PETITIONER: SAMARESH CHANDRA BOSE ETC. ETC. Vs. RESPONDENT: DISTRICT MAGISTRATE, BURDWAN DATE OF JUDGMENT14/08/1972 BENCH: DUA, I.D. BENCH: DUA, I.D. SHELAT, J.M. KHANNA, HANS RAJ CITATION: 1972 AIR 2481 1973 SCR (1) 859 1972 SCC (2) 476 ACT: Maintenance of Internal Security Act No. 26 of 1971--Section 3(1) and 3(2), whether delay of 22 days in considering the representation of the detenues by the Government unjustified-Whether violence practised against political opponents and police party affects public order-Whether detention order passed against detenues in jail is per se mala fide. HEADNOTE: The detenues and some other persons belonging to CPI(M) killed a driver belonging to CPI. It was further alleged that the detenues attacked the police party with bombs. The detention order was issued while the detenues were still in custody. The detention was challenged, inter alia, on the ground that the detention was vague, that the alleged acts of violence did not raise any problem of public, order and that the detention was maid fide. The detenues also challenged the validity of s. 17(a). Dismissing the petition, HELD : (i) The reasons given by the Government, for delay, namely, Pakistani aggression during Bangladesh war, go-slow movement of workers increase in the number of detention cases and spate of anti-social activities by Naxalites and other political extremists, were clear and convincing. There was no inordinate delay in the consideration of representations. Considering the facts of the case, the representations were considered with reasonable dispatch. [862E] Ujagar Singh v. The State of Punjab, [1952] S.C.R. 755 and Amiya Kumar Karmakar v. State of West Bengal W.P. No. 190 of 1972, relied on. (ii) The petitioners knew who the "political opponents" were and the detention order expressly stated the respective parties to which the petitioners and the victim belonged. The two grounds of detention are interlinked. It cannot, therefore be said that the petitioners did not get oppor- tunity to make effective representation due to vagueness or ambiguity of grounds furnished. [865H] (iii) It is quite clear that the, petitioners and associates had indulged in acts prima facie designed to terrorise people to overawe their political opponents and to cow down the police force and all this must have inevitable effect of disturbing and paralysing the normal peaceful civil life of the general public. The magnitude and impact of the activities of the petitioners and his associates on the peace and tranquility of the law abiding orderly society clearly shows that the acts of the detenues raised problems affecting public order. [868D] Shyamlal Chakraborty v. Commissioner of Police, [1970] 1 S.C.R. 762, relied on. Sushanta Goswami, In re : [1969] 3 S.C.R. 138, Sudhir Kumar Saha v. Commissioner, Calcutta, [1970] 3 S.C.R. 360 and Arun Ghosh v. State of West Bengal, [1970] S.C.R. 288, distinguished. (iv) The earlier discharge in a court of law cannot preclude the detaining authority from coming to a subjective satisfaction about the necessity 860 of the petitioner's detention which is preventive in character. The detention order is not rendered illegal or mala fide simply because the order was passed when the detenues were still in jail. [868F] (v) Challenge, to s. 17(a), introduced as an amendment by Defence of India Act, 42 of 1971 was not pressed. JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 216-218 of 1972.
Under Article 32 of the Constitution of India for the
enforcement of fundamental rights.
Somnath Chatterjee, Narnarayan Gooptu, Pulakmondal and
Rathin Das, for the petitioners.
D. N. Mukherjee and G. Mukhoty, for the respondents.
The Judgment of the Court was delivered by
Dua, J. These three writ petitions (Samaresh Chandra Bose v.
District Magistrate, Burdwan & Ors. W.P. No. 216 of 1972;
Shymal Biswas v. District Magistrate, Burdwan etc., W.P. No.
217 of 1972 and Dulal Chandra Das v. District Magistrate,
Burdwan etc., W.P. No. 218 of 1972) raise common questions
of law and fact and are, therefore, being disposed of by a
common judgment. In fact the main arguments were addressed
only in Samaresh Chandra Bose v. District Magistrate (W.P.
