PETITIONER: BABULAL DAS Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT17/01/1975 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH CITATION: 1975 AIR 606 1975 SCR (3) 193 1975 SCC (1) 311 CITATOR INFO : RF 1975 SC1165 (13) RF 1987 SC1383 (9) ACT: Maintenance of Internal Security Act, 1971 (Act XXVI of 1971), Section 3(1)(a)(ii)-Detention order, whether illegal on account of solitary incident. HEADNOTE: The petitioner has been detained in pursuance of the order of detention passed by the District Magistrate under sub-s. (1)(a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971. The act imputed to the detenue is as follows : "That on 16-2-73 between 10-08 and 10-14 hours you, along with your other associates, being armed with gun and other weapons committed a dacoity in a 3rd class compartment of running train S 110 Dn. between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat- Santipur Section and snatched away cash Rs. 30,000/- from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death." It was contended for the detenu that a solitary incident cannot imperil internal security and therefore, the order is illegal. Rejecting the contention and dismissing the writ petition HELD:One who reads the ground of detention, will be alarmed by the training and planning and sinister preparation of skill and spirit which has. made possible the commission of the act imputed organised dacoity in a running railway train by an armed gang equipped with fire-arms and putting, innocent passengers to Peril to life and property... Such action is so manifestly suggestive of desperate daring, organised ganging and habitual proclivity to. violence that it cannot be held unreasonable to infer therefrom a trendy course of criminal conduct-although intercepted or detected but once likely to break public order in a brazen manner and panicking the community by show of force. In this view, the petitioner's detention cannot be castigated as illegal. [194F-G] Obiter It is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under s. 15. Calculated risks. by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised, [195F] JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 444 of 1974.
Petition under Art. 32 of the Constitution of India.
O. P, Malviya, for the petitioner.
M. M. Kshatriya, and G. C. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-A single act of outrageous violence, in a
running train on February 16, 1973 by an armed gang, of
which the petitioner was alleged to be a member, persuaded
the District Magistrate of Nadia to direct his detention
under sub-S. (1) (a) (ii) of S. 3 of the Maintenance of
Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter
called the MISA, for short). The subsequent statutory
requirements have been fulfilled impeccably and the only
major sub
14-L379 Sup.C 75
194
mission of the petitioner is that on merits, he is not
guilty, that a case charge-sheeted against him has ended in
a discharge and that a single incident is insufficient to
constitute ‘a stream of tendency’ warranting preventive
detention. Most of the submissions urged have no force.
The fact that the petitioner was discharged by a court for
the same crime does no bear on the power to detain, nor are
we impressed with the other arguments urged before us.
Learned counsel Sri Malviya, appearing amicus curiae,
strenuously contended that one swallow does not make a
summer and likewise a solitary incident cannot imperil
maintenance of internal security and so the order is bad.
He relied on certain rulings of this Court and, rightly so.
This Court has been vigilant to see that isolated offences
are not exploited by executive authorities for clamping down
preventive detention insouciantly to by-pass the normal
judicial processes. But there is one exceptional category
of cases where an only dangerous deviance may itself
demonstrate its potentiality for continuing criminality and
indicate previous practice, experiment and expertise. In
such a narrow category of causes it is difficult to
predicate abuse of power or absence of application of mind
by the authority if preventive detention is directed solely
on one specialised crime.
In the present case the act imputed to the detenu is set out
in the detention order thus:
“That on 16-2-73 between 10-08 and 10-14 hours
you, along with your other associates, being
armed with gun and other weapons committed a
dacoity in a 3rd class compartment of running
train S. 1 10 Dn. between Habibpur R.S. and
Kalinarayanpur Junction R. S. in Ramaghat-
Santipur Section and snatched away cash Rs.
30.000/- from Shri Ashutosh Pal of Calcutta
causing bullet injuries to him putting all
passengers to fear of death..”
He who runs and reads-if the statement were true and its
veracity is unavailable for judicial scrutiny-will be
alarmed by the training and planning and sinister
preparation of skill and spirit which has made possible the
commission of the act imputed-organized dacoity in a running
railway train by an armed gang equipped with firearms and
putting innocent passengers to peril to life and property.
