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Smt. Tarala Hazra and anr. Vs. the District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1982CriLJ1874
AppellantSmt. Tarala Hazra and anr.
RespondentThe District Magistrate and ors.
Cases Referred(Fitrat Raza Khan v. State of
Excerpt:
- .....is no bona fide satisfaction of the detaining authority as to the need or justification of shri hazra's detention. the petitioners state that the wife of shri hazra was not given the ground of detention and as such opportunity to make effective representation against the order of detention as contemplated under section 8(1) of the act has also been denied. it has also been stated that the purported order of detention has not been approved by the state government as required under section 3(4)a. k. roy v. union of india. in this case, it has been held 'no person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law, order or notification made or published fairly in.....
Judgment:

Nirmal Chandra Mukherji, J.

1. This Rule arises on an application under Article 226 of the Constitution of India for a Writ and/or order or orders and/or direction in the nature of Writ of Habeas Corpus in the matter of an order passed by the District Magistrate, Andamans, directing Ajoy Kumar Jyoti Hazra to be detained in exercise of the power conferred under Section 3(2) of the National Security Act, 1980. The application has been filed by Tarala Hazra, mother and Babul Hazra, brother of the detenu. The facts of the case may briefly be stated as follows:

2. The detenu is a popular Trade Union Leader of Andaman. He is President of Saffai Karmachari Union of the Municipal Board of Andaman. The Andaman Municipal Board which is controlled by the Congress (I) Party has denied the employment of 300 Harijan workers who have become the members of the Saffai Karmachari Union. Industrial dispute has been raised on that regard and the same is pending before the Industrial Tribunal, Andaman. On behalf of the said Union a writ application has been moved before this Court challenging the illegal act of changing duty hours of the staff of the Municipal Board. The said application was disposed of in Sept., 1981 directing the Andaman Administration/Central Government to refer the industrial dispute to the appropriate Tribunal. Ever since Shri Hazra entered in the Trade Union field of Andaman, he has become eye sore to the local Congress (I) leaders. The local Congress (I) leaders having failed to ameliorate the grievances and to solve the problems of the local people who are very much against the bona fide Trade Union activities of the said Shri Hazra. On Feb. 23, 1982 when Shri Hazra was discussing with his colleagues in the Union Office as to how best to conduct the pending reference before the Tribunal he was arrested from the Union Office at Bamboo Flat, Andaman and was served with an order passed by the District Magistrate, Andaman under Section 3(2) of the National Security Act, 1980. Shri Hazra on that date was taken to Cellular Jail, Port Blair and was kept in solitary confinement in the vicinity of lunatics and in a most unhygenic atmosphere. Smt. Amita Hazra on Feb. 24, 1982 approached the Jail Authority to hand over the papers relating to the grounds of detention to her for drafting the representation contemplated under Section 8 of the Act. Smt. Hazra, however, was not allowed to be given the copy of the grounds of detection. Smt. Hazra was not allowed to have a proper interview with the detenu at Cellular Jail to know about the grounds of detention, As such, Smt. Hazra made a representation to the District Magistrate, Andaman, stating that the refusal to hand over the grounds of detention amounts to violation of Section 8(1) of the Act. The said representation was duly received by the District Magistrate, Andaman, but no step was taken to hand over the grounds to Smt. Hazra for the purpose of making an effective representation under Article 22(5) of the Constitution of India. It is stated that Shri Hazra is a peace loving citizen and a popular Trade Union leader. He has got no connection with any activities which may be prejudicial to the maintenance of public order. The purported grounds served by the Authorities do not contain any reason or ground to justify detention of Shri Hazra under the National Security Act, The petitioners state that at the instance of local Congress (I) leaders Shri Hazra was arrested and detained. It has further been stated that Shri Hazra has been detained with a mala fide motive and collateral purpose without any material whatsoever. The petitioners state that the order of detention was passed without any application of mind and there is no bona fide satisfaction of the detaining authority as to the need or justification of Shri Hazra's detention. The petitioners state that the wife of Shri Hazra was not given the ground of detention and as such opportunity to make effective representation against the order of detention as contemplated under Section 8(1) of the Act has also been denied. It has also been stated that the purported order of detention has not been approved by the State Government as required under Section 3(4)A. K. Roy v. Union of India. In this case, it has been held 'no person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law, order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately, to the public'. Very much relying on this decision, Mr. Chatterji contends with much emphasis that in this particular case the notification was published only a few days before the order of detention was passed. As such, it cannot be said that the notification was made known to the public including the detenu appropriately. That being so, the order of detention, according to Mr. Chatterji, was passed mala fide. Mr. Chatterji submitted that it may be that in order to pass an order of detention against the detenu for the alleged act prejudicial to the maintenance of supplies and services essential to the community, notification was published only a few days before the order of detention was passed. Mr. Sanyal, learned Advocate appearing on behalf of the opposite parties, submits that the alleged incident, mentioned in ground No. 11, took place in July, 1981 and August, 1981. True, it has been stated as such. But Mr. Chatterji attacks the ground stating that the publication was made only a few days before the order of detention was passed. According to Mr. Chatterji, the decision in : 1982CriLJ340 fully supports him and the opposite parties have no answer to it. Mr. Chatterji then placed before us grounds Nos. 1 to 10 one by one. With regard to ground No. 1 Mr. Chatterji submits that the alleged incidents took place on 20-7-1978 and 3-11-1978 and those incidents have no proximity to the order of detention passed in Feb. 1982. Again, in ground No. 1, it has been alleged that the detenu organised a Union and resorted to strike. In sub-paragraphs a, b, c and d some specific incidents have been mentioned, all of which took place in 1979 and for some of these specific cases have been started. These incidents indicate that the detenu managed to bring the striking workers to Port Blair and organised demonstration. The workers indulged in violent acts because of his direct instigation. Ground No. 2 also speaks of the detenu's instigation and starting of a criminal case on 30-7-1980. Ground No. 3 similarly speaks of detenu's instigation on 