No. 216 of 1972), the arguments of this case having been
adopted in the other two cases. We would, therefore, refer
to the facts in W.P. No. 216 of 1972,
Samaresh Chandra Bose who is employed as a Supervisor of
Alloy Steel Plant, Durgapur was, according, to the common
case of both sides arrested on October 13, 1971 and was an
accused in Durgapur P.S. case (No. 33 dated October 14,
1971) under ss. 147/188/307, I.P.C. and under S. 6(3) of the
Indian Explosives Act. According to the petitioner he was
woken up while asleep in his quarters and arrested on the
morning whereas according to the respondent he was arrested
at about 8.15 p.m. from Tilak Road “B” Zone, Durgapur. It
is alleged that the petitioner, along with his associates,
Shyamal Biswas and Dulal Chandra Das (the two writ
petitioners in the connected cases) and others had hurled a
bomb towards a police party on patrol duty and after having
done so they tried to run away, but they were chased and
ultimately all three were apprehended. Th`e petitioner,
according to the respondent, was also wanted in connection
with Durgapur P.S. case (No. 17 dated October 8, 1971).
described by the petitioner in paragraph 8 of his writ
petition to be under ss. 148/149/326/307/326/302, I.P.C. The
petitioner ,was discharged in both the aforesaid criminal
cases on October
861
28, 1971. After his discharge the petitioner was served
with the detention order dated October 26 , 1971 made by the
District Magistrate, Durgapur in exercise of the power
conferred on him by s. 3(1) and (2) of the Maintenance of
Internal Security Act, 26 of 1971 (hereinafter called the
Act) and arrested on October 28, 1971.
On behalf of the petitioner Shri Somnath Chatterjee, his
learned Advocate, submitted as the first ground of attack
against the order of detention that the petitioner’s
representation to the State Government was not considered
with due expedition as contemplated by Art. 22(5) of the
Constitution. The representation was received by the State
Government on November 23, 1971 but it was disposed of about
22 days thereafter on December 16, 1971. According to him
the explanation for the delay furnished by the respondent is
highly unsatisfactory and this inordinate delay has,
therefore, rendered the petitioner’s detention invalid.
it is not disputed that the representation received on
November 23, 1971 was considered on December 16, 1971. The
explanation given by the State for the aforesaid delay in
considering the petitioner’s representation is contained in
paragraph 10 of the counter-affidavit, wherein it is averred
:
“…… that the written representation of the
detenu was duly considered by the State
Government expeditiously and the same was
rejected after due consideration. I further
state that at that time due ‘to influx of
refugees and due to Pakistan aggression, most
of the officers of the Home Department were
very busy with serious problems which faced
the country at that time and as, such the said
representation of the petitioner could not be
considered earlier. Moreover I further state
that due to go-slow movement of workers
launched co-ordination committee of the State
Government Employees during the period
September to November 1971 there was serious
dislocation and delay in movement of files and
disposal of cases. I further state that delay
was also caused due to abrupt increase in
number of detention cases during that time as
the–re was spate of antisocial activities by
Naxalites and other political extremists in
the State. 1 state that all the above factors
contributed towards the delay of about 28 days
in considering the representation of the
detenu petitioner.”
This explanation in a nut-shell shows the following reasons
forthe delay in considering the petitioner’s representation
(1) influx of refugees;
862
(2) Pakistani aggression keeping most of the
officers of the Home Department busy with the
serious problems facing the country;
(3) go-slow movement of the workers launched
by Co-ordination Committee of the State
Government employees during the month of
September to November, 1971 giving rise to
serious dislocation and delay in the movement
of files and disposal of cases;
(4) abrupt increase in the number of
detention cases;
(5) spate of anti-social activities by
Naxalites other political extremists in the
State.