Such action is so manifestly suggestive of desperate daring,
organized ganging and habitual proclivity to violence that
it cannot be held unreasonable to infer therefrom a trendy
course of criminal conduct-although intercepted or detected
but once-likely to break public order in a brazen manner and
panicking the community by show of force. We are not
concerned with the merits of the alleged offence, since that
is assigned by the Legislature to the_ subjective
satisfaction of the authority. In this view, the
petitioner’s detention cannot, in the present case, be
castigateD as illegal, since we regard it as exceptional.
While discharging the rule issued and dismissing the
petition, we wish to emphasize that s. 15 is often lost
sight of by the Government in
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such situations, as long term preventive detentions can be
self-defeating or criminally counter-productive. Section 15
reads:
“15. Temporary release of persons detained-
(1) The appropriate Government may, at any
time, direct that any person detained in
pursuance of a detention order may be released
for any specified period either without
conditions or upon such conditions specified
in the direction as that person accepts, and
may, at any time, cancel his release.
(2) In directing the release of any person
under subsection (1), the appropriate.
Government may require him to enter into a
bond with or without sureties for the due
observance of the conditions specified in the
direction.
(3) Any person released under sub-section
(1) shall surrender himself at the time and
place, and to the authority, specified in the
order directing his release or cancelling his
release, as the case may be.
(4) If any person fails without sufficient
cause to surrender himself in the manner
specified in sub-section (3), he shall be
punishable with imprisonment for a term may
extend to two years, or with fine, or with
both.
(5) If any person released under sub-section
(1) fails to fulfil any of the
conditions imposed upon him under
the said sub-section or in the bond entered
into by him, the bond shall be declared to be
forfeited and any person bound thereby shall
be liable to pay the penalty thereof.”
We consider that it is fair that persons kept incarcerated
and embittered without trial should be given some chance to
reform themselves by reasonable recourse to the parole power
under s. 15. Calculated
risks, by release for short periods may, perhaps, be a
social gain, the beneficent jurisdiction being wisely
exercised. In this context we would recall the observations
made by this Court in Anil Dey v. State of West Bengal.()
“The petition, therefore, deserves to be dismissed.
However, the fact remains that the petitioner was arrested
in September 1972, and has been in deterrent incarceration
for nearly a year and half. Prolonged imprisonment without
trial alienates the individual against society and makes him
a vengeful enemy when he ultimately emerges from the prison
cell. Indeed, it is a serious injury inflicted on an
individual by the State which can be justified as a measure
of social defence only in extreme circumstances. But to
jail a man on subjective satisfaction of possible
prejudicial activity and to forget about him after the
statutory formalities have been perform-
(1) A.I.R. 1974 S.C. 832.
196
.lm15
ed is not fair to the constitutional guarantees. It is
appropriate for a democratic government not merely to
confine preventive detention to serious cases but also to
review, periodically the need for the continuance of the
incarceration. The rule of law and public conscience must
be respected to the maximum extent risk-taking permits, and
we dismiss the present petition with the hopeful thought
that the petitioner and others like him will not languish in
prison cells for a day longer than the administrator thinks
is absolutely necessary for the critical safety of society.”
The State may be reminded, in its own interests, of this
Court’s anxious admonition in Gama(1) :
“If the detaining authority takes the chance
of conviction and, when the court verdict goes
against it, falls back on its detention power
to punish one whom the Court would not
convict, it is an abuse and virtual
nullification of the judicial process. If
honestly finding a dangerous person getting
away with it by over-awing witnesses or
concealing the commission cleverly, an
authority thinks. on the material before him
that there is likelihood of and need to
interdict public disorder at his instance he
may validly direct detention. The distinction
is fine but real.”
We hope the humanist mandate in s. 15 of the MISA will not
rust in the statute book but will be used by Government to
humanise, by gradual assimilation into society, those who,
with blood-shot eyes, hate and intimidate their fellow men.
The rare use of this provision suggests that the compassion
and conscience of the law must be actively shared by the men
who operate the machine from executive cells.
V.M.K. Petition dismissed.
(1) [1974] 4 S.C.C. 530. 534.
197