresh order will be liable to be struck down not on the ground that the Government has no power to pass it but on the ground that it is mala fide exercise of the power. But if the Government has power to pass a fresh order of detention on the same facts in case where the earlier order or its continuance fails for any defect we cannot see why the Government cannot pass such fresh order curing that defect.

It is true that in Jagdev Singh's case AIR 1968 S.C. 327 : 1968 Cri.L.J. 387 the Supreme Court was not considering any bar or protection as under Section 14(2) of the State Act, but nonetheless it was considering the protection afforded by Rule 30A which could be nullified by a subsequent order. But in Godavari Parulekar's case AIR 1964 S.C. 1128 : (1964) 2 Cri.L.J. 22 notwithstanding the bar under Section 13(2) of the Preventive Detention Act 1950 afresh order under the Defence of India Rules on revocation of an order of detention under the Preventive Detention Act, 1950 was upheld by the Supreme Court even in the absence of any fresh material. The two unreported decisions of this Court relied on by Mr. Acharya are clearly distinguishable. In both the cases fresh orders were made under the same Act on the failure of earlier orders. Such orders are clearly barred by the provision of Section 14(2) of the Act.

7. In our considered opinion we must proceed on the principle that where alternative powers are available to the detaining authority it is open to such authority to exercise powers under the alternative provision so long such authority is acting bona fide unless of course there is clear and specific bar under any statute to the exercise of such powers. On our findings made hereinbefore there is no specific statutory bar to the Commissioner exercising powers of detention under the Central Act on the failure of the detention under the State Act in the circumstances set out hereinbefore. In this view we cannot hold that the order made by the Commissioner is in any way unauthorised. Furthermore there is no ground on which this Court can even doubt the bona fides of the Commissioner when he exercised his powers afresh under the Central Act on the failure of the earlier detention due to 'to procedural lapse.

8. On the conclusions as above the only point raised by Mr. Acharya in support of this Rule fails, the application fails and the Rule is discharged.

N.C. Mukherji, J.

9. I agree.


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