Although according to Shri Chatterjee’s submission this ex-
planation is vague and ambiguous and does not disclose
precise material on which the delay can be held by this
Court to have been satisfactorily explained, we are unable
to find any ambiguity or vagueness in it. In our opinion,
the explanation contains distinct reasons based on facts
which are quite clear, definite and relevant and they can
legitimately be taken into account for determining whether
the State Government had considered the petitioner’s
representation with reasonable despatch and expedition or
had inordinately delayed its consideration. The explanation
convincingly shows that there was no inordinate delay on the
part of the State Government and that the representation was
duly considered with reasonable dispatch or as expeditiously
as practicable in the Peculiar circumstances of the case,
thereby fully complying with the provisions of Art. 22(5)
of the Constitution.This Court in Ujagar Singh v. The State
of Punjab(1) while construing the words “as soon as may be”
in s. 7 of the Preventive Detention Act, 4 of 1950 said that
these words mean reasonable dispatch and what is reasonable
dispatch depends on the facts of each case, it being not
possible to set down an arbitrary time limit. Recently in a
number of decisions this Court has taken a similar view. No
precedent has been brought to our notice on the authority of
which we may be obliged to hold that the reasons contained
in the explanation before us do not satisfactorily account
for the delay of 22 days and that the detention must on that
account be held to have become invalid. On the other hand a
recent decision of this Court dated July 31, 1972 in Amiya
Kumar Karmarkar v. State of West Bengal (2 ) delay of 21
days in somewhat similar circumstances was held not to
amount to inordinate delay so as to render the detention
invalid.
(1) [1952] S. C. R. 756.
(2) W.P. No. 190 of 1972.
863
Shri Chatterjee faintly contended that according to the
verification of the counter-affidavit the contents of para
lo are based on information derived from the records and,
therefore, this should more appropriately have been affirmed
by the District Magistrate and not by the Deputy Secretary
of the Home (Special) Department. This submission seems to
us to be misconceived. In the State of West Bengal a
Special Section of the Home Department has been created for
the purpose of dealing with the law and order situation. In
para 6(h) of the counter affidavit it is stated that on
November 23, 1971 the Home Department (Special Section)
received the petitioner’s representation. From para 8 of the
counter-affidavit it appears that the said representation
was addressed to the Assistant Secretary, Home, (Special )
Department. It is indeed this Department which, as
suggested in para 24 of the counter-affidavit, has in its
custody. relevant records of the State Government from which
the required relevant information has been derived by the
deponent who is the Deputy Secretary of the Home (Special)
Department, Government of West Bengal. He has affirmed that
he has gone through the records kept in the Special Section
and that he is well-acquainted with the facts and
circumstances of the case. It is noteworthy that in this
case there is no challenge to the bona fides of the officer
(District Magistrate, Durgapur) making the order of deten-
tion : had there been such a challenge one might have as a
rule expected the officer concerned to file an affidavit
controverting that challenge. This contention is thus also
unacceptable.
Shri Chatterjee also submitted that there is no material on
the record suggesting that the Special Section itself did
not continue to function effectively by reason of the five
grounds contained in the explanation for the delay in the
considering the petitioner’s representation. According to
the learned counsel this Section should not havetaken more
than just seven days for making-available to theState
Government the requisite material for performing its
constitutional duty as contemplated by Art. 22(5). Shri
Chatteriee indeed went to the length of suggesting that the
explanation contained in the counter-affidavit was an after-
thought. We are wholly unable to agree with this
submission. The very fact that a Special Section of the
Home Department was considered necessary to be created in
the State of West Bengal for dealing with inter alia the
cases of detenues, convincingly suggests that the situation
there was far from normal; besides it is a matter of public
history of which judicial notice can be taken, and indeed
even Shri Chatterjee could not controvert it, that for
several months preeceding the Tndo-Pak war which began on
December 3, 1971, there was a continuous influx of refugees
(running into several millions) from what was then known as
East Pakistan and is now free Republic of Bangla Desh and
that
864
on our eastern borders the situation was anything but
normal, indeed, this unprecedented influx of refugees from
the very nature. Of things could not but give rise to
colossal problems affecting inter alia the law and order
situation and maintenance of security in the State-of West
Bengal. Between November 23 and December 16, ‘1971,
therefore, the entire Home Department in West Bengal,
including its Special Section which owed its birth to the
urgent need of dealing with the detenus and other allied
problems, can legitimately be assumed to have been under
considerable stress and strain on account of the vexed
problem posed by the indiscriminate influx of refugees with
unknown antecedents from across our eastern borders. We
are, therefor,–, wholly unable to agree with Shri
Chatterjee that there is no relevant material for holding
that the working of the Special Section of the Home
Department was also adversely affected for the reasons
contained in the respondent’s explanation.