7-9-1980 for which, however, no criminal case was started, Ground No. 4 is with regard to the incident stated to have taken place on 15-3-1980. For the said act the detenu, along with his four associates, were prosecuted under Section 107/116 of Cr. P.C. In ground No. 5, it has been stated that on the same day the detenu and his eight associates distributed printed pamphlets inciting Military Force Police and C.R.P.F. and helped the workers to strike in Messrs. Tata Oil Mill (P) Ltd. For this alleged act a case has been started. Mr. Chatterji states that this ground is also too remote and nothing besides instigation on the part of the detenu has been alleged. Moreover, this ground is vague as it has not been stated what are the printed pamphlets which could incite the Military Force, Police and C. R. P. F. In ground No. 6, it has been stated that on 19-8-1980 some loyal workers of the ATI Factory were severely beaten by the detenu's supporters and a case was started under Sections 323, 524 and 506, I.P.C. For the activities of the detenu's supporters how the detenu can be responsible is not understood. Ground No. 7 speaks of an incident which is said to have taken place on 14-8-1980 where it is alleged that the detenu adopted violent attitude and created serious situation disturbing peace and public order when the Union members gheraoed and criminally restrained the then Welfare Officer of ATI and for this a criminal case was started. Similarly ground No. 8 speaks of an incident said to have taken place on 16-3-1980 when the Union members of the detenu under his instigation abused and threatened the Resident Manager of ATI and for that a case has been started. In ground No. 9 it has been stated that on 18-8-1980 the Management of ATI declared Lock-out in the Factory and it is alleged that the detenu brought the workers on strike to Port Blair on the same day and took out a procession in which provocative slogans were shouted. For this incident also, a criminal case was started. Ground No. 10 is with regard to the incident said to have taken place on 22-9-80 alleging that the detenu went to Rut Land Island along with his associates and instigated the members of ATI to adopt go slow tactics and due to instigation the workers took the law in their hands and blocked the road preventing vehicular traffic, For this incident also a case was started. In Ground No. 12 it has been stated that the detenu organised a Union known as Andaman Bench Resort Union of the employees of the Andaman Bench Resort on 3-11-1981 and a case was started under Section 341/506 I.P.C. In Ground No. 13, it has been stated that on 9-2-80 the members of ATI Karmachari Union assaulted the member of the rival Union. In Ground No. 14, it has been stated that on 1-12-82 under his instigation and in his presence the Union members assaulted the rival workers of Marine Department situated in front of Mohanpura Power House and for that a criminal case was started against the detenu and others. Mr. Chatterji with much eraphasis submits that the incidents mentioned in grounds Nos. 1 to 10 all took place between 1977-1980; the order of detention having been passed in Feb., 1982 all these grounds must be considered as too remote. Ground No. 12 speaks of an incident said to have occurred on 3-11-1981 and grounds Nos. 13 and 14 speak of an incident having taken place in Feb., 1982. It has been alleged that the detenu only instigated or organised a Union and the members of his Union assaulted the workers of the rival Union. Even assuming that all these facts are correct, Mr. Chatterji submits that these can in no way affect the public order and the even tempo of the normal life of the citizen. Even assuming that the detenuwas resposible for the consequences alleged to have taken place at best those can be said to have affected law and order. Mr. Chatter.fi cited a number of decisions before us under the Maintenance of Internal Security Act which clearly explain the distinction between violation of law and order and violation of public order. Those decisions have full application in this case also and we agree with Mr. Chatterji that the incidents mentioned in grounds Nos. 1 to 10 and 12, 13 and 14 cannot be said to have affected the public order and that being so, it was not at all necessary to detain the detenu on any one of these grounds. After stating grounds Nos. 1 to 14 it has been stated towards the conclusion that from all the activities as narrated above it is clear that the detenu had been deliberately trying to disturb the normal life of the public by taking law in his own hand and instigating others to do so and instead of taking recourse to lawful activities, he had been very violently indulging unlawful activities causing serious breach of peace and also causing health hazards disturbing the maintenance of supplies and services essential to the community in the Municipal area of Port Blair by making the sweepers who were the members of his Union to continue to remain at unlawful strike and to resort unlawful activities. As has been indicated earlier, there was some dispute with regard to the joining time of the sweepers and over that dispute reference has been made before the Industrial Tribunal and the Reference is still pending. The strike said to have been organised by the detenu was never declared illegal. It is contended on behalf of the opposite parties that as a result of the strike and as a result of the sweeper's not joining to their duties a grave problem of hygiene and sanitation in the entire town of Port Blair has emerged affecting the public health of the citizen. It cannot be said that the detenu has caused the unhygienic and insanitary, condition of the town. Such condition may be the consequence of strike. The allegation against the detenu is that he orgnised the strike. Simply by organising a strike it cannot be said that he has acted in any manner prejudicial to the maintenance of supplies and services essential to the community. Again, relying on the decision reported in : 1982CriLJ340 it must be said that in this particular case order of notification was not made or published fairly in advance and was not made known appropriately to the public including the detenu. As such, the detenu cannot be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Mr. Chatterji contends with much emphasis that even if a single ground is found vicious that invalidates detention. In support of his contention Mr. Chatterji relies on a decision reported in : 1981CriLJ594 . (Shiv Prasad Bhatnagar v. State of Madhya Pradesh). This was also a case under the National Security Act, In this case, it has been held 'where the ground of detention under Section 3 which was substantiated by several incidents, suffered both from the vice of staleness. in that about five years had elapsed since the happenins of some of the incidents relied upon and the vice of irrelevance in that it related to 'law and order' and not to 'the maintenance of public order' as required by Section 3(2), the detention would be illegal and the detenu will be entitled to be released. In coming to such decision, their Lordships relied on AIR 1969 SC 1004 (In Re : Sushanta Goswami). It was further held 'The grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices, any single one of which is sufficient to vitiate a ground of detention. And a single vicious ground is sufficient to vitiate an order of detention.'