The two grounds on the basis of which the petitioner has
been detained are :
“On 8-10-71 at about 13-45 hours you along
with your associates Dulal Chandra Das and
30/35 others, belonging to CPI(M) with a view
to reduce your political opponents, to
submission and passivity, being armed with
lethal weapon like daggers etc. stopped D.S.P.
Bus No. WGH 7664 forcibly between 24th and
26th street on Sibaji Road, throwing
brickbats, pulled down the driver from the
bus, assaulted him and stabbed Shri Jiten
Chowdhury of 8/9 Akbar Road, a driver of
D.S.P. Bus, belonging to CPI,
who was
travelling in the said bus and murdered him.
Your act created a general sense of panic and
insecurity in the minds of the residents of
the- area of Sibaji Road in A Zone Steel Town-
ship, who could not follow their normal
avocations for a few days after the incident
under. the influence of terror.
2. Following a series of interparty clashes
on 8-10-71 curfew orders were promulgated
under section 144 Cr. P.C. in D.S.P. Township
between 6 p.m. and 5 a.m. with effect from 8-
10-71. On 13-10-71 during the curfew hours at
about 20-15 hours you along with your
associates Dulal Chandra Das and others
belonging to CPI (M) being armed with lethal
weapons like bombs, knives etc., attacked
lorry no. WGD 536 in which police party under
the leadership of H.C/1209 Anil Kumar Samanta
of B Zone O.P. was on patrol duty. You hurled
bomb aiming the police party with a view to
kill
865
them near street no. of Tilak Road The bomb
missed them and it exploded on the road The-
police party the explosion chased you and your
associates and could arrest you and 2 others,
while others fled away. On search one knife
and a cycle chain was recovered from
possession of Samaresh Bose. Your act was
intended to cow down the police and your
political opponents by terror for promoting
the objectives of the party to which you
belong. By attempting to murder police
personnel engaged in maintenance of public
order in the residential township area within
curfew period, you created a sense of panic
and insecurity in the minds of local people to
such an extent that they were hesitant to
pursue their normal avocations for a
considerable period after the incident.”
The learned counsel faintly suggested that on December 8,
1971 the Indo-Pak war was at its height and, therefore, it
is inconceivable that the incident mentioned in ground no. 1
could have occurred on that day because no one would have
been so reckless as to dare to indulge in such a violent
activity, when armed forces must be deemed to be present in
the State in large numbers for fighting war on the eastern
border. This contention is difficult to accept. The fact
of the occurrence having taken place must be accepted as
stated in the grounds because the subjective satisfaction of
the detaining authority on this point is final. Indeed, it
has also been affirmed in the counter-affidavit. Once the
occurrence is accepted, then, even on Shri Chatterjee’s own
line of reasoning the necessity of the order for the
detention of the petitioner and his associates would appear
too obvious to require any further Proof. This occurrence
highlights the terrorising character of the petitioner’s
party.
The learned counsel then urged that both the grounds am
vague. because the expression “political opponents” has not
been explained with precision. In our opinion the learned
counsel is not quite correct in his submission. In ground
no. 1 it is clearly stated that the petitioner his
associates be onging to CPI(M), with a view to reduce the
political opponents to submission and passivity, being armed
with lethal weapons etc., stabbed Shri Jiten Choudhury, a
driver of D.S P. (Durgapur Steel Project) Bus belonging to
the C.P.I. (emphasis supplied). The political parties are,
therefore, quite clearly and specifically referred to in
,ground no. 1. It cannot be said that the petitioner was
kept in the dark or that he was unable to understand the
reference to the political opponents in this ground and was,
therefore, not in a position to make a proper, effective
representation. In ground no. 2 undoubtedly there is no
reference to C.P.T. such as is found in ground no. 1. But in
our opinion ground no. 2 has to be ,
6–L173Sup.CI/73
866
read and understood in the light of the reference made to
the political opponents in ground no. 1. The two grounds
have to be read together in this respect as they are clearly
inter-linked. Reference in ground no. 2 to a series of
inter-party clashes on ,October 8, makes the position
further clear. Ground no. 2 states that the petitioner’s
act was intended to cow down the police and the political
opponents by terror for promoting the objectives of the
party to which he belonged. The petitioner’s party being
clearly specified in ground no. 1 which is inter-linked with
ground no. 2, the challenge on the ground of vagueness or
ambiguity in ,round no. 2 must be held to be devoid of
merit.
Shri Chatterjee then said that this ground does not give
rise to any problem of public order. We are unable to
accept this submission. Attempting to murder police
personnel engaged on patrol duty in the residential township
area during curfew period in order to overawe them is, in
our view, an act which would obviously create a feeling of
panic, alarm and insecurity in the minds of the local
inhabitants in general : it would also suggest that any one
opposing the political ideology of the petitioner’s party
would be similarly exposed to violence at the hands of the
petitioner and his associates, who are not afraid even of
the police force. This clearly illustrates how direct and
extensive is the reach of this crime on the general public.
The faint suggestion that during curfew time the incident
mentioned in ground no. 2 could not reasonably raise any
problem of public order because there would hardly be many
members of the public, present in the streets, seems to us
to be misconceived. The incident is said to have taken
place at about 8-15 p.m. on October 13. 1971 during curfew
hours. The area in question in residential township area.
People, though not moving about in the streets. would
normally speaking be awake in their own houses and they
could not be unaware of such a serious clash between the
petitioner and his associates armed with bombs etc., on the
one side and the police patrol Party on the other, on whom
the bombs were burled. This clash must have caused serious
disturbance of peace and tranquillity in the locality and
would inevitably had attracted attention of its residents.
Attack with bombs and other lethal weapons on police patrol
party in the circumstances cannot but have a grave impact on
public order and on even tempo of the life of the community.
People, though keeping in-door-,; in their houses, would
quite naturally get panic-stricken and feel frightened to
move about freely in the performance of their normal daily
activities: they are also likely to feel scared of moving
out during curfew hours with the permission of the autho-
rities concerned for doing even most urgent work. Reference
was made, by Shri Chatterjee to the decision of this Court
in Re : Sushanta Goswami(1) where the incidents relied upon
by the
(1) [1969] 3 S. C. R. 138.
867
detaining authority were hold to relate only to the problem
of law and order. The incidents there do not seem to bear
any comparison with those before us and the petitioner’s
counsel also ultimately did not seriously press the point.
The decision reported as Sudhir Kumar Saha v. Commissioner,
Calcutta(1) deals with the case of stray incidents and does
not constitute any binding precedent for the case in hand.
Reference was further made to Arun Ghosh v. State of West
Bengal(1) but there again the acts of the detenu were
directed against the family of one individual and not
against women in general in the locality. It was held in
the reported case that the detenu’s conduct however
reprehensible did not create the situation where it could be
said that the life of the community at large was being
seriously disturbed or put out of gear : in other words that
there was a breach, or likelihood of a breach- of public
order. The reported case is clearly distinguishable acts
imputed to petitioner in tilt else in hand directly raise
problem of public order. The petitioner and his associates
belong to a political party and the two ,,rounds are founded
on inter-linked incidents, which are closely related to
inter-party clashes preceding the promulgation of the curfew
order on October 8, 1 971 following their political opponent
Jiten Choudhury’s murder. The second incident is a direct
violent clash with the police force during the curfew
period. It is, therefore, not possible to sustain Shri
Chatterjee’s contention that these two grounds do not raise
the problem of public order. These facts seem to bear a
close resemblance to those of Amiya Kumar Karmakar (Supra).
On behalf of the respondent our attention was drawn to
Shyamal Chakraborty v. Commissioner of Police, Calcutta (2)
where the question was discussed in those words :
“The question which arose is this : do the
grounds reproduced above relate merely to
maintenance of order or do they relat
e to the
maintenance of public order ? It will be
noticed that the detenu in each of these cases
acted along with associates who were armed
with lathes, iron rods. acid bulbs, etc. It
is clearly said in ground no. 1 that be
committed a riot and indiscriminately used
acid bulbs, iron rods, lathis etc. endangering
human lives. This ground cannot be said to
have reference merely to maintenance of order
because it affects the locality and everybody
who lives in the locality. Similarly, in the
second ground, he along with his associates
prevented the police constables from
discharging their lawful duties and thus
affected everybody living in the locality.