7. Mr. Sanyal, learned Advocate appearing on behalf of the Opposite Parties, relies on a decision reported in : 1981CriLJ1686 , (State of Gujarat v. Adam Kasam Bhaya). Relying on this decision, Mr. Sanyal submits that the authority concerned afforded detenu to make effective representation. Considering the facts, we agree with Mr. Sanyal and cannot declare the order of detention bad on the ground that no sufficient opportunity was given to the detenu to make an effective representation. Mr. Sanyal next relies on the decision reported in : 1982CriLJ150 (Smt. Hemlata Kantilal Shah v. State of Maharashtra). This was a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. In this case, it has been held that 'The High Court under Article 226 and the Supreme Court either under Article 32 or under Article 136 do not sit on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed the offender is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of Sub-article (5) of Article 22. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court.' True, this Court while dealing with an application under Article 226 of the Constitution of India cannot go into the merits of the grounds, namely whether the grounds are correct or not. This Court will have to accept the grounds as they are. But, this decision is no authority to say that this Court cannot enter into the question whether the alleged act affects law and order or public order or whether the alleged act of the detenu is prejudicial to the maintenance of supplies and services essential to the community. Until it is found that either the alleged act affects public order or affects the maintenance of supplies and services essential to the community, the order of detention cannot be upheld. Mr. Sanyal next relies on a decision reported in : 1982CriLJ338 (Fitrat Raza Khan v. State of UP). This decision was cited in support of the contention that the past conduct or the antecedent history of a person can appropriately be taken into account in making a detention order. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. From the grounds of detention, the Supreme Court found that the alleged activities were prejudicial to the maintenance of public order. Again, the alleged incidents took place on 13-8-1980 and on 24-7-1981 and as such, those grounds could not be said to be too remote. For the reasons stated earlier this decision has no application to the facts of the present case. In conclusion we find that the order of detention cannot be upheld.

8. In the result, the application succeeds and the Rule is made absolute. The order of detention passed on 23-2-1982 is held invalid. Let the detenu be set free forthwith.

Nani Gopal Choudhuri, J.

9. I agree.


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