(2) [1970] 3 S.C.R. 288.
(3) [1970] 3 S.C.R. 762.
868
In ground no. 3, again the whole locality was
in danger as the. detenu and his associates
were armed with deadly weapons and these were
in fact used for indiscriminately endangering
human lives in the locality. The object of
the detenu seems to have been to terrorise
the, locality and bring the whole machinery of
law and order to a halt. We are unable to say
that the Commissioner of Police could not in
view of these grounds come. to the conclusion
that the detenu was likely to act in a manner
prejudicial to the maintenance of public order
in the future and it was necessary to prevent
him from doing so. The fact that public order
is affected by an act which was also an
offence under the Indian Penal Code seems to
us to be irrelevant.”
The reasoning of this decision fully applies to the case
before us. It is quite clear that the petitioner and his
associates had indulged in acts prima facie designed to
terrorise people, to over-owe their political opponents, and
to cow down the police force. and all this must have the
inevitable effect of disturbing and paralysing the normal,
peaceful civic life of the general public. The magnitude of
the impact of the activities of the petitioner and his asso-
ciates on the peace and tranquillity of the law-abiding,
orderly society clearly shows that they were directed to
bring a halt to the machinery of law and order. This must
necessarily raise a problem affecting public order. On
these grounds the detention order cannot but be held to be
justified. As a preventive measure this order rightly
ensures protection of liberty of the public wrongfully
endangered by the petitioner’s terrorising activities.
The fact that the petitioner was discharged in a criminal
case for the offences for which he was arrested on October
8, 1971 and that the detention order is dated October 26,
1971 when he was still in jail custody would not render the
detention order either illegal or mala fide. After the
order of discharge the petitioner was going to be released
soon and if the detaining authority felt satisfied on the
material before it which was germane to the object of
detention, then, the petitioner’s detention is not open to
challenge in he present proceedings. His detention is pre-
ventive : he is to be prevented from acting in future in any
manner prejudicial to the maintenance of public order. His
earlier discharge in a court of law cannot preclude the
detaining authority from coming to a subjective satisfaction
about the necessity of the petitioner’s detention on grounds
which are germane and relevant.
Before closing we may refer to another point sought to be
raised by Shri Chatterjee. He has referred us to the
Defence of India Act, 42 of 1971 which came into force on
December 4,
869
1971. This enactment to amend the Act in several respects.
It adds S. 17A after S. 17 and the new section provides
“Notwithstanding anything contained in the
foregoing Provisions of this Act, during the
period of operation of the Proclamation of
Emergency issued on the 3rd day of December,
1971, any person (including a foreigner) in
respect of whom an order of detention has been
made under this Act, may be detained without
obtaining the opinion of the Advisory Board
for a period longer than three months, but not
exceeding two years from the date of his
detention in any of the following classes of
cases or under any of the following
circumstances, namely :
(a) where such person had been detained with
a view to preventing him from acting in any
manner prejudicial to the defence of India,
relations of India with foreign powers or the
security of India…….”
The learned counsel apprehending that this amendment of the
Act may entail the petitioner’s detention beyond a period of
12 months as contemplated in the unamended Act, desired to
challenge this amendment.
In the counter-affidavit, however,. it is averred in para 6A
that the State Government, while affirming the petitioners
order of detention directed on December 24, 1971 that his
detention is to continue till the expiration of 12 months
from the date of ,his detention. The present detention of
the petitioner is in any event valid under the unamended
Act. In view of this and of para 6A of the counter-
affidavit Shri Chatterjee did not press his challenge to the
validity of the aforementioned amendment. We are,
therefore, not called upon to consider the effect of the
said amendment on the present case. It would, however, be
open to the petitioner to take whatever suitable steps are
open to him after the expiry of 12 months from the date of
his detention if he feels aggrieved.
No fresh arguments were addressed in the other two writ
petitions and it was conceded that our order in W.P. No. 216
of 1972 would also cover the other two petitions. The final
result is that all the three petitions fail and are
dismissed.
S.B.W. Petitions
dismissed